alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10955

Summary Calendar

PEDRO OSEQUERA MORALES,

Petitioner-Appellant

v.

REBECCA TAMEZ,

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:11-CV-57

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:*

Pedro OsequeraMorales, federal prisoner # 25327-018, appeals the district

court’s dismissal of his 28 U.S.C. § 2241 petition for lack of jurisdiction. 

Osequera Morales argues that he is actually innocent of the offense of conviction. 

He contends that he pleaded guilty to an indictment that charged him with a

violation of 21 U.S.C. § 841(b)(1)(D), which provides a maximum sentence of five

years. Therefore, he argues that his 195-month sentence is invalid because it

exceeds the statutory maximum sentence for the offense to which he pleaded

United States Court of Appeals

Fifth Circuit

F I L E D

April 19, 2012

Lyle W. Cayce

Clerk

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.

Case: 11-10955 Document: 00511827895 Page: 1 Date Filed: 04/19/2012
No. 11-10955

guilty. Osequera Morales contends that his claim falls within the savings clause

of 28 U.S.C. § 2255 because it is based on Begay v. United States, 553 U.S. 137

(2008), which is retroactively applicable to his case on collateral review.

A petitioner can attack the validity of his conviction and sentence in a

§ 2241 petition only if he can meet the requirements of the savings clause of

§ 2255(e). Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000). The petitioner

shoulders the burden of affirmatively showing that the remedy under § 2255

would be “inadequate or ineffective to test the legality of his detention.” 

§ 2255(e); Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001).

The Court held in Begay that a conviction for driving under the influence

of alcohol was not a “violent felony” within the meaning of the residual clause of

the Armed Career Criminal Act. Begay, 553 U.S. at 148. Thus, the holding in

Begay has no relevance to Osequera Morales’s case. Additionally, Begay is not

retroactively applicable to cases on collateral review. In re Bradford, 660 F.3d

226, 230-31 (5th Cir. 2011).

Osequera Morales has not shown that his claim “is based on a

retroactively applicable Supreme Court decision which establishes that [he] may

have been convicted of a nonexistent offense.” See Reyes-Requena, 243 F.3d at

904. Thus, he has not shown that he is entitled to proceed under the savings

clause of § 2255. See § 2255(e); Reyes-Requena, 243 F.3d at 904. Accordingly,

the judgment of the district court is AFFIRMED. The Respondent’s motion for

summary affirmance is GRANTED, and its alternative motion for an extension

of time in which to file a brief is DENIED.

2

Case: 11-10955 Document: 00511827895 Page: 2 Date Filed: 04/19/2012
#### The People of the State of New York, Respondent, v Henry Jackson, Appellant.

Appeal by defendant from a *412judgment of the Supreme Court, Kings County (Sullivan, J.), rendered April 6, 1983, convicting him of robbery in the second degree and assault in the second degree, upon a jury verdict, and sentencing him to an indeterminate term of imprisonment of 4 to 12 years on the robbery count and an indeterminate term of imprisonment of 1 to 3 years on the assault count, to run concurrently.

Judgment affirmed.

We find defendant’s challenge to complainant’s in-court identification testimony to be unpersuasive. The record reveals that complainant had known defendant for at least six months prior to the incident and that complainant had ample opportunity to view the defendant prior to and at the time of the incident *(see, People v Tillman,*74 AD2d 911). Indeed, the complainant was able to provide the police with a description that was so detailed and accurate, that they were able to arrest defendant based on the information given *(see, People v Van Buren,*87 AD2d 900).

We further find that defendant’s attack on complainant’s credibility has no merit. Complainant’s background was revealed to the jury and they nevertheless chose to credit his testimony. We will not disturb their finding *(People v Martin,*108 AD2d 928; *People v Siu Wah Tse,*91 AD2d 350, 352). Nor is there merit to defendant’s argument that the court erred in refusing to give a missing witness charge, since defendant made no showing that the testimony of the witness in question would have been material *(see, People v Walker,*105 AD2d 720).

Lastly, we find that the sentence imposed upon defendant was neither harsh nor excessive. We have reviewed defendant’s other contentions and we find them to be without merit. Thompson, J. P., Brown, Niehoff and Lawrence, JJ., concur.
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UNITED STATES DISTRICT COURT

FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 2.3

Eastern Division

Katherine Albrecht, et al.

Plaintiff,

v. Case No.:

1:03−cv−06472

Hon. Morton

Denlow

Metropolitan Pier and Exposition Authority, et al.

Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Friday, March 18, 2005:

 MINUTE entry before Judge Sidney I. Schenkier :Status conference on settlement

held, and continued for a telephone status conference on 03/29/05 at 9:30 a.m. Counsel for

plaintiffs shall initiate the call.Mailed notice(mmm, )

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of

Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was

generated by CM/ECF, the automated docketing system used to maintain the civil and

criminal dockets of this District. If a minute order or other document is enclosed, please

refer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our

web site at www.ilnd.uscourts.gov.

Case: 1:03-cv-06472 Document #: 60 Filed: 03/18/05 Page 1 of 1 PageID #:396
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EXHIBIT 31.1

 

CERTIFICATION PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Josh Emanuel, Chairman and Chief Executive Officer of DataWave Systems Inc., certify that:

1. I have reviewed this Annual Report on Form 10-KSB of DataWave Systems, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the small business issuer as of, and for, the periods presented in this report; 

4. The small business issuer's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and 15d-15(f)) for the small business issuer and have: 

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the small business issuer, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; 

(b) Evaluated the effectiveness of the small business issuer's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and 

(c) Disclosed in this report any change in the small business issuer's internal control over financial reporting that occurred during the small business issuer's most recent fiscal quarter (the small business issuer's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the small business issuer's internal control over financial reporting; and 

5. The small business issuer's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the small business issuer's auditors and the audit committee of the small business issuer's board of directors (or persons performing the equivalent functions): 

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the small business issuer's ability to record, process, summarize and report financial information; and 

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the small business issuer's internal control over financial reporting. 

Date: July 14th, 2004

 

By: /s/ "Josh Emanuel"
#### The People of the State of New York, Respondent, v Darrell Brown, Appellant.

—Appeal by defendant from a judgment of the Supreme Court, Kings County (Bernstein, J.), rendered November 18, 1982, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.

Judgment affirmed.

The defendant failed to raise his objections to the adequacy of his plea allocution in the court of first instance and accordingly has not preserved his claims for appellate review *(see, People v Pellegrino,*60 NY2d 636; *People v Rivera,*90 AD2d 836). In any event, the allocution established the requisite elements of attempted burglary in the second degree and the defendant knowingly, voluntarily, and intelligently pleaded guilty thereto *(see, People v Harris,*61 NY2d 9). Nor was the defendant prejudiced by the court conducting his allocution simultaneously with that of a codefendant since the court made it clear that it was addressing itself to both the defendant and his codefendant and took pains to elicit a separate response from each. The defendant responded to each of the court’s inquiries himself, often responding before his codefendant, and gave his own recital of the factual events surrounding the crime.

Similarly, the defendant’s claims of ineffective assistance of counsel are not supported by the record and are based on allegations which require the making of an additional record. As such, these claims should be pursued by way of a collateral or postconviction proceeding pursuant to CPL 440.10 *(see, People v Montez,*111 AD2d 877).

Finally, we note that the defendant received the sentence for which he bargained which was not excessive *(see, People v Montez, supra).*Mollen, P. J., Gibbons, Thompson and Brown, JJ., concur.
<TABLE> <S> <C>

<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM OCTOBER 30,
1997 FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FORM 10-Q.
</LEGEND>
<MULTIPLIER>   1,000
       
<S>                             <C>
<PERIOD-TYPE>                   9-MOS
<FISCAL-YEAR-END>                          JAN-31-1998
<PERIOD-END>                               OCT-31-1997
<CASH>                                          91,704
<SECURITIES>                                         0
<RECEIVABLES>                                   40,102
<ALLOWANCES>                                     1,476
<INVENTORY>                                          0
<CURRENT-ASSETS>                               133,553
<PP&E>                                          10,357
<DEPRECIATION>                                   3,062
<TOTAL-ASSETS>                                 159,953
<CURRENT-LIABILITIES>                           63,102
<BONDS>                                         20,788
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                          0
<COMMON>                                            65
<OTHER-SE>                                      75,998
<TOTAL-LIABILITY-AND-EQUITY>                   159,953
<SALES>                                         80,175
<TOTAL-REVENUES>                               109,254
<CGS>                                            1,712
<TOTAL-COSTS>                                  126,133
<OTHER-EXPENSES>                                     0
<LOSS-PROVISION>                                   408
<INTEREST-EXPENSE>                               4,201
<INCOME-PRETAX>                               (21,080)
<INCOME-TAX>                                     1,893
<INCOME-CONTINUING>                           (22,973)
<DISCONTINUED>                                       0
<EXTRAORDINARY>                                      0
<CHANGES>                                            0
<NET-INCOME>                                  (22,973)
<EPS-PRIMARY>                                   (0.49)<F1>
<EPS-DILUTED>                                   (0.49)<F2>
<FN>
<F1>For purposes of this exhibit, primary means basic.
<F2>Amounts have been restated to comply with the provisions of Statement of
Financial Accounting Standards No. 128, "Earnings per Share."
</FN>
        


</TABLE>
Exhibit 32


                            CERTIFICATION PURSUANT TO
                             18 U.S.C. SECTION 1350,
                             AS ADOPTED PURSUANT TO
                  SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

     In connection with the Quarterly Report of American Soil Technologies, Inc.
(the "Company") on Form 10-QSB for the period ending September 30, 2004 as filed
with the Securities and Exchange Commission on the date hereof (the "Report"),
we, Carl P. Ranno, Chief Executive Officer and President of the Company, and Ken
Lew, Chief Financial Officer of the Company, respectively certify, pursuant to
18 U.S.C. ss.1350, as adopted pursuant to ss. 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 result of operations of
          the Company.



Carl P. Ranno,                                  Ken Lew,
-------------------------------                 -------------------------------
Chief Executive Officer and President           Chief Financial Officer
November 8, 2004                                November 8, 2004
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Case: 1:01-cv-08774 Document #: 1 Filed: 11/14/01 Page 5 of 5 PageID #:5
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