alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
### UNPUBLISHED



# UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT



#  T YRONE A NDREWS , Plaintiff-Appellant,

v. No. 02-2289



# 
R. W. E LKINS , Defendant-Appellee. 

# 

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro.

William L. Osteen, District Judge.

(CA-01-584-1) Submitted: March 20, 2003 Decided: April 10, 2003 Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSELTyrone Andrews, Appellant Pro Se. Isaac T. Avery, III, Special Deputy Attorney General, Patricia A. Duffy, NORTH CAROLINADEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).OPINION
PER CURIAM:Tyrone Andrews appeals the district court’s order granting Defendant Elkins’ motion for summary judgment in his 42 U.S.C. § 1983 (2000) action. Andrews raises only one issue in his informal brief. See 4th Cir. R. 34(b) (pro se appellants may obtain appellate review of only those issues explicitly raised in their informal briefs). Relying onthe initial pretrial conference order, Andrews maintains that the district court should not have granted Elkins’ motion for summary judgment because the motion was filed out of time and the district court led him to believe that he did not need to respond to Elkins’ motion. We find this claim without merit given that an order subsequent to the initial pretrial conference extended the discovery period and Andrews was given specific notice by the district court, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), that failure to respond to Elkins’ motion for summary judgment could lead to dismissal of his case. Therefore, Andrews’ argument is simply belied by the record.
We have reviewed the record and find no reversible error. Accordingly, we affirm the order of the district court.* See Andrews v. Elkins , No. CA-01-584-1 (M.D.N.C. Oct. 24, 2002). We dispensewith oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED *To the extent that Andrews also appeals the magistrate judge’s April 17, 2002, order pertaining to discovery, we find no abuse of discretion and also affirm that order. Vodrey v. Golden , 864 F.2d 28, 32 (4th Cir. 1988) (a district court is permitted wide latitude in controlling the course and scope of discovery, subject to abuse of discretion on appeal). 2 A NDREWS v. E LKINS
This disposition is not appropriate for publication and is not precedent *

except as provided by 9th Cir. R. 36-3.

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

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

The Honorable Michael W. Fitzgerald, United States District Judge ***

for the Central District of California, sitting by designation.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

 v.

SABIL MUMIN MUJAHID,

 Defendant - Appellant.

No. 11-30300

D.C. No. 3:09-cr-00053-TMB-2

MEMORANDUM*

Appeal from the United States District Court

for the District of Alaska

Timothy M. Burgess, District Judge, Presiding

Submitted December 7, 2012** 

Seattle, Washington

Before: TALLMAN and WATFORD, Circuit Judges, and FITZGERALD, District

Judge.*** 

FILED

DEC 11 2012

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Alaska state prisoner Sabil Mumin Mujahid (“Mujahid”) appeals the district

court’s dismissal of an indictment without prejudice, pursuant to Fed. R. Crim. P.

48(a). Mujahid contends that the district court abused its discretion in failing to

dismiss the indictment with prejudice, pursuant to Fed. R. Crim. P. 48(b). We hold

that Mujahid’s appeal must be dismissed for lack of jurisdiction. 

Mujahid lacks standing to appeal the district court’s order because he was

not aggrieved by the dismissal of the indictment pending against him. “Only one

injured by the judgment sought to be reviewed can appeal, and . . . petitioner has

not been injured by termination in his favor.” Parr v. United States, 251 U.S. 513,

516–17 (1956). Although Mujahid may be subject to further prosecution, this

threat alone is insufficient to establish standing. Id. at 517. 

Even if we had jurisdiction under 28 U.S.C. § 1291 we would deny

Mujahid’s claim on the merits. A district court is “duty bound” to grant the

government’s Rule 48(a) motion to dismiss an indictment without prejudice unless

“it specifically determines that the government is operating in bad faith” in

pursuing the motion. United States v. Hayden, 860 F.2d 1483, 1487 (9th Cir.

1988). A district court may also deny the government’s motion if the dismissal is

“prompted by considerations clearly contrary to the public interest” or if there is a

genuine concern that the defendant would be subjected to “prosecutorial
3

harassment” through “charging, dismissing, and recharging.” United States v.

Wallace, 848 F.2d 1464, 1468 (9th Cir. 1988). 

There are no allegations or facts in the record suggesting that, in seeking

dismissal of the indictment, the prosecutor sought to obtain improper tactical

advantage or was motivated by a desire to harass Mujahid. Under these

circumstances, the district court correctly determined that the public interest would

be served by granting the dismissal, and that the dismissal did not violate

Mujahid’s rights to a speedy trial under the Sixth Amendment or to due process

under the Fifth Amendment. 

In light of these holdings, we DISMISS the appeal for lack of jurisdiction.
# C_2021035EN.01005002.xml

| 1.2.2021 | EN | Official Journal of the European Union | C 35/50 |
| --- | --- | --- | --- |

1.2.2021

EN

Official Journal of the European Union

C 35/50

---

Order of the General Court of 4 December 2020 — Agepha Pharma v EUIPO — Apogepha Arzneimittel (AGEPHA)

(Case T-792/19) (1)

(EU trade mark - Opposition proceedings - Withdrawal of the opposition - No need to adjudicate)

(2021/C 35/66)

Language of the case: German

Parties

Applicant: Agepha Pharma s.r.o. (Senec, Slovakia) (represented by: D. Göbel, lawyer)

Defendant: European Union Intellectual Property Office (represented by: D. Walicka, acting as Agent)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Apogepha Arzneimittel GmbH (Dresden, Germany) (represented by: A. Marx and R. Kaase, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 26 August 2019 (Case R 386/2019-2), relating to opposition proceedings between Apogepha Arzneimittel GmbH and Agepha Pharma s.r.o.

Operative part of the order

| 1. | There is no longer any need to adjudicate on the action. |
| --- | --- |

1.

There is no longer any need to adjudicate on the action.

| 2. | Agepha Pharma s.r.o and Apogepha Arzneimittel GmbH shall bear their own costs and shall each pay half of the costs incurred by the European Union Intellectual Property Office (EUIPO). |
| --- | --- |

2.

Agepha Pharma s.r.o and Apogepha Arzneimittel GmbH shall bear their own costs and shall each pay half of the costs incurred by the European Union Intellectual Property Office (EUIPO).

---

(1)  OJ C 10, 13.1.2020.

---
# C_2020191EN.01000202.xml

| 8.6.2020 | EN | Official Journal of the European Union | C 191/2 |
| --- | --- | --- | --- |

8.6.2020

EN

Official Journal of the European Union

C 191/2

---

Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 31 December 2019 — M.A. v Konsul Rzeczypospolitej Polskiej w N.

(Case C-949/19)

(2020/C 191/03)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: M.A.

Defendant: Konsul Rzeczypospolitej Polskiej w N.

Question referred

Must Article 21(2a) of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (1) in conjunction with the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that a third-country national who has been refused a long-stay visa and who cannot exercise the right to move freely within the territories of the other Member States under Article 21(1) of the Convention implementing the Schengen Agreement must have the right to an effective remedy before a tribunal?

---

(1)  OJ 2000 L 239, p. 19.

---
#### The People of the State of New York, Respondent, v Kevin Gillard, Also Known as Mitchell Stokes, Appellant.

Judgment of the Supreme Court, New York County (Harold Rothwax, J.), rendered on January 19, 1983, which convicted defendant, upon his plea of guilty, of grand larceny in the third degree and sentenced him, as a predicate felon, to a term of from *IV2*to 3 years, is unanimously modified, on the law, to the extent of reversing the sentence and remanding the matter for resentence, and otherwise affirmed.

The trial court properly declined to hold a hearing in connection with defendant’s motion to controvert the allegations contained in the People’s predicate felony statement since no disputed questions of fact were involved therein. Defendant did not challenge that he was the person referred to in the predicate felony statement nor did he contest the date of the crime, the county of jurisdiction or the nature of the offense. The sole issue before the court was one of law — that is, whether the prior plea had been constitutionally obtained. In that regard, an examination of the minutes of that plea reveals a complete absence in the allocution of any admission of conduct by the defendant such as would constitute the crime to which he was pleading. Although a predicate conviction upon a guilty plea is not generally invalid simply because the trial court failed to specifically enumerate all of the rights to which the defendant was entitled *(People v Harris,*61 NY2d 9), a plea may not be accepted without any inquiry into the underlying acts committed by the defendant *667that would establish the crime upon which the conviction is based. *(People v Serrano,*15 NY2d 304; *People v Rockwood,*78 AD2d 845.) Consequently, the prior plea herein should not have been served as a predicate for the instant sentence. Concur — Ross, J. P., Asch, Bloom, Milonas and Ellerin, JJ.
Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Federal Deposit Insurance Corporation

Pursuant to the provisions of subsection (e)(2) of the “Government in the Sunshine Act” (5 U.S.C. 552b(e)(2)), notice is hereby given that at its open meeting held at 10:01 a.m. on Tuesday, July 20, 2021, the Corporation's Board of Directors determined, on motion of Director Martin J. Gruenberg (Appointive), seconded by Director David Uejio (Acting Director, Consumer Financial Protection Bureau), and concurred in by Director Michael J. Hsu (Acting Comptroller of the Currency), and by Chairman Jelena McWilliams, that Corporation business required the deferral of an item on the agenda for consideration at the meeting, on less than seven days' notice to the public, of the following matter:

Memorandum and resolution re: Notice of Proposed Rulemaking on Revisions to Standardized Approach for Calculating the Exposure Amount of Derivative Contracts.

The Board further determined, by the same majority vote, that no notice earlier than July 20, 2021, of the change in the subject matter of the meeting was practicable.

Dated this the 20th day of July, 2021.

Federal Deposit Insurance Corporation.

James P. Sheesley,

Assistant Executive Secretary.

[FR Doc. 2021-15807 Filed 7-21-21; 4:15 pm]

BILLING CODE 6714-01-P
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#### The People of the State of New York, Respondent, v Kenneth Holman, Appellant.

—Judgment, Supreme Court, New York County (Stanley L. Sklar, J.), rendered January 20, 1984, which convicted defendant, after a jury trial, of the crimes of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), criminal possession of a controlled substance in the third degree (Penal Law § 220.16) (two counts), and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) (two counts), and sentenced him, as a predicate felon, to indeterminate terms of imprisonment of from *AVz*to 9 years on the counts of criminal sale and criminal possession of a controlled substance in the third degree, and to a determinate term of one year on each one of the counts of criminal possession of a controlled substance in the seventh degree, with all of these sentences to run concurrently, is unanimously modified, on the law, to the extent of vacating defendant’s conviction of the two counts of criminal possession of a controlled substance in the seventh degree and dismissing those counts, and otherwise affirmed.

Defendant was convicted of the crimes of criminal sale of a controlled substance in the third degree as well as criminal possession of a controlled substance in the third and seventh degrees. Our examination of the record indicates that the indictment, which contains counts of criminal sale in the third degree and criminal possession in the third and seventh degrees, clearly pertains to the charges that resulted from the defendant’s arrest for selling heroin to an undercover police officer and his possession of narcotics concomitant with that sale. Therefore, we find that "[i]n that context, criminal possession of a controlled substance in the seventh degree was an inclusory concurrent offense which, under the circumstances, should have been dismissed pursuant to CPL 300.40 (subd 3, par [b])” *(People v Evans,*70 AD2d 816, 817 [1st Dept 1979]; *People v Mendoza,*110 AD2d 570 [1st Dept 1985]). We note in passing that the People concede that this error was committed. Accordingly, we modify the judgment to dismiss the two counts of criminal possession in the seventh degree.

We have examined the other points raised by the defendant, and find them to be without merit. Concur—Murphy, P. J., Sullivan, Ross and Rosenberger, JJ.
Order entered January 4, 2013

In The

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-12-00922-CR

DANIEL EDWARD MURRAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 366th Judicial District Court

Collin County, Texas

Trial Court Cause No. 366-80173-06

ORDER

This appeal is REINSTATED.

We VACATE our order of November 30, 2012 requiring the trial court to make findings 

of fact regarding why appellant’s brief was not filed. 

We GRANT appellant=s December 24, 2012 motion to reinstate the appeal. Appellant=s 

brief tendered to the Clerk of the Court on December 24, 2012 is DEEMED timely filed as of 

the date of this order. 

The State’s brief shall be due THIRTY DAYS from the date of this order.

/s/ LANA MYERS 

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

except as provided by 9th Cir. R. 36-3.

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

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

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

WINFRED HOWARD LAVIRGNE,

 Petitioner - Appellant,

 v.

JAMES A. YATES,

 Respondent - Appellee.

No. 09-17365

D.C. No. 2:09-cv-00649-LKK-DAD

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, Senior District Judge, Presiding

Submitted March 14, 2011** 

San Francisco, California

Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges.

Petitioner-Appellant Winfred Howard Lavirgne, a California state prisoner,

appeals from the district court’s denial of his petition for a writ of habeas corpus. 

We have jurisdiction pursuant to 28 U.S.C. § 2253.

FILED

MAR 16 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Lavirgne’s argument that he “had an absolute right to amend [his] habeas

petition once” falls outside the scope of the certificate of appealability. Hiivala v.

Wood, 195 F.3d 1098, 1103 (9th Cir. 1999) (per curiam). 

We choose not to expand the scope of the certificate of appealability because

Lavirgne has not demonstrated a “‘substantial showing of the denial of a

constitutional right.’” Id. at 1104, quoting 28 U.S.C. § 2253(c)(2). Prior to a

summary dismissal by the district court, a habeas petitioner must be afforded

notice and an opportunity to be heard. Herbst v. Cook, 260 F.3d 1039, 1043 (9th

Cir. 2001). Lavirgne was given notice and an opportunity to be heard regarding

the sua sponte dismissal of his habeas petition. In response, Lavirgne failed to

present any colorable argument why the statute of limitations on his habeas

petition should be tolled or how the statute of limitations was improperly

calculated by the California Superior Court. Neither does he identify on appeal

anything other than hypothetical speculation to support the proposition that his

petition was not untimely. Lavirgne’s argument that he must also be given an

opportunity to amend his habeas petition has no support in the caselaw. 

AFFIRMED.
# C_2019399EN.01006401.xml

| 25.11.2019 | EN | Official Journal of the European Union | C 399/64 |
| --- | --- | --- | --- |

25.11.2019

EN

Official Journal of the European Union

C 399/64

---

Order of the General Court of 11 September 2019 — Makhlouf v Council

(Case T-57/19) (1)

(Action for compensation - Common foreign and security policy - Restrictive measures taken against Syria - Freezing of funds - Lack of competence)

(2019/C 399/79)

Language of the case: French

Parties

Applicant: Rami Makhlouf (Damascus, Syria) (represented by E. Ruchat, lawyer)

Defendant: Council of the European Union (represented by A. Jaume and V. Piessevaux, acting as Agents)

Re:

Application under Article 268 TFEU seeking compensation in respect of the harm allegedly suffered by the applicant as a result of the adoption of Council Decision (CFSP) 2018/778 of 28 May 2018 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2018 L 131, p. 16) and its subsequent implementing acts, and as a result of Council Decision (CFSP) 2019/806 of 17 May 2019 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2019 L 132, p. 36), in so far as those decisions concern the applicant.

Operative part of the order

| 1. | The action is dismissed. |
| --- | --- |

1.

The action is dismissed.

| 2. | Mr Rami Makhlouf shall bear his own costs and pay those incurred by the Council of the European Union. |
| --- | --- |

2.

Mr Rami Makhlouf shall bear his own costs and pay those incurred by the Council of the European Union.

---

(1)  OJ C 139, 15.4.2019.

---
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