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U.S. Court of Appeals, Federal Circuit
May 04, 1998
KENNETH M. ALLEN, PETITIONER,v.UNITED STATES POSTAL SERVICE, RESPONDENT.
Appealed from: Merit Systems Protection Board
Before Newman, Bryson, and Gajarsa, Circuit Judges.
Kenneth M. Allen appeals the final decision of the Merit Systems Protection Board, Docket No. CH0353960993-I-1, affirming the action of the United States Postal Service ("USPS") in connection with denial of a job opportunity that arose during his absence for military service. *fn1 We conclude that the Board erred in application of 38 U.S.C. §4301(b)(3). The decision of the Board is reversed; we remand for appropriate further proceedings.
Mr. Allen was employed by the USPS as a Tool and Parts Clerk, level PS-5, in a position designated for the afternoon or evening shift. He desired a position on the day shift, but no opening on the day shift had arisen. Mr. Allen also was an adjunct of the Ohio Air National Guard, and for the period February through June 1994 he was called to active duty and posted to Panama.
In February or March 1994 the USPS created an additional Tool and Parts Clerk PS-5 position on the day shift at Mr. Allen's location. Mr. Allen did not learn of the new position until he returned to the USPS after completion of his military assignment. By then the position had been filled, and Mr. Allen's assertion of a senior right to the position was rejected by the USPS. On appeal to the Board Mr. Allen argued that the USPS had an obligation, as well as several opportunities, to inform him of the position while he was on military duty, and that by statute persons on military service are not to be disadvantaged because of that service. The USPS conceded that Mr. Allen's entitlement to the position was superior to that of the person who was appointed.
The USPS argument was that neither the collective bargaining agreement, USPS regulations, nor USPS practice required that Mr. Allen be given notice of job openings that arose while he was on active military duty. The USPS stated that the burden rested entirely on Mr. Allen to seek out or request information about new jobs while he was away from the jobsite on active duty, and that the USPS had no obligation to provide him with such information. The USPS stated that although its regulations require the USPS to provide notice of new positions to employees on "annual leave" if they have left a written request for such information and their address, this obligation does not extend to employees on military leave. The USPS stated that Mr. Allen had not specifically asked to be informed, while he was on active duty, of any job openings that might arise.
The USPS also stated that although its regulations require that employees on military duty be considered for promotions during their absence, 5 C.F.R. §353.201(a) (1994) ("promotion plans must provide a mechanism by which employees who are absent because of . . . military duty can be considered for promotion"), the day shift position would not have been a promotion for Mr. Allen and thus was not covered by this regulation. As an additional reason for not notifying Mr. Allen of the new position, the USPS referred to its "preferred assignment selection [PAS] forms" by which employees formally express interest in positions for which they wish to be considered. The USPS pointed out that Mr. Allen had not listed the new position on his PAS form. Mr. Allen replied that he could not have listed the new position on his PAS form because he did not know about it.
Without reference to the applicable statutes, the Board held that the USPS must treat employees on military duty as if they were on furlough or leave of absence, and concluded that since the USPS is not required to notify employees who are on furlough or leave of absence of new employment opportunities, no such requirement applies to employees on military service. The Board did not address whether the USPS must place Mr. Allen in the new position whether or not the USPS was required to provide notice of the new job opening. This appeal followed.
Board actions, findings, and Conclusions are reviewed to ascertain whether they were "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. §7703(c) (1994). No significant facts are here in dispute. The issue is whether the USPS had a duty to inform Mr. Allen of this position or otherwise to enable Mr. Allen to compete for the appointment.
The events of this case occurred in early 1994, before the October 13, 1994 amendments to 38 U.S.C. §§4301-4307. See 38 U.S.C. ch. 43 (1994) (Codification) ("Former chapter 43 [§§4301-4307] . . . continues to apply to reemployments initiated before the end of the 60-day period beginning Oct. 13, 1994 . . . .") The Board's decision does not cite any statutory provision or regulatory implementation, and makes no reference to the extensive legal framework governing the status of federal civilian employees serving on military duty. Mr. Allen correctly cites chapter 43, see 38 U.S.C. ch. 43 (Supp. V 1993), and quotes §4301(b)(2) as the statute stood in early 1994, a 1992 amendment having renumbered §§2021-2027 as §§4301-4307. See Veterans' Benefits Act of 1992, Pub. L. No. 102-568, Title V, §506(a), 106 Stat. 4320, 4340 (1992).
Mr. Allen is correct that 38 U.S.C. §4304(b) as in effect before the October 1994 amendments applied to his restoration to civilian service after active duty, and granted him the rights and benefits detailed in 38 U.S.C. §4301. Accordingly, Mr. Allen could "not be denied hiring, retention in employment, or any promotion or other incident or advantage of employment," §4301(b)(3), in turn implementing the statutory purpose
to give such person such status in the person's employment as the person would have enjoyed if such person had continued in such employment continuously from the time of such person's entering the Armed Forces until the time of such person's restoration to such employment, or reemployment.
38 U.S.C. §4301(b)(2).
The USPS states that allowing Mr. Allen to compete for the newly- created day shift position is not within the statutory scope of treating a person in military service as if such person had continued in employment during the period of military service. The USPS asserts that such a transfer is not an "incident or advantage of employment" within the meaning of 38 U.S.C. §4301(b)(3), pointing out that the regulations relevant to §4301(b)(3) refer only to "promotion." E.g., 5 C.F.R. §353.201(a) (1994). The absence of regulation specific to the "other incident or advantage of employment" clause of §4301(b)(3), however, does not render that statutory language meaningless or surplusage. The regulations, by stressing promotion, did not eliminate other statutory obligations to employees in military service. *fn2
Although the Federal Circuit has not treated the question, other courts have addressed this aspect of 38 U.S.C. §4301(b)(3). Cases are summarized in Kevin D. Hart, Annotation, What Constitutes Denial of "Incidents or Advantages of Employment" under 38 U.S.C.A. §2021(b)(3) [now §4301(b)(3)] Which May Not Be Denied Employee Because of Obligation as Member of Reserve Component of Armed Forces, 51 A.L.R. Fed. 893 (1981 & Supp. 1997). This compilation points up the three basic considerations applied by the courts. First, the courts have considered whether the "incident or advantage" is one generally granted to all employees in that workplace, and whether it was denied solely because of absence for military service. See Monroe v. Standard Oil Co., 452 U.S. 549 (1981). Several courts have ruled that a generally available benefit can not be denied because of military duty. See, e.g., Waltermyer v. Aluminum Co. of Am., 804 F.2d 821, 824-25 (3d Cir. 1986) (reservist was entitled to holiday pay despite requirement that employee be present on days before and after holiday); Carney v. Cummins Engine Co., 602 F.2d 763, 766-67 (7th Cir. 1979) (reservist was entitled to overtime opportunities he missed while on military duty).
Second, the courts have considered whether the person absent on military duty was treated the same way as if the person had remained at work. These rulings recognize that although for some statutory purposes persons returning from military duty correctly are treated as if they had been on furlough or leave of absence, under §4301(b)(3) they must not be disadvantaged by failure to treat them as if they had been present at work. See, e.g., West v. Safeway Stores, Inc., 609 F.2d 147, 150 (5th Cir. 1980) ("collective bargaining agreement must be construed as if [reservist] was constructively present at work"); Carlson v. New Hampshire Dep't of Safety, 609 F.2d 1024, 1027 (1st Cir. 1979) (it is not sufficient to treat reservist like any employee on leave, the court treating a shift change as a "constructive demotion"); see also Diaz- Gandia v. Dapena-Thompson, 90 F.3d 609, 614 (1st Cir. 1996) (explaining Carlson). Third, the courts have considered whether it was reasonably certain that the benefit would have accrued to the employee but for the absence for military service. See Teamsters Local Union 612 v. Helton, 413 F.2d 1380, 1383-84 (5th Cir. 1969).
With this guidance, the undisputed facts in Mr. Allen's case all point in the same direction. The schedule Mr. Allen sought - regular daytime hours, something most workers consider desirable - whether or not viewed as a "constructive `promotion,'" in all events is an "incident or advantage of employment." §4301(b)(3). The new position at issue here was made available and filled while Mr. Allen was on military duty. It is conceded that Mr. Allen's qualifications were senior to those of the person placed in the position, and it is not disputed that in view of his seniority and the collective bargaining agreement he would have gained the position had he applied for it while on military duty. Unlike those cases wherein employer discretion or other uncertainty has supported the Conclusion that the candidate would not necessarily have received the benefit in question, e.g., Teamsters, 413 F.2d at 1383-84, here the record reveals no reasonable uncertainty about whether Mr. Allen would have received this job, and that but for his military duty he would have known of it and requested it.
Although the USPS established that employees on "leave of absence" status were not sent position notices, an employer can not treat employees on military duty like those on non-military leave of absence when the effect is to deny the benefits that the statute requires for employees on military duty. See, e.g., Carlson, 609 F.2d at 1027 ("comparison is not . . . to `those co-workers away on non-military leave of absence'"); Hawes v. General Motors Corp., 1979 WL 1956, *3, 102 L.R.R.M. (BNA) 3041 (N.D. Ohio 1979) (rejecting argument that employer could replace reservist under collective bargaining conditions governing leaves of absence).
The statute requires that the position, or the opportunity to apply for the position, "not be denied" to Mr. Allen because of his absence for military service. In accordance with 38 U.S.C. §4301(b)(3) the right to bid for and receive the newly-created day shift position was a protected "incident or advantage of employment," and was required to be made available to Mr. Allen. The denial of this opportunity occurred solely because of Mr. Allen's tour of military duty; thus the procedures followed were contrary to law. The Board's decision is reversed. The case is remanded for appropriate remedy.
Costs to Mr. Allen.
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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Term Paper:
Dated November 7, 2002, it speaks about the fact that, as of that date - and for the first time in Senate history - three currently-serving Senators had actually belonged to that body for more than forty years continuously. ("New Seniority Record," 7 November 2002) the stature of these three men? Very great, I imagine, but as of that date - unassailable. The creator of this web site did not dare to give any sort of heavy or overly critical analysis of any still-serving U.S. senators. A living incumbent, and his actions, bear a very different status from the legislator of the past. He, after all, does not have to worry about re-election!
Certainly, there is quite a bit to be learned from these examples of status information. As stated earlier, each of us carries with herself or himself certain assumptions about other people, places... even ideas. The example concerning the Prince of Wales and His New Princess is interesting in that it points up a potential danger in any kind of reporting: the problem of summary judgment or prejudice. Few people genuinely know anything about Camilla, yet the paper appeared determined to paint her in a somewhat unfavorable light. It was as if the article was saying that Charles is Royal, and Camilla is not. Furthermore, the comment about a "frumpy" Camilla automatically invites an unspoken comparison to the Prince's former wife, Diana. The article about Moussaoui, and its accompanying photograph, represents as well an attempt to poison the minds of the readers even before they begin to go through the article. Again, this attempt to sway the reader on an emotional level is not conducive to a fair airing of the facts, or is it worthy of the supposedly "objective" viewpoint of one of the world's leading newspapers.
Among the other discoveries of this look at "status," was the uncovering of a still-more insidious method of reporting events. In many of the pieces at which we looked, the "judgment" that the reader is invited to make is conceived of as something that happens almost automatically. For example, Mayor Daley's defense of vocational schools does not, in reality, contain anything positive or negative about such a school. Instead, it is the mere offering of the comment that is significant. People have a certain idea about "vocational schools," and the Mayor, as well the Tribune's readers are fully cognizant of the nature of that point-of-view. A more positive way of handling the story might have been for the article to have listed all that the vocational schools would do, rather than introducing at once the idea that "You'll live with it!" Too many times, even the most objective people let slip small comments or phrases that indicate a prejudice one way or the other. Particular words become "code words." They stand for entire ideas that are already known to the reader, or the hearer. The two articles that reference "Hispanics" count on a specific reaction to the mere mention of that term. In the online piece, we see the idea that Hispanic people normally do not speak English. That right away suggests a different social milieu. We evidently know that Hispanics who speak only Spanish (or prefer to read only Spanish) have different priorities. Would, just as an example, the article be in favor of increased immigration were it directed to a Spanish-speaking audience as opposed to an English-speaking one? Do English-speaking Hispanics consider themselves more "American" than Spanish-speaking ones?
Still more curious is the comment about the Seinfeld finale. In this, as with the Board of Regents example, we see something operator that is even vaguer in outline, but as perniciously real. What is offensive about the Jerry Seinfeld and his buddies being at the Puerto Rican day Parade? Is there something wrong with non-Puerto Ricans attending the event? Do non-Puerto Ricans who attend Puerto-Rican events automatically disrupt the event, or make fun of its participants? It is very unclear, and appears to point toward some much deeper prejudice. Do Puerto-Ricans feel that they cannot be as free at their own events if there are non-Puerto Ricans present? A similar situation exists in the remarks about the management of the University of Georgia's endowment. Why the Board of regents has order the other group to disengage is anybody's guess. One wonders what the point of that article could have been - was it that the group was mismanaging the fund? Or could it even have been an example of the outrageousness of the Regents themselves? They do come across as "typical" bureaucrats. Is it possible that the public is meant to wonder "What crazy reason could the Board of Regents have for issuing an order like that?!"
The status of people, organizations, places, and ideas differs depending upon the context. One group may possess a generally negative status, while others may present a negative status only in relation to certain others. Some groups seem to accord a lowly (or even offensive) "outsider" status to anyone who is not a member of the group. Whereas, there are actually groups who motivations and practices are entirely inscrutable to anyone who attempts to penetrate them from the outside. The building of that vocational school in Chicago was apparently an unwelcome addition to the neighborhood, but it must have satisfied some constituency, or else it never would have been built. Sometimes even the words we use can tell us what we think of a group. "Hispanic" creates a different impression from "Latina." "Princely" and "frumpy" (especially when applied to a princess) sound like total opposites. There is no doubt that in using language, whether written or spoken, great care must be taken to select the proper words. A few misspoken sentences, and years of effort can be ruined. Say things graciously, and even the "lowliest" among us might feel as if they have been elevated to the "highest" reaches of society.
Works Cited
Associated Press. (20 April 2005). "Judge to Accept Guilty Plea from Moussaoui." New York Times.
Cholo, Ana Beatriz. (20 April 2005). "Schools to Replace Westinghouse." Chicago Tribune.
Frankel, Daniel. (8 May 1998). "Hispanics Seething Over 'Seinfeld'." E! Online. URL: http://www.eonline.com/News/Items/0,1,2976,00.html.
Graff, Christopher. (20 April 2005). "Sen. Jeffords will not Seek Reelection." Washington Post.
Korda, Michael. (18 April 2005). "Family Drama." U.S. News and World Report.
Lee-St. John, Jeninne. (28 March 2005). "Selling Spanglish: Companies Find Special Challenges Marketing to U.S. Hispanics." Time Magazine.
No author. (20 April 2005). Hispanic Online. URL: http://www.hispaniconline.com/.
No Author. "New Seniority Record." United States Senate Web Site, Art & History, Historical Minutes: 1964-Present, URL: http://www.senate.gov/artandhistory/history/minute/New_Seniority_Record.htm.
Simmons, Kelly. (20 April…[continue]
"Sociology Will The Real Individual" (2005, April 20) Retrieved December 8, 2016, from http://www.paperdue.com/essay/sociology-will-the-real-individual-65028
"Sociology Will The Real Individual" 20 April 2005. Web.8 December. 2016. <http://www.paperdue.com/essay/sociology-will-the-real-individual-65028>
"Sociology Will The Real Individual", 20 April 2005, Accessed.8 December. 2016, http://www.paperdue.com/essay/sociology-will-the-real-individual-65028
Sociology, one of the biggest areas that are receiving continuous amounts of focus is the inequalities that exist. Recently, disparities in income levels have become much larger. This is because the top 1% (who controls the majority of the wealth) is earning more at the expense of the other 99%. These are individuals that have to work every day (often controlling little to no amounts of personal assets). Throughout
Sociology Trey Parker and Matt Stone's television show South Park is a sociological show by nature. Every episode is imbued with the sociological imagination, and asks the viewer to think critically as well as comically about situational psychology and sociology. This is true for the Season 7 Episode 5, entitled "Fat Butt and Pancake Head." The theme of the episode is ethnic and linguistic stereotyping and issues related to diversity in
Sociology Portfolio The social experience evolves around different dimensions that influence people's everyday experiences and realities in life. Inherent in every event, interaction, individual, and even tangible material/artifact are reflective of a specific kind of social order. Everything is social, and using this premise, this Sociology Portfolio provides a survey of literature and relevant material that illustrate the role that social experience plays in the development of current and essential issues
(Frazer 8) to this end she develops the categories of "affirmation" and "transformation." In understanding Frazer's view it is imperative to bear in mind that older regimes of theory cannot achieve the synthesis that she is looking for and that new and more creative modes of political and social theory are necessary. In essence what Fraser suggests is that in order to overcome this antimony between redistribution and recognition and
"They've got their rules and we've got nothing to do with that" or "He has to learn the rules, just like anybody else" are key phrases which sustain this idea. The two opponent groups are both looking to improve their performances in terms of privilege and power. The scene in which the prisoners are working and the pavement of the street and become motivated to work rapidly is also representative,
Individuals group themselves through the process of social identification as woman or nurse, etc. This classification enables the individual to define his social environment. Thus, identification answers the question "Who am I?" To some extent. Through the involvement with reference groups in social situations, individuals set up social identities. Three major functions offered by the reference groups are: the determination of the traits, competencies, and values for a specific social
Sociology: Changing Societies in a Diverse World (Fourth Edition) George J. Bryjak & Michael P. Soroka Chapter One Summary of Key Concepts Sociology is the field of study which seeks to "describe, explain, and predict human social patterns" from a scientific perspective. And though Sociology is part of the social sciences (such as psychology and anthropology), it is quite set apart from the other disciplines in social science; that is because it emphasizes


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A place to find a true family and honest friends.


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On Second Thought is a one-hour, daily news talk show that airs at 9 a.m. ET weekdays.
Celebrate the groundbreaking band's musical milestones with special guests Vince Gill, Alison Krauss and more. Saturday, December 3 at 7 PM
High School Football is Back, and so is Football Fridays on GPB!
The long wait is finally over. Yes, I went to some spring practices. Sure I checked out some 7 on 7 action this summer. Of course I... MORE
GPB Passport is the new member benefit that provides you with extended access to an on-demand library of quality local and national public television programming, including tens of thousands of hours of your favorite programs.
Wed., August 15, 2012 2:42pm
Lottery Chief Is Leaving
A spokeswoman for the Georgia Lottery Corp. says president and CEO Margaret DeFrancisco will be stepping down. Tandi Reddick said DeFrancisco notified the lottery's governing board Wednesday that she plans to retire. Reddick said DeFrancisco has not set a departure date.
Full Story
Sat., July 16, 2011 4:30am
Lottery Sales Top $3.5 Billion
Georgia Lottery officials say sales have exceeded $3.5 billion for the fourth year in a row. Lottery President and CEO Margaret DeFrancisco said despite a tough economy, the lottery only experienced about a 1 percent dip in sales.


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Alistair Overeem vs Bernard Parris
K-1 Holland GP 2001 in Arnhem watch video >>
Take a look at the history behind ShoBox: The New Generation which cultivated young talent since 2001. The prospect-orientated series celebrates its 15th anniversary with a quadrupleheader headlined watch video >>
On October 13, 2001, former undisputed heavyweight champion Mike Tyson defeated Danish heavyweight Brian Nielsen by way of TKO in the seventh round. In celebration of the 30th anniversary of SHOWTIME watch video >>
Fedor Emelianenko vs Bobby Hoffman
Rings - 10th Anniversary
Augut 11 2001 watch video >>
When Dana White took over the UFC in 2001, one of the new UFC President's first tasks was to scour the MMA backwaters searching for undiscovered talent to sign to the UFC. White hasn't scouted talent watch video >>
Floyd Mayweather Jr vs Jesus Chavez
Full Fight Boxing
November 10 2001 watch video >>
Floyd Mayweather Jr vs Carlos Hernandez
Full Fight Boxing
May 26 2001 watch video >>
Floyd Mayweather Jr v Diego Corrales
Full Fight Boxing
January 20 2001 watch video >>
Ben Askren wrestling Chris Weidman, 3 minutes of this bout from 2001. Follow: https://www.facebook.com/benaskren?fref=photo watch video >>
http://fightnetwork.com/ - Fight Network looks at the main event between 2001 K-1 World Grand Prix champ Mark Hunt and former IFL heavyweight champion & TUF 10 winner Roy "Big Country" Nelson. For a watch video >>
Robbie Lawler vs. Marco MaceraExtreme Challenge 41July 13, 2001 watch video >>


text: Ok so i tried to download blackra1n on my windows computer but it told me it could not find a QTCF.dll file. Since then the pop up will not go away. I've clicked ok and exited out but it will continue to pop up. i"ve even turned off the computer but when i turned it back on the pop up was still there telling me it couldn't start because of theQTCF.dll file... PLEASE HELP.Please Register or Log in to view images


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In the center of the great library, seated on a plain pedastal of twisted iron, sits a Grey crystal ball, 30 centimetres in diameter and with a misty interior to it. It is to this ball, that people go to find the whereabouts of books in the library, but the orb is much more complex than its simple task, though few may be aware of it.
Garnar'hklorrrathhhh is a God who rules over his people who has spread across The Land. If asked about this, it would say, "I am amazed at life's little quirks. It is all a matter of being in the right place at the right time". You see, since the "Voop" this early lesser orb has become one of the most powerful on the planet.
All of the world is an adventure, and Aunt Queen, as she likes people to call her, has experienced alot of it. Old age has confined her to her home, and curio shop where she collects and sells cameos, books, and antiques.
Two young nobles, enmity between their families. Where have we seen this before?
An item of legend, that may not even exist. But many still desire it, and many fear its possible use.
The PCs are hired to remove splinters of discontent and desertion from the feet of the Prince's Army…
Raign the Kyton is an ancient Kyton demon who have been cursed by his former master with a soul.
Everyone hungers ... and must be fed. But what if the tastes suddenly change?
When the Prince of Thalavor is found dead, floating down the river in a Hero's Voyage, the King Espegil sends the heroes upriver into unexplored lands to discover the bane that slew him.
The staff is beautiful to look at, made of pure ebony wood with a large diamond set at the top and rusted iron buttons along it's side. It gives off an aura of very powerful magic.The ebony is scarred by a hit from a sword of some kind.
A child at court, considering the world a private playground
Once a tool awakened on purpose, the looming stones have outlived their masters but not their purpose
A life-path fraught with peril can drive anyone over the edge - until you start speaking to spirits, God or .. gods in this case
This weapon is a fine basket-hilted broadsword, with a long sharp iron blade and an aura of power about it that can be sensed faintly by everybody. Those who pick it up for the first time feel safer with the sword in their hand then without it.A large purple amythest jewel is set in the sword's basket hilt. The user senses that if they press the emerald, others will become scared of them…
The author of many stories, he is blessed by the gods without even knowing it. His stories have more power than most others….
Another scary child's toy…
A scimitar for the shadow, for the theif, for the assassin but most of all for the Drow.
A precious stone that calls out to those who can hear, a lighthouse for those lost in the darkness of the void.
A fluffy, pink stuffed bear which always seems to end up in unlikely places, and which people tend to get quite attatched to…
A wandering, former knight, who saves lives and steals for good causes.
Maybe in the future, you can earn money by allowing yourself to be possessed by the genius loci of Taco Bell. And then it just spews ads out of your mouth during all the times you aren't using it.


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Fitch Affirms Republic Services' (RSG) IDRs; Outlook Remains Stable
- Record-setting rally pushes on as S&P ends week up 3 percent
- Trump's Cohn Pick Most Bullish Sign Yet for Banks - Cowen
- Unusual 11 Mid-Day Movers: (IDXG) (INVN) (EBS) Higher; (SCON) (DTEA) (DLTH) Lower (more...)
- 21st Century Fox (FOXA) offers to acquire Sky for GBP10.75/share
- Coca Cola (KO) Announces James Quincey to Succeed Muhtar Kent as CEO; Kent to Continue as Chairman
Get Alerts RSG Hot Sheet
Overall Analyst Rating:
NEUTRAL ( Down)
Dividend Yield: 2.6%
EPS Growth %: +17.0%
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Fitch Ratings has affirmed the Issuer Default Ratings (IDRs) at 'BBB' for Republic Services Inc. (NYSE: RSG) and at 'BBB' for Browning-Ferris Industries Inc. (BFI). Fitch has also affirmed RSG's unsecured credit facility and senior unsecured notes ratings as well as BFI's senior unsecured notes rating at 'BBB'. The Rating Outlook for RSG and BFI is Stable. The ratings cover approximately $7.7 billion of debt as of June 30, 2016.
RSG's ratings are supported by the reoccurring revenue of its multi-year contracts, solid operating leverage in addition to its strong and predictable free cash flow. RSG benefits from a fully national platform, long-lived landfill network and suitable management of its capital structure. Of late the company has consistently generated incremental pricing growth despite a sluggish macroeconomic environment and tepid CPI growth. RSG's credit profile is further enhanced by the firm's continued improvements in cost savings initiatives, improved customer segmentation capabilities and fleet modernization.
Fitch expects RSG to maintain leverage consistent with current levels over the intermediate term as the firm's DEBT/EBITDA was 2.9x through Q2-2016. In addition the firm had an FFO Adjusted Leverage ratio of 3.8x through the same period, and Fitch expects this ratio to remain consistent through the intermediate term. RSG has maintained a reliable cash deployment strategy over recent years, and Fitch expects the firm to deploy approximately $900 million toward capital investment and $420 million toward dividends in 2016. RSG generated a FCF (after dividends) margin of 2.8% through Q2-2016 on an LTM basis, but Fitch expects the company to produce a 4.5% FCF margin for FY-2016, an increase from the 3.7% generated in 2015.
Rating concerns include the potential for significant cash costs related to environmental clean-up at landfills, volatile recycling commodity revenues, significant cash returns to shareholders and frequent acquisition activity. Many of these concerns are generally consistent across the environmental services industry and are not necessarily specific to RSG.
In Q2-2016 RSG tendered $576 million of combined aggregate principal of senior unsecured notes and debentures, funded with a $500 million note offering and borrowings under the firm's credit facilities. Fitch views the tender offer positively as it reduces the duration of the firm's outstanding debt obligations resulting in a meaningful reduction in its cost of capital while retaining financial flexibility, as the pro forma weighted average tenor of RSG's debt remains above 10 years.
RSG's fleet modernization initiatives have progressed rapidly in recent years with 73% of the company's residential vehicles now automated. In addition 17% of the fleet has completed the compressed natural gas (CNG) conversion, benefiting from the lower fuel cost. The company has a goal of reaching 30% of the fleet operating on CNG within three to five years. The ultimate proportion of CNG vehicles is somewhat limited by a necessary proximity to natural gas pipelines and refuelling stations.
--Low single-digit revenue growth through the intermediate term;
--EBITDA margin in the 28% range through the intermediate term;
--Approximately $100 million in tuck-in acquisitions in 2016;
--Capital expenditures of roughly $900 million in 2016;
--Common dividends of roughly $420 million in 2016;
--Share repurchases of roughly $400 million in 2016.
Positive: Future developments that may individually or collectively cause Fitch to take a positive rating action include:
--Maintaining leverage below 2.0x, similar to levels seen prior to the Allied Waste acquisition;
--FCF margins consistently greater than 4%;
--A change in the cash deployment strategy, prioritizing debt reduction over shareholder-friendly activities.
Negative: Future developments that may individually or collectively cause Fitch to take a negative rating action include:
--Leverage rising above 3.5x for a prolonged period;
--Sustained FCF margins below 2%;
--A significant increase in debt-funded share repurchases or dividends;
--A large debt-funded acquisition that results in an elevated long-term leverage target.
RSG's liquidity level should remain adequate as Fitch expects the company to generate approximately $400 million of FCF (after dividends) for FY-2016. The company had $1.7 billion in aggregate revolver availability ($2.25 billion less $485 million of outstanding letters of credit) and held $42 million of cash on its balance sheet as of June 30, 2016. In May 2016, the company entered into a new $1 billion unsecured revolving credit facility replacing the previous facility of the same size that was set to mature in May of 2017. The new facility matures in May of 2021 and includes a $500 million accordion feature. RSG has an additional $1.25 billion unsecured credit facility which also features a $500 million accordion feature and matures in June of 2019.
Fitch has affirmed the following ratings with a Stable Outlook:
Republic Services, Inc.
--IDR at 'BBB';
--Unsecured revolving credit facility at 'BBB';
--Senior unsecured notes at 'BBB'.
Browning-Ferris Industries
--IDR at 'BBB';
--Senior unsecured notes at 'BBB'.
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Check in from 14h / Check out prior to 10h
Thayers Inn: Find photos, reviews, information, amenities and compare prices for 3 stars hotels in Littleton, United States.
Thayers Inn is situated in Littleton and is close to the area's popular attractions. The multiple amenities this modern hotel features include a hair salon, a beauty centre and meeting rooms.
Hotel description
This Victorian hotel provides a number of facilities, including internet, a concierge and a TV room. There is an in-house day spa and a golf course.
Thayers Inn Littleton offers rooms equipped with cable/satellite channels, plus all the essentials to ensure an enjoyable stay.
Thayers Inn provides breakfast each morning that guests can enjoy before heading out to explore the surrounding area.
Thayers Inn Littleton is a convenient place to discover nearby Franconia Notch and Littleton Coin Company, as well as everything the local area has to offer. Those wishing to explore the area can also visit Lincoln, located an easy car ride from the property.
Hotel features
Air Conditioned, Non-Smoking Rooms, Cable / Satellite TV, TV
Concierge, Multilingual Staff, Meeting Rooms
Fitness Room/Gym, Massage / Beauty Centre, Golf Course, Spa & Wellness Centre
High-speed Internet, Internet Connection (wireless)
Availability and Prices
Booking Site
Room Type
Per room
Per night
Per night
Users who viewed Thayers Inn also viewed these 3 stars Littleton hotels:
Hampton Inn Littleton
580 Meadow Street, Littleton
580 Meadow Street, Littleton
The Beal House Inn
2 West Main Street, Littleton
2 West Main Street, Littleton
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–––––––––––––––––––– Latest Blog ––––––––––––––––––––––
Honoring a Friend and Touching the Lives of Blaine High School Students; Why taj salon & spa Contributes to The Corey Chase Scholarship Fund
November 10, 2016
To live in hearts we leave behind is not to die. ~ Thomas Campbell
Blaine High School graduate Corey Chase was just 20 years old when he died on September 26, 2003. A freight train struck the car in which he and three of his friends were in at a malfunctioning crossing gate on Ferry Street, just north of Highway 10 in Anoka. All four in the car were killed.
Soon after Corey died, Jamie Padula and Megan Klossner—both friends of Corey's—visited his mom Beth Chase several times. Wanting to do something to cheer her up, Jamie came up with the idea of honoring Corey with an event he would have loved: a basketball tournament. The first was held at Northdale Middle School with a silent auction held prior to the basketball games. The turnout was amazing and showed just how much Corey was loved. At first, Jamie and Megan—who now manage The Corey Chase Fund—weren't sure what to do with the money raised. Eventually it became clear that a scholarship made available to Blaine High School students interested in engineering or architecture would touch the lives of students who have the same interests as Corey once had.
Continue Reading >
Do You Believe in Manicures, Overdressing, Primping at Leisure and Wearing Lipstick?
November 7, 2016
"I believe in manicures. I believe in overdressing. I believe in primping at leisure and wearing lipstick." ~Audrey Hepburn
If you're like Audrey Hepburn, we want to see you at one of the taj salon & spa Holiday Events! It's the one time of year to save 20% on your favorite products from the salon, spa and boutique. Plus, there will be free experience stations set up in all departments where you can try new services and products. All our staff will be on hand to answer your questions and help you get ready for a 'beautiful holiday!'
Now in its ninth year, this annual event is HUGE for us and for our guests. Why do we host it? It all started by wanting to show our appreciation for you—all of the wonderful people who frequent our Brooklyn Park and Minneapolis locations for your beauty needs from haircuts, coloring and styling to facial and massages, make-up and boutique items. We wouldn't still be here without you!
Thursday, November 10 4 – 8 pm, 9744 Schreiber Terrace, Brooklyn Park MN
Thursday, November 17 5 – 8 pm, 1851 Washington Ave So, Minneapolis, MN
Continue Reading >


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By The Beauty Hub | August 30th, 2015 | Company News,In Store Offers,News,Offers
No Eid look is complete without that signature scent that will set you apart from the crowd, so this year Wojooh is celebrating the art of perfumery! Whether it's a signature scent, a daring new fragrance or a touch of Oud.
For him why not go for the new Hugo Boss, Boss the Scent or Calvin Klein's, Gold Euphoria!
Gifting her? Why not try out Givenchy's, Dahlia Divin or Lancôme's, La Vie est Belle Intense?
Wojooh also wants to wish you all an Eid Mubarak by gifting YOU! From September 15th – 30th with any qualifying purchase, Wojooh will be treating you to a special Eid present, made just for you! The Wojooh Eid bags are the ultimate fashion accessory – a beauty must have, so pass by any Wojooh stores and visit their beauty specialists who will be on hand to find the right fragrance for you.
The Beauty Hub is an interactive online community and marketing platform for the beauty industry and their consumers in the Middle East.
Newsletter SignupSIGNUP
Recent Job Vacancies
- Independent Distributors Needed
Dubai Immediate
- Beauty Product Reviewers Wanted
United Arab Emirates As soon as possible
- Sales Executive for a Beauty Distribution Company
Dubai, UAE As soon as possible
- Regional Sales & Business Development Manager
Dubai This vacancy has been closed


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Sugar Dove Cookies
Total Time
Prep 15 mins
Cook 45 mins
Combine sugar cookies and Dove Chocolates and what a great combination! I have also used store bought sugar cookie mix for these and they are great too!
Ingredients Nutrition
- 3⁄4 cup granulated sugar
- 3⁄4 cup butter, softened
- 1 egg
- 1 1⁄2 tablespoons vanilla extract
- 2 cups all-purpose flour
- 1⁄2 teaspoon salt
- 1⁄2 teaspoon baking soda
- 1⁄2 teaspoon cream of tartar
Sugar for Rolling Cookies
- 1⁄3 cup granulated sugar
- 36 Dove milk chocolate miniatures, unwrapped
- In a large bowl with an electric mixer, beat the butter and sugar until light and fluffy (about 3 to 4 minutes).
- Add the egg and vanilla extract and beat until combined.
- In a separate bowl whisk together the flour, salt baking soda and cream of tartar.
- Add the flour mixture and beat until you have a smooth dough.
- Cover dough and Refrigerate for about 30 minutes.
- Preheat oven to 375 degrees.
- Using a tablespoon or a small cookie scoop, roll dough into 1" balls.
- Roll each cookie dough ball in granulated sugare and place in a well greased mini muffin pan.
- Bake for 15 to 18 minutes or until the edges of the cookies are light brown.
- Remove pan from oven and immediately press an unwrapped Dove Chocolate Miniature in the center of the cookie being cautious not to push through the bottom of the cookie.
- Cool completely before removing the cookies from the pan. You may have to place the pan in the refrigerator for a few minutes to get the cookies cooled enough.
Most Helpful
These were a big hit on my Thanksgiving Cookie tray! Rolled in a combination of Orange and Yellow Ssugar crystals and topped with a solid Chocolate Ball from See's Candies! Mahalo for posting, SoozieQ!
This is also great using Reeses Peanut Butter Cups, too! That's one of my son's Must Haves during the holiday season! Thanks for posting!! Will try it with Dove candies.


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For four generations our family at SwissLane Dairy Farms has been committed to our cows, community and environment. We are excited to invite you on a Dairy Discovery tour to experience life on a modern dairy farm. You'll be amazed how cows, people and technology combine to produce the dairy products you know and love. Join us for a fun and educational day of exploration on the farm. Our products include dairy, maple syrup, petting zoo, picnic area and wagon rides.
12877 84th SE
Alto, MI 49302
Driving Directions
Phone: (616) 293-0432
Email: firstname.lastname@example.com
Conquer your holiday shopping with Pure MichiganMore
Join 500,000 other
people who receive the free Pure Michigan e-newsletter. View the Current Issue
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© 2016 Michigan Economic Development Corporation
300 N. Washington Sq., Lansing, MI 48913


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Pakistan's warring government and opposition are moving towards to a reconciliation deal partly brokered by the UK that could pull the country away from political collapse.
Sources in Asif Zardari's presidential administration and the biggest opposition party, led by Nawaz Sharif, said detailed discussions were under way. A deal would address the issue of the judges that Sharif and a movement of lawyers want restored to office, and a way of reinstating the provincial government in Punjab, which had been run by Sharif's party until Islamabad dismissed it last month. Lifting a legal bar to Sharif and his brother Shahbaz standing for parliament would be part of the package.
The British foreign secretary, David Miliband, called Sharif today to discuss the terms of an agreement, urging him to reach a compromise. US diplomats are also deeply involved, and Pakistan's powerful military looks to be pressing for a political settlement, with the army chief, General Ashfaq Kayani, today meeting Zardari and the prime minister, Yousaf Raza Gilani, in Islamabad.
"Conversations are going on internally [within the country] and externally," said a close aide to Zardari. "Now it depends if PML-N [Sharif's party] accepts".
Sharif has so far been determined to push forward with his showdown with the government. But the last-ditch intervention of the UK and US appears to have persuaded him to consider cutting a deal.
"Things are still a bit raw but there is definitely some activity," said an insider in Sharif's party. "The army is also showing some concern. They [the government] have to do something.
"Zardari has finally outsmarted himself."
Sharif's party has joined the lawyers to take part in a "long march" this week to the capital, where a mass protest is planned for 16 March, raising fears of serious civil unrest that could force the army to step in. They are calling for an independent judiciary, especially the reinstatement of the chief justice removed by the former military ruler Pervez Musharraf in 2007. The government has cracked down hard on the demonstrators, arresting hundreds and blocking roads across the country.
Whether or not Sharif and Zardari reach a compromise, the march is likely to continue, although the potential for conflict could be lessened.
"These people [the government] are opening the doors to dialogue again," said Zulfikhar Khosa, a senior member of Sharif's party.
Zardari's Pakistan People's party accuses Sharif of using the issue of the judges to try and bring down the government, which was elected in February 2008, after more than eight years of military rule.
Given the harsh clampdown, it is unclear how many protesters will be able to make it to Islamabad for Monday.
Pakistan is a key anti-terrorism ally of the west but is struggling against the twin challenges of extremist violence and an economy in tailspin.
London and Washington fear that a political clash could paralyse the government and push the nuclear-armed country towards implosion.


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Have you ever purchased from PartSelect.com before?
Thank you for helping make our site better.
Below is a list of all parts for the KitchenAid Dishwasher KUDS02FRSS0. To find the repair part you need, you can browse the list below or you can narrow your choices by searching for a part by name or description.
This clamp helps to prevent leaking by holding the end of water hose in place.
This part is essential in your dishes getting clean during the wash cycle. If there is any debris or a tear in the filter, it can cause extra buildup and, therefore, causing dirty...
This is connected to the water valve, is located on the side of your tub and allows water to enter your dishwasher.
***Note: This part does not include the inlet gasket - must order separately.
Measures level of soil in the water.
5 pieces included.
This screw is sold individually.
As water is filling your dishwasher, a float rises along with it. When the float reaches a predetermined level, it shuts off the flow of water, thereby preventing a leak.
All brand logos are trademarks of their respective owners.
The PartSelect logo is a Registered Trademark of Atlantic Laundry Centres, Ltd.
Copyright © 1999-2016 , Eldis Group Partnership. All rights reserved.


text: I have the 2nd generation ITouch. I try to charge it with my Belkin powered USB hub and it does not charge. I can charge my ITouch with the USB port on my computer, so I know there is nothing wrong with my ITouch. I am also able to charge other USB devices with my powered USB hub, so I know that it also works. Does anyone know if the ITouch can be charged with a powered USB Hub?


text: Is there a way such as a plist edit that can change the way volume is controlled like in the old iPod touch? I want it so that the ringer and normal volume always stay the same and can be controlled together via the side buttons. Reason is, when I silence the ringer, sometimes I open up a game and sounds will still play because the normal volume was not lowered. If I remember correctly, there was a setting in sounds where you could set if the volume buttons could change the ringer volume, but no way to control both at the same time. Ive edited a few plists already such as enabling usage and the camera and now that setting seems to be gone. Any suggestions or ideas? Thanks


text:
Giving Circles
West Australian Ballet belongs to the West Australian community.
Through the beauty of ballet, we strive to entertain, communicate, connect and delight our audiences with stories that have been shared across the world for centuries.
West Australian Ballet is dedicated to reaching new artistic heights each year and we need the generosity of our community to continue our work towards this vision.
We create an artistic experience where, for one special moment, each of us – women, men, children – have the opportunity to share the joy and thrill of ballet and the ageless stories which connect us.
The support of individuals and corporations is vital to bring these productions to life; from staging to costumes and the health and training of our dancers. From the delicate pointe shoes that allow our dancers to float across the stage to the thousands of rehearsal hours that enable every flawless movement during performance. Your generosity will make it all happen.
Your gift, regardless of the amount, will allow us to take another step in our dance for you and the people of our state.
We invite you to become a part of the story of West Australian Ballet.
Pointe Shoe Fund
Nothing symbolises ballet more than a pair of pointe shoes.
And each pair of worn pointe shoes tells its own unique story: Hours of rehearsal in the studio… a performance in Albany or Karratha… ballet demonstrations in a local primary school… or an open-air performance at the Quarry amphitheatre.
Every year, West Australian Ballet dancers will jeté, pirouette and arabesque through hundreds of pairs of pointe shoes at a staggering cost of $60,000.
Will you support our ballerinas by giving them a pair of new shoes?
$75 One pair of shoes for your favourite ballerina
$200 A pair of pointe shoes and a rehearsal tutu for your favourite ballerina
$500 One week of pointe shoes for a prima ballerina during a performance season
The Nutcracker
A ballet that embodies the spirit of Christmas is about to be reborn, with a new signature production of The Nutcracker, which will transport you to a world of brave toy soldiers, dancing snowflakes and sugar canes.
We invite you to join a unique group of philanthropists as part of our 'Nutcracker Campione' – our 'Nutcracker Champions'.
By supporting the creation of spectacular new costumes and scenery, you will breathe fresh life into this cherished fairy-tale and be a part of a new holiday tradition in Perth, that all begins under the Christmas tree.
$1,000 Gold Campione
$2,000 Ruby Campione supporting your choice of a Snowflake or Soldier costume*
$5,000 Sapphire Campione supporting your choice of a Flower or Rat costume*
As a foundation investor, your name will forever be associated with West Australian Ballet's The Nutcracker.
* Costume patrons will be invited to have their names sewn into their costume of choice.
Dancer Health & Wellbeing
Our dancers are the life-blood of our company. They are the perfect balance of competitive athletes who train daily to improve their strength, flexibility and endurance and highly skilled artists who perform effortlessly with beauty and grace.
As athletes, they need ongoing professional treatment to train, maintain and rehabilitate their precious bodies. As artists, they live and breathe their art-form.
We invite you to support our dancers' total commitment to ballet.
$100 One month supply of 4-way tape to repair injuries
$150 Pilates essentials pack (mat, strengthening ring, foam roller, theraband and massage ball)
$1,000 Conditioning classes for the entire company for two months
$2,000 A Principal Dancer's recovery sports massage for a full season
Artistic Vision & Performances
It takes a team of highly trained professionals to bring together all the elements of a magical performance: from lighting plans to sprung floors, conductors and musicians, make-up artists and stage managers to name a few! We invite you to support the performances for which West Australian Ballet is known and admired, and become a partner in the realisation of our company's artistic vision.
$100 Provide a freelance pianist for a ballet studio rehearsal
$500 350m section of rope for rigging sets and equipment
$3,000 Licensing costs for a performance season of an existing ballet
$6,000 Musical scores for the conductor and musicians for a performance at His Majesty's Theatre
Education & Access
West Australian Ballet brings the joy and athleticism of ballet to our schools through in-school residency programmes, matinee performances for school-groups and classes in regional centres whilst on tour. It is a challenge to bring ballet to communities from Albany to Broome and everywhere in-between – we would love your help in sharing music, dance and culture with all West Australians.
$500 Help bring expert knowledge to the general public by supporting an in-season Pre-Performance talk
$1,000 Fund the Masterclass Auditions for talented young West Australian dancers
$1,500 A professional learning workshop for K-12 teachers to incorporate dance into classrooms across the state
Young Artist Programme
The future of ballet rests with our young dancers, and West Australian Ballet nurtures and develops gifted dancers with training programmes that can kickstart their career. With performance opportunities and real-life experience in a world-class company, we provide a foundation for their future in the ballet industry.
Click on the link below to request more information about our Young Artist Programme.
Giving Circles
Our Friends Circle receive invitations to regular Behind the Scenes* events, and keep up to date with the latest information about the company through our newsletter Ballet News. Friends Circle members also receive invitations to special events including the Summer Soiree and the Company Christmas Party*.
* Ticket costs apply.
Ballet Circle members enjoy getting to know Aurelien Scannella and West Australian Ballet dancers through a variety of events including Behind the Scenes and Curtain Down*. Ballet Circle members can keep in touch with the company activities through Ballet News and Backstage at the Ballet publications.
* Ticket costs apply.
Director's Circle members are acknowledged as philanthropic leaders and are invited to a number of key events throughout the year which enable them to enjoy a more personal connection with all levels of the company. Includes invitations to Director's Circle performances*, InStudio and other VIP events.
* Ticket costs apply.
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May 24, 2007
UNITED STATES OF AMERICA EX REL. DARYL LINNEAR PETITIONER,v.STEVEN C. BRYANT, WARDEN, AND LISA MADIGAN, ATTORNEY GENERAL OF ILLINOIS, RESPONDENTS.
This matter is before the court on Petitioner Daryl Linnear's ("Linnear") petition for a writ of habeas corpus ("Petition"). For the reasons stated below, we deny the Petition.
Linnear was convicted in Illinois state court in a bench trial of first degree murder and on February 13, 2001, he was sentenced to twenty years in prison. Linear appealed the conviction and on November 25, 2002, an Illinois appellate court affirmed the trial court. Linear then filed a petition for leave to appeal to the Illinois Supreme Court and the petition was denied on April 2, 2003. Linnear then filed a post-conviction petition, which was dismissed by an Illinois state trial court on April 30, 2003. On November 5, 2004, an Illinois appellate court affirmed the trial court. Linnear then filed a petition for leave to appeal with the Illinois Supreme Court, which was denied on December 1, 2005. On August 28, 2006, Linnear filed the instant Petition seeking relief pursuant to 28 U.S.C. § 2254.
A district court may entertain a habeas corpus petition from 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). A habeas corpus petition shall also not be granted: on behalf of a person in custody pursuant to the judgment of a State court . . . unless the 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)(1-2). A decision by a state court is deemed to be "'contrary to' [the U.S. Supreme Court's] clearly established precedents if it 'applies a rule that contradicts the governing law set forth in [the Court's] cases' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent.'" Early v. Packer, 537 U.S. 3, 8 (2002)(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Linnear raises seventeen grounds for relief in his Petition. Linear argues that he received ineffective assistance of counsel at trial based on his counsel's alleged failure to: call certain defense witnesses at trial (Ground 1), discuss facts with Linnear (Ground 2), ask about a plea bargain (Ground 3), properly cross-examine witnesses (Ground 4), object to hearsay and to conflicting testimony (Ground 5), recognize a conflict of interest (Ground 6), obtain a forensic or scientific expert (Ground 7), object to prosecutorial misconduct (Ground 8), make proper strategic decisions (Ground 9), prepare for trial (Ground 10), properly impeach witnesses (Ground 11), show the bias of witnesses (Ground 12), make an effective closing argument (Ground 13), and to accurately inform Linnear of the pertinent law (Ground 14). Linnear also alleges separately that the cumulative effect of the above mentioned alleged errors showed that his trial counsel's representation was inadequate (Ground 15) and that the State of Illinois did not prove Linnear guilty beyond a reasonable doubt (Ground 16). Finally, Linnear contends that his appellate counsel on direct appeal erred by failing to raise the above alleged errors committed by his trial counsel (Ground 17).
We note that in the table of contents of the Petition that contains the heading "Issues Presented for Review," Linnear lists his appellate counsel's representation as Ground 16. (Pet. 3A). However, Linear indicates in the body of the Petition that Ground 16 is his contention that the State did not prove him guilty beyond a reasonable doubt. Thus, although Linnear did not properly number his grounds in the Petition, he has presented the court with seventeen separate grounds and, for the purposes of analyzing the Petition, the court will treat Ground 16 as Linnear's contention that he was not proven guilty beyond a reasonable doubt and Ground 17 as the ground relating to his appellate counsel.
I. Grounds 4, 9, and 15
Respondent contends that Grounds 4, 9, and 15 are procedurally defaulted. A petitioner's claims are procedurally defaulted unless the petitioner can show that "'he fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge.'" Simpson v. Battaglia, 458 F.3d 585, 593 (7th Cir. 2006)(quoting Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005)). A claim is "fairly presented" to the state appellate courts only if the petitioner "assert[ed] his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post-conviction proceedings.'" Id. (quoting Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004)). Claims not "fairly presented" to the state appellate courts can only be presented upon a "showing of cause and prejudice to excuse the default," or if "a miscarriage of justice will result if [the court does] not consider the merits of [the] case." Daniels v. Knight, 476 F.3d 426, 430 (7th Cir. 2007)(quoting Dretke v. Haley, 541 U.S. 386, 388 (2004)); Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006)(stating that "[e]stablishing cause ordinarily requires demonstrating an external obstacle preventing the petitioner from fairly presenting the federal claim in state court, and actual prejudice, not merely a possibility of prejudice, is required" and that "[t]he miscarriage-of-justice-exception applies when the petitioner can demonstrate that he is actually innocent").
In the instant action, Linnear asserts as Ground 4 that his trial counsel erred by failing to properly cross-examine the State's witnesses. Linnear asserts as Ground 9 that his trial counsel failed to make sound decisions and did not adopt an effective trial strategy. In Ground 15 Linear asserts that the cumulative effects of his trial counsel's alleged errors show that Linnear did not receive adequate representation. Linnear did not raise Grounds 4, 9, or 15 during a full round of the state court appellate proceedings. Linnear did not, for example, include the grounds in his pro se petition for leave to appeal and supplemental brief filed on his direct appeal to the Illinois Supreme Court, or in his appeal from the dismissal of his post-conviction petition. (R. Ex. F, G, K). Linnear has not shown cause for his failure to raise the grounds earlier and he has not shown that he will suffer actual prejudice or that a fundamental miscarriage of justice will occur if the court does not entertain them at this juncture. Therefore, Grounds 4, 9, and 15 are procedurally defaulted. We also note that, regardless, we have reviewed Grounds 4, 9, and 15 in detail and conclude that the grounds lack any merit.
II. Grounds 1-3, 5-8, 10-14
Respondent contends that Grounds 1-3, 5-8, and 10-14 are procedurally defaulted and that, regardless of the default, the grounds lack any merit.
A. Procedural Default
As indicated above, on April 30, 2003, an Illinois state trial court dismissed Linnear's post-conviction petition. Linnear then received appointed counsel for his appeal to the Illinois appellate court. Linnear's appointed counsel filed an appellate brief, which based the appeal solely upon the argument that Linnear was not properly served with notice of the decision of the denial of the post-conviction petition within the statutory prescribed period. (R. Ex. K). On April 29, 2004, Linnear filed a pro se motion for leave to supplement his counsel's appellate brief and on April 30, 2004, the Illinois appellate court denied Linnear's motion for leave to supplement.
(R. Ex. O). Although, Linnear raised arguments in his proposed supplemental brief concerning Grounds 1-3, 5-8, and 10-14, his motion to supplement was denied and thus the only ground properly presented to the Illinois appellate court and considered on appeal was the one ground presented by Linnear's appellate counsel. Thus, Grounds 1-3, 5-8, and 10-14 are procedurally defaulted since they were not raised through a complete round of the state appellate process. Linnear filed his PLA on direct appeal pro se and he has not asserted in the Petition that his appellate counsel handling his post-conviction appeal failed to provide him with effective representation. Linnear has also not shown cause for his failure to raise Grounds 1-3, 5-8, and 10-14 earlier and he has not shown that he will suffer actual prejudice or that a fundamental miscarriage of justice will occur if the court does not entertain them at this juncture.
B. Merit of Grounds 1-3, 5-8, and 10-14
We note that, even if the above mentioned grounds were not procedurally defaulted, the grounds lack any merit. For an ineffective assistance of counsel claim, a defendant must establish that: (1) "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007)(stating that "[t]rial counsel's performance will not be considered deficient unless it falls 'below an objective standard of reasonableness'") (quoting in part Strickland v. Washington, 466 U.S. 668, 688 (1984)). In assessing a counsel's performance, a court must take into consideration that "trial counsel is entitled to a 'strong presumption' that his performance fell 'within the wide range of reasonable professional assistance' and will not be judged with the benefit of hindsight." Id. (quoting in part Strickland, 466 U.S. at 689).
1. Failure to Call Witnesses (Ground 1)
Linnear asserts in Ground 1 that his trial counsel erred by failing to call as witnesses at trial Brenda Driver and George Semerigis. (Pet. 5). However, the decision concerning which witnesses to call at trial is a strategic decision that is committed to the professional discretion of a defendant's attorney. See Strickland, 466 U.S. at 689 (1984)(stating that "[t]here are countless ways to provide effective assistance in any given case" and that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way"); United States v. Malone, 2007 WL 1238870, at *2 (7th Cir. 2007)(stating that "[t]rial tactics are a matter of professional judgment"); United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997)(stating that "[a] lawyer's decision to call or not to call a witness is a strategic decision generally not subject to review" and that "'[t]he Constitution does not oblige counsel to present each and every witness that is suggested to him'")(quoting in part United States v. Balzano, 916 F.2d 1273, 1294 (7th Cir. 1990)). Linnear has not explained how the testimony of the two witnesses would have altered the outcome of his case and Linnear has not shown that his counsel's decision not to present the two witnesses was improper. See United States v. Best, 426 F.3d 937, 946 (7th Cir. 2005)(stating that "'[t]hough there may be unusual cases when an attorney can make a rational decision that investigation is unnecessary, as a general rule an attorney must investigate a case in order to provide minimally competent professional representation'")(quoting Crisp v. Duckworth, 743 F.2d 580, 583 (7th Cir. 1984)); United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002)(stating that a "defense attorney is not obligated to track down each and every possible witness or to personally investigate every conceivable lead"). Linnear has thus failed to show that the decision by his attorney not to call the two witnesses was improper or that it was an unreasonable decision on his counsel's part. Linnear has also failed to show that the failure to call the two witnesses caused him any prejudice. See United States v. Hall, 212 F.3d 1016, 1021 (7th Cir. 2000)(stating that "[s]hould the petitioner satisfy the performance prong, he must next fulfill the prejudice prong and demonstrate 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different'")(quoting in part United States v. Starnes, 14 F.3d 1207, 1210 (7th Cir. 1994)). Therefore, we conclude that Ground 1 lacks any merit.
2. Failure to Discuss Facts (Ground 2)
Linnear asserts in Ground 2 that his trial counsel erred by failing to discuss certain statements with Linear that his counsel allegedly learned of during discovery. Linnear presents nothing other than his own conclusory statement that it is his belief that his counsel allegedly concealed certain statements from him. Linnear provides no specific facts in the Petition concerning the alleged statements. Even if Linnear could show that he was not told of the statements, Linnear has failed to show that the statements were of such importance that his counsel should have reasonably specifically informed him of the statements. There is no requirement that a defense counsel specifically notify his client of every minute piece of information obtained in discovery. Finally, even if Linnear was not informed of the statements, Linnear has not shown that his case was prejudiced. Therefore, we conclude that Ground 2 lacks any merit.
3. Failure to Make a Plea Request (Ground 3)
Linnear asserts in Ground 3 that his counsel erred by failing to "offer any plea request of the defendant's [sic]." (Pet. 5A). Linnear also asserts that he was deprived of his "right to . . . engage in a plea-barganing [sic] agreement." (Pet. 5A).
However, Linnear has not provided any specific facts to show that his assertions are based upon anything other than his own speculation. It is entirely possible that his counsel discussed the possibility of a plea bargain with the State and Linnear's Petition is silent on that point. Also, the extension of a plea agreement is solely within the discretion of the State. Linnear does not assert that his counsel rejected any plea agreement that was offered by the State. The State has the right to prosecute Linnear for the charged offense without extending a plea agreement. Linnear has no right to enter into a plea agreement with the State. See Hall, 212 F.3d at 1022 (stating that "the successful negotiation of a plea agreement involves factors beyond the control of counsel, including the cooperation of his client, . . . as well as the cooperation of the prosecutor, who has no obligation to offer such an agreement"); United States v. Springs, 988 F.2d 746, 749 (7th Cir. 1993)(stating that "[t]he guarantee of counsel in the sixth amendment is designed to promote fair trials leading to accurate determinations of guilt or innocence," but that "[t]he Constitution does not ensure that lawyers will be good negotiators, locking in the best plea bargains available"). Therefore, we conclude that Ground 3 lacks any merit.
4. Failure to Object to Hearsay and Conflicting Testimony (Ground 5)
Linnear asserts in Ground 5 that his trial counsel erred by failing to object to hearsay and to conflicting testimony. In regards to the hearsay argument, Linnear has failed to specify any evidence that he believed to be hearsay and his general reference to "unsupported hearsay testimony" at trial is too vague. (Pet. 5B).
Linnear has not provided any facts that show that any evidence was admitted at trial that constituted hearsay. Also, even if Linnear had shown that hearsay was admitted at trial, the decision regarding whether to make an evidentiary objection is part of the trial strategy, which is left to the professional discretion of counsel. Finally, Linnear has not shown that any hearsay evidence was admitted that would have affected the outcome of his case or that he was prejudiced by the admission of the evidence. Therefore, we conclude that Ground 5 lacks any merit.
5. Failure to Recognize Conflict of Interest (Ground 6)
Linnear asserts in Ground 6 that his trial counsel erred by failing to recognize a conflict of interest between Linnear and his counsel. However, Linnear only asserts in a conclusory fashion that a conflict of interest arose "for the lack counsel's [sic] willingness to aid the defendant properly. . . ." (Pet. 5B). Linnear has failed to present any facts that would indicate that his counsel had a conflict of interest that precluded him from representing Linnear at trial. Also, Linnear has failed to show that any alleged conflict of interest prejudiced his case. Therefore, we conclude that Ground 6 lacks any merit.
6. Failure to Call Forensic Expert or Scientific Expert (Ground 7)
Linnear asserts in Ground 7 that his trial counsel erred by failing to call as a witness a forensic expert or scientific expert. However, as is indicated above, the selection of defense witnesses is a strategic decision that is left to the professional discretion of the trial counsel. See Williams, 106 F.3d at 1367 (stating that "[a] lawyer's decision to call or not to call a witness is a strategic decision generally not subject to review" and that "'[t]he Constitution does not oblige counsel to present each and every witness that is suggested to him'")(quoting in part Balzano, 916 F.2d at 1294). In addition, the state correctly points out that evidence presented at trial had been evaluated by State forensic investigators, a State forensic pathologist, and a State forensic scientist. (R. Ex. X R116-25). Linnear has not indicated why further scientific expert or forensic expert testimony would have been necessary in this case. Finally, Linnear has not shown that his case was prejudiced by the lack of a scientific or forensic defense expert. Therefore, we conclude that Ground 7 lacks any merit.
7. Failure to Object to Prosecutorial Misconduct (Ground 8)
Linnear asserts in Ground 8 that his trial counsel erred by failing to object to alleged prosecutorial misconduct. Linnear claims that the prosecutor presented the court with "false motives" and that the prosecutor coached and coerced its witnesses so that they testified about the "false motives." (Pet. 5C). Linnear does not present any basis for his belief that the prosecutor coached or coerced witnesses. Linnear's contentions are clearly based upon nothing more than speculation. Linnear has not presented any facts that indicate that the prosecutor introduced any information at trial that the prosecutor knew was false or that the prosecutor engaged in any misconduct at trial. Finally, Linnear has not shown that his case was prejudiced by his counsel's failure to object. Therefore, we conclude that Ground 8 lacks merit.
8. Failure to Prepare for Trial (Ground 10)
Linnear asserts in Ground 10 that his trial counsel failed to prepare for trial. However, Linnear fails to state any specific facts that would indicate that his counsel's preparation was inadequate. Linnear contends that his counsel was unprepared since he did not call character witnesses to testify about the alleged violent demeanor of the victim, Wilford Raymond ("Raymond"). As is indicated above, the determination of what witnesses to call for the defense is left to the professional discretion of the trial counsel. Williams, 106 F.3d at 1367. In addition, the State correctly points out that Linnear's trial counsel called an officer to testify at trial about the violent demeanor of Raymond. (R. Ex. X R127-29); see Strickland, 466 U.S. at 689 (stating that "[t]here are countless ways to provide effective assistance in any given case" and that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way"). Finally, even if Linnear could show that his counsel was not prepared in the manner specified by Linnear, Linnear has not shown that his case was prejudiced. Therefore, we conclude that Ground 10 lacks any merit.
9. Failure to Impeach Witnesses (Ground 11)
Linnear asserts in Ground 11 that his trial counsel erred by failing to impeach the State's witnesses. According to Linnear, some of the trial testimony of the witnesses contradicted their grand jury testimony. Impeachment of a witness is within the purview of the professional judgment of counsel and Linnear has shown no error by his trial counsel. Also, Linnear has failed to identify any specific testimony of the witnesses that Linnear believes contradicted the grand jury testimony. Finally, even if Linnear failed to attempt to impeach the State's witnesses, Linnear has not shown that his case was prejudiced. Therefore, we conclude that Ground 11 lacks merit.
10. Failure to Present Evidence of Bias (Ground 12)
Linnear asserts in Ground 12 that his trial counsel erred by failing to present evidence that allegedly showed that the State's two female witnesses had a bias. Linnear contends that the witnesses lied on the stand in order to protect their "male friend." (Pet. 6A). However, Linnear does not provide any facts that would indicate that his belief concerning the witnesses' bias is based upon anything other than Linnear's own speculation. Also, although Linnear criticizes his trial counsel for "fail[ing] to supply the court with evidence" that showed bias, Linnear has failed to identify any evidence that his counsel could have used to show such bias. Finally, even if Linnear could show that his counsel could and should have presented certain evidence of bias, Linnear has not shown that his case was prejudiced by the alleged omission. Therefore, we conclude that Ground 12 lacks any merit.
11. Failure to Make an Effective or Proper Closing Argument (Ground 13)
Linnear asserts in Ground 13 that his trial counsel "failed to present an effective or prepared closing argument." (Pet 6B). However, Linnear has failed to provide any specific facts indicating that his trial counsel was unprepared for his closing argument. Linnear's assessment of his counsel's preparedness is not sufficient to show that the representation by his counsel was ineffective. Linnear has not presented any facts indicating that his counsel's closing argument was not "effective," and, regardless, Linnear merely has a right to representation that falls "'within the wide range of reasonable professional assistance. . . .'" Almonacid, 476 F.3d at 521 (quoting in part Strickland, 466 U.S. at 689). Linnear does not have a constitutional right to representation that he deems "effective" or to representation that secures an acquittal. Finally, Linnear has not shown that his trial counsel's closing argument prejudiced Linnear's case. Therefore, we conclude that Ground 13 lacks any merit.
12. Alleged Misunderstanding of the Law (Ground 14)
Linnear asserts in Ground 14 that his trial counsel erred by allegedly failing to accurately inform Linnear of the pertinent law. However, Linnear fails to offer the basis for his belief about the accuracy of his counsel's advice about the law. Also, Linnear states in a general fashion that he was not properly informed about the "correct laws and penalties that pertained to [Linnear's] charge," (Pet. 6B), but Linnear fails to specify which rules of law that he believes his counsel inaccurately explained. Finally, even if Linnear could show that his trial counsel misinformed Linnear concerning the pertinent law, Linnear has failed to show that his case was prejudiced. Therefore, we conclude that Ground 14 lacks any merit. Based on the foregoing, Linnear has not shown that he is entitled to habeas relief based on Grounds 1-3, 5-8, or 10-14.
III. Ineffective Assistance of Appellate Counsel (Ground 17)
Linnear also asserts that his appellate counsel on direct appeal did not render effective assistance of counsel due to his failure to raise the alleged errors by Linnear's trial counsel that are specified above. (Pet. 3A). However, as is explained above, there is no indication that Linnear's trial counsel's representation was not "'within the wide range of reasonable professional assistance. . . .'" Almonacid, 476 F.3d at 521 (quoting in part Strickland, 466 U.S. at 689)(stating that a trial counsel's decision "will not be judged with the benefit of hindsight"). Thus, Linnear's appellate counsel clearly did not err in failing to raise frivolous arguments concerning the representation by Linnear's trial counsel. Linnear has also failed to show that his case was prejudiced by his appellate counsel's failure to raise such arguments on appeal. Therefore, we conclude that Ground 17 lacks any merit.
IV. Whether the State Proved that Linnear was Guilty (Ground 16)
Linnear asserts in Ground 16 that the State failed to prove him guilty beyond a reasonable doubt. The due process rights of a defendant in a criminal case are "satisfied if, viewing the evidence in the light most favorable to the prosecution, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Johnson v. Bett, 349 F.3d 1030, 1034 (7th Cir. 2003) (emphasis in original)(quoting in part Jackson v. Va., 443 U.S. 307 (1979)). At trial, Linnear testified that he lived with his father and that two weeks before the shooting he agreed to demolish a building with his father and Raymond. (R. Ex. X R154-55, 157). According to Linnear, Raymond did not show up for work on the second and third days of the demolition job and Linnear refused to pay Raymond for those days, which created animosity between Linnear and Raymond. (R. Ex. X R158-60).
Brandiya Jenkins ("Jenkins") testified at trial that she lived next door to Linnear and his father. (R. Ex. E 1); (R. Ex. X R20). Jenkins testified that on the evening in question, she was at home when she heard Linnear tell her mother and grandmother that someone had broken into Linnear's home and "jumped on" Linnear's father. (R. Ex. E 1); (R. Ex. X R23). Jenkins also testified that Linnear stated that he was going to "get the person" responsible for the incident. (R. Ex. E 1); (R. Ex. X R24). Jenkins further testified that she left her house with her boyfriend at the same time as Linnear and that she saw Raymond approach Linnear on the lighted street. (R. Ex. E 2); (R. Ex. X R25-26).
According to Jenkins, Raymond had a bag of shoes in one hand and a plate of food in the other hand and Raymond asked Linnear, "What's up?" (R. Ex. E 2); (R. Ex. X R27, 29). Jenkins claimed that she heard Linnear tell Raymond that "ain't nobody going to do this to [Linnear's] father anymore" and Linnear proceeded to pull out a gun and to shoot Raymond in the head. (R. Ex. E 2); (R. Ex. X R29-30). Jenkins also testified that immediately after the shooting she heard Linnear state, "Damn, I just shot him." (R. Ex. E 2); (R. Ex. X R31). Catherine Jenkins ("C. Jenkins") confirmed her daughter's version of the events, although there was a minor discrepancy as to when exactly Jenkins' boyfriend pulled away in his car. (R. Ex. E 2); (R. Ex. X R61-62, 65-68).
Linnear testified at trial that when Raymond came up to him, Linnear thought he saw Raymond raise something "silver and shiny,"and Raymond lunged at him.
(R. Ex. E 5); (R. Ex. X R180). Linnear claims he then put up his arms to protect himself and at that moment he heard a gun shot. (R. Ex. E 5); (R. Ex. X R180-81). Linnear admitted at trial that he then placed Raymond in his car and left Raymond on the ground in front of a hospital. (R. Ex. E 5); (R. Ex. X R182-83). Linnear admitted that he did not call the police or surrender for nearly two weeks after the shooting. (R. Ex. E 6).
Based on the eyewitness accounts of Linnear's two neighbors and other evidence presented by the State, the trier of fact could have reasonably found Linnear guilty of first degree murder. Linnear argues that the testimony of Jenkins and C. Jenkins is inherently unreliable because they disagreed about when Jenkins' boyfriend drove away. However, that minor discrepancy was not of such importance as to preclude the trier of fact from believing the witnesses' testimony concerning Linnear's actions. The testimony between the witnesses concerning what was observed between Linnear and Raymond was consistent. Linnear also argues that Jenkins and C. Jenkins had some sort of animosity towards Linnear, but Linnear admitted at trial that his family had a longstanding friendship with the Jenkins family. (R. Ex. X R170). Jenkins also testified at trial that at the time of the shooting she did not have any disputes or problems with Linnear. (R. Ex. X R22). The trier of fact was able to assess the credibility of Linnear and Jenkins to ascertain whether animosity existed. Thus, there was ample evidence upon which a reasonable trier of fact could have convicted Linnear of first degree murder.
Based on the foregoing analysis, we deny the Petition.
Samuel Der-Yeghiayan United States District Court Judge
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