text:
What does THAT have to do with Prop8 being overturned?So let's get back on topic.
Do you think polygamy deserves the same respect and consideration as same sex marriage?
Judge overturns California's ban on same-sex marriage
There are 201887 comments on the www.cnn.com story from Aug 4, 2010, titled Judge overturns California's ban on same-sex marriage. In it, www.cnn.com reports that:
A federal judge in California has knocked down the state's voter-approved ban on same-sex marriage, ruling Wednesday that the state's controversial Proposition 8 violates the U.S. Constitution.
Join the discussion below, or Read more at www.cnn.com.
#176601 Jan 22, 2013
#176602 Jan 22, 2013
hahahahaha you're funny.
#176604 Jan 22, 2013
The gay agenda being shoved down our throats and we the people have no power to stop it. We must learn of exceptional peoples sexual preferences as if that has anything to do with their accomplishments.
What about the hermaphrodites? These are truly the underrepresented in our great state of California. Where are the hermaphrodite actors and news casters?
Why are there no laws to protect and celebrate all the great accomplishments of hermaphrodites. This is obviously an area of modern discrimination that has yet to be addressed!
#176606 Jan 22, 2013
Why does everything you post NEVER have any substance at all?
Why are your posts NEVER about Prop 8, but are always just dumb ad hominem and whining and complaining about me?
Do you think the same rights that monogamists enjoy should be extended to polygamists?
P.S. Since my posts bother you so much and since you never will discuss them or anything near the topic, why don't you just ignore me?
(But please don't! You're fun!) YUK!YUK!YUK!
#176607 Jan 22, 2013
Polygmay is not the topic of this forum, please try to stay on topic Mike
You also continuing to harp on your not understanding the impeachemnt is also not on topic Mike
So we will continue as we please
The problem with believers is that they will believe anything, Talking snake... no problem, a guy who is his own father, no problem, then they will go on to bleive that people can be made to be homosexual by others.
What we need to do is stop listening to people that are believers in any religon.
#176608 Jan 22, 2013
Big D as in dope.
Little tiny d as in dishonest little twerp!
#176609 Jan 22, 2013
What does that have to do with prop 8 being overturned?
#176610 Jan 22, 2013
What does that have to do with prop 8 being overturned?
#176611 Jan 22, 2013
What does that have to do with prop 8 being overturned?
#176612 Jan 22, 2013
What does that have to do with prop 8 being overturned?
#176613 Jan 22, 2013
Finally! You mention prop 8!
#176614 Jan 22, 2013
What does that have to do with prop 8 being overturned?
#176615 Jan 22, 2013
We're having fun now!
But let's get back on topic. It's hard to keep you clowns on topic! Knock those chips off your shoulders! Big D. Janey Dodo. Let's start fresh!
Do you think we should extend the same rights monogamists enjoy to polygamists?
#176616 Jan 22, 2013
Aw shuddup you silly jackass! You're boring the hell out of us!
Relax. Proof read. Spell check.
#176617 Jan 22, 2013
Polygamy has nothing to do with prop 8 being overturned
Impeachment has nothing to do with prop 8 being overturned
Look to your own house you hypocrite before correcting others
#176618 Jan 22, 2013
No thanks, I will post as I please...and I agree I won that argument as well, you can always tell when winning an argument with a child, they criticize how you say something, not what you said.
#176619 Jan 22, 2013
Polygamy has nothing to do with prop 8 being overturned, please stay on topic Mike :)
#176620 Jan 22, 2013
Your spreading somthing, but it isnt truth.
#176621 Jan 22, 2013
How young are you talking here?
#176622 Jan 22, 2013
Relax Fruitloops, you're off topic.
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BBFC Change King's Speech Rating
The cast and crew of The King's Speech – which stars Colin Firth, Helena Bonham Carter and Geoffrey Rush – are very likely to be celebrating today after the British Board of Film Classification have reconsidered it's certificate rating, taking it from a 15 to a 12A.
Rush, who plays the character of speech therapist Lionel Logue, speculates it was because of a scene in which the King is encouraged to swear in order to help him overcome his stammer. "The reason we probably had the 15 rating was because of the speech therapy techniques which is quite substantiated over the last 60 or 70 years. It's patient swearing – they swear fluently without stammering… But the words are not in any abusive or hurtful context, so maybe they saw sense."
Firth, 50, who plays main character King George VI commented: "It's wonderful news. They did the right thing." F-f-f-f-f*ck yeah they did Colin.

subset: commoncrawl


text:
It was the banned agriculture insecticide monocrotophos in the mid-day meal that killed 23 children at a primary school in Chhapra, the Forensic Science Laboratory (FSL) of Bihar Police said and Mamta Kulkarni, the feisty actor from the 90's, who was part of films like Ghatak, Karan Arjun and Baazi, is now, believe it or not, a spiritual queen. Here are some of the most read stories on the website.
Puppy can't dance
Puppy can't dance, saala. Well, that's not quite what Naren-bhai told Reuters last Friday. But speaking in the context of the 2002 post-Godhra riots that took place under his watch, he could well have said that and liberals, secularists, Digvijaya Singh groupies, PETA activists, Nach Baliye contestants and brothers-in-law would still have lined up to lambast him.
Sex symbol Mamta Kulkarni turns into a spiritual queen
Mamta Kulkarni — the feisty actor from the 90s who was part of films such as Ghatak, Karan Arjun and Baazi, is now, believe it or not, a spiritual queen. The 41-year-old, who has been away from the limelight for more than a decade, has been found, and it turns out she has even written a spiritual book, Autobiography Of An Yogini (sic), by Mamta Kulkarni.
Bihar mid-day meal tragedy: forensic report confirms use of insecticide in oil, food
It was the banned agriculture insecticide monocrotophos in the mid-day meal which killed 23 children of the primary school in Chhapra on July 16, declared the Forensic Science Laboratory (FSL) of the Bihar Police on Saturday.
Batman to join Superman in Man of Steel sequel
Man of Steel director Zack Snyder made a surprise appearance at Comic-Con on Saturday to announce he is making another Superman film and it will include Batman - the first time the two superheroes will be united on the big screen.


text:
Hilina Pali Trail is a 10 mile out and back trail located near Hawaii National Park, HI that offers scenic views. The trail is rated as difficult and primarily used for hiking.
Hawaii Volcanoes National Park P.O. Box 52 Hawaii National Park, HI 96718-0052 Visitor Information (808) 985-6000
We accomplished this hike on 6/14/14. I thought this was a great hike, perfect weather and the views are breathtaking. I am in pretty good shape so the altitude climb did not bother me, however my partner had a few struggles with the temp change and the climb back up. We'll worth the all day hike. We started at 2:30pm and completed the hike around 7:20 pm.
One of few places in Hawaii where there is absolutely no one around for miles! Vast open space and very distant views in all directions. May be too lonely for some, but I personally relished the extreme serenity. Friend Cynthia waited for me at the end of the very rough c.13 mile loop, then (REALLY) enjoyed the great dinner at Volcano Lodge!


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Having undesirable fat in different locations of your body can have a significant influence on your health and self-confidence. While standard weight-loss through exercise and diet is a fantastic way to lose weight overall, even the very best exercises cannot target problem areas like the stomach, inner thighs, arms, and buttocks. Liposuction is a time checked treatment that is utilized to remove excess fat from particular locations of the body, enabling an individual to shape and contour their body to their preference. Is liposuction right for you? Find out now.
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There are numerous advantages to this cosmetic procedure, including:
• Right away obvious modifications. Unlike standard weight reduction, liposuction produces changes that are right away visible in the body. Some distinction is noticeable right away, and the wanted outcomes are generally accomplished in simply a few days.
• Proven and safe. This cosmetic procedure has actually been carried out by knowledgeable cosmetic surgeons all over the world for many years and the strategy has actually been improved over and once again to be safe and efficient.
• Healing time is generally quickly. The downtime needed after having this kind of treatment is normally much less than exactly what is required for other kinds of cosmetic procedures, including abdominoplasty, breast reduction, and more. People who have had the treatment can often return to work a lot more rapidly than they expected and can return to living a healthy, active lifestyle.
• Weight-loss can be irreversible. With the ideal maintenance methods, the fat that was gotten rid of throughout the liposuction treatment will not return.
• Complete control over your physique. With liposuction, an individual can have complete control over how they want to look, beyond exactly what standard diet plan and workout can provide. Offering individuals this power over their bodies enhances self-esteem and assistance people feel their best.
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Cons of Liposuction
Before having liposuction done, it's important to examine the prospective drawbacks of the procedure and determine if the benefits outweigh the threats in your specific case. Your cosmetic surgeon can help you learn more about the dangers related to the treatment and can help you decide if moving on is the best thing for you.
• Problems with general anesthesia. Because liposuction is performed under general anesthesia, the procedure carries the exact same risks as other kind of surgical treatment where basic anesthesia is used. Underlying medical conditions might enhance these dangers.
• Adverse reactions. Bruising, bleeding, and pain are all to be expected, however, in rare cases can cause more substantial issues.
• The potential to gain the weight back. After having liposuction done, it is critical to keep a healthy diet and exercise appropriately as recommended by your doctor. Failure to do so might result in gaining back the weight that was lost or potentially much more.
There are dangers associated with liposuction, for many individuals, the benefits far exceed them. Educate yourself about the procedure by having in-depth discussions with your cosmetic surgeon and consider how liposuction has the possible to impact you as a special individual. Just you and your surgeon can identify if liposuction will supply you with the results you are trying to find within your expectations.
Laser Liposuction procedure is a new non invasive procedure to loose unwanted bodyfat in Bloomington California
Laser liposuction is a more recent, minimally invasive procedure that includes heating the fat cells to melting point and eliminating the melted fat through a small cannula. The treatment is normally done right in your physician's workplace and is an excellent option for people who have less than 500 ml of fat to remove from any one area. Laser liposuction can be a safe, complementary treatment to weight-loss in order to sculpt the body you've constantly desired.
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If you're thinking about liposuction as a weight reduction option, it is necessary that you discuss your desires with a qualified plastic surgeon in your area. Your specialist will perform a complete exam and health history survey to determine if liposuction can benefit you and help you reach your physical and emotional objectives. Call today for an examination and learn more about how liposuction can assist you attain the body of your dreams.


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Kirkland Proclaims National Fire Prevention Week Oct. 3-9/
City Prepares Special Activities for Public
Mrs. O'Leary's cow may or may not have kicked over the lamp that started the great Chicago fire of 1871. But, since 1922, that event has kicked off National Fire Prevention Week, the first full week of every October, across the U.S. The week is devoted to raising public awareness about fire safety and focuses on a specific topic each year.
The 2010 National Fire Prevention Week topic is
"Smoke Alarms: A Sound You Can Live With!"
On September 21, 2010, in support of National Fire Prevention Week, Kirkland City Council proclaimed October 3-9, 2010, Kirkland Fire Prevention Week. Kirkland Fire Department will sponsor a variety of activities during Kirkland's Fire Prevention Week… and following. The activities are designed to call public attention to the life-saving benefit of working, properly-placed, home smoke detectors and to install them in the homes of low-income residents.
- Oct. 3-9, Open House at all Kirkland Fire Stations, 10:00 a.m.-6:00 p.m.
- Oct. 3-9, Free smoke detector distribution and installation for low income residents
- Oct. 3-9, Fire prevention programming aired on Kirkland cable television
- Oct. 29, Information booth at Senior Housing Fair, Peter Kirk Community Center
- Oct. 30, Distribution of new brochure on Fire Department's Senior Fire and Fall
Prevention Program
- Oct. 30, Airing of new cable show on Fire Department's Senior Fire and Fall Prevention Program
In the early hours of July 2, 2010, a smoke alarm woke a local resident, whose townhome caught on fire. The early warning allowed him to escape without injury, call 911, alert neighbors and move a dog to safety, while fire crews contained the fire to just his home. Without a working smoke alarm, the resident would likely have lost his life due to smoke inhalation, before waking.
Smoke alarms - A few dollars to buy them, a few minutes to install them.
The result - Lives saved when unanticipated fires break out at home.


text: Catholic TV Network Branches Out EWTN Global Catholic Network is building a newsroom on the campus of the former Crystal Cathedral Aug. 13, 2014 10:52 a.m. ET Aug. 13, 2014 10:52 a.m. ET Article Not Supported We're sorry but this article contains media that is not currently supported in this app. You will be redirected to the article on wsj.com in 5 seconds. If you are not redirected automatically, click this link.... To Read the Full Story, Subscribe or Sign In


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Alive Network is the UK's leading supplier of live music and entertainment to weddings, private parties and corporate events.
Visit AliveNetwork.com for instant online quotes and availability checking!
About Alive Network Entertainment Agency
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EUR/USD Forecast: consolidation extends, waiting for NFP
The EUR/USD trades around 1.0610, unchanged daily basis and confined to a 40 pips range ever since the day started. The release of the final revisions of the region manufacturing PMIs, showed that final EU reading came in at a 34-month high of 53.7 in November, up from 53.5 in October, unchanged from the earlier flash estimate. The German reading, however, came in at 54.3 from an initial estimate of 54.4.
EUR/USD Forecast: calendar busy, but OPEC taking center stage
The EUR/USD pair trades marginally higher in the European morning, but has spent most of the last session range bound, as the market awaits for the US ADP employment survey and the outcome of the OPEC meeting that will take place today starting at 10:00 GMT. The dollar is under moderate selling pressure on comments from Iran oil minister, who said that Iran won't freeze output, but that there's another arrangement underway, resulting in oil prices jumping. The organism is expected to offer a statement around 16:00 GMT.
EUR/USD Forecast: consolidating at lows, waiting for data
Markets are in quiet consolidation this Tuesday, with the EUR/USD pair hovering around the 1.0600 level. Stocks trade in the red, both Asia and Europe, maintaining the negative tone seen on Monday. The macroeconomic calendar will be more lively today, with consumer and business sentiment in the EU, German November inflation, and the second reading of the US Q3 GDP. Later on the US afternoon, a couple of FED members will hit the wires in different speeches, although not major surprises are expected for today. In fact, is probable that the market will wait for Friday's NFP report to take firmer positions.
EUR/USD Forecast: correction to accelerate above 1.0700
The American dollar eases against all of its major rivals at the beginning of the week, with no major data released overnight. Denting investors' sentiment are diminishing hopes for a deal among worldwide oil producers to cut production, after Saudi Arabia announced it won't meet today with non-OPEC producers, as it wants to focus on having consensus within the organization first. US yields are down with the 10-year Treasury yield down around 5 basis points, further weighing on the greenback.
EUR/USD Forecast: stuck around 1.0600 ahead of US data
The EUR/USD pair trades uneventfully a few pips above the 1.0600 mark this Wednesday, unaffected by positive local data. The release of the European preliminary Markit PMIs showed that growth remains solid in the region, with the EU manufacturing reading at 54.1 and the services one also at 54.1, both above expectations and final October figures, leaving the Markit Composite PMI at 53.7.French readings beat expectations, while in Germany, manufacturing ticked modestly lower but posted a strong 54.4, while the services sector is estimated to have grew, up to 55 from previous 54.2.
EUR/USD Forecast: dollar keeps correcting, limited demand for the EUR
The EUR/USD pair trades modestly higher in another quiet London session, with the dollar affected by demand for safe-havens yen and gold during the Asian session, as an earthquake hit Japan, while a Tsunami alert was issued. Fortunately, there were no major consequences, and the alert was lifted. Also, US elected President, Donald Trump, has outlined his plans for his first 100 days in office, and announced that he intends to withdraw the US from the Trans-Pacific Partnership deal, a 12-nation trade pact aiming to liberalize the flow of goods among countries in the Pacific Rim and represents the 40% of the world's economy. Indeed, risk aversion can hit the market strongly later today.
EUR/USD Forecast: correcting higher, but still bearish
The week started in slow motion, with the greenback trading marginally lower across the board. The common currency has regained the 1.0600 level, and pressuring Friday's high against the greenback of 1.0642. There are no major catalyst around, with a scarce macroeconomic calendar, although ECB's head, Mario Draghi, is due to testify about the European Central Bank's Annual Report before the European Parliament. Asian shares trade higher, but European equities are struggling around their opening levels, whist commodities trade modestly higher, with crude outperforming, up to $47.00 a barrel.
EUR/USD Forecast: around 1.0600 ahead of FED's speakers
Dollar' advance continues, with the EUR/USD pair falling sub-1.0600 for the first time since December 2015, when the pair bottomed at 1.0505. ECB's head was on the wires this morning, speaking at the 26th European Banking Congress in Frankfurt, although he added nothing new to what the market already know about economic policy. In Germany, the PPI beat expectations in October rising by 07% in the month, when compared to September, and fell by 0.4% compared with the corresponding month of the preceding year, well above previous -1.4% and the expected -0.9%. Still, the positive number did little for the common currency.
EUR/USD Forecast: inflation figures take center stage
Majors have consolidated during the past Asian session, with the dollar marginally lower against most of its rivals, exception made by the Aussie, as tepid local employment data kept the antipodean currency under pressure. As for the EUR/USD pair, it traded as high as 1.0727 this Thursday, but remains confined to a tight range around the 1.0700 level.
EUR/USD Forecast: lower lows for the year around the corner
The EUR/USD pair fell down to 1.0699 this Wednesday, bouncing modestly afterwards, but maintaining the soft tone in the London morning. Stocks continue consolidating as the Trump euphoria receded, with European index trading modestly lower, but not far from their opening levels. The USD 10Year yield is above 2.20%, after a brief decline, underpinning the greenback.
EURUSD Analysis: Falls below last support before 1.07
The common European currency scored about fifteen pips against the US Dollar on early Tuesday morning, which could almost be called as remaining flat. Previously, on Monday the currency exchange rate fell from 1.0833 to end the day at 1.0737. During the move the pair passed the support cluster made up of the March low of 1.0822, the long term pattern's lower trend line at 1.0830 and the first monthly support level at 1.0806. It is most likely that the exchange rate will remain flat by the end of the day.
EUR/USD Forecast: nearing the yearly low at 1.0700
The greenback extends its advance at the beginning of a new week, trading not far from its year high against the common currency. The EUR/USD pair broke below the 1.0800 figure, and it is en route to January low of 1.0701, hovering around 1.0740. The macroeconomic calendar will remain light this Monday, with the EU releasing its Industrial Production figures for September, and a speech from ECB's head, Mario Draghi, at the Italian Treasury in Rome. There are no relevant data coming from the US, but a couple of FED's speakers, however, are scheduled for the next Asian session.
EUR/USD Forecast: back to October low on a break below 1.0950
Markets stabilized after the US election's turmoil, with Asian stocks markets sharply higher and European indices modestly up after the opening. Currencies are mostly consolidating yesterday's moves, with the JPY and the EUR still underperforming. The EUR/USD pair traded as low as 1.0906 at the beginning of the day, with a recovery up to 1.0953 being quickly rejected. Early Europe, the pair stands in the 1.0920 region, with a clear bearish stance.
EUR/USD Forecast: up to 1.1300, down to 1.1100: welcome to the Trump effect
Donald Trump has been elected as the 45th US President, and the announcement triggered a dollar's sell-off that sent the EUR/USD pair to 1.1299, its highest since September 8th. His first speech, however, was a surprise, with a moderated tone. He pledged that he will the president for all Americans, and look to work together to unify the country.
EUR/USD Forecast: Trump or Clinton? Whatever the result, action is guaranteed
The US is going to the polls, and a new president will emerge sometime after midnight GMT. The Trump-Clinton race has been dramatic, and the result will have a similar effect over the financial world, anticipating a lively day for this Wednesday. The strong moves markets saw this Monday, were merely corrective as assets as the yen and the gold, barely erased last week's losses, while stocks and European currencies are half-way of reverting Trump's led gains, which means that no matter who wins, the result is not yet priced in.
EUR/USD Forecast: risk sentiments turns positive as FBI clears Clinton, again
Late Sunday, the FBI announced that they found nothing in Hillary Clinton's new emails to change their previous conclusions expressed in July. The dollar gapped higher against its European rivals and the Yen, while stocks jumped on easing risk aversion. The EUR/USD pair fell down to 1.1056 at the weekly opening, and an attempt to recover ground was capped by selling interest around 1.1100. Despite the lack of momentum seen among currencies after London's opening, the pair trades a few pips below the mentioned level, with the dollar generally stronger across the board.
EUR/USD Forecast: consolidating gains, sentiment rules
Markets were a bit quieter overnight, as Japan had a holiday, although the greenback remained under pressure. The JPY continued outperforming its major rivals, with the USD/JPY pair down to 102.54, as demand for safe-haven assets remained intact. As for the EUR/USD, the pair consolidated gains around 1.1100, hovering in a range limited by some 20 pips each side of the mentioned figure. There are some minor macroeconomic releases in the EU that will hardly affect the market, with the most relevant being European unemployment rate. However, the Bank of England in having its economic policy meeting, which may affect the EUR trough the EUR/GBP, triggering contrarian reactions in the common currency of those in the Pound.
EUR/USD Forecast: technically bullish, but it's on FED
The EUR/USD pair keeps advancing this Wednesday, trading at a fresh 3-week high, just below the 1.1100 mark in the European session. Data coming from Europe this morning has been quite encouraging, with German Markit manufacturing PMI coming in at 55 in October, an over two-year high, up from 54.3 in September. The unemployment rate in the country fell to 6.0% as the economy added new jobs at its fastest pace in over five years. The EU manufacturing PMI came in at 53.5, beating expectations of 53.3, and up from 52.6 in September.
EUR/USD Forecast: poised to extend its decline
The EUR/USD pair retreated modestly at the weekly opening, down to 1.0949 in the European morning, but remains generally weak across the board, after Friday's news over the FBI reopening its investigation on Democrat candidate Hillary Clinton's emails. Stocks in Asia and Europe are lower, while commodities also present a sour tone. Several Central Banks will have their economic policy meeting this week, which will end with the release of the US Nonfarm Payroll report, and these events are likely to set the tone until December's FED meeting.
EUR/USD Forecast: US growth takes center stage
The EUR/USD pair recover modestly during the past Asian session, trading a few pips above the 1.0900 mark ahead of the release of US advanced Q3 GDP reading. The pair has traded within a 100 pips range ever since the week started, setting a fresh multi-month low of 1.0850, which implies that the risk remains towards the downside. Still, a disappointing US growth figure can help the common currency extend its recovery, at least short term.
EUR/USD Forecast: waiting for a catalyst to resume selling
The EUR/USD pair holds steady around the 1.0900 level, with no major developments having took place during the Asian session. Stocks remain weak, although far from their early low, led by earnings reports. There were no relevant releases in Europe, with the market waiting for US data, as the country will release its September Durable Goods orders and Pending Home sales later on the day. On Friday, the US will release the first estimate of its Q3 GDP.


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United States District Court, D. New Jersey
February 20, 2015
MATTHEW S. WOLF, on behalf of himself and all others similarly situated, Plaintiff,v.NISSAN MOTOR ACCEPTANCE CORPORATION, Defendant.
Michael John DeBenedictis, Esquire, DeBenedictus & DeBenedictis LLC, Haddonfield, New Jersey.
Thomas T. Booth, Jr., Esquire, Law Offices of Thomas T. Booth, Jr., LLC, Voorhees, New Jersey, Counsel for Plaintiff.
William H. Grae, Esquire, The Chartwell Law Offices, LLP, Millburn, New Jersey, Counsel for Defendant.
NOEL L. HILLMAN, District Judge.
The Court previously entered an Order staying the instant proceedings and referring the matter to arbitration. Presently before the Court is Plaintiff's letter motion [Doc. No. 27] seeking to lift the stay and reopen this case based upon the purported failure of Defendant, Nissan Motor Acceptance Corporation, to submit the proper arbitration fee, which resulted in the matter being withdrawn from arbitration. Defendant filed opposition to the letter motion, and Plaintiff has filed a reply. The Court has considered the submissions of the parties and decides this matter pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, Plaintiff's motion will be denied.
The Court exercises jurisdiction over Plaintiff's federal claim pursuant to 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over Plaintiff's state law claim under 28 U.S.C. § 1367.
This case involves a putative class action suit in which Plaintiff alleges, inter alia, violations of the Servicemembers Civil Relief Act, 50 U.S.C. §§ 501 et seq. (hereafter, "SCRA"). In November 2006, Plaintiff entered into an agreement to lease a 2007 Nissan Infiniti G35 Sedan for thirty-nine months. (Op. [Doc. No. 15] 2, June 22, 2011.) At the inception of the lease, Plaintiff paid $595 in "Capitalized Cost Reduction" (hereafter, "CCR"), an advance toward the lease's rent. (Id. at 3.) He also prepaid for other items which he could instead have paid on a monthly basis. (Id.) During the lease term, Plaintiff entered into active military service, returned the leased vehicle to Nissan, and invoked the SCRA. (Id.) Plaintiff contends in the complaint that the SCRA entitles military service members, like himself, to a prorated refund of lease payments made in advance. (Id.) Defendant, however, refused to refund to Plaintiff any prorated CCR payments. (Id.) Plaintiff then filed a putative class action in this Court. (Id.)
Based on an optional arbitration clause contained in the lease agreement, Defendant filed a motion to stay the instant proceedings and compel arbitration. In opposition to the motion, Plaintiff raised a number of challenges, including that the arbitration clause is unconscionable because it included a class action waiver.
On June 22, 2011, this Court entered an Opinion and Order granting Defendant's motion. The Court upheld the class action waiver provision in the arbitration clause, finding that the provision was not precluded either by the SCRA or New Jersey law. The Court did, however, strike two provisions in the arbitration clause concerning the payment of arbitration fees. Specifically, the arbitration clause contained a fee-shifting provision and an appeals provision which could be construed so as to require Plaintiff to shoulder the entire financial burden of the arbitration and appeal of his claims, irrespective of the outcome. (Op. [Doc. No. 15] 18-19, June 22, 2011.) The Court thus severed these unconscionable provisions but nonetheless found the arbitration clause otherwise valid and enforceable. (Id. at 19.) As such, the Court stayed the case and referred the matter to arbitration. (Id.)[1]
On October 22, 2012, counsel for Defendant wrote to Plaintiff's counsel in an effort to initiate the arbitration process. Because the arbitration provision in the lease agreement provided Plaintiff an opportunity to choose the arbitration forum, defense counsel sought input as to whether Plaintiff preferred to arbitrate the matter through the American Arbitration Association (hereafter, "AAA"), the National Arbitration Forum, or JAMS. (Def.'s Ltr. Br. dated May 16, 2014 (hereafter, "Def.'s Ltr. Br.") [Doc. No. 30], Ex. A.) After receiving no response from Plaintiff, Defendant decided to submit the case to the AAA. (Decl. of James R. Bruinsma, Esq. (hereafter, "Bruinsma Decl.") [Doc. No. 30-1] ¶¶ 9-13.)
Before filing any papers with the AAA, however, counsel for Defendant represents that he obtained advice from the AAA as to the appropriate method to initiate arbitration. (Id. ¶ 13.) According to counsel, he sought such advice because of the unusual procedural circumstance in that Defendant - although filing the claim to initiate arbitration - was not the party seeking payment and thus was not the "claimant." (Id.) Defense counsel was purportedly advised to utilize the AAA's standard form and attach thereto those documents that Defendant believed set forth the nature of the case and its status. (Id. ¶ 14.) In January 2013, Defendant completed the standard form and attached Plaintiff's complaint, this Court's Order referring the matter to arbitration, and the arbitration clause between the parties. (Def.'s Ltr. Br., Ex. B.) Defendant determined that the dollar amount of the claim would be $600, and that the arbitration fee would be $775 based upon the AAA fee schedule, which was the standard fee for claims up to $10, 000. (Bruinsma Decl. ¶¶ 15-17.) Defendant submitted the $775 fee with the standard form.
By letter dated February 7, 2013, Defendant wrote to the AAA case manager advising that it should be designated as the "Respondent" in the proceeding rather than as the "Claimant" because it was not the party seeking payment. The letter specifically noted that "[t]his is not a claim by NMAC to collect a consumer's debt; rather, it is a claim by a consumer against NMAC for damages and other relief as outlined in his complaint." (Def.'s Ltr. Br., Ex. C.) Defendant also requested through this letter an in-person hearing with an arbitrator. (Id.) The AAA sent an invoice for an additional $750, which was the flat rate due for compensation of an arbitrator for an inperson hearing. ( Id., Ex. D.) Defendant paid the invoice in full. (Id.)
In March 2013, the AAA designated the Honorable Burrell Ives Humphreys (Retired) to serve as an arbitrator. A preliminary telephone conference was held on May 20, 2013, at which time Plaintiff was directed to submit his own Statement of Claim. (Pl.'s Ltr Br. [Doc. No. 35] 5, July 18, 2014; Bruinsma Decl. ¶¶ 28, 32.) Plaintiff submitted a Statement of Claim in June 2013. (Decl. of Michael J. DeBenedictis in Reply, Ex. G.) The Statement of Claim set forth not only Plaintiff's individual claims, but also contained several class action allegations. (See generally id.) Although Plaintiff's Statement of Claim acknowledged that "any claim proceeding in arbitration can only proceed on an individual basis" (id. ¶ 16), the Statement nonetheless included the class action allegations and set forth an "Amount in Controversy" of $2, 100, 000 in monetary damages based upon "putative class claims, " with equitable and injunctive relief having a similar economic value. (Id. ¶ 26.) The Statement of Claim contains no estimate as to the value of Plaintiff's individual claims. (See id.) Defendant filed a response to Plaintiff's Statement of Claim in July 2013, noting therein that "the parties' agreement provides that Claimant's claims may be arbitrated solely on an individual basis and not as a class action." (Def.'s Ltr. Br., Ex. F at ¶¶ 58-72.)
In October 2013, a new AAA case manager, Derek Coppola, sent an email to counsel with an attached invoice for $8, 200. (Def.'s Ltr. Br., Ex. H.) The invoice was addressed to Plaintiff's counsel and was to be paid within fifteen days. (Id.) Plaintiff did not pay the fee. (Bruinsma Decl. ¶ 41.) Defense counsel represents that Mr. Coppola contacted him on November 14, 2013 because Mr. Coppola had been unable to contact Plaintiff's counsel. (Id.) According to defense counsel, Mr. Coppola inquired as to whether Plaintiff intended to pay the invoice. (Id.) Mr. Coppola purportedly stated during that conversation that the fee was assessed based on Plaintiff's $2.1 million monetary demand in his Statement of Claim. (Id. ¶ 42.) Defense counsel further represents that Mr. Coppola stated "If [Plaintiff] wants to arbitrate a $2 million claim, he has to pay the fee first.'" (Id.)
The parties at that point became entrenched in their positions that neither was going to pay the $8, 200 filing fee. On February 11, 2014, Mr. Coppola emailed counsel for the parties advising that Plaintiff's claim would be deemed withdrawn if the outstanding invoice was not paid by February 18, 2014. (Bruinsma Decl. ¶ 45.) Although the parties wrote to the AAA case manager arguing over who was responsible to pay the fee, no party ever asked the case manager to reconsider the fee. Most notably, it does not appear from the record that Plaintiff ever clarified to the case manager that the arbitration was based only on his individual claims, which were not within the range of $1, 000, 000 to $5, 000, 000 and did not require an $8, 200 fee. Defendant attempted to explain to the case manager that Plaintiff was improperly asserting a class claim, which generated an increased fee, but Defendant did not request that the case manager reduce the fee. Rather, Defendant insisted that it had already paid the fees required to arbitrate Plaintiff's individual claim and that Plaintiff was responsible for any fees resulting from his class action allegations.
On March 7, 2014, after neither party paid the $8, 200 filing fee, Mr. Coppola sent another email to counsel stating that "[t]he Association has been advised that Claimant has withdrawn its claim from arbitration." (Grae Ltr. Br., Ex. J.) Defense counsel responded to clarify whether Plaintiff was the "Claimant, " noting that Mr. Coppola's email "says the Claimant has withdrawn its' claim[.]" (Id.) The case manager confirmed that Plaintiff "withdrew his claim." (Id.)
Section 2 of the Federal Arbitration Act (hereafter, "FAA") provides for enforcement of arbitration agreements in written contracts. 9 U.S.C. § 2. Pursuant to Section 4 of the FAA, a party "aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court... for an order directing that such arbitration proceed in the manner provided for in such agreement." 9 U.S.C. § 4. Section 3 of the FAA states that a district court may stay the trial of a matter where the parties have agreed to arbitrate an issue, "provid[ed] the applicant for the stay is not in default in proceeding with such arbitration." 9 U.S.C. § 3.
Although the Court already stayed this matter so that the parties may proceed with arbitration, Plaintiff now asks the Court to lift the stay. Plaintiff contends in this regard that Defendant defaulted by failing to pay the filing fee to initiate arbitration, and consequently has purportedly waived its right to arbitrate Plaintiff's claims under Section 3 of the FAA.
In deciding whether Defendant defaulted in proceeding with the arbitration, the Court must determine whether Defendant was responsible for paying the $8, 200 filing fee requested by the AAA. For the reasons discussed below, the Court finds that the AAA required Plaintiff to pay this filing fee, and therefore Defendant's failure to pay the fee does not constitute a default in proceeding with arbitration.
The Court first rejects Plaintiff's contention that the AAA case manager required Defendant to pay the invoice for $8, 200. Although the invoice was sent via email to defense counsel, both attorneys for Plaintiff were "cc:d" on the email and the invoice attached thereto is addressed to Plaintiff's counsel. The email itself states that it "acknowledge[s] receipt of a [sic] Claimant Matthew Wolf's Statement of Claimant" and that "the claim is not properly filed without the submission of the appropriate filing fee." (Def.'s Ltr. Br., Ex. H.) The email further states that "at this time we request that Claimant submit the appropriate filing fee in the amount of $8, 200.00... [.]" (Id.) The content of the email and the invoice attached thereto thus belie Plaintiff's assertion that Defendant was required by the AAA to pay the invoice.
Moreover, the Court notes that the AAA case manager assessed the $8, 200 when Plaintiff filed a Statement of Claim containing class action allegations.[2] Plaintiff fought the class action issue before this Court and lost, both in connection with Defendant's motion to compel arbitration and Plaintiff's motion for reconsideration, and Plaintiff was unable to obtain relief from the Third Circuit. Despite this, Plaintiff proceeded to set forth class allegations in the Statement of Claim and sought $2.1 million in damages for the class claims.[3] Clearly, the $8, 200 fee, which is the standard fee for claims between $1 million and $5 million, was predicated upon Plaintiff's assertion of class claims. It does not appear that Plaintiff ever attempted to clarify with the AAA case manager that the value of his individual claims did not warrant an $8, 200 fee.
Whether the AAA case manager was correct in assessing a filing fee in the amount of $8, 200 or in directing the invoice to Plaintiff is not for this Court to decide. "[P]rocedural' questions which grow out of the dispute and bear on its final disposition' are presumptively not for the judge, but for an arbitrator, to decide." Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002)(quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964)). An arbitrator should decide whether a condition precedent to arbitrability, such as time limits, notice, laches, or estoppel, has been fulfilled. Id. at 85, 123 S.Ct. 588. At least one court has held that "questions related to the payment of fees... are for arbitrators to decide." Pre-Paid Legal Services, Inc. v. Cahill, No. 12-CV-346-JHP, 2014 WL 1514161, at *1 (E.D. Okla. Apr. 16, 2014).
In Lifescan, Inc. v. Premier Diabetic Services, Inc., 363 F.3d 1010 (9th Cir. 2004), the Ninth Circuit reversed the district court's order compelling a party to pay an arbitration fee when the arbitrator had required another party to pay such fee. The issue before the court was "[w]hat happens when a party to an arbitration is unable to pay its pro-rata share of the arbitration fees[.]" Lifescan, 363 F.3d at 1011. There, the parties had participated in AAA arbitration but, before the final hearing, one of the parties, Premier Diabetic Services, Inc., was unable to pay its pro-rata share of the arbitrators' estimated fees and costs for the remainder of the proceedings. Id . The arbitrator gave the other party, Lifescan, Inc., the option of advancing the fees owed by Premier, but Lifescan refused. Id . The AAA declined to proceed and suspended the proceedings. Id . Lifescan then asked the district court to compel Premier to pay its pro-rata share of the fees, which request was granted by the district court. Id.
On appeal, the Ninth Circuit reversed the district court's decision, finding that the arbitrators acted within their discretion in requiring Lifescan to pay Premier's share of the arbitration fees. Id. at 1013. In so holding, the Ninth Circuit noted that the AAA rules provide the arbitrators with "the authority to apportion fees and expenses as appropriate." Id. at 1012. In particular, the Ninth Circuit noted that "[a]lthough the arbitrators originally requested an equal deposit from the parties, they changed their order when Premier informed them that it could not afford to pay." Id . While recognizing that the arbitrators' decision "may not be an ideal solution to the problem of a party's failure to pay its share of the fees, ... it is well within the discretion of the arbitrators." Id.
Another Ninth Circuit decision relevant to the present case is Sink v. Aden Enterprises, Inc., 352 F.3d 1197 (9th Cir. 2003). In Sink, the district court stayed the plaintiff's lawsuit for breach of an employment contract and referred the matter to arbitration pursuant to an arbitration clause in the contract. Id. at 1198. The employment agreement required the defendant, as the employer, to pay the costs of any arbitration arising from the employment relationship. Id. at n.1. The defendant-employer failed to pay the filing fee, and the arbitrator cancelled the arbitration due to non-payment of fees. Id. at 1199. The plaintiff then sought to lift the stay of proceedings in the district court, which request was granted. Id.
On appeal, the Ninth Circuit found that the defendantemployer defaulted in the arbitration. Id . Because the defendant was in default, the FAA no longer permitted a stay of the court proceedings in favor of arbitration and did not require the district court to order the parties to return to arbitration. Id. at 1201-02. The Ninth Circuit held "that a party to an arbitration agreement may not compel arbitration of claims under FAA § 4 where a prior default in arbitration of those claims precludes that party from obtaining a stay of litigation pending arbitration under § 3." Id. at 1201. In so holding, the Ninth Circuit noted that if the parties were required to return to arbitration, "[t]he same offending party could then default a second time, and the prejudiced party's sole remedy, again, would be another order compelling arbitration." Id. at 1201. "This cycle could continue, resulting in frustration of the aggrieved resolution of claims." Id.
The facts of this case fall neither squarely within Lifescan nor Sink. Lifescan involved payment of fees associated with the arbitration hearing rather than the initial filing fee, but supports the notion that the Court cannot require one party to pay a fee when the arbitrator has required a different party to pay such fee. Sink is more on point insofar as it involved the failure to pay the initial filing fee, but in that case the employer-defendant was clearly obligated by contract to pay the fee and failed to do so.[4] There was no dispute as to the amount of the fee or any conduct by the plaintiff that generated an artificially-inflated fee. Here, by contrast, Defendant paid the initial fee, and the arbitrator then required Plaintiff to pay a significantly increased fee as a result of Plaintiff's assertion of a class action claim in excess of $2 million.
The FAA "establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability." Moses H. Cone Mem. Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). There is a strong presumption against waiver of arbitration. See Sherrock Bros., Inc. v. DaimlerChrysler Motors Co., LLC, 260 F.Appx. 497, 500 (3d Cir. 2008); Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 223 (3d Cir. 2007).
The Court recognizes, as discussed in Sink, that when the purpose of arbitration - that is, to provide a cost-effective and efficient means of resolving a claim - is thwarted by a party's failure to pay the required fees, the defaulting party should not be permitted to return to arbitration. But this is not a case where Plaintiff was held at the mercy of a non-paying party who merely sought to delay resolution of the claims at issue. Defendant paid a filing fee and completed the paperwork to initiate the arbitration. Plaintiff then failed to pay an $8, 200 invoice directed to him based on the claim he filed with the AAA. The AAA ultimately found that Plaintiff waived his claim. Under these circumstances, the Court cannot conclude that it was Defendant's conduct that resulted in the case being removed from arbitration. As such, the Court does not find that Defendant defaulted in the arbitration proceedings so as to overcome the strong federal policy favoring the enforcement of arbitration agreements.
In so finding, the Court notes Plaintiff's argument that Defendant has purportedly shifted the arbitration fees onto Plaintiff in contravention of this Court's ruling. The Court previously held that because the fee-shifting provision in the arbitration clause gave unfettered discretion to an arbitrator to allocate the entire cost of the arbitration to Plaintiff, such provision was unconscionable and unenforceable to the extent it "may be construed and applied to require [Plaintiff] to shoulder the entire financial burden of the arbitration... [.]" (Op. [Doc. No. 15] 18-19, June 22, 2011.) Here, however, Defendant paid the initial fees and there is no indication that Defendant ever asked Plaintiff to bear the entire financial burden of arbitration. Furthermore, there is no indication that the arbitrator has required Plaintiff to shoulder the entire financial burden, but has only required Plaintiff to pay a filing fee based upon a claim submitted by Plaintiff.
The Court also notes Plaintiff's argument that the "outcome determinative question" is whether the $775 fee submitted by Defendant was sufficient to submit all of Plaintiff's claims to arbitration. Plaintiff contends that Defendant should have checked the boxes on the initial filing form for injunctive and declaratory claims, which would have resulted in a filing fee of $3, 350. Because Defendant only paid $775, Plaintiff argues that Defendant did not pay a filing fee sufficient to submit all of Plaintiff's claims to arbitration and has thus defaulted.
The Court will not predict whether the AAA case manager would have assessed a $3, 350 fee if Defendant had checked different boxes on the filing form. Plaintiff never asked the AAA case manager to reduce the fee to $3, 350, the AAA never sought a filing fee in the amount of $3, 350, Defendant was never invoiced for $3, 350, and the case was not withdrawn from arbitration based upon the failure to pay a $3, 350 filing fee. The Court is thus unable to find Defendant in default for failing to pay a filing fee that Defendant was never asked to pay.
For the reasons set forth above, the Court denies Plaintiff's request to lift the stay entered on June 22, 2011 and directs the parties to return to arbitration.
An Order consistent with this Opinion will be entered.
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Trends in State Tax Policy
With 2017 just around the corner and state policymakers beginning work on next year's legislation in earnest, it's worth pausing to review recent trends in state taxation to glean hints of what to expect in the year to...
In February, we gave a lukewarm appraisal of a lukewarm tax plan that Governor Kasich was pushing in his budget for Ohio. Some elements of the plan were good. The plan would broaden the sales tax to include services, and cut the rate from 5.5 percent to 5 percent. This move would leave a lot of revenue though, and the plan would apply that revenue to cutting income tax rates across the entire nine bracket structure by 20 percent. While those are good reforms, we were critical of the generous exclusion for passthrough entities that would allow them to deduct half their income below a $750,000 threshold. This gimmick was mainly a political ploy that claims to help a sympathetic constituency (small business), but in reality just creates an incentive to organize your personal income as small business income to get a large tax cut.
After the Ohio House got hold of the plan in April, the sales tax base expansion and the small business carve out were removed and the income tax cut was reduced to just 7 percent across-the-board. Now that the Senate has hold of budget, the House's 7 percent income tax reduction is gone and the small business carve out is back in.
This is bad policy, and many supporters are errantly pushing it under the guise of putting more money in the hands of "job-creators." But this is based on a flawed understanding of what creates jobs. The businesses that actually create jobs are not small businesses or big businesses; they are businesses that are growing. And that type of business is virtually impossible to target with a tax incentive.
So while I'm the first to recognize that politicians would probably rather say "I cut taxes on businesses in half!" than "I cut taxes for everyone by 7 percent," the latter claim is a far less distortive approach; one that doesn't pick winners and losers in the economy. Ohio deserves real reform, not gimmicks.
PS-The best plan in Ohio right now is not this one snapping up AP headlines, it's the administrative reform that would start to fix Ohio's highly unusual municipal income tax system.
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With 2017 just around the corner and state policymakers beginning work on next year's legislation in earnest, it's worth pausing to review recent trends in state taxation to glean hints of what to expect in the year to...
The OECD released their Revenue Statistics publication for 2015 this week, revealing the total tax revenue as a percent of GDP of the OECD countries has risen by 10 bases points. The increased tax revenue was driven by...


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October 16, 2006
JOSE L. CRUZ, PETITIONER,v.JAMES BERBARRY, ET AL., RESPONDENTS.
Jose L. Cruz ("Cruz") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Ontario County Court following a jury trial on charges of third degree criminal sale of a controlled substance and second degree menacing. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
Cruz was arrested in July 2000, in connection with the shooting death of Victor Omar Rivera-Gomez ("Rivera-Gomez") on January 29, 2000. An Ontario County grand jury returned an indictment charging Cruz with one count of second degree murder with respect to RiveraGomez's death, one count of third degree criminal sale of a controlled substance for allegedly selling heroin to Jose Rivera (a/k/a "Chucho"), and one count of second degree menacing with respect to actions allegedly taken by Cruz which placed or attempted to place Chucho in reasonable fear of serious physical injury or death.
Cruz's jury trial commenced in Ontario County Court on February 20, 2001. Chucho testified that in January 2000, Cruz gave him ten bundles of heroin to sell. (This occurred prior to the murder of Rivera-Gomez.) Chucho testified that he was a heroin addict and used eight to nine bags of heroin a day. Chuco sniffed four of the bundles given to him by Cruz and, based on his experience with using heroin, testified that the substance given to him by Cruz made him "high." Chucho also testified that there came a point in time after the murder where he began cooperating with the police and participated in a taped conversation with Cruz. The tape recording was received into evidence at trial, along with a transcript. Eduardo Alvarez-Castillo testified that in mid-January 2000, he witnessed Cruz give about ten bundles of heroin to Chucho.
Johanna Herrera ("Herrera") testified that Cruz came to her apartment on January 28, 2000, looking for Chucho, who allegedly owed him drug money. Cruz informed Herrera that Rivera-Gomez's hours were "counting" because he was a snitch. Herrera testified that Cruz asked her to sell heroin for him, in place of Rivera-Gomez, because Rivera-Gomez owed Cruz money. Arlene Gonzalez ("Gonzalez") also testified that Cruz came to Herrera's apartment on the night before Rivera-Gomez was killed and said that he was looking for Chucho. Cruz said that Gonzalez would "get hers too" if she was hiding Chucho. At that time, Chucho was hiding in a closet in fear because he owed Cruz money for the heroin that Cruz earlier had given Chucho to sell.
On February 28, 2001, the jury returned a verdict acquitting Cruz of second degree murder but convicting him of the remaining two charges in the indictment alleging criminal sale of a controlled substance and menacing. He was sentenced on May 25, 2001, to a term of six to eighteen years on the criminal sale conviction and a concurrent one-year term on the menacing conviction.
The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on direct appeal. The New York Court of Appeals denied leave to appeal.
Cruz subsequently filed a pro se motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 alleging that (1) the trial court "lacked subject matter jurisdiction over the second count of the indictment of Criminal Sale of a Controlled Substance" because "the accusatory instrument" did "not contain non-hearsay allegations" since "no drugs [were] confiscated"; (2) he could not be found guilty of criminal sale of a controlled substance because no drugs were confiscated and no tests were performed on them; and (3) he was denied his right to due process and equal protection because he was "charged and indicted for Criminal Sale of a Controlled Substance . . . without the recovery of any drugs." See Respondent's Exhibit O. The motion court denied the application on the basis that "the claims asserted . . . were either previously determined on the merits upon the defendant's direct appeal from the judgment (see, CPL 440.10(2)(a); People v. Su, 213 AD2d 502), or could have been, but were not raised upon the direct appeal (see, CPL 440.10(2)(c))[.]" See Respondent's Exhibit P.
This timely habeas petition followed in which Cruz asserts verbatim the three grounds raised in support of his C.P.L. § 440.10 motion. See Attachment to Petition (Docket No. 1). He also alleges that an "[u]nqualified witness [i.e., Chucho] testified as [an] expert[.]" See Petition at ¶22(a); Attachment to Petition (Docket No. 1). In his argument under the point heading "Was the State[']s Witness Unqualified" Cruz states that trial counsel was ineffective in failing to object to the admission of the tape-recording of Chucho's conversation with him.
For the reasons set forth below, the petition is dismissed.
To satisfy the exhaustion requirement imposed by 28 U.S.C. § 2254(b) and (c), a petitioner "must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (citing Picard v. Connor, 404 U.S. 270, 276-77 (1971)). Although the petitioner need not have explicitly described his claims as arising under the federal constitution, id. at 195, he must have relied on pertinent federal or state cases employing constitutional analysis,asserted the claim "in terms so particular as to call to mind a specific right protected by the Constitution," or alleged "a pattern of facts that is well within the mainstream of constitutional litigation," id. at 194.
Respondent states that petitioner's "direct appeal focused only on the assertion that Chucho was not competent to identity [sic] of the substance [sic] in question at petitioner's trial." Respondent's Memorandum of Law at 5 (Docket No. 7). Respondent asserts that Cruz "made no mention in his appeal of subject matter jurisdiction, inconsistent prosecution, denial of due process and equal protection, unqualified witness, or ineffective assistance of counsel." Id. Respondent argues that, as a result, Cruz has failed to exhaust his state court remedies with respect to these claims. However, respondent then goes on to observe that Cruz actually raised the claims involving the alleged lack of subject matter jurisdiction, inconsistent prosecution, and the denial of due process and equal protection based on the state's failure to introduce the drugs at trial in his C.P.L. § 440.10 motion. Thus, contrary to respondent's contention, these three claims are exhausted.*fn1 The Court agrees with respondent that Cruz's claims of ineffective assistance of counsel and improper introduction of Chucho's "expert" testimony are unexhausted.
1. Ineffective Assistance of Counsel
As to the ineffective assistance of counsel claim premised on the failure to object to the introduction of the tape of Chucho's conversation with him, respondent is correct that this claim was not asserted in any state court proceeding by Cruz. This claim appears to have been raised for the first time on federal habeas review and therefore is unexhausted. For Cruz to return to state court to exhaust the claim, however, would be futile, for the reasons set forth in the following paragraphs.
The Court notes that Section 440.10(1)(h) of the New York Criminal Procedure Law ("C.P.L.") does provide a method by which individuals can collaterally attack their convictions even after they have used up their one direct appeal. Under C.P.L. § 440.10(2)(c), however, a New York court must deny a § 440.10 motion where the movant unjustifiably failed to raise the constitutional violation on direct appeal despite a sufficient record to have permitted such an appeal. See N.Y. Crim. Proc. Law § 440.10(2)(c); see also Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997). Denial of a C.P.L. § 440.10 motion, pursuant to § 440.10(2)(c), will not always be appropriate in the ineffective assistance context, such as when the facts supporting the instance of ineffective assistance of counsel appeared outside the record. Reyes, 118 F.3d at 139 (citing People v. Harris, 109 A.D.2d 351, 491 N.Y.S.2d 678, 687 (App. Div. 2d Dept. 1985) (holding that trial record was insufficient to require that an ineffective assistance of counsel claim relating to alleged faulty legal advice be brought on direct appeal), appeal denied, 66 N.Y.2d 919, 498 N.Y.S.2d 1034, 489 N.E.2d 779 (N.Y. 1985)).
Here, however, Cruz represents that the ineffective assistance is premised on trial counsel's alleged failure to object to the prosecutor's introduction of an audiotape of an incriminating conversation between him and the state's main witness. Thus, any error by trial counsel would be contained within the trial record. Moreover, Cruz had new counsel representing him on direct appeal. There is no justifiable reason, then, why Cruz could not have raised his ineffective assistance of counsel claim on direct review, especially since he had different counsel representing him. See Reyes, 118 F.3d at 139-140 (holding that petitioner's ineffective assistance of trial counsel claim--which was premised on counsel's failure to object to the reasonable doubt charge--did not fall within any of the exceptions noted by the New York courts and should be deemed exhausted because, if it were raised on a C.P.L. § 440.10 motion, the state court would deny it pursuant to C.P.L. § 440.10(2)(c)). Because there is no reason to believe that the trial record was in any way insufficient to allow the Appellate Division to hear an ineffective assistance of counsel claim based on the failure to object to the introduction of certain evidence, any attempt by Cruz to seek state court review pursuant to C.P.L. § 440.10 would be futile. See N.Y. Crim. Proc. Law § 440.10(2)(c).
Thus, Cruz's claim of ineffective assistance, although in actuality unexhausted, must be deemed exhausted since it is procedurally defaulted. The Court therefore finds that, by defaulting on that claim in state court, Cruz has forfeited that claim on federal habeas review. See Reyes, 118 F.3d at 140("[A] claim is procedurally defaulted for the purposes of federal habeas review where 'the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'") (quoting Coleman, 501 U.S. at 735 n. 1). Cruz has not attempted to show cause for the default, or prejudice resulting therefrom; indeed, neither cause nor prejudice exist on the record before this Court. Furthermore, Cruz has not made a showing of actual innocence so as to justify the "fundamental miscarriage of justice" exception. Accordingly, Cruz's ineffective assistance claim is barred from habeas review. See Reyes, 118 F.3d at 140; accord, e.g., Redd v. Quinones, No. 98 Civ. 2604 LBS, 1998 WL 702334, at *4 (S.D.N.Y. Oct. 7, 1998).
2. Improper "Expert" Testimony by Prosecution Witness
Turning to Cruz's claim that the state's main witness, Chucho, was not properly qualified to testify as an expert witness regarding the identity of the substance (heroin) given to him by Cruz, respondent also claims that this is unexhausted. According to respondent, Cruz "cited no constitutional issues" and "asserted no claims calling to mind a specific constitutional right[.]" See Respondent's Memorandum of Law at 5 (Docket No. 7).
Cruz's argument on direct appeal that Chucho was not qualified to testify was made in the context of his argument that the trial court should have set aside the verdict because the evidence was insufficient as a matter of law to sustain the conviction of criminal sale of a controlled substance in the third degree. In his habeas petition, Cruz asserts that Chucho was unqualified to testify that the substance that he received from Cruz was, in fact, heroin. Cruz notes that "only this witness was used to gain conviction against petitioner[.]" Petition at ¶22(A) (Docket No. 1). Cruz does not explicitly assert that the evidence used to convict him was legally insufficient.
As an initial matter, the Court notes that the test for sufficiency of the evidence to support a conviction is the same under both New York and federal law. Compare Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (holding that, when evaluating a federal habeas petitioner's challenge to the sufficiency of the evidence the question for the court is "whether, after 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") with People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 763, 508 N.E.2d 672 (N.Y.1987) ("For a court to conclude . . . that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged.") and Leha v. Yonkers General Hosp., 22 A.D.3d 809, 803 N.Y.S.2d 197 (App. Div. 2d Dept. 2005) (" To conclude as a matter of law that a jury verdict is not supported by sufficient evidence, there must be 'no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial[.]'") (quoting Fellin v. Sahgal, 296 A.D.2d 526, 745 N.Y.S.2d 565 (App. Div. 2d Dept. 2002)).
The issue, however, is whether Cruzactually is asserting an insufficiency-of-the-evidence claim on habeas review. The Court has carefully reviewed Cruz's pleadings, and it appears that he is basing his argument solely on Chucho's lack of qualifications to identify the substance as heroin, simply arguing that Chucho was not competent to be qualified as an expert witness. Essentially, Cruz is asserting that the trial court erred in admitting testimony by a witness who was not competent to testify as an expert; on direct appeal, appellate counsel cited only New York case law for this proposition. Thus, I am inclined to agree with respondent that Cruz did not "fairly present" this claim in federal constitutional terms to the state court for exhaustion purposes. However, the claim must be deemed exhausted, but procedurally defaulted, because Cruz cannot return to state court to exhaust it. He has used the one direct appeal to which he is entitled, see N.Y. Court Rules § 500.10(a), and if he were to attempt to raise it in a collateral C.P.L. § 440.10 motion, the court would deny the claim since sufficient facts appeared on the record to have permitted the claim to have been raised on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(c). Thus, the claim must be deemed exhausted but procedurally defaulted.
Even if the claim were exhausted, the Court would not find that it provides a basis for habeas relief. When a habeas corpus petitioner alleges error as to the trial court's evidentiary rulings, the task of the federal court is to determine whether the petitioner was deprived of his right to a fundamentally fair trial. Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988). Even an erroneous evidentiary ruling by a state trial court will not entitle the petitioner to habeas corpus relief unless the error was of a federal constitutional dimension. Id.; see also Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) ("Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.") (citations omitted). Here, it appears that the trial court was well within its discretion as a matter of state law in admitting Chucho's testimony. See, e.g., People v. Lynch, 85 A.D.2d 126, 128-29, 447 N.Y.S.2d 549 (App. Div. 4th Dept. 1982) ("To sustain a conviction for selling drugs, it is not essential that the substance be produced in court. Witnesses, through whose testimony the precise identification of the drug is sought, as in the instant case, are essentially expert witnesses. Such a witness may be qualified to speak from actual experience, from observation or from study and must be shown to be qualified as an expert on the particular subject concerning which he is called upon to testify. An expert who bases his opinion upon facts of which he has personal knowledge must first testify to these facts before expressing his opinion[.]") (internal citations omitted). Chucho testified that he was a heroin addict who consumed eight to nine bags of heroin every day for about one year, that he was familiar with the effects of heroin, and that he had used heroin of different strengths. Chucho said that Cruz had given him ten bundles of heroin and that, after sniffing four of them, he got high. New York intermediate appellate courts have sustained drug convictions based on the testimony of users of illegal drugs, like Chucho, who identified the substances at issue based on their experience in using or dealing in unlawful drugs. People v. Christopher, 161 A.D.2d 896, 557 N.Y.S.2d 461 (App. Div. 3d Dept. 1990) (holding that trial court correctly permitted a witness to identify a substance as heroin; witness, who testified that he had both injected and snorted heroin in the past, and he had taken other substances by injection and that the feeling produced by the substance in question was similar to that of heroin and was different from that of other substances, was competent to render an opinion regarding the identity of the substance.); People v. Lynch, 85 A.D.2d at 128-29.
Whether Chucho's "expert" testimony would have been sufficient to pass muster under the Federal Rules of Evidence does not necessarily require a contrary conclusion. See Fed. R. Evid. 702 (a witness may be "qualified as an expert by knowledge, skill, experience, training, or education") (emphasis supplied). In United States v. Atkins, 473 F.2d 308, 313 (8th Cir. 1973), the appellant argued that it was error to allow two addicts to testify that the substance purchased from appellant was in fact heroin. In essence, the appellant in Atkins argued, as Cruz does here, that without this testimony the government failed to prove the substance was in fact heroin, since no heroin was introduced into evidence and no chemist testified with regard to the chemical make-up of the substance. The Eight Circuit observed that "[i]t is not inherently implausible that persons addicted to heroin, one with six years experience and the other given heroin specifically so as to be able to differentiate heroin from a similar appearing drug, might possess the necessary "experiential capacity" to testify that the substance in question, and which both had occasion to use, was in fact heroin."Id. at 313 (citing Weaver v. United States, 111 F.2d 603, 606 (8th Cir. 1940) (holding that it was competent for a witness to testify that substance purchased by him was morphine); Ewing v. United States, 386 F.2d 10, 15 (9th Cir. 1967), cert. denied, 390 U.S. 991, 88 S.Ct. 1192, 19 L.Ed.2d 1299 (1968) (upholding witness's conclusion that she had received marijuana where such was founded upon prior experience, rolling the cigarette herself, seeing what it looked like, and the fact that it made her "high"); Pennacchio v. United States, 263 F. 66 (2d Cir.) (upholding admission of a habitual opium user's testimony that the substance given to him, and which he used, was in fact opium), cert. denied, 253 U.S. 497, 40 S.Ct. 588, 64 L.Ed. 1031 (1920).
The Eighth Circuit, however, did not decide in Atkins whether the government's witnesses, who were heroin users, qualified as "experts," but rather sustained the conviction on a different basis. The Eighth Circuit noted that the Second Circuit had stated that "'[j]ust as with any other component of the crime [of violating federal drug laws], the existence of and dealing with narcotics may be proved by circumstantial evidence; there need be no sample placed before the jury, nor need there be testimony by qualified chemists as long as the evidence furnished ground for inferring that the material in question was narcotics.'" Id. (quoting Agueci v. United States, 310 F.2d 817, 828 (2d Cir. 1962), cert. denied, 372 U. S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12 (1963) and citing United States v. Nuccio, 373 F.2d 168, 174 n. 4 (2d Cir. 1967), cert. denied, 387 U. S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 623 (1968)). Relying on this precedent, the Eighth Circuit found that the testimony furnished a sufficient basis for inferring that the material in question was heroin: one witness testified that a very high price had been paid for the substance and that he sampled the substance and it gave him the same reaction he had experienced when he previously used heroin; the other witness also testified that she received no complaints about the substance she represented as being heroin when she sold it and that she became addicted to heroin by taking the substance given to her by the first witness, and a doctor told her she was addicted to heroin. The Eighth Circuit concluded that this "evidence has the tendency of proving the substance in question was in fact heroin." Id. (citing Toliver v. United States, 224 F.2d 742, 745 (9th Cir. 1995) ("We find in the record, ample evidence from which the jury could conclude that heroin was involved in the absence of the witness' own opinion. The exhorbitant [sic] price paid for the small amount of substance; the fact it was a powder; that Brown had been a user and had had previous transactions in narcotics with the appellant; that Brown bought the substance as heroin; that Brown sold the substance to his customers as heroin and that none of them 'kicked' or complained, supplied sufficient evidence for the jury to draw the inference that the powder was heroin."); United States v. Morello, 250 F.2d 631, 633-634 (2d Cir. 1957)).
As the foregoing discussion illustrates, the admission of Chucho's testimony was not erroneous as a matter of state law, as New York courts have allowed individuals to be qualified as "experts" in drug prosecutions based on their personal use of the drug in question. Although the Court has not uncovered any federal cases in which a drug user was qualified as an expert witness under Rule 702, in the cases reviewed, the federal courts have sustained drug convictions based on the testimony of drug users where the evidence was such as to furnish ample ground for inference that the material in question was a narcotic. Consequently, even if the claim were properly exhausted, the Court would not find that the admission of Chucho's testimony amounted to an error of state law or an error of federal constitutional dimension sufficient to warrant habeas relief.
Procedural Default on Remaining Three Claims
Respondent argues that Cruz's remaining three claims (lack of subject matter jurisdiction based on the failure to confiscate drugs; inconsistent prosecution based on the failure to confiscate and test drugs; and denial of due process based on the failure to recover drugs) are procedurally defaulted because the trial court dismissed them on state procedural grounds, i.e., C.P.L. § 440.10(2)(a) and (c), when Cruz raised them in support of his motion to vacate the judgment of conviction. The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (citations omitted); accord, e.g., Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546,2557, 115 L.Ed.2d 640 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116, 137 L.Ed.2d 317 (1997).
The cases hold that both C.P.L. § 440.10(2)(a) and C.P.L. § 440.10(2)(c)*fn2 can constitute "adequate and independent" state procedural grounds barring federal habeas review. See, e.g., Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995) (holding that C.P.L. § 440.10(2)(c) is adequate and independent state ground); Encarnacion v. Walker, No. 96CV329FJSGLS, 1998 WL 34002608, at *4 (N.D.N.Y. Aug. 21, 1998) ("The state trial court's ruling rested on an adequate and independent state procedural rule, N.Y. Crim. Proc. Law § 440.10(2)(a) & (b), which provides that a court must deny a motion to vacate a judgment if the issue raised was previously determined on appeal from the judgment, or the judgment is appealable or pending on appeal and sufficient facts appear on the record to permit adequate review."); D'Alessandro v. Fischer, No. 01 Civ. 2551 LTS/DF, 2005 WL 3159674, at *19 (S.D.N.Y. Nov. 28, 2005) ("[T]he trial court's express reliance on CPL § 440.10(2)(a) indicates that the court rejected Petitioner's ineffective assistance claim on an independent and adequate state procedural ground, precluding federal habeas review.").
There can be no question that the state court's unambiguous and explicit invocation of CPL § 440.10(2)(a) and § 440.10(2)(c) was "independent" inasmuch as it did not implicate or depend on any rule of federal law. See, e.g., Williams v. Goord, 277 F. Supp.2d 309, 318 (S.D.N.Y. 2003) (holding that state court's decision denying C.P.L. § 440.10 motion was "independent" because its reliance on state law was "apparent from the face of the opinion"). In addition, the trial court "clearly and expressly state[d] that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. at 263 (quotation omitted).
The remaining question is therefore "whether the state ground relied upon is 'adequate' to preclude federal habeas review," Garcia, 188 F.3d at 77 ("The Supreme Court repeatedly has held that " 'the question of when and how defaults in compliance with state procedural rules can preclude . . . consideration of a federal question is itself a federal question.'") (quoting Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (quoting Henry v. Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965)). A procedural bar is "adequate" if it is based on a rule that is " 'firmly established and regularly followed' by the state in question." Id. (quoting Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)). Whether application of the procedural rule is "firmly established and regularly followed" must be judged in the context of "the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citing Lee v. Kemna, 534 U.S. 362, 386-87 (2002)).
Here, it is clear that CPL § 440 .10(2)(a) and C.P.L. § 440.10(2)(c) were "adequate" grounds for the state court's decision. First, the state court "actually relied" on the procedural bar in denying Cruz's CPL § 440.10 motion. Second, a review of New York case law demonstrates that compliance was required, as New York State courts have held repeatedly that claims raised and determined on the merits on direct appeal, as well as claims that could have been raised on direct appeal but unjustifiably were not, may not subsequently be raised in a collateral proceeding under C.P.L. § 440.10. See, e.g., People v. Saunders, 301 A .D.2d 869, 870, 753 N.Y.S.2d 620 (App. Div. 3d Dept. 2003); People v. Marvin, 258 A.D.2d 964, 965, 685 N.Y.S.2d 499 (App. Div. 4th Dept. 1999); People v. Skinner, 154 A.D.2d 216, 220-21, 552 N.Y.S.2d 932 (App. Div. 1st Dept. 1990); People v. Cooks, 67 N.Y.2d 100, 103-04, 491 N.E.2d 676, 500 N.Y.S.2d 503 (N.Y. 1986). Finally, there is no indication that Cruz "substantially complied" with the procedural requirements of C.P.L. § 440.10(2)(a) or § 440.10(2)(c) as it cannot be argued--nor does Cruz argue--that these were claims that had not been raised on direct appeal or that sufficient facts do not appear on the record to have permitted the claims to be raised on direct appeal. Indeed, the three claims all relate to the prosecution's failure to recover the drugs allegedly sold and to introduce them as evidence at trial. Thus, the Court concludes that the C.P.L. § 440.10(2)(a) and 440.10(2)(c) constituted adequate and independent state grounds. See D'Alessandro v. Fischer, 2005 WL 3159674, at *19 (adequacy of C.P.L. § 440.10(2)(a)); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001) (adequacy of C.P.L. § 440.10(2)(c)).
Because of the default on direct appeal and on collateral review, federal habeas review of these claims is barred unless Cruz can show either "cause" for the default and resultant "prejudice," or make a demonstration of "actual innocence." See Dretke v. Haley, 541 U.S. 386, 393, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). Cruz has not attempted to make such a showing of cause and prejudice, and neither is apparent on the record before. Furthermore, Cruz makes no showing of "actual innocence" to warrant the narrow fundamental-miscarriage-of-justice exception to the cause requirement where a constitutional violation has "probably resulted" in the conviction of one who is "actually innocent" of the substantive offense. Id. (citing Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). Accordingly, these claims are barred from habeas review.
For the reasons stated above, Jose L. Cruz's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because Cruz has failed to make a substantial showing of a denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253.
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Connor is a big boy with a lot of love to give. Now he's been in and out of the shelter a few times so this time we're really looking for that perfect home. His first home was a family with small children. They said he was great, the children loved him and he loved the children. He had been allowed to go outside in his first home and never lost his love of the great outdoors. He preferred to spend his days out and about and his nights inside with the family. Unfortunately his family was moving and couldn't take him with. His second home also had children and he was again allowed to go outside. They said that he was being returned due to aggressive behavior but didn't specify as to what they meant by that. They had also marked that he was friendly, liked petting, and was affectionate. Perhaps he was a love biter and they took that as aggression. His third home, also his most recent home, kept Connor inside only. They did say that he was restless and a bit jealous of the little dogs that he lived with. He could be a bit competitive for attention but other than that they said he was a sweet, affectionate boy. We think he'd probably be best in an indoor/outdoor situation in a safe neighborhood or out in the country. He could also stand to lose a little weight. Being an indoor only kitty he put on a few extra pounds and we'd love to see him back down to a healthy weight
This site is manually updated about once a week, for a more up-to-date listing of available kitties, please visit our Adoptable Kitties Page
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