CA1: 12/28/05 -- Booker appeal waivers, ERISA punitives, 1983 sol tolling, and 6th amendment rtc meets federalism

On December 28, 2005, the First Circuit did a bunch of things.  It dismissed a crazy pro se because she didn’t comply with orders, sanctioned a lawyer for repeatedly seeking punitive damages in an ERISA case; deals with appeal waivers under Booker and pursuant to Shepard; and finds that someone wasn’t continuously mentally ill enough to warrant tolling of a statute of limitations for 1983 purposes.  If your New Years eve is not rockin’ enough read on.  It also did a strange 6th amendment right to counsel dance, and an even stranger res judicata dance.

• Bagheri v. Galligan, No. 04-2449 (unpublished) is one of those zany pro se cases.  “Pro se appellant Zahra Bagheri brought an action under 42 U.S.C. § 1983 against a federal official and four employees of the Massachusetts Office of Child Care Services alleging constitutional violations arising out of disputes concerning her license to provide family day care.”  Claims against the federal defendants (not specified in the opinion) were dismissed under FRCP 12(b)(6), and claims against the state ones were dismissed under Rule 41(b) because Bagheri failed to comply with court orders requiring her to file an amended complaint.  “She argues that she was unable to file an amended complaint because she did not have the defendants' home addresses and could not obtain them due to the district court's stay of discovery. This argument is frivolous.” 
• Rivera Diaz v. American Airlines, No. 04-2277, affirms the dismissal of the plaintiff’s estate’s ERISA claim, because he didn’t “exhaust” his remedies.  According to the plaintiffs, in a bit of a twist, this defendant first filed suit in Federal Court (seeking punitive damages, which are generally unavailable).  It was dismissed.  The he tried to administratively exhaust.  No response.  Then he filed again – and asked for punitive damages again.  It was dismissed.  Counsel was warned to stop asking for punitive damages.  So, he filed again, and was again dismissed with sanctions.  The First affirms, but notes that the dismissals for failure to comply with a court order, and not because American Airlines had trapped the plaintiff into an administrative procedure that could never be exhausted.  The sanctions are affirmed.
• US v. Coker, No. 04-2154 holds that a confession is admissible, over Sixth Amendment challenges, when a defendant was first charged under state law, and his sixth amendment right indisputably attached, but later, charged under Federal law and gave a confession without a lawyer. Applying Texas v. Cobb, 532 U.S. 162 (2001), which focuses on, for Sixth Amendment right to counsel purposes, whether there is a nexus between one charged offense and another, the court holds that Cobb (based on a footnote) did not incorporated all of the Supreme Court’s double jeopardy jurisprudence (including the dual sovereignty doctrine) or merely the Blockburger test into its Sixth Amendment right to counsel jurisprudence. Oh, and by the way, the court adds, if it is wrong on this, the error is harmless.  Update:  DoTD has very interesting commentary on how this is a circuit split here.
  
• US v. Sanford, No. 04-2125 (unpublished). “Appellant's primary argument [not raised below] is that his guilty plea was involuntary because he ingested three medications for depression and psychosis on the morning he entered his plea.”  But, “The district judge satisfied his duty: he asked appellant on four separate occasions whether he understood the nature of the proceedings, and each time appellant assured the court of his ability to comprehend the proceedings. Appellant also appeared lucid, confirming his own assurances of competency… For the same reasons, we find no impediment to concluding that appellant effectively waived his appellate rights during the Rule 11 colloquy.”  But, the First assumes, without deciding that “that the exception to the appeal waiver provision renders the waiver inapplicable to appellant's claims pursuant to United States v. Booker, 543 U.S. 220 (2005) and pursuant to Shepard v. United States, 125 S. Ct. 1254 (2005)” and finds that there is no Booker error worthy of a remand under the plain error standard.  Likewise, his unpreserved Shepard claim fails, because “accepted the risk that a favorable change in the law would occur after he entered his plea.”
• Maher v. GSI Lumonics, No. 05-1509 is a strange ADEA case.  “The district court granted summary judgment in favor of GSI on the federal claims and “transferred” the related state-law claims to Massachusetts state court. Because such a transfer is not allowed, the state court dismissed the case.”  What the hell!  So, the plaintiff filed again in state court.  Then, the defendant removed again.  The district court granted the motion on res judicata grounds.  Despite this strange action by the District Court, the court applies the fourt-part res judicata test that people pretended to be interested in in law school and finds that the claim was precluded.  DoTd notes that the plaintiff should have plead diversity jurisdiction in the original complaint.
• Sasone v. United States Railroad Retirement Board,  No. 05-1643 (unpublished).  Resisting the urge to sing “I’ve been working on the railroad.”  The court affirms the finding of the board under 45 U.S.C. § 231a(a)(1)(v), finding that he wasn’t disabled on substantial evidence grounds.
• Douglas v. York, No. 05-1940.   “The question presented is whether a civil rights action brought in May 2002, for events thirty years before, was brought too late under Maine's statute of limitations, or whether the statute of limitations was tolled by the plaintiff's mental illness.”  Maine has a tolling statute.  It is called Me. Rev. Stat. Ann. tit. 14, § 853.  On the facts, the court affirms the finding that “reasonable fact finder could not conclude that Douglas was mentally ill under § 853 at all points before 1996.”