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VON CLARK DAVIS,
Petitioner-Appellant,
v.
CHARLOTTE JENKINS, Warden,
Respondent-Appellee. |
No. 21-3404 |
Appeal from the United States District Court for the Southern District of Ohio at Columbus.
No. 2:16-cv-00495—Susan J. Dlott, District Judge.
Argued: December 13, 2022
Decided and Filed: August 16, 2023
Before: MOORE, COLE, and GIBBONS, Circuit Judges.
_________________________
OPINION
_________________________
KAREN NELSON MOORE, Circuit Judge. A three-judge panel convicted Von Clark
Davis of aggravated murder and sentenced him to death. On direct appeal, Davis’s sentence was
vacated, but on remand, the same three-judge panel again sentenced him to death. We
subsequently vacated Davis’s death sentence on appeal of his first federal habeas petition. A
different three-judge panel again sentenced Davis to death. Davis again petitioned for a writ of
habeas corpus, and the district court denied the petition. Now on appeal, Davis raises five
claims: (1) that the state violated Davis’s constitutional rights by enforcing his 1984 jury waiver
against him at his third sentencing hearing in 2009; (2) that Davis’s trial counsel were
constitutionally ineffective in failing to investigate and present mitigating evidence about the
circumstances of Davis’s prior conviction, which provided the aggravating circumstance that
made him eligible for the death penalty; (3) that Davis’s trial counsel provided ineffective
assistance by failing to move to recuse one of the judges on Davis’s 2009 sentencing panel for
bias; (4) that Davis’s trial counsel were constitutionally ineffective in failing to reasonably
prepare and present mitigation evidence at Davis’s third sentencing hearing; and (5) that Davis’s
trial counsel provided ineffective assistance by failing adequately to advise him of the collateral
consequences of a jury waiver. For the reasons that follow, we conclude that Davis’s
constitutional rights were violated when his 1984 jury waiver was enforced against him at his
2009 sentencing hearing and that his trial counsel also rendered ineffective assistance at that
sentencing hearing, such that we doubt that the hearing produced a fair result. Accordingly, we
AFFIRM in part; REVERSE in part; and REMAND to the district court with instructions to
CONDITIONALLY GRANT Davis’s petition for writ of habeas corpus as to his first, third,
and fourth claims. |
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NICHOLAS SANDMANN,
Plaintiff-Appellant,
v.
NEW YORK TIMES COMPANY (22-5734); CBS NEWS,
INCORPORATED, VIACOMCBS, INCORPORATED, and
CBS INTERACTIVE, INCORPORATED (22-5735); ABC
NEWS, INC., ABC NEWS INTERACTIVE,
INCORPORATED, and WALT DISNEY COMPANY (22-
5736); ROLLING STONE, LLC and PENSKE MEDIA
CORPORATION (22-5737); GANNETT COMPANY, INC.
and GANNETT SATELLITE INFORMATION NETWORK,
LLC (22-5738),
Defendants-Appellees. |
Nos. 22-5734/5735/5736/5737/5738 |
Appeal from the United States District Court for the Eastern District of Kentucky at Covington.
No. 2:20-cv-00023—William O. Bertelsman, District Judge.
Argued: April 26, 2023
Decided and Filed: August 16, 2023
Before: GRIFFIN, STRANCH, and DAVIS, Circuit Judges.
_________________________
OPINION
_________________________
JANE B. STRANCH, Circuit Judge. On January 18, 2019, then-sixteen-year-old
Nicholas Sandmann and his classmates had an interaction with a Native American man named
Nathan Phillips by the Lincoln Memorial in Washington, D.C. Video of the incident went viral,
and national news organizations, including the five Defendants (Appellees, or News
Organizations) published stories about the day’s events and the ensuing public reaction.
Sandmann sued, alleging that the Appellees’ reporting, which included statements from Phillips
about the encounter, was defamatory. The district court granted the News Organizations’ joint
motion for summary judgment, finding that the challenged statements were opinion, not fact, and
therefore nonactionable. Sandmann appealed. For the following reasons, we AFFIRM. |
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JOSEPH JOHNSON,
Plaintiff-Appellant,
v.
CLAIR SOOTSMAN,
Defendant-Appellee |
No. 22-1937 |
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:20-cv-01102—Jane M. Beckering, District Judge.
Argued: July 26, 2023
Decided and Filed: August 16, 2023
Before: McKEAGUE, GRIFFIN, and MURPHY, Circuit Judges.
_________________________
OPINION
_________________________
MURPHY, Circuit Judge. This case shows that just because a correctional officer may
have violated a prison use-of-force policy or committed a state-law tort does not necessarily
mean that the officer violated the Eighth Amendment’s ban on “cruel and unusual punishments.”
While serving a short sentence, Joseph Johnson caused a disturbance in a jail’s intake area.
Officers chose to take Johnson to his cell, but he then disobeyed orders to slow down.
So another officer, Deputy Clair Sootsman, stopped him. After a brief exchange, Johnson
stepped in Sootsman’s general direction. Sootsman testified that he viewed this conduct as a
threat. In response, he immediately grabbed Johnson’s neck, pushed him against the wall, and
took him to the ground to be handcuffed. This force lasted about seven seconds. Investigators
found that Sootsman’s actions violated jail policies, and Sootsman pleaded guilty to a
misdemeanor battery.
Johnson later sued Sootsman, alleging that his conduct violated the Eighth Amendment.
But this constitutional claim requires Johnson to meet a demanding standard. He must prove that
Sootsman used force “maliciously and sadistically for the very purpose of” inflicting pain.
Hudson v. McMillian, 503 U.S. 1, 6 (1992) (citation omitted). Johnson’s claim will fail, by
contrast, if Sootsman used force out of a belief—even an unreasonable belief—that the force was
necessary to control Johnson. See id. We affirm the district court’s summary-judgment ruling
for Sootsman because Johnson lacks enough evidence to meet this demanding Eighth
Amendment test. That said, the States may impose stricter limits on officers than the
Constitution demands. So our holding does not foreclose all relief for Johnson. It just means
that he must try to seek that relief using his state tort claim that the district court dismissed
without prejudice. |
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JOSEPH FISCHER; FISCHER FOR SUPREME COURT
COMMITTEE; ROBERT A. WINTER,JR.,
Plaintiffs-Appellants,
v.
HONORABLE KAREN A. THOMAS, as Member, Judicial
Conduct Commission; HONORABLE R. MICHAEL
SULLIVAN, as Member, Judicial Conduct Commission;
HONORABLE EDDY COLEMAN, as Member, Judicial
Conduct Commission; JEFF S. TAYLOR, as Member,
Judicial Conduct Commission; HONORABLE JOE E.
ELLIS, as Member, Judicial Conduct Commission;
HONORABLE JANET LIVELY MCCAULEY, as Member,
Judicial Conduct Commission; JIMMY SHAFFER, as
Executive Secretary, Judicial Conduct Commission,
Defendants-Appellees. |
No. 22-5938 |
Appeal from the United States District Court for the Eastern District of Kentucky at Covington.
No. 2:22-cv-00121—Karen K. Caldwell, District Judge.
Decided and Filed: August 16, 2023
Before: GRIFFIN, THAPAR, and MURPHY, Circuit Judges.
_________________________
OPINION
_________________________
THAPAR, Circuit Judge. Two judicial candidates sued the Kentucky Judicial Conduct
Commission after they heard the Commission planned to investigate their campaign speech. The
district court denied a preliminary injunction, and the candidates appealed. We enjoined the
Commission from initiating an investigation during the campaign. But the candidates have since
lost their elections. Thus, they no longer face a threat of irreparable harm. We affirm the denial
of the preliminary injunction and dissolve the injunction pending appeal. |
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MARVIN NICHOLSON (21-1768); BRYAN SORRELL
(21-1779),
Petitioners-Appellants,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee. |
Nos. 21-1768/1779 |
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
Nos. 2:13-cr-20764; 2:19-cv-10600 (Nicholson); 2:19-cv-10420 (Sorrell);
Paul D. Borman, District Judge.
Argued: July 20, 2023
Decided and Filed: August 16, 2023
Before: GILMAN, LARSEN, and NALBANDIAN, Circuit Judges.
_________________________
OPINION
_________________________
NALBANDIAN, Circuit Judge. An indictment charged motorcycle-gang members
Marvin Nicholson and Bryan Sorrell with one count of conspiracy and one count of aiding-and-abetting assault under the Violent Crimes in Aid of Racketeering (“VICAR”) statute. At trial,
the district court instructed the jury that either of those two offenses could serve as a predicate
offense for another count involving the use or carrying of a firearm during and in relation to a
crime of violence under 18 U.S.C. § 924(c). The jury convicted both Nicholson and Sorrell on
those three counts, among others. And we affirmed. Now, under 28 U.S.C. § 2255, they appeal
the district court’s refusal to vacate their § 924(c) convictions. Because the § 924(c) convictions
rested on a valid predicate offense, and because the jury-instruction error on an invalid predicate
offense was harmless, we affirm. |
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