alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### Francisco IBARRA, Petitioner-Appellant, v. D.K. SISTO, Respondent-Appellee.

No. 09-17044.

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 2011.*

Filed March 10, 2011.

Francisco Ibarra, Vacaville, CA, pro se.

Kasey E. Jones, Office of the California Attorney General, Sacramento, CA, for Respondent-Appellee.

Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.

*

 This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

MEMORANDUM **

California state prisoner Francisco Ibarra appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas *711petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

Ibarra contends that the Board’s 2007 decision to deny him parole was not supported by “some evidence” and therefore violated his due process rights. The only federal right at issue in the parole context is procedural, and the only proper inquiry is what process the inmate received, not whether the state court decided the case correctly. *See Swarthout v. Cooke,*— U.S. -, 131 S.Ct. 859, 862-63, 178 L.Ed.2d 732 (2011). Because Ibarra raises no procedural challenges, we affirm.

AFFIRMED.

**

 The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R.App. P. 34(a)(2).
#### In the Matter of Timothy Seifert, Respondent, v Natalie Pastwick, Appellant.

[987 NYS2d 587]

Appeal from an order of the Family Court, Erie County (Kevin *1504M. Carter, J.), entered April 1, 2013 in a proceeding pursuant to Family Court Act article 6. The order, among other things, awarded petitioner sole custody of the subject child.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Erie County, for a new hearing in accordance with the following Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order that, among other things, awarded petitioner father sole custody of the parties’ child. We agree with the mother that she was denied her right to counsel. The mother was entitled to representation based upon her status as a respondent in a Family Court Act article 6 proceeding and a person alleged to be in willful violation of a court order, and Family Court’s inquiry concerning her decision to proceed pro se was insufficient to enable the court to determine whether she knowingly, intelligently and voluntarily waived her right to counsel *(see*Family Ct Act § 262 [a]; *Matter of Hassig v Hassig,*34 AD3d 1089, 1091 [2006]; *see also Matter of Storelli v Storelli,*101 AD3d 1787, 1788 [2012]). We therefore reverse the order and remit the matter to Family Court for a new hearing *(see Storelli,*101 AD3d at 1788). In light of our determination, we do not reach the mother’s remaining contentions.

Present— Smith, J.P, Fahey, Peradotto, Sconiers and Valentino, JJ.
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 accompanying Annual Report on Form 10-K (the
"Report") of AMCON Distributing Company (the "Company") for the fiscal year
ended September 30, 2008, I, Christopher H. Atayan, Chief Executive Officer
and Principal Executive Officer of the Company, have executed this
certification for furnishing to the Securities and Exchange Commission.
I hereby certify 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 results of operations
       of the Company.


Date: November 5, 2008       /s/ Christopher H. Atayan
                             ------------------------------
                             Title: Chief Executive Officer
                              and Chairman



A signed original of this written statement required by Section 906 has been
provided to AMCON Distributing Company and will be retained by AMCON
Distributing Company and furnished to the Securities and Exchange Commission
or its staff upon request.
#### Leah Ashkenazy et al., Appellants, v National Union Fire Insurance Company of Pittsburgh, Pa., Respondent.

[665 NYS2d 99]

—In a wrongful death action which was converted by the Supreme Court, in effect, to an action for a judgment declaring that the defendant is obligated to pay the plaintiffs prejudgment interest, the plaintiffs appeal from an order of the Supreme Court, Kings County (Demarest, J.), dated September 25, 1996, which denied their motion for summary judgment declaring that the defendant is obligated to pay prejudgment interest from the decedent’s date of death, and granted the defendant’s cross motion for summary judgment declaring that it was not so obligated.

Ordered that the order is affirmed, with costs.

This litigation began as a wrongful death action arising from the shooting death of the plaintiffs’ decedent during a robbery at his business premises. The plaintiffs settled with the various defendants, including Bay Ridge Security Service (hereinafter Bay Ridge), the company responsible for providing security at the premises, which tendered to the plaintiffs the balance of its liability insurance policy after paying a very *327small portion of it to a person who was injured at the premises. The plaintiffs and Bay Ridge’s insurance carrier National Union Fire Insurance Company of Pittsburgh, Pa. (hereinafter National Union) stipulated to leave to the court the question of whether National Union is liable pursuant to EPTL 5-4.3 for prejudgment interest in excess of the limits of Bay Ridge’s liability coverage.

Absent a contractual provision to the contrary, a liability insurance carrier is not liable for prejudgment interest in excess of the limits of the policy *(see, Cleghorn v Ocean Acc. & Guar. Corp.,*244 NY 166; *Matter of Russo v Kemper Group,*146 AD2d 701). Because the policy in this case does not contain a provision requiring National Union to pay prejudgment interest in excess of the policy’s limit of liability, the Supreme Court properly granted summary judgment to National Union. Rosenblatt, J. P., Miller, Copertino and Goldstein, JJ., concur.
Exhibit 32.1



Certification pursuant to Section 906 of the Sarbanes-Oxley Act of 2002



Ladies and Gentleman:



In connection with the quarterly report of Featherlite, Inc. (the Company) on Form 10-K for the year ended December 31, 2004 as filed with the
Securities and Exchange Commission (the Report), I, Conrad D. Clement, Chief Executive 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 results of operations of the Company.



|               |  |  |  |                        
|-------------- |  |  |  | -----------------------
|               |  | 
|March 31, 2005 |  |  |  | /s/ Conrad D. Clement  
|               |  |  |  | Chief Executive Officer



54
<TABLE> <S> <C>

<PAGE>
<ARTICLE> 5
       
<S>                             <C>                     <C>
<PERIOD-TYPE>                   3-MOS                   6-MOS
<FISCAL-YEAR-END>                          FEB-28-1999             FEB-28-1999
<PERIOD-START>                             JUN-01-1999             MAR-01-1998
<PERIOD-END>                               AUG-31-1998             AUG-31-1998
<CASH>                                       1,001,202               1,001,202
<SECURITIES>                                         0                       0
<RECEIVABLES>                                7,642,422               7,642,422
<ALLOWANCES>                                         0                       0
<INVENTORY>                                 11,433,723              11,433,723
<CURRENT-ASSETS>                            20,703,594              20,703,594
<PP&E>                                       4,333,201               4,333,201
<DEPRECIATION>                                       0                       0
<TOTAL-ASSETS>                              57,573,754              57,573,754
<CURRENT-LIABILITIES>                       19,275,960              19,275,960
<BONDS>                                     16,710,169              16,710,169
<PREFERRED-MANDATORY>                          147,323                 147,323
<PREFERRED>                                          0                       0
<COMMON>                                         7,411                   7,411
<OTHER-SE>                                  21,432,891              21,432,891
<TOTAL-LIABILITY-AND-EQUITY>                57,573,754              57,573,754
<SALES>                                     10,822,592              18,484,377
<TOTAL-REVENUES>                            11,011,577              18,873,000
<CGS>                                        8,440,938              14,655,794
<TOTAL-COSTS>                                8,440,938              14,655,794
<OTHER-EXPENSES>                               738,060               1,276,961
<LOSS-PROVISION>                                     0                       0
<INTEREST-EXPENSE>                           1,125,888               2,346,763
<INCOME-PRETAX>                                706,691                 893,482
<INCOME-TAX>                                         0                       0
<INCOME-CONTINUING>                            706,691                 893,482
<DISCONTINUED>                                       0                       0
<EXTRAORDINARY>                                      0                       0
<CHANGES>                                            0                       0
<NET-INCOME>                                   706,693                 893,482
<EPS-PRIMARY>                                     .097                    .123
<EPS-DILUTED>                                     .060                    .076
        

</TABLE>
#### Richard M. Cummings, Respondent, v Pace University School of Law, Appellant.

[666 NYS2d 457]

—In an action to recover damages for breach of contract, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Rosato, J.), entered September 12, 1996, which denied its motion pursuant to CPLR 4404 (a) to set aside the jury verdict in favor of the plaintiff and award the defendant judgment as a matter of law, or for a new trial, (2) a judgment of the same court, entered September 12, 1996, which, upon the jury verdict, is in favor of the plaintiff and against the defendant in the principal sum of $521,000, and (3) a supplemental judgment of the same court, entered October 18, 1996, which awarded the plaintiff interest in the amount of $11,048 from June 18, 1996, until September 12, 1996.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment and the supplemental judgment are reversed, on the law, the order is vacated, the defendant’s motion pursuant to CPLR 4404 (a) is granted, and the complaint is dismissed; and it is further,

Ordered that the defendant is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action *(see, Matter of Aho,*39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment *(see,*CPLR 5501 [a] [1]).

In a case denominated as one involving an alleged breach of an employment contract, the trial court, in effect, improperly allowed the jury to second-guess the defendant’s decision not to grant the plaintiff tenure *(see, New York Inst. of Technology v*
      *415
      *State Div. of Human Rights,*40 NY2d 316, 322; *Matter of Pace Coll, v Commission on Human Rights,*38 NY2d 28, 38). No reasonable juror could have concluded, based upon the evidence adduced at the trial, that the defendant violated the tenure procedures set forth in its School Constitution or Faculty Regulations, which were incorporated by reference into the plaintiffs contract with the defendant. Moreover, it is of no consequence that the plaintiff sought damages for the alleged breach of an employment contract, rather than a determination that he be granted tenure, since it is clear that an award of damages based upon a finding that the plaintiff should have been granted tenure undermines the subjective, independent educational judgment properly left to “those equipped with the special skills and sensitivities necessary for so delicate a task” *(New York Inst. of Technology v State Div. of Human Rights, supra,*at 322). Consequently, that branch of the defendant’s motion which was pursuant to CPLR 4404 (a) to set aside the jury verdict in favor of the plaintiff and award the defendant judgment as a matter of law should have been granted.

In light of our determination, we do not reach the defendant’s remaining contention. Rosenblatt, J. P., Copertino, Goldstein and Luciano, JJ., concur.
#### UNITED STATES of America, Plaintiff—Appellee, v. Solomon DUKES, Jr., a/k/a Junior, Defendant—Appellant.

No. 10-6676.

United States Court of Appeals, Fourth Circuit.

Submitted: March 18, 2011.

Decided: April 1, 2011.

William C. Wood, Jr., Nelson Mullins Riley & Scarborough LLP, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, Peter T. Phillips, Assistant United States Attorney, Charleston, South Carolina, for Appellee.

Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Solomon Dukes, Jr., appeals the district court’s order granting, in part, his 18 U.S.C. § 3582(c)(2) (2006) motion for a sentence reduction based upon Amendments 706, 711 and 715 to the Guidelines. In his motion, Dukes asked that the district court reduce his life sentence to 360 months in prison based on the aforementioned Amendments. Dukes alternatively argued, however, that because the jury made no findings regarding the amount of drugs for which he was held responsible, in accordance with 21 U.S.C.A. § 841(b)(1)(C) (West 2006 *&*Supp.2010), and *United States v. Booker,*543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the maximum constitutional sentence he could receive for his drug convictions was twenty years in prison. The district court granted Dukes’ motion, in part, and reduced Dukes’ life sentence to 360 months in prison.

We have reviewed the record and have considered Dukes’ arguments that his sentence should have been reduced below his amended Guidelines range. We nonetheless affirm for the reasons stated by the district court. *See United States v. Dukes,*No. 2:94-cr-00589-DCN-2, 2010 WL 1727866 (D.S.C. Apr. 27, 2010). We reject Dukes’ argument that *U.S. Sentencing Guidelines Manual*§ 1B1.10 (2010) and § 3582(c)(2) violate the separation of powers doctrine. *See Mistretta v. United States,*488 U.S. 361, 412, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (holding that the Sentencing Reform Act and the Sentencing Guidelines do not violate the separation of powers doctrine, in part because “our system of checked and balanced authority [does not] prohibit Congress from calling upon the accumulated wisdom and experience of the Judicial Branch in creating policy on a matter uniquely within the ken of judges”).

*238We 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.*
<PAGE>

                                                                    EXHIBIT 32.3

                            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 Annual Report of National Property Analysts Master
Limited Partnership ("NPAMLP") on Form 10-K for the period ending December 31,
2003 as filed with the Securities and Exchange Commission on the date hereof
(the "Report"), I, David A. Simon, Vice President and Chief Financial Officer of
EBL&S Property Management, Inc., Agent for NPAMLP and the equivalent of its
Chief Financial Officer certify, pursuant to 18 U.S.C. Section 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) Information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of NPAMLP.

                               National Property Analysts Master Limited
                               Partnership
                               (Registrant)

                               Date: March 12, 2004

                               By: EBL&S Property Management, Inc., Agent for
                                   NPAMLP

                               By: /s/ David A. Simon
                                   --------------------------------------------
                                   Name:  David A. Simon
                                   Title: Vice President
<PAGE>
32.1              Certification of the Chief Executive Officer and Chief
                  Financial Officer of VOXEL pursuant to Section 906 of
                  the Sarbanes Oxley Act of 2002


                            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 Annual Report on Form 10-K of VOXEL (the "Company") for
the year ended December 31, 2000 as filed with the Securities and Exchange
Commission on the date hereof (the "Report"), the undersigned Michael Anthony,
Chief Executive Officer and Chief Financial Officer of VOXEL, certify, pursuant
to 18 U.S.C. Section 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 the Report fairly presents, in all material
respects, the financial condition and results of operations of the Company.

Dated: June 17, 2008

                                      /s/Michael Anthony
                                      ----------------------
                                      Michael Anthony
                                      Chief Executive Officer

                                      /s/ Michael Anthony
                                      ----------------------
                                      Michael Anthony
                                      Chief Financial Officer
### FOR PUBLICATION


### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT



#  M ICHAEL R OBERT P ULIDO ,

Petitioner-Appellee, No. 05-15916

v. 

#  D.C. No. CV-99-04933-CW C HRIS C HRONES ,

Respondent-Appellant. 

# 

 M ICHAEL R OBERT P ULIDO , No. 05-16308

Petitioner-Appellant, D.C. No. v. 

#  CV-99-04933-CW C HRIS C HRONES , ORDER

Respondent-Appellee. 

# 

Filed June 9, 2009

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and

Sidney R. Thomas, Circuit Judges.

ORDER

Petitioner-Appellant’s Petition for Reconsideration of Dispositive Order, filed with this court on March 31, 2009 is GRANTED. The Order remanding the case, filed March 20, 2009 is VACATED.

Petitioner-Appellant’s Motion to file Supplemental Brief Following Supreme Court Remand, filed March 10, 2009 is GRANTED and Petitioner-Appellant’s Supplemental Brief is ordered FILED.

6829Respondent-Appellant is directed to file a responsive brief to Petitioner-Appellee’s Supplemental Brief to address the application of the harmless error standard of Brecht v. Abrahamson , 507 U.S. 619 (1993). Respondent-Appellant shall respond within fourteen (14) days of the date of this order, and Respondent-Appellant shall provide this court with ten (10) copies. 6830 P ULIDO v. C HRONESPRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON REUTERS/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2009 Thomson Reuters/West.
Exhibit
      32





**CERTIFICATION
      PURSUANT TO**


**THE
      SARBANES-OXLEY ACT OF 2002**


**CHIEF
      EXECUTIVE OFFICER**





I,
      Gary
      Herman, certify that:





In
      connection with the Annual Report of Digital Creative Development Corporation
      (the "Company") on Form 10-QSB for the period ending December 31,2004 (the
      "Report"), the undersigned officer of the Company, certifies, pursuant to 18
      U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley
      Act of 2002, that to the best of his knowledge:





(1)
      The
      Report fully complies with the requirements of Section 13(a) 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:
      February 8, 2006




/s/
      Gary
      Herman


Gary
      Herman


Chief
      Executive Officer









Exhibit
      32





**CERTIFICATION
      PURSUANT TO**


**THE
      SARBANES-OXLEY ACT OF 2002**


**CHIEF
      FINANCIAL OFFICER**





I,
      Skuli
      Thorvaldsson, certify that:





In
      connection with the Annual Report of Digital Creative Development Corporation
      .
      (the "Company") on Form 10-QSB for the period ending December 31, 2004 (the
      "Report"), the undersigned officer of the Company, certifies, pursuant to 18
      U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley
      Act of 2002, that to the best of his knowledge:





(1)
      The
      Report fully complies with the requirements of Section 13(a) 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:
      February 8, 2006





/s/
      Skuli
      Thorvaldsson


Skuli
      Thorvaldsson


Chief
      Financial Officer
**EXHIBIT 32.2**

**Certification Pursuant To 18 U.S.C. Section 1350**

In connection with theAnnual Report of Polymer Group, Inc. (the “Company”) on Form 10-Kfor the fiscal year ended December 31, 2005 as filed with the Securitiesand Exchange Commission on the date hereof (the “Report”), I, Willis C. MooreIII, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350,as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of2002, that to my knowledge:

(1)           The Report fullycomplies with the requirements of Section 13(a) or 15(d) of theSecurities Exchange Act of 1934, as amended; and

(2)           Theinformation contained in the Report fairly presents, in all material respects,the financial condition and results of operations of the Company.

| Date: March 16, 2006 | /s/ WILLIS C. MOORE, III

Willis C. Moore, III

*Chief Financial Officer* |
|---------------------------|-------------------------------------------------------------------------------------|

 

A signed original of this written statement requiredby Section 906 has been provided to the Company and will be retained bythe Company and furnished to the Securities and Exchange Commission or itsstaff upon request.

----