alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
*This matter is being decided by a quorum. 28 U.S.C. §

46(d).

 

** Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-20258

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN MANUEL SAUCEDA, also known as

Manuel Sauceda,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-97-CR-130-1

- - - - - - - - - -

February 10, 1999

Before BARKSDALE and EMILIO M. GARZA, Circuit Judges.*

PER CURIAM:**

Appellant Juan Manuel Sauceda appeals his conviction for

conspiracy to possess with intent to distribute cocaine. Sauceda

argues that his counsel was ineffective for failing to tell him,

prior to Sauceda taking the stand in his own defense, that the

district court, rather than the jury, would be sentencing him. 

Sauceda contends that he testified so that the jury would 
No. 98-20258

-2-

mitigate his sentence. “As a general rule, Sixth Amendment

claims of ineffective assistance of counsel cannot be litigated

on direct appeal, unless they were adequately raised in the

district court.” United States v. Gibson, 55 F.3d 173, 179 (5th

Cir. 1995). The court will reach the merits of the claim only

“in rare cases where the record [allows the court] to evaluate

fairly the merits of the claim.” United States v. Higdon, 832

F.2d 312, 314 (5th Cir. 1987). 

This is not one of those “rare cases.” We decline to review

this claim because it was not adequately raised before the

district court. We therefore AFFIRM the judgment, but without

prejudice to a subsequent motion under 28 U.S.C. § 2255. We

express no view on the merits of such motion.

AFFIRMED.
<TABLE> <S> <C>

<PAGE>
<ARTICLE>                       5
       
<S>                             <C>                     <C>
<PERIOD-TYPE>                   3-MOS                   9-MOS
<FISCAL-YEAR-END>                          DEC-31-1998             DEC-31-1998
<PERIOD-START>                             JUL-01-1998             JAN-01-1998
<PERIOD-END>                               SEP-30-1998             SEP-30-1998
<CASH>                                         705,394                 705,394
<SECURITIES>                                         0                       0
<RECEIVABLES>                                  409,467                 409,467
<ALLOWANCES>                                    38,500                  38,500
<INVENTORY>                                     64,794                  64,794
<CURRENT-ASSETS>                             2,467,755               2,467,755
<PP&E>                                       1,683,259               1,683,259
<DEPRECIATION>                                 638,267                 638,267
<TOTAL-ASSETS>                               3,888,312               3,888,312
<CURRENT-LIABILITIES>                        1,099,043               1,099,043
<BONDS>                                          7,027                   7,027
<PREFERRED-MANDATORY>                                0                       0
<PREFERRED>                                  4,871,213               4,871,213
<COMMON>                                    11,069,986              11,069,986
<OTHER-SE>                                (13,158,957)            (13,158,957)
<TOTAL-LIABILITY-AND-EQUITY>                 3,888,312               3,888,312
<SALES>                                         87,434                 917,090
<TOTAL-REVENUES>                               207,843               1,235,890
<CGS>                                           74,541                 755,476
<TOTAL-COSTS>                                  177,575               1,005,948
<OTHER-EXPENSES>                             2,164,821               5,554,090
<LOSS-PROVISION>                                     0                       0
<INTEREST-EXPENSE>                            (43,342)               (105,756)
<INCOME-PRETAX>                            (2,091,211)             (5,218,392)
<INCOME-TAX>                                         0                       0
<INCOME-CONTINUING>                        (2,091,211)             (5,218,392)
<DISCONTINUED>                                       0                       0
<EXTRAORDINARY>                                      0                       0
<CHANGES>                                  (1,791,844)             (2,928,808)
<NET-INCOME>                               (3,883,055)             (8,147,200)
<EPS-PRIMARY>                                   (1.08)                  (2.37)
<EPS-DILUTED>                                   (1.08)                  (2.37)
        

</TABLE>
NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NIKI-ALEXANDER SHETTY, FKA Satish 

Shetty, 

Plaintiff-Appellant, 

 v. 

CWALT, INC.; et al., 

Defendants-Appellees.

No. 17-16807 

D.C. No. 5:17-cv-02980-LHK 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

Niki-Alexander Shetty, FKA Satish Shetty, appeals pro se from the district 

court’s judgment dismissing his action alleging state law claims related to 

foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We 

review de novo a dismissal for lack of subject matter jurisdiction. Ass’n of Am. 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

AUG 21 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-16807 

Med. Colls. v. United States, 217 F.3d 770, 778 (9th Cir. 2000). We affirm.

The district court properly dismissed Shetty’s action because Shetty failed to 

establish federal subject matter jurisdiction over his action alleging solely state law

claims, and did not show that all defendants were citizens of a different state than 

Shetty. See In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1234 (9th Cir.

2008) (“Diversity jurisdiction requires complete diversity between the parties—

each defendant must be a citizen of a different state from each plaintiff.”); Ass’n of 

Am. Med. Colls., 217 F.3d at 778-79 (the party asserting jurisdiction bears the 

burden of establishing it).

The district court did not abuse its discretion in granting defendants’ motions 

to dismiss without first holding a hearing. See Fed. R. Civ. P. 78(b) (“By rule or 

order, the court may provide for submitting and determining motions on briefs, 

without oral hearings.”).

We do not consider arguments raised for the first time on appeal or matters

not specifically and distinctly raised and argued in the opening brief. See Padgett 

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

The Bank of New York Mellon’s motion to take judicial notice (Docket 

Entry No. 18) is denied as unnecessary.

AFFIRMED.
<PAGE>

EXHIBIT 3.5


                        THIRD CERTIFICATE OF AMENDMENT TO THE
                 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
                                         OF
                           FURR'S/BISHOP'S, INCORPORATED

                      _______________________________________

                      PURSUANT TO SECTION 103 AND SECTION 242
                         OF THE GENERAL CORPORATION LAW OF
                               THE STATE OF DELAWARE
                      _______________________________________


     The undersigned, Phillip Ratner, certifies that he is the President of
Furr's/Bishop's, Incorporated, a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), and does hereby further
certify as follows:

     FIRST: The name of the Corporation is Furr's/Bishop's, Incorporated.

     SECOND: This Certificate of Amendment to the Corporation's Amended and
Restated Certificate of Incorporation was unanimously approved by the Board of
Directors of the Corporation and thereafter duly adopted by the stockholders of
the Corporation in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.

     THIRD: Article FOURTH of the Amended and Restated Certificate of
Incorporation of the Corporation is hereby amended as follows:

     Section 4.01 of the Amended and Restated Certificate of Incorporation of
the Corporation entitled "Authorized Shares" is hereby amended to read in its
entirety as follows:

"SECTION 4.01 AUTHORIZED SHARES.  The aggregate number of shares of all classes
of capital stock which the Corporation is authorized to issue is 155 million
shares, consisting of 150 million shares of Common Stock, par value $.01 per
share (" Common Stock") and 5 million shares of preferred stock, par value $.01
per share ("Preferred Stock").

     FOURTH: This amendment shall become effective at 4:30 p.m. on the date of
filing.

     IN WITNESS WHEREOF, the Company has caused this Third Certificate of
Amendment to its Amended and Restated Certificate of Incorporation to be signed
by Phillip Ratner, its President and Chief Executive Officer, this 8th day of
December 1999.

                                   Furr's/Bishop's, Incorporated

                                   By:  /s/ Phillip Ratner
                                        ---------------------------------------
                                        Phillip Ratner
                                        President and
                                        Chief Executive Officer


                                      26
<PAGE>
 
Exhibit 11

                               VALUE HEALTH, INC.
            Schedule of Computation Of Net Earnings (Loss) Per Share

<TABLE> 
<CAPTION> 
---------------------------------------------------------------------------------------------------------------------------------
                                                                               Year Ended December 31,
                                                         ------------------------------------------------------------------------
                                                              1996                       1995                      1994
---------------------------------------------------------------------------------------------------------------------------------
<S>                                                      <C>                  <C>                         <C> 

Net Earnings (Loss)                                           $64,329,000               $(27,967,000)             $59,521,000

---------------------------------------------------------------------------------------------------------------------------------

Weighted Average Number Of Shares
    Outstanding During The Year                                54,448,920                  53,182,815              51,936,571

---------------------------------------------------------------------------------------------------------------------------------

Add:
    Common Stock Equivalent Shares
        Represented By Stock Options Granted
        Related To Stock Plans                                    394,946                   1,160,001               2,254,001

---------------------------------------------------------------------------------------------------------------------------------

    Contingently Issuable Shares                                      (a)                         (a)                     (a)

---------------------------------------------------------------------------------------------------------------------------------

Weighted Average Number Of Common
    Shares Used In The Computation Of
    Net Earnings (Loss) Per Share                              54,843,866                  54,342,816              54,190,572

---------------------------------------------------------------------------------------------------------------------------------

Net Earnings (Loss) Per Share                                       $1.17                     $(0.51)                   $1.10

---------------------------------------------------------------------------------------------------------------------------------
</TABLE> 
      (a) The dilution of earnings (loss) per share represented by the inclusion
of contingently issuable shares is less than 3%.

                                      99
### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 41710 Conference Calendar

UNITED STATES OF AMERICA,
Plaintiff

- Appellee

v. IGNACIO FUENTES

- BARRIGA , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:16

- CR

- 1291

- 1

Before KING, OWEN, and HIGGINSON, Circuit Judges. PER CURIAM: * The Federal Public Defender appointed to represent Ignacio Fuentes

Barriga has moved for leave to withdraw and has filed a brief in accordance with Anders v. California , 386 U.S. 738 (1967), and United States v. Flores , 632 F.3d 229 (5th Cir. 2011). Fuentes

- Barriga has filed an out

- of

- time response along with a motion f or leave to file this response , which we GRANT

. The record is not sufficiently developed to allow us to make a fair evaluation of

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 24, 2017

Lyle W. Cayce Clerk Case: 16-41710 Document: 00514207253 Page: 1 Date Filed: 10/24/2017No. 16

- 41710

2 Fuentes

- Barriga ’s claim of ineffective assistance of counsel; we therefore decline to consider the claim without prejudice to collateral review. See United States v. Isgar , 739 F.3d 829, 841 (5th Cir. 2014 )

. We have reviewed counsel’s brief and the relevant portions of the record reflected therein, as well as Fuentes

- Barriga ’s response. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, the motion for leave to withdraw is GRANTED, counsel i s excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5 TH C IR

. R

. 42.2. Fuentes

- Barriga ’s motion for the appointment of substitute counsel , incorporated in his response, is DENIED. Case: 16-41710 Document: 00514207253 Page: 2 Date Filed: 10/24/2017
----

Back to Index

**Exhibit 99.1 – CERTIFICATIONS PURSUANT  TO SECTION 906 OF THE SARBANES–OXLEY ACT OF 2002**

In connection with the filing of the  Genesis Health Ventures’ Annual Report on Form 10–K for the period  ended September 30, 2002 with the Securities and Exchange Commission on the  date hereof (the “Report”), I Robert H. Fish, the principal executive  officer of Genesis Health Ventures, Inc, certify, pursuant to 18 U.S.C. ss.  1350, as adopted pursuant to Section 906 of the Sarbanes–Oxley Act of 2002,  that:

| 1.     |   | The      Report fully complies with the requirements of section 13 (a) or 15 (d)      of the Securities Exchange Act of 1934; and                              |   |
|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|
|   |   |                                                                                                                                                           |   |
| 2.     |   | The information      contained in the Report fairly presents, in all material respects, the financial      condition and results of operations of the Company. |   |

Date: December 27, 2002

/s/   Robert H. Fish        ____________________________          Robert H. Fish

136
# N- ~ 7 E tior T 

### O 

# /Z CHEMICALS, LLC 

### x E-Sperse RS-1617 lot 31310251 GPC Results <500 500-1000 >1000 Total area <1000 

## Area 142844 6451335.9 15122348 21716527 6594179 % area 0.66% 29.71 % 69.64% 100.00% 30.36% 12/6/2013

Mw 1128 Mn 1064 PDI 1.060 <500 500-1000 >1000 Total wt A <1000 Wt area 2.44 255.59 869.51 1127.54 258.03 % wt 0.22% 22.67% 77.12% 100.00% 22.88% Weight Percent Distribution

~ 2.5

~ X 2.0
~ 

### a
~ 1.5 N C O Q

. m 1.0

~ ~ 0.5 ~ m 

### ~ 0.0 0<50 0 0 0 0 0 0 000
} i: {:;

~ ::5

~ '{K?9: ~ '•'.{; '?. ~ :~ :•}: i : ~Y~ ? %

~ : ~ S :: ~ ?}:.::': ~ ~ ,

~ ::CS:'s

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~ ;.;: ~ .'•:
~

,+;. •:,. =•,-
29 30 31 32 33 34 35 36 37 38 39 

### ~ Time (min)
-- --- - - ~ ;



### RS-1617 Page 1
<TABLE> <S> <C>

<ARTICLE> 5
       
<S>                             <C>
<PERIOD-TYPE>                   3-MOS
<FISCAL-YEAR-END>                          DEC-31-1997
<PERIOD-END>                               MAR-31-1997
<CASH>                                          972708
<SECURITIES>                                         0
<RECEIVABLES>                                  3678898
<ALLOWANCES>                                         0
<INVENTORY>                                          0
<CURRENT-ASSETS>                               5075360
<PP&E>                                         3649787
<DEPRECIATION>                                       0
<TOTAL-ASSETS>                                 8817506
<CURRENT-LIABILITIES>                          1348400
<BONDS>                                              0
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                          0
<COMMON>                                         47940
<OTHER-SE>                                           0
<TOTAL-LIABILITY-AND-EQUITY>                   8817506
<SALES>                                        3613374
<TOTAL-REVENUES>                               3613374
<CGS>                                          2777854
<TOTAL-COSTS>                                  3549444
<OTHER-EXPENSES>                                     0
<LOSS-PROVISION>                                     0
<INTEREST-EXPENSE>                               32496
<INCOME-PRETAX>                                  25490
<INCOME-TAX>                                     18200
<INCOME-CONTINUING>                                  0
<DISCONTINUED>                                       0
<EXTRAORDINARY>                                      0
<CHANGES>                                            0
<NET-INCOME>                                     25490
<EPS-PRIMARY>                                      .01
<EPS-DILUTED>                                      .01
        

</TABLE>
**EXHIBIT 32.1****CERTIFICATION**     Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of1934, as amended (the “Exchange Act”) and Section 1350 of Chapter 63 of Title 18 of the UnitedStates Code (18 U.S.C. § 1350), Hollings C. Renton, Chairman of the Board, President and ChiefExecutive Officer of Onyx Pharmaceuticals, Inc. (the “Company”), and Gregory W. Schafer, Acting Chief Financial Officer of the Company, each hereby certify that, to the bestof his knowledge:**1.** The Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2006, to whichthis Certification is attached as Exhibit 32.1 (the “Periodic Report”), fully complies withthe requirements of Section 13(a) or Section 15(d) of the Exchange Act; and**2.** The information contained in the Periodic Report fairly presents, in all material respects,the financial condition of the Company at the end of the period covered by the Periodic Reportand results of operations of the Company for the period covered by the Periodic Report.        Dated: May 10, 2006,   /s/ Hollings C. Renton    Hollings C. Renton
<TABLE> <S> <C>

<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FORM 10-KSB
YEAR ENDED DEC. 31, 1998 AND QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
       
<S>                             <C>
<PERIOD-TYPE>                   YEAR
<FISCAL-YEAR-END>                          DEC-31-1998
<PERIOD-START>                             JAN-01-1998
<PERIOD-END>                               DEC-31-1998
<CASH>                                         421,722
<SECURITIES>                                         0
<RECEIVABLES>                                  124,777
<ALLOWANCES>                                         0
<INVENTORY>                                          0
<CURRENT-ASSETS>                               559,933
<PP&E>                                       1,663,833
<DEPRECIATION>                                 489,152
<TOTAL-ASSETS>                               3,088,586
<CURRENT-LIABILITIES>                           64,390
<BONDS>                                              0
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                          0
<COMMON>                                        14,766
<OTHER-SE>                                   2,649,935
<TOTAL-LIABILITY-AND-EQUITY>                 3,088,586
<SALES>                                      4,911,331
<TOTAL-REVENUES>                               114,547
<CGS>                                        2,515,339
<TOTAL-COSTS>                                5,571,735
<OTHER-EXPENSES>                               118,894
<LOSS-PROVISION>                                     0
<INTEREST-EXPENSE>                              12,629
<INCOME-PRETAX>                               (677,380)
<INCOME-TAX>                                 1,486,614
<INCOME-CONTINUING>                         (2,163,994)
<DISCONTINUED>                                       0
<EXTRAORDINARY>                                      0
<CHANGES>                                            0
<NET-INCOME>                                (2,163,994)
<EPS-PRIMARY>                                    (1.49)<F1>
<EPS-DILUTED>                                    (1.49)<F1>
<FN>
<F1>ON OCTOBER 7, 1998, THE COMPANY APPROVED A ONE-FOR-FOUR REVERSE STOCK SPLIT.
PRIOR FINANCIAL DATA SCHEDULES HAVE NOT BEEN RESTATED FOR THE RECAPITALIZATION.
</FN>
        

</TABLE>