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Mon, 10 Oct 2016 03:04:01 +0000
In prepping for my Saturday group's D&D 5e playtest I created a dragonborn paladin of Bahamut named Bharosh Goldenscales.
The group has been adventuring in the Wilderlands of High Fantasy and although this is mostly a mechanical playtest, I couldn't resist building out a backstory. That meant figuring out how the dragonborn might fit into one of D&D's oldest campaign settings.
Sun, 25 Sep 2016 19:37:59 +0000
After a few months of talking about the game, my monthly Saturday gaming group decided to give D&D 5th Edition a try. Rather than run a playtest campaign like the Blackrazors, our dungeon master is running us through a series of combat encounters at different levels. This lets everyone get a feel for the combat-centric rules and helps the DM get experience with encounter design.
Sun, 25 Sep 2016 02:42:40 +0000
I'm now paying to get my ass kicked.
After nine months of working out on my own, I reached the plateau that I knew I'd reach. I was walking a few miles a day, running 3-5 miles a couple days a week, and doing the occasional stretching exercises in the morning. I've been slowly improving my run times -- my best mile is 8'42" on the indoor track, my best 3 miles is 30 minutes with an average 9'57 pace.
Wed, 21 Sep 2016 12:20:40 +0000
The Marvel comic book multiverse collapsed in upon itself in Summer 2015. As the various worlds ended, a new one was forged by its all-powerful god, Doctor Doom. This new world -- Battleworld -- drove a summer's worth of of spin-off stories as Marvel cancelled every one of their regular books and replaced them with a series of quasi-sequel limited series.
Mon, 19 Sep 2016 02:27:53 +0000
It's a funny thing to sit down to write your next adventure in a campaign and realize that somewhere along the line it went from "campaign" to "long-running campaign".
That's what happened with Obsidian Frontier, a sandbox-style campaign set in the World of Greyhawk. We launched it as a playtest campaign for D&D 5th Edition in October 2014. Two years and thirty-four sessions later, the playtest is still running, and the campaign's still going.
Sat, 17 Sep 2016 00:32:16 +0000
Live video streams and vidcasts are the big thing in role-playing games right now. Combined with the throwback Netflix series Stranger Things and the 80s-infused gamer novel Ready Player One the shows have helped produce a resurgence of Dungeons & Dragons and other RPGs.
Sun, 11 Sep 2016 13:49:54 +0000
As I wrote last week, the Blackrazors and their children will be running through the venerable module B2: The Keep on the Borderlands as part of our D&D Kids campaign. We're playing D&D 5th Edition, and are running a version of the module updated for that edition.
Sun, 11 Sep 2016 03:20:44 +0000
My summer reading list for 2016 kicked off Memorial Day weekend with a combination of military SF, space opera, and fantasy. The following books were read in late May and June, and did a good job of priming my brain for the heavy reading days in July and August.
Thu, 08 Sep 2016 12:24:39 +0000
It's time to hit play again. After a summer spent listening to novels, I've burned through my reserve of audio books. While my queue at Audible slowly refills, I'm looking for podcasts to listen to.
My intent is to listen to one or two podcasts a week during my morning workouts -- a far cry from the days when I'd listen to that many just driving to work -- but enough to keep somewhat current with the scene and provide intermissions from audio books.
Sun, 04 Sep 2016 13:37:45 +0000
The next generation of Blackrazor Guilders have strapped on their fathers' swords, sat down at the gaming table, and begun slinging dice. We have three kids (two boys, one girl) in the immediate group who want to play, and we have two of my son's friends (both boys) who are also eager to start casting spells and slaying monsters.


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[NationalEnquirer] These engaged Hollywood stars are having heated arguments over who'll be attending their huge wedding! It turns out the singer/actor wants to invite some of his famous exes to the ceremony, but his future wife is dead set against it – she's crossed them all off the list! Name the couple.
The Wedding Is Next Weekend
[BlindGossip] They have been a couple for several years and are parents together, so it was just a matter of time before they took that extra step and got married. They announced their engagement earlier this year and have been hinting that the wedding will be later this year. No. The wedding is actually next weekend. It [Read more…]
Pop Star Plans Wedding And Baby Shower
[NationalEnquirer] Which blonde female pop star, who's busy planning her wedding, might just be planning a baby shower first?
Comic Actor Wants BIL to Man Up
[NationalEnquirer] Which C-list actor – best-known for co-starring in a popular blockbuster comedy franchise and who now does mainly voice-over work – doesn't accept his cross-dressing brother-in-law? The tiny funnyman wasn't amused when [Read more…]
Her Lofty Goals
[BlindGossip] Why would someone get married simply to get divorced?
Money. Fame.
Her romances and engagements make the front page of every tabloid, and her weddings will make more money than they cost. Since she has no discernible talent, she will use what she has to make and stay in the headlines. She believes that [Read more…]
Rich Guy Was A Wedding Cheapo
[NewYorkPost] Which wealthy businessman didn't tip the help at his daughter's wedding?
She Will Be Making A Big Announcement Soon
[BlindGossip] This female star has certainly had her ups and downs. Her career has gone up and down and has expanded over more than one creative medium. She has dated at least three or four famous guys, has been married to and divorced from another celebrity, and is a tabloid staple. Depending on who you talk to and which day it is, she is either gorgeous or ugly. Well, we know one thing for sure: she is pregnant! She is seven weeks along, and you should expect the announcement within the next couple of weeks. [Read more…]
Rumors Of Ring Shopping
[BlindGossip] There is a rumor going around that they are ring-shopping and getting engaged. No. While she may be looking at rings, he is not. These tales of ring-shopping and wedding-planning are pure gossip supplied by her publicist to make people think that their client is every man's dream girl. She sure is… if your dream girl would [Read more…]
Mother In Law Is Trying To Break Up Marriage
[Buzzfoto] This B/C list film and movie actress doesn't get along with her famous mother-in-law. They have been feuding since the wedding day, but we just found out that the mother-in-law is feeding the press rumors about the actress in the hopes of breaking up the marriage. 614
Hooters Girl Is Hiding A Marriage Secret
[NationalEnquirer] Which reality star vixen – currently flirting her way to a possible win on her show – is hiding a marriage secret? The former Hooters waitress is pretending to be single for a competitive edge so she's not telling ANYONE that she tied the knot in a hush-hush ceremony right before cameras started rolling!
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subset: commoncrawl


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Is this attraction popular with tourists?
Does this attraction provide visitors with a taste of the local culture?
Is this attraction exciting, unusual, or risky to visit?
Does this attraction require above average amounts of physical activity (long walks, climbs, stairs or hikes)?
Does this attraction have good scenic or skyline views?
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Thanks for helping!
It is a beautiful golf course. We were unfortunate enough to play it after a couple of unseasonal days of rain which made the course a bit harder than usual as there was no run.
3 Days in Cairns
Guide to Cairns Outdoors
Guide to Cairns for Families
Sat outside under the verandah. Shared a great pizza between two, washed down with a couple of beers. Friendly welcoming staff.
Our friends have a membership here and recommended we come in for a look. What a wonderful find it was too!
While the boys finished off their round of golf on the gorgeous course, the kids played in their expansive playground and bouncy pillow, and we actually had a chance for a cool drink and adult conversation.
The food (including...
A very challenging course that keeps you on your toes. A strong wind and dried out greens made it quite a challenge. Enjoyable but also intimidating.
Imagine... Looking forward for 10 weeks to a beautiful, tropical family holiday in the North of Cairns... Then, imagine having that delightful dream razed to the ground by Management from Hell. Why would you waste your hard earned money or precious quality time there??
Paradise Palms, aka Family Backpackers, is not worth the $345/night price-tag nor even 1/3 that price....
An excellent facility on the Northern Beaches. Staff at the pro shop were friendly and helpful. GPS golf carts are a great enhancement of the game and the course was quiet and unhurried. The course was in excellent condition although the layout was uninspiring.
Facilities were excellent and the catering in the 19th was very good and reasonably priced.
Enjoyed a game of golf and lunch, views were beautiful and food was very well priced and great quality.
This is the first time I've ever had to pay for the pleasure of the use of the paradise palms facilities as we've always been visiting guests and had free entry with booked accomodation.
The kids area has had alot of work done to it over the years and is quite large.
It had cubby houses,climbing frames,playground equipment and a...
The course was as good as expected, but a chal l enge. Be prepared to lose balls if you stray off the fairways, or miscalculate the distance to the water hazards crossing the fairways. Good carts with inbuilt GPS. Not cheap green fees but worth it. The club house is excellent with a more than satisfactory restaurant.
Loved this track, but some of the changes are so new that not even the GPS's on the golf carts were up to date!
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Interested in talking motorbikes with a terrific community of riders?Signup (it's quick and free) to join the discussions and access the full suite of tools and information that Netrider has to offer.
A pub, or public house, is a house licensed to sell alcohol to the general public. It is a drinking establishment in Britain, Ireland, New Zealand, Canada, and Australia. In many places, especially in villages, a pub is the focal point of the community. Samuel Pepys described the pub as the heart of England.
Pubs can be traced back to Roman taverns, through the Anglo-Saxon alehouse to the development of the tied house system in the 19th century.
Pubs are socially and culturally distinct from cafés, bars and beer halls. Most offer a range of beers, wines, spirits, and soft drinks and snacks. Traditionally the windows of town pubs were of smoked or frosted glass to obscure the clientele from the street but there has been a move towards clear glass and brighter interiors.
The owner, tenant or manager (licensee) is known as the pub landlord or publican. Referred to as their "local" by regulars, pubs are typically chosen for their proximity to home or work, the availability of a particular beer, a darts team, or a pool or snooker table.
Until the 1970s most of the larger pubs also featured an off-sales counter or attached shop for the sales of beers, wines and spirits for home consumption. In the 1970s, supermarkets and high street chain stores and off-licences undercut pub prices; and all but a handful closed their off-sale counters.
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Hi all,
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Two years ago I read a ride report and first learned about Nindigully Pub in Queensland. Since then I've been thinking of riding. Not like I...


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Thread: Amazing Gaming Design (uncoded).
05-18-2005, 02:29 AM #1New Member
- Join Date
- Jul 2003
- Posts
- 2
Amazing Gaming Design (uncoded).
This design never sold before so i'm gonna try again.
I love the design so i'm not letting it go for $10-20 because I know it's worth a lot more than that.
Here are the previews:
75% Unwatermarked:
100% Watermarked:
Its 100% unique, never been sold before and you'll get full rights to the design. This includes resale if you so wish. You DO NOT get any rights to the name but this time i'll leave the logo in.
If you're interested please leave all offers in this thread and i'll get back to you.
If an offer is accepted then I will customise the header etc for you.
05-18-2005, 06:08 PM #2Newbie
- Join Date
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- Portland, OR
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- 9
beautiful template. Good luck with your sale!Portfolio: www.jsupnick.com
e-mail: [email protected]
AIM: JBlade00, MSN: [email protected]
05-18-2005, 11:12 PM #3Disabled
- Join Date
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That is amazing. Good luck.
06-07-2005, 12:08 PM #4Junior Guru
- Join Date
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text: Have had the pirelli angels on my bike for a bit over 6,000 k and thought it was worth a bit of a review. Riding has included touring to Falls Creek, a squirt along the Tolmie-Whitfield road and along the GOR (Apollo Bay - Warrnambool) and a fair bit of commuting in Melbourne's wet summer. I had Bridgestones b45s on the bike before these. The first thing I must add that this is a step up from a cross ply to a radial. The angels were good right from the start even riding home on a wet night after getting them fitted. The big difference I have noted in these tyres is the front end stability over rough or rutted roads. The second is the controlled lean in on the twisty stuff - its not a quick fall into the lean or neither is it a wrestle to get it over. My bike is shaft driven and has the small step out on the back wheel when heavy engine breaking is applied. This sometimes tests a tyre particularly in the wet but these havent given me a problem. But what has driven me to write this review is the wet weather performance especially in the downpours we have had recently. The wet weather performance has been fantastic even in a couple of heavy breaking situations there has been no sign of letting go. Finally after 6,000k the wear is not great and it looks like there is another 6,000 left in the rear tyre easily.


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United States District Court, N.D. California
January 28, 2015
JAMES PAUL BAXTER, Petitioner,v.E. VALENZUELA, Warden, Respondent
James Paul Baxter, Petitioner, Pro se, Martinez, CA.
For E. Valenzuela, Respondent: Gregory A. Ott, LEAD ATTORNEY, California State Attorney General's Office, San Francisco, CA.
BETH LABSON FREEMAN, United States District Judge.
Petitioner, a state parolee proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 setting forth three claims.[1] The petition was dismissed with leave to amend the first two claims. Petitioner filed a timely amended petition also setting forth three claims. The first claim was dismissed without further leave to amend because it still did not state cognizable grounds for federal habeas relief. Respondent was ordered to show cause why the amended petition should not be granted on the bases of the second and third claims. Respondent filed an answer addressing the merits of these two claims. Petitioner was given the opportunity to file a traverse but he did not do so. Having reviewed the briefs and the underlying record, the Court concludes that Petitioner is not entitled to relief and denies the petition.
In 2008, in Contra Costa County Superior Court, Petitioner pled no contest to second-degree robbery and admitted one prior serious felony conviction. (Ans. Exs. A, C.) Pursuant to a plea agreement, the trial court sentenced him to a term of seven years in state prison, consisting of two years for the robbery and five years for the prior conviction. (Id.)
Petitioner did not file a direct appeal. In late 2008, he filed the first of many a habeas petition in the state courts, this one in the superior court with the assistance of counsel, claiming ineffective assistance of trial counsel. (Ans. Ex. B.) Following an evidentiary hearing, the petition was denied on January 30, 2009. (Ans. Exs. D, E.) He then filed a series of pro se habeas petitions. On March 17, 2009, he filed his second habeas petition in the superior court, which was denied on March 27, 2009. (Ans. Ex. B.) On April 9, 2009, he filed a habeas petition in the California Court of Appeal that was denied a week later; the California Supreme Court then denied his petition for review on June 10, 2009. (Ans. Ex. F.) He filed another habeas petition in the California Court of Appeal, which was denied on December 2, 2010, and then he filed one in the California Supreme Court that was denied on August 10, 2011. (Ans. Ex. G.) Petitioner then filed yet another habeas petition in the California Court of Appeal, which was denied on February 8, 2012, and a final habeas petition in the California Supreme Court on April 20, 2012, which was in turn denied on August 8, 2012. (Ans. Ex. H.)
Petitioner filed the instant federal petition on October 3, 2012.
Because Petitioner's two claims do not necessitate examination of the facts of the offense, a brief summary of the facts is sufficient. On March 11, 2007, Petitioner confronted Elizabeth Caballero with a knife in the kitchen of a restaurant where she was working and asked her for money. (RT at 6-9, 26-28, 34.) She directed him to the cash register at the front of the restaurant, and when he walked past her towards the register pointing his knife, she ran out the back door. (Id. at 6, 12-13, 29.) The restaurant owner, Jorge Chang, who was also at the front, backed up behind the bar and called the police while Petitioner opened the register and took out 30 or 40 dollars. (Id. at 12-16, 20-23.) Petitioner then left out of the back of the restaurant. (Id. at 16, 21.) Police found Petitioner leaving a nearby food store and arrested him, and he confessed to taking the money from the restaurant cash register and throwing the knife away. (Pet. Ex. F at 6.) The knife was found in a dumpster near the restaurant. (Id. at 5.)
A. Standard of Review
This Court may entertain a petition for writ of habeas corpus " in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim " (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 384-86, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
" Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. A state court decision is an " unreasonable application of ' Supreme Court authority, falling under the second clause of § 2254(d)(1), if the state court correctly identifies the governing legal principle from the Supreme Court's decisions but " unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ " simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.
" Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. " Under § 2254(d)(1)'s 'unreasonable application' clause, . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. A federal habeas court making the " unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was " objectively unreasonable." Id. at 409. The federal habeas court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The state court decision to which Section 2254(d) applies is the " last reasoned decision" of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state court considering a petitioner's claims, the court " looks through" to the last reasoned opinion. See Ylst, 501 U.S. at 805.
The Supreme Court has affirmed that under AEDPA, there is a heightened level of deference a federal habeas court must give to state court decisions. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 783-85, 178 L.Ed.2d 624 (2011); Felkner Jackson, 562 U.S. 594, 131 S.Ct. 1305, 179 L.Ed.2d 374 (2011) (per curiam). As the Court explained: " [o]n federal habeas review, AEDPA 'imposes a highly deferential standard for evaluating state-court rulings' and 'demands that state-court decisions be given the benefit of the doubt.'" Id. at 1307 (citation omitted). With these principles in mind regarding the standard and limited scope of review in which this Court may engage in federal habeas proceedings, the Court addresses Petitioner's claims.
B. Legal Claims and Analysis
Petitioner's remaining two claims are: (1) that his sentence violates his right to due process and the Ex Post Facto Clause of the federal constitution; and (2) that he received ineffective assistance of counsel.
1. Sentence
Petitioner claims that his sentence breached his plea agreement because he received custody credits at a rate of 15% of the time served under California Penal Code § 2933.1, as opposed to at a higher rate. (Id. at 10-11.) He claims that this violated his right to due process and the Ex Post Facto Clause of the federal constitution. (Id.)
" [W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Fundamental fairness of due process requires that promises made during plea bargaining and analogous contexts be respected. Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir. 1985). That a petitioner is entitled to habeas relief if a prosecutor breaches a plea agreement is clearly established Supreme Court law within the meaning of the AEDPA. Gunn v. Ignacio, 263 F.3d 965, 969-70 (9th Cir. 2001) (citing Santobello
There are a number of problems with Petitioner's claim that his plea agreement was breached in violation of due process. First, he claims that the trial court, not the prosecutor, breached the agreement. As explained above, the right to due process guarantees that the prosecutor will not breach the agreement. See id. There is no authority cited by Petitioner, or of which this Court is aware, that the trial court's deviation from the plea agreement violates a clearly established right to due process within the meaning of AEDPA.
Even if there were such a right, Petitioner's sentence did not breach his plea agreement. Petitioner was sentenced to a term of seven years in state prison, as provided in his plea bargain. (Ans. Ex. A.) The 15% rate for custody credits, moreover, is the proper rate for his offense. Petitioner pled guilty to second-degree robbery under California Penal Code Sections 211 and 212.5. (Id.) Section 2933.1(a) provides that anyone convicted of a " violent offense" as defined in California Penal Code Section 667.5(c) is limited to 15% " worktime" credits. Section 667.5(c)(9) defines " any robbery" as a violent offense. Petitioner argues that only robbery of an inhabited dwelling is a violent felony (Amend. Pet. at 8), but Section 667.5(c)(9) plainly states that it includes " any robbery." Petitioner also asserts that he did not know that the 15% limit would apply to him when he entered his plea. (Amend. Pet. at 10-11.) The record shows that on the plea form he initialed the provision stating " I understand that because I am pleading guilty/no contest to a violent felony (as defined in § 667.5(c), my conduct credits (both locally and at State Prison) are limited to a maximum of 15% P.C. § 2933.1)" (Ans. Ex. A " Advisement of Rights" at 2), and at the plea colloquy he told the court that he had reviewed the plea form with counsel and understood the provisions that he initialed. (Ans. Ex. C at 6-7). Petitioner also complains that the credits limitation breached his agreement because the agreement provided that all other " charges, enhancements, or other allegations" would be dismissed. (Amend. Pet. at 10.) The credits limitation is not a charge, enhancement or allegation, but simply a statutory consequence of his conviction, and indeed one that he knew about when he entered the agreement. For these reasons, the sentence Petitioner received did not breach his plea agreement so as to violate his right to due process.
Petitioner also claims that imposition of the 15% limitation on custody credits also violated the Ex Post Facto Clause. (Id. at 10-11.) The Ex Post Facto Clause prohibits the government from enacting any law that (1) makes an act done before the passing of the law, which was innocent when done, criminal; (2) aggravates a crime or makes it greater than it was when it was committed; (3) changes the punishment and inflicts a greater punishment for the crime than the punishment authorized by law when the crime was committed; or (4) alters the legal rules of evidence and requires less or different testimony to convict the defendant than was required at the time the crime was committed. Carmell v. Texas, 529 U.S. 513, 519-538, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000). Neither Section 2933.1, nor the inclusion of " any robbery" as a violent offense subject to Section 2933.1, have changed since 2002, prior to Petitioner's offense and sentence. See Cal. Pen. Code § § 667.5(c)(9), 2933.1. Petitioner therefore did not suffer any retroactive effect from these statutes. As a result, there can by no ex post facto violation.
Petitioner's sentence, including the custody credits limitation, did not violate his right to due process or the Ex Post Facto Clause. The state courts' denial of this claim was therefore neither contrary to nor an unreasonable application of federal law, and Petitioner is not entitled to federal habeas relief on this claim.
2. Ineffective Assistance of Counsel
Petitioner claims that counsel provided ineffective assistance in violation of the Sixth Amendment. He claims that counsel failed to adequately investigate and research the case to develop defense arguments of mistaken identity (Amend. Pet. at 12-15), intoxication ( id. at 12), mental defect ( id. at 16-20), and the absence of fingerprints on various items at the crime scene ( id. at 20-21). The trial court held an evidentiary hearing with new counsel representing Petitioner, at the end of which the trial court rejected his claims. (Ans. Ex. E.)
A defendant's right to counsel under the Sixth Amendment is violated if counsel's performance was deficient, i.e. it fell below an " objective standard of reasonableness" under prevailing professional norms, and prejudicial, i.e. " there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-89, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Petitioner's plea of " no contest" precludes habeas review of his claim, however. A defendant who pleads guilty[3] cannot later raise in habeas corpus proceedings independent claims relating to the deprivation of constitutional rights that occurred before the plea of guilty. Haring v. Prosise, 462 U.S. 306, 319-20, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983) (holding that guilty plea forecloses consideration of pre-plea constitutional deprivations); Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (same). Claims that defense counsel failed to investigate and develop a defense are precluded by a guilty plea under Tollett. Fairbank v. Ayers, 650 F.3d 1243, 1254-55 (9th Cir. 2011). Under this authority, therefore, Petitioner's claims that prior to his no contest plea, defense counsel did not adequately investigate and develop defenses are precluded by his plea. See, also, Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) (plea foreclosed claim that prior to plea defense counsel failed to prevent admission of his confession).
The only challenges left open in federal habeas corpus after a guilty plea is the voluntary and intelligent character of the plea and the nature of the advice of counsel to plead. Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The only claim of this nature made by Petitioner is that he did not know about the 15% limitation on custody credits because counsel never told him about it. Petitioner claims that as a result of his ignorance, when he entered his no contest plea, it was not intelligent or voluntary. (Amend. Pet. at 21.) As discussed above, the record plainly shows, that Petitioner was in fact informed of the 15% credits limitation in his plea form, that he initialed it, and he told the trial court that he understood it. (Ans. Ex. A " Advisement of Rights" at 2; Ex. C at 6-7.) Therefore, his assertion that he did not know about the credit limitation is contradicted by the record and did not render his plea involuntary or unintelligent. Furthermore, custody credit limitations are a collateral, not direct, consequence of a guilty plea, see Johnson v. Puckett, 930 F.2d 445, 448 (5th Cir. 1991), and counsel's failure to inform a defendant of a collateral consequence of a guilty plea does not constitute ineffective assistance under the Sixth Amendment standard, see Torrey v. Estelle, 842 F.2d 234, 237 (9th Cir. 1988) (failure to advise of collateral consequences cannot be held to be below objective standard of reasonableness). Therefore, any failure of counsel to inform him of the credit limitation did not amount to ineffective assistance of counsel under the Sixth Amendment.
Petitioner's no contest plea prohibits his claims that counsel was ineffective in failing to investigate and develop defenses. Furthermore, he has not shown counsel's alleged failure to inform him of the custody credits limitation either violated his Sixth Amendment right to counsel or rendered his plea involuntary or unintelligent. Accordingly, the state court's denial of his claim that he received ineffective assistance of counsel was neither contrary to nor an unreasonable application of federal law, and habeas relief is not warranted on this claim.
For the reasons set forth above, the petition for writ of habeas corpus is DENIED.
The federal rules governing habeas cases brought by state prisoners require a district court that denies a habeas petition to grant or deny a certificate of appealability (" COA") in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Petitioner has not shown " that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Accordingly, a COA is DENIED.
The Clerk shall close the file.
For the reasons stated in the order denying the Petition for a Writ of Habeas Corpus, judgment is entered in favor of Respondent and against Petitioner.
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New Album Releases: Nov 30th 2010
Our new album release list for the coming week goes up every Tuesday. Check out what's dropping November 30th, grab mp3s and catch up on what you missed from previous weeks.
Tuesday, November 30th:
The Boy Least Likely To: Christmas Special
Brian Jonestown Massacre: If I Love You EP [ mp3 ]
Florence and the Machine: KCRW's Morning Becomes Eclectic
Gorillaz: Doncamatic
Grouper: Hold/Sick
How to Dress Well: Love Remains [ *new* mp3 ]
Ladytron: Ace of Hz [ mp3 ]
Lambchop: Tour Box 10-CD box set [ mp3 ]
My Morning Jacket: Does Xmas Fiasco Style reissue
Rye Rye: Sunshine
Simian Mobile Disco: Delicacies [ *new* mp3 ]
Tristeza: Paisajes [ *new* mp3 ]
The White Stripes: The White Stripes reissue
Released Earlier This Month:
The Fall: This Nation's Saving Grace reissue [ mp3 ]
Four Tet: Pause reissue [ mp3 ]
Four Tet: Rounds reissue [ mp3 ]
Giant Sand: Blurry Blue Mountain [ *new* mp3 ]
Home Video: The Automatic Process [ *new* mp3 ]
Kanye West: My Beautiful Dark Twisted Fantasy
Matt & Kim: Sidewalks reissue [ mp3 ]
Mike Patton: Mondo Cane [ *new* mp3 ]
The National: High Violet Expanded Edition with bonus CD [ *new* mp3 ]
Robyn: Body Talk
The Swell Season: The Swell Season reissue
Tegan and Sara: The Official Vinyl Collection
Tom Waits: The Early Years Vol. 2 reissue [ mp3 ]
XTC: Skylarking (reissue)[ mp3 ]
The Black Keys: The Big Come Up reissue [ mp3 ]
The Black Keys: Moan reissue [ mp3 ]
Japandroids: Heavenward Grand Prix [ mp3 ]
Rihanna: Loud
Sharon Van Etten: I'm Giving Up on You [ mp3 ]
The Sights: The Most of What Follows Is True
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The Warlocks: Rise & Fall EP & Rarities [ mp3 ]
The Big Pink: Tapes [ *new* mp3 ]
Cee Lo Green: Lady Killer
The Concretes: WYWH
Kid Cudi: Man On The Moon 2: The Legend of Mr. Rager [ mp3 ]
Maserati: Pyramid of the Sun [ mp3 ]
Nitzer Ebb: Industrial Complex [ *new* mp3 ]
Shigeto: Full Circle [ *new* mp3 ]
Shipping News: One Less Heartless To Fear [ mp3 ]
Sufjan Stevens: The Age of Adz vinyl [ *new* mp3 ]
The Tallest Man on Earth: Sometimes the Blues is Just a Passing Bird [ *new* mp3 ]
Tobacco: LA UTI EP [ mp3 ]
White Mountains: Wilderness [ *new* mp3 ]
Brian Eno: Small Craft on a Milk Sea [ mp3 ]
Destroyer: Archer on the Beach / Grief Point [ mp3 ]
Diplo: Blow Your Head Volume 1: Diplo Presents Dubstep Elliott Smith: An Introduction to Elliott Smith [ mp3 ]
The Fall: The Wonderful & Frightening World of The Fall reissue [ mp3 ]
Horse Feathers: Drain You/Bonnet of Briars reissue [ mp3 ]
Matt and Kim: Sidewalks [ mp3 ]


text:
1 review
Cuisinart Countdown 4-Slice Toaster CPT-190 Reviews
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Read 1 Review
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brushed steal and pull out crumb tray
I've only had mine a month but it seems very well made.
fits a modern kitchen decor.


text:
Atlantis - The Lost Empire Reviews
James Plath
Family Home Theater
Family Home Theater
March 30, 2016
Our little science-minded guy was hooked, and it's easy to see why. It's the kind of film Disney usually produces as a live-action blockbuster.
Full Review | Original Score: B
Burl Burlingame
Honolulu Star-Advertiser
Honolulu Star-Advertiser
July 5, 2011
It's too rich with invention and characterization, too packed with juice, and it gallops right along breathlessly. Even so, it manages moments of lyricism and visual elegance.
Full Review | Original Score: 3/4
David Nusair
Reel Film Reviews
Reel Film Reviews
June 28, 2011
...a passable Disney endeavor that ranks somewhere in the middle of the studio's animation canon.
Full Review | Original Score: 2.5/4
January 25, 2011
Disney's animators once again go under the sea, this time to discover the lost city of Atlantis. Shame they didn't find an engaging plot while they were down there.
Top Critic
Lisa Alspector
Chicago Reader
Chicago Reader
January 25, 2011
Visually imaginative and even persuasively spiritual, this animated adventure has some unusually complex villains and heroes, and some of the plot and dialogue transcends what's typical in movies intended for a broad or youthful audience.
Nell Minow
Common Sense Media
Common Sense Media
December 22, 2010
Entertaining but intense adventure for tweens and up.
Tim Brayton
Antagony & Ecstasy
Antagony & Ecstasy
December 7, 2009
It is difficult to say whether its greatest failure is in its story, its characters, or its animation.
Full Review | Original Score: 4/10
Felix Vasquez Jr.
Cinema Crazed
Cinema Crazed
April 29, 2009
A fun action-packed fantasy...
Full Review | Original Score: 3/4
Kit Bowen
November 20, 2008
By all means bring the kids to this one -- and sit back to enjoy the ride in Adventureland.
Full Review | Original Score: 4/5
Bob Grimm
Sacramento News & Review
Sacramento News & Review
August 7, 2008
Disney does animated adventure with this colorful, mostly brisk 1914 search for the legendary missing empire.
Top Critic
Todd McCarthy
August 7, 2008
This blandly conceived and executed attempt at a juve-style Indiana Jones with Jules Verne trappings recycles familiar adventure and cartoon devices with minimal wit and flair.
Christopher Smith
Bangor Daily News (Maine)
Bangor Daily News (Maine)
September 12, 2007
When compared to Disney's best animated films, "Atlantis: The Lost Empire" doesn't compare.
Full Review | Original Score: C
Top Critic
Trevor Johnston
Time Out
Time Out
August 16, 2007
It's probably the most grown-up animated feature Disney has produced, and with its attuned vocal performances, elegant design and pulse-quickening finale, it sets a standard of sustained craftsmanship most live-action film-makers must envy.
Empire Magazine
December 30, 2006
A solid addition to the Disney canon. But from the directors of Beauty And The Beast, solid ain't good enough. Classic Disney this is not.
Full Review | Original Score: 2/5
Jordan Hiller
September 27, 2006
After seeing spectacular epics like Tarzan, it is difficult to properly appreciate the mediocre, but entertaining Atlantis.
Full Review | Original Score: 2/4
Emanuel Levy
February 24, 2006
The potency of the Disney brand name will be tested with Atlantis, a peculiar animated feature that has no children in its story, no cute creatures, and no musical or dance numbers. Any reason for the family to go?
Full Review | Original Score: C-
Film Threat
December 6, 2005
Poor Disney, they now have a real competitor in the family film business and it's a big, green oaf from Dreamworks.
Full Review | Original Score: 2.5/5
Jeffrey Overstreet
Looking Closer
Looking Closer
December 6, 2004
... breathtaking animation in service of a story that doesn't hold enough water to drown a rat much less a civilization.
Full Review | Original Score: C
John R. McEwen
Film Quips Online
Film Quips Online
February 8, 2003
...Sorely lacking in the magic and majesty we have come to expect in the wake of other recent Disney cartoon products.
David Poland
Hot Button
Hot Button
January 7, 2003
Absolute magic.


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on Feb 18, 2013 12:45 AM by Sasi Nagireddy
using view generating report in pivotal view
Feb 17, 2013 2:58 PM
I have a database view and I don't have a common key to join the view to any other table, so imported the view to physical layer, created alias and joined the alias view and view. Drag the view and alias view into bmm layer and drag the original view to presentation layer. when generating report using direct database request in answers then I am getting all the rows in table view, but when I change it to pivotal view I am only getting one row.
In Table view I am getting revenue from 2003 to 2013, but in pivotal view i am getting only for year 2003.
I need my report in pivotal view. Please help .
Thanks & Regards,
This content has been marked as final.
Show 1 reply
Re: using view generating report in pivotal view
Sasi Nagireddy
Feb 18, 2013 12:45 AM
in response to
Drag that from Subject area instead of writing query in the direct database request,Try and let me know if it is working.
Marks as helpful if it correct.


text:
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text:
Gianni Fedele
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Gianni Fedele was an American wizard who played as a Chaser on the American National Quidditch team and also served as the team's Captain at the 1994 Quidditch World Cup.
- Harry Potter: Quidditch World Cup (First appearance)
- Harry Potter and the Half-Blood Prince (video game) (Appears on a Famous Wizard Card)
Quidditch Positions


text:
Kirkland Raises Transparency Bar with New Public Disclosure Rules/
Open and transparent government is essential to liberty, and access to public records is a key element of open government. As an advocate for government transparency and accountability, as well as a Kirkland City Council member, I believe that the Council placed the City on the cutting edge of public records access by its recent unanimous adoption of two pieces of legislation.
Ordinance O-4414, "Access to Public Records", and Resolution R-4987, "Public Records Act Rules," will govern how Kirkland handles public records requests going forward. They define open processes for establishing the level of resources allocated to public records access within the context of the overall City budget, for public reporting of the performance of city staff on handling records requests, and for how records requests will be managed, tracked and completed using a system of online queues of pending and active requests and logs of completed requests. Together, these processes make the records access service itself more transparent to the public. The logs and queues will be available on the City's web site by November 1, 2013.
Kirkland has elevated the city service of providing access to public records to "first class" status like other essential city services, requiring that the handling of public records requests be evaluated and funded as part of all future budget deliberations by the City Council. The ordinance and rules create a performance management system for records requests, with goals and performance metrics like every other essential city service.
The ordinance and rules shine a light on how the City is performing on records requests, giving the public and the Council tools to know whether additional resources are necessary to meet public expectations of responsiveness to requests. Just as importantly, they put the public records service in the appropriate context of all of the other essential services that a city provides such as public safety, environmental protection, human services and infrastructure investments. Budget allocations for records requests will be evaluated along with these other critical services so that all city services receive a reasonable allocation of resources based on citizen priorities. As with other essential services, spikes in demand for access to public records will be fulfilled within the constraints of allocated resources and spread over time when necessary to avoid interference with other services.
This approach respects both the right of the people to access their records and their right to receive other essential City services, at a level of performance they expect and can afford. By adopting this ordinance and resolution and following through with the required oversight, the Council fulfills our commitment to the people of Kirkland to use the resources they provide as efficiently and effectively as possible, to provide the services they need and expect, and to merit their trust and confidence.
Toby Nixon
Council Member
City of Kirkland


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'Rob & Chyna' Preview Depicts Couple on a Rocky Road to Forever
The couple fights, gets life advice from Scott Disick and grapples with Rob's depression in the latest 'Rob & Chyna' trailer.
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Kapas Garden Resort
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TripAdvisor Reviews Kapas Garden Resort Pulau Kapas
Travel Blogs from Pulau Kapas
East Coast Malaysia - Triggerfish Attack!
... fisherman have established a wide variety of 'Fish Aggregating Devices' or FAD's, which are basically permanent mooring balls with many ropes attached to floating diesel cans in large groups. The FAD's eventually grow algae and attract plankton, which in turn attract small fish that in turn become prey to larger fish. We saw many of these along the way, and they indeed proved quite fruitful in the fishing department. We got 11 tuna on our way up to Tioman, ...
Bukit Lawang
... smell of durian as they fell from the trees with the storm. It definitely doesn't deter from how amazing it is to be back in the jungle after Cameroon last year listening to the low hum of tropical noise and smelling the freshest of air. We were woken abruptly from our sleep by a large bang during the night and again in the morning, knowing full well the durians were falling on our roof. Luckily, we had a lie in and lazy breakfast as our transport wasn't until midday. Donny, ...
More about turtles and the state capital
... and headed left at the end of the jetty and to the end to the main road. The 'virtual' bus stop was evident from the other backpackers hanging around at the corner by the hardware store/bridge area and the bus did eventually arrive around 10.30.
From Kuala Terengganu it was another bus to Marang (not to be confused with Merang).
After almost 3 weeks on the islands we needed to stock up on supplies, so Phill hunted down a ...
Nemo Found!
... we decided to head to the coast for some rest; and what better place than a tiny island in the South China Sea that no one has heard of and wasn't on any ...
Back to work a little earlier than planned
... has toothpaste on it or that there are skid marks on the toilet. Anyway, apart from the bathroom the place was lovely. It was Hari Raya so everyone was celebrating Muslim New Year. Which meant that everywere was closed as all the locals were on holiday. A good thing really, as it seemed that we were some of the few visitors to the island during our first few days.
There wasn't a lot to do on Kapas, even the dive shop was closed for a few days. There was a restaurant/chalet ...


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APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE W. UNVERZAGT, Judge, presiding.
Plaintiff, administrator of the estate of her deceased mother, commenced proceedings against defendant, her sister, for the turnover of certain assets claimed to be the property of the estate. From an order denying the requested relief, plaintiff appeals.
This court is asked to determine whether the assets of the estate were transferred by the surviving heirs to the defendant as a gift or for the purpose of collecting all assets for distribution without the necessity of probate.
Decedent left as her heirs, seven children: Lillian (defendant), Sarah (plaintiff), William, Daniel, Rebecca (Jane) and Francis (who were full brothers and sisters) and Edward (a half-brother to the others). At the time of her death (January, 1959) she was sole owner of three parcels of real estate, various shares of stock and a savings account. Held in joint tenancy with defendant, and not involved here, was the home of the decedent and a note.
On the day of the funeral, defendant, Jane, Francis and an attorney, met at Daniel's home. The attorney, with the secretarial help of Jane, prepared certain assignments and warranty deeds. The instruments, which defendant claims were there executed by the four heirs present, transferred the heir's shares in the estate to the defendant. Plaintiff and William, who were not present, executed the assignments and deeds the next day. Edward's whereabouts were then unknown; nine months later, however, he executed a separate assignment of personalty, quit-claim deeds to two parcels of Illinois realty and a warranty deed to realty located in Michigan.
During March of 1959, defendant filed for letters of administration and introduced proof of heirship; no further action was taken and letters never issued.
In February, 1966, plaintiff was appointed administrator and filed an inventory including the assets in question. Upon petition of plaintiff, the court, in June, 1969, issued a citation upon defendant to discover assets.
At the hearing, evidence was introduced which bore upon the intent of the parties in transferring the estate assets. Defendant testified that the transfers were made a gift to her in consideration for her having supported her mother.
Jane corroborated defendant's testimony, asserting that she signed the documents with the intent of relinquishing to the defendant, any right she (Jane) might have in the estate. She additionally testified that the attorney present when the documents were drawn had explained that the assignments served to extinguish the heir's rights in the estate and that probate proceedings would be had only to account for the absence of Edward.
Francis, by way of an evidence deposition, testified on behalf of the estate, asserting that during the after-funeral meeting it was suggested that defendant act as administrator of the estate, that he executed the papers the next day at plaintiff's home, and that it was his intent to share in the estate expecting that the administrator would distribute the estate and "equalize" the assets.
Plaintiff and William were not present at the time the instruments were drawn, did not participate in the discussions relative thereto, and signed the instruments without defendant present. They testified that they executed the instruments to enable defendant to act as administrator, not for the purpose of giving her the assets in the estate.
At the close of evidence, defendant moved to dismiss the petition. The motion was denied and it was ordered, upon stipulation of the parties, that the testimony and exhibits introduced would stand as the record for any further proceedings.
Prior to adjudication, a judge, other than the one who presided at the hearing, reviewed the proceedings and determined that the instruments executed by the heirs conveyed the assets of the estate to defendant in consideration for her support of her mother; she was ordered discharged under the citation. Ordinarily, since the trial court has observed the witnesses' demeanor and is thereby better able than the reviewing court to judge their credibility, the judgment of the trial court should be affirmed unless found to be against the manifest weight of the evidence. Under the circumstances here, we are not bound by this rule.
• 1 The record reveals that there were three assignments of personalty: one, a savings account in the First National Bank of Chicago, another to shares of stock in Northern Illinois Gas Company and the third, to shares of stock in Goldblatt Bros., Inc. (Although not introduced into evidence, defendant states that a fourth assignment to shares of stock in Commonwealth Edison Company was established by her testimony and claims, under the assignment, that the shares are her sole property.) The assignments were all alike, one pertinent portion reading:
"We, the undersigned, * * * hereby agree to settle the estate of said decedent without probate proceedings and hereby request said First National Bank of Chicago to transfer said savings account, or to issue its check or cash, without requiring administration of said estate, to and in the name of Lillian M. Tester, hereinafter called transferee * * * the undersigned do hereby assign and transfer * * * all right, title and interest * * * and that the undersigned will reimburse said First National Bank of Chicago for any loss which it may sustain on account of the transfer * * *."
Plaintiff relies on the phrases "to settle the estate of said decedent without probate proceedings," and "without requiring administration of said estate," to substantiate her position, while defendant argues that the terminology was used to conform to section 95 of the Probate Act (Ill. Rev. Stat. 1959, ch. 3, sec. 247) which allows parties of interest to settle an estate without administration. Defendant contends that the assignments of personalty (signed by all but Edward) were unambiguous, showed an outright gift, and that plaintiff is therefore estopped in the claim that they were executed only to establish a fiduciary relationship. Defendant's own argument on the terminology serves to accentuate the issue of ambiguity. While the contested phrases may be used to accomplish the conveyance of a gift, their language is not determinative of a gift, in fact, having been made. We find the language of the instruments to be ambiguous.
Edward's assignment does not refer to probate proceedings or its avoidance, nor does it contain any indemnity provision, but states:
"* * * we do hereby voluntarily give and transfer all of our rights to, and interests in * * * [the personalty in question]."
All agree that Edward's conveyance amounted to a gift.
• 2 To create a gift, there must be some communication, oral or written, of a donative intent between the donor and donee. Defendant admits that she conversed with neither plaintiff nor William and no written communication was evidenced other than the assignments themselves. Having found the instruments ambiguous, it becomes necessary to resolve the question of intent from other evidence. Plaintiff and William testified that in executing the documents, it was their intent to place their shares of the estate in defendant's name as administrator with the expectation that she would eventually distribute the assets. Francis, present at the time the instruments were drawn and apparently a participant in the conversation with the defendant, testified to a like understanding. The indemnification clauses within the assignments (not found in Edward's) and the conveyance of realty by warranty deeds (in contrast to Edward's use of a quit-claim deed) further support plaintiff's position that the transfers were not intended as gifts.
• 3 The burden of proof of a gift is upon the donee and the proof must be clear, satisfactory, unequivocal and convincing. There should be no uncertainty as to either the claimed intent or the claimed delivery. In re Estate of Skinner, 111 Ill. App.2d 267 (1969), cert. denied, 40 Ill.2d 581 (1969).
• 4 We hold that, except in the instances of Jane and Edward, the defendant failed to meet her burden of proof necessary to establish a donative intent.
The order appealed is reversed and the cause remanded for further proceedings in accordance with the views expressed herein.
Reversed and remanded.
ABRAHAMSON and SEIDENFELD, JJ., concur.
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United States District Court, S.D. California
April 18, 2014
MEDIVAS, LLC, a California limited liability company, et. al., Plaintiffs,v.MARUBENI CORP., and DOES 1 through 100, Defendants.
THOMAS J. WHELAN, District Judge.
Pending before this Court is Defendant Marubeni Corporation's motion to remand the fourth cause of action to state court. [Doc. 44.] Plaintiffs oppose. [Doc. 46.]
The Court decides the matters on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d.1). For the reasons stated below, the Court GRANTS Defendants' motion. [Doc. 44] and ORDERS the Fourth Cause of Action remanded to the San Diego Superior Court.
A. Factual background.
The following factual background is taken from this Court's previous order.
Marubeni is a Japanese multinational corporation. Plaintiff MediVas is a biomedical company. Plaintiffs Kenneth W. Carpenter, Joseph D. Dowling, William G. Turnell, Sachio Okamura, T. Knox Bell, Dari Darabbeigi, Lindy Hartig, William Summer, and Paul Teirstein (collectively, the "Individual Plaintiffs") are managers, employees, and investors of MediVas.
On April 13, 2004, MediVas and Marubeni entered into an unsecured Convertible Note Purchase Agreement (the "Note Purchase Agreement"). ( See Pls.' Notice of Lodging in Support of Remand Mot. ("Pls.' NOL") Ex. 1 [Doc. 7-4].) The agreement obligated Marubeni to make advances to MediVas in an aggregate principal amount not to exceed $5 million. In exchange, MediVas was obligated to make quarterly interest payments, and to pay the principal on the note's maturity date. The Note Purchase Agreement also included an arbitration provision providing that "[a]ll disputes and differences which may arise out of or in connection with this Agreement, or the breach thereof... shall be submitted to arbitration under the commercial arbitration rules of the International Chamber of Commerce (the "ICC") for final and binding arbitration." ( Id., ¶ 10.14.)
In addition to the Note Purchase Agreement, the parties entered into an Agency Agreement, whereby MediVas appointed Marubeni as its exclusive agent in Japan. ( See Pls.' NOL, Ex. 2.) The Agency Agreement also contains an arbitration provision. ( Id., ¶ 9.2.)
By June 2004, MediVas borrowed the entire $5 million from Marubeni. From April 2004 to June 2007, MediVas made all quarterly interest payments. However, at some point in 2007, MediVas began experiencing cash flow shortages and liquidity problems. By July 2007, when the principal obligation on the Note Purchase Agreement became due, MediVas' could not afford to pay its daily operating expenses and obligations under the note. MediVas informed Marubeni of its inability to retire the debt.
Meanwhile, as a way to deal with its financial hardship, MediVas began merger discussions with Nastech Pharmaceutical Company, Inc. By September 2007, MediVas and Nastech drafted an Agreement and Plan of Merger. In order to complete the merger, Nastech requested that MediVas' lenders consent to the merger. Marubeni refused and threatened to pursue legal action under the Note Purchase Agreement. Eventually, in order to obtain Marubeni's consent, MediVas agreed to enter into three additional contracts: a Forbearance Agreement, Security Agreement, and Intellectual Property Security Agreement ("IP Security Agreement").
On October 10, 2007, MediVas and Marubeni signed the Forbearance Agreement, whereby Marubeni agreed not to exercise any remedies available under the Note Purchase Agreement and promissory note.[1] ( See Pls.' NOL, Ex. 3 at ¶ 2.) In exchange, MediVas' agreed to limit its ability to issue equity ( id. at ¶ 7), and "to grant [Marubeni] a first priority security interest in all of [MediVas'] assets" ( id. at ¶ 4).
The Security Agreement granted Marubeni "a continuing security interest in and to all right, title, and interest" in MediVas' collateral. ( Pls.' NOL, Ex. 4 at ¶ 2.1.) Unlike the 2004 agreements, the Security Agreement does not contain an arbitration provision, and instead includes a venue clause providing that state and federal courts in San Diego "will have exclusive jurisdiction to hear and determine any dispute, claim or controversy between or among them concerning the interpretation or enforcement of this Agreement." ( Id. at ¶ 6.14.)
The IP Security Agreement granted Marubeni a security interest in all of its "intellectual property, copyrights, patents, patent applications, trademark, know-how, trade secrets, and related goodwill." ( Pl.'s NOL, Ex. 5 at p. 1.) This agreement does not contain an arbitration or venue clause.
Despite executing these contracts, the Nastech merger failed. MediVas alleges the failure was caused by Marubeni's refusal to timely consent to the merger.
In March 2008, MediVas entered into discussions with DSM Biomedical Materials B.V. ("DSM"). By September 2008, DSM had engaged MediVas in discussions for the acquisition of MediVas for a purchase price of between $100-$130 million. MediVas alleges that the Forbearance Agreement, Security Agreement and IP Security Agreement caused the negotiations to degrade into discussions about a license agreement. DSM determined that "MediVas had no options and reduced the license agreement from $16 million to $8 million." ( Compl., ¶ 72.) Of the $8 million MediVas was going to receive, MediVas agreed to pay $1 million to Marubeni. Nevertheless, Marubeni refused to consent to the agreement and insisted that DSM pay sufficient funds from the license to Marubeni to completely repay their loan and accrued interest. DSM refused.
On February 11, 2009, MediVas and DSM executed a technology license agreement. Instead of paying MediVas $8 million, DSM reduced the price to $7 million.
B. Procedural history.
On April 28, 2010, MediVas filed this action in the San Diego Superior Court. On May 10, 2010, Marubeni removed the lawsuit to this Court under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "Convention"), 9 U.S.C. §§ 203-205. MediVas then filed a motion to remand, arguing that this Court lacked subject-matter jurisdiction, and Marubeni filed a motion to compel arbitration. The primary issue underlying the motions was whether the 2007 Forbearance Agreement rescinded the Note Purchase Agreement, thereby rescinding the arbitration provision and requiring litigation to proceed in the San Diego Superior Court.
On February 28, 2011, this Court rejected MediVas' argument that the Forbearance Agreement rescinded the Note Purchase Agreement for, among other reasons, the following:
[T]he Note Purchase Agreement specifically provides that it "may be amended or supplemented only by a writing that refers explicitly to the this Agreement, ... and expressly states that it is an amendment to the terms thereof." [Citation omitted.] The Security Agreement's venue provision does not refer to or state that it is amending or supplementing either the Note Purchase Agreement or the arbitration clause.
( 2/28/11 Order [Doc. 23], 6:12-17.) Because MediVas' remand motion was premised on the argument that the Forbearance Agreement was rescinded, the order denied the remand. Additionally, because MediVas failed to argue that any of the causes of action fell outside the scope of the arbitration provision, the Court ordered all claims to arbitration.[2]
Thereafter, MediVas filed a motion for reconsideration. In connection with that motion, this Court issued an order instructing the parties' briefs to "take into account this Court's [previous order] finding... that the arbitration provision is valid and binds the parties" and thus requested that the parties "discuss each claim in the complaint individually, and identify whether the claim is subject to the arbitration or the venue agreement." ( See 5/31/11 Order [Doc. 32], 5-13.)
In its reconsideration motion, MediVas asserted that although the arbitration provision remained in effect, the venue provision essentially trumped that clause. ( See Recon. Mt. [Doc. 33], 1:17-28, 4:9-17.) In short, although MediVas claimed to acknowledge this Court's previous finding, MediVas continued to disregard the arbitration clause by asserting that none of the claims, including the claim for breach of the Note Purchase Agreement itself, were subject to arbitration. In light of this position, MediVas failed to provide a meaningful analysis regarding whether any of the causes of action fell within the venue or arbitration clause. Accordingly, the Court was required to look primarily to MediVas' state-court complaint to attempt to determine whether each cause of action was subject to arbitration or litigation in the San Diego Superior Court.
August 2, 2011, this Court issued an order compelling arbitration of certain causes of action, including the fourth cause of action for fraudulent conveyance/avoidable transfer, and remanding to the San Diego Superior Court those causes of action covered exclusively by the venue provision. ( 8/2/11 Order [Doc. 37], 13:20-14:16.)
On November 25, 2011, the arbitral tribunal issued its partial award. In so doing, the tribunal declined to exercise jurisdiction over the fourth cause of action. Marubeni now seeks to remand that cause of action to state court. MediVas opposes.
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994). "They possess only that power authorized by Constitution or a statute, which is not to be expanded by judicial decree." Id . (internal citations omitted). "It is to be presumed that a cause lies outside this limited jurisdiction and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id . (internal citations omitted); see also Abrego Abrego v. The Dow Chem. Co. , 443 F.3d 676, 684 (9th Cir. 2006).
Consistent with the limited jurisdiction of federal courts, the removal statute is strictly construed against removal jurisdiction. Gaus v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1992); see also Sygenta Crop Prot. v. Henson , 537 U.S. 28, 32 (2002); O'Halloran v. Univ. of Wash. , 856 F.2d 1375, 1380 (9th Cir. 1988). "The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Gaus , 980 F.2d at 566; see also Nishimoto v. Federman-Bachrach & Assoc. , 903 F.2d 709, 712 n.3 (9th Cir. 1990); O'Halloran , 856 F.2d at 1380. "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus , 980 F.2d at 566.
Relying on the arbitration provision in the 2004 Note Purchase Agreement, Marubeni removed this case under the Convention, for which 9 U.S.C. §§ 203-205 provides jurisdiction. Marubeni now argues that having ordered the fourth cause of action to arbitration, "no basis [now] exists for federal jurisdiction over Plaintiffs' fourth cause of action." ( Remand Mot. 2:10.) Marubeni is correct.
Medivas contends that Marubeni's current remand motion is in reality a motion to reconsider and reverse a key issue that was integral to the Court's previous orders. Medivas is mistaken.
The Note Purchase Agreement's arbitration clause, contained in section 10.14 of that agreement, states:
All disputes and differences which may arise out of or in connection with this Agreement, or the breach thereof, will be settled amicably insofar as possible by means of negotiations among the responsible executive officers of the parties. All such disputes and differences which are not settled in this manner within thirty (30) days after the receipt by responsible executive officers of either party of written notification from the other party of the existence of a dispute, shall be submitted to arbitration under the commercial arbitration rules of the International Chamber of Commerce(the "ICC") for final and binding arbitration.
( See Pls.' NOL, Ex. 1.) The clause further states that "[a]ll decisions rendered by a majority of the arbitration panel shall be final and binding among the parties..." ( Id. )
Additionally, Article 6 Section 3 of the ICC Rules of Arbitration provides as follows:
If any party against which a claim has been made... raises one or more pleas concerning the existence, validity or scope of the arbitration agreement or concerning whether all of the claims made in the arbitration may be determined together in a single arbitration, the arbitration shall proceed and any question of jurisdiction or of whether the claims may be determined together in that arbitration shall be decided directly by the arbitral tribunal, unless the Secretary General refers the matter to the Court for its decision pursuant to Article 6(4).
In its partial award, the arbitral tribunal decided, "[b]ecause the Voidable Security Claim directly concerns the collateral given under the Security Agreement, it is the view of the Tribunal that such dispute is subject to the Forum Clause and accordingly the Tribunal does not have jurisdiction over this issue." ( See Remand Mot., Ex. A [Doc. 44-1], ¶ 185.) While MediVas asserts that this claim directly contradicts this Court's previous finding, it is important to emphasize that the finding was based entirely on this Court's analysis of the allegations in the complaint. In contrast, the arbitral tribunal's finding was made after the submission of evidence and a more fully developed record that allowed them to more accurately determine whether the claim fell exclusively within the scope of the venue provision.
More importantly, Marubeni and MediVas agreed to arbitrate their disputes according to the ICC Rules of Arbitration, and those rules provide for the authority of the tribunal to decide questions of jurisdiction. See ICC RULES OF ARBITRATION ART. 6(3).[3] Accordingly, the tribunal's decision of the threshold jurisdictional issue as to MediVas' fourth cause of action fulfills the terms of both the arbitration clause and this Court's previous orders based on that clause. Because the terms of the arbitration clause have been fulfilled, the Court would vitiate the parties' intentions in agreeing to the ICC Rules of Arbitration if it were to order the fourth cause of action back to arbitration. See Wolsey, Ltd. v. Foodmaker, Inc. , 144 F.3d 1205, 1210 (9th Cir. 1998) (quoting City of El Cajon v. El Cajon Police Officers' Ass'n , 49 Cal.App.4th 64, 71(1996)) ("Under California contract law, the court must endeavor[ ] to effectuate the mutual intent of the parties.'").
The Convention that formed the basis for the Court's jurisdiction over this case applies only to the enforcement of arbitral awards. See Convention, June 10, 1958, 21 U.S.T. 2517. The terms of the arbitration clause have been fulfilled. With respect to MediVas' fourth cause of action, there is no potential for future arbitration or future enforcement of an arbitral award in compliance with the Convention. Therefore, the Convention no longer serves as a source of jurisdiction for this Court to hear that cause of action. See 21 U.S.T. 2517. Because the Convention was the sole source of this Court's jurisdiction over MediVas' fourth cause of action, the Court is now without jurisdiction to hear it. See 9 U.S.C. § 203.
For the foregoing reasons, the Court GRANTS Defendants' motion to remand the fourth cause of action to California Superior Court [Doc. 44].
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May 19, 2010
CHASE HAYES, AN INDIVIDUAL, ET AL., PLAINTIFFS,v.GURU DENIM, INC., DEFENDANT.
ORDER SUA SPONTE DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM AND LACK OF SUBJECT MATTER JURISDICTION [Doc. No. 7]
On May 14, 2010, Plaintiffs Chase Hayes, an Individual, and www.womendesignerclothes.com, a California business entity of unknown status ("Plaintiffs"), filed a second amended complaint ("SAC") for "Unfair Competition" [Doc. No. 7]. The Court previously granted Plaintiff Hayes' motion to proceed in forma pauperis ("IFP") [Doc. Nos. 2, 5]. Accordingly, Plaintiffs' SAC is once again subject to mandatory screening under 28 U.S.C. § 1915(e)(2), and is DISMISSED for the reasons set forth below.
I. SUA SPONTE SCREENING PER 28U.S.C.§1915(e)(2)
As the Court explained in its May 10 order [Doc. No. 5], when a plaintiff seeks to proceed IFP, the complaint is subject to mandatory screening and the Court must order the sua sponte dismissal of any case it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."). A "court must accept as true all allegations of material fact" and construe a pro se's pleading liberally. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). But the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Here, Plaintiffs' SAC merely re-pleads without amendment the two-paragraphs previously alleged in their first amended complaint ("FAC").*fn1
Defendant, GURU DENIM, INC., was negligent in taking over $100,000 in Used and Offprice Jeans from Plaintiff under Defendant's claim of violating their trademarks and copyrights. First, Used Jeans is neither trademark infringement nor unfair competition. Second, Defendant sold the offprice Jeans to a third party whom sold them to plaintiff (EX A).
Defendant MALICIOUS created a story about a Hoodie that they purchase from Plaintiff website and used that claim to shut down Plaintiff website and file a case which in the end ask the court for a dimissal of the action, without prejudice (see EX B and attachments). [Doc. No. 3, p.1-2 (emphasis in original).] Indeed, the only difference between the SAC and the FAC, is the retitled caption, which now identifies the cause of action as "Unfair Competition" in place of "Negligence and Violation of Interstate Commerce Laws [and] Malicious Prosecution." [See Doc. Nos. 3, 7.] In its prior Order, the Court explained several reasons why Plaintiffs' FAC was deficient, and therefore subject to dismissal-Plaintiffs have cured none of those deficiencies in their SAC. [See Doc. No. 5.]
(A) Plaintiffs' SAC Fails to State a Claim Upon Which Relief May be Granted
First, the SAC again fails to state a claim on which relief can be granted. Instead of augmenting their complaint, Plaintiffs re-designate their existing allegations as a cause of action for unfair competition. Plaintiffs' "amendment" is insufficient.
To state a cause of action for violation of California' unfair competition law, Plaintiffs must allege facts to establish that Defendant engaged in "unlawful, unfair, or fraudulent" business acts or practices. Cal. Bus. & Prof. Code § 17200. Although unfair competition law covers a wide range of conduct, Plaintiffs' limited and unclear allegations do not allege sufficient facts to establish an unfair competition claim. Accordingly, Plaintiffs' SAC is subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim on which relief may be granted.
(B) The Court Lacks Jurisdiction Over Plaintiffs' Claim
Second, even if Plaintiffs' allegations were sufficient to state an unfair competition claim, dismissal is still appropriate because the Court lacks subject matter jurisdiction over this action.*fn2
As the Court explained in its previous Order, federal courts have limited jurisdiction, and therefore, can hear only certain types of claims that the Constitution or Congress has authorized them to adjudicate. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). The Court's Order set forth several reasons why Plaintiffs' FAC failed to confer jurisdiction on this Court, but Plaintiffs' SAC cures none of the deficiencies, and is therefore, subject to dismissal. Specifically, the SAC does not demonstrate diversity of citizenship among the parties,*fn3 and Plaintiffs' only claim is based on state law. Because Plaintiffs provide no basis for this Court's jurisdiction, the SAC must be dismissed.
(C) Www.womendesignclothes.com Cannot Proceed Without Counsel
Finally, the Court previously instructed Plaintiffs that www.womendesignclothes.com, a California business entity of unknown status, cannot proceed without counsel. "[U]nder a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record." CLD Construction, Inc. v. City of San Ramon, 120 Cal. App. 4th 1141, 1145-46 (2004). Indeed, the Court explicitly admonished Plaintiffs that if they intended to re-file their complaint to cure the deficiencies noted in the May 10 Order, www.womendesignerclothes.com must be represented by counsel and pay the required filing fee. [See Doc. No. 5, p.6; 28 U.S.C. § 1915(a) (only individuals may proceed in forma pauperis).] Plaintiffs have failed to comply with the Court's instruction. Again, Plaintiffs attempt to bring their claim on behalf of www.womendesignerclothes.com, but have not retained counsel to appear on the company's behalf, and have not paid the required filing fee.
Upon reviewing Plaintiffs' SAC, IT IS HEREBY ORDERED that Plaintiffs' SAC is DISMISSED pursuant to Federal Rule of Civil Procedure 12(h)(3) and 28 U.S.C. § 1915(e)(2)(b). The Court dismisses Plaintiffs' SAC without prejudice as to their right to pursue their claim(s) in state court. The Court advises Plaintiffs that if they file a third amended complaint that fails to cure the deficiencies outlined above (and set forth in greater detail in the Court's May 10 Order), their complaint may be dismissed with prejudice, which will likely impact Plaintiffs' ability to pursue their claim(s) in state court or other appropriate forum.
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Footnotes (if any) include details of the court's decision.
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