alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### Bethany V. BOWEN, Appellant, v. Honorable Jeffre CHEUVRONT, in his official capacity as Justice of the District Court for the State of Nebraska, Appellee. North Dakota State’s Attorneys Association, Amici on behalf of Appellant.

No. 07-3487.

United States Court of Appeals, Eighth Circuit.

Submitted: March 27, 2008.

Filed: April 3, 2008.

Rehearing and Rehearing En Banc Denied May 16, 2008.

Wendy J. Murphy, Boston, MA, Sue Ellen Wall, Lincoln, NE, for Plaintiff.

*861Timothy R. MacDonald, Katherine A. RossDenver, CO, Melvin Spaeth, Matthew D. Michael, Wells C. Bennett, Nellie C. Wigfall, Washinton, DC, for amicus party in support of appellant.

Before RILEY, BEAM, MELLOY, Circuit Judges.

PER CURIAM.

Pamir Safi was charge with the felony sexual assault of Bethany Bowen in Nebraska state court. A motion in limine was granted by the trial judge with regard to several evidentiary matters. Thereafter, a trial was held which resulted in a mistrial. A second trial was scheduled. Prior to the second trial, the trial judge renewed some or all of these earlier rulings prohibiting the use of certain terms during the course of the testimony. Prior to the completion of voir dire and jury selection, the second trial also resulted in a mistrial because of pretrial publicity arising from Ms. Bowen’s objections to the trial court’s evidentiary rulings. A third trial was scheduled but before it proceeded, Ms. Bowen filed this action in the federal district court seeking remedies based upon purported violations of her constitutional rights. After Ms. Bowen responded to a “show cause” order, the district court dismissed the case. After requesting reconsideration, which was denied, Ms. Bowen then filed a notice of appeal. The matter is now before us for consideration on our own motion.

The record clearly establishes that the state trial judge was never served summons in this matter. As a result, neither the district court nor this court has personal jurisdiction over the defendant/appellee. More importantly, though, the state criminal prosecution was dismissed on January 4, 2008, mooting all issues initially presented to the federal court.

In *U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership,*513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994), Justice Scalia, speaking for a unanimous Court stated that “ ‘[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way [to the Supreme Court] or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.’ ” *Id.*at 22, 115 S.Ct. 386 (quoting *United States v. Munsingwear, Inc.,*340 U.S. 36, 40, 71 S.Ct. 104, 95 L.Ed. 36 (1950)). The Court further clarified that “mootness by happenstance provides sufficient reason to vacate.” *Id.*at 25 n. 3, 115 S.Ct. 386. Following the mandate of the Supreme Court and without consideration of any rulings of the district court or of any substantive issues before this court, we vacate the judgment of the district court and remand this matter with directions to dismiss.
#### The People of the State of New York, Respondent, v Carlos Villanueva, Appellant.

[829 NYS2d 1]

*230Judgment, Supreme Court, Bronx County (Robert H. Straus, J.), rendered August 29, 2003, convicting defendant, after a jury trial, of gang assault in the second degree, and sentencing him, as a second violent felony offender, to a term of 12 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning credibility. The evidence, along with reasonable inferences to be drawn therefrom, showed that during an altercation between defendant and the victim, defendant’s companion struck the victim in the face with a bottle while defendant was holding onto the victim. Following the blow, defendant proceeded to repeatedly punch the victim in the face and when the victim fell to the ground, defendant and two others continued to kick him in the face, causing serious physical injury (Penal Law § 120.06). Defendant’s accomplice liability and his intent to cause, at the very least, physical injury *(see id.)*can be readily inferred from his actions *(People v Allah,*71 NY2d 830 [1988]; *People v Santos,*14 AD3d 411 [2005], *lv denied*4 NY3d 856 [2005]).

The court properly precluded defendant from eliciting testimony that at the end of the incident, he made a self-exculpatory comment to his companion. Although, among other theories, defendant offered this statement as evidence of his state of mind, it was essentially a factual assertion of his innocence constituting hearsay *(People v Reynoso,*73 NY2d 816, 819 [1988]; *People v Perry,*223 AD2d 479 [1996]). Furthermore, this evidence was not admissible under any other theory. The court’s ruling did not impair defendant’s right to present a defense *(see Crane v Kentucky,*476 US 683, 689-690 [1986]).

We perceive no basis for reducing the sentence. Concur— Saxe, J.P, Sullivan, Williams, Sweeny and Malone, JJ.
#### The People of the State of New York, Respondent, v Malik Yusuf, Also Known as Yusuf Ashford, Appellant.

[972 NYS2d 522]

Appeal from judgment of resentence, Supreme Court, New York County (Daniel E Conviser, J), rendered July 24, 2012, resentencing defendant, as a second felony drug offender, to an aggregate term of years, unanimously dismissed as moot.

Since defendant has completed his entire sentence, including postrelease supervision, his claim of improper resentencing is moot *(see People v Hults,*231 AD2d 836 [3d Dept 1996]), and we do not find that the exception to the mootness doctrine applies. In any event, defendant’s claim is unavailing. Concur — Tom, J.P., Sweeny, Saxe, Freedman and Clark, JJ.
#### In the Matter of Gambino Ford, Inc., Appellant, v Mark E. Mundy, Respondent.

[825 NYS2d 419]

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered October 14, 2005 in a proceeding pursuant to CPLR article 75. The order denied the petition to vacate an arbitration award.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Contrary to petitioner’s contention, the arbitration award is “in accord with due process and supported by adequate evidence in the record” and is not arbitrary or capricious *(Motor Veh. Mfrs. Assn. of U.S. v State of New York,*75 NY2d 175, 186 [1990]; *see Matter of Amenia Motors, Inc. v Bartgis,*28 AD3d 758 [2006]; *Martin Motor Sales, Inc. v Anglero,*13 AD3d 281, 282 [2004]; *Matter of Courtesy Lincoln Mercury v Allen,*240 AD2d 574 [1997]). Further, the award complies with the substantive provisions of General Business Law § 198-b, known as the Used Car Lemon Law *(see generally Amenia Motors, Inc.,*28 AD3d 758 [2006]; *Martin Motor Sales, Inc.,*13 AD3d at 282). Present—Martoche, J.P., Smith, Centra and Green, JJ.
666 A.2d 163

#### IN THE MATTER OF STEPHEN A. PEPE, AN ATTORNEY AT LAW.

November 8, 1995.

*ORDER*

This matter having been duly presented to the Court, it is ORDERED that STEPHEN A. PEPE of TUCKERTON, who was admitted to the bar of this State in 1971, and who was suspended from the practice of law for a period of three months, effective July 24,1995, by Order of this Court dated June 30,1995, be restored to the practice of law, effective immediately.
**Exhibit 23.1**

 

**CONSENT OF GUMBINER SAVETT INC.,**

**INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM**

 

Axesstel, Inc. 

San Diego, California 

 

We hereby consent to the incorporation byreference in the Registration Statement on Form S-3 (File No. 333-115168) of our report dated January 28, 2005, relating to the consolidated financial statements of Axesstel, Inc., for the years ended December 31, 2004 and 2003 which appear in theCompany’s Annual Report on Form 10-KSB for the year ended December 31, 2004. 

 

 

Santa Monica, California 

February 3, 2005
<PAGE>


TSX SYMBOL:   HLG.C
TSX SYMBOL: HLG.PR.B

March 15, 2005

CORRECTION FROM SOURCE-HOLLINGER INC:

The release issued on March 15, 2005 at 8:57 a.m. EST was issued in error.
Please refer instead to the release issued on March 14, 2005 at 21:05 p.m. EST.


-30-

FOR FURTHER INFORMATION PLEASE CONTACT:
HILL & KNOWLTON
MEDIA CONTACT:
LARRY PARNELL
(416) 413-4623
larry.parnell@hillandknowlton.ca
www.hollingerinc.com
* Pursuant to 5 TH C IR . R. 47.5, the Court has determined th a t

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 FOR THE FIFTH CIRCUIT

No. 97-41042 Summary Calendar

BEVERLY ANN MARTIN, Plaintiff-Appellant,

VERSUS

UT HEALTH CENTER, Defendant-Appellee.

Appeal from the United States District Court For the Eastern District of Texas

(6:97-CV-527) July 20, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM: * The Plaintiff, Beverl y Ann Martin, sued the Defendant, UT Healt h Center, alleging sex discrimination in violation of Title
VII. The district court granted the Defendant’s Motion for Dismissal because the Plaintiff did not file a timely charge with the Equal Employment Opportunity Commission (“EEOC”), as required by 42 U.S.C. § 2000e-5(e)(1). Title VII requires the aggrievedparty to file a complaint with the EEOC within three hundred days

after the alleged unlawful em ployment practice occurred. S ee 42 U.S.C. § 2000e-5(e)(1). The plaintiff failed to file a complaint with the EEOC within the three hundred day jurisdictional window. Consequently, the district did not err by ordering dismissal.
AFFIRMED.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7944
RAPHAEL S. TRICE, Petitioner - Appellant, versus EDWARD F. REILLY, JR., Chairman; UNITED STATES PAROLE COMMISSION, Respondents - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge. (3:06-cv-00078-REP) Submitted: June 27, 2007 Decided: July 19, 2007 Before TRAXLER, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Raphael S. Trice, Appellant Pro Se. Robert P. McIntosh, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit.- 2 - PER CURIAM: Raphael S. Trice, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2000) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Trice v. Reilly , No. 3:06-cv-00078-REP (E.D. Va. Nov. 13, 2006). 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.

AFFIRMED
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</TABLE>
#### Heritage Realty Advisors, LLC, et al., Respondents, v Mohegan Hill Development, LLC, et al., Appellants.

[870 NYS2d 29]

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered October 16, 2007, which denied defendants’ motion pursuant to CELR 3211 (a) (5) to dismiss the complaint, *436unanimously reversed, on the law, with costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The dismissal in a prior Westchester County action, pursuant to CPLR 3211 (a) (1) and (7), of plaintiffs’ breach of contract action as against defendant Mohegan Hill Development, LLC (MHD), bars the instant action for, inter alia, tortious interference with a contract and unjust enrichment, as to all defendants *(see generally O’Brien v City of Syracuse,*54 NY2d 353, 357 [1981]). Not only are the two actions based on the same transactions, but the dismissal of the prior action, to the extent that it found that MHD was not in existence at the time the compensation agreements at issue were entered into, was not merely because of technical pleading defects, but on the merits *(see Lampert v Ambassador Factors Corp.,*266 AD2d 124 [1999]; *Feigen v Advance Capital Mgt. Corp.,*146 AD2d 556, 558-559 [1989]). Dismissal of this action as against the remaining defendants is warranted since they are in privity with MHD *(see Gramatan Home Invs. Corp. v Lopez,*46 NY2d 481, 485 [1979]). Concur—Andrias, J.E, Saxe, Sweeny, Catterson and Moskowitz, JJ.
Order filed, February 08, 2017.

In The

Fourteenth Court of Appeals

____________

NO. 14-16-00972-CV

____________

IN THE ESTATE OF ANNIE RUTH DANFORD. DECEASED, Appellant

On Appeal from the County Court at Law No 2 & Probate Court

Brazoria County, Texas

Trial Court Cause No. PR36600

ORDER

The reporter’s record in this case was due January 09, 2017. See Tex. R. 

App. P. 35.1. The court has not received a request to extend time for filing the 

record. The record has not been filed with the court. Because the reporter’s record 

has not been filed timely, we issue the following order.

We order Sarah Caldwell, the official court reporter, to file the record in 

this appeal within 30 days of the date of this order. 

PER CURIAM
#### In the Matter of Doniele J.T., Appellant, v Clair H.G., Respondent. In the Matter of Clair H.G., Respondent, v Doniele J.T., Appellant.

(Appeal No. 2.)

[964 NYS2d 55]

Appeal from an order of the Family Court, Steuben County (Marianne Furfure, A.J.), entered September 28, 2011 in proceedings pur*1450suant to Family Court Act article 6. The order, among other things, awarded primary physical placement of the subject children to Clair H.G.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Present—Smith, J.P, Peradotto, Lindley, Valentino and Whalen, JJ.
SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1063 

TP 10-02366 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ. 

 

IN THE MATTER OF MICHAEL ARGENTIERI, PETITIONER, 

V ORDER

SUSAN CONNELL, SUPERINTENDENT, ONEIDA 

CORRECTIONAL FACILITY, RESPONDENT. 

MICHAEL ARGENTIERI, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF

COUNSEL), FOR RESPONDENT. 

 

Proceeding pursuant to CPLR article 78 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial

Department by order of the Supreme Court, Oneida County [Anthony F.

Shaheen, J.], entered October 1, 2010) to review a determination of

respondent. The determination found after a Tier II hearing that

petitioner had violated an inmate rule. 

It is hereby ORDERED that said proceeding is unanimously

dismissed without costs as moot (see Matter of Free v Coombe, 234 AD2d

996).

Entered: November 10, 2011 Patricia L. Morgan

Clerk of the Court
#### Willie F. PARSON, III, Plaintiff-Appellant, v. Cecil LLOYD, A.J. Tomlinson, Defendants-Appellees.

No. 06-6732.

United States Court of Appeals, Fourth Circuit.

Submitted: Sept. 22, 2006.

Decided: Oct. 24, 2006.

Willie F. Parson, III, Appellant Pro Se.

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

PER CURIAM:

Willie F. Parson, III, seeks to appeal the district court’s order dismissing his 42 U.S.C. § 1983 (2000) action under 28 U.S.C. § 1915A(b)(l) (2000) for failure to state a claim. The district court’s final order was entered on the docket on February 14, 2006. Parson’s notice of appeal was not received by the district court until April 17, 2006. According Parson the benefit of Fed. R.App. P. 4(c) and *Houston v. Lack,*487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the earliest date his notice of appeal may be deemed filed is April 11, 2006.

Although Parson’s notice of appeal was filed beyond the 30-day window for filing a timely notice of appeal, the cover letter Parson enclosed with his notice states that he was unable to comply with the 30-day deadline because he did not receive the court’s final order until April 10, 2006. This letter, which was submitted both within thirty days of the expiration of the appeal period and within seven days of the date Parson asserts he received notice of the district court’s entry of a final order, may be properly construed as either a motion for an extension of time in which to note an appeal under Fed. R.App. P. 4(a)(5) or as a motion to reopen the time to note an appeal under Fed. R.App. P. 4(a)(6).

Accordingly, we remand the case to the district court for the limited purpose of determining whether Parson can satisfy the requirements for either an extension of time or a reopening of the appeal period. The record, as supplemented, will then be returned to this court for further consideration.

*REMANDED.*