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United States District Court, C.D. California
November 13, 2014
ELIJAH DEMITRICE POUNCEY, Petitioner,v.AMY MILLER, Warden, Respondent
Elijah Demitrice Pouncey, Petitioner, Pro se, Imperial, CA.
For Amy Miller, Warden, Respondent: William Norton Frank, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.
This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On July 23, 2013, Elijah Demitrice Pouncey (" Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (" Petition") pursuant to 28 U.S.C. § 2254.[1] On October 11, 2013, Respondent filed an Answer to the Petition. Petitioner filed a Reply on November 8, 2013. For the reasons discussed below, it is recommended that the Petition be DENIED and that this action be DISMISSED with prejudice.
On December 16, 2010, a Los Angeles County Superior Court jury found Petitioner guilty of one count of possession of a firearm by a felon in violation of California Penal Code (" P.C.") § 12021(a)(1) and one count of possession of ammunition by a felon in violation of P.C. § 12316(b)(1). (Clerk's Transcript (" CT") 178-79, 182-84; Reporter's Transcript (" RT") 1811-15). On December 22, 2010, the trial court found that Petitioner had two prior strikes within the meaning of California's Three Strikes law, P.C. § § 667(b)-(i) & 1170.12(a)-(d). (CT 185-86; RT 2145). On December 23, 2010, the trial court sentenced Petitioner to 25 years to life in state prison. (CT 187-90; RT 2418-20).
Petitioner appealed his convictions and sentence to the California Court of Appeal, which affirmed the judgment on March 8, 2012. (Lodgments 4-7). Petitioner then filed a petition for review in the California Supreme Court, which denied the petition on May 23, 2012. (Lodgments 8-9).
The following facts, taken from the California Court of Appeal's decision on direct review, have not been rebutted with clear and convincing evidence and must be presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
[Petitioner] dated Cindy Palmer for about four years between 2004 and early 2009, and thereafter they remained friends. On March 18, 2010, Palmer and [Petitioner] spent most of the day together. [Petitioner] left Palmer's house on San Pedro Street by 5:00 p.m. He came back at about 8:00 p.m. Palmer was sitting on her porch with a neighbor when [Petitioner] returned. She went into her house as [Petitioner] walked up the driveway because she did not want " any problems." [Petitioner] spoke to Palmer through a locked safety/screen door, and asked her if she had seen his cell phone; she had not. [Petitioner] searched the ground around Palmer's car which was parked in the driveway, and opened the door to look inside. Palmer dialed the phone's number, but neither she nor [Petitioner] could hear his phone ring. Palmer asked [Petitioner] to leave.
[Petitioner] came towards the door and asked Palmer to come outside. She refused and asked him to leave again. [Petitioner] lit a cigarette, stepped off the porch and walked toward Palmer's car, reaching under his jacket with his right hand. He then extended his right arm at shoulder height, and his hand was clenched as though holding something pointed at Palmer's car. Palmer saw flashes and heard four shots. She ran to the back of the house to check on her daughter. As she returned to the front of the house she heard two more shots in the front yard. Palmer called 911, left the house and saw [Petitioner] walk south on San Pedro.
Los Angeles Police Department (LAPD) Officers Marin and Reyes were patrolling the area in an unmarked police vehicle when the shots were fired. Officer Marin drove south on San Pedro and saw Palmer waving from a porch. She directed the officers toward [Petitioner], whom she said was " in the white car." [(##RefNum=Fn. 3 FootnoteNum=2##)] The officers drove south on San Pedro and, saw a man inside a white car parked at the curb. The man appeared " startled" when he saw the officers, and quickly drove west on 75th Street, then turned and headed north on San Pedro at a high rate of speed. The officers followed the man for several blocks while Officer Reyes broadcast information about the pursuit. Palmer was still on the phone with the 911 operator when [Petitioner] sped past her house followed by the unmarked police car. He turned east onto 74th Street and then south on Avalon. Officer Marin lost sight of [Petitioner] after he turned onto Avalon.
[Fn. 3] [Petitioner] drove a white Oldsmobile Alero.
LAPD Officer Paz and his partner were in the area and heard the other officers' broadcast. Officer Paz saw the white Alero headed south on Avalon near Manchester at a high rate of speed, and turned to pursue the car. He followed the Alero south on Avalon and east on 87th Street. By the time Officer Paz caught up with the Alero, it had crashed into another vehicle on 87th Street and the driver was gone. Bystanders told the officers the driver had run south. A perimeter was set up and the driver was detained after a 20 minute search. In a field show-up, Palmer identified the driver as the man who had earlier fired a gun outside her house. Palmer also showed police bullet holes she had found in her car, and in a shed in front of her house. A .45 caliber shell casing and a spent bullet were recovered from Palmer's yard.
Police recovered a loaded .45 caliber semi-automatic handgun from the crashed white Alero. The gun was wedged between the floorboard and the frame rail of the driver's side door.
Firearms analysis established that the shell casing and spent bullet recovered from Palmer's yard were fired by the handgun recovered from the Alero. The parties stipulated that no latent fingerprints of value were found on the handgun, the spent casing, or the live rounds, and also stipulated that [Petitioner] was previously convicted of a felony.
[Petitioner] did not testify and presented no evidence in his defense.
(Lodgment 7 at 3-4).
In his Petition, Petitioner raises the following claim for federal habeas relief:
Ground One: Petitioner was denied his Sixth Amendment right to the effective assistance of counsel when defense counsel failed to inform him of a state's plea offer until after the offer expired.
(Petition at 5).
The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA") applies to the instant Petition because Petitioner filed it after AEDPA's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). " By its terms [AEDPA] bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in § § 2254(d)(1) and (d)(2)."
Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). Under AEDPA's deferential standard, a federal court may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law or was based upon an unreasonable determination of the facts. 28 U.S.C. § 2254(d). " This is a 'difficult to meet' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]'"
Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (citations omitted).
Petitioner raised his claim in his petition for review to the California Supreme Court, which denied the claim without comment or citation to authority. (Lodgments 8-9). The Court " looks through" the California Supreme Court's silent denial to the last reasoned decision as the basis for the state court's judgment.
See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (" Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."); Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) (" [W]e conclude that Richter does not change our practice of 'looking through' summary denials to the last reasoned decision -- whether those denials are on the merits or denials of discretionary review." (footnote omitted)), as amended, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134 S.Ct. 1001, 187 L.Ed.2d 863 (2014). Therefore, in addressing Petitioner's claim, the Court will consider the reasoned opinion of the California Court of Appeal, which denied the claim on the merits. Berghuis v. Thompkins, 560 U.S. 370, 380, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010).
Petitioner contends he was denied his Sixth Amendment right to the effective assistance of counsel when defense counsel failed to inform him of a fifteen-year-and-four-month plea offer until the offer had expired. (Petition at 5; Reply at 1-7).
A. Background
The California Court of Appeal found the following facts underlying Petitioner's claim:
On Thursday, December 2, 2010 the judge (Judge Ryan) conducting the pretrial hearing asked the prosecutor (Mr. Hulefeld) what he had " offer[ed] to settle the case?" The prosecutor responded, " 17 years, 4 months." When asked if the defense had a counteroffer, [Petitioner's defense counsel] Mr. Rico, stated, " There is. Eight years." After conferring with [Petitioner], Mr. Rico corrected himself to state that the defense counteroffer was six years.
The prosecutor pointed out that [Petitioner] had received a 14--year sentence for his last conviction, served concurrently with a federal trafficking term. After clarifying that [Petitioner's] first strike conviction was a carjacking in which he used a shotgun and that his second strike conviction involved an attempted kidnapping and robbery, Judge Ryan stated, " I don't think I'm going to make a different offer. I've made a note that [Petitioner's] counteroffer is six years. Truthfully, I think 17 years, 4 months is a gift." [Petitioner's] counsel noted that the allegations in the instant case were that [Petitioner] shot up a car without any intent to hurt anyone, to which the court responded, " [T]hank God for that. I think -- well, I can only give you my best -- and I also say that -- I think that, if he's convicted, the People are going to be asking for a life top term." The prosecutor affirmed that would be the case. The prosecutor also noted, for the record, that he was preparing to transport an out-of-state witness and said that, " if we get to the point where we bring this person to Los Angeles to try this case, then absent something unusual happening, there isn't going to be any offers after that."
The court stated its understanding that the plea offer would be " off the table" at that point. The prosecutor said, " Yes, " and the court reiterated, " It will not be available."
On the morning of Wednesday, December 8, 2010 in the master calendar courtroom, the prosecutor asked the court, Judge Espinoza, for priority in order to discuss the pending settlement offer before his witness got on a plane that afternoon. The following exchanged occurred:
" The Court: . . . Both sides have announced ready. Has anybody told him, though, that once this witness gets on the plane, the offer is off the table?
" Mr. Rico: No.
" Mr. Hulefeld: For the record, I did state that on the record last appearance.
" The Court: Can we have [Petitioner] out? But they didn't think she was getting on the plane until tomorrow.
" Mr. Rico: Right, and I relied on that.
" The Court: I know. He is looking at 35 to life. He's had lots of time to think about his situation. . . .
" Mr. Hulefeld: And just for the record, nothing's changed from my perspective. What happened was for reasons related to the witness -- I was not there the past two days. The travel arrangements were scheduled for today when I'd asked for them to be made tomorrow."
[Petitioner] was brought into the courtroom and further discussion regarding the prosecution's settlement offer took place:
" The Court: . . . I'm getting ready to send you out for trial right now. Your trial will start probably in about 45 minutes with jury selection. And I wanted to bring you out because I know a little bit about your case and a little bit about you. Do I have your attention?
" [Petitioner]: Yes.
" The Court: Okay. And I want to make sure you're not making a mistake here. You're facing 35 to life in this case, and the People's position is that if the case goes to trial and you're convicted, they're definitely asking for a life sentence. Apparently, the last time you received a state prison commitment it was for 14 years. Is that accurate?
" [Petitioner]: 1993, yes.
" The Court: Yeah. You got a 14--year state prison commitment. They're offering you 17 years on this case today, which is slightly higher than the last time you were in. [¶ ] " Now, I don't know anything about whether you did this crime or not, and I'm not expressing an opinion as to whether you committed this crime or not because I have no way of knowing. [¶ ] " I do know that if you're convicted, it's entirely possible that you'll get a life sentence based on your record and the charges. It's entirely possible. The only thing I wanted to tell you was their witness in this case is somewhere out of state, and in about 15 minutes she's -- Hello?
" [Petitioner]: Okay.
" The Court: I really need you to focus. . . . [¶ ] . . . [¶ ] " Once I send you out and they put that witness on the plane, and that was supposed to happen tomorrow, but for whatever reason it's happening today, --
" [Petitioner]: Correct.
" The Court: -- they're taking the 17--year offer off the table and you're going to be facing a life sentence. Do you understand that?
" The Court: Are you interested in this offer?
" [Petitioner]: Seventeen years?
" The Court: Yeah.
" [Petitioner]: No.
" The Court: Okay. [¶ ] . . . [¶ ] . . . Good luck is all I can say. [¶ ] " All right. This matter is assigned -- they're not willing to accept a counter-offer of eight to ten years. That's just not going to be something they'll accept. [¶ ] " I'm very worried that you're playing a game of cat and mouse here hoping to get a better offer, and you couldn't be making a bigger mistake because they're pretty adamant that once you leave here, they're not going to offer you 17 years. They're going to go forward as a third-strike life case. And again, I don't know very much about the case, and I don't know whether you're going to be convicted, but if you are, with your record it's very likely a case that you can catch a life sentence on. [¶ ] " So, I'm not trying to scare you. I'm not trying to threaten you. But I'm trying to let you know sort of the urgency of you making this decision. [¶ ] " And I should note for the record that this case has been pending since April, and this offer's been on the table for -- at least a couple of months?
" Mr. Hulefeld: More than that.
" The Court: More than that. [¶ ] " So, you've had time to think about it. What you now are doing is deciding whether you want to risk the possibility that the witness they're waiting for is actually going to get on the plane and show up and lay you out. If she does, you know, then the rest will be history, as they say."
When Judge Espinoza finished his remarks, Mr. Rico complained that the one-day change to the witness's flight schedule had shortened the time frame for [Petitioner] to make a decision regarding the prosecution's settlement offer. He said the prosecutor had represented to him that there would still be " room to negotiate, " and he thought it was " unfortunate that [he] never had the chance really today to tell [Petitioner] that today, you know, in [¶ ] . . . [¶ ] 19 minutes he would have to make a decision. [¶ ] . . . [¶ ] That was never made clear to him."
Judge Espinoza responded: " My understanding is that Mr. Hulefeld wanted the witness to leave wherever she is tomorrow, but he was gone and the travel arrangements were made, and they were made for today. So, you know, it's just an unfortunate circumstance for you, but the fact of the matter is that this offer has been pending for a number of months and it's about to go away." The judge then asked [Petitioner] if he wanted to " go in the back and talk to [his] lawyer for a minute, " and told Mr. Rico to " Go back and talk to him."
Apparently, in the intervening period, [Petitioner] made a counteroffer because, when the proceedings resumed, the court noted that the prosecutor had taken [Petitioner's] " counter-offer to the D.A.'s management and they rejected it." The court told [Petitioner], " so I'm going to send you out for trial. As soon as the words leave m[y] mouth, those 17 years are off the table. You're not interested in those 17 years?
" [Petitioner]: No, sir."
The matter was sent to Judge Dohi's courtroom for trial. On the record after an in camera session with counsel, Judge Dohi again raised the prosecution's settlement offer of seventeen years four months with [Petitioner]. The judge confirmed that Mr. Rico had informed [Petitioner] that his exposure was " in excess of 35 years to life" if he was convicted of multiple counts. By that time, [Petitioner's] counteroffer had risen to 12 years. [¶ ] The following exchange occurred:
" The Court: Did you talk to your client about the possibility of -- is it 15 years, four months, if he agrees to that, that's something Mr. Hulefeld could take to his supervisor to see if he can get authorization for that?
" Mr. Rico: Well, we did not discuss that exact number because [Petitioner] just didn't seem to want to make any sort of counter -- [¶ ] . . . [¶ ] at all short of -- aside from the 12 years that were earlier offered. But I guess I'll make that clear to him right now. 15 years, four months is something that's been discussed as possible for you.
" [Petitioner]: Mm-hmm.
" Mr. Rico: If you wanted to -- if you told the Court and you told Mr. Hulefeld now that you would take that, he could go to his boss and see if he can get approval for 15/4.
" [Petitioner]: I understand, sir.
" The Court: Okay. And I take it [Petitioner] is not interested in 15/4 even though he is interested in 12; is that fair to say?
" Mr. Rico [to Petitioner]: Is that right?
" The Court: You would not -- are you willing --
" Mr. Rico: Would you be willing to make a 15--year--four--month counteroffer?
" [Petitioner]: Ten years.
" The Court: Beg your pardon? Now we're going --
" Mr. Rico: [Petitioner] just made a counteroffer of ten years.
" The Court: I'm afraid -- I take it that's a nonstarter, Mr. Hulefeld.
" Mr. Hulefeld: Yes, your Honor, it is."
At that point, [Petitioner] spoke directly to the judge about his prior convictions. The judge explained that the Three Strikes Law applied even though the priors occurred before 1994 and reiterated that the minimum sentence [Petitioner] faced on any single count was thirty-five years to life. [Petitioner's] counsel confirmed that he had given [Petitioner] the same information before, and had told [Petitioner] that his minimum exposure was a life sentence. Mr. Rico asked [Petitioner] again whether he wanted to make a 15/4 counteroffer.[(##RefNum=Fn. 5 FootnoteNum=2##)] [Petitioner] did not respond on the record. Mr. Rico conferred briefly with [Petitioner] and then asked whether [Petitioner] could have the benefit of the lunch hour to make a decision.
[Fn. 5] The reporter's transcript reflects that [Petitioner] was asked if he wanted to make a " five-four counter." Under the circumstances, we assume this is a typographical error.
" The Court: I wish we could but I'm afraid --
" Mr. Hulefeld: Well, your honor, it's difficult for us. I'm not trying to -- I understand this is an important decision for [Petitioner].
" [Petitioner]: Very, very important sir.
" Mr. Hulefeld: And I appreciate that. However, this is an offer that's been pending, basically, for the life of this case. [¶ ] . . . [¶ ] And I'm speaking of 17 years, four months at this point. [¶ ] . . . [¶ ]
" [Petitioner]: " It's been that way since June the 29th."
The court reiterated that " something close to this has been on the table for a very long time. We really do need to know sooner rather than later." The judge gave [Petitioner] a few more minutes to make a decision while he discussed evidentiary issues with counsel. At noon, Judge Dohi told [Petitioner] the matter would proceed to trial if he did not make a decision. [Petitioner] did not respond. The prosecutor withdrew the offer.
After the lunch recess, Mr. Rico informed the court that [Petitioner] was willing to take 15 years. The court responded that it was too late, and any offer had expired at noon. Mr. Hulefeld clarified that the People had never made an offer of 15 years, four months. " It was always 17 years, four months. I said before lunch and before the witness was en route, if he would represent that he would take that, that I would ask my boss. But even then, there's no guarantees." The court agreed with Mr. Hulefeld's representation and brought the prospective jurors into the courtroom.
On the afternoon of the next day, December 9, 2010, Mr. Rico asked to make a record regarding the prosecution's withdrawn offer. He stated that he had been under the assumption that there would be " some cushion" for further negotiations before the prosecution's out-of-state witness traveled to California. He also said that his client appeared " very slow" and " doesn't seem to get it as immediately as the system would require him to" but was willing to accept responsibility. Mr. Rico asked the court to consider an open plea to the prosecution's former offer. [¶ ] The prosecutor responded that the 17 year four month offer had been pending for a very long time and that [Petitioner] had an equally long time to consider it. He also noted that [Petitioner] was no stranger to the criminal justice system and had served a lengthy prison term that was itself the result of a negotiated disposition. The prosecutor repeated that the plea offer had been contingent on a pretrial acceptance and opined that it was unlikely a disposition could have been reached even if the out-of-state witness had arrived a day later as originally planned given [Petitioner's] history of unrealistic counteroffers.
Judge Dohi agreed that the prosecution had clearly communicated the offer had an expiration date (although it had been stretched out for an hour or so longer), and that the deadline had come and gone. Mr. Rico informed the court that he had " had numerous discussions with [Petitioner] trying to -- encourage[e] him to make a realistic counteroffer to the People which he never seemed to want to do up until we really got to the 11th hour and things were too late." [Petitioner] then spoke directly to the court, stating that although the offer may have been on the table since June 29, 2010, it " never went down" despite Mr. Rico telling him he may be able to " get less" and " let's wait and see."
(Lodgment 7 at 10-17 (see also RT B3-B8, C1-C10, 3-12, 14, 412-18)).
B. California Court of Appeal's Opinion
The California Court of Appeal then rejected Petitioner's claim, stating:
[Petitioner] has not made a sufficient showing with respect to prejudice for any aspect of his ineffective assistance claim. First, he makes no effort to establish a reasonable probability that a 15 year four month plea agreement would have been approved by the trial court. Given Judge Ryan's comment that an offer of 17 years four months was, in his opinion, " a gift, " it is possible the court might have rejected an offer for a shorter sentence. " [W]e may not simply presume . . . that the trial court automatically would have approved a plea bargain negotiated by the prosecutor and the defense."
More to the point, however, [Petitioner's] assertion that Mr. Rico's performance was deficient because he failed timely to advise him of the prosecution's offer of a 15 year four month sentence, or to advise him of the consequences of not accepting the deal fails because the record makes it clear no such offer was ever made to [Petitioner] and that he was fully advised of the consequences he faced at trial.
As Mr. Hulefeld stated after [Petitioner] attempted belatedly to renew the negotiation regarding a " fifteen year" sentence, any offer had expired. Moreover, " [t]here never was a 15--year four-month offer. It was always 17 years, four months. I said before lunch and before the witness was en route, if he would represent that he would take that, I would ask my boss. But even then, there's no guarantees." Judge Dohi agreed that was " exactly what [Mr. Hulefeld] said."
Indeed, [Petitioner] himself acknowledged the prosecution's offer was always 17 years and four months, and the record discloses he repeatedly rejected that offer. Shortly before trial, the possibility of a negotiated term of 15 years four months was raised as a possible defense counteroffer. But that particular counteroffer was never made because [Petitioner] offered 10 years instead.
It is clear no plea offer of 15 years four months was ever extended to or made by [Petitioner]. The only offer was for 17 years four months and, by his own account, that offer remained available to [Petitioner] from June 29, 2010 until it was withdrawn on December 8, 2010. Since no 15 years four months offer was made, Mr. Rico necessarily did not fail to advise [Petitioner] of the consequences of refusing it.
It is equally clear that, apart from his self-serving representation to the contrary, there is no evidence [Petitioner] would have accepted a plea of 15 years four months, had that offer been made. The record discloses that, when asked if he would be willing to make a 15 years four months counter offer, [Petitioner] confirmed that he understood the decision he was facing, and unequivocally rejected the hypothetical " offer" in favor of his own offer for " ten years."
To establish prejudice resulting from a rejected plea, [Petitioner] must prove there is a reasonable probability that, but for his counsel's deficient performance, he would have accepted the proffered plea bargain and the plea would have been approved by the trial court. " '" 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" '" A " defendant's self-serving statement -- after trial, conviction, and sentence -- that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence." [Petitioner] failed to establish a reasonable probability that a 15 years four months plea offer was made, let alone that he would have accepted such an offer.
. . . [Petitioner's] claim of ineffective assistance of counsel fails because there is no reasonable probability he would have accepted the prosecution's actual plea offer or the hypothetical 15--years offer but for his attorney's ineffective representation.
(Lodgment 7 at 18-20 (citations omitted)).
C. Analysis
" The Sixth Amendment guarantees criminal defendants the effective assistance of counsel[, ]" Yarborough v. Gentry, 540 U.S. 1, 4, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam); see also
Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399, 1404, 182 L.Ed.2d 379 (2012) (" The right to counsel is the right to effective assistance of counsel."), and this guarantee " extends to the plea-bargaining process." Lafler
v. Cooper, __ U.S. __, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012); see also Padilla v. Kentucky, 559 U.S. 356, 373, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (" [T]he negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel." (citing Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985))); Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) (" '[A] defendant has the right to make a reasonably informed decision whether to accept a plea offer.'" (citation omitted)). To succeed on an ineffective assistance of counsel claim, Petitioner must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
see also Cooper, 132 S.Ct. at 1384 (" '[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.'" (quoting Hill, 474 U.S. at 58));
Pinholster, 131 S.Ct. at 1403 (Strickland standard is clearly established federal law). " 'To establish deficient performance, a person challenging a conviction must show that 'counsel's representation fell below an objective standard of reasonableness.'"
Richter, 131 S.Ct. at 787 (citation omitted); Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 739, 178 L.Ed.2d 649 (2011). Prejudice " focuses on the question whether counsel's deficient performance renders the results of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993);
Williams v. Taylor, 529 U.S. 362, 393 n.17, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). That is, Petitioner must establish there is a " reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different[, ]"
Strickland, 466 U.S. at 694; Pinholster, 131 S.Ct. at 1403, and " [t]he likelihood of a different result must be substantial, not just conceivable."
Richter, 131 S.Ct. at 792; Pinholster, 131 S.Ct. at 1403. Thus, to establish prejudice where a plea offer has lapsed or been rejected because of counsel's deficient performance, " it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time."
Frye, 132 S.Ct. at 1409; see also Cooper, 132 S.Ct. at 1384 (" In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.");
Hill, 474 U.S. at 59 (Prejudice " focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process."). To make such a showing, Petitioner " must demonstrate a reasonable probability [that he] would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel" and that " the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law."
Frye, 132 S.Ct. at 1409.
" [A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused."
Frye, 132 S.Ct. at 1408. Here, however, Petitioner's contention that the prosecutor made him a formal fifteen-year-and-four-month plea offer is without merit. (See Petition at 5; Reply at 1-7). The California Court of Appeal found that the only formal offer Petitioner received was for seventeen years and four months in state prison, an offer that was conveyed to Petitioner and one he repeatedly rejected while acknowledging that it remained available to him for over five months. (Lodgment 7 at 19). The California Court of Appeal also found that no fifteen-year-and-four-month plea offer was made to Petitioner.[2] (Id.). Since Petitioner has not rebutted the California Court of Appeal's factual findings, which are well-supported by the record, (see RT C4-C10, 4-12, 14), the findings are presumed correct. See Mejia v. Garcia, 534 F.3d 1036, 1039 n.1 (9th Cir. 2008) (" A state court's factual determinations must be presumed correct, and a reviewing court must accept all factual findings that the state court makes, unless the petitioner can rebut 'the presumption of correctness by clear and convincing evidence.'") (quoting 28 U.S.C. § 2254(e)(1)); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001), amended by, 253 F.3d 1150 (9th Cir. 2001) (The presumption of correctness " is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court."). And because there was no fifteen-year-and-four-month plea offer made, defense counsel cannot have been deficient in failing to advise Petitioner of such an offer, and Petitioner's ineffective assistance of counsel claim is without merit.
See Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (factually unfounded argument provides no basis for federal habeas relief); Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir. 1996) (" [T]he failure to take a futile action can never be deficient performance."); Prasad v. Hill, 2012 WL 1969983, *24 (N.D. Cal. 2012) (rejecting ineffective assistance of counsel claim due to defense counsel's alleged failure to communicate a formal four-year plea offer to petitioner when there was " no evidence that a firm four-year plea offer was ever made").
Accordingly, the California Supreme Court's rejection of Petitioner's ineffective assistance of counsel claim was not contrary to, or an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts.
For the foregoing reasons, IT IS RECOMMENDED that the District Court issue an Order: (1) accepting this Report and Recommendation, (2) denying the Petition for Writ of Habeas Corpus, and (3) directing that Judgment be entered dismissing this action with prejudice.
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Event Archive - NoMeansNo
Wed. May 19th 2004 9pm @ Richard's On Richards (No Minors) 9pm
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The Co-operative Food has switched the packaging on its own-brand onion range to a recyclable material, enabling 32 tonnes more packaging to be recycled per year.
Changing the packaging on own-brand onions from polypropylene to polythene allows the bags to be recycled, providing a more environmentally responsible way of disposing of the packaging, which would have otherwise been destined for landfill.
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Adele MandyAssistant PR Manager – National, FoodThe Co-operative GroupTel: 07713 314 894Email: firstname.lastname@example.com


text:
|Publication number
|Publication type
|Application number
|Publication date
|Sep 11, 1984
|Filing date
|Jan 19, 1981
|Priority date
|Jan 19, 1981
|Fee status
|Publication number
|Carl W. Walter
|Original Assignee
|Baxter Travenol Laboratories, Inc.
|Export Citation
|BiBTeX, EndNote, RefMan
|Patent Citations (18), Referenced by (13), Classifications (14), Legal Events (4)
|External Links: USPTO, USPTO Assignment, Espacenet
This invention relates generally to microwave apparatus for safely heating a batch of distinct articles, and more specifically, to such an apparatus for thawing the frozen parenteral solution content of plastic bags.
The addition of medication to parenteral solutions is a widely accepted clinical practice. Although many intravenous additives presently are prepared in patient care areas by nursing staff, there is an increasing pressure on hospitals to establish pharmacy admixture programs to minimize medication errors and the risk of microbial contamination. To optimize the use of available manpower, some pharmacies have adopted the practice of freezing admixtures.
It is known several antibiotics in clinical use are stable for extended periods of time when frozen in large volume parenteral solutions. Indeed, freezing of antibiotic solutions often can prolong stability and suspend growth of essentially any microbial contaminant. Studies have shown that antibiotic admixtures are unharmed for up to 30 days if frozen in 100 or 50 ml. admixture container bags. However, the several hours required for room temperature thawing of these units often make this technique unsuitable in the hospital. Some improvement in preparation efficiency can be achieved by thawing the bags in warm water baths, a technique that is widely practiced in blood banks. Warm water thawing, however, still consumes significant time in addition to requiring labor intensive procedures for both cleaning baths to reduce contamination levels and avoiding contamination by touch during pooling operations.
As a solution to these problems, microwave ovens have been proposed as vehicles for thawing frozen admixtures prior to intravenous administration. The resultant rapid thawing would allow centralized admixture programs to operate a 24-hour service without the need for a pharmacy to be ready to make admixtures at all times. Other attributes would include the opportunity to take advantage of the efficency accompanying large scale manufacturing techniques. Especially important would be the possibility of introducing pre-release quality control on manufactured lots, presently not possible for admixtures prepared by conventional methods where the maximum permissible refrigerated storage is 24 hours.
Although the efficiency of microwave heating presents many advantages, prior microwave ovens do not satisfy all requirements for safely thawing individually bagged units of parenteral substances on a scale necessary for practical applications. Even the most sophisticated timing and temperature sensing controls available with existing microwave ovens cannot prevent under all conditions the overheating of individual units during batch thawing thereof. For example, the inadvertent combination, in a given batch, of units exhibiting substantially different volumes or chemical characteristics can cause non-uniform temperature increases and resultant overheating of specific units. Similar consequence can derive from inadvertently including a thawed or partially thawed bag with a fully frozen batch. In addition to possibly degrading the therapeutic effectiveness of its content, overheating can cause rupture of an individual bag. Under certain conditions the explosive discharge from a ruptured bag can injure attendant personnel and all cases must be cleaned from the equipment surfaces on which it collects.
The object of this invention, therefore, is to provide microwave oven apparatus that can safely, efficiently and simultaneously thaw the frozen parenteral mixture content of multiple plastic bags.
The invention is a microwave oven for selectively, quickly and safely raising the temperature of a plurality of distinct articles. Basic structural elements of the invention are a housing that defines an oven chamber, a door providing access thereto and an energy source for transmitting microwave energy into the chamber. Located within the chamber is a support assembly that defines a plurality of heating stations, each adapted to receive a distinct article to be heated. A temperature sensor is disposed in each of the stations so as to sense the temperature of an article retained therein. Couple between the microwave source and the temperature sensors is a control circuit that automatically deenergizes the microwave source in response to the sensing of a temperature above a predetermined threshold by any of the individual sensors. The provision of individual temperature sensors in each of a plurality of heating stations permits the heating of multiple articles to a predetermined temperature level while guaranteeing that none of the individual articles will reach a temperature substantially above that predetermined level.
In a preferred embodiment of the invention, the plurality of sensors include a control sensor disposed in an identifiable control station and a plurality of safety sensors each disposed in a different auxiliary station. Deenergization of the microwave source by the control circuit occurs in response to either the sensing of a temperature above a given threshold by the control sensor or the sensing by any of the safety sensors of a temperature substantially above the given threshold. The control sensor automatically terminates a heating cycle when an article in the control station has reached a desired temperature. At that time, all other articles retained in the auxiliary stations also will have reached temperatures within an acceptable temperature range. However, in the event that a particular article in an auxiliary station prematurely reaches a temperature substantially in excess of that acceptable range, a safety sensor associated therewith automatically prompts deenergization of the microwave source to prevent further heating.
According to one feature of the invention, the heating station defining support mechanism comprises a turntable that insures uniform exposure of the individual stations to the microwave energy source. Movement of the individual stations within the microwave energy field insures that articles within the auxiliary stations will be heated at a rate substantially equal to that experienced by the article in the primary control station.
These and other objects and features of the invention will become more apparent upon a perusal of the following description taken in conjunction with the accompanying drawings wherein:
FIG. 1 is a schematic perspective view of a microwave oven according to the invention;
FIG. 2 is a schematic front view, partially in cross section, of one heating station of a turntable illustrated in FIG. 1;
FIG. 3 is a schematic side view, partially in cross section of the heating station illustrated in FIG. 2;
FIG. 4 is a schematic cross-sectional view of a temperature sensor illustrated in FIGS. 2 and 3;
FIG. 5 is a schematic elevational view of a rotary electrical coupling shown in FIG. 1;
FIG. 6 is a schematic cross-sectional view taken along the lines 6--6 of FIG. 5;
FIG. 7 is a schematic cross-sectional view taken along the lines 7--7 of FIG. 6;
FIG. 8 is a schematic cross-sectional view through a center column of the rotary coupling shown in FIGS. 5-7;
FIG. 9 is a schematic view illustrating assembly details of the turntable and rotary coupling shown in FIG. 1; and
FIG. 10 is a schematic block circuit diagram of an electrical control circuit for the microwave oven shown in FIG. 1.
FIG. 1 illustrates a microwave heating apparatus ll constructed in accordance with the present invention. A housing 12 defines an oven chamber 13, access to which is provided by a door 14'. Rotatably supported within the chamber 13 is an article supporting turntable assembly 14 that is coupled to a rotary drive mechanism 15. A microwave source 16 transmits into the oven chamber 13 radiant energy for heating articles retained therein. Disposed on a control panel 17 of the housing 12 is a display 18, a plurality of oven control buttons 19 and a program card insert slot 21. Interconnected with the control panel 17, the microwave source 16, and the drive mechanism 15 and a dc power supply 22 is an oven control printed circuit 23. The foregoing portions of the microwave unit 11 are used in commercially available microwave ovens.
Retained by the turntable 14 is a control station 25 and a plurality of annularly distributed auxiliary stations 26 each adapted to receive an article to be heated within the chamber 13. Positioned within the control station 25 is a temperature responsive control sensor 27 while a temperature responsive safety sensor 28 is positioned in each of the auxiliary stations 26. A safety control circuit 31 is electrically coupled to an alarm horn 32, an alarm light 33, a reset switch button 34 and the oven control circuit 23. Electrical signals from the sensors 27, 28, respectively, are fed out of the chamber 13 to the oven control circuit 23 and the safety control circuit 31 via a rotary electrical coupling assembly 35. The heating stations 25, 26; the sensors 27, 28; the rotary coupling assembly 35 and the safety control circuit 31 are described in detail below.
Referring now to FIGS. 2 and 3, there are shown in greater detail the control station 25 and the control sensor 27. The auxiliary stations 26 and the safety sensors 28, respectively, are structurally identical to the control station 25 and the control sensor 27 and therefore will not be further described. Forming the control station 25 is a tray 37 having a lower end retained by a base portion 36 of the turntable 14 and an upper end retained by a top portion 38 thereof. The control sensor 27 includes a horizontally oriented terminal portion 41 juxtaposed a central portion of the tray 37. Extending from the upper portion of the tray 37 is a hook 39 that retains an article 40 to be heated. In preferred use of the invention, the article 40 would consist, for example, of a flexible plastic bag (as shown) containing a frozen substance to be administered intravenously. When positioned on the hook 39 the bag 40 overlays and engages the terminal portion 41 of the sensor 27 so as to be in good thermal contact therewith. As shown in FIG. 3, the terminal portion 41 of the sensor 27 has an elongated cross section so as to establish a planar surface substantially parallel to and in intimate contact with the bag 40 thereby improving heat transfer therebetween. As also shown in FIG. 3, the tray 37 is supported at a small angle of, for example, six degrees with respect to vertical. That angle can be increased if increased rates of heating are desired for fewer stations.
As shown in FIG. 4, the control sensor 27 includes an elongated tube comprising the horizontal portion 41 and a vertical portion 42 that extends out of a sealed metal can 43 that also accommodates the safety sensors 28 (FIG. 5). Extending through the tube 41, 42 is a cable 44 composed of a pair of insulated signal wires 45, 46, a braided conductive shield 47 and an insulator cover 48. The outer ends of the singnal wires 45, 46 are connected to the terminals of a thermistor 49 while the inner ends thereof are connected to an electrical circuit retained within the can 43 as described below. Enclosing the outer ends of the wires 45, 46 and the thermistor 49 is an electrical insulator tube 51. The volume between the braided shield 47 and the horizontal tube portion 41 filled with potting material such as silver epoxy having high thermal conductivity so as to establish good heat transfer between the tube portion 41 and the thermistor 49.
Heat transfer between the bag 40 (FIG. 2) and the thermistor 49 is maximized by the high thermal conductivity of the tube portion 41 and the potting compound 52. However, direct microwave energy heating of the sensor 27 is minimized by the tube 41, 42 that functions as a microwave energy shield. Preferably, the tube 41, 42 is formed of a highly conductive material such as brass and plated to an extremely fine finish with a very low resistive material such as silver. In this way surface conductivity is maximized and microwave heating of the sensor 27 minimized because of the skin effect phenomenon. In addition, the length of the sensor 27 is selected so as to establish therefore a detuned antenna condition at the microwave frequencies transmitted by the source 16. Such detuning further limits microwave heating of the sensor 27.
During assembly of the sensor 27, the end of the braided shield 47 is withdrawn to expose of the signal wires 45, 46 which are attached to opposite terminals of the thermistor 49. The insulator tube 51 then is positioned over the thermistor 49 and covered with the previously withdrawn portion of the braided shield 47. Thus prepared, the thermistor assembly is inserted through the open end of the tube portion 42 until reaching the position within the tube portion 41 illustrated in FIG. 4. An electrically and thermally conductive potting compound 52 such as silver epoxy then is faced through an opening 55 to completely fill the tube portion 41. In addition to providing a mass for transferring heat between the bag 43 and the thermistor 49, the material 52 seals the opening 55 to establish complete microwave shielding of the components within the tube 41.
Referring now to FIGS. 5-8, there are shown further details of the rotary feedthrough assembly 35. A cylindrical insulator block 57 is mounted on a wall portion 58 of the housing 12 that closes the top of the oven chamber 13. Extending axially through the cylindrical block 57 is an opening 59 that accommodates a column assembly 61 the lower end of which extends through the wall portion 58 and is attached to the can 43. A plurality of spaced apart, radial slots 62 enter one longitudinal surface portion of the block 57. Radially projecting into an opposite longitudinal surface portion of the block 57 are a plurality of spaced apart slots 63. Although only one slot 63 is shown in FIG. 6, it should be understood that the block 57 contains a plurality of slots 63, one radially aligned with each of the slots 62. Retained by a screw in each of the slots 62 is a resilient conductive blade 64 having an outer portion projecting beyond the outer surface of the block 57 and an inner contact 65 spring loaded against the column 61. Similarly, each of the slots 63 retains a resilient conductive blade 66 having an outer portion extending out of the block 57 and an inner 67 spring loaded against the column 61. The portions of each aligned pair of the blades 64, 66 that extend out of the block 57 are electrically connected by insulated conductors 71. In addition, the outer terminal portion of each of the blades 64 is connected to a different insulated signal wire 72-76 (FIG. 5). Ground shields 77 for all of the signal wires 72-76 are electrically connected to a bus wire 78 extending longitudinally of the block 57 and having opposite ends inserted into receiving openings therein.
Referring now to FIG. 8, there are shown details of the central column 61 which includes a stacked plurality of identical insulator discs 81 straddled by a conically shaped insulator 82 and an elongated cylindrical insulator 83. Circumferential recesses are formed along upper and lower edges of the discs 81, a lower edge of the conically shaped insulator 82 and an upper edge of the elongated insulator 83. Adjacent pairs of these recesses form annular channels each conforming to and receiving a ring contact 84-88 and a metal cylinder 91 encapsulates the lower portion of the elongated insulator 83. Each of the contact rings 84-88 is positioned so as to be engaged by a different pair of the spring loaded contacts 65, 67. Press fitted through central apertures in the discs 81-83 is an alignment rod 90 that also extends through an upper wall 89 of the can 43 and is secured thereto by a nut 90'. Also formed in each of the discs 81-83 is a longitudinal slot, all of which are aligned to provide a longitudinal channel 93 through the column assembly 61. Extending through the channel 93 and an opening 92 in the wall portion 89 are a plurality of electrical leads 94-98, one electrically connected to each of the contact rings 84-88. Opposite ends of the leads 94-98 are connected to electrical circuitry in the can 43 as described below. Thus, the leads 94-98 are individually connected, respectively, to the signal wires 72-76 (FIG. 5) via the ring contacts 84-88 and the blade contacts 64, 66.
Referring again to FIGS. 5 and 7, there is depicted in greater detail the can 43 which, as described below, houses electronic circuitry connected between the sensors 27, 28 and the rotary coupling 35. As shown, the can 43' is supported by a shaft 95' and in turn supports the central column 61. To limit the entry of microwave energy, the walls 96' of the can 43 are preferably formed of a good electrically conductive material such as brass and plated to a fine finish with a high conductive material such as silver to establish minimum surface resistance. In addition, the side walls 96 of the can 43 are covered with a dielectric material 97', for example Teflon tape, that is separated by a small air gap from a cylindrical metallic skirt 98' secured to the wall portion 58 by screws 99. Together, the dielectric coating 97' and straddling conductive skirt 98 and side walls 96 form a capacitive block that serves to dissipate microwave energy preventing its entry into the can 43. Further isolation is provided by an annular, energy absorbing disc 101 positioned between the can 43 and the wall portion 58 and an annular, energy absorbing disc 102 positioned between the wall portion 58 and the rotary coupling 35. The discs 101 and 102 are formed of a suitable microwave energy absorbing material such as Eccosorb (SFT-2.5) sold by Emmerson and Cummings of Canton, Mass.
Illustrated in FIG. 9 is the manner in which the can 43 and the components associated therewith are supported on the turntable 14 within the chamber 13. The hollow shaft 95' supporting the can 43 is slidably received over a post 103 extending centrally from the turntable 14. Secured to the post 103 and extending through a portion of an L-shaped slot 104 in the shaft 95' is a pin 105 that prevents relative vertical movement therebetween. A second pin 106 is removably received by a hole in the post 103 and also extends through the base portion of the slot 104. When in position, the pin 106 prevents relative rotational movement between the shaft 95' and the column 103 that would align the pin 105 with the upright portion of the slot 104. However, upon removal of the pin 106, such relative movement can occur allowing the shaft 95' to move downwardly on the post 103 as the pin 105 is received by the upright portion of the slot 104. The relative vertical movement between the post 103 and the shaft 95 is sufficient to permit withdrawal of the supported can 43 and column 61 from both the rotary coupling assembly 35 and the skirt member 98 (FIG. 7). Thus, those components together with the turntable 14 can be removed from the oven chamber 13 through the door 14. During reassembly, the conically shaped insulator 82 facilitates centering of the column 61 during entry into the coupling assembly 35 and also functions to greatly separate the spring loaded contacts 65 and 67 (FIG. 6) as the column 61 enters the central opening 59 in the insulator block 57.
FIG. 10 depicts in block diagram form an electrical circuit 111 for controlling operation of the microwave oven 11. Included in the control circuit 111 are a multiplexer 112 and the safety control circuit 31 that includes a comparator section 114 and a signal conditioner and latch section 115. A variable resistor 116 provides an adjustable reference voltage for the comparator 114. The multiplexer 112 is housed in the can 43 (FIGS. 5 and 7) and receives on lines 45 and 46 the output of the control thermistor 49 in the control sensor 27. Also received by the multiplexer 112 are the outputs of thermistors Rt1, Rt2. . . Rtn retained by the safety sensors 28 (FIG. 1). Connecting the multiplexer 112 to the safety circuit 31 is the rotary coupling 35. The safety circuit 31 receives power from the supply 22 and is connected to energize the horn 32 and the light 33 and to be released from a latched condition by the reset button switch 34. Receiving signals from both the signal conditioner section 115 and the rotary coupling 35 is the oven control circuit 23 that in turn controls energization of the microwave source 16.
During operation of the microwave unit 11, articles to be heated are positioned in the stations 25, 26 within the oven chamber 13. In specific applications, the articles would consist of flexible plastic bags 40 filled with a frozen substance suitable after thawing for intravenous administration. Although any of the stations 26 can remain unoccupied by a frozen bag, a bag should always be positioned in the control station 25 before each thawing cycle. For that reason, the control station 25 is clearly distinquished from the auxiliary stations 26 by a label 121. In addition, the filled volumes of all bags in a given run should be substantially equal and their contents should possess substantially similar thawing characteristics. After the turntable 14 has been filled with the number of bags required, the door 14 is closed, a suitable program card is inserted into the slot 21 and the oven control buttons 19 are operated in a conventional manner to energize the microwave source 16 and begin a thawing cycle. As the thawing process proceeds, the thermistor retained by each sensor 27, 28 in an occupied station exhibits a resistance proportional to the temperature of the bag with which it is in thermal contact. Conversely, the thermistors retained by sensors in unoccupied stations reflect the ambient temperature in that station. The temperature indicating signal from the control sensor 27 on the lines 45, 46 is fed through can 43 directly to the leads 97, 98 via the rotary coupling 35 and output lines 75, 76 to the oven control circuit 23. However, the individual outputs of the safety sensors 28 are received by the multiplexer 112 that continuously transmits those signals over the leads 94, 95 in a predetermined sequence. The mulitplexed signals are fed through the rotary coupling 35 and over the output lines 72, 73 to the comparator section 114. DC supply voltage is received by the multiplexer 112 from the safety circuit 31 via the line 74, the rotary coupling 35 and the lead 96. A common for both the dc supply and the output of the control sensor 27 is provided by the line, 75 the lead 97 and the rotary coupling 35. The oven control circuit 23 is programmed to monitor a thawing operation and control energization of the source 16 in response to signal information from the control sensor 27. When that signal information indicates that substantially the entire content of the bag in the control station 25 has reached a fully thawed temperature threshold of, for example, 25� C., the oven circuit 23 terminates operations. At that time, the bag retained in any of the auxiliary stations 26 will have reached substantially the same temperature because of the even distribution of microwave energy established by the rotating turntable 14. At the conclusion of a defined cycle, the door 14 can be opened and then thawed bags removed and used as desired.
Assume, however, that a bag in one of the auxiliary stations 26 inadvertently reaches a predetermined maximum safe temperature threshold of, for example, 50� C. Temperature levels above that threshold could either damage the bag's fluid content or induce bursting thereof. Such a situation can result from various circumstances such as, for example, if an auxiliary station 26 retains at the initiation of a thawing cycle a bag that is thawed or partially thawed, a bag of lesser volume than the bag retained in the control station 25, or a bag filled with a substance having a substantially different thermal characteristic than the bag retained in the control station 25. Upon reaching the predetermined unsafe temperature, the safety sensor 28 associated with that bag produces via the multiplexer 112; the data wires 94, 95; rotary coupling 35 and the output leads 72, 73 a signal voltage below a reference voltage established by the adjustable resistor 116 within the comparator 114. In response thereto, the comparator section 114 and signal conditioner and latch section 115 produce an output to the oven control circuit 23 inducing deenergization of the microwave 16. In addition, the signal conditioner section 115 energizes the horn 32 and the light 33 providing both audible and visible indications that the predetermined safe temperature limit has been exceeded. Thawing operations can be resumed only after the overheated article is removed, the overheated sensor cools below the threshold point and the reset button 34 is manually operated to eliminate the latched condition existing in the circuit section 115.
An important feature of the invention prevents the safety sensors 28 in unoccupied auxiliary stations 26 from reaching a temperature that would cause oven shutdown. This feature permits use of the oven unit 11 with the turntable 14 filled to less than full capacity. Referring again to FIG. 4, the mass provided by thermally conductive potting material 52 functions as a heat sink that disperses the limited amount of heat that is generated by microwave energy present on the surface of the shield portion 41. Consequently, the mass 52 in an unoccupied station 26 and the thermistor retained therby will not reach oven shutdown temperature during normal operations. Conversely, in the absence of a frozen bag in the control station 25, the mass 52 in the control sensor 27 is selected so as to be heated by microwave energy to a temperature above that required to normally terminate a thawing operation. Thus, in the event that a frozen bag is not positioned in the control station 25, the control sensor 27 will quickly reach a temperature that will induce the oven control circuit 23 to react as if a regular thawing cycle has been completed. A normal cycle can proceed only after an operator has discovered the problem and positioned a frozen bag in the control station 25.
Obviously, many modifications and variations of the present invention are possible in light of the above teachings. For example only, although a prefered use of the invention has been described, it will be obvious that the oven 11 can be used to safely heat batches of articles other than those specifically mentioned. It is to be understood, therefore, that the invention can be practiced otherwise than as specifically described.
|Cited Patent
|Filing date
|Publication date
|Jan 30, 1959
|Oct 27, 1964
|Nat Scient Lab Inc
|Apparatus and process for thawing temperature sensitive frozen materials
|May 18, 1966
|Feb 11, 1969
|Patelhold Patentverwertung
|Microwave heating apparatus
|Dec 2, 1966
|Feb 18, 1969
|Hellige & Co Gmbh F
|Microwave oven with rotatable shelf
|May 31, 1967
|Aug 19, 1969
|Holaday Ind Inc
|Microwave heating device
|Apr 15, 1966
|Sep 2, 1969
|Pentacon Dresden Veb
|Mirror reflex camera with internal photoelectric light meter
|Jun 28, 1967
|Feb 10, 1970
|Gray Ind Inc
|Method and apparatus for sterilizing
|May 25, 1970
|Jul 11, 1972
|Gray Ind Inc
|Microwave treating apparatus and method
|Feb 27, 1973
|May 21, 1974
|N Martin
|Micro-wave heater
|Dec 4, 1973
|Apr 29, 1975
|Jeol Ltd
|Apparatus for sterilizing ampoules and reject control system therefor
|Jun 13, 1973
|Jun 15, 1976
|Camph Engineering Company Ab
|Controlling the microwave heating of flowing blood as a function of heated blood temperature
|Dec 29, 1975
|Jul 19, 1977
|Food Automation Service Techniques, Inc.
|Oven cooking monitor for uniformly cooking a plurality of food items requiring different cooking times
|Jan 22, 1976
|Aug 2, 1977
|Jury Veniaminovich Leibin
|Microwave oven having improved conveying means
|Sep 27, 1976
|Aug 29, 1978
|Gte Sylvania Incorporated
|Luminescent barium-lithium aluminate phosphors and lamp containing the same
|Jan 24, 1977
|Sep 11, 1979
|Baxter Travenol Laboratories, Inc.
|Blood warming apparatus
|Aug 12, 1977
|Nov 11, 1980
|Bunker Ramo Corporation
|Circuit transfer apparatus
|Mar 25, 1980
|Apr 27, 1982
|Siemens Aktiengesellschaft
|Method for producing one or more contact connections between a lacquer-insulated wire and one or more contact parts of an electric component
|Apr 21, 1973
|Nov 7, 1974
|Bosch Elektronik Gmbh
|Microwave blood heating unit - revolving bottle with longitudinal axis perpendicular to rotational axis
|Apr 21, 1973
|Jul 21, 1977
|Bosch Gmbh Robert
|Heater for blood containing bottles - has cam operated rotation unit to periodically turn vessel during treatment by microwaves
|Citing Patent
|Filing date
|Publication date
|Jan 8, 1986
|Mar 24, 1987
|Kurt Zeipel
|Microwave appliance used for warming blood or blood derivatives stored in a bag
|Oct 14, 1987
|Feb 14, 1989
|Matsushita Electric Industrial Co., Ltd.
|Microwave oven with combined rotary heater and wave guide plate
|Apr 27, 1989
|Aug 28, 1990
|Harrington Lawrence S
|Adjustable fin bacon rack for microwave oven
|Feb 29, 1988
|Nov 20, 1990
|The Pillsbury Company
|Method and apparatus for adjusting the temperature profile of food products during microwave heating
|Mar 1, 1989
|Dec 3, 1991
|Colasante David A
|Microwave reheatable clothing and toys
|Jul 7, 1994
|Apr 1, 1997
|Microwave Medical Systems
|Microwave blood thawing with feedback control
|Sep 15, 1997
|Nov 23, 1999
|C E M Corporation
|Method and apparatus for temperature calibration in microwave assisted chemistry
|Jan 16, 1998
|Dec 28, 1999
|Sanyo Electric Co., Ltd.
|Infrared temperature sensor for a cooking device
|Dec 30, 1998
|Oct 17, 2000
|Lg Electronics Inc.
|Method and apparatus for adjusting cooking temperature in a microwave oven
|Apr 19, 2001
|May 11, 2004
|Whirlpool Corporation
|Cooking oven incorporating accurate temperature control and method for doing the same
|Apr 22, 2008
|Mar 19, 2013
|Miele & Cie. Kg
|Temperature measuring probe, in particular for a household appliance
|Aug 6, 2001
|Mar 18, 2004
|Sutherland John David
|Monitoring thermal events
|Apr 22, 2008
|Oct 23, 2008
|Miele & Cie. Kg
|Temperature measuring probe, in particular for a household appliance
|U.S. Classification
|219/712, 219/720, 374/166, 374/149, 219/754, 374/110
|International Classification
|Cooperative Classification
|European Classification
|Jul 16, 1981
Owner name: BAXTER TRAVENOL LABORATORIES, INC., DEERFIELD, IL
Free format text: ASSIGNMENT OF ASSIGNORS INTEREST.;ASSIGNOR:WALTER CARL W.;REEL/FRAME:003883/0874
Effective date: 19810114
Owner name: BAXTER TRAVENOL LABORATORIES, INC., DEERFIELD, IL
Free format text: ASSIGNMENT OF ASSIGNORS INTEREST;ASSIGNOR:WALTER CARL W.;REEL/FRAME:003883/0874
Effective date: 19810114
|Apr 12, 1988
|Maintenance fee reminder mailed
|Sep 11, 1988
|Lapse for failure to pay maintenance fees
|Nov 29, 1988
|Expired due to failure to pay maintenance fee
Effective date: 19880911


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June 24, 2010
NICHOLAS AMBUSH, PLAINTIFF,v.BRIAN COLEMAN, ET AL., DEFENDANTS.
Plaintiff is a state prisoner who alleges that he was denied medical treatment for several hours when his right eyeball popped out of its socket. The parties have consented to the undersigned exercising jurisdiction in this case (Docs. 6, 13). Defendants have filed a Partial Motion to Dismiss (Doc. 31) asserting that claims for damages against them in their official capacities should be dismissed, and that Plaintiff has failed to allege the personal involvement of Defendants Coleman and Tretinik. Plaintiff has responded (Doc. 34).
A. Applicable Standard
Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any "reasonable reading of the complaint" Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is "conceivable," because a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. , 129 S.Ct. 1937, 1949 (2009).
B. Analysis
1. Official Capacity Claims
Defendants assert that claims against them in their official capacities are the equivalent of claims against the Commonwealth of Pennsylvania and, accordingly, are barred by the Eleventh Amendment. In the absence of consent by a state, a suit in federal court against the state or one of its agencies is barred by the Eleventh Amendment. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). The Pennsylvania Department of Corrections is a state agency, and claims against state officials in their "official capacities" for damages are treated as suits against the state. See Hafer v. Melo, 502 U.S. 21, 25 (1991). Pennsylvania has not waived its Eleventh Amendment immunity in civil rights cases. See 42 Pa. Cons.Stat. Ann. § 8521(b). Therefore, the Civil Rights Act, 42 U.S.C. § 1983, does not override Pennsylvania's Eleventh Amendment immunity, and Plaintiff's claims against Defendants in their official capacities must be dismissed. Quern v. Jordan, 440 U.S. 332, 342 (1979).
2. Supervisory Liability
Defendants Coleman and Tretinik assert that Plaintiff has failed to allege their personal involvement in any constitutional violation, and that Plaintiff has failed to allege facts sufficient to hold them liable as supervisors. Supervisory liability may not be premised solely upon a theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, some personal involvement of the supervising official must be alleged. Id. Supervisory liability for Section 1983 violations can be established by evidence showing that officials:
(1) participated in violating a plaintiff's rights; (2) directed others to violate a plaintiff's rights; (3) knew of, and acquiesced in, their subordinates' violation of a plaintiff's rights; or (4) knew of, and tolerated, past or ongoing misbehavior. Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 & n.3 (3d Cir. 1995).
Plaintiff alleges in his Amended Complaint that Tretinik failed to examine him for several hours after Tretinik first received a report of Plaintiff's condition. Therefore, Plaintiff has alleged personal involvement by Tretinik. Defendants also argue that Plaintiff may be mistaken about Tretinik's identity, but this is a matter more properly addressed at the summary judgment stage.
The only allegations in the Amended Complaint against Defendant Coleman, however, are that he addressed Plaintiff's grievance following the alleged denial of medical treatment. This is insufficient to impose supervisory liability. Jefferson v. Wolfe, 2006 WL 1947721 at *17 (W. D. Pa. July 11, 2006) (McLaughlin, J.) (denial of grievance or appeal on final review insufficient to establish personal involvement in alleged underlying violation); Watkins v. Horn, 1997 WL 566080 at * 4 (E.D.Pa. Sept. 5, 1997) (concurrence in an administrative appeal process is insufficient to establish personal involvement). Plaintiff has, therefore, failed to alleged a facially plausible claim of supervisory liability against Defendant Coleman, and the Motion to Dismiss should be granted in this respect.
AND NOW this 24th day of June, 2010,
IT IS HEREBY ORDERED THAT Defendants' Partial Motion to Dismiss (Doc. 31) is GRANTED IN PART AND DENIED IN PART. Defendant Coleman is DISMISSED from this case, and all official capacity claims are likewise DISMISSED.
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BRIDGEPORT - A woman crashed her car into a medical office in Bridgeport around 8:30 a.m. today.
The incident occurred at 4675 Main St.
Investigators say the driver was coming around the building through the parking lot when her SUV hopped the curb, hit UPS and FedEx drop boxes and slammed into the side of the building.
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