                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 27 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DENNIS ALAN SHACKELFORD,

                Petitioner-Appellant,

    v.                                                   No. 97-6334
                                                     (D.C. No. 97-CV-663)
    RON CHAMPION, Warden; STATE                          (W.D. Okla.)
    OF OKLAHOMA; JAMES L.
    SAFFLE,

                Respondents-Appellees.

                            ORDER AND JUDGMENT            *

Before TACHA and McKAY , Circuit Judges, and         BROWN, ** Senior District
Judge.

         After examining the briefs and appellate record, this panel has determined

unanimously to grant the appellant’s request for a decision on the briefs without

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

       Petitioner-appellant Dennis Alan Shackelford seeks review of the denial of

his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. He also

seeks a certificate of appealability as required under 28 U.S.C. § 2253(c)(1).   1

       Mr. Shackelford was convicted of first degree murder in the shooting death

of Thomas “Tyke” Kelly. Petitioner maintained that Mr. Kelly attacked petitioner

and that the killing was unintentional and in defense of petitioner and his wife.

The background facts do not appear to be in dispute.

       Briefly, Mr. and Mrs. Shackelford went to Thomas Kelly’s trailer home to

discuss a debt allegedly owed Mrs. Shackelford for damage Mr. Kelly had caused

to her car earlier in the week. Mr. Shackelford had a gun in his back pocket. As

they approached the trailer, Mrs. Shackelford knocked on the door, Mr. Kelly

appeared, and he and Mrs. Shackelford had a discussion. Mr. Kelly then stated he

would continue the conversation only if Mrs. Shackelford came in the trailer

alone. Mr. Shackelford asked her not to, but told Mr. Kelly he wanted things to

remain peaceful.

1
      The habeas petition was filed after the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). Hence, a certificate of
appealability is required, which means we must determine that petitioner “has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).

                                            -2-
       At that point, according to Mr. Shackelford, Mr. Kelly grabbed him by the

throat and attempted to throw him over the porch railing. Mr. Shackelford

instinctively grabbed the gun and shot Mr. Kelly, who fell backward. Unsure if

he had actually hit Mr. Kelly, Mr. Shackelford moved to position himself between

Mrs. Shackelford and Mr. Kelly. Mr. Kelly raised up as though attempting to

stand back up, and Mr. Shackelford fired another shot.

       The evidence at trial showed that Mr. Kelly died of three gunshot wounds,

two to the chest and one to the back of the shoulder. The only eyewitness (other

than Mr. Shackelford) was Mrs. Shackelford, who had died in a car accident prior

to the trial.

       Mr. Shackelford testified in his own behalf. The state presented the

testimony of witnesses in the vicinity, who testified as to what they heard before

and after the shots were fired. None heard any scuffle or argument between the

parties prior to the firing of the shots. In addition, the witnesses testified that the

shots happened within seconds of the knock on Mr. Kelly’s door.

       On direct appeal and before the federal district court, Mr. Shackelford

raised the following issues:

       (1) the trial court erred in (i) allowing jurors to take notes and to ask
       questions of witnesses during his trial, (ii) admitting into evidence a
       videotape of an out-of-court experiment conducted by the Oklahoma
       State Bureau of Investigation, (iii) submitting certain instructions to
       the jury and failing to submit certain others and (iv) restricting his
       cross-examination of state witness, Gary Eischeid; (2) prosecutorial

                                           -3-
      misconduct deprived him of a fair trial; and (3) the evidence
      presented at trial was insufficient to support his conviction.

Magistrate Judge’s Report and Recommendation, at 1-2.

      On appeal to this court, petitioner raises only the following issues: (1) the

state trial court erred in allowing the jury to ask questions of witnesses, thereby

depriving petitioner of a fair and impartial jury; (2) petitioner was denied his due

process rights to a fair trial because of prosecutorial misconduct; (3) certain jury

instructions violated petitioner’s Fourteenth Amendment due process rights, and

(4) petitioner was denied his Sixth and Fourteenth amendment rights to confront

adverse witnesses by the state trial court’s refusal to allow cross-examination of a

certain witness.

Juror Questions

      The magistrate judge determined that the claims raised in ground one were

issues of state law related to the manner in which the trial court conducts a

criminal trial. He further noted that “Petitioner appears to acknowledge that, as a

matter of state law, the [state trial court] has discretion to permit the jury both to

take notes and to ask questions of witnesses” (citations omitted), and that

petitioner “clearly advocates a change in that law.” Report and Recommendation,

at 4-5.

                                          -4-
       As to permitting the jurors to ask questions of witnesses, Mr. Shackelford

ignores the fact that Oklahoma practice allows for this.       See Cohee v. State , 942

P.2d 211, 214 (Okla. Crim. App. 1997) (reciting guidelines governing juries in

criminal trials which allow the jury to question witnesses);      Freeman v. State , 876

P.2d 283, 288-89 (Okla. Crim. App. 1994). Moreover, he does not claim that any

particular questions asked were prejudicial or fundamentally unfair. His theory

that the procedure may cause jurors to be frustrated or resentful if individual

questions were not asked, or that one or two jurors might dominate the

questioning, is pure speculation. The trial court was careful to allow only written

questions, which were then screened in chambers before either being asked or

disallowed. Counsel for Mr. Shackelford conceded it was a matter of the court’s

discretion whether or not to allow juror questioning. We find no constitutional

infirmity which would warrant habeas corpus relief.

Prosecutorial Misconduct

       Mr. Shackelford next complains of prosecutorial misconduct on several

occasions:

       A. Opening statement

       Mr. Shackelford alleges the prosecutor erred in his opening statement by

implying that Mrs. Shackelford’s testimony would have been substantially

different from (and inconsistent with) that of Mr. Shackelford. Specifically, he

                                            -5-
contends that the prosecutor’s remark that “Jerrie Shackelford who was also at the

doorway of that trailer park is not here and will not be here to give you her

version of what happened in the doorway of that trailer,” amounts to misleading

the jury as to “what [Mrs.] Shackelford’s testimony would have been had she

lived to testify.” Appellant’s Br. at 29.

       We fail to see how the statement in any way indicates what her testimony

might have been. The jury was advised that Mrs. Shackelford’s death was in no

way related to her husband’s trial. Even if the remark, which does not implicate a

specific constitutional right, was improper, it does not rise to the level of

unfairness as to make the conviction a denial of due process.       See Moore v.

Reynolds , No. 97-6065, 1998 WL 387452 at *27 (10th Cir. July 13, 1998)

(“Prosecutorial misconduct does not warrant federal habeas relief unless the

conduct complained of ‘so infected the trial with unfairness as to make the

resulting conviction a denial of due process.’”) (quoting       Donnelly v.

DeChristoforo , 416 U.S. 637, 643 (1974)). Because the prosecutor’s remark did

not infringe on any specific constitutional right, the claim of prosecutorial

misconduct is reviewed in a habeas setting only for fundamental unfairness.        See

Mahorney v. Wallman , 917 F.2d 469, 472 (10th Cir. 1990) (citing        Coleman v.

Saffle , 869 F.2d 1377, 1395 (10th Cir. 1989)). We conclude there was none.

                                            -6-
      B. Improper witness questioning

      Mr. Shackelford claims the prosecutor’s cross-examination of defense

witness George Burns, a former Oklahoma City police officer, was improper

because the witness was asked if he had been suspended from the police

department after having been arrested. Petitioner’s objection to the question was

sustained, and no further questions on the subject were asked.

      Mr. Shackelford also complains that the prosecutor’s cross-examination of

him regarding karate lessons, a punching bag and weight equipment improperly

implied that petitioner could have fended off Mr. Kelly’s attack without using the

gun. The magistrate judge determined that the record reflected that petitioner’s

trial counsel then established that petitioner had taken karate lessons for a short

period and had not practiced it in many years. It was also established that the

purpose of the punching bag and weight equipment was overall fitness.

      Mr. Shackelford also argues that he was improperly questioned regarding

martial arts tatoos, which he asserts portrayed him as “a violent tattooed thug.”

He concedes, however, that trial counsel’s objection to this question was

sustained, and he does not dispute the magistrate judge’s finding that the record

shows that the jury was immediately admonished to disregard the question.

      The prosecutor further allegedly violated the ruling on an earlier motion in

limine by asking questions about Mr. Shackelford’s emotional problems and

                                          -7-
threats of suicide. The trial court overruled the objection with respect to the prior

suicide threats, but sustained the objection to questions about other emotional

problems. Again petitioner has failed to demonstrate any errors rising to the

level of constitutional violations.

       C. Misconduct in closing arguments

       Here, Mr. Shackelford claims the prosecutor misstated Oklahoma law in

stating that a lesser included instruction on manslaughter is automatic when self-

defense is raised as a defense to first degree murder. He also claims the

prosecutor erroneously encouraged the jury to sympathize with the victim and

improperly “made a naked appeal to societal alarm by suggesting to the jury that

if [Mr. Shackelford] was not sentenced to life without parole, he would again

have an opportunity to commit acts of violence.” Appellant’s Br. at 38.

       As with his arguments on the alleged improper remarks during the

prosecutor’s opening statement, petitioner recognizes the standard of review on

habeas corpus, i.e., that prosecutorial comments violate due process only when so

egregious in the context of the entire trial as to render the trial fundamentally

unfair. See Donnelly , 416 U.S. at 642-48. At most the prosecutorial errors

complained of might constitute violations of state law.   See, e.g. , Tolber v. State ,

688 P.2d 350, 354 (Okla. Crim. App. 1984) (error to persuade jury away from

judge’s instruction on manslaughter);    Cummings v. State , 578 P.2d 377, 380

                                            -8-
(Okla. Crim. App. 1978) (character impeachment improper);       President v. State ,

602 P.2d 222, 226 (Okla. Crim. App. 1979) (improper prosecutorial argument

warranted modified sentence);     Robinson v. State , 574 P.2d 1069, 1072 (Okla.

Crim. App. 1978) (same). However, “[r]emarks that would cause us to reverse in

a direct appeal of a federal conviction are not necessarily grounds for reversal

when spoken in state courts.”    Coleman v. Brown , 802 F.2d 1227, 1237 (10th Cir.

1986). In a federal habeas action reviewing a state prosecutor’s conduct , our

review is not a broad exercise of supervisory power, but rather is narrowly

confined to violations of due process.   See Brecheen v. Reynolds , 41 F.3d 1343,

1355 (10th Cir. 1994). The errors here alleged, as the magistrate judge correctly

found, do not rise to the level of federal constitutional violations.

Jury Instructions

       As his third claim of error, Mr. Shackelford contends that certain jury

instructions violated his Fourteenth Amendment due process rights. Specifically,

he claims the trial court erred in giving the following instruction on intent:

       The “intent” with which an act is done is the mental state of mind of
       the accused and, therefore, direct and positive proof of intent is not
       necessary. If you find that an act was done, then the intent with
       which it was done is to be gathered and determined by you from all
       the facts and circumstances as the same have been established and
       shown by all the evidence presented during the trial of this case.

Appellant’s App. at 73.

                                           -9-
      In reviewing instructions for federal constitutional error:

      The burden of demonstrating that an erroneous instruction was so
      prejudicial that it will support a collateral attack on the constitutional
      validity of a state court’s judgment is even greater than the showing
      required to establish plain error on direct appeal. The question in
      such a collateral proceeding is whether the ailing instruction by itself
      so infected the entire trial that the resulting conviction violates due
      process, not merely whether the instruction is undesirable, erroneous,
      or even universally condemned. (quotations, citation, and footnote
      omitted).

Henderson v. Kibbe , 431 U.S. 145, 154 (1977).

      Mr. Shackelford contends that this instruction unconstitutionally shifted

“the burden of proof to the accused to prove a lack of intent in violation of the

Fourteenth Amendment’s due process clause” and in violation of the Supreme

Court’s dictates in Yates v. Aiken , 484 U.S. 211 (1988); Francis v. Franklin , 471

U.S. 307 (1985); Sandstrom v. Montana , 442 U.S. 510 (1979); and      Mullaney v.

Wilbur , 421 U.S. 684 (1975). We disagree.

      The instruction suffers from no infirmity of the “burden shifting” nature

found unconstitutional by the Supreme Court in its cases reviewing presumptions

because the instruction involves no presumptions whatever. Instead, the

instruction merely recites that intent is a mental state of mind which the jury is to

determine from all the facts and circumstances shown by all the evidence

presented. Moreover, we have considered a nearly identical instruction and found

no constitutional violation, and specifically that it “does not establish a

                                         -10-
presumption or shift the burden of proof.”      See Fisher v. Champion , No. 91-5014,

1991 WL 166402, at **3-4 and n.2 (10th Cir. Aug. 28, 1991) (unpublished order

and judgment).

       He next claims that the trial court’s instructions on heat of passion

manslaughter “failed to properly allocate the burden of proof to the prosecution,”

contrary to the dictates of   Mullaney , 421 U.S. at 704 (“Due Process Clause

requires the prosecution to prove beyond a reasonable doubt the absence of the

heat of passion on sudden provocation when the issue is properly presented in a

homicide case.”). Appellant’s Br. at 43. Again, we disagree. The very language

of the instruction requires that a defendant may not be convicted of first degree

manslaughter unless the state proves beyond a reasonable doubt that “when

performing the conduct which caused the death, defendant was in a heat of

passion.” Appellant’s App. at 76. We find no federal constitutional infirmity in

this instruction.

       Petitioner also argues that the trial court violated this court’s requirements

set forth in United States v. Lofton , 776 F.2d 918, 920-21 (10th Cir. 1985) (in

federal murder prosecution under 18 U.S.C. § 1111(a) where heat of passion is

raised as defense, defendant entitled to instruction that government has duty to

prove beyond reasonable doubt the absence of heat of passion in order to obtain

murder conviction).

                                             -11-
       In this case, petitioner has appended only four of apparently over fifty

instructions given at trial. None of those furnished this court are constitutionally

infirm. “A state conviction may only be set aside in a habeas proceeding on the

basis of erroneous jury instructions when the errors had the effect of rendering the

trial so fundamentally unfair as to cause a denial of a fair trial.”      Maes v. Thomas ,

46 F.3d 979, 984 (10th Cir. 1995). “‘The burden of demonstrating that an

erroneous instruction was so prejudicial that it will support a collateral attack on

the constitutional validity of a state court’s judgment is even greater than the

showing required to establish plain error on direct appeal.’”          Id. (quoting

Henderson v. Kibbe , 431 U.S. at 154).

       Lofton requires that instructions meet the constitutional requirements of

Mullaney v. Wilbur , 421 U.S. at 697-98, i.e., that the “state prove beyond a

reasonable doubt the absence of heat of passion on sudden provocation where the

issue is properly presented in a homicide case.” By attaching only the

manslaughter instruction in support of his argument, petitioner has not provided

us with a sufficient record from which to conclude that the jury was inadequately

instructed, let alone that he has met the heavy burden of establishing that the

instructions violated due process. It is up to counsel to see that record excerpts

are sufficient for us to consider and determine the issues on appeal; we are under

no obligation to fulfill that responsibility.      See Rubner & Kutner, P.C. v. United

                                                -12-
States Trustee (In re Lederman Enters., Inc.)        , 997 F.2d 1321, 1323 (10th Cir.

1993); King v. Unocal Corp. , 58 F.3d 586, 587 (10th Cir. 1995).

Denial of Right to Confrontation

       Finally, Mr. Shackelford claims the trial court erred in refusing to allow

cross-examination of a detective with respect to a statement given the detective by

Mrs. Shackelford the morning        after the shooting.    The trial court excluded the

statement as hearsay (and not admissible under the “excited utterance exception”)

and was unpersuaded by petitioner’s alternative theory that the statement was

necessary to correct the false impression left by the prosecution that Mrs.

Shackelford would have testified differently than (i.e., contrary to) petitioner.

The magistrate judge determined that exclusion of the statement was well

supported by state law and, more importantly, that in any event the prosecutor did

not directly comment on how Mrs. Shackelford would have testified. Again, at

most petitioner has alleged an error of state law, which a federal court in habeas

corpus proceedings does not sit to correct.          See Estelle v. McGuire , 502 U.S. 62,

71-72 (1991).

       We conclude that petitioner has failed to make a substantial showing of a

denial of a constitutional right.    See 28 U.S.C. § 2253(c)(2). Accordingly, we

DENY petitioner’s request for a certificate of appealability.

       The appeal is DISMISSED.

                                              -13-
       Entered for the Court

       Monroe G. McKay
       Circuit Judge

-14-


235 F.Supp.2d 736 (2002)
Justine SMELTZER, Plaintiff,
v.
Nancy R. HOOK et al., Defendants.
No. 4:02-CV-137.
United States District Court, W.D. Michigan, Southern Division.
August 29, 2002.
*737 *738 Justine Smeltzer, Muskegon Heights, MI, Pro se.

OPINION
MCKEAGUE, District Judge.
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. Under the Prison Litigation Reform Act, PUB.L. No. 104-134, 110 STAT. 1321 (1996) ("PLRA"), "no action shall be brought with respect to prison conditions ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Because Plaintiff has failed to demonstrate exhaustion of available administrative remedies, the Court will dismiss his complaint without prejudice.

Discussion

I. Factual Allegations

Plaintiff is currently incarcerated in the Brooks Correctional Facility. In his pro se complaint, Plaintiff sues the following Brooks employees: Nancy Hook, L. Jones, Mary Berghuis, Jo Ann Bach, R. Brand, J. Minnerick and unknown parties. In addition, Plaintiff sues the Michigan Department of Corrections and the State of Michigan.
In August 2001, Plaintiff pled no contest to two counts of third-degree sexual conduct with regard to his minor daughter, and was sentenced to imprisonment of 10-15 years. In March 2002, Plaintiff's parental rights were terminated over his objections by the Hillsdale County Circuit Court. The state court also entered an order that Plaintiff "shall have no contact, in person, by letter or by phone, with the minor children or Leann Smeltzer [Plaintiff's wife]." Several administrative hearings were held at Brooks as a result of Plaintiff's attempts to communicate with his wife in violation of the no contact order. The first hearing, held on April 8, 2002, concerned three letters that Plaintiff had written to his wife. (See 4/8/02 Administrative Hearing Report, docket # 5). The hearing officer, Defendant L. Jones, determined that the mail would be turned over to the Hillsdale County Circuit Court. Plaintiff was notified that further attempts to contact his wife or children would result in appropriate disciplinary action.
The second administrative hearing, held on April 17, 2002, concerned Plaintiff's attempts to contact his wife by phone. (See 4/17/02 Administrative Hearing Report, docket # 5). In order to use the telephone, a prisoner must complete a form identifying the names and numbers of no more than twenty people and organizations that he wants to be able to call. See MICH. DEP'T OF CORR. Policy Directive 05.03.130, L *739 ("Prisoner Telephone Use"). The prisoner is provided a PIN which allows access to the numbers on his list. Id. Plaintiff's wife's telephone number was not on his list, but he allegedly used another prisoner's PIN in order to make nine phone calls to his wife. The telephone policy provides that a prisoner who abuses his telephone privileges may be restricted from using the phone. Policy Directive 05.03.130, FF. Making a call in violation of state law and using another prisoner's PIN are specifically listed in the policy as examples of abuse. Id. at FF(3), (10). As a result of Plaintiff's conduct, he was placed on a permanent telephone restriction, whereby he is only permitted to make calls to attorneys and legitimate legal services organizations. Id. at HH. Under the telephone policy, the warden must receive written approval from the Regional Prisoner Administrator if the restriction exceeds six months. Id. at GG. Accordingly, Warden Berguis sought approval from Regional Prisoner Administrator Jo Ann Bach. (See 5/1/02 Memorandum, docket # 5.)
At least three more administrative hearings were held regarding Plaintiff's attempts to send mail to his wife. (See 4/26/02, 6/3/02, 6/19/02 Administrative Hearing Reports, docket # 5). In the June 19 administrative hearing report, Hearing Officer Jones explicitly ordered Plaintiff to cease any and all contact with his wife and children. Defendant Nancy R. Hook also wrote misconduct reports against Plaintiff for writing to his wife in violation of the no contact order. The April 25 major misconduct report indicated that Plaintiff attempted to conceal his conduct by using another prisoner's return address and addressing the letter to his wife using her middle and maiden names. (See 4/25/02 Major Misconduct Report, docket # 5.) Plaintiff was ultimately found guilty of a minor misconduct for unauthorized communication. (See 5/9/02 Major Misconduct Hearing Report, docket # 5.) The hearing officer found that Plaintiff was not guilty of the major offense because the April 8, 2002 administrative hearing report did not include a direct order not to contact his wife or children. Plaintiff was found guilty of two additional charges of unauthorized communication. (See 5/21/02, 5/22/02 Minor Misconduct Violation and Hearing Reports, docket # 5.)
Plaintiff claims that the permanent telephone restriction violates his First, Eighth and Fourteenth Amendment rights. He further claims that Defendants have opened and interfered with his outgoing and incoming mail in violation of his Fourth, Eighth and Fourteenth Amendment rights. Plaintiff also raises claims regarding the adequacy of the prison grievance process. He contends that Defendants have deprived him of his First Amendment right to petition the government for redress and his Fifth Amendment due process rights by failing to provide a fair and just grievance process.

II. Lack of exhaustion of available administrative remedies

Plaintiff has failed to sufficiently allege and show exhaustion of available administrative remedies. Pursuant to 42 U.S.C. § 1997e(a), a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must exhaust available administrative remedies. See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). The exhaustion requirement is mandatory and applies to all suits regarding prison conditions, regardless of the nature of the wrong or the type of relief sought. Porter, 122 S.Ct. at 984; Booth, 532 U.S. at 741, 121 S.Ct. 1819. A district court must enforce the exhaustion requirement sua sponte. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.), *740 cert. denied, 525 U.S. 833, 119 S.Ct. 88, 142 L.Ed.2d 69 (1998); accord Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir.1999).
A prisoner must allege and show that he has exhausted all available administrative remedies and should attach to his § 1983 complaint the administrative decision disposing of his complaint, if the decision is available. Brown, 139 F.3d at 1104. In the absence of written documentation, the prisoner must describe with specificity the administrative proceeding and its outcome so that the court may determine what claims, if any, have been exhausted. Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.), cert. denied, 531 U.S. 1040, 121 S.Ct. 634, 148 L.Ed.2d 542 (2000). A prisoner must also specifically mention the involved parties in the grievance to alert the prison officials of the problems so that the prison has a chance to address the claims before they reach federal court. Curry v. Scott, 249 F.3d 493, 505 (6th Cir.2001).
Plaintiff's claims are the type that may be grieved through the three-step prison grievance process. See MICH. DEP'T OF CORR., Policy Directive 03.02.130, ¶ E (may grieve "alleged violations of policy and procedure or unsatisfactory conditions of confinement") (effective Nov. 1, 2000). Plaintiff wrote a Step I grievance on June 5, 2002, claiming that staff had been wrongfully opening his outgoing mail and preventing it from being delivered. (See Grievance No. LRF XX-XX-XXXXX-XXB). The grievance generally referred to "staff persons," but did not name any specific individuals in his grievance. The grievance was rejected at Step I by Defendant Minnerick because it contained extraneous information and was untimely. A rejection of a grievance may be appealed. MICH. DEP'T OF CORR., Policy Directive 03.02.130, ¶ H (effective Oct. 11, 1999 and Nov. 1, 2000); see also Little v. Bahr, 221 F.3d 1335, 2000 WL 921978, at *1 (6th Cir.2000) (holding that a rejection of a grievance is itself a response that must be appealed). Plaintiff does not allege or show that he appealed the rejection of his grievance to Step II.
A plaintiff must pursue all levels of the administrative procedure before filing an action in federal court. See Freeman, 196 F.3d at 645 ("While we recognize that plaintiff made some attempt to go through the prison's grievance procedures, we must dismiss plaintiff's complaint because he filed his federal complaint before allowing the administrative process to be completed."); Lutchey v. Wiley, 188 F.3d 508, 1999 WL 645951, at *1 (6th Cir.1999) (dismissal of claim for lack of exhaustion was appropriate where prisoners failed to complete the review process before bringing their lawsuit); Parker v. McGinnis, 181 F.3d 102, 1999 WL 283900, at *2 (6th Cir.1999) ("Furthermore, even though Larkins may not have aborted the grievance procedure regarding the ninth cause of action raised in his complaint, such grievance was not resolved prior to the filing of either his complaint or amended complaint and, consequently, is unexhausted."), cert. denied, 528 U.S. 953, 120 S.Ct. 378, 145 L.Ed.2d 295 (1999); Tucker v. McAninch, 162 F.3d 1162, 1998 WL 552940, at *2 (6th Cir.1998) (plaintiff failed to complete the administrative process when he had grieved and appealed to the warden, but had one more appeal remaining to the director of the department). Because Plaintiff failed to complete the grievance process, the Court finds that Plaintiff has failed to demonstrate exhaustion of available administrative remedies with regard to the claims arising from his mail.
Before the no contact order was entered by the Hillsdale County Circuit Court on March 21, 2002, Plaintiff wrote two grievances claiming that prison staff *741 failed to update his wife's telephone number on his list. According to Plaintiff, his wife had moved and had a new phone number. Plaintiff wrote the first grievance on January 31, 2002. (See Grievance No. LRF XX-XX-XXXXX-XXA, docket # 5.) The Step I response indicated that Plaintiff's request could not be processed until they received a letter from Plaintiff's wife. The response further indicated that the letter already submitted by Plaintiff did not appear to come from Plaintiff's wife. Plaintiff appealed to Step II on March 6, 2002. By the time Warden Berghuis responded at Step II, the no contact order had been entered. The Step II response stated that, as a result of the no contact order, Plaintiff would not be permitted to add or change telephone numbers with regard to wife and children. Plaintiff maintains that he appealed the Grievance to Step III, but never received a response. In light of Plaintiff's allegations, the Court finds that Plaintiff completed the grievance process with regard to Grievance No. LRF XX-XX-XXXXX-XXA.
On March 2, 2002, Plaintiff wrote the second grievance concerning prison staff's failure to update his wife's telephone number. (See Grievance No. LRF XX-XX-XXXXX-XXA, docket # 5.) The grievance was rejected at Step I by Defendant Minnernick because it was duplicative of LRF XX-XX-XXXXX-XXA. As set forth above, the rejection of a grievance can be appealed. See Policy Directive 03.02.130, ¶ H. Plaintiff does not allege or show that he appealed the rejection of his grievance to Step II. Accordingly, Plaintiff failed to complete the grievance process with regard to Grievance No. LRF XX-XX-XXXXX-XXA.
Plaintiff also wrote a grievance on April 15, 2002, challenging the imposition of the permanent phone restriction. (See Grievance No. LRF XX-XX-XXXX-XXXA, docket # 5.) The Step I and Step II responses indicated that the restriction was properly imposed. Plaintiff contends that he appealed to Step III, but did not receive a response. Taking Plaintiff's allegations as true, the Court accepts at this juncture that Plaintiff also completed the administrative grievance process with regard to Grievance No. LRF XX-XX-XXXX-XXXA.
While Plaintiff completed the grievance process with regard to Grievance Nos. LRF XX-XX-XXXXX-XXA (updating wife's phone number) and LRF XX-XX-XXXX-XXXA (phone restriction), Plaintiff did not mention any of the named Defendants in those grievances. In Curry, 249 F.3d 493, a group of African-American inmates at an Ohio state prison sued corrections officers and supervisors under § 1983, alleging the defendants violated their Eighth Amendment rights. Among other things, the plaintiffs claimed that Officer Scott assaulted each of them while they were connected to each other by a "rec-chain," a long length of chain used to transport prisoners. The plaintiffs further claimed that Officer Howard witnessed Scott's assault on them, but failed to intervene. The Sixth Circuit held that the plaintiffs failed to sufficiently exhaust their administrative remedies with regard to Officer Howard because his name was not referenced in any of the prisoners' grievances. Id. at 505. The Court reasoned:
The claim against Howard, however, is a separate claim, against a separate individual, premised on a separate and independent legal theory. Because Howard was not mentioned in the prisoners' grievances, [prison officials] did not know that the prisoners specifically had a grievance against him, so [prison officials] had no reason to pursue any claim or disciplinary action against Howard based on the prisoners' official complaints. As this Court stated in Freeman v. Francis, 196 F.3d at 644, "the importance of using the prison grievance process [is] to alert prison officials to *742 problems." The plaintiffs' grievances may have alerted [prison officials] to problems with Scott, but they did not reasonably alert [prison officials] to problems with Howard.
Id. The logic of Curry does not apply with equal force to this case. Plaintiff does not raise Eighth Amendment claims arising from alleged unauthorized conduct; rather, Plaintiff challenges a permanent telephone restriction that was imposed pursuant to prison policy. In addition to the hearing officer who recommended the telephone restriction, Plaintiff sues Warden Berguis and Regional Prison Administrator Jo Ann Bach, who approved the restriction. Under the circumstances of this case, it does not appear that prison officials responding to Plaintiff's grievances were hampered in their consideration of Plaintiff's claims by his failure to name specific individuals in his grievances.
Assuming Plaintiff properly exhausted his claims arising from the telephone restriction, his action is nonetheless subject to dismissal pursuant to the "total exhaustion rule." Under the total exhaustion rule, the presence of an unexhausted claim warrants dismissal not just of that claim, but of the entire action. There is currently a split in this District concerning the validity of the "total exhaustion" interpretation of 42 U.S.C. § 1997e(a). Compare Keenan v. Twommy, No. 1:97-cv-549 (W.D.Mich. July 29, 1999) (applying total exhaustion rule) with Jenkins v. Toombs, 32 F.Supp.2d 955 (W.D.Mich.1999) (rejecting total exhaustion rule). In Knuckles El, 215 F.3d at 642, the Sixth Circuit "reserve[d] to another day the question of whether `exhausted claims' in a `mixed complaint' should be addressed when such claims would otherwise meet the pleading requirement or whether such claims should be dismissed in their entirety." The Court has not published any case since Knuckles El expressing any opinion with regard to the total exhaustion rule.
In 2000, the Sixth Circuit issued five unpublished decisions, which, at first glance, appear inconsistent with the total exhaustion rule. In each of the opinions, the Court stated, "If a complaint contains exhausted and unexhausted claims, the district court may address the merits of the exhausted claims and dismiss only those that are unexhausted." See Williams v. McGinnis, 234 F.3d 1271, 2000 WL 1679471, at *2 (6th Cir.2000); Fisher v. Wickstrom, No. 00-1162, 2000 WL 1477232, at *1 (6th Cir. Sept. 25, 2000); McElhaney v. Elo, 230 F.3d 1358, 2000 WL at 1477498, at *3 (6th Cir.2000); Wash v. Rout, 215 F.3d 1328, 2000 WL 658925 (6th Cir.2000), cert. denied, 531 U.S. 947, 121 S.Ct. 347, 148 L.Ed.2d 279 (2000); Riley v. Richards, 210 F.3d 372, 2000 WL 332013, at *2 (6th Cir.2000). These cases all relied upon Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir.1999). While the Hartsfield Court dismissed the unexhausted claims and reached the merits of exhausted claims, the issue of total exhaustion was not before the Court. Likewise, total exhaustion was not at issue in any of the above cited unpublished cases. As a result, these cases have little instructive value on the issue of total exhaustion.
During the same time period that the unpublished decisions were issued in Williams, Fisher, McElhaney, Wash and Riley, the Sixth Circuit affirmed this Court's denial of Keenan's motion for relief from judgment following dismissal of his civil rights action pursuant to the total exhaustion rule. See Keenan v. Twommey, 229 F.3d 1152, 2000 WL 1175621, at *1 (6th Cir.2000). In the unpublished opinion, the Sixth Circuit did not use the term "total exhaustion," but affirmed this Court's explicit application of the total exhaustion rule, stating, "Essentially, Keenan did not carry his burden of demonstrating that he exhausted available administrative remedies regarding *743 his claim." Keenan, 229 F.3d 1152, 2000 WL 1175621 at *1 (citing Brown, 139 F.3d at 1103). Furthermore, in a recent unpublished decision, the Sixth Circuit again affirmed this Court's application of the total exhaustion rule. See Kemp v. Jones, 42 Fed.Appx. 744, 745 (6th Cir.2002). In that case, the plaintiff claimed that the defendants interfered with his legal mail, were negligent in handling his mail, and retaliated against him. The Sixth Circuit held that this Court properly dismissed the plaintiff's action pursuant to § 1997e(a) because, while the plaintiff exhausted his other claims, he did not exhaust his administrative remedies with regard to his retaliation claim. Id. (citing Mack v. DeWitt, 40 Fed.Appx. 36, 38) (6th Cir.2002) ("When a prisoner fails to exhaust his administrative remedies before filing a civil rights complaint in federal court, or only partially exhausts administrative remedies, dismissal of the complaint is appropriate.") Accordingly, there is some indication that the Sixth Circuit may adopt the total exhaustion rule.
The Eighth Circuit, the only federal circuit court deciding the issue, applied the total exhaustion rule in a published opinion. See Graves v. Norris, 218 F.3d 884, 886 (8th Cir.2000). The federal district courts remain split on the issue. Compare Rivera v. Whitman, 161 F.Supp.2d 337, 343 (D.N.J.2001) (holding that plain language and policy interests required "total exhaustion" rule), abrogated on other grounds by Ray v. Kertes, 285 F.3d 287, 293 n. 6 (3d Cir.2002), Thorp v. Kepoo, 100 F.Supp.2d 1258 (D.Haw.2000) (same), Taylor v. Clarke, No. C 99-4190, 2002 WL 535421, at *2 (N.D.Cal. Apr. 3, 2002), Julian-Bey v. Crowley, No. 2:99-cv-107, 2000 U.S.Dist. LEXIS 14071 (W.D.Mich. Sept. 21, 2000), Keenan, No. 1:97-cv-549, 1999 U.S.Dist. LEXIS 11829 (W.D.Mich. July 29, 1999) (mem. opinion and order denying FED.R.CIV.P. 60(b) motion) (same), aff'd, 229 F.3d 1152, 2000 WL 1175621 (6th Cir. 2000), Keenan, No. 1:97-cv-549 (W.D.Mich. Sept. 4, 1998) (opinion and order dismissing case) (same), Abenth v. Palmer, No. C 96-3938 MHP, 1997 WL 255332 (N.D.Cal. Apr. 28, 1997) (same), Estrada v. Gomez, No. C 97-297 SI PR, 1997 WL 220313 (N.D.Cal. Apr. 22, 1997) (same), and Eakins v. Stainer, No. C 97-694 SI (pr), 1997 WL 122866 (N.D.Cal. Mar. 5, 1997) (same) with Johnson v. True, 125 F.Supp.2d 186 (W.D.Va.2000) (holding that "total exhaustion" rule contradicts congressional intent), Cooper v. Garcia, 55 F.Supp.2d 1090 (S.D.Cal.1999) (same), and Jenkins v. Toombs, 32 F.Supp.2d 955 (W.D.Mich.1999) (same).
The total exhaustion rule is supported both by the plain meaning of 42 U.S.C. § 1997e(a) and strong policy interests. The first rule of statutory interpretation is that "[t]here is ... no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." United States v. American Trucking Ass'ns, Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). Departure from the language of the legislature and resort to judicially created rules of statutory construction is appropriate only in the "rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters ... or when the statutory language is ambiguous." Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 842 (6th Cir.1994) (citation and internal quotations omitted). The plain meaning of the statute controls the court's interpretation in all other instances. Kelley, 17 F.3d at 842. Statutory words are uniformly presumed, unless the contrary appears, to be used in their ordinary and usual sense, and with the meaning commonly attributed to them. Caminetti v. *744 United States, 242 U.S. 470, 485-86, 37 S.Ct. 192, 61 L.Ed. 442 (1917).
Section 1997e(a) provides, "No action shall be brought with respect to prison conditions under section 1983 of this title ... until such administrative remedies as are available are exhausted." 28 U.S.C. § 1997e(a) (emphasis added). By using the word "action" instead of "claim," Congress indicated that a prisoner is required to exhaust all claims before his action may proceed. See Rivera, 161 F.Supp.2d at 340; Keenan, 1999 U.S.Dist. Lexis 11829, at *13-14. "Had Congress intended to permit the piecemeal adjudication of claims relating to prison conditions, the statute would have precluded the bringing of unexhausted claims rather than actions." Thorp, 100 F.Supp.2d at 1263 (emphasis in original). The use of the words "action" and "claim" in other provisions of § 1997e are further evidence of Congress' awareness of the difference between the two terms. Section 1997e(c)(1) provides that the district court shall dismiss any "action" which is frivolous, malicious, or fails to state a claim. However, § 1997e(c)(2) provides that the district court may dismiss a "claim" which is frivolous, malicious or fails to state a claim without first requiring exhaustion of administrative remedies. Congress realized that requiring dismissal without prejudice under § 1997(a) might prevent a court from dismissing with prejudice for frivolousness or failure to state a claim. Section § 1997e(c)(2) serves to reconcile § 1997(a) and § 1997(e)(1) "by allowing a court to dismiss an unexhausted claim as frivolous, thus preventing an unexhausted claim from `holding up' the dismissal of a frivolous action comprising otherwise exhausted claims." Rivera, 161 F.Supp.2d at 341; see also Thorp, 100 F.Supp.2d at 1263 n. 3.[1]
The general intent of the PLRA and other strong policy arguments also support a total exhaustion rule. As noted by the Eleventh Circuit, Congress amended section 1997e(a) largely in response to concerns about the heavy volume of frivolous prison litigation in the federal courts. Alexander v. Hawk, 159 F.3d 1321, 1326 n. 11 (11th Cir.1998) (citing 141 Cong.Rec. H14078-02, *H14105 (daily ed. Dec. 6, 1995)). "Congress desired `to wrest control of our prisons from the lawyers and the inmates and return that control to competent administrators appointed to look out for society's interests as well as the legitimate needs of prisoners.'" Id. (quoting 141 Cong.Rec. S14408-01, *S14418 (daily ed. Sept. 27, 1995)).
The total exhaustion rule advances the goals of the PLRA by discouraging frivolous prisoner litigation and conserving judicial resources.
As the Third Circuit stated in [Nyhuis v. Reno, 204 F.3d 65 (3d Cir.2000)], "Inmate-plaintiffs often file claims which are untidy, repetitious, and redolent of legal language. The very nature of such complaints necessitates that courts expend *745 significant and scarce judicial resources to review and refine the nature of the legal claims presented." 204 F.3d at 74. "The administrative process can serve to create a record for subsequent proceedings, it can be used to help focus and clarify poorly pled or confusing claims, and it forces the prison to justify or explain its internal procedures." Id. at 76 (citing Wyatt v. Leonard, 193 F.3d 876, 878-79 (6th Cir.1999)). Thus, by requiring that all claims be exhausted before the federal court considers them, § 1997e(a) ensures that prisoner actions are more focused and that some frivolous claims are screened out. Additionally, the provision frees the federal court from the potentially difficult and time-consuming process of determining precisely which of the often-entangled claims have been exhausted and which have not. Keenan, 1999 U.S.Dist. LEXIS 11829, at *8.
Rivera, 161 F.Supp.2d at 342. The total exhaustion rule also discourages prisoners from bringing unexhausted or frivolous claims. Id. (citing Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir.1998) ("[D]ismissal may serve as a deterrent to premature filing by [prisoners], thus serving the Congressional purpose of providing relief from frivolous prisoner litigation."), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999)). If only the unexhausted claims were dismissed from a mixed complaint, there would be nothing to deter prisoners from raising unexhausted claims indiscriminately. Moreover, the assessment of a second filing fee after the prisoner has properly exhausted all of his claims also serves as a deterrent against filing unexhausted or frivolous claims. Rivera, 161 F.Supp.2d at 342 (citing Keenan, 1999 U.S.Dist. LEXIS 11829, at *9).
In addition, application of a total exhaustion rule in the civil rights context promotes comity in much the same way as in the habeas corpus context, where the total exhaustion rule is clearly established. See Rivera, 161 F.Supp.2d at 342-43; Keenan, 1999 U.S.Dist. LEXIS 11829, at *11-13. Regarding the amendments by the PLRA to § 1997e(a), the Sixth Circuit stated in Brown v. Toombs, 139 F.3d at 1103:
The new statute has extensive benefits. It recognizes that it is difficult to explain why we require full exhaustion in habeas corpus cases involving life and liberty, but allow direct access in prison rights cases under § 1983. As Justice Stewart stated in Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973):
Since these internal problems of state prisons involve issues so peculiarly within state authority and expertise, the states have an important interest in not being bypassed in the correction of these problems. Moreover, because most potential litigation involving state prisoners arises on a day to day basis, it is most efficient and properly handled by the state administrative bodies and the state courts, which are for the most part, familiar with the grievances of state prisoners and in a better physical and practical position to deal with these grievances.
Therefore, under the principles of comity, prison officials should have a full opportunity to address claims raised by prisoners before they are brought to federal court. By requiring total exhaustion, the federal courts will not only promote comity, but reap the benefits of "more focused complaints and more developed evidentiary records." Rivera, 161 F.Supp.2d at 343.
Because Plaintiff's complaint contains exhausted claims and unexhausted claims, the Court finds that he failed to exhaust his administrative remedies as required by § 1997e(a). Dismissal of this action without prejudice is appropriate when a prisoner has failed to show that he *746 exhausted available administrative remedies. See Freeman, 196 F.3d at 645; Brown, 139 F.3d at 1104; White v. McGinnis, 131 F.3d 593, 595 (6th Cir.1997). Dismissal for failing to exhaust available administrative remedies does not relieve a plaintiff from payment of the civil action filing fee. Omar v. Lesza, No. 97 C 5817, 1997 WL 534361, at *1 (N.D.lll. Aug. 26, 1997). Accordingly, the Court will dismiss Plaintiff's action without prejudice.

III. Motions

Plaintiff filed an ex parte motion for temporary restraining order (docket # 3) and a motion to serve the complaint (docket # 4) contemporaneously with the filing of his complaint. Because Plaintiff's action will be dismissed without prejudice for failure to exhaust his administrative remedies, his motions will be denied as moot.

Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the Court will dismiss Plaintiff's action without prejudice because he has failed to show exhaustion as required by 42 U.S.C. § 1997e(a). In addition, Plaintiff's motion for temporary restraining order (docket # 3) and motion to serve the complaint (docket # 4) will be denied as moot.
The Court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir.1997). Because the total exhaustion rule presents a novel legal issue in this Circuit, the Court finds that an appeal would be taken in good faith. Should Plaintiff appeal this decision, the Court will assess the $105 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of § 1915(g). If he is barred, he will be required to pay the $105 appellate filing fee in one lump sum.
A Judgment consistent with this Opinion will be entered.

ORDER OF DISMISSAL
In accordance with the Opinion filed this date:
IT IS HEREBY ORDERED that Plaintiff's action be DISMISSED without prejudice for lack of exhaustion of available administrative remedies as required by 42 U.S.C. § 1997e(a).
IT IS FURTHER ORDERED that Plaintiff's motion for temporary restraining order (docket # 3) and motion to serve the complaint (docket # 4) will be DENIED as moot.
Because the total exhaustion rule presents a novel legal issue in this Circuit, the Court finds that an appeal would be taken in good faith. See 28 U.S.C. § 1915(a)(3); McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir.1997).
NOTES
[1]  In another provision of the PLRA, Congress defined the term "action with regard to prison conditions" as "any civil proceeding ... with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison...." 18 U.S.C. § 3626(g)(2); see Booth v. Churner, 206 F.3d 289, 295 (3d Cir.2000) (holding that, because § 1997e(a) and § 3626(g)(2) are substantially related, "it follows from the canon of interpretation invoked in [Sullivan v. Stroop, 496 U.S. 478, 484, 110 S.Ct. 2499, 110 L.Ed.2d 438 (1990)] that the identical terms used in the two sections should be read as conveying the same meaning."), aff'd, 531 U.S. 956, 121 S.Ct. 377, 148 L.Ed.2d 291 (2001). Giving the words their plain meaning, a clear distinction can be drawn among the terms "action" or "civil proceeding" and "claim." See Rivera, 161 F.Supp.2d at 341.


ROBERT A. FORD,[1] Petitioner Below-Appellant,
v.
DIVISION OF CHILD SUPPORT ENFORCEMENT (DCSE) and LINDA N. PARKER, Respondents Below-Appellees.
No. 396, 2009.
Supreme Court of Delaware.
Submitted: November 5, 2009.
Decided: December 8, 2009.
Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices.

ORDER
HENRY duPONT RIDGELY, Justice.
This 8th day of December 2009, upon consideration of the appellant's opening brief and the motion to affirm filed pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The petitioner-appellant, Robert A. Ford ("Father"), filed an appeal from the Family Court's June 8, 2009 order accepting in its entirety the Family Court Commissioner's order dated January 22, 2009, which increased Father's child support obligation on behalf of the minor child of Father and the respondent-appellee, Linda N. Parker ("Mother").[2] The Division of Child Support Enforcement ("DCSE") has moved to affirm the Family Court's order on the ground that it is manifest on the face of the opening brief that the appeal is without merit.[3] We agree and affirm.
(2) The record reflects that, on January 22, 2009, Father and Mother appeared before the Family Court Commissioner for a hearing on the petition of DCSE for modification of Father's child support obligation with respect to the parties' minor child, Thomas, born 12/09/93. Father and Mother both testified at the hearing. Neither was represented by counsel. Counsel appeared on behalf of DCSE. The last Family Court order regarding Father's child support obligation, issued on October 15, 2001, had been issued more than two and a half years previously and, therefore, was ripe for judicial review.[4] Counsel for DCSE requested that any modification order be made effective as of December 1, 2008, the date of the parties' previous mediation in the Family Court.
(3) Father, who lives in Atlantic City, New Jersey, is forty-five years old with a master's degree in school administration. He has two children in addition to Thomasa grown son and an infant son. Father testified that he is not currently employed because, in December 2008, he resigned from his position as an assistant principal at a charter school in New Jersey. He did not have any documentation concerning his resignation or any pay stubs with him in the courtroom, but confirmed that, at the time of his resignation, he was earning approximately $60,000 a year. Father further testified that, between February and May 2008, he worked as an assistant principal at a New Jersey middle school from which he also resigned. Although, again, he did not have the relevant pay stubs with him at the hearing, Father testified that his rate of pay at the middle school was approximately the same as it was at the charter school. Finally, Father testified that, during 2008, he also worked as an adjunct professor at a community college in New Jersey. Although Father had no information on his rate of pay, the Commissioner admitted into evidence copies of records from the New Jersey Department of Labor reflecting that Father earned at least $8,000 as an adjunct professor during 2008. Father testified that he has not been asked to return to that job.
(4) Mother, who lives in Felton, Delaware, testified that she has two children in addition to Thomas, ages eight and twelve, both of whom live with her. As reflected in her pay stubs, Mother is employed part-time and is paid $10.20 an hour. Father argued that, because he is not currently employed, his child support obligation should not be increased until he is again able to find work. Father testified that, although he is currently taking graduate classes in his field, he also has been aggressively seeking employment. Under questioning by the Commissioner, Father agreed that he incorrectly told the mediator he was earning $40,000 as a school administrator and that he actually was earning approximately $60,000 at the time of the mediation. Based upon the testimony and documentation submitted at the hearing, the Commissioner ordered Father to pay $749.00 per month in current child support and $26.00 per month in retroactive support, effective as of December 1, 2008, the date of the parties' mediation.
(5) In this appeal, Father claims that the Commissioner abused his discretion by modifying his child support obligation. Father contends that the Commissioner improperly refused to consider evidence from Father's former employers concerning his income and failed to consider a federal tax credit received by Mother in calculating his support obligation. Although Father does not explicitly so state, he, in essence, claims that the Family Court erred and/or abused its discretion when it accepted the Commissioner's order requiring him to pay an increased amount of child support.[5]
(6) A party may seek review of a Family Court Commissioner's order by filing and serving written objections to such order within 30 days of the date of the order.[6] A Family Court judge will undertake a de novo review of those portions of the order to which the party has made objection and will decide whether to accept, reject, or modify in whole or in part the Commissioner's order.[7] This Court's review of appeals from the Family Court extends to a review of the facts and the law as well as to the inferences and deductions made by the judge.[8] This Court will not disturb findings of fact unless they are clearly wrong and justice requires that they be overturned.[9] If the Family Court has correctly applied the law, the standard of review is abuse of discretion.[10] Errors of law are reviewed de novo.[11]
(7) We have reviewed the record in this case carefully and find no error or abuse of discretion on the part of the Family Court in accepting the Commissioner's order modifying Father's child support obligation. Moreover, the evidence presented at the hearing supports the Commissioner's finding that Father's present unemployment is the result of voluntary action on his part. As such, his 2008 income was correctly imputed to him in the calculation.[12] Finally, the record reflects that Father either was, or should have been, aware that he was required to bring to the hearing the relevant documentation regarding his income. Father may not now complain that the Commissioner failed to take that documentation into consideration when calculating his child support obligation.
(8) It is manifest on the face of the opening brief that this appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent that judicial discretion is implicated, there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that the DCSE's motion to affirm is GRANTED. The judgment of the Family Court is AFFIRMED.
NOTES
[1]  The Court sua sponte assigned pseudonyms to the parties by Order dated July 10, 2009. Supr. Ct. R. 7(d).
[2]  The record before us in this appeal reflects that Father also has filed at least one petition for modification of his support obligation in the Family Court since the issuance of the Family Court's June 8, 2009 order.
[3]  Supr. Ct. R. 25(a).
[4]  Fam. Ct. Civ. Proc. R. 508.
[5]  To the extent that Father asserts claims that were not raised in the Family Court in the first instance, we decline to address those claims for the first time in this appeal. Supr. Ct. R. 8. To the extent that Father fails to assert claims that were previously raised in the Family Court, those claims are deemed to be waived and will not be addressed in this appeal. Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).
[6]  Del. Code Ann. tit. 10, §915(d)(1); Fam. Ct. Civ. Proc. R. 53.1.
[7]  Id.
[8]  Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
[9]  Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983).
[10]  Jones v. Lang, 591 A.2d 185, 186 (Del. 1991).
[11]  In re Heller, 669 A.2d 25, 29 (Del. 1995).
[12]  Fisher v. Marshall, Del. Supr., No. 272, 1997, Walsh, J. (Apr. 22, 1998).


                   THE THIRTEENTH COURT OF APPEALS

                                   13-13-00388-CR

                              JOSEPH DWAIN MASON
                                       v.
                               THE STATE OF TEXAS

                                  On Appeal from the
          Criminal District Court 2 of Dallas County of Dallas County, Texas
                             Trial Cause No. F12-58754-I

                                     JUDGMENT

      THE THIRTEENTH COURT OF APPEALS, having considered this cause on

appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court

orders the judgment of the trial court AFFIRMED.

      We further order this decision certified below for observance.

December 5, 2013


                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1605
                            Filed December 19, 2018

MICHAEL SCOTT WEISS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Pottawattamie County, James S.

Heckerman, Judge.

      Michael Weiss appeals the denial of his application for postconviction relief.

AFFIRMED.

      Katherine Kaminsky Murphy of Kate Murphy Law, PLC, Glenwood, for

appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee State.

      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
                                          2

DANILSON, Chief Judge.

       Michael Weiss appeals the denial of his application for postconviction relief

(PCR),    asserting   his   plea   counsel    provided   constitutionally   defective

representation. Weiss failed to prove counsel breached an essential duty and

prejudice resulted. Therefore, we affirm the denial of his PCR application.

       Weiss was charged with three counts of sexual abuse in the second degree

after A.A., age eight or nine years old, told her older brother that Weiss had made

her “milk” his “dick” more than once and that he had tried to get her to kiss it. She

wanted Weiss to stop. Her brother did not immediately tell anyone because A.A.

did not want to get in trouble. However, after some time, her brother informed their

parents. The parents contacted law enforcement. On August 2, 2015, a police

report includes the following:

              On August 2, 2015, I Deputy Ryan Olderog 78-56, was
       working patrol for the Pottawattamie County Sheriff’s Office. At 1518
       hours I went en route to XXX for a sexual assault call. The narrative
       from this call read:
              “CALLER ADV HER 9 YOA DAUGHTER IS TELLING HER
       THAT A MONTH AGO A EMPLOYEE THAT WORKS FOR THE
       FARMER THAT FARMS THE LAND AROUND THEM HAD THE
       DAUGHTER SIT ON HIS LAP AND STATED—SEE WHAT YOU DO
       TO ME—THAN HE STOOD UP WITH [H]IS PANTS UNZIPPED
       WITH HIS PENIS HANGING OUT SAYING TO HER DAUGHTER—
       COME ON YOU NEED TO MILK IT—SUSP NOT ON LOC.”

A.A. was interviewed at Project Harmony by a sexual-abuse investigator, which

was recorded. Weiss’s trial counsel, Jennifer Solberg, was provided the State’s

file. Solberg took A.A.’s pre-trial deposition.

       In a letter, Solberg recommended Weiss accept the State’s final plea offer.

Solberg informed Weiss she believed a jury would find A.A. credible and Weiss

would likely be convicted. She wrote:
                                            3

       Each count is a [twenty-five] year prison sentence with a mandatory
       [seventeen and one half] to serve before you are eligible for parole.
       A judge may or may not run the sentences consecutive to each other.
       Due to the risk of loss at trial my recommendation is to accept the
       plea offer.

       On November 12, 2015, a record was made of the plea offer:

               [PROSECUTOR]: Defendant is currently charged with three
       class B felonies, sex abuse in the second degree. The State will
       amend one count to sex abuse in the third degree, a forcible class C
       felony, and the second count will be amended to lascivious acts with
       a child, soliciting a child to do a sex act, a class D felony. C is a [ten].
       D is a [five]. We’d ask they be stacked, and that he go to prison for
       a maximum of [fifteen] years.
               THE COURT: So instead of [seventy-five] with mandatory
       minimums, he’d be looking at [fifteen] with no—it would not be
       mandatory, just consecutive sentences.
               [PROSECUTOR]: Yes.
               THE COURT: With no mandatory minimums.
               [PROSECUTOR]: No mandatory minimums.

       Weiss acknowledged he understood the plea offer. The prosecutor then

offered to estimate earned-time credit. The court stated:

              Well, it is a sex abuse case. Not only that, it is up to how well
       he does in sexual offender treatment. There’s a lot of variables
       involved in that.
              I think the big issue for him is he goes from [seventy-five] with
       mandatory minimums to [fifteen] with no mandatory minimums.
       That’s huge. Huge. All right. Think about that.

       On November 13, 2015, Weiss entered an Alford plea1 to one count of

sexual abuse in the third degree and one count of lascivious acts with a child. He

elected to proceed to sentencing three days later. Weiss did not file a motion in

arrest of judgment. He did not appeal.

1
  An Alford plea is a variation of a guilty plea; a defendant, while maintaining innocence,
acknowledges that the State has enough evidence to win a conviction, and consents to
the imposition of a sentence. See North Carolina v. Alford, 400 U.S. 25, 37 (1970).
                                           4

       On September 19, 2016, Weiss filed a PCR application alleging “[t]here

exists material facts, not previously presented or heard that required vacation of

the conviction or sentence in the interest of justice.”

       Counsel was appointed and depositions of plea counsel and Weiss’s

girlfriend, Carol Gusman, were taken. At the PCR trial, although his application

did not allege any specific claims, Weiss complained of various aspects of plea

counsel’s performance.

       Weiss testified Solberg had not provided to him the minutes of testimony or

the underlying police report. He stated, “According to the dates on that police

report, that I wasn’t even working at—for the farmer no more; and according to

what [A.A.’s father] has said, I wasn’t even there at the—at the farm.” Weiss

testified his last day working at the farm where A.A. lived was July 6, 2015.2 He

asserted he would not have pled guilty if he had seen the police report. Weiss also

testified he told Solberg to give A.A.’s deposition to Gusman to read. But he stated

Solberg should have informed him Gusman “shouldn’t read [A.A.’s deposition] in

case we went to trial.” Weiss also testified Solberg misled him by stating he would

not be in prison more than two years. He stated Solberg had not informed him he

would be required to participate in the sex-offender-treatment class.

       Gusman stated that she would have testified at Weiss’s trial that A.A.’s

father had a motive to lie and A.A. and her brother liked visiting Gusman and

Weiss. Gusman also testified she found out that because she had read A.A.’s

2
 At deposition, A.A. testified she did not remember specific dates but the incidents all
occurred when she was in second grade (she was in third grade at the time of the
deposition) and before the Fourth of July parade, “[a] lot before the Fourth of July.”
Moreover, the police report notes that on August 2, 2015, a report was received by the
Pottawattamie County Sheriff’s office that a man’s daughter had been abused by a farm
hand “a month ago,” a few days before Weiss left the farm.
                                           5

deposition, which was given to her by Solberg, she would be disqualified from

testifying at Weiss’s trial.

          Solberg’s deposition was admitted, and she testified she would have

provided Weiss with all the materials available to her, that Weiss viewed A.A.’s

recorded interview at Project Harmony, and was present when A.A. was deposed.

She also testified she recommended Weiss accept the State’s offer because the

risk of conviction was great. She informed Weiss he would be immediately eligible

for parole and may have stated Weiss might get a parole hearing within two years,

but she would not have told him he would be out of prison in two years.

          The district court rejected Weiss’s ineffectiveness claims and denied his

application. Weiss appeals, claiming counsel was ineffective in (1) failing to

provide him with the police report relating to the sex abuse allegations, (2)

permitting an essential defense witness to spoil her testimony,3 (3) failing to

discuss the option of waiving his right to speedy trial, (4) permitting him to enter

his plea even though he did not understand the proceedings, (5) failing to disclose

the actual time he should expect to serve, and (6) failing to “get his side of the

story.”

          Because an ineffectiveness claim has as its basis the Sixth Amendment,

our review is de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).

          To establish an ineffective-assistance-of-counsel claim, an applicant must

show both that (1) counsel failed to perform an essential duty, and (2) this failure

3
 We would not agree the witness was “spoiled” or disqualified, but her credibility may
have been somewhat undermined by reading the pretrial depositions of other witnesses.
The depositions were provided to the witness by defense counsel at the request of Weiss.
He asserts, “Although Michael had asked his attorney to provide the depositions to Ms.
Gusman, it was his attorney’s job to save Michael from himself.”
                                           6

resulted in prejudice. Id. at 495. We may affirm the district court’s PCR denial if

either prong is unsatisfied. Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008).

      In a guilty-plea case, the prejudice element “focuses on whether counsel’s

constitutionally ineffective performance affected the outcome of the plea process.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985). To satisfy the prejudice requirement,

Weiss must show a reasonable probability exists that, but for counsel’s faulty

advice, he would not have pled guilty and would have insisted on going to trial.

See State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006).

      On our de novo review, we agree with and adopt the district court’s findings

and conclusions:

              The record of the applicant’s plea at Exhibit 1 shows that the
      court reviewed the plea offer, informed the applicant of the nature of
      his charges, as amended, the maximum and minimum punishments,
      his right to a jury trial, right to counsel, right against self-incrimination
      and right to confront and call witnesses in compliance with Iowa [Rule
      of Criminal Procedure] 2.8(2)(b). The court confirmed with the
      applicant that the minutes of testimony, along with the pre-trial
      depositions including the victim’s deposition, established a factual
      basis for the applicant’s plea. It’s clear from this record that the
      applicant understood the charges and evidence against him and
      entered an Alford plea for the benefit of the bargain to avoid the
      consequences of a greater conviction at trial, which he admitted at
      his postconviction trial.
              The applicant’s claims that he would not have accepted his
      plea and would have insisted on going to trial if he had he been
      provided a copy of the initial incident report is simply not credible and
      contradicted by the record.

      We have considered all of Weiss’s contentions and conclude Weiss has

failed to prove he would have insisted on going to trial in any event. Having failed

to establish the necessary prejudice, we affirm the denial of his PCR application.

      AFFIRMED.


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                              OCT 7, 2010
                            No. 08-14498                      JOHN LEY
                        Non-Argument Calendar                   CLERK
                      ________________________

               D. C. Docket No. 08-00035-CR-7-CLS-PWG

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

WILLIE TERRELL WILLS,
a.k.a. Head,

                                                        Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                     _________________________

                            (October 7, 2010)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
      Willie Terrell Wills appeals his 120-month total sentence for two counts of

distribution of cocaine base, and one count of possession of a firearm by a

convicted felon. Wills argues on appeal that the district court relied on

impermissible factors in determining his sentences. Specifically, Wills challenges

the district court’s consideration of the facts that he was never married but fathered

three children, and contested the paternity of two of his children when the mother

sought child support as evidence of Wills’s character. Wills raised no objection

regarding this matter in the district court.

      We have not previously addressed whether a district court’s consideration of

out-of-wedlock children, or paternity challenges by a defendant, are impermissible

sentencing factors under 18 U.S.C. §§ 3661 and 3553(a). Assuming that Wills’s

claim of error is correct, however, he has not demonstrated plain error here because

the district court also relied on Wills’s extensive criminal history. The court stated

that Wills’s extensive criminal history reflected “a blatant disregard for the law

over a relatively short period of years,” noting a series of Wills’s drug arrests, most

of which were committed while Wills was out on bond awaiting adjudication for a

prior charged offense. The district court also noted that Wills was on probation for

five separate convictions at the time he committed the offense of conviction for

which he was being sentenced. Finally, the district court considered that, with

                                               2
respect to the offense of conviction, Wills led police on a high-speed chase in a

residential area where pedestrians were present, and, in fact, caused a head-on

collision between his vehicle and one driven by an innocent third party.

      The court stated that the above uncontested facts were sentencing factors he

could take into account under § 3553(a) because they were historical facts that

revealed a great deal about Wills’s attitude towards the law, personal

accountability, and responsibility for his actions, as well as the seriousness of this

offense and that the sentence took into account deterrence to criminal conduct by

Wills and protecting the public from further crimes by Wills. Wills has not

demonstrated any reasonable chance that he would have been sentenced differently

had the district court not considered the allegedly impermissible paternity issues.

      AFFIRMED.

                                           3


2 F.3d 1158
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Juan MARTINEZ-GUZMAN, Defendant-Appellant.
No. 92-30181.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 6, 1993.Decided Aug. 13, 1993.

1
Before PREGERSON and KLEINFELD, Circuit Judges, and INGRAM*, District Judge.

2
MEMORANDUM**

OVERVIEW

3
In December 1991, a federal grand jury returned a superceding indictment that charged Martinez-Guzman with having committed certain crimes.  Count 1 charged Martinez-Guzman with conspiracy (a) to distribute cocaine, (b) to possess with intent to distribute cocaine, (c) to employ a juvenile to distribute cocaine, and (d) to maintain a place to distribute cocaine.  Counts 7 through 9 charged Martinez-Guzman with three substantive counts of distribution of cocaine.  In February 1992, a jury convicted Martinez-Guzman of the conspiracy count and two of the substantive distribution counts, but acquitted him of the substantive distribution charge in Count 9.  In April 1992, the district court sentenced Martinez-Guzman to 121 months' imprisonment.  Martinez-Guzman timely appeals.  Martinez-Guzman contends that the district court erred by (1) calculating his sentence based upon the quantity of cocaine involved in Count 9, the distribution count for which he was acquitted, (2) calculating his sentence based upon conduct not sufficiently related to the conspiracy, (3) calculating his sentence based upon drugs seized in a search of someone else's car, and (4) denying his motion for a judgment of acquittal.  We have jurisdiction under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742.  We reverse and remand in part, and affirm in part.

I. Analysis

4
A. Inclusion of Cocaine from Count 9, on which Martinez-Guzman was Acquitted

5
We first consider whether the district court erred by including in its guideline calculation the quantity of cocaine involved in Count 9, on which Martinez-Guzman was acquitted.  This question is an issue of law, which we review de novo.  United States v. Blaize, 959 F.2d 850, 851 (9th Cir.), cert. denied, 112 S.Ct. 2954 (1992).

6
Martinez-Guzman argues that, under our decision in United States v. Brady, 928 F.2d 844 (9th Cir.1991), the district court erred by improperly including the cocaine quantity involved in Count 9 in the sentencing calculation.  The government asserts that the jury did not make findings of fact inconsistent with the district court's sentencing calculation;  therefore, Brady is inapplicable.

7
In Brady, the defendant was charged with first-degree murder, but was convicted of the lesser-included offenses of voluntary manslaughter and assault with a dangerous weapon.  Brady, 928 F.2d at 845-46.  At sentencing, the district court departed upward from the guidelines on the basis of the defendant's "state of mind," finding that he intended to kill the victims.  Id.  We held that this departure was improper, because the jury, by convicting on the lesser-included counts, had necessarily found that the defendant lacked the intent to kill.  Brady, 928 F.2d at 846.

8
In this case, the district court instructed the jury that if the defendant was a member of the conspiracy, then "the defendant is responsible for what other conspirators said or did to carry out the conspiracy."   Jury Instruction 10.  The jury returned a verdict of not guilty on Count 9.  Despite the acquittal on that count, the government contends that the district court could nonetheless consider the cocaine involved in Count 9, because the jury either misunderstood or ignored the conspiracy instruction.  The government supports this contention by pointing to a question that the jury posed to Judge Marsh, along with the judge's response.  During deliberations, the jury sent a note to the judge asking, "[o]n counts 7 through 9 does Guzman himself have to have committed the crimes personally or does Guzman as part of the conspiracy become guilty of anything any member of the group does?"   In response, Judge Marsh referred the jury to instructions 11 and 12, the distribution and aiding and abetting instructions.  He did not refer the jury to instruction 10, the conspiracy instruction, because the government had not requested a Pinkerton1 instruction.

9
The government contends that this exchange shows that the jury's decision to acquit Martinez-Guzman on Count 9 was not premised upon a finding that the incident either did not occur or was outside the reasonable foreseeability of the conspiracy.  According to the government, because the jury did not decide these factual issues, the district court is free to consider them in sentencing, consistent with our decision in Brady.

10
In effect, the government is alleging that the jury committed error in acquitting Martinez-Guzman on Count 9.  Ordinarily, a jury acquittal on Count 9 would preclude consideration of the cocaine involved in Count 9.  Brady, 928 F.2d at 852.  The government, however, would have us ignore Brady because the jury's acquittal of Martinez-Guzman on Count 9 was "confused."   We are, of course, precluded from reviewing an acquittal, no matter how egregiously erroneous.  United States v. Ball, 16 S.Ct. 1192, 1195 (1896) ("verdict of acquittal ... [can]not be reviewed, on error or otherwise, without ... violating the Constitution").  A rule of such great importance should not be undermined by allowing de facto review of a jury acquittal whenever the district court chooses to sentence a defendant for a crime of which the defendant has been acquitted.

11
Our decision in Brady was motivated, in part, by a concern that "any time a judge disagreed with the jury's verdict, the judge could 'reconsider' critical elements of the offense to avoid the restrictions of the Guidelines and push the sentence to the maximum--in effect punishing the defendant for an offense for which he or she had been acquitted."  Brady, 928 F.2d at 851-52.  To allow the judge at sentencing to ignore the jury's verdict whenever he or she believes that the jury misunderstood the charges would be to invite the same danger.  The judge, in effect, could overrule the jury by subverting its verdicts at sentencing.

12
In Brady, the jury's acquittal of the defendant on charges of first-degree murder necessarily implied a rejection of the mens rea that the judge at sentencing assumed existed at the time the offense was committed.  Similarly, the jury's acquittal on Count 9 in the present case necessarily implies a rejection of the facts the district court considered in the sentencing of Martinez-Guzman.  We hold that, under Brady, the district court erred by including the quantity of cocaine involved in Count 9 in its guideline calculation.

13
B. Inclusion of Cocaine from February 25 Transaction

14
Martinez-Guzman argues that the district court erred by including the quantity of cocaine seized on February 25, 1991 in calculating his sentence.  Whether conduct in furtherance of a conspiracy is attributable to a defendant is a factual finding that we review for clear error.  United States v. Torres-Rodriguez, 930 F.2d 1375, 1389 (9th Cir.1991).

15
This argument is without merit because the district court did not include the 1451.5 grams of cocaine seized on February 25 in its calculation.  During sentencing, the court stated that "[a]s to the 2/25 occurrence, I am not satisfied that that does meet the standards of United States v. Hahn of regularity, similarity, and temporal proximity."   In its written findings of fact, the court stated that "the total controlled substance from the 5/30/91, 7/22/91, 9/4/91, 10/4/91, 10/8/91, and 10/11/91 transactions is 3931.9 grams."   The amounts of cocaine attributed to the six transactions listed by the court total exactly 3931.9 grams.  Thus, it is clear that the district court did not include the February 25 cocaine in its sentencing calculation.

16
C. Inclusion of Cocaine from October 8 Transaction

17
Martinez-Guzman argues that the district court erred by including in its sentencing calculation the quantity of cocaine found in a car driven by Cipriano Flores-Pelayo on October 8, 1991.  This is a factual question, which we review for clear error.  Torres-Rodriguez, 930 F.2d at 1389.

18
Portland police officers arrested Flores-Pelayo on October 7, 1991, after a traffic stop.  Police found one kilogram of cocaine in his car.  At trial, Flores-Pelayo testified that he received the cocaine from defendant, whom he knew as "Manuel Martinez."   The district court, on the basis of Flores-Pelayo's testimony, included the one kilogram of cocaine in its sentencing calculation.  At the sentencing hearing the court found that:

19
In relation to the 1000, the kilograms that Pelayo testified he purchased from Mr. Guzman.  I was satisfied with his credibility.  I was satisfied that the very close similarity of the names and the statement of the police officer and the true name of Mr. Guzman could well have been either a misunderstanding at the time between the officer and Mr. Pelayo, who spoke different languages, or was, in fact, a misinterpretation of what was said.  I was satisfied with Mr. Flores-Pelayo's testimony.  I believe the jury found him credible in his work as an informant.  And I found him credible.

20
Martinez-Guzman argues in his brief that the district court erred in finding Flores-Pelayo credible, because he "contradicted the information that he initially gave the police and ... had a strong incentive to lie because he was receiving an extremely favorable plea bargain in return for his testimony in court."   As the above-quoted comments indicate, the district court addressed both of these issues, and found Flores-Pelayo credible.  In reviewing a sentence under the guidelines, we must give "due regard to the opportunity of the district court to judge the credibility of the witnesses."  United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989) (citing 18 U.S.C. Sec. 3742(e)).  There is nothing to indicate that the district court's finding of credibility was clearly erroneous.

D. Motion for Judgment of Acquittal

21
Martinez-Guzman argues that the district court erred by denying his motion for acquittal as to the portion of the indictment addressing events occurring before May 30, 1991.  Because Martinez-Guzman failed to renew his motion at the close of evidence, we review the district court's denial of the motion for acquittal for plain error or to prevent a manifest miscarriage of justice.  United States v. Mora, 876 F.2d 76, 77 (9th Cir.1989).

22
In making his motion for judgment of acquittal, Martinez-Guzman argued that:

23
In the indictment itself the indictment starts out with overt act starting January 22nd, 1991 and goes through a number of overt acts up through April 23rd, 1991.  My client's not mentioned a single time there.

24
I think that the evidence has clearly shown that Mr. Guzman was nowhere near that restaurant or even associating with these people until the end of May, 1991....  Prior to that time before he's ever present, before he has anything to do with this situation I don't think that he was at all part of that conspiracy and I don't think there's any facts that would support his involvement or even association with these people up until that date....  I don't believe that if you come in[to a conspiracy] later you're responsible for prior acts.

25
This is simply incorrect.  It is settled law in this circuit that a "conspirator who joins a pre-existing conspiracy is bound by all that has gone on before in the conspiracy."  United States v. DiCesare, 765 F.2d 890, 900 (9th Cir.1985) (citation omitted).  Here there was sufficient evidence to indicate that the cocaine conspiracy existed from January 1991 to October 1991, as charged in the indictment.  There was also sufficient evidence to support Martinez-Guzman's participation in the conspiracy.  As such, Martinez-Guzman was "bound by all that [went] on before" he actually joined the conspiracy.  The district court did not commit plain error in denying his motion for judgment of acquittal.

II. Conclusion

26
The district court erred by including at sentencing the quantity of cocaine involved in Count 9 on which Martinez-Guzman was acquitted.  We, therefore, REVERSE and REMAND for resentencing.  We AFFIRM the district court on all other grounds.

*
 Honorable William A. Ingram, Senior District Judge for the Northern District of California, sitting by designation

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

1
 In Pinkerton v. United States, 66 S.Ct. 1180 (1946), the Supreme Court held that a conspirator is responsible for the reasonably foreseeable overt acts of other conspirators done in furtherance of the conspiracy


******************************************************
  The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
  All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
  The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
              STATE v. TAYLOR G.—CONCURRENCE

   PALMER, J., concurring. I agree with and join the
majority opinion because I am not persuaded that the
mandatory minimum sentences imposed on the defen-
dant, Taylor G., violated his eighth amendment right to
an individualized sentencing decision that takes into
account the youth and immaturity of a person who, like
the defendant, commits a crime or crimes while under
the age of eighteen. In fact, as the majority notes, there
appears to be no case in which any court, state or
federal, has held that the eighth amendment categori-
cally bars the imposition of a mandatory minimum sen-
tence on a juvenile. But cf. State v. Lyle, 854 N.W.2d
378, 386, 400 (Iowa 2014) (recognizing such prohibition
under Iowa state constitution but acknowledging that
‘‘no other court in the nation has held that its constitu-
tion or the [f]ederal [c]onstitution prohibits a statutory
schema that prescribes a mandatory minimum sentence
for a juvenile offender’’). Furthermore, in the present
case, the defendant has not raised a claim under the
Connecticut constitution.
   I write separately, however, only to point out that,
although the federal constitution does not prevent the
legislature from subjecting juvenile offenders to certain
kinds of mandatory minimum sentences, the legislature
may wish to revisit the question of whether such manda-
tory prison terms are appropriate for juveniles, as a
matter of sound public policy, in light of the marked
differences between juveniles and adults. The United
States Supreme Court recently reiterated these differ-
ences in Miller v. Alabama,         U.S.     , 132 S. Ct. 2455,
183 L. Ed. 2d 407 (2012), explaining that, ‘‘[b]ecause
juveniles have diminished culpability and greater pros-
pects for reform [than adults] . . . they are less deserv-
ing of the most severe punishments.’’ (Internal quota-
tion marks omitted.) Id., 2464. As the court in Miller
further explained, this conclusion is founded on ‘‘three
significant gaps between juveniles and adults. First,
children have a lack of maturity and an underdeveloped
sense of responsibility, leading to recklessness, impul-
sivity, and heedless risk-taking. . . . Second, children
are more vulnerable . . . to negative influences and
outside pressures, including from their family and
peers; they have limited contro[l] over their own envi-
ronment and lack the ability to extricate themselves
from horrific, crime-producing settings. . . . And
third, a child’s character is not as well formed as an
adult’s; his traits are less fixed and his actions less likely
to be evidence of irretrievabl[e] deprav[ity].’’ (Citations
omitted; internal quotation marks omitted.) Id.
  The court continued: ‘‘[D]evelopments in psychology
and brain science continue to show fundamental differ-
ences between juvenile and adult minds—for example,
in parts of the brain involved in behavior control. . . .
[T]hose findings—of transient rashness, proclivity for
risk, and inability to assess consequences—both les-
sened a child’s moral culpability and enhanced the pros-
pect that, as the years go by and neurological develop-
ment occurs, his deficiencies will be reformed.’’ (Cita-
tion omitted; footnote omitted; internal quotation marks
omitted.) Id., 2464–65.
   The court then ‘‘emphasized that the distinctive attri-
butes of youth diminish the penological justifications
for imposing the harshest sentences on juvenile offend-
ers, even when they commit terrible crimes. Because
[t]he heart of the retribution rationale relates to an
offender’s blameworthiness, the case for retribution is
not as strong with a [child] as with an adult. . . . Nor
can deterrence do the work in this context, because the
same characteristics that render juveniles less culpable
than adults—their immaturity, recklessness, and impet-
uosity—make them less likely to consider potential pun-
ishment.’’ (Citations omitted; internal quotation marks
omitted.) Id., 2465. Finally, the court observed that
imposing the harshest of sentences on juvenile offend-
ers because of their perceived dangerousness would
be incompatible with the fact that ‘‘incorrigibility is
inconsistent with youth’’; (internal quotation marks
omitted) id.; and, ‘‘for the same reason, rehabilitation
could not justify [such a] sentence’’ because it would
be ‘‘at odds with a child’s capacity for change.’’ Id.
   As the experienced and highly regarded trial judge
in the present case noted in his comments during the
defendant’s sentencing, mandatory minimum sentences
for juvenile offenders pose a real risk of unduly limiting
the ability of the court to impose a sanction that fairly
accounts for the lack of maturity and diminished
responsibility of such offenders. For that reason, our
legislature may find it appropriate to reconsider the
efficacy of subjecting juveniles to mandatory minimum
sentences, even when, as in the present case, the federal
constitution does not categorically prohibit them.