alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### Robert P. MILLER et al., Appellees, v. Kenneth REIGHTER, Appellant.

No. 78-1276.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 15, 1978.

Decided Sept. 20, 1978.

Marilyn Hutchinson, Asst. Atty. Gen., Lincoln, Neb., for appellant; Paul L. Douglas, Atty. Gen., Lincoln, Neb., on brief.

Brian J. Waid, Legal Services of S. E. Nebraska, Lincoln, Neb., for appellee.

Before HEANEY and STEPHENSON, Circuit Judges and HANSON, Senior District Judge.*

*

 The Honorable William C. Hanson, United States Senior District Judge for the Southern District of Iowa, sitting by designation.

PER CURIAM.

Robért P. Miller brought a class action under 42 U.S.C. § 1983 against Dr. Kenneth Reighter and others seeking declaratory and injunctive relief in respect to psychiatric care at the Penitentiary Unit of the Nebraska State Penal and Correction Complex. Reighter is presently seeking review, of an order entered on February 7, 1978 in which the District Court allowed Miller’s attorneys and experts to examine certain medical and psychiatric records maintained by Reighter. Reighter argues that these records are privileged,

Miller argues that this Court lacks jurisdiction to review this order. Reighter argues, however, that this was a final order because it is a final disposition of a claimed *1182right which is not an ingredient of the cause of action and does not require consideration with it. *See Cohen v. Beneficial Loan Corp.,*337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We disagree. Ordinarily, a discovery order directed to the production of documents, and which imposes no sanctions, is not a final order appealable under 28 U.S.C. § 1291. *Gialde v. Time, Inc.,*480 F.2d 1295, 1300 (8th Cir. 1973). Denial of immediate review of the District Court’s discovery order would not render meaningful review at a subsequent time impossible. *See United States v. Ryan,*402 U.S. 530, 533, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971). Thus, we dismiss the appeal for lack of jurisdiction.
#### ARLENA BOYD MILLER, by Her Next Friend, HAZEL RUSSELL, v. SOUTHERN RAILWAY COMPANY, HERBERT W. ROSE and E. W. TUTWILER.

(Filed 20 September, 1939.)

Appeal by plaintiff from *Bless, J.,*at April Term, 1939, of Bim-COMBE.

Civil action instituted in general county court of Buncombe County, North Carolina, for recovery of damages for injuries allegedly resulting from wrongful assault committed by defendants, Herbert W. Rose, a resident of North Carolina, and E. W. Tutwiler, a resident of Tennessee, in the scope and course of their employment “as special agents, officers, policemen or detectives” of the defendant Southern Railway Company, a corporation created b,y and existing under the laws of the State of Yirginia.

Defendant E. W. Tutwiler has not been served with summons and is not in court. In due time, defendant Southern Railway Company filed petition in proper form, accompanied by bond as required by law, for removal of the action from the general county court of Buncombe to the United States District Court for the Western District of North Carolina at Asheville, alleging *inter alia*separable controversy and fraudulent joinder in that its codefendants were public officers, and acting as such in the matters and things of which plaintiff complains.

The general county court granted the petition and ordered the removal as prayed.

Plaintiff excepted and appealed to the Superior Court of Buncombe County and, on such appeal, judgment was entered affirming the judgment of the general county court.

Plaintiff appeals therefrom to Supreme Court, and assigns error.

*W. K. McLean and Vonno L. Gudger for plaintiff, appellant.*

*W. T. Joyner and Jones, Ward & Jones for defendant, appellee.*

Per Curiam.

Petition for removal presents almost identical questions based on parallel facts considered by this Court in *Tate v. R. R.,*205 N. C., 51, 169 S. E., 816. On that decision, the judgment below is

Affirmed.
<Page>

                                                                     EXHIBIT 4.1



                          CERTIFICATE OF AMENDMENT TO THE
                 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
                                       OF
                             ALLEGIANCE TELECOM, INC.
                              *      *      *      *


         The undersigned, being the Secretary of Allegiance Telecom, Inc., a
corporation duly organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "Corporation"), DOES HEREBY
CERTIFY as follows:

         FIRST: The Board of Directors of the Corporation adopted the
resolution set forth below proposing an amendment to the Amended and Restated
Certificate of Incorporation of the Corporation (the "Amendment") and directed
that the Amendment be submitted to the stockholders of the issued and
outstanding shares of capital stock of the Corporation entitled to vote
thereon for its consideration and approval:

         RESOLVED, that the Amended and Restated Certificate of Incorporation
         of the Corporation be, and hereby is, amended in accordance with
         Section 242 of the Delaware General Corporation Law by replacing Part
         A of ARTICLE IV thereof with the following:

               "Part A. General. The maximum number of shares of capital stock
               that the Corporation is authorized to have outstanding at any
               one time is 751,000,000 shares, consisting of: (i) 1,000,000
               shares of Preferred Stock, par value $0.01 per share (the
               "Preferred Stock"); and (ii) 750,000,000 shares of Common
               Stock, par value $0.01 per share (the "Common Stock")."

         SECOND: That the Certificate of Amendment has been approved by the
Corporation pursuant to a resolution of its Board of Directors and duly
adopted by the majority of the shares outstanding entitled to vote thereon.

         THIRD: The Certificate of Amendment was duly adopted in accordance
with the provisions of Sections 242 and 222 of Delaware General Corporation
Law.

         FOURTH: That the Certificate of Amendment shall become effective on
the date this Certificate of Amendment is duly filed with the Secretary of
State of the State of Delaware.

         IN WITNESS WHEREOF, the undersigned does hereby declare and certify
under penalties of perjury that this Certificate of Amendment to the Amended
and Restated Certificate of Incorporation of the Corporation is the act and
deed of the Corporation and the facts stated herein are true, and accordingly
has hereunto set his hand this 27 day of August, 2001.

                              ALLEGIANCE TELECOM, INC.,
                              a Delaware corporation
                              By:     /s/ Mark B. Tresnowski
                                        Mark B. Tresnowski,
                                      Senior Vice President, General Counsel
                                      and Secretary
#### Cynthia Dimond, Respondent, v Olivia Verdon et al., Appellants.

[773 NYS2d 603]

*719In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered April 23, 2003, which denied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction.

Ordered that the order is affirmed, without costs or disbursements.

The defendants raised the affirmative defense of lack of personal jurisdiction in their answer. Almost three months after serving their answer, the defendants moved to dismiss the complaint on the ground that the summons and complaint were not properly served. Having failed to move to dismiss on that ground within 60 days after serving their answer, the defendants waived that defense *(see*CPLR 3211 [e]; *Gillespie v Perrone,*276 AD2d 526 [2000]; *Amerasia Bank v Saiko Enters.,*263 AD2d 519, 520 [1999]; *Alaska Seaboard Partners v Anninos,*259 AD2d 572 [1999]; *DeSena v HIP Hosp.,*258 AD2d 555 [1999]). The purported rejection of the defendants’ answer did not extend the 60-day time limit. Prudenti, P.J., Florio, H. Miller, Schmidt and Cozier, JJ., concur.
## In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

No. 02

- 19

- 00467

- CR

A NGEL R UTH B ROOKER

, Appellant

V

.

T HE S TATE OF T EXAS §

§

§

§

§ On Appeal from the 355th District

Court

of Hood County ( CR13870 )

October 22, 2020

Memorandum Opinion by Justice

Birdwell

(nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that there

was error in the trial co urt’s judgment. The judgment , incorpor ated order to

withdraw funds, and the bill of costs are modified to delete the $30 “ Motion to

Proceed/Revoke Fee

, ” leaving $951 as the total balance du e. It is ordered that the

judgment of the trial court is affirmed as modified.

SECOND DISTRICT COURT OF APPEALS

By /s/ Wade Birdwell

Justice Wade Birdwell
#### STATE v. BURNETT WILLIAMS, Alias BILL WILLIAMS.

(Filed 10 October, 1945.)

Criminal Law § 80—

Where the record on appeal in a capital case only purports to be a transcript of the record proper in the court below, without case on appeal or assignments of error, and prisoner’s counsel, in argument and brief, states that appeal as certified fails to show arraignment or plea by his client, and on *certiorari*and return the minutes of the trial court show arraignment and plea of not guilty, and the record in other respects appearing regular and proper, .in the absence of error on the face of the record as corrected, we find no error.

Appeal by defendant from *Thompson, J.,*at March-April Term, 1945, of Lee.

Criminal prosecution upon indictment charging defendant with the crime of rape of a named female person.

Verdict: Guilty of rape as charged in the bill of indictment.

Judgment: Death by asphyxiation in specific manner provided by law.

Defendant appeals therefrom to Supreme Court and assigns error.

*Attorney-General McMullan and Assistant Attorneys-General Rhodes, Moody and Tucker for the State.*

*C. J. Gates And R. 0. Everett for defendant, appellant.*

*476Winborne, J.

The record on this appeal only purports to be a transcript of the record proper of the proceedings in the case in Superior Court. It contains no case on appeal and no assignment of error. But in brief filed and in oral argument in this Court in his behalf, defendant makes the point that the record on this appeal as originally certified fails to show that defendant was arraigned, or was given an opportunity to plead in Superior Court, which are essential in judicial procedure in capital cases, citing authorities.

However, upon the call of calendar of cases from the fourth judicial district for argument in this Court, the Attorney-General for the State suggested diminution of the record, and moved for *ceriiorari*in accordance with usual practice. The writ was granted, and upon return thereto under date of 29 September, 1945, the Clerk of Superior Court of Lee County certifies “that the minutes of Lee County Superior Court for March-April Term, 1945, show the following on Superior Court Minute Docket #9 at page 251: State *v.*Burnette Williams #5763. Defendant Burnette Williams brought into open court and duly arraigned and plead not guilty and placed himself for trial on God and his country. Gavin & Jackson of local Bar appointed to represent defendant at this trial. Court ordered special venire which was drawn in open court and in presence of- defendant,” and that “The minutes for this day, March 26th, 1945, in which the above record appears, is signed C. E. Thompson, Judge Presiding.”

Therefore, the point made by defendant must fail.

The record in other respects appears to be regular and in accordance with the course and practice in the courts.

Hence, in absence of apparent error upon the face of the record as corrected, we find in judgment below

No error.
**EXHIBIT 23.1**

 

**Independent Auditors’ Consent**

 

The Board of Directors 

Genaera Corporation: 

 

We consent to theincorporation by reference in the registration statement Nos. 33-52882, 33-71984, 333-10889, 333-62073, and 333-69824 on Form S-8 and registration statement Nos. 33-69544, 33-99528, 333-09927, 333-14555, 333-38271, 333-49681, 333-44312, 333-62040and 333-73798 on Form S-3 of Genaera Corporation (formerly Magainin Pharmaceuticals Inc.) of our report dated February 14, 2003, with respect to the consolidated balance sheets of Genaera Corporation and subsidiary as of December 31, 2002 and 2001,and the related consolidated statements of operations, changes in stockholders’ equity and comprehensive loss, and cash flows for each of the years in the three-year period ended December 31, 2002, which report appears in the December 31,2002 Annual Report on Form 10-K of Genaera Corporation. 

 

/s/    KPMG LLP 

 

Princeton,New Jersey 

March 31, 2003
#### Eliza Nearing, Respondent, v. Oliver B. Brown, Appellant.

Judgment of County Court reversed and that of justice affirmed, with costs. Opinion by

Williams, J.
#### Martha W.Leach,Respondent,v.James A. Flack, Appellant.

— Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.
United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-50606 

Summary Calendar 

____________ 

United States of America, 

Plaintiff—Appellee, 

versus

Carlos Guillermo Leon-Hernandez, 

Defendant—Appellant. 

______________________________ 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 3:22-CR-1835-1 

______________________________ 

Before Davis, Ho, and Ramirez, Circuit Judges.

Per Curiam:*

Carlos Guillermo Leon-Hernandez was convicted of conspiracy to 

transport aliens and the transportation of aliens. On appeal, LeonHernandez challenges the denial of his motion to suppress evidence obtained 

following his detention by border patrol agents. He argues that the district 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

April 1, 2024 

Lyle W. Cayce 

Clerk 

Case: 23-50606 Document: 61-1 Page: 1 Date Filed: 04/01/2024
No. 23-50606 

2 

court erred in determining the moment he was seized and that agents lacked 

reasonable suspicion for the seizure. 

Whether a person has been seized or detained under the Fourth 

Amendment is a factual finding that is reviewed for clear error. United States 

v. Mask, 330 F.3d 330, 334-35 (5th Cir. 2003). “Whether law enforcement 

has reasonable suspicion to conduct an investigatory stop is a legal conclusion 

that is reviewed de novo.” United States v. Alvarez, 40 F.4th 339, 344 (5th 

Cir. 2022). We generally defer to factfinders who hear live testimony and 

uphold the district court’s ruling if there is any reasonable view of the 

evidence supporting it. See United States v. Wright, 57 F.4th 524, 530 (5th 

Cir. 2023). In light of the evidence and all the circumstances surrounding the 

incident, we cannot say that the district court clearly erred in determining 

that Leon-Hernandez was seized when an agent demanded his car keys, as 

prior to that, there was not a sufficient show of authority to constitute 

detention. See Wright, 57 F.4th at 530-32. 

Next, we consider whether the totality of the circumstances supports 

a reasonable suspicion of criminal activity justifying the seizure. See Alvarez, 

40 F.4th at 345. We conclude there was no error, given the fictitious paper 

license plate on Leon-Hernandez’s vehicle; an agent’s knowledge, from his 

experience with the Border Patrol, that vehicles with alien smuggling loads 

often used fictitious paper license plates; the tip from a confidential source, 

whom the agent had known for 12 or 13 years, about unknown people coming 

and going at a specific address late at night; the agent’s knowledge that the 

area where the residence was located had a large number of stash houses for 

alien smuggling schemes; and the observation of four people in the back seat 

of Leon-Hernandez’s vehicle, which generally had capacity for only three. 

AFFIRMED. 

Case: 23-50606 Document: 61-1 Page: 2 Date Filed: 04/01/2024
*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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 97-10604

Summary Calendar

_______________________

DANIEL OCHOA-FLORES,

Petitioner-Appellant,

versus

JOHN M. TOMBONE,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:97-CV-551-T)

_________________________________________________________________

May 13, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

Daniel Ochoa-Flores, a federal prisoner (#27286-077),

appeals the summary dismissal of his 28 U.S.C. § 2241 petition for

writ of habeas corpus. In the petition, he contended that he was

entitled to early release pursuant to 18 U.S.C. § 3621(e)(2)(B)

because he had completed a Bureau of Prisons (“BOP”) drug-abuse

treatment program.
2

For the first time on appeal, Ochoa-Flores contends that

the BOP violated his ex post facto rights because it retroactively

applied a regulation, 28 C.F.R. § 550.58, which excluded INS

detainees from early-release consideration. He also argues for the

first time on appeal that the BOP violated his due process rights

by frustrating his “settled expectations” regarding early release.

This court declines to review those claims. See United States v.

Rocha, 109 F.3d 225, 229 (5th Cir. 1997) (declining to address

claims raised for the first time on appeal in 28 U.S.C. § 2255

action). Even if we reviewed them for plain error, we would

decline to grant relief because no manifest miscarriages of justice

has been shown. United States v. Olano, 507 U.S. 725 (1993).

Ochoa-Flores also contends that the government should be

equitably estopped from excluding him from early release, because

he relied on his detriment on BOP promises in attending the drugabuse treatment sessions. he has shown neither that government

officials engaged in affirmative misconduct in withholding earlyrelease eligibility from him nor that he was substantially injured

as a result of attending the treatment program. See Taylor v. U.S.

Treasury Dep’t, 127 F.3d 470, 474 (5th Cir. 1997). The claim is

meritless.

AFFIRMED.
## Summary Measures and Graphs

- Individual Provisions
- Retirement Age

### **Description of Proposed Provision:						C1.7: Increase the normal retirement age (NRA) 3 months per year for those age 62 starting in 2024 and ending in 2031 (NRA reaches 69 for those age 62 in 2031). Increase the age up to which delayed retirement credits may be earned from 70 to 72 on the same schedule. Increase the widow(er) NRA in the same manner. The earliest eligibility age (EEA) for worker's and widow(er)'s benefit is unchanged.**

|  |  |
|--|--|
II 

117TH CONGRESS 

1ST SESSION S. 339 

To amend the Controlled Substances Act to list fentanyl-related substances 

as schedule I controlled substances, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 22, 2021 

Mr. PORTMAN (for himself and Mr. MANCHIN) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

A BILL 

To amend the Controlled Substances Act to list fentanylrelated substances as schedule I controlled substances, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Federal Initiative to 

5 Guarantee Health by Targeting Fentanyl Act’’. 

6 SEC. 2. FENTANYL-RELATED SUBSTANCES. 

7 (a) IN GENERAL.—Schedule I of section 202(c) of 

8 the Controlled Substances Act (21 U.S.C. 812(c)) is 

9 amended by adding at the end the following: 


kjohnson on DSK79L0C42PROD with BILLS
2 

•S 339 IS

1 ‘‘(e)(1) Unless specifically exempted or unless listed 

2 in another schedule, any material, compound, mixture, or 

3 preparation which contains any quantity of fentanyl-re4 lated substances, or which contains their salts, isomers, 

5 and salts of isomers whenever the existence of such salts, 

6 isomers, and salts of isomers is possible within the specific 

7 chemical designation. 

8 ‘‘(2) In paragraph (1), the term ‘fentanyl-related sub9 stances’ includes any substance that is structurally related 

10 to fentanyl by 1 or more of the following modifications: 

11 ‘‘(A) By replacement of the phenyl portion of 

12 the phenethyl group by any monocycle, whether or 

13 not further substituted in or on the monocycle. 

14 ‘‘(B) By substitution in or on the phenethyl 

15 group with alkyl, alkenyl, alkoxyl, hydroxyl, halo, 

16 haloalkyl, amino, or nitro groups. 

17 ‘‘(C) By substitution in or on the piperidine 

18 ring with alkyl, alkenyl, alkoxyl, ester, ether, 

19 hydroxyl, halo, haloalkyl, amino, or nitro groups. 

20 ‘‘(D) By replacement of the aniline ring with 

21 any aromatic monocycle whether or not further sub22 stituted in or on the aromatic monocycle. 

23 ‘‘(E) By replacement of the N-propionyl group 

24 by another acyl group.’’. 


kjohnson on DSK79L0C42PROD with BILLS
3 

•S 339 IS

1 (b) NO MINIMUM SENTENCE.—Section 401(b)(1)(C) 

2 of the Controlled Substances Act (21 U.S.C 841(b)(1)(C)) 

3 is amended by adding at the end the following: ‘‘Any min4 imum term of imprisonment required to be imposed under 

5 this subparagraph shall not apply with respect to a con6 trolled substance described in subsection (e)(1) of schedule 

7 I.’’. 

Æ 


kjohnson on DSK79L0C42PROD with BILLS
#### Matter of Final Accounting of Joseph B. Spencer, Trustee, etc.

Order alarmed, with costs and disbursements.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.
#### WINNIE WOOD WALSTON et al. v. SUSAN MORGAN et al.

(Filed 28 February, 1940.)

Appeal by plaintiffs from *Nimochs, J.,*at November Term, 1939, of PASQUOTANK.

Petition for partition.

Petitioners and respondents are owners of a tract of land in Pasquo-tank County containing approximately 78 acres. Those owning % in interest prayed for actual partition of 56 acres and a sale of the remaining 22 acres. The owners of % in interest alleged that partial partition under C. S., 3227, could not be had without substantial loss and prayed for a sale of the whole tract.

Upon facts found by the court favorable to the view of those holding the minority interest the entire tract was ordered to be sold for partition, it being recited in the judgment that “upon the foregoing, the court being of the opinion that a sale of said lands is proper and necessary, and that, as a matter of law, the court is without right to order a parti-tition according to either of the modes or methods proposed and requested by the petitioners.” From this order the petitioners appeal.

*R. Clarence Dozier for plaintiffs and certain respondents, appellants.*

*McMullan & McMullan for appellees.*

*791Per Curiam.

Tbe judge of tbe Superior Court concluded tbat a sale of tbe entire tract was necessary and proper on tbe facts found and set out in tbe record. What bas occasioned tbe appeal is tbe further statement in tbe judgment tbat tbe court was without right, as a matter of law, to order actual partition in part and sale in part. This, however, is predicated “upon tbe foregoing” and tbe court’s opinion based thereon tbat a sale of tbe whole tract was “proper and necessary.” As thus understood, it would seem tbat only a discretionary order is presented for review. *Taylor v. Carrow,*156 N. C., 6, 72 S. E., 76.

Affirmed.
### Proposed Provision: B7.13. Eliminate the DI 5-month waiting period for disabled workers and disabled surviving spouses, and eliminate the 24-month Medicare (HI) waiting period for individuals who have become entitled to Social Security disability benefits.  Effective with 2024 applications.

back