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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

CASEY JOSEPH CICERO, No. 2:04-cv-2519-MCE-PAN-P 

Petitioner, 

v. ORDER

WILLIAM DUNCAN, 

Respondent.

 /

Petitioner, a state prisoner proceeding pro se, has filed this

Application for a Writ of Habeas Corpus pursuant to 28 U.S.C.

§ 2254. The matter was referred to a United States Magistrate

Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order

No. 262.

On November 29, 2005, the magistrate judge filed Findings and

Recommendations herein which were served on all parties and which

contained notice to all parties that any Objections to the Findings

and Recommendations were to be filed within twenty (20) days.

///

Case 2:04-cv-02519-MCE -PAN Document 17 Filed 01/04/06 Page 1 of 2
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Petitioner has filed Objections to the Findings and

Recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C)

and Local Rule 72-304, this Court has conducted a de novo review of

this case. Having carefully reviewed the entire file, the Court

finds the Findings and Recommendations to be supported by the

record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations filed November 29, 2005,

are adopted in full; and

2. Respondent’s July 11, 2005, Motion to Dismiss is granted;

Claim 3 is dismissed with prejudice as time-barred and Claims 1, 2

and 4 are dismissed as unexhausted.

DATE: December 30, 2005

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

Case 2:04-cv-02519-MCE -PAN Document 17 Filed 01/04/06 Page 2 of 2
L-_,) ORIGINAL 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DA 22-0435 

STATE OF MONTANA, AUG 2 3 2022 

Plaintiff and Appellee, 

v. 

JAY PAGELER, 

Defendant and Appellant. 

Bowen Ur eenwoocI 

Clerk of Supreme Court 

State of Montana 

ORDER 

Jay Pageler has filed a Petition for an Out-of-Time Appeal from his April 2021 

judgment and sentence. 

On April 13, 2021, the Eighteenth Judicial District Court, Gallatin County, 

sentenced Pageler to the Department of Corrections for a fifteen-year, suspended term, for 

felony robbery. Pageler also received a concurrent, suspended term of twelve months in 

jail for misdemeanor fleeing or eluding a peace officer. The District Court awarded Pageler 

223 days of credit for time served, and the court designated him a violent offender. Pageler 

is not incarcerated, and is serving his probationary term in Idaho. 

Pageler states only that he has obtained two new mental health evaluations, 

diagnosing him with autism and severe post-traumatic stress disorder (PTSD), but offers 

no connection of this to, or other explanation for, the failure to file a notice of appeal. 

M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]n the 

infrequent harsh case and under extraordinary circumstances amounting to a gross 

miscarriage of justice[.]" "Extraordinary circumstances do not include mere mistake, 

inadvertence, or excusable neglect." M. R. App. P. 4(6). 

We conclude Pageler has not demonstrated extraordinary circumstances, amounting 

to a gross miscarriage of justice, that would entitle him to an out-of-time appeal under the 

Rules of Appellate Procedure. Accordingly, 

08/23/2022

Case Number: DA 22-0435
IT IS ORDERED that Pageler's Petition for an Out-of-Time Appeal is DENIED and 

DISMISSED. 

The Clerk is directed to provide a copy of this Order to Bjorn E. Boyer, Gallatin 

County Deputy Attorney: to Austin Knudsen. Attorney General, along with a copy of 

Pageler's Petition; and to Jav Pageler personally. 

DATED this —day of August, 2022. 

Justices
[Cite as State ex rel. Peterson v. Durkin , 2012-Ohio-3867.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, ex rel. ) BOBBIE PETERSON, ) ) CASE NO. 12 MA 96 RELATOR, ) ) OPINION - VS - ) AND ) JUDGMENT ENTRY JUDGE JOHN DURKIN, MAHONING ) COUNTY COMMON PLEAS COURT, ) ) RESPONDENT. )

CHARACTER OF PROCEEDINGS: Relator’ s Petition for Writ of Procedendo; Respondent’s Combined Answer and Motion to Dismiss.

JUDGMENT: Petition for Writ of Procedendo Denied; Motion to Dismiss Granted.

APPEARANCES : For Petitioner: Bobbie Peterson, Pro Se #A506-955 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901

For Respondent: Attorney Ralph Rivera Assistant Prosecutor Mahoning County Prosecutor’s Office 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

JUDGES : Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Mary DeGenaro

Dated: August 3, 2012[Cite as State ex rel. Peterson v. Durkin , 2012-Ohio-3867.]

PER CURIAM:

¶{1} Relator Bobbie Peterson filed a Petition for Writ of Procedendo with this court on May 24, 2012. The petition requests this court to order Respondent Judge Durkin of the Mahoning County Common Pleas Court to rule on Relator’s August 31, 2011 motion titled “Motion to Impose a Valid Sentence that Complies with R.C. 2941.25(A).” On May 29, 2012, Respondent filed a combined answer and motion to

dismiss. ¶{2} The Ohio Supreme Court has explained that a writ of procedendo is appropriate when “a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment.” State ex rel. Weiss v. Hoover , 84 Ohio St.3d 530, 532, 705 N.E.2d 1227 (1999). The criteria for relief in procedendo are well-established. Relator must demonstrate: (1) a clear legal right to proceed in the underlying matter; and (2) the lack of an adequate remedy in the ordinary course of

the law. State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 868 N.E.2d 270, 2007-Ohio2882, ¶ 13. ¶{3} Attached to the combined answer and motion to dismiss is a judgment entry dated September 2, 2011, which states, “The Defendant’s Motion to Impose a Valid Sentence Filed August 31, 2011, is overruled.” 09/02/11 J.E. This attachment establishes that the trial court has proceeded to judgment; it issued a ruling on the August 31, 2011 motion. Thus, the trial court's performance of the act requested renders the petition moot and requires dismissal. State ex rel. Howard v. Skow , 102 Ohio St.3d 423, 2004-Ohio-3652, ¶ 9

. This is because procedendo cannot be used to compel the performance of a duty already performed. State ex rel. Kreps v.

Christiansen , 88 Ohio St.3d 313, 318, 725 N.E.2d 663 (2000). ¶{4} Accordingly, the motion to dismiss is granted and the request for extraordinary relief is denied.- 2 -

¶{5} Final Order. Clerk to serve notice as provided by the Civil Rules.

Vukovich, J., concurs. Donofrio, J., concurs. DeGenaro, J., concurs.
No. 6579.

#### MRS. LILLIE A. SANCHEZ vs. WOODMEN OF THE WORLD.

Syllabus.

Involves only issues of fact.

Appeal from the 'Civil District Court for the Parish of Orleans, Division “B,” Ño. 109,805. Honorable Porter Parker, Judge.

A. Romain, for plaintiff and appellant.

L. Saxon, for defendant and appellee.

His Honor, JOHN ST. PAUL,

rendered the opinion and decree of the Court, as follows:

This case presents only issues of fact. Prom .a judgment against the plaintiff she 'appeals.

■ The action is upon a policy of life insurance and the defense is that the -assured died “by his own hand, or act;” the policy being in that event void by its express terms.

There is a “sand pit” at the City Park consisting of a concrete curbing about one foot high and inside thereof loose sand in which the children play.

*248According to the testimony of some ten or twelve witnesses, wholly disinterested in this controversy, this is what they saw at the sand pit in the early afternoon of Thursday, March 26th, 1914.

Outside the curbing, from four to six feet away, lay the body of a man, cold in death, with a bullet wound in his right temple, powder marked; but without other sign of violence on his body. Near his body, about a foot away, lay a revolver with two chambers recently discharged, .and three still loaded; in his pocket were six loaded cartridges.

Inside the curbing lay the body of a woman, also dead, with a bullet wound in her left temple, not powder marked; one foot still hanging upon the curbing.

Nearby, on the curbing, were two hats, an empty whiskey flask, and a memorandum book belonging to the man, on the fly leaf of which a woman had written: “My dying words are, Forgive me mother._ Mamie. Also forgive Eivers, we love each other.”

.The dead man was Eivers P. Sanchez, the assured. The woman was Mamie Dodds, his paramour.

Eliminating the wholly fanciful theory, that these unfortunates might have been murdered elsewhere and their bodies carried to the place where found, this evidence is conclusive that Mamie Dodds killed Eivers Sanchez and then killed herself, or vice versh, Eivers Sanchez killed Mamie Dodds and then killed himself.

We think the assured fired the fatal shots.

The loaded cartridges in the pocket of the assured tell us who carried about the means of death.

The pistol outside the curbing near the body of the insured, and away from the woman, tells us whose hand held it last.

*249Opinion and decree, February 28th, 1916.

The gaping powder burned wound in the right temple of the assured tells us whose finger pressed the fatal trigger.

And Mamie Dodds, about to die, points out who was to perpetrate the frightful deed: “Also forgive Rivers, we love each other.” Does she who avenges her own wrongs •even unto death, ask forgiveness for ¡her victim1? She meant: Forgive him my death, because I love him.

We place no reliance upon certain other evidence adduced by the defendant, because we think most of it inadmissible. Nor do we place reliance upon the evidence adduced by plaintiff, because we think it false.

The judgment appealed from is correct.

Judgment affirmed.
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#### UNITED STATES, Appellant v BRUCE B. BEDGOOD, Specialist Four, U. S. Army, Appellee

12 USCMA 16, 30 CMR 16

*17No. 14,192

Decided November 4, 1960

*Lieutenant Colonel James G. McConaughy*argued the cause for United States, Appellant. With him on the brief were *First Lieutenant Alvin B. Fox*and *First Lieutenant George H. Parsons.*

*First Lieutenant Vernon C. Maulson*argued the cause for Appellee, Accused. With him on the brief were *Colonel Harley A. Lanning*and *Lieutenant Colonel W. H. Blackmarr.*

Opinion of the Court

Homer Ferguson, Judge:

Tried by general court-martial, the accused was found guilty of wrongful appropriation of a motor vehicle, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and going without proper authority from his appointed place of duty, in violation of Code, supra, Article 86, 10 USC § 886. He was sentenced to reduction to the lowest enlisted grade, forfeiture of all pay and allowances, and “to be dismissed from the service [w]ith a general discharge.” The convening authority “modified” the sentence to read, “To be dishonorably discharged from the service, to forfeit all pay and allowances, and to be reduced to the grade of Recruit E-l.” The board of review held that the substitution of the dishonorable discharge for the “legally adjudged general discharge” was without legal effect and, as a matter of appropriateness, approved only so much of the sentence as provided for reduction and forfeiture of $40.00 per month for three months. With respect to its decision, The Judge Advocate General of the Army has certified to this Court the following question:

> “WAS THE BOARD OP REVIEW CORRECT IN HOLDING THAT A GENERAL COURT-MARTIAL CAN LEGALLY ADJUDGE A SENTENCE TO AN ADMINISTRATIVE TYPE OF DISCHARGE?”

In view of the board of review’s action on the sentence, it is apparent that the inquiry framed by The Judge Advocate General is moot. United States v Fisher, 7 USCMA 270, 22 CMR 60; United States v Storey, 9 USCMA 162, 25 CMR 424; United States v Armbruster, 11 USCMA 596, 29 CMR 412.

The decision of the board of review is afiirmed.

Chief Judge Quinn concurs.

Latimer, Judge

(concurring in the result):

I concur in the result.

In United States v Phipps, 12 USCMA 14, 30 CMR 14, decided this day, we concluded that a court-martial was not authorized to adjudge a separation from the service by an administrative discharge. That holding answers the certified issue.
No. 47906.

#### Protest 871002-G of W. T. Grant Co. (New York).

Opinion by

Kincheloe, J.

In accordance with stipulation of counsel merchandise described as “Cocoa Mats,” similar to that the subject of *United States*v. *Penn*(27 C. C. P. A. 242, C. A. D. 93), was held dutiable at 90 percent ad’ valorem as claimed.
TREATIES AND OTHER INTERNATIONAL ACTS SERIES 07-905 

________________________________________________________________________ 

CIVIL AVIATION 

Transport Services 

 Agreement Between the 

UNITED STATES OF AMERICA 

and HUNGARY 

Extending the Annex of the 

Agreement of July 12, 1989 

Effected by Exchange of Notes at 

Washington June 25, August 1, and 

September 5, 2007 
 NOTE BY THE DEPARTMENT OF STATE 

 Pursuant to Public Law 89—497, approved July 8, 1966 

(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued 

under the authority of the Secretary of State shall be competent 

 evidence . . . of the treaties, international agreements other than 

treaties, and proclamations by the President of such treaties and 

international agreements other than treaties, as the case may be, 

therein contained, in all the courts of law and equity and of maritime 

jurisdiction, and in all the tribunals and public offices of the 

United States, and of the several States, without any further proof 

or authentication thereof.” 
 HUNGARY 

 Civil Aviation: Transport Services 

 Agreement extending the annex of the agreement 

 of July 12, 1989. 

 Effected by exchange of notes at Washington 

 June 25, August 1, and September 5, 2007; 

 Entered into force September 5, 2007.
No. 64877.

#### N. J. Magnam Corp. *v.*United States,

protest 266114-K (Boston).

Opinion by

Ford, J.

In accordance with stipulation of counsel that the merchandise consists of plastic filaments similar in all material respects to the nylon tennis racket stringing the subject of Abstract 61832, the claim of the plaintiff was sustained.
Filed 9/23/20 

## IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. DANIEL TODD SILVERIA and JOHN RAYMOND TRAVIS,

Defendant and Appellant.

S 062417

Santa Clara County Superior Court

155731

ORDER MODIFYING OPINION AND DENYING PETITION S FOR
REHEARING

THE COURT:

The opinion in this matter filed on August 13 , 20 20, and appearing

at 10 Cal.5th 195 is modified as follows:

1. Add a footnote after the sentence spanning pages 209 and 210

reading, “ On a Tuesday in January 1991, Silveria showed his friend Gregg

Orlando a wad of cash, and said, ‘ We killed somebody last night. ’ ” The

new footnote should read:

At the guilt phase, this portion of Orlando’s testimony was heard only by Silveria’s jury. Orlando also gave substantially similar testimony at defendants’ joint penalty retrial.

2. In the first full paragraph on page 305

, delete the sentence and

citation that read: “ We conclude there is no reasonable likelihood that the

court ’ s error misled the jury. (See People v. Mitchell (2019) 7 Cal.5th 561,

579 [248 Cal. Rptr. 3d 587, 443 P.3d 1] [“In reviewing a claim ofinstructional error, the court must consider whether there is a reasonable

likelihood that the trial court's instructions caused the jury to misapply

the law in violation of the Constitution.”].) As modified, the replacement

sentence and citation now read:

We conclude there is no reasonable possibility that the court’s error
affected the verdict

. (See People v. Gomez (2018) 6 Cal.5th 243, 309

– 310 ; see also id. at p. 310 [“We find no reasonable possibility that the instructional error affected the jury’s penalty determination.”] .)

3. Delete the sentence spanning pages 305 and 306 that read s :

“Given these instructions at the end of the penalty retrial, there is no

reasonable likelihood that the jurors who may have heard the challenged

language at the outset of trial failed to understand that they ‘ bore the

ultimate responsibility for choosing between death and life imprisonment

wi thout parole ’ ( Ray

, supra , 13 Cal.4th at p. 355), and that they could

consider pity and sympathy for the defendants.” As modified, the

replacement sentence now read s :

The instructions given at the end of the penalty retrial cor rectly informed them that they “bore the ultimate responsibility for choosing between death and life imprisonment without parole” ( Ray

, supra , 13 Cal.4th at p. 355)

, and that they could consider pity and sympathy for the defendants. We therefore conclude there is no reasonable possibility that without the erroneous instruction on CALJIC 1.00 to some of the jurors during voir dire Silveria would
have received a more favorable verdict.

These modifications do not affect the judgment.

The petition s for rehearing are denied.
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-6507

MICHAEL S. OWL FEATHER-GORBEY, Chief,

Petitioner - Appellant,

v.

WARDEN FCI CUMBERLAND,

Respondent - Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. 

Richard D. Bennett, District Judge. (1:19-cv-00715-RDB)

Submitted: September 27, 2019 Decided: November 6, 2019

Before NIEMEYER, FLOYD, and RICHARDSON, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael S. Gorbey, Appellant Pro Se. 

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Michael S. Owl Feather-Gorbey, a District of Columbia code offender incarcerated 

at FCI Cumberland in Maryland, seeks to appeal the district court’s order denying relief on 

his 28 U.S.C. § 2241 (2012) petition. The order is not appealable unless a circuit justice 

or judge issues a certificate of appealability.∗

 28 U.S.C. § 2253(c)(1)(A) (2012). A 

certificate of appealability will not issue absent “a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief 

on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists 

would find that the district court’s assessment of the constitutional claims is debatable or 

wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 

322, 336-38 (2003). When the district court denies relief on procedural grounds, the 

prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that 

the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. 

at 484-85. 

We have independently reviewed the record and conclude that Owl Feather-Gorbey

has not made the requisite showing. Accordingly, we deny a certificate of appealability, 

deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral 

 ∗ Because Owl Feather-Gorbey was convicted in a District of Columbia court, he is 

required to obtain a certificate of appealability in order to appeal the denial of his habeas 

petition. See Madley v. United States Parole Comm’n, 278 F.3d 1306, 1310 (D.C. Cir. 

2002).
3

argument because the facts and legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional process.

DISMISSED
AFS-12-032-E 

December 2, 2011 

 Exemption No. 10031A 

 Regulatory Docket No. FAA-2002-11937 

Mr. Travis J. Garnick 

President 

Butler Aircraft Company 

1050 Southeast Sisters Avenue 

Redmond, OR 97756 

Dear Mr. Garnick: 

This letter is to inform you that we have granted your petition to extend Exemption 

No. 10031. It explains the basis for our decision, describes its effect, and lists the conditions 

and limitations. 

The Basis for Our Decision 

By letter dated October 12, 2011, you petitioned the Federal Aviation Administration (FAA) 

on behalf of Butler Aircraft Company (Butler) for an extension of Exemption No. 10031. 

That exemption from § 91.611 of Title 14, Code of Federal Regulations allows Butler to 

conduct ferry flights with one engine inoperative on its DC-6/DC-7 aircraft (registration 

Nos. N401US, N6353C, and N838D) without obtaining a special flight permit for each flight. 

In your petition, you indicate that there has been no change in the conditions and reasons 

relative to public interest and safety that were the basis for granting the original exemption. 

The FAA has determined that good cause exists for not publishing a summary of the petition 

in the Federal Register because the requested extension of the exemption would not set a 

precedent, and any delay in acting on this petition would be detrimental to Butler. 

Our Decision 

The FAA has determined that the justification for the issuance of Exemption No. 10031 

remains valid with respect to this exemption and is in the public interest. Therefore, under the 
 2

authority provided by 49 U.S.C. 40113 and 44701, which the FAA Administrator has 

delegated to me, I grant your petition, subject to the following conditions and limitations. 

Conditions and Limitations 

1. This exemption applies to the following DC-6/DC-7 series aircraft operated by Butler: 

registration Nos. N401US, N6353C, and N838D. 

2. All one-engine-inoperative ferry flights must be conducted in accordance with the 

provisions contained in the FAA-approved flight manual required by Aircraft 

Specification Nos. A-781 and 4A10. 

3. The airplane flight manual and operator’s manual must contain performance data and 

operating and maintenance procedures for the safe operation of the airplane as 

required by § 91.611 and approved by the FAA Flight Standards District Office 

responsible for Butler. 

4. Flights will be permitted only when visual flight rules conditions exist at points of 

takeoff and landing or any alternate points of landing and must be limited to crew 

essential to the purpose of the flight. 

5. Each pilot in command must be given adequate training in three-engine ferry flight 

operation and an appropriate entry made in his/her logbook by a person so authorized 

by Butler. 

The Effect of Our Decision 

Our decision extends the termination date of Exemption No. 10031 to March 31, 2014, unless 

sooner superseded or rescinded. 

All conditions and limitations of Exemption No. 10031 remain the same. This letter must be 

attached to, and is a part of, Exemption No. 10031. 

Sincerely, 

/s/ 

John W. McGraw 

Acting Director, Flight Standards 

 Service