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

MEMORANDUM OPINION

No. 04-10-00502-CR

IN RE Demarcus STEADMAN

Original Mandamus Proceeding1

PER CURIAM

Sitting: Karen Angelini, Justice

Phylis J. Speedlin, Justice

Marialyn Barnard, Justice

Delivered and Filed: July 21, 2010

PETITION FOR WRIT OF MANDAMUS DENIED

On July 7, 2010, relator Demarcus Steadman filed a petition for writ of mandamus,

complaining of the trial court’s failure to rule on his pro se motion to dismiss his appointed counsel.

However, in order to obtain a writ of mandamus compelling the trial court to consider and

rule on a motion, a relator must establish that the trial court: (1) had a legal duty to perform a nondiscretionary act; (2) was asked to perform the act; and (3) failed or refused to do so. In re Molina,

94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding) (per curiam). When a

properly filed motion is pending before a trial court, the act of giving consideration to and ruling

upon that motion is ministerial, and mandamus may issue to compel the trial judge to act. See 

1... This proceeding arises out of Cause No. 2009-CR-7043B, styled State of Texas v. Demarcus Steadman,

in the 227th Judicial District Court, Bexar County, Texas, the Honorable Philip Kazen presiding.
04-10-00502-CR

Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig.

proceeding). However, mandamus will not issue unless the record shows that a properly filed

motion has awaited disposition for an unreasonable amount of time. See id. It is relator’s burden

to provide this court with a record sufficient to establish his right to relief. Walker v. Packer, 827

S.W.2d 833, 837 (Tex. 1992); TEX. R. APP. P. 52.3(k), 52.7(a). 

The record before us fails to establish relator is entitled to the relief requested. Relator

indicates he filed his pro se motion to dismiss his appointed counsel on July 4, 2010, just three days

prior to filing this petition for writ of mandamus. A trial court has a reasonable time within which

to perform its ministerial duty. See Safety-Kleen, 945 S.W.2d at 269. Relator has not established

the motion has awaited disposition for an unreasonable amount of time. 

Because relator has not met his burden of providing a record establishing that a motion was

properly filed and has awaited disposition for an unreasonable amount of time, he has not provided

this court with grounds to usurp the trial court’s inherent authority to control its own docket. See

In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.—San Antonio 2004, orig. proceeding).

Accordingly, relator’s petition for writ of mandamus is denied. TEX. R. APP. P. 52.8(a). 

PER CURIAM

DO NOT PUBLISH

-2-
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-7770

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BARKLEY GARDNER, a/k/a Big Black,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Greenville. Malcolm J. Howard, 

Senior District Judge. (4:95-cr-00041-H-8)

Submitted: January 23, 2014 Decided: January 28, 2014

Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Barkley Gardner, Appellant Pro Se. Jennifer P. May-Parker, 

Assistant United States Attorney, Thomas Gray Walker, OFFICE OF 

THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Barkley Gardner seeks to appeal the district court’s 

order denying his motion to reconsider, which sought 

reconsideration of the denial of a 28 U.S.C. § 2255 (2012) 

motion. The order is not appealable unless a circuit justice or 

judge issues a certificate of appealability. 28 U.S.C. 

§ 2253(c)(1)(B) (2012). A certificate of appealability will not 

issue absent “a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the 

district court denies relief on the merits, a prisoner satisfies 

this standard by demonstrating that reasonable jurists would 

find that the district court’s assessment of the constitutional 

claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 

484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 

(2003). When the district court denies relief on procedural 

grounds, the prisoner must demonstrate both that the dispositive 

procedural ruling is debatable, and that the motion states a 

debatable claim of the denial of a constitutional right. Slack, 

529 U.S. at 484-85. 

We have independently reviewed the record and conclude 

that Gardner has not made the requisite showing. Accordingly, 

we deny a certificate of appealability and dismiss the appeal.

Additionally, we construe Gardner’s notice of appeal 

and informal brief as an application to file a second or 
3

successive § 2255 motion. United States v. Winestock, 340 F.3d 

200, 208 (4th Cir. 2003). In order to obtain authorization to 

file a successive § 2255 motion, a prisoner must assert claims 

based on either:

(1) newly discovered evidence that . . . would be 

sufficient to establish by clear and convincing 

evidence that no reasonable factfinder would have 

found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive 

to cases on collateral review by the Supreme Court, 

that was previously unavailable.

28 U.S.C. § 2255(h) (2012). Gardner’s claims do not satisfy 

either of these criteria. Therefore, we deny authorization to 

file a successive § 2255 motion.

We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process.

DISMISSED
exhibit10-12_031309.htm


    EXHIBIT
10.12

     

    

      AMENDMENTS
TO THE

      WENDY’S
INTERNATIONAL, INC. 2003 STOCK INCENTIVE PLAN

      


      WHEREAS,
Wendy’s International, Inc. (the “Company”) entered
into an Agreement and Plan of Merger, dated as of April 23, 2008 (the “Merger Agreement”),
with Triarc Companies, Inc., a Delaware corporation (“Triarc”), and Green
Merger Sub, Inc., an Ohio  corporation and a direct wholly-owned
subsidiary of Triarc (“Merger Sub” ),
pursuant to which Merger Sub will be merged with and into the Company at the
Effective Time (as defined in the Merger Agreement), with the Company as the
surviving corporation and a direct wholly-owned subsidiary of Triarc (the “Merger”);

      


      WHEREAS, the Company sponsors the
Wendy’s International, Inc. Wendy’s 1990 Stock Option Plan, the Wendy’s
International, Inc. Wendy’s WeShare Stock Option Plan, the Wendy’s
International, Inc. 2003 Stock Incentive Plan (the “2003 Plan”) and the
Wendy’s International, Inc. 2007 Stock Incentive Plan;

       

      WHEREAS,
Section 5.5(a)(v) of the Merger Agreement provides, in relevant part, that as
soon as practicable following the date of the Merger Agreement, the Compensation
Committee of the Board of Directors of the Company shall make such adjustments
and amendments with the consent of Triarc to or make such determinations with
respect to Wendy’s Stock Options (as defined in the Merger Agreement), Wendy’s
Share-Based Awards (as defined in the Merger Agreement) and Restricted Shares
(as defined in the Merger Agreement) as are necessary to implement the
provisions of Section 5.5(a) of the Merger Agreement; and

       

      WHEREAS,
in connection with the Merger the 2003 Plan is hereby amended as
follows,  effective as of the Effective Time:

      


      
        	
                1)  

              	
                References
      to the “Shares” throughout the 2003 Plan shall hereby be deemed references
      to shares of class A common stock, par value $0.10 per share, of Triarc
      Companies, Inc., and any other securities into which such shares are
      changed or for which such shares are
exchanged.

              


      

      


      
        	 
      


      

      
        	
                2)  

              	
                References
      to “the Company” in Sections 3.1, 4.1(iv), 9.2(iv) and 29.5 of the 2003
      Plan shall hereby be deemed references to Triarc Companies,
      Inc.
**Exhibit 31. 1****CERTIFICATIONS**I, Michael R. Davin, certify that:1. I have reviewed this Quarterly Report on Form 10-Q of Cynosure, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material factor omit to state a material fact necessary to make the statements made, in light of thecircumstances under which such statements were made, not misleading with respect to the periodcovered by this report; 3. Based on my knowledge, the financial statements, and other financial information included inthis report, fairly present in all material respects the financial condition, results ofoperations and cash flows of the registrant as of, and for, the periods presented in thisreport; 4. The registrant’s other certifying officer and I are responsible for establishing andmaintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and15d-15(e)) for the registrant and have:a) Designed such disclosure controls and procedures, or caused such disclosurecontrols and procedures to be designed under our supervision, to ensure that materialinformation relating to the registrant, including its consolidated subsidiaries, is madeknown to us by others within those entities, particularly during the period in whichthis report is being prepared;b) [Not Applicable];c) Evaluated the effectiveness of the registrant’s disclosure controls andprocedures and presented in this report our conclusions about the effectiveness of thedisclosure controls and procedures, as of the end of the period covered by this reportbased on such evaluation; andd) Disclosed in this report any change in the registrant’s internal control overfinancial reporting that occurred during the registrant’s most recent fiscal quarter(the registrant’s fourth fiscal quarter in the case of an annual report) that hasmaterially affected, or is reasonably likely to materially affect, the registrant’sinternal control over financial reporting; and5. The registrant’s other certifying officer and I have disclosed, based on our most recentevaluation of internal control over financial reporting, to the registrant’s auditors and theaudit committee of the registrant’s board of directors (or persons performing the equivalentfunctions):a) All significant deficiencies and material weaknesses in the design or operationof internal control over financial reporting which are reasonably likely to adverselyaffect the registrant’s ability to record, process, summarize and report financialinformation; andb) Any fraud, whether or not material, that involves management or other employeeswho have a significant role in the registrant’s internal control over financialreporting.        Date: August 3, 2006 /s/ Michael R. Davin   Michael R. Davin   Chairman, President andChief Executive Officer
#### HADAR v. UNITED STATES.

United States District Court S. D. New York.

May 10, 1952.

James I. Hadar, pro se.

Myles J. Lane, U. S. Atty., New York City (John M. Foley, New York City, of counsel), for defendant.

WEINFELD, District Judge.

The mass of irrelevant allegations in the single count complaint obviously does not comply with Rule 8(a) of the Federal Rules of Civil Procedure, 28 U.S.C., that a pleading shall contain * * (2) a short and plain statement of the claim *150showing that the pleader is entitled to relief”.

The relief which plaintiff seeks herein may be ascertained only from Paragraph 10, wherein he apparently seeks to recover judgment on three separate and independent claims:

(1) For a refund of taxes against the Collector of Internal Revenue, Second District of New York, New York;

(2) For a head injury incurred at Camp Holibird, Baltimore, Maryland, in 1919; and

(3) For illegal detention at Kings Park State Veterans Memorial Hospital, Long Island, New York, from 1932 to 1944, and alleged violation of plaintiff’s constitutional rights.

Considering these in inverse order, it appears that the claim for detention in the New York State Mental Institution is against the State of New York. No statement is contained in the complaint of the grounds upon which the Court’s jurisdiction rests. The motion to dismiss as to this claim is granted upon the ground that the Court lacks jurisdiction of the subject matter and for failure to state a claim upon which relief can be granted.

As to the claim for the head injury incurred at Camp Holibird, Baltimore, Maryland, in 1919, the same disposition must follow. The Federal Tort Claims Act is not applicable to claims arising prior to January 1st, 1945.1

As to the purported claim for tax refund, the complaint likewise is deficient for failure to state a claim for relief since it fails to allege that a refund claim was filed within the time provided by statute, that the claim has been denied, or that it has not been acted upon by the Commissioner for more than six months after it was filed.2 As to this claim, however, leave is given to serve an amended complaint, which shall in all respects comply with Rule 8 of the Rules of Civil Procedure.

Settle order on notice.

1

. 28 U.S.C. § 1346(b).

2

. 26 U.S.C. § 3772; United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 51 S. Ct. 376, 75 L.Ed. 1025; Moses v. United States, 2 Cir., 61 F.2d 791, certiorari denied 289 U.S. 743, 53 S.Ct. 689, 77 L. Ed. 1490.
```

[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 114 Introduced in House (IH)]

108th CONGRESS
  1st Session
H. RES. 114

                  Honoring the life of Betty Shabazz.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                           February 27, 2003

 Mr. Rangel submitted the following resolution; which was referred to 
                   the Committee on Government Reform

_______________________________________________________________________

                               RESOLUTION

 
                  Honoring the life of Betty Shabazz.

Whereas the Nation honors Betty Shabazz as a wife, mother, educator, and 
        advocate for civil and human rights, women, and the poor;
Whereas Betty Shabazz, through her life and deeds, has been an inspiration to 
        people around the world;
Whereas Betty Shabazz was a woman of strength, resilience, perseverance, and 
        grace who overcame the greatest of challenges;
Whereas Betty Shabazz was born Betty Sanders in Detroit, Michigan, on May 28, 
        1936;
Whereas Betty Shabazz met and married the controversial activist and leader El-
        Hajj Malik El-Shabazz (Malcolm X) in New York in 1958;
Whereas on February 21, 1965, while pregnant with twins, Betty Shabazz and their 
        four daughters witnessed Malcolm X's assassination;
Whereas Betty Shabazz exhibited her resiliency and determination as a single 
        mother, raising and educating her six daughters, Attallah, Qubilah, 
        Ilyasah, Gamilah, and twins Malikah and Malaak;
Whereas Betty Shabazz found the time to become certified as a registered nurse, 
        and to later earn bachelor's and master's degrees and, finally, a 
        doctorate in education administration from the University of 
        Massachusetts;
Whereas Betty Shabazz joined the administrative staff of Medgar Evers College in 
        Brooklyn, New York, rising to high positions;
Whereas, while preserving the public memory of her late husband, Betty Shabazz 
        earned a reputation of her own, as an educator, public speaker, and 
        advocate for women, education, and civil and human rights;
Whereas on June 23, 1997, Betty Shabazz succumbed to injuries suffered in a 
        tragic fire;
Whereas Betty Shabazz personified the roles of wife, mother, and professional 
        woman; and
Whereas Betty Shabazz will be forever remembered for her love of family, her 
        commitment to humankind, and for the joy and laughter she brought to all 
        those who knew her: Now, therefore, be it
    Resolved, That the House of Representatives honors the life of 
Betty Shabazz.
                                 <all>
```
Exhibit 32.1

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 on Form 10-Q of Cynosure, Inc. (the Company) for the period ended June 30, 2009 as filed with
the Securities and Exchange Commission on the date hereof (the Report), the undersigned, Michael R. Davin, Chairman, President and Chief Executive Officer of the Company, hereby certifies, pursuant to 18 U.S.C. Section 1350, that,
to his knowledge:



| | (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 results of operations of the Company.
| | --- | ----------------------------------------------------------------------------------------------------------------------------------------------------



|                     |  |                                                
|-------------------- |  | -----------------------------------------------
|Date: August 7, 2009 |  | /s/ Michael R. Davin                           
|                     |  | Michael R. Davin                               
|                     |  | Chairman, President and Chief Executive Officer
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 97-7608
TIMOTHY LEE CREED, Petitioner - Appellant, versus NORTH CAROLINA ATTORNEY GENERAL; J. V. TURLINGTON, Respondents - Appellees.Appeal from the United States District Court for the Middle District of North Carolina, at Rockingham. N. Carlton Tilley, Jr., District Judge. (CA-96-932-3) Submitted: May 14, 1998 Decided: May 26, 1998 Before WIDENER and MICHAEL, Circuit Judges, and BUTZNER, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Timothy Lee Creed, Appellant Pro Se. Rebecca Kendrick Cleveland, Assistant Attorney General, Raleigh, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).2 PER CURIAM: Timothy Lee Creed seeks to appeal the district court's order denying relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998). We have reviewed the record and the district court's opinion accepting the recommendation of the magistratejudge and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reasoning of the district court. Creed v. North Carolina Attorney General , No. CA-96-932-3 (M.D.N.C. July 18, 1997). We also deny Creed's motion for appointment of counsel. We dispense with oral argument becausethe facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED
```

[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 134 Engrossed in House (EH)]

                 In the House of Representatives, U.S.,

                                                        March 25, 2003.
    Resolved,

SECTION 1. ELECTION OF MEMBERS TO JOINT COMMITTEE ON PRINTING AND JOINT 
              COMMITTEE OF CONGRESS ON THE LIBRARY.

    (a) Joint Committee on Printing.--The following Members are hereby elected 
to the Joint Committee on Printing, to serve with the chair of the Committee on 
House Administration:
            (1) Mr. Doolittle.
            (2) Mr. Linder.
            (3) Mr. Larson of Connecticut.
            (4) Mr. Brady of Pennsylvania.
    (b) Joint Committee of Congress on the Library.--The following Members are 
hereby elected to the Joint Committee of Congress on the Library, to serve with 
the chair of the Committee on House Administration and the chair of the 
Subcommittee on the Legislative Branch of the Committee on Appropriations:
            (1) Mr. Ehlers.
            (2) Mr. Larson of Connecticut.
            (3) Ms. Millender-McDonald.
            Attest:

                                                                          Clerk.
```
<TABLE> <S> <C>

<ARTICLE> UT
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS OF WISCONSIN POWER AND LIGHT COMPANY AS
OF AND FOR THE YEAR ENDED DECEMBER 31, 1997 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000

<S>                             <C>
<PERIOD-TYPE>                   YEAR
<FISCAL-YEAR-END>                          DEC-31-1997
<PERIOD-START>                             JAN-01-1997
<PERIOD-END>                               DEC-31-1997
<BOOK-VALUE>                                  PER-BOOK
<TOTAL-NET-UTILITY-PLANT>                      1244808
<OTHER-PROPERTY-AND-INVEST>                     127917
<TOTAL-CURRENT-ASSETS>                          117638
<TOTAL-DEFERRED-CHARGES>                        174241
<OTHER-ASSETS>                                       0
<TOTAL-ASSETS>                                 1664604
<COMMON>                                         66183
<CAPITAL-SURPLUS-PAID-IN>                       199170
<RETAINED-EARNINGS>                             320386
<TOTAL-COMMON-STOCKHOLDERS-EQ>                  585739
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                      59963
<LONG-TERM-DEBT-NET>                            354540
<SHORT-TERM-NOTES>                                   0
<LONG-TERM-NOTES-PAYABLE>                        56975
<COMMERCIAL-PAPER-OBLIGATIONS>                   81000
<LONG-TERM-DEBT-CURRENT-PORT>                     8899
<PREFERRED-STOCK-CURRENT>                            0
<CAPITAL-LEASE-OBLIGATIONS>                          0
<LEASES-CURRENT>                                     0
<OTHER-ITEMS-CAPITAL-AND-LIAB>                  517488
<TOT-CAPITALIZATION-AND-LIAB>                  1664604
<GROSS-OPERATING-REVENUE>                       794717
<INCOME-TAX-EXPENSE>                             41839
<OTHER-OPERATING-EXPENSES>                      131398
<TOTAL-OPERATING-EXPENSES>                      655608
<OPERATING-INCOME-LOSS>                         139109
<OTHER-INCOME-NET>                                3796
<INCOME-BEFORE-INTEREST-EXPEN>                  101066
<TOTAL-INTEREST-EXPENSE>                         29832
<NET-INCOME>                                     71234
<PREFERRED-STOCK-DIVIDENDS>                       3310
<EARNINGS-AVAILABLE-FOR-COMM>                    67924
<COMMON-STOCK-DIVIDENDS>                         58343
<TOTAL-INTEREST-ON-BONDS>                        32778
<CASH-FLOW-OPERATIONS>                          148693
<EPS-PRIMARY>                                        0<F1>
<EPS-DILUTED>                                        0<F1>
<FN>
<F1>Earnings per share of common stock is not reflected because all of such shares
are held by WPL Holdings, Inc.
</FN>


</TABLE>