alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### Ex Parte Mac Henry Davis.

No. 25,730.

February 27, 1952.

Relator’s Motion for Rehearing Denied April 9, 1952.

Relator’s Second Motion for Rehearing Denied (Without Written Opinion) April 30, 1952.

Writ of Certiorari Denied by Supreme Court of the United States June 2, 1952.

Relator represented himself.

*George P. Blackburn,*State’s Attorney, Austin, for the state.

WOODLEY, Judge.

Relator, an inmate of the state penitentiary, filed his application for habeas corpus before Hon. Max M. Rogers, Judge of the 12th Judicial District of Texas. Judge Rogers heard the testimony and ordered the writ issued, returnable to this court.

Appellant’s confinement is' by virtue of a conviction in cause No. 16,437 in the district court of Jefferson County of the offense of robbery with firearms, he having been on October 8, 1946, sentenced to a term of 25 years in the penitentiary.

The judgment of conviction in said cause shows that relator appeared “in person and by counsel,” and that upon his plea of guilty, a jury assessed his punishment at 25 years in the penitentiary.

Appellant is entitled to have the sentence construed as an indeterminate sentence of not less than 5 years nor more than *37125 years, though the sentence may not be reformed in this collateral proceeding. See Ex Parte Brewer 156 Texas Crim. R. 369, 242 S.W. (2) 430.

Appellant testified in the hearing before Judge Rogers that he had no counsel and that none was appointed for him in cause No. 16,437.

Such testimony is not sufficient to overcome the above recitation found in the judgment. Further, relator’s testimony is contradicted by other facts and circumstances in the record, including the affidavit of the trial judge.

Relator’s confinement being lawful, the relief prayed for is denied.

Opinion approved by the court.

on motion for rehearing.

MORRISON, Judge.

In our original opinion, we said that relator was entitled to have his 25-year sentence construed as an indeterminate sentence of not less than 5 nor more than *25*years. He now asks that we reform such sentence. This is not the proper tribunal for such motion. Relator may move the trial court to do so. But whether this is done or not, the penitentiary authorities and the Texas Board of Pardons and Paroles will be controlled in their treatment of relator, as they are in all cases, just as if the reformation had been effected. The provisions of Article 775, C. C. P., are mandatory.

Relator’s motion for rehearing is overruled.
**PROMISSORY
      NOTE**





February
      9, 2000








FOR
      VALUE
      RECEIVED, the undersigned (“Maker”) hereby promises to pay to the order of
      Electric Fuel Corporation, a Delaware corporation (“EFC”), twenty-five years
      from the date of this note, the principal sum of Three Hundred Twenty-Nine
      Thousand One Hundred Twenty-Three dollars (U.S. $329,163), together with simple
      interest from the date hereof on the principal amount at a per annum rate equal
      to 1% over the then-current federal funds rate announced from time to time
      by
      the *Wall
      Street Journal* .
      The
      Maker will accumulate such interest until the principal has been paid in full.
      All accrued but unpaid interest shall be due and payable at the stated or
      accelerated maturity hereof. This note may be prepaid in whole or in part at
      any
      time, without premium, penalty or prior notice.




In
      order
      to secure the prompt payment of the principal of, interest on, and all other
      amounts in respect of this Note as the same shall become due and payable, the
      Maker hereby pledges to EFC, and grants EFC a security interest in, the 131,665
      shares (the “Pledged Shares”) of EFC’s Common Stock, $.01 par value, acquired
      with this note. The recourse under this note shall only be to the Pledged
      Shares.




To
      perfect EFC’s security interest in the Pledged Shares, the Maker shall deliver
      to EFC the stock certificate or certificates representing the Pledged Shares,
      together with stock powers duly endorsed in blank. EFC shall release its
      security interest in the Pledged Shares in proportion to payment of principal
      and interest owed hereunder.




This
      note
      shall be governed by and construed in accordance with the laws (other than
      the
      conflict of law rules) of the State of New York.




IN
      WITNESS WHEREOF, I have hereunto set my hand as of this 9 th day of
      February, 2000.







Robert
      S.
      Ehrlich
Exhibit 32.2

 

**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 GCI, Inc. (the “Company”) on Form 10-Q for the period ended March 31, 2007 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, John M. Lowber, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 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. |
|--------|-----|-----------------------------------------------------------------------------------------------------------------------------------------------------|

 

 
| May 10, 2007 |   | /s/ John M. Lowber      |
|--------------|--------|-------------------------|
| Date         |   | John M. Lowber          |
|         |   | Chief Financial Officer |
|         |   | GCI, Inc.               |

 

 

 

1
#### Jose Juan RODRIGUEZ, Petitioner-Appellant, v. Ronald J. ANGELONE, Director of the Virginia Department of Corrections, Respondent-Appellee. Jose Juan Rodriguez, Petitioner-Appellant, v. Ronald J. Angelone, Director of the Virginia Department of Corrections, Respondent-Appellee.

Nos. 02-7194, 02-7559.

United States Court of Appeals, Fourth Circuit.

Submitted March 18, 2003.

Decided March 26, 2003.

*607Jose Juan Rodriguez, Appellant Pro Se. Leah Ann Darron, Assistant Attorney General, Richmond, Virginia, for Appellee.

Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished PER CURIAM opinion.

PER CURIAM.

Jose Juan Rodriguez seeks to appeal the district court’s order accepting the magistrate judge’s recommendation to deny relief on his 28 U.S.C. § 2254 (2000) petition, as well as the court’s order denying reconsideration. We have independently reviewed the record and conclude that Rodriguez has not demonstrated that reasonable jurists would find the district court’s assessment of his constitutional claims, or the court’s procedural rulings, debatable or wrong. *See Miller-El v. Cockrell,*537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); *see also Slack v. McDaniel,*529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Accordingly, we deny a certificate of appealability and dismiss these appeals. *See*28 U.S.C. § 2253(c) (2000). We dispense with 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.

*DISMISSED.*
#### Ex Parte James Harris Crossnoe.

No. 25058.

October 11, 1950.

*130
      *Gordon M. Burns,*Huntsville, for relator.

*George P. Blackburn,*State’s Attorney, Austin, for the state.

DAVIDSON, Judge.

Relator was, on January 20, 1945, upon his plea of guilty, convicted in the district court of Howard County, Texas, in five felony cases, with punishment assessed at two years’ confinement in the penitentiary in each case.

In passing sentence, the trial court made the following order in each case, viz:

“This sentence shall not run concurrent with any other sentence heretofore received.”

The penitentiary authorities construe this order as making the several sentences cumulative. Relator contends that the order is ineffective for that purpose and that the sentences are concurrent.

It is undisputed that if the sentences are cumulative, relator is not entitled to be discharged, and if concurrent, he has served the sentence imposed and is entitled to be discharged from custody.

By writ of habeas corpus to this court, relator seeks his outright discharge from custody.

Prior to the enactment of Art. 774, C. C. P., cumulation of punishment was unrecognized and unauthorized. Baker v. State, 11 Tex. App. 262. It was for the purpose of authorizing trial courts, in the exercise of their discretion, to cumulate punishments that Art. 774, C. C. P. was enacted.

■ Art. 774, C. C. P., in keeping with the express provisions thereof, has been given the construction that unless the trial *131court, by order, expressly makes cumulative the several punishments, they run concurrent. Ex Parte Davis, 71 Tex. Cr. R. 538, 160 S. W. 459; Ex Parte Whiteside, 141 Tex. Cr. R. 642, 150 S. W. 2d 1022.

It is in the light of this statute and the construction placed thereon that the order here before us must be appraised.

In the first instance, the power extended to trial courts by Art. 774, C. C. P. was to make cumulative sentences which otherwise would run concurrent. Unless and until the trial courts ordered the sentences to run cumulative, the mandate of the statute that they run concurrent was not disturbed.

Here, the trial court made no effort, by an express order to that effect, to cumulate the punishments imposed. Without such cumulative order, the trial court was powerless to contradict the statute (Art. 774, C. C. P.) by saying that the sentences should not run concurrent.

Secondly, the order of the trial court cannot be given the construction as cumulative because it is indefinite and uncertain, with no description of the sentences to be cumulated. Bland v. State, 145 Tex. Cr. R. 267, 167 S. W. 2d 761; Ex Parte Johnson, 153 Tex. Cr. R. 114, 218 S. W. 2d 200.

The conclusion is reached that the order of the trial court herein discussed did not operate to make cumulative the sentences against relator and that he is entitled to be discharged from custody under the sentences herein mentioned.

It is so ordered.

Opinion approved by the court.
#### In re: AUDRE INC., Audre Recognition Systems Inc., et al., Plaintiffs—Appellants, v. Donald Lundell, Defendant—Appellee.

No. 02-55535.

D.C. No. CV-01-01656-MLH.

United States Court of Appeals, Ninth Circuit.

*926Submitted March 5, 2003.*

Decided March 18, 2003.

Before T.G. NELSON, SILVERMAN, and MCKEOWN, Circuit Judges.

*

 This panel unanimously finds this case suitable for decision without oral argument. *See*Fed. R.App. P. 34(a)(2).

MEMORANDUM**

Appellants Audre Recognition Systems, Inc., et al. appeal the district court’s order affirming the bankruptcy court’s denial of Audre’s objection to Donald Lundell’s administrative expense claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm the district court’s ruling.

Because the parties are familiar with the facts, we will not recount them in detail except as necessary.

For purposes of an administrative claim, “[t]he claimant must show that the debt asserted to be an administrative expense (1) arose from a transaction with the debtor-in-possession as opposed to the preceding entity (or, alternatively, that the claimant gave consideration to the debtor-in-possession); and (2) directly and substantially benefitted the estate.” *Microsoft Corp. v. DAK Indus. (In re DAK Indus.),*66 F.3d 1091, 1094 (9th Cir.1995). Once the claimant has made a showing, the bankruptcy court has broad discretion to determine whether to grant such claims. *Burlington N. R.R. Co. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.),*853 F.2d 700, 707 (9th Cir.1988).

The bankruptcy court did not abuse its discretion in treating Lundell’s claim as an *927administrative expense, nor did it abuse its discretion in not holding an additional evidentiary hearing to determine the value of Lundell’s services to the estate. Lundell provided inherent benefit to the company by running the day-to-day operations; in addition, he supplied extensive evidence of his efforts and accomplishments during his tenure as CEO. Appellants never disputed Lundell’s declarations, nor did they offer any evidence to the contrary. *See Romley v. Sun Nat’l Bank (In re Two “S” Corp.), 875*F.2d 240, 242-43 (9th Cir.1989) (holding that when all the facts that should have been considered were before the bankruptcy court and not in dispute, an evidentiary hearing would serve no purpose).

Appellants’ second argument, that the bankruptcy court erred by not holding an evidentiary hearing to determine whether Lundell was a “professional person” under § 327 of the Bankruptcy Code, is raised for the first time on appeal to this court. Appellants raised various legal objections to Lundell’s claim, but never requested a hearing on whether Lundell was a “professional person.” As a result, appellants have waived their right to raise this issue. *See Maynard v. City of San Jose,*37 F.3d 1396, 1401 (9th Cir.1994).

AFFIRMED.

**

 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
**Exhibit 10.6.16.2**

February 11, 2008 

Mike Rogers 

717 Texas Ave 

Houston, TX 77002 

DearMr. Rogers: 

As you are aware, on May 15, 2006, Calpine Corporation (“Calpine”) and its debtor affiliates(collectively, the “Debtors”) received Bankruptcy Court approval of the Emergence Incentive Plan (the “EIP”), which provides variable cash awards to approximately select senior employees. Pursuant to the terms of the EIP, anincentive pool will be created according to certain metrics related to the valuation of Calpine both under the Debtors’ plan of reorganization and based on market value during a certain period after the effective date of the plan (the “EIPPool”), which, once created will be distributed to eligible employees solely at my discretion as chief executive of Calpine. 

Ascommunicated to you earlier, you have been chosen to be a participant in the EIP. This letter confirms my final intentions regarding distribution under the EIP. Accordingly, as of the date hereof, you are eligible to receive 6.50% of the EIP Poolonce the EIP Pool is funded. 

This proposed distribution percentage is a final and binding decision and cannot be altered except in theevent that you are terminated by Calpine for “Cause” or you voluntarily terminate without “Good Reason”, in which case you will forfeit any right to any distribution from the EIP Pool. You will remain eligible to receive theproposed distribution set forth herein if you resign for “Good Cause” or are terminated without “Cause”. The distribution out of the EIP Pool is expected to be made around May 9, 2008. 

I believe the Emergence Incentive plan recognizes and rewards our efforts toward a successful exit from bankruptcy. Fortunately for all of us, ourcombined efforts created a higher than expected adjusted enterprise value which will result in payments from the EIP that are more than competitive. 

I look forward to our continued shared success. Should you have any questions regarding the foregoing, please do not hesitate to contact me. 

Sincerely, 

/s/ Robert P. May 

Robert P. May 

Chief Executive Officer
I

104TH CONGRESS

1ST SESSION H. R. 860

To terminate the Office of the Surgeon General of the Public Health Service.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 8, 1995

Mr. DORNAN introduced the following bill; which was referred to the

Committee on Commerce

A BILL

To terminate the Office of the Surgeon General of the Public

Health Service.

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 ‘‘Office of Surgeon Gen5 eral Termination Act’’.

6 SEC. 2. TERMINATION OF OFFICE OF SURGEON GENERAL

7 OF PUBLIC HEALTH SERVICE.

8 With respect to the Office of the Surgeon General

9 of the Public Health Service—
2

•HR 860 IH

1 (1) all authorities and personnel of the Office

2 are transferred to the Assistant Secretary for Health

3 of the Department of Health and Human Services;

4 (2) all unobligated portions of budget authority

5 allocated for the Office are rescinded; and

6 (3) the Office, and the position of such Surgeon

7 General, are terminated.

Æ
```

[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 536 Referred in Senate (RFS)]

  1st Session
                                H. R. 536

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 15, 1995

   Received; read twice and referred to the Committee on Energy and 
                           Natural Resources

_______________________________________________________________________

                                 AN ACT

 
   To prohibit the use of Highway 209 within the Delaware Water Gap 
National Recreation Area by certain commercial vehicles, and for other 
                               purposes.

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

SECTION 1. PROHIBITION OF COMMERCIAL VEHICLES.

    (a) In General.--Effective at noon on September 30, 2005, the use 
of Highway 209 within Delaware Water Gap National Recreation Area by 
commercial vehicles, when such use is not connected with the operation 
of the recreation area, is prohibited, except as provided in subsection 
(b).
    (b) Local Business Use Protected.--Subsection (a) does not apply 
with respect to the use of commercial vehicles to serve businesses 
located within or in the vicinity of the recreation area, as determined 
by the Secretary.
    (c) Conforming Provisions.--(1) Paragraphs (1) through (3) of the 
third undesignated paragraph under the heading ``ADMINISTRATIVE 
PROVISIONS'' in chapter VII of title I of Public Law 98-63 (97 Stat. 
329) are repealed, effective September 30, 2005.
    (2) Prior to noon on September 30, 2005, the Secretary shall 
collect and utilize a commercial use fee from commercial vehicles in 
accordance with paragraphs (1) through (3) of such third undesignated 
paragraph. Such fee shall not exceed $25 per trip.

            Passed the House of Representatives March 14, 1995.

            Attest:

                                                ROBIN H. CARLE,

                                                                 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.

United States Court of Appeals

Fifth Circuit

FILED

April 21, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-50751

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN ANTUNEZ-PINEDA,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Western District of Texas

USDC No. DR-02-CR-748-1-AML

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

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

 Martin Antunez-Pineda appeals the sentence imposed following

his guilty plea conviction of being found in the United States

after deportation/removal in violation of 8 U.S.C. § 1326. 

Antunez-Pineda contends that 8 U.S.C. § 1326(a) and 8 U.S.C.

§ 1326(b) define separate offenses. He argues that the prior

conviction that resulted in his increased sentence is an element

of a separate offense under 8 U.S.C. § 1326(b) that should have

been alleged in his indictment. Antunez-Pineda maintains that he
No. 03-50751

-2-

pleaded guilty to an indictment which charged only simple reentry

under 8 U.S.C. § 1326(a). He argues that his sentence exceeds

the two-year maximum term of imprisonment which may be imposed

for that offense.

In Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), the Supreme Court held that the enhanced penalties in

8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses. The Court further held that the sentencing

provisions do not violate the Due Process Clause. Id. at 239-47. 

Antunez-Pineda acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been cast

into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). 

He seeks to preserve his argument for further review. 

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000). This court must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.” Dabeit, 231 F.3d at 984 (internal quotation marks and

citation omitted). The judgment of the district court is

AFFIRMED.

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. In its motion, the Government asks

that an appellee’s brief not be required. The motion is GRANTED. 

AFFIRMED; MOTION GRANTED.
Exhibit 13.1



CERTIFICATION PURSUANT TO

18 U.S.C.  §1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002







In connection with the Annual Report of Micrologix Biotech Inc. (the Company) on Form 20-F for the year ended April 30, 2003 as filed with the Securities and Exchange Commission on the date hereof (the Report), I, James M. DeMesa, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C.  §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 this Report fairly presents, in all material respects, the financial condition and results of operations of the Company.







James DeMesa



James M. DeMesa

President and Chief Executive Officer

September 17, 2003



A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.









---

Exhibit 13.2



CERTIFICATION PURSUANT TO

18 U.S.C. §1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002







In connection with the Annual Report of Micrologix Biotech Inc. (the Company) on Form 20-F for the year ended April 30, 2003 as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Arthur J. Ayres, Vice President Finance and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. §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 this Report fairly presents, in all material respects, the financial condition and results of operations of the Company.







Arthur Ayres

Arthur J. Ayres



Vice President Finance and Chief Financial Officer

September 17, 2003



A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.