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Sample of Principle of Businness (S.B.A.) Marketing
Sample of Principle of Businness (S.B.A.) Marketing
Submitted by: semajl
Name of Company: Sensatioń Lissé
Name of Product: Amethyst
Mission Statement:
To cleanse and enhance skin's texture and erase today's stereotypical view of beauty and inspire both men and women to take better care of their skin.
Vision Statement:
To be the best our company can be and keep our product up to standard.
1. To make a profit
2. To satisfy customer needs
3. To reduce overall budget cost
4. To increase market share by 5% by 2013
5. To provide lower costs relative to key competitors
6. To be recognized as a leader in beauty care products
Factory: Seatons Village
Retail Store: White building beside Digicel on Market Street
Justification of Product:
In today's society, many moisturizers promise smooth, healthy skin but at what cost? Most moisturizers either leave your skin too dry or too wet and clammy that is why we here at Sensatioń Lissé decided to create Amethyst. Amethyst is a moisturizer that works within the skin's surface to optimize moisture levels, and leave you with sensually smooth skin. This breakthrough formula is designed to caress your body, capturing the feeling of pure silk on skin. Amethyst can also help to improve blood circulation and reduce stress. With no artificial fragrance Amethyst body lotion offers the advantage of natural cleansing. You'll feel the difference after just one use.
It is summer and your skin is probably at its driest, using Amethyst will; help to create the feeling of wellness for body and soul, not only soothing but repairing the skin to have the perfect glow for you.
Price Comparison
Name of Competitors Price of Competitors Brand of Products Description of Products
Jergens $50.00 Body lotion, Sunscreen Moisturizers, 236 ml/ 8 fl oz
Shea Butter $41. 80 Body lotion 250 ml / 8.45 fl oz
Neutrogena $47. 50 Body lotion, Facial cleansers, Moisturizers, Makeup, Shampoo 250 ml / 8.5 fl. oz
Aveeno $35. 20 Body lotion, Shampoo, Moisturizers, Facial cleansers, Sunscreen…
27 Comments
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this sample has help me through a lot with my principles of business S.B.A. on marketing


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GEN 200 Week 5 Discussion Questions 2
In this document of GEN 200 Week 5 Discussion Questions 2 you will find the next information:
Post a 150-200-word response to the following discussion question by clicking on Reply, clicking quote original and inserting your name in the subject line next to the assignment title.
What is the relationship between ethics and critical thinking? Why are ethics a concern in the academic environment? What are ethical issues that are of concern in the academic environment?
Support the points you are trying to make with specific examples.
*** 200 **** 5 ********** Questions *Attached: GEN-200 Week 5 DQ 2.zip

subset: commoncrawl


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Download: My Body Is My Temple Wallpapers
My Body Is My Temple
By: Corrina Nika
"The human body is the best work of art."
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For this month's creation, i wanted to share some wallpapers to inspire you.
After undergoing a couple of surgeries that left scars both physical and mental, I've struggled a lot with the way that i look. Lately, I've come to realize that only time can help someone love the skin they're in, and nothing else. Time to fall in love with their bodies, and time to take care of their physical temple.
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Adrian Cardona and Family Fund
$7,265 of $12k goal
Raised by 113 people in 16 months
Sara Cardona-Keith REDLANDS, CA
The family of Adrian Cardona are reaching out to family and friends to help raise funds for Adrian and his children. This will help cover funeral expenses and contribute towards the financial well being of his children.+ Read More
We thank you all for your continued prayers and support. God bless you.
We thank you all for your continued prayers and support. God bless you.
Update 1
Posted by Sara Keith
Posted by Sara Keith
16 months ago
Thank you all for your continued support and prayers. Your outpouring of love help to sustain us as we see how deeply our brother touched so many of your lives and made a lasting and possitive impression.
Help spread the word!
1.0K total shares


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Alfalfa Nail Supply's Botanical Escapes Renewing Rose line of skin care products will hydrate parched skin while leaving a fresh scent of rose. The Hydration Lotion is for hands, feet, and body and can be applied daily for moisturizing. The Salt Glow Gel is an effective exfoliant that makes for a great pedicure scrub, and the Hydrotherapy Salt is non-foaming and non-staining so feet can be softened in a fragranced soak.
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This specialized concrete breaking service has operated all over the United States due to the unique service they provide. The current owner started the business in 1982 with equipment he designed and built himself, giving this business an edge over similarly-constructed companies. Over the years, he has added more and more powerful equipment, solidifying this business' dominance in the field. Since this business already operates all over the US, this business is easy to relocate if desired, and has great opportunities for expansion. If you are mechanically inclined, and love to work with hydraulics as well as mechanical and electrical systems, this business might just be your big break! Inquire after this fantastic business in the northeast corner of MO. This establishment is priced to include $200,000 of equipment and vehicles. Ask for portfolio #0077.
Financials (USD)
Asking Price $440,000
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RanceLab FusionERP is an on-premise, fully functional retail and point of sale solution. Capabilities include billing, inventory control, finances and accounting, payroll and employee management, and a customer management and loyalty program.
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Singer Mechanical Sewing Machine 3820 Reviews
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Read 3 Reviews
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September 24, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,v.LUIS ANGEL GUTIERREZ, DEFENDANT AND APPELLANT.
Patricia M. Murphy, Judge Superior Court County of Ventura (Super. Ct. No. 2008011529)
(Ventura County)
During the course of a sexual assault, Luis Angel Gutierrez murdered his aunt by stabbing her 28 times. A jury convicted him of first degree murder with the special circumstances finding that the murder was committed during the commission of a rape or attempted rape. (Pen. Code, §§ 187, subd. (a); 189, 190.2, subd. (a)(17)(C); 261.)*fn1 . The jury found that he personally used a deadly weapon (§ 12022, subd. (b)(1)) and was over 14 years of age at the time of the offense (Welf. & Inst. Code, § 602, subd. (b)(1)). Appellant was sentenced to life without possibility of parole (LWOP) plus one year on the weapon enhancement (§ 12022, subd. (b)(1)).
He appeals contending that the trial court erred in finding that he waived his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].) He also challenges the LWOP sentence. We affirm.
The victim, Josefina Gutierrez (Josefina), lived in Simi Valley with her husband, sons, and other relatives including appellant.
At 4:20 a.m., on March 16, 2008, Josefina's husband, Abel Hernandez, went to work leaving Josefina asleep in their bed. Appellant took his shoes off and entered the house. Abraham Gutierrez, Abel's nephew, heard someone open Josefina's bedroom door which was unusual because Josefina normally slept in on Sundays. Thereafter, he saw appellant in the kitchen. Appellant's right hand was bleeding. Appellant tried to hide the injury with his jacket sleeve and said that he hurt his hand in a fight. Appellant left about five minutes later.
Jose Luis Mendoza, Josefina's brother, saw blood on the floor and the bedroom door ajar. Josefina was naked, face down on the floor with her legs spread apart. She had a large knife protruding from her back. There were fresh bruises on her face and body and stab wounds to the back, shoulder, hands, chest, face, and neck.
Appellant admitted himself to Los Robles Hospital. Thereafter, he spoke to the police. He said that a Hispanic gang member stabbed him in the hand at a party in Moorpark. A sexual assault nurse examiner found blood on the head of appellant's penis. Josefina's DNA was on his scrotum. Appellant had dried blood all over him.
A crime scene investigator found bloody handprints on Josefina's thighs, blood on the bedroom walls and ceiling, and blood spatter and smears in the bathroom. Appellant's DNA was on Josefina's perianal area, her buttocks and inner thighs, and on the bathroom wall by the light switch. Officers searched appellant's bedroom and found bloody socks, shoes, and jeans. Blood was on the outside and inside of appellant's car and a bloodstained dress shirt was in the car.
Appellant underwent hand surgery and was hospitalized. He was released to the custody of the Simi Valley Police Department three days later on March 19, 2008. Officer Lincoln Purcell read appellant his Miranda rights in the Spanish language. Appellant nodded his head up and down after each advisement indicating he understood his rights. Officer Purcell did not, however, expressly ask appellant to waive the Miranda rights. Nevertheless, appellant showed a willingness to discuss the case and did so for over two hours. Appellant gave conflicting accounts of what happened.
Appellant told Officer Purcell that he attended a birthday party at Erika Gutierrez's house and purchased methamphetamine. After leaving the party 10 to 15 men beat and stabbed him. Appellant sustained a cut to his hand and walked home.
Officer Purcell told appellant that the police had this house under surveillance because of prior drug transactions. He told appellant that the police did not see a group of men harm anyone. Purcell then changed the subject and asked why his blood was in Josefina's bedroom.
Appellant changed his story and said that he arrived home at 5:30 a.m. and knocked on Josefina's bedroom door. The two argued and Josefina attacked him with a knife. Appellant grabbed the knife but Josefina cut him and then stabbed herself.
Officer Purcell told appellant that Josefina was stabbed in the back multiple times before she was stabbed in the stomach. Appellant said that Josefina stabbed herself to falsely incriminate him. After Josefina cut his hand, he grabbed the knife and stabbed her in the back two times. Appellant denied stabbing Josefina in the face or neck or having sex with her.
Officer Purcell asked why blood was on appellant's penis. Appellant said that Josefina sexually assaulted him, took off her nightshirt, and had appellant remove her bra. Appellant fell on top of her after she pulled his pants down. Appellant did not know if his penis penetrated her vagina but he did recall pulling his pants back up and stabbing Josefina before leaving.
Implied Miranda Waiver
Appellant contends that the trial court erred in finding that he impliedly waived his Miranda rights (Miranda v. Arizona, supra, 384 U.S. 436 [16 L.Ed.2d 694]). The Miranda admonition and two-hour-forty-minute police interview was videotaped. The trial court reviewed a DVD and transcript of the interview and found that appellant, "by his comments, by his -- by the language he used, by the body language that he demonstrated that he executed a free and deliberate choice to discuss the issue with the police officers. It was obvious to me that he understood his rights based on his responses to the questions, [and] based on his behavior and his conduct. Based on his indication to stop the interview for the five-minute period, he demonstrated to me satisfactorily that he understood that he was in control of the situation, and the officers complied with his request. [¶] So it's obvious to me that the Miranda warnings were properly given, that the Defendant understood the rights that he was given and that he chose to discuss the matter with the police officers, notwithstanding those rights that were given to him."
The trial court considered appellant's age and physical condition and that appellant was "on no medication that we can tell . . . . He's fully conscious. He's alert. And even though he requests the pain medication. . . , there wasn't anything I saw on the DVD or any testimony . . . that would indicate to me that he was debilitated or otherwise in such pain that his free will was overcome by his physical condition. [¶] And finally, on the issue of his age, notwithstanding the officer's belief, and rightfully so, that he was over the age of 18, the Court still . . . has considered his actual true age and his intelligence and his capacity to understand as demonstrated both in the DVD as well as the transcript and through the testimony of the officers that there wasn't anything about his age or his request for his father that in this Court's view overcomes his free will in executing an implied waiver."*fn2
On appeal, we defer to the trial court's factual findings which are supported by substantial evidence and independently determine whether the statement was obtained in violation of Miranda. (People v. Nelson (2012) 53 Cal.4th 367, 380 (Nelson).) "'[A] suspect who desires to waive his Miranda rights and submit to interrogation by law enforcement authorities need not do so with any particular words or phrases. A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision. [Citation.] We have recognized that a valid waiver of Miranda rights may be express or implied. [Citations.] A suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights. [Citations.]'" (People v. Hawthorne (2009) 46 Cal.4th 67, 86.)
After appellant was released from the hospital, he was advised of his Miranda rights in the Spanish language. Officer Purcell read from a Miranda card and, after each advisement, looked at appellant and asked if he understood. Appellant nodded his head up and down in the affirmative, indicating that he understood each right.
Officer Purcell asked how appellant cut his hand. Appellant said, "I don't feel good right now" and asked for a five-minute break. Officer Purcell and his partner, Detective Jay Carrott, honored appellant's request and stopped the questioning.
Appellant broke the silence a minute later and asked for a pill. Officer Purcell explained that the police were not authorized to administer medication and confirmed that the hospital had not prescribed any medication when it released appellant.*fn3 Appellant said that his hand was "stinging" but agreed to proceed with the interview.
Appellant contends that he had just been released from the hospital, was in pain, and was unable to waive his Miranda rights. The DVD shows to the contrary. Appellant wanted to speak to the officers and used his bandaged hand to open a water bottle, point to a diagram, rub his face, and make stabbing gestures. Appellant demonstrated what took place between Josefina and him by standing up and identifying their body positions. At another point in the interview, he stepped over to a doorway in the interrogation room and identified the bloody pants and socks found in his bedroom closet. Following the interview, appellant agreed to accompany the officers to the house and do a crime scene walk-through which was videotaped. As appellant walked through the bloodstained bedroom, he was calm, paused at the bathroom door, and asked Officer Purcell if his socks would get stained by the blood.
The DVD depicts an alert young man who is sober, calm, and is responsive to the officers' questions. There is no evidence that the hand injury clouded appellant's judgment or impaired his decision to waive his rights. (See, e.g., People v. Breaux (1991) 1 Cal.4th 281, 299-301 [Miranda rights waived in hospital directly following emergency treatment for gunshot wounds and injection of morphine to relieve pain]; People v. Perdomo (2007) 147 Cal.App.4th 605, 616-617 [defendant waived Miranda rights while in intensive care and medicated for pain].) Unlike the defendant in Mincey v. Arizona (1978) 437 U.S. 385, 398-401 [57 L.Ed.2d. 290, 304-305] who suffered unbearable pain and lost consciousness during the police interview, appellant was lucid, asked questions, and interacted with the officers.
Appellant complains that he was not provided a written copy of the Miranda warnings but a verbal admonition is sufficient. Officer Purcell read from a Miranda warning advisement card and asked whether appellant understood each right. Appellant nodded his head up and down in the affirmative, looked Officer Purcell in the eye, and by his gestures and conduct indicated that he was waiving his rights and wanted to talk to the officers.
He also complains that Officer Purcell failed to obtain an express verbal or written waiver of each Miranda right. As discussed in Berghuis v. Thompkins supra, 560 U.S. at p. __ [176 L.Ed.2d at p. 1112], the waiver may be implied. A defendant, by his words and conduct, may make an implied waiver of his Miranda rights by acknowledging that he understands the rights read and answering questions. (People v. Whitson (1998) 17 Cal.4th 229, 250.)
Appellant contends that he invoked his right to counsel/remain silent when he asked about his father. Appellant said, "I wish my Dad could be here with me," and "Where is my father?" but did not ask the officers to stop the interview. The trial court found that "never in conjunction with discussing his father did [appellant] actually ask to terminate [the interview] and talk to his father. In effect, he doesn't ask to talk to his father. He makes statements such as, 'I wish he were here' or 'where's my father?'"
In People v. Lessie (2010) 47 Cal.4th 1152, our Supreme Court held that a minor's request "to make a phone call to my dad" (id., at p. 1159) did not render his statements inadmissible (id., at pp. 1169-1170). "Defendant's confession would be subject to exclusion under the federal Constitution if the totality of the relevant circumstances demonstrated that his purpose in asking to speak with his father was to invoke his Fifth Amendment privilege. (See, e.g., Fare [v. Michael C. (1979)] 442 U.S. 707, 725. . . ) . . . Defendant did not say, for example, that he wanted to speak with his father before answering questions or wanted his father to call an attorney on his behalf. Nor did defendant hesitate at any point to answer the detectives' questions." (Id., at p. 1170.)
The same analysis applies here. Appellant did not say that he wanted to stop the interview, wanted his father to be present, or wanted his father to call an attorney. There is no evidence that the officers misled appellant or that appellant wanted to stop the interview.*fn4 "'. . . 'Faced with an ambiguous or equivocal statement, law enforcement officers are not required . . . either to ask clarifying questions or to cease questioning altogether." [Citations.]' [Citations.]" (People v. Scott (2011) 52 Cal.4th 452, 481.)
In People v. Nelson, supra, 53 Cal.4th 367, a 15-year-old charged with murder and burglary waived his Miranda rights and asked to speak to his mother. Relying on Davis v. United States (1994) 512 U.S. 452, our Supreme Court held that the defendant's request to speak to his mother was not sufficiently clear to require cessation of the interrogation. (Nelson, supra, at p. 372.) Consistent with Davis v. California, supra, the court held that once a juvenile suspect has waved his or her Miranda rights, "any subsequent assertion of the right to counsel must be articulated 'sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. [Citation.] This standard likewise applies to assertions of the right to remain silent. [Citation.]" (Nelson, supra, 53 Cal.4th at pp. 371-372.)
The court in Nelson explained: "There are important practical and policy reasons supporting this rule. When the interrogating officers 'reasonably do not know whether or not the suspect wants a lawyer, a rule requiring the immediate cessation of questioning "would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity," . . . because it would needlessly prevent the police from questioning a suspect in the absence of counsel even if the suspect did not wish to have a lawyer present.' [Citation.] Likewise, in the right to silence context, '[i]f an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused's unclear intent and face the consequence of suppression "if they guess wrong."' [Citation.] In such circumstances, suppression of a voluntary confession 'would place a significant burden on society's interest in prosecuting criminal activity.' [Citation.]" (Nelson, supra,53 Cal.4th at pp. 377-378.)
The trial court considered appellant's age, experience, education, background, and intelligence, and whether appellant had the capacity to understand the Miranda warnings and the consequences of waiving those rights. (Fare v. Michael C., supra,442 U.S. at pp. 724-725 [61 L.Ed.2d at p. 212]; People v. Lessie, supra, 47 Cal.4th at p. 1169.) We have reviewed the DVD and transcript of the interview and, like the trial court, conclude that appellant freely and voluntarily waived his Miranda rights.
Appellant argues that the suspect's age is an important factor in determining whether he voluntarily waived his Miranda rights. It is settled that a minor has the capacity to waive his Miranda rights and make a voluntary confession. (People v. Lessie, supra,47 Cal.4th at pp. 1166-1167.) Appellant was 17 years old but said he was 19. (Ante,fn 2.) The officers believed him, and for good reason. Appellant looks and acts like an adult on the DVD.
The record is devoid of evidence that appellant, because of his age, education, intelligence, or medical condition did not understand the rights he was waiving or what the consequences would be if he talked to the officers. (See Fare v. Michael C., supra, 422 U.S. at pp. 726-727 [61 L.Ed.2d at pp. 213-214]; In re Bonnie H. (1997) 56 Cal.App.4th 563, 579.) Based on the totality of the circumstances, it is clear that appellant knowingly and voluntarily waived his Miranda rights. (People v. Lewis (2001) 26 Cal.4th 334, 383-384; see, e.g., United States v. Doe (9th Cir 1995) 60 F.3d 544, 546 [officer's unrebutted testimony established that juvenile knowingly and voluntarily waived his Miranda rights].)
Harmless Error
Assuming, arguendo, that appellant's statement should have been excluded, any error was harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 310 [113 L.Ed.2d 302, 332]; People v. Cunningham (2001) 25 Cal.4th 926, 994.) Appellant's statement to the police did not explicitly admit guilt, and confirmed what was already established by the physical evidence. "Without defendant's statements, the physical evidence still established defendant's guilt as to all the crimes charged and the special circumstances alleged." (People v. Davis (2009) 46 Cal.4th 539, 599.)
Abraham Gutierrez and Luis Mendoza saw appellant's cut hand and blood outside Josefina's bedroom door. Blood was in appellant's car and on his dress shirt in the car. Appellant left Josefina nude on the bedroom floor with her legs spread apart and a knife protruding from her back. Josefina was covered with bruises and stab wounds, many of which were inflicted after appellant removed her nightgown and bra.
Appellant asserts that there was no sperm or trauma to the victim's vagina to support the finding that he murdered Josefina during the commission of a rape or attempted rape. The coroner, however, testified that only 30 percent of adult sexual assault victims have visible injuries to their genitalia. The absence of trauma or injury to Josefina's vagina did not rule out rape or attempted rape. (See, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1130-1132 [physical evidence of a sexual assault is not a prerequisite to finding intent to rape].) Nor does attempted rape require sexual penetration. (People v. Scott, supra, 52 Cal.4th at p. 488.)
The trial court found that the violence inflicted "is really inexplicable. And there isn't, other than the rape special circumstance, there isn't any rationale explanation as to how [appellant] could have found himself in this position." We concur. The assailant had no reason to disrobe Josefina, drag her from the bathroom to the bedroom, or touch her inner thighs unless it was for a sexual purpose. It was uncontroverted that the knife wounds were inflicted before and after the nightgown was removed and that Josefina suffered defensive wounds trying to protect herself. Blood was under appellant's penis foreskin and Josefina's DNA was on appellant's scrotum. Blood, long hairs, and fibers were on appellant's feet and between his toes, and dried blood was on his legs, hands, head, bracelet, and ears.
Appellant's palm print was on the bathroom floor and his sock imprint was on the bathroom door, consistent with the prosecution's theory that appellant straddled Josefina and dragged her out of the bathroom as she kicked the floor. Josefina's nightgown and bra were in the bathroom and her panties were in the bedroom. Appellant's DNA was on Josefina's perianal area and thighs, and on the bathroom wall next to the light switch. Forensic evidence showed that appellant spread Josefina's legs, leaving bloody handprints and friction ridges on her inner thighs. A blood spatter expert testified that the wide blood swipe on Josefina's upper buttocks and back was consistent with an erect male penis.
Appellant's statements to the police were not essential to the People's case. His statements were overshadowed by grisly physical and forensic evidence that he murdered Josefina during a violent sexual assault. Any error in admitting appellant's police station statement was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23-24 [17 L.Ed.2d 705, 710-711]; People v. Bradford (1997) 15 Cal.4th 1229, 1314.)
Life Without Possibility of Parole
Appellant argues that his LWOP sentence violates the Eighth Amendment and is cruel and unusual punishment. Appellant, however, failed to object to the sentence, forfeiting his right to challenge the sentence as cruel and unusual punishment. (People v. Russell (2010) 187 Cal.App.4th 981, 993; People v. Kelley (1997) 52 Cal.App.4th 568, 583.)
On the merits, appellant makes no showing that the sentence is grossly disproportionate to the severity of the crime. (Solem v. Helm (1983) 463 U.S. 277, 288 [77 L.Ed.2d 637, 647-648] (Solem); People v. Dillon (1983) 34 Cal.3d 441, 477-478.) In evaluating proportionality, courts consider (1) the nature of the offense and the offender, (2) punishments for more serious offenses in the same jurisdiction, and (3) punishments for the same crime in other jurisdictions. (Solem, supra, at pp. 290-292 [77 L.Ed.2d at pp. 649-650]; In re Lynch (1972) 8 Cal.3d 410, 425-427.) "[A]pplication of a proportionality analysis to reduce a first degree felony-murder conviction must be viewed as representing an exception rather than a general rule." (People v. Munoz (1984) 157 Cal.App.3d 999, 1014.) Murder is a violent and serious crime and presents the highest level of danger to society. (People v. Em (2009) 171 Cal.App.4th 964, 972-973.)
Here the murder was extremely brutal. Appellant repeatedly stabbed Josefina in the course of a violent sexual assault. He expressed no remorse and told the police (three days after the murder) that Josefina sexually assaulted him. After the interview, he accompanied the officers to the house and calmly walked through the bloodstained bedroom.
Nor has appellant shown that the LWOP sentence is so grossly disproportionate to the crime "'. . . that it shocks the conscience and offends fundamental notions of human dignity,' thereby violating the prohibition against cruel and unusual punishment of the Eighth Amendment of the federal Constitution or against cruel or unusual punishment of article I, section 17 of the California Constitution [Citations.]" (People v. Cunningham, supra, 25 Cal.4th at p. 1042.) Under the Eighth Amendment, a life sentence consistent with state law is unconstitutional only in that "'rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross, disproportionality.' [Citation.]" (Ewing v. California (2003) 538 U.S. 11, 30 [155 L.Ed.2d 108, 123].) That is not the case here.
Citing Roper v. Simmons (2005) 543 U.S. 551 [161 L.Ed.2d 1] (Roper), and Graham v. Florida (2010) __ U.S. ___ [176 L.Ed.2d 825] (Graham), appellant argues that juvenile offenders are less culpable than adults who commit violent crimes because juvenile offenders lack maturity, perspective, judgment and self-discipline. The holding of Roper is that "[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." (Roper, supra, at p. 578 [161 L.Ed.2d at p. 28].) The decision in Graham is that "[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide." (Graham, supra, at p. __ [176 L.Ed.2d at p. 850].) Roper and Graham do not prohibit imposition of a life sentence where the juvenile commits a homicide. (See, e.g., Harris v. Wright (9th Cir. 1996) 93 F.3d 581, 583-585 [concluding that LWOP sentence not unconstitutionally disproportionate to 15-year-old defendant convicted of murder].)
Appellant has not demonstrated that his punishment is grossly disproportionate to punishments for more serious offenses in California or punishments for similar offenses in other jurisdictions. (In re Lynch, supra,8 Cal.3d at pp. 425-427; Solem, supra, 4363 U.S. at pp. 291-292 [77 L.Ed.2d at pp. 649-650].) Only six states forbid LWOP sentences for juvenile offenders and seven states permit LWOP sentences for juvenile offenders. (Graham, supra,__ U.S. at p. __, appens. II & III [176 L.Ed.2d at p. 852, appens. II & III].) Courts in this state and other states have held that a LWOP sentence does not constitute cruel and/or unusual punishment where the juvenile offender is convicted of felony murder. (See People v. Guinn (1994) 28 Cal.App.4th 1130, 1147; People v. Gonzales (2001) 87 Cal.App.4th 1, 17 [50 years to life not cruel and unusual punishment for 14-year-old convicted of aiding and abetting gang-related murder]; People v. Launsburry (Mich 1996) 551 N.W.2d 460, 463-464; Commonwealth of Pa. v. Carter (Pa. Super. 2004) 855 A.2d 885, 891-892.)
In People v. Caballero (2012) 55 Cal.4th 262 our Supreme Court recently held that a 110-year-to-life sentence imposed on a juvenile convicted of non-homicide offenses (three gang-related attempted murders) was the functional equivalent of a life sentence without the possibility of parole and contravenes Graham. Caballero is inapposite because appellant was convicted of a special circumstances felony murder and sentenced pursuant to section 190.5, subdivision (b) which vested the tiral court with the discretion to impose a 25-yer-to-life sentence.
The United States Supreme Court, in Miller v. Alabama (2012) __ U.S. __ [132 S.Ct. 2455] (Miller), recently held that mandatory LWOP sentences for juvenile homicide offenders violate the Eighth Amendment's prohibition on cruel and unusual punishment. In Miller (14-year-old convicted of arson-murder) and a companion case (Jackson v. Hobbs [14-year-old convicted of felony-murder]), state law mandated a LWOP sentence even if the sentencing court believed that a lesser sentence was more appropriate. (Id., at p. ___ [132 S.Ct. at p. 2460.) The Miller court stated that "Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment's ban on cruel and unusual punishment." (Id., at p. __ [132 S.Ct. at p. 2475].)
Unlike Miller, appellant's LWOP sentence was not mandatory. Appellant was sentenced pursuant to section 190.5, subdivision (b) which provides that a juvenile defendant 16 years of age or older who is convicted of first degree, special circumstance murder may be sentenced to life without possibility of parole.*fn5 (People v. Guinn, supra,28 Cal.App.4th at pp. 1141-1142.) The statute does not require a mandatory LWOP sentence and vests sentencing courts with the discretion to sentence the defendant to a term of 25 years to life with possibility of parole. It does not violate the proscription against cruel or unusual punishment. (Id., at p. 1143-1144.)
The trial court, in sentencing appellant, stated it was "concerned throughout the trial about the defendant's age and the age of which he committed this horrific crime. [¶] And I have considered all of the legal options that are limited for the Court with this conviction, . . . and there are a number of things about the crime itself that in my view warrants life without the possibility of parole, notwithstanding the defendant's age. [¶] First and foremost is really just the true horror that was involved and the amount of violence that was inflicted on Josefina is really inexplicable. And there isn't, other than the rape special circumstance, there isn't any rational[] explanation as to how the defendant could have found himself in that position. [¶] He has devastated this family and her children and her husband, and there is really no amount of time that could be imposed as punishment that would repay the damage he has caused, not just to her inner circle but to the community as well and the community of her family. [¶] . . .[¶] So I thought -- I have thought long and hard about what punishment is appropriate and I am absolutely convinced at this stage of the proceedings that life without the possibility of parole is the only thing that the Court can do that could redress the amount of violence that was inflicted in this case."
Section 190.5, subdivision (b) "requires 'a proper exercise of discretion in choosing whether to grant leniency and impose the lesser penalty of 25 years to life for 16-year-old or 17-year-old special circumstance murderers. The choice whether to grant leniency of necessity involves an assessment of what, in logic, would mitigate or not mitigate the crime. . . .'" (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089.)
The trial court was aware of its discretion and declined to impose a more lenient sentence. Remanding for resentencing in light of Miller would be a futile exercise. Appellant argues that a categorical ban of LWOP sentences for juveniles is required under the Eighth Amendment, but no court has so held.
Appellant's remaining arguments have been considered and merit no further discussion.
The judgment is affirmed.
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"The artificial lake around the castle" Top 5 Page for this destination City Park - Varosliget Tip by 1courage
City Park - Varosliget, Budapest: 56 reviews and 137 photos
In the city park you can find 3 lakes. One of them is around the Vajdahunyad castle. You can hire here boats to go around the castle and see the numerous duck families who considere this lake their home since generations. On the other side of the lake, there are banks and camping chairs from wich you can enjoy the fantastic view of all the castle and it`s towers. This is a very quiet place, ideal for families and for couples to spend some hour in.
Address: 1146 Budapest, V�rosliget (City Park)
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Freax and Rejex (Dancing Jax, Book 2)
by Robin Jarvis
Dancing Jax (Book 2)
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The second novel in the extraordinary, ground-breaking, genre-busting new trilogy from master of fantasy Robin Jarvis Five months have passed since the publication of the devilish book discovered in Dancing Jax. It is on its ninth reprint and tens of millions of copies have been sold in the UK. The entire country is now under its evil spell. Yet a tiny percentage of the population have proven to be immune to the words of Austerly Fellows. The number of unaffected children between the ages of 7 and 15 is only 49. With the critical eyes of the rest of the world turned towards Britain, the Ismus decides to send the children for an intensive holiday camp, where they will study the sacred text and learn to embrace it. But after the holiday is over, the children are told their stay has been extended. A barbed wire fence is put up around the site. And it soon becomes apparent that the place is not a camp and the children are not guests. They are prisoners of war…
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Odoo Help
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The Smokers Club is back with its annual summer tour after taking a one year break in 2015. Cam'ron with The Underachievers, G Herbo, Smoke DZA, and more are set to headline this year's tour. Launched by Cinematic Music Group, the Smokers Club Tour kicked off seven years ago and has since been headlined by the favorites like Method Man, Redman, Juicy J, Joey Bada$$, Ab-Soul, B-Real, Curren$y and Big K.R.I.T.
Cam'ron plans to release a "final" album sometime this year, making his headlining gig a little different in that it could be something of a farewell. The trek is set to begin May 31 in Vancouver, British Columbia, and will continue through July 14 until it terminates in Norfolk, Va. Take a look at the tour poster which includes the full dates. Tickets go on sale this Friday (April 1) at 10 a.m.
Last year, Cinematic Music Group's chief Jonny Shipes and star artist Joey Bada$$ explained to Billboard why Smokers Club took a break from its touring schedule.
"I just don't think I would have been doing myself or any of the acts that I've signed justice by focusing my attention as much as I had been in the past on Smokers," Shipes said. "So we didn't do the tour this year because of that, but the tour is going out next summer and it's gonna be ridiculous, all the dope youth and then Cam['ron] is gonna be the headliner… It's not like we were not into it, it just needed to take a step back in order for us next year to really do it properly."
Check out the official tour poster below:


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Exhibitions | Until 5th March 2017
Victoria and Albert (V & A) Museum 2.39 miles from Oddbins
A selection of pictures from acclaimed photographers spanning from the 19th century to the present day, with a heavy focus ...More
Glastonbury: Land And Legend
Exhibitions | Until 26th February 2017
Victoria and Albert (V & A) Museum 2.39 miles from Oddbins
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April 23, 2013
ANDERSON NEWS, L.L.C. AND LLOYD WHITAKER, AS ASSIGNEE UNDER AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS FOR ANDERSON SERVICES, L.L.C., : PLAINTIFFS,v.AMERICAN MEDIA, INC., BAUER PUBLISHING CO., LP., CURTIS CIRCULATION COMPANY, DISTRIBUTION SERVICES, INC., HACHETTE FILIPACCHI MEDIA, U.S., HUDSON NEWS DISTRIBUTORS, LLC, KABLE DISTRIBUTION SERVICES, INC., THE NEWS NEWS GROUP, LP, RODALE, INC., TIME INC. AND TIME/WARNER RETAIL SALES & MARKETING, INC., DEFENDANTS.
Plaintiffs Anderson News, L.L.C. and Lloyd Whitaker (collectively, "Anderson") filed an Amended Complaint on September 7, 2012, alleging that "After business hours on or about January 29, 2009, key employees of certain defendants -- ostensible competitors -- including Dennis Porti [("Porti")] of [Curtis Circulation Company ("Curtis")] and Michael Cvrlje [("Cvrlje")] of [Time/Warner Retails Sales & Marketing, Inc. ("TWR")], met at [Hudson News Distributors L.L.C.'s ("Hudson")] office in North Bergen, New Jersey. David Parry [("Parry")] of [The News Group, LP ("News Group")] -- a competitor of Hudson -- and John Rafferty [("Rafferty")] of [Distribution Services, Inc. ("DSI")], also were present at that January 29 meeting at Hudson's offices." (Am. Compl. at ¶ 63 ("Paragraph 63").) Defendants contend that there is no evidentiary support for Anderson's allegation, that it is false, and that, despite repeated requests from Defendants, Plaintiffs have refused to retract it. Defendants now move to strike Paragraph 63 and to sanction Anderson and its counsel, pursuant to Federal Rule of Civil Procedure 11(b)(3). Anderson responds that the Court should impose Sanctions upon Defendants for bringing a frivolous motion. For the following reasons, both motions are denied.
On March 16, 2009, Anderson, a magazine wholesaler, commenced this action by filing its initial complaint against Defendants -- magazine publishers, distributors and wholesalers -- alleging that Defendants engaged in anti-competitive conduct in violation of 15 U.S.C. §§ 1 and 15, and asserting various common-law claims. On January 26, 2010, TWR told Anderson that paragraph 55 of its Complaint*fn1 ("Paragraph 55") was not true, and requested either that it be withdrawn or that Anderson confirm that there was a sufficient basis for the allegation contained therein. TWR also informed Anderson that it would be willing to discuss the allegation further if Anderson provided additional details regarding the alleged meeting. (Wilson Decl. Ex. A.) In a February 2010 phone call with TWR, Anderson identified Cvrlje, senior vice president of sales and logistics at TWR, as a participant at the meeting and stated that it occurred on January 29, 2009. (Wilson Decl. at ¶ 4.) On March 8, 2010, TWR advised Anderson that Cvrlje denied attending the meeting and provided a copy of his E-Z Pass records for the day in question. (Wilson Decl. Ex. B.) Anderson continued to stand by the allegation, noting that the E-Z Pass records did not "conclusively establish that Crvlje was not present at the Bergen meeting" and that Crvlje "could have participated by telephone or video conference." (Wilson Decl. Ex. C.)
In April 2010, Hudson requested that several of Anderson's allegations, including Paragraph 55, be withdrawn. (See Wilson Decl. Ex. D.) Anderson responded that it had "revisited and investigated" the bases of its allegations and, in relevant part, and it continued to stand by its assertions in Paragraph 55. (Id.)
This Court dismissed the Complaint on August 2, 2010. Anderson News, L.L.C. v. Am. Media, Inc., 732 F. Supp. 2d 389 (S.D.N.Y. 2010). On August 16, 2010, Anderson moved for reconsideration of the dismissal and filed a proposed amended complaint, which contained an assertion almost identical to Paragraph 63, quoted infra. DSI wrote to Anderson on September 7, 2010, stating that Rafferty, national marketing director for DSI, could not have attended the meeting on January 29, 2010 because he had undergone heart surgery one week earlier, had only been released from the hospital on January 28, 2010, and did not return to work until March 2, 2009. (Keyko Decl. Ex. A.) On September 18, 2010, DSI provided Anderson with Rafferty's affidavit, stating that on January 29, 2009, he "remained at home recovering," was "under doctor's orders not to attend to work and was in no condition to do so," and that he "did not attend an alleged business meeting in New Jersey on January 29, 2009." (Keyko Decl. Ex. B.) On September 22, 2010, Anderson agreed to amend its allegation to state that the meeting occurred "on or about January 29, 2009," rather than on January 29, 2009 and that it would "reconsider" DSI's request if DSI submitted additional affidavits with fuller details. (Keyko Decl. Ex. C.) In response, DSI provided Anderson a September 30, 2010 affidavit from Michael Porsche ("Porsche"), president of DSI, who denied attending the meeting personally and wrote that he asked "every DSI employee who likely might have attended such a [sic] alleged meeting . . . had one occurred," but that each such employee had denied their attendance. (Keyko Decl. Ex. D.) Nevertheless, Anderson continued to stand by its allegation. (See Wilson Decl. Ex. E.)
The Second Circuit reversed this Court's dismissal of the case on April 3, 2012, and found that Anderson's proposed amended complaint was "sufficient to make Anderson's antitrust claim plausible." Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 189 (2d Cir. 2012). On September 7, 2012, Anderson filed its Amended Complaint, containing Paragraph 63. TWR wrote to Anderson on October 4, 2012, requesting that Anderson withdraw Paragraph 63, or face Rule 11 sanctions. (Wilson Decl. Ex. G.) On October 24, 2010, Anderson refused, stating that Paragraph 63 was "based on, among other things, information provided by a credible, confidential witness" (Wilson Decl. Ex. H), which, upon request, it refused to identify.*fn2
(Wilson Decl. Ex. K.)
On November 5, 2012, Defendants filed the instant motion and accompanying affidavits, seeking to strike Paragraph 63 and to impose sanctions on Anderson. Specifically, Cvrlje's affidavit stated that during the relevant time period, he did not visit Hudson's office; did not attend, "in person or otherwise," any meetings with any representative of Curtis or DSI; and although he did meet and speak with representatives of Hudson and News Group, he never spoke or met with representatives of Hudson and News Group together. (Cvrlje Aff. ¶¶ 4-6.) James Cohen, president of Hudson, and Ronald Clark, chief operating officer of Hudson, stated they were not aware of any meeting on or about January 29, 2009, between the individuals identified in Paragraph 63 at Hudson's office, nor were they aware of any Hudson employees or representatives attending such a meeting. (Cohen Aff. ¶¶ 4. 6; Clark Aff. ¶¶ 4. 6.) Finally, Porti, president of Curtis, stated that he did not attend "any . . . meeting of the type alleged in Paragraph 63," nor is he aware of any other Curtis employee or representative attending or participating in such a meeting. (Porti Aff. ¶¶ 4-7.) An additional affidavit was submitted to the Court on February 5, 2013, from Parry, president of News Group, stating that he did not attend or participate in a meeting on or about January 29, 2009 at Hudson's offices, nor has he ever attended a meeting at which Porti, Cvrlje, and Rafferty were present. (Parry Aff. ¶¶ 3-4.)
In January 2013, Anderson disclosed that Paragraph 63 was based upon information provided by James Gillis ("Gillis"), with whom Anderson had repeatedly met and corresponded throughout the time period in which Defendants challenged the veracity of Paragraph 63 (Gorecki Decl. ¶¶ 12, 16, 20, 22-23, 29; Gorecki Decl. Ex. G; Gorecki Supp. Decl. ¶¶ 8-9), and provided Defendants with a copy of an affidavit submitted by Gillis. (Hr'g Tr. at 7, Jan. 9, 2013; see also Gillis Aff.) Gillis currently works as a consultant to magazine publishers, wholesalers and retailers, and previously served as the president of Source Interlink Companies, Inc., a subsidiary of which is a magazine wholesaler ("Source Interlink"). (Gillis Aff. ¶¶ 1-2.) Gillis first learned of the alleged meeting in 2009 from Michael Sullivan ("Sullivan"), who was then the chief executive officer of a magazine distributor, and is currently the president and chief executive officer of Source Interlink. (Id. at ¶ 6.) Subsequently, Gillis spoke to Cvrlje, Parry and Porsche, none of whom denied that the meeting had occurred. (See id. at ¶¶ 7, 9; Gillis Dep. at 59-62.) Despite numerous requests from Anderson over several years, Gillis declined to identify Sullivan as the source of his information until September 27, 2012, describing his source only as a "well-placed, very knowledgeable, 'high ranking' executive in the . . . magazine industry, with whom he had been good friends for many years." (Gorecki Supp. Decl. ¶¶ 4-5.)
The Court directed expedited discovery with respect to Paragraph 63, including the deposition of Gillis, which took place on January 29, 2013. (See Hr'g Tr. at 17-18.) Following the Gillis deposition, both parties submitted supplemental briefs on the cross-motions for sanctions. Defendants also submitted an affidavit from Sullivan denying that he told Gillis that the alleged meeting occurred, who attended it, or having any knowledge of its occurrence or who might have attended it. (Sullivan Aff. ¶ 4.) He did, however, acknowledge "mention[ing] to Mr. Gillis that [he] had heard a rumor that a meeting had taken place in or around the Hudson News offices." (Id.)
I.Motion to Strike Paragraph 63
Motions to strike, which may be made pursuant to Fed. R. Civ. P. 12(f), are "disfavored" and "granted only if 'there is a strong reason to do so.'" Roe v. City of N.Y., 151 F. Supp. 2d 495, 510 (S.D.N.Y. 2001) (quoting Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976)). The movant bears the burden of demonstrating that "'(1) no evidence in support of the allegations would be admissible; (2) that the allegations have no bearing on the issues in the case; and (3) that to permit the allegations to stand would result in prejudice to the movant.'" Id. (quoting Koch v. Dwyer, No. 98 Civ. 5519, 2000 WL 1458803, at *1 (S.D.N.Y. Sept. 29, 2000)). Defendants have failed to satisfy these requirements and, accordingly, their motion to strike is denied.
II.Motions for Sanctions
a. Legal Standard
In relevant part, Rule 11 states that "[b]y presenting to the court a pleading . . . an attorney . . . certifies that, to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . . . the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed. R. Civ. P. 11(b)(3). Liability for violating Rule 11 requires "'a showing of objective unreasonableness on the part of the attorney . . . signing the papers.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 579 F.3d 143, 150 (2d Cir. 2009) (quoting Ted Lapidus, S.A. v. Vann, 112 F.3d 91, 96 (2d Cir. 1997)). "A court called upon to judge the reasonableness of an attorney's factual inquiry should consider how much time the attorney had for the investigation, the feasibility of verifying facts; the complexity of the factual issues; and the need for additional discovery to develop the factual claim." Gottlieb v. Heller, No. 93 Civ. 3081, 1994 WL 557092, at *4 (S.D.N.Y. Oct. 7, 1994).
In assessing reasonableness, courts focus on "what was objectively reasonable to believe at the time the pleading, motion or other paper was submitted," Jeffreys v. Rossi, 275 F. Supp. 2d 463, 480 (S.D.N.Y. 2003), while "tak[ing] care not to allow hindsight to skew [their] judgment." N.Y. Stock Exch., Inc. v. Gahary, No. 00 Civ. 5764, 2003 U.S. Dist. LEXIS 165, at *5-6 (S.D.N.Y. Jan. 8, 2003). Nevertheless, in connection with amendments to the Federal Rules of Civil Procedure in 1993, the Advisory Committee noted that "a litigant's obligations with respect to the contents of these papers are not measured solely as of the time they filed with . . . the court," and that Rule 11 also "emphasizes the duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no longer tenable."
"'The principal objective of the imposition of Rule 11 sanctions is . . . the deterrence of baseless filings and the curbing of abuses.'" Abdelhamid v. Altria Group, Inc., 515 F. Supp. 2d 384, 392 (S.D.N.Y. 2007) (quoting Caisse Nationale de Credit Agricole-CNCA v. Valcorp, Inc., 28 F.3d 259, 266 (2d Cir. 1994)). Accordingly, "Rule 11 'must be read in light of concerns that it will chill vigorous advocacy;'" and, therefore, all doubts must be resolved in favor of the signer of the pleading. Id. (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990)). "Because Rule 11 sanctions represent a drastic, extraordinary remedy, courts seldom issue them and then only as a (very) last resort. Put another way, a Rule 11 motion may not be granted unless a particular allegation is utterly lacking in support." Connolly v. TJX Cos., No. 07 Civ. 3282, 2010 U.S. Dist. LEXIS 137404, at *36 (E.D.N.Y. Dec. 30, 2010) (internal quotations omitted). "In addition, where the action involves antitrust claims, caution in the imposition of Rule 11 sanctions is especially appropriate given the importance of discovery . . . where evidence is largely within the knowledge and control of adverse parties." Capital Imaging Assocs., 725 F. Supp. at 681 (citing Mohammed v. Union Carbide Corp., 606 F. Supp. 252 (E.D. Mich. 1985)).
b. Defendants' Motion for Sanctions
Prior to filing the Amended Complaint, Anderson had met or spoken with Gillis on at least six occasions, and, on each occasion, he confirmed the allegations of Paragraph 63. (See Gorecki Decl. ¶¶ 11-12, 16, 20, 22-23, 29.) The allegations were also confirmed in correspondence from Gillis on February 9, 2010. (Gorecki Decl. Ex. G.) While Gillis did not personally attend the alleged meeting, he informed Anderson that he had discussed the meeting with two of sources of information, "one who attended the Hudson meeting, and one who had not attended but had confirmed occurrence of the meeting and the identity of certain of the participants of the meeting." (Gorecki Decl. ¶ 22.) Though Gillis did not initially identify these sources to Anderson, he has since made clear that he was referring to Sullivan and Parry. (See Gillis Aff. ¶¶ 6, 9.) Because "a plaintiff need not plead specific, admissible evidence in support of a claim," Anderson is entitled to include "allegations based on hearsay" in its Amended Complaint. Campanella v. Cnty. of Monroe, 853 F. Supp. 2d 364, 378 (W.D.N.Y. 2012) (emphasis added).
While Defendants assert several problems with the factual basis for Paragraph 63, they largely boil down to the same argument: it was not objectively reasonable for Anderson to rely solely on Gillis in the face of denials provided by the meeting's purported participants. Other than arguing that Anderson should have shown Gillis the affidavits of the meeting's purported participants and spoken to Sullivan and Parry directly, however, there is no explanation of what a more thorough investigation by Anderson might have entailed. With respect to the former, Defendants had the opportunity to confront Gillis with the affidavits at his deposition, yet Gillis refused to recant his belief that the meeting had occurred. (See generally Gillis Dep. 184-91, 201-05.) Although he acknowledged that the date might not have been "exactly the 29th," that the meeting might have occurred in a different Hudson office, and that "[t]here's an awful lot of guys saying they weren't there," he "had no doubt in [his] mind" that "they were there." (Id. at 208-10.) See also Forrest Creek Assocs., Ltd. v. McLean Sav. & Loan Ass'n, 831 F.2d 1238, 1245 (4th Cir. 1987) (Rule 11 "does not extend to isolated factual errors, committed in good faith, so long as the pleading as a whole remains 'well grounded in fact.'" (quoting Fed. R. Civ. P. 11)). There is no reason to expect that this would have been any different if Anderson had presented the affidavits to Gillis prior to the filing of Defendants' motion for sanctions.
Moreover, Anderson was not at liberty to speak to the affiants regarding their denials outside of the discovery process because they are employed by parties adverse to Anderson*fn3 and represented by counsel. See N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.0, Rule 4.2(a). Accordingly, Anderson had to choose between relying solely on Gillis or withdrawing Paragraph 63 in reliance solely on denials provided by Defendants. In such cases, "[R]ule 11 must not bar the courthouse door to people . . . who need discovery to prove their case." Smith v. Our Lady of the Lake Hosp., Inc., 960 F.2d 439, 446-47 (5th Cir. 1992) (quoting Kraemer v. Grant Cnty., 892 F.2d 686, 689-90 (7th Cir. 1990)). Sanctioning a party for objectively unreasonable factual assertions would therefore be premature prior to the end of discovery, if not the litigation as a whole. See Archie Comic Publ'ns, Inc. v. DeCarlo, No. 00 Civ. 5686, 2000 U.S. Dist. LEXIS 19295, at *2 (S.D.N.Y. Nov. 21, 2000) (discussing "[t]he preference for the determination of sanctions for allegedly frivolous pleadings at the end of the case").
Nor have Defendants cited any cases in which sanctions were imposed under similar circumstances. Rather, all of the cases on which they rely wherein sanctions were imposed addressed plaintiffs who had obvious means of conducting further investigations but failed to do so, had no evidence whatsoever, or had access to evidence that directly undermined their allegations. See, e.g., Hilton Hotels Corp. v. Banov, 899 F.2d 40, 42, 43 (D.C. Cir. 1990); In re Australia & New Zealand Banking Group Ltd. Sec. Litig., 712 F. Supp. 2d 255, 264 (S.D.N.Y. 2010); Nyitray v. Johnson, No. 96 Civ. 6150, 1998 U.S. Dist. LEXIS 1791, at *39 (S.D.N.Y. Feb. 18, 1998); Gottlieb v. Heller, No. 93 Civ. 3081, 1994 U.S. Dist. LEXIS 14453, at *10 (S.D.N.Y. Oct. 7, 1994); Nassau-Suffolk Ice Cream, Inc. v. Integrated Resources, Inc., 114 F.R.D. 684, 689-90 (S.D.N.Y. 1987); Etlin v. Yankwitt, No. 85 Civ. 2607, 1986 WL 15439, at *7 (E.D.N.Y. May 16, 1986).
Similarly, Defendants also rely on an inapposite decision by the Seventh Circuit, which remanded a case to the district court to determine whether to impose sanctions. City of Livonia Employees' Retirement Sys. v. Boeing Co., -- F.3d --, 2013 WL 1197791, at *8 (7th Cir. Mar. 26, 2013). In Boeing, the Seventh Circuit declined to impose sanctions itself where the plaintiffs' "only barrier to dismissal of their suit" was a confidential witness to whom Plaintiffs' counsel had never spoken. Id. Rather, counsel relied on an investigator who had spoken to the confidential source, but acknowledged that she could not verify what the source had told her and had "qualms" based on inconsistencies between the source's information and what she otherwise believed to be true. Id. "No one had bothered to show the complaint to" the confidential source, and, at his deposition, he "denied virtually everything that the investigator had reported." Id. at *5-6. Finally, the Seventh Circuit also noted that plaintiffs' counsel had already been criticized "for misleading allegations, concerning confidential sources, made to stave off dismissal" in three similar cases. Id. at *8.
Unlike the aforementioned cases, Gillis's allegations here are relatively well-grounded, relying on several different sources and fitting into a broader pattern of alleged conduct by Defendants. Gillis, a non-party witness, repeatedly confirmed his story during meetings with Anderson and in his deposition. Though the allegations may well prove to be inaccurate, at this stage of the proceedings they are not "objectively unreasonable[]." ATSI Commc'ns,, 579 F.3d at 150. The Court is also unaware of similar instances of alleged misconduct by counsel for Anderson, nor is Paragraph 63 the only hook on which Anderson hangs its hat. Accordingly, Defendants' motion is denied.
c. Anderson's Cross-Motion for Sanctions
While the Court has found that the allegations in Paragraph 63 are not objectively unreasonable, that does not mean that Defendants motion lacked merit. There was a sound basis for Defendants motion, which did not succeed because of the heavy burden such a motion must overcome. Defendants' "motion was not clearly frivolous, filed for an improper purpose, or not well grounded in fact or law," and sanctions are not appropriate. Goldberg v. Blue Ridge Farms, Inc., No. 10 Civ. 1371, 2005 WL 1796116, at *7 (E.D.N.Y. July 26, 2005); see also Sheet Metal Workers' Nat'l Pension Fund v. AUL Sheet Metal Works, Inc., No. 10 Civ. 1371, 2012 WL 32237, at *3 (S.D.N.Y. Jan. 5, 2012). Accordingly, Anderson's cross-motion is denied.
For the foregoing reasons, both Defendants' and Anderson's motions are DENIED. The Clerk of Court is directed to terminate the motion at Docket Number 141.
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November 16, 2009
JOHN PASSMORE, PETITIONER,v.RAYMOND SORBINA, RESPONDENT.
Presently before this Court are the Petition for Writ of Habeas Corpus filed by John Passmore (Doc. 1) ("Petition"); the Report and Recommendation of the Honorable Timothy R. Rice, United States Magistrate Judge (Doc. 26) ("Report and Recommendation"); Petitioner's Objections thereto (Doc. 33) ("Objections"); Petitioner's Motion for a Court Order Direct[ing] State Correctional Institution Albion to Produce Copy of Petition[er]'s Mental Health Record[s] (Doc. 34) ("Motion for a Court Order"); and Petitioner's Verified Statement in Support of Motion for Production of Mental Records (Doc. 35) ("Verified Statement"). For the reasons set forth below, this Court will deny the Petition; approve and adopt the Magistrate's Report and Recommendation; and dismiss as moot the Motion for a Court Order and Verified Statement.
1. On August 27, 2009, Magistrate Rice issued a Report and Recommendation in the above-captioned case in which he recommended that the Petition be denied with prejudice as untimely under 28 U.S.C. § 2244(d)(1) or, in the alternative, dismissed as procedurally defaulted.
2. In his Objections, Petitioner asserts that in September 2004, he "had to defend his life against one Victor Leon, who attack[ed] Petitioner with a weapon," causing Petitioner to suffer severe depression, anxiety, post-traumatic stress, and other mental conditions. (Pet'r Objections 1-3.) According to Petitioner, those mental conditions, which lasted from 2004 through 2007, constituted "extraordinary circumstances" that prevented him from presenting timely claims. (Pet'r Objections 3.) He further argues that his mental incapacity constituted "cause" for any procedural default because it "prevented him from even knowing he existed, and let alone to be aware [sic] of legal issues." (Pet'r Objections 6.) In addition, Petitioner claims that the Commonwealth's failure to present evidence concerning a two-liter bottle of Mountain Dew constituted "a fundamental miscarriage of justice" because that evidence "was critical to show what happened in Pennsylvania as to the alleged kidnapping." (Pet'r Objections 6-7.)
3. This Court approves of Magistrate Rice's findings that Petitioner failed to file his habeas petition before the federal limitations period expired and to satisfy the exceptions thereto (Rep. & Recomm. 5-9), and that Petitioner's habeas claims were not adequately exhausted and are procedurally defaulted (Rep. & Recomm. 9-13).
4. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year federal limitations period for filing applications for writs of habeas corpus. 28 U.S.C. § 2244(d)(1). Petitioner exceeded that limitations period when he failed to file his federal habeas petition on or before May 11, 2006, one year after his judgment of sentence became final.*fn1 See Kapral v. United States, 166 F.3d 565, 575, 577 (3d Cir. 1999) (judgment of conviction becomes "final" when the time for seeking certiorari review expires).
5. Although equitable factors may permit the tolling of the AEDPA's one-year limitations period, federal courts invoke the doctrine of equitable tolling "only sparingly" in the "rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice." See, e.g., United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (citations omitted); Miller v. N.J. State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) ("equitable tolling is proper only when the principles of equity would make the rigid application of a limitation period unfair"). Equitable tolling may be warranted if: (1) the petitioner has been actively misled; (2) extraordinary circumstances prevented the petitioner from asserting his rights; or (3) the petitioner timely asserted his rights mistakenly in the wrong forum. See, e.g., Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted). None of those circumstances exist here.
6. Where mental incompetency is alleged, to justify equitable tolling, there must be a nexus between the petitioner's mental condition and his inability to file a timely petition. See, e.g., United States v. Harris, 268 F. Supp. 2d 500, 507 (E.D. Pa. 2003); see also Nara v. Frank, 264 F.3d 310, 319-20 (3d Cir. 2001) ("mental incompetence is not a per se reason to toll a statute of limitations"); Stephens v. Wynder, No. 3:07-CV-0412, 2008 U.S. Dist. LEXIS 30748, at *11 (M.D. Pa. Mar. 31, 2008) ("Numerous district courts in the Third Circuit have held that depression is a normal part of prison life, and therefore does not warrant equitable tolling of the statute of limitations."). If the mental condition "burdens but does not prevent a prisoner from filing a timely petition[, it] does not constitute 'extraordinary circumstances' justifying equitable tolling." See, e.g., Harris, 268 F. Supp. 2d at 507.
7. If Petitioner did suffer from mental health problems, as he alleges, it is not clear that those problems prevented him from "managing his affairs and from understanding his legal rights and acting upon them." See Stephens, 2008 U.S. Dist. LEXIS 30748, at *10 (citation omitted). During the time period he claims he was mentally impaired, Petitioner continued to file pleadings and motions, including a habeas petition in this Court on December 11, 2005, a motion for reconsideration on June 7, 2006, and a pro se petition under the Pennsylvania Post-Conviction Relief Act ("PCRA") on October 1, 2007. Although those pleadings and motions ultimately were not successful, their filing suggests that Petitioner was capable of asserting his rights if he so chose. Without some evidence to the contrary, Petitioner has not shown a causal connection between his alleged mental incapacity and his ability to file a timely habeas petition.
8. Even if Petitioner can demonstrate with mental health records or otherwise that extraordinary circumstances prevented him from timely asserting his rights, his habeas petition is denied because he failed to raise his claims on direct appeal or during review under the PCRA. (Rep. & Recomm. 9-13.)
9. A federal court may not grant habeas relief to a state prisoner unless the prisoner exhausted his available remedies in state court. 28 U.S.C. § 2254(b)(1)(A); e.g., Cone v. Bell, 129 S.Ct. 1769, 1780 (2009); O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999); Nara v. Frank, 488 F.3d 187, 197 (3d Cir. 2007). To exhaust his available remedies, "a petitioner must 'fairly present' all federal claims to the highest state court before bringing them in federal court." E.g., Stevens v. Del. Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002) (quoting Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002)). A claim "shall not be deemed exhausted so long as a petitioner 'has the right under the law of the State to raise, by any available procedure, the question presented.'" 28 U.S.C. § 2254(c). The policy behind the exhaustion requirement is to afford state courts "'an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.'" United States v. Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).
10. In the instant habeas petition, Petitioner raises the following grounds: (1) the Commonwealth failed to disclose to Petitioner the nature and cause of its action, in violation of Petitioner's due process rights; (2) the Commonwealth improperly executed a probable cause affidavit without disclosing the nature and cause of its action, in violation of Petitioner's due process rights; (3) the Commonwealth improperly held Petitioner to answer to an infamous crime without an indictment or presentment of grand jury, in violation of Petitioner's due process rights; and (4) counsel provided ineffective assistance due to a conflict of interest. (Habeas Pet., Oct. 27, 2008, 9-10.) Petitioner did not fairly and properly present those claims to the state courts in his post-sentence motions, on direct appeal, or in his PCRA petition.*fn2 Therefore, having failed to exhaust his claims, Petitioner is not entitled to habeas relief.
11. Moreover, Petitioner's claims are procedurally defaulted and, therefore, not reviewable. (Rep. & Recomm. 9-13.) When a state court refuses to address a petitioner's claims because of a violation of state procedural rules, "a federal habeas court is barred by the procedural default from considering the claims, unless the petitioner can show 'cause' for the default and 'prejudice' attributable thereto." E.g., Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000) (citing Harris v. Reed, 489 U.S. 255, 262 (1989)).
12. Petitioner's PCRA action, filed in October 2008, was deemed untimely by the Pennsylvania courts, see Commonwealth v. Passmore, No. 2894 EDA 2008 (Pa. Super. Ct. May 20, 2009), and a subsequent petition would be deemed untimely by the Pennsylvania courts under 42 Pa. C.S.A. § 9545(b). In addition, since Petitioner already has challenged his conviction on direct appeal, any new claims challenging his conviction would be deemed previously litigated and/or waived under the PCRA. See 42 Pa. C.S.A. § 9544(a)-(b); Commonwealth v. Edrington, 464 A.2d 456, 458 (Pa. Super. Ct. 1983) ("petitioner is not allowed to relitigate a finally litigated ground for relief every time he advances a new legal theory").
13. Furthermore, Petitioner has not demonstrated cause and prejudice that would excuse the default, or that a fundamental miscarriage of justice would occur if the claims were not considered. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (miscarriage of justice demonstrated by evidence of "actual innocence"); McCleskey v. Zant, 499 U.S. 467, 494 (1991) (quoting United States v. Frady, 456 U.S. 152, 168 (1982)) (petitioner must show "actual prejudice resulting from the errors of which he complains"); Murray v. Carrier, 477 U.S. 478, 488 (1986) (cause is shown by some "objective factor external to the defense" that impedes petitioner's efforts to comply with the procedural rule). Therefore, in the absence of sufficient facts to excuse the default, substantive review of the grounds raised by Petitioner is procedurally barred.
An appropriate order follows.
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