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United States District Court, S.D. New York
January 12, 2004.
JOSE TORRES, Petitioner, -v.- BRIAN FISCHER, Superintendent, Sing Sing Correctional Facility, Respondent
Jose Torres brings this petition for writ of habeas corpus pro
se pursuant to 28 U.S.C. § 2254. Following a jury trial in Bronx
County Supreme Court, Torres was convicted of one count of Burglary in
the Second Degree. He was sentenced as a second felony offender to ten
years in state prison. Torres is currently incarcerated pursuant to that
judgment in Sing Sing Correctional Facility in Ossining, New York. For
the reasons below, the petition should be denied.
A. Torres's Trial
On September 9, 1996, Carmen Madera came home from work to find her
bedroom in disarray and some jewelry, compact discs, and clothing missing
from her apartment. (Madera: Tr. 555, 557-64). Madera's three children
were in the apartment watching television but they had not noticed the
missing items. (Madera: Tr. 570-71). Madera called the police and Officer
Richard Rogich from the Latent Print Unit responded. (Madera: Tr. 564-65;
Rogich: Tr. 498,
Page 2
513-14). Upon investigation, Officer Rogich determined that someone
had picked the front door lock and entered the apartment. (Rogich: Tr.
514-15). Officer Rogich dusted for fingerprints and was able to lift
eight sets of prints from items in the apartment. (Rogich: Tr. 516-26).
He also took the fingerprints of Madera and her children so they could be
eliminated as perpetrators. (Rogich: Tr. 526-27).
Detective William Collins of the Latent Print Unit received the prints
taken by Officer Rogich the following day. (Collins: Tr. II. 3, 15).*fn1
First, he examined them using a magnifying glass and determined that five
of the prints were of no value, meaning they could not be identified
under any circumstances. (Collins: Tr. II. 15, 19-21). Detective Collins
entered the three remaining prints one-by-one into a computer system
called SAFIS (State Automated Fingerprint Identification System), which
produces a list of possible matches. (Collins: Tr. II. 22-24). Comparing
the latent prints lifted from Madera's apartment to the inked
fingerprints on file of the possible matches, Detective Collins
identified two of the fingerprints as belonging to Jose Torres.
(Collins: Tr. II. 24-26). The third latent print from the apartment did
not match any prints on file. Detective Collins also later compared the
latent prints from the crime scene to inked prints of Torres taken after
his arrest in this case. (Collins: Tr. II. 25-27; Lang: Tr. 487-94). One
print, lifted from the side of a jewelry box in Madera's bedroom, matched
Torres's left thumb and another, lifted from a different jewelry box also
in Madera's bedroom, matched Torres's left ring finger. (Collins: Tr.
II. 26-27; Rogich: Tr. 524-26).
Page 3
Madera testified that she did not know Torres or give him permission to
enter her home. (Madera: Tr. 568-69). Torres did not call any witnesses.
The jury found Torres guilty of Burglary in the Second Degree. (Tr.
635). Torres was sentenced to a determinate sentence often years to run
consecutively with a previously imposed sentence on another case.
(Sentencing Tr. 15-16).
B. Torres's Direct Appeal
On appeal to the Appellate Division, First Department, Torres raised
the following three issues:
1. Was appellant's conviction against the weight
of the evidence when he was only connected to the
burglary by a stray fingerprint that was never
conclusively tied to him or otherwise adequately
explained? (U.S. Const., amends. VI, XIV; N.Y.
Const., art. I, § 6).
2. Did the prosecutor violate Batson[v. Kentucky.
476 U.S. 79 (1986)], when she used 90% of her
peremptory challenges to strike nine of the 11 black
women from the jury panel? (U.S. Const., amend. XIV;
N.Y. Const., art. 1, § 11; C.P.L. § 270.25).
3. Was the sentence of 10 years' incarceration
consecutive to a previously imposed sentence of 7 !/2
to 15 years' incarceration excessive given defendant's
background and the nature of the offense?
On February 14, 2002, the Appellate Division unanimously affirmed
Torres's conviction. People v. Torres. 291 A.D.2d 267 (1st Dep't 2002).
In holding that "[t]he verdict was not against
Page 4
the weight of the evidence," the court stated that "[t]he fingerprint
expert sufficiently stated the facts underlying his opinion that two
latent fingerprints recovered from the burglarized premises matched those
of defendant." Id. at 267. The court declined to review Torres's Batson
claim because Torres's arguments that the race-neutral explanations
offered by the prosecutor were pretextual were "unpreserved." Id. The
court went on to state, "[w]ere we to review these claims, we would find
that the court properly found the explanations to be nonpretextual." Id.
As for his third claim, the court found no basis for reducing Torres's
sentence. Id.
By letters dated February 26, 2002 and March 4, 2002, Torres sought
leave to appeal from the New York Court of Appeals with respect to all of
the issues raised in his brief to the Appellate Division. See Opp. Aff.
¶ 8. On May 10, 2002, leave was denied. People v. Torres. 98 N.Y.2d 656
C. The Instant Habeas Petition
Torres timely filed this petition for writ of habeas corpus on May 12,
2003. He argues that his conviction was against the weight of the
evidence, that the evidence adduced at trial was legally insufficient to
support his conviction beyond a reasonable doubt, and that the
prosecutor's use of peremptory challenges violated Batson. See Petition
for Writ of Habeas Corpus, filed May 12, 2003 ("Petition"), at 5-6.
Torres has properly exhausted his state law remedies as he has fairly
presented the constitutional nature of these claims to each of the state
courts. See Dave v. Attorney Gen., 696 F.2d 186, 190-92 (2d Cir. 1982)
(en bane), cert. denied, 464 U.S. 1048 (1984).
Page 5
Under the Antiterrrorism and Effective Death Penalty Act of 1996
("AEDPA"), a petition for writ of habeas corpus may not be granted with
respect to any claim that has been "adjudicated on the merits" in the
state courts unless the state court's adjudication: "(1) resulted in a
decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d). The
Second Circuit has held that for a state court decision to constitute an
"adjudication on the merits," the state court need only base its decision
on "the substance of the claim advanced, rather than on a procedural, or
other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It
is not necessary for the state court to refer to any federal claim or to
any federal law for AEDPA's deferential standard to apply. Id. at 312.
In this case, although the state urged on appeal that Torres's
sufficiency claim was unpreserved for appellate review, see Respondent's
Brief, dated December 2001 (reproduced as Ex. 2 to Opp. Aff), at 8, the
Appellate Division declined to find a procedural bar, see Torres. 291
A.D.2d at 267. Accordingly, this claim was apparently denied "on the
merits." The only point of uncertainty is that the Appellate Division's
decision made reference only to the "weight of the evidence" claim
without making specific reference to the "sufficiency of the evidence"
argument that had been alluded to in Torres's brief. There can be no
doubt, however, that the Appellate Division denied this claim on
substantive rather than procedural grounds. First, the Appellate Division
made specific reference to the fingerprint expert as "sufficiently"
testifying regarding
Page 6
the match. Id; cf Norde v. Keane. 294 F.3d 401, 410 (2d Cir. 2002) ("an
issue raised maybe considered adjudicated `on the merits' for AEDPA
purposes even when the state court does not specifically mention the claim
but uses general language referable to the merits"). Second, the
Appellate Division's explanation that the conviction was not against the
"weight" of the evidence meant a fortiori that the sufficiency standard
had been met. See Torres v. Greene. F. Supp.2d , 2003 WL
22510366, at *3 n.4 (S.D.N.Y. Nov. 4, 2003). As the Second Circuit has
noted, where the state court does not set forth an explicit holding as to
the federal constitutional claim, a federal court must necessarily apply
the deferential 28 U.S.C. § 2254(d) standard to the state court's
"implicit holding." Tueros v. Greiner. 343 F.3d 587, 591 (2d Cir. 2003).
Because the Appellate Division's determination was "on the merits," the
deferential AEDPA standard of review applies.
In Williams v. Taylor. the Supreme Court held that a state court
decision is "contrary to" clearly established federal law only "if the
state court applies a rule that contradicts the governing law set forth"
in Supreme Court precedent or "if the state court confronts a set of
facts that are materially indistinguishable from a decision [of the
Supreme Court] and nevertheless arrives" at a different result.
529 U.S. 362, 405-06 (2000). The Williams Court also held that habeas
relief is only available under the "unreasonable application" clause "if
the state court identifies the correct governing legal principle from
[the Supreme Court's] decisions but unreasonably applies that principle
to the facts of the prisoner's case." Id. at 413. A federal court may not
grant relief "simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly." Id. at 411. Rather,
the state court's application must have been "objectively unreasonable."
Id. at 409.
Page 7
A. Weight and Sufficiency of the Evidence
1. Weight of the Evidence
Torres first claims that his conviction was against the weight of the
evidence because the only evidence against him was testimony that his
fingerprints had been found on jewelry boxes in the victim's bedroom.
See Petition at 5-5B; see also Memorandum of Law, filed May 12, 2003
("Pet. Mem."), at 8-15. He claims that the fingerprint expert laid no
foundation for this testimony. Petition at 5. He also argues that the
evidence against him was "legally insufficient" for the same reason. Id.
at 5 A.
Under 28 U.S.C. § 2254(a), federal habeas review is available for a
state prisoner "only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States." Errors of
state law are not subject to federal habeas review. See, e.g., Estelle
v. McGuire. 502 U.S. 62, 67-68 (1991). To be entitled to habeas relief a
petitioner must demonstrate that the conviction resulted from a state
court decision that violated federal law. See, e.g., id. at 68. Torres's
argument concerning the weight of the evidence is not cognizable on
federal habeas review because it does not present a federal
constitutional issue. See, e.g., Wilson v. Senkowski. 2003 WL 21031975,
at *8 (S.D.N.Y. May 7, 2003) (citing cases); Glisson v. Mantello.
287 F. Supp.2d 414, 425 (S.D.N.Y. 2003) (citing cases); Correa v.
Duncan, 172 F. Supp.2d 378, 381 (E.D.N.Y. 2001); Kearse v. Artuz. 2000 WL
1253205, at *1 (S.D.N.Y. Sept. 5, 2000); accord Young v. Kemp.
760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no
power to grant habeas corpus relief because it finds that the state
conviction is against the `weight' of the evidence . . . "), cert.
denied, 476 U.S. 1123 (1986).
Page 8
2. Sufficiency of the Evidence
Torres's claim that the evidence was insufficient to support his
conviction beyond a reasonable doubt, however, is a cognizable claim
under the Due Process Clause of the Fourteenth Amendment, which prohibits
a criminal conviction "except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime," In re Winship. 397 U.S. 358,
364 (1970). In light of Winship, the Supreme Court has held that when
reviewing a state court conviction, a federal habeas court must consider
whether there was "sufficient evidence to justify a rational trier of the
facts to find guilt beyond a reasonable doubt." Jackson. 443 U.S. at
Nonetheless, it is settled that a habeas petitioner challenging the
sufficiency of the evidence underlying his conviction bears a "very heavy
burden." Knapp v. Leonardo. 46 F.3d 170, 178 (2d Cir.) (internal
quotation marks and citation omitted), cert. denied. 515 U.S. 1136
(1995). To prevail, the petitioner must show that "upon the record
evidence adduced at the trial, no rational trier of fact could have found
proof of guilt beyond a reasonable doubt." Jackson. 443 U.S. at 324;
accord Ponnapula v. Spitzer. 297 F.3d 172, 179 (2d Cir. 2002). In
conducting this inquiry, all of the evidence and all possible inferences
that maybe drawn from the evidence are to be considered in the light most
favorable to the prosecution. Jackson. 443 U.S. at 319; accord Maldonado
v. Scully. 86 F.3d 32, 35 (2d Cir. 1996). Furthermore, "assessments of
the weight of the evidence or the credibility of witnesses are for the
jury" and thus a habeas court will "defer to the jury's assessments of
both of these issues." Maldonado. 86 F.3d at 35; accord Rosa v. Herbert.
277 F. Supp.2d 342, 347 (S.D.N.Y. 2003) ("the court must defer to the
jury's assessments of the weight of the evidence and the credibility of
witnesses"); Fagon v. Bara.
Page 9
717 F. Supp. 976, 979-80 (E.D.N.Y. 1989) ("this court is not free to
make credibility judgments about the testimony . . . or to weigh
conflicting testimony").
Under New York law, "[a] person is guilty of burglary in the second
degree when he knowingly enters or remains unlawfully in a building with
intent to commit a crime therein, and when . . .[t]he building is a
dwelling." N.Y. Penal Law § 140.25(2). Viewed in the light most
favorable to the prosecution, all of the elements of Burglary in the
Second Degree were sufficiently proven at trial. Carmen Madera's
testimony established that the apartment was a dwelling in which five
people resided. (Madera: Tr. 554-55). She testified to coming home and
finding her bedroom ransacked and personal property missing. (Madera:
Tr. 557-64). Officer Rogich described how he determined that the
apartment door had been tampered with and how he dusted the apartment for
fingerprints. (Rogich: Tr. 514-26). Detective Collins, who was certified
as an expert, testified as to the process by which the fingerprints
lifted from jewelry boxes in Madera's bedroom were matched with
fingerprints on file of Jose Torres as well as with the fingerprints
taken of Torres after his arrest in this case. (Collins: Tr. II. 14-28).
Carmen Madera testified that she did not know Jose Torres and had never
given him permission to enter or remain in her home. (Madera: Tr.
568-69). She also testified that she had cleaned the jewelry boxes with
Windex and a cloth two days before the robbery. (Madera: Tr. 561-62).
Torres's only contention is that the evidence against him was legally
insufficient because Detective Collins "provided no explanation for his
conclusion that the prints matched" and thus his "bald conclusion" "does
not deserve conclusive effect." Petition at 5-5A; see also Pet. Mem. at
9, 11, 13-14 (arguing that Detective Collins's testimony was insufficient
because he did not state the number of characteristics which matched, he
did not indicate how certain he was of his
Page 10
conclusion, and his conclusion was never independently verified).
In fact, Detective Collins did testify regarding the basis for his
conclusion that the prints matched. He testified that he first used a
magnifying glass to determine which prints, if any, were "of value."
(Collins: Tr. n. 19). He explained the definition of this term and that
three of the eight prints had value. (Collins: Tr. II. 19-22). He then
explained what the SAFIS computer system was, how the prints on file were
obtained, and that the system generated a list of possible matches.
(Collins: Tr. II. 22-24). Next,
Detective Collins testified that he compared each of the possible
matches to the prints recovered from the scene in this case. (Collins:
Tr. II. 24-25). Collins also later compared the prints from the scene
with a new set of Torres's fingerprints taken after his arrest. (Collins:
Tr. II. 25-27).
Detective Collins also explained at length the process by which prints
are compared. In particular, he detailed the various characteristics he
looks for in the prints and that the characteristics must appear in the
same relative position for prints to match. (Collins: Tr. II. 11-13).
Collins explained that there are five characteristics, or "points of
identity," that he looks for: (1) ending ridges, where a ridge of raised
skin simply ends; (2) bifurcations, where a single ridge divides or forks
into two ridges; (3) dots; (4) short ridges, where a ridge has two
visible ends; and (5) enclosures or islands, where a ridge branches into
two lines, forms a circular enclosure, and then closes again. (Collins:
Tr. II. 11-12).
Based on his examinations, Detective Collins concluded that one print,
lifted from the side of a jewelry box in Madera's bedroom, matched
Torres's left thumb and another, lifted from a different jewelry box,
matched Torres's left ring finger. (Collins: Tr. II. 26-27; Rogich: Tr.
524-26). He testified that he reached this conclusion by looking at "the
ending ridges, dots, island enclosures, bifurcations, forking ridges that
are contained in both [sets of prints] and
Page 11
seeing if they're in the same relative position to one another in
both." (Collins: Tr. II. 26). Contrary to Torres's contention, there is
no requirement that a fingerprint expert specify a particular number of
matching characteristics or "how certain he was of the match," Pet. Mem.
at 14. Detective Collins's testimony was subject to cross-examination and
rebuttal by Torres and the jury was free to accept or reject his
testimony that the fingerprints matched. It cannot be said that "no
rational trier of fact could have found proof of [the fingerprint match]
beyond a reasonable doubt," Jackson. 443 U.S. at 324.
In cases where fingerprints found at the scene of the crime are the
only evidence of a defendant's guilt, courts in other circuits have held
that a reasonable juror may find guilt beyond a reasonable doubt as long
as "the evidence indicates that the imprinted object was generally
inaccessible to the defendant except during the commission of the crime."
Gibson v. Collins. 947 F.2d 780, 785 (5th Cir. 1991). cert. denied.
506 U.S. 833 (1992); accord Mikes v. Borg, 947 F.2d 353, 361 (9th Cir.
1991), cert. denied. 505 U.S. 1229 (1992); United States v. Bush.
749 F.2d 1227, 1229-30 (7th Cir. 1984). cert. denied, 470 U.S. 1058
(1985); Borum v. United States. 380 F.2d 595 (D.C. Cir. 1967). In Borum,
the defendant's fingerprints were found on jars in the victim's home that
had contained valuable coins. 380 F.2d at 596. The court overturned the
conviction because there was no evidence that the defendant touched the
jars during the course of a robbery. Id. One of the government's
witnesses testified that the prints could have been on the jars
"indefinitely" and there was no evidence as to when the victim had
acquired the jars or whether he had ever removed them from his home. Id.
at 596-97. Gibson, by contrast, upheld a conviction where the
petitioner's fingerprints were found on two silver trays that were moved
Page 12
during the course of a burglary and the homeowner testified that
petitioner had never been permitted inside the home. 947 F.2d at 780-81,
In this case, Torres's fingerprints were found on the very objects from
which Madera's jewelry was stolen and she testified that Torres had never
been permitted in her home and that she had cleaned the jewelry boxes
just two days prior to the robbery. The circumstances surrounding the
discovery of Torres's fingerprints are sufficient to support a reasonable
juror's finding of guilt beyond a reasonable doubt.
B. Batson Violation
1. Background
Torres's second claim for habeas relief is that the prosecutor's use of
peremptory challenges to strike "female African-American[s]" from the jury
violated Batson v. Kentucky, 476 U.S. 79 (1986). See Petition at 6-6B;
see also Pet. Mem. at 16-22. Under Batson, there is a three-step process
for determining whether peremptory challenges have been exercised
First, the defendant must make a prima facie showing
that the prosecutor has exercised peremptory
challenges on the basis of race. Second, if the
requisite showing has been made, the burden shifts to
the prosecutor to articulate a race-neutral
explanation for striking the jurors in question.
Finally, the trial court must determine whether the
defendant has carried his burden of proving purposeful
Following this recitation, the prosecutor offered the court and defense
counsel her notes on the jurors, which the court declined. (Tr. 387-88).
Defense counsel then stated, "Your Honor, I just have one brief comment."
The court replied, "You can make any comment you'd like." Defense counsel
then addressed whether one of the jurors at issue was in fact black but
made no challenge whatsoever to the reasons given by the prosecutor for
her challenges. (Tr. 388-89). Following some colloquy on the race of the
juror, the court asked, "[A]nything further[?]" Defense counsel
responded, "No, Your Honor."
The trial court then ruled that there was "no basis on which to
question the grounds set forth by the People," (Tr. 391), and held that"
[t]here's no reason based upon my review of my notes to find that any of
the stated reasons are [pretextual] that is made in any way to [conceal]
a race or gender based ground for challenge so I'm denying the Batson
challenge," (Tr. 391-92). Defense counsel did not make any further
objections and, after two alternate jurors were agreed upon, indicated
that the jurors seated were satisfactory. (Tr. 393) ("Court: Are the
jurors satisfactory to the People[?] People: Yes, Your Honor, they are.
Court: To defense[?] Defense: Yes, Your Honor."). The jury was then sworn
in. (Tr. 393).
On appeal, Torres argued that the race-neutral explanations the
prosecutor offered for the strikes during step two of the Batson colloquy
were pretextual. See Pet. App. Div. Brief at 19-26. The Appellate
Division, however, held that these arguments were unpreserved for
appellate review, Torres. 291 A.D.2d at 267, relying on the New York Court
of Appeals decision in People
Page 14
v. Alien. 86 N.Y.2d 101 (1995). Alien held that if trial counsel has
reason to believe that the race-neutral reasons offered by the proponent
of a peremptory strike are pretextual for example, because the
articulated neutral factors have been applied unevenly "we
require that those concerns be fully articulated to the trial court
during its factual inquiry." Id. at 110-11. Thus, the state procedural
rule relied upon in this case requires a party making a Batson challenge
to fully articulate any reason the party believes the race-neutral
reasons given by their opponent are pretextual. Because defense counsel
did not articulate any arguments regarding pretext to the trial court,
the threshold question is whether these claims can now be reviewed.
2. Law Governing Procedural Default
Federal habeas review of a claim is prohibited if a state court rests
its judgment "`on a state law ground that is independent of the federal
question and adequate to support the judgment.'" Lambrix v. Singletary,
520 U.S. 518, 522-23 (1997) (quoting Coleman v. Thompson. 501 U.S. 722,
729 (1991)). Where a state court rejects a petitioner's claim because the
petitioner failed to comply with a state procedural rule, the procedural
default constitutes an adequate and independent ground for the state
court decision. See, e.g., Coleman. 501 U.S. at 729-30, 749-50. A
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 (1989) (citations omitted): accord
Coleman, 501 U.S. at 749-50; Fama v. Comm'r of Corr. Servs., 235 F.3d 804,
809 (2d Cir. 2000); Bossett v. Walker. 41 F.3d 825, 829 (2d Cir. 1994),
cert. denied, 514 U.S. 1054 (1995); see also Harris. 489 U.S. at 264 n.10
("[A]s long as the state court explicitly invokes a state procedural bar
rule as a
Page 15
separate basis for decision," the adequate and independent state ground
doctrine "curtails reconsideration of the federal issue on federal
habeas."). To show a "fundamental miscarriage of justice," a petitioner
must make a demonstration of "actual innocence." See, e.g., Calderon v.
Thompson. 523 U.S. 538, 558-59 (1998): accord Dunham v. Travis,
313 F.3d 724, 730 (2d Cir. 2002).
a. The "Independent" Requirement
As noted, a procedural bar applies only where it constitutes both an
"independent" and "adequate" state law ground. With respect to the
"independent" requirement, there can be no question that the state
court's unambiguous and explicit invocation of Allen was "independent"
inasmuch as the court "clearly and expressly" stated that its decision
rested on a state procedural bar and not on any rule of federal law.
Harris. 489 U.S. at 263; accord Harris v. Artuz. 2001 WL 435636, at *5
(S.D.N.Y. Apr. 30, 2001) (reliance on Allen represents an "independent"
state ground). In addition, it makes no difference that the Appellate
Division's ruling in Torres's case also stated that "[w]ere we to review
these claims, we would find that the court properly found the
explanations to be nonpretextual," Torres. 291 A.D.2d at 267. The
doctrine of procedural default applies even where the state court issues
an alternative holding addressing the procedurally defaulted claim on the
merits. See, e.g., Harris. 489 U.S. at 264 n.10; Velasquez v. Leonardo.
898 F.2d 7, 9 (2d Cir. 1990) (per curiam). Thus, the Appellate Division's
reliance on the procedural default constitutes an "independent" state
ground for the decision.
b. The "Adequate" Requirement
To be an "adequate" state ground, the procedural rule relied on by the
state court must be "`firmly established and regularly followed' by the
state in question." Garcia v. Lewis.
Page 16
188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia 498 U.S. 411,
423-24 (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)). The Second
Circuit has set forth the following "guideposts" for making this
(1) whether the alleged procedural violation was
actually relied on in the trial court, and whether
perfect compliance with the state rule would have
changed the trial court's decision; (2) whether state
caselaw indicated that compliance with the rule was
demanded in the specific circumstances presented; and
(3) whether petitioner had "substantially complied"
with the rule given "the realities of trial," and,
therefore, whether demanding perfect compliance with
the rule would serve a legitimate governmental
With respect to the first Cotto "guidepost," Torres's failure to
explain why the prosecutor's reasons were pretextual was "actually
relied" on by the trial court in the sense that the trial court was not
given the opportunity to consider any arguments from Torres that the
prosecutor's reasons were in fact pretextual. Instead, the trial court was
presented only with the prosecutor's explanations of why she had exercised
her peremptory challenges against particular jurors. Torres now makes
much of the fact that the trial court went on to explicitly rule against
him on the issue of pretext, thus suggesting that any compliance with the
preservation requirement on his part was unnecessary. See Pet. Mem. at
20-21 (citing N.Y. Crim. Proc. Law ("CPL") § 470.05(2) for the
proposition that an issue is preserved for appeal if the trial court
"expressly decided the question"). But while it cannot be said
unequivocally that compliance
Page 17
with the state rule "would have changed the trial court's decision," it
was certainly reasonable for the trial court to have expected that were
there any defects in the prosecutor's explanations, defense counsel would
have brought those defects to its attention. Cf. Cotto. 331 F.3d at 243
(while "the likely impact of a timely objection involves a certain degree
of speculation," it is possible that "the trial court may well have come
to a different conclusion" had an objection been raised).
Turning to the second inquiry, New York courts have consistently
applied the rule that a party must register "a protest" to any legal
ruling "at the time of such ruling . . . or at any subsequent time when
the court had an opportunity of effectively changing the same," CPL
§ 470.05(2). As Torres recognizes, see Pet. Mem. at 21, the holding
in Alien is merely an application of this rule. As of the time of
Torres's trial, numerous courts in New York had specifically barred
review of claims where a defendant had failed to challenge as pretextual
the race-neutral reasons offered by the prosecution for its peremptory
strikes relying either on CPL § 470.05(2), case law
(including Allen), or both. See, e.g., People v. Wall. 248 A.D.2d 650,
650 (2d Dep't 1998); People v. Guzman. 227 A.D.2d 642, 643 (2d Dep't
1996); People v. Ward. 227 A.D.2d 508, 509 (2d Dep't 1996); People v.
McCargo. 226 A.D.2d 480, 481 (2d Dep't 1996); People v. Garcia,
202 A.D.2d 189, 190 (1st Dep't 1994); People v. Manigo, 165 A.D.2d 660,
661-62 (1st Dep't 1990). Thus, New York law is clear that "compliance
with the rule was demanded in the specific circumstances presented,"
Cotto, 331 F.3d at 240.
As for the final factor delineated in Cotto, the record indicates that
Torres did not "substantially comply" with the procedural rule. Indeed,
he did not comply in any form as there is no statement anywhere in the
record that defense counsel contended that the race-neutral
Page 18
explanations offered by the prosecutor were pretextual. Moreover,
demanding perfect compliance with the procedural rule in this case serves
the legitimate governmental interest of ensuring that a trial judge is
alerted to potential errors when they still may be avoided or addressed.
In sum, a review of the Cotto guideposts makes clear that the
procedural rule relied upon by the state court is "firmly established and
regularly followed," such that it is "adequate" to preclude federal
review of Torres's Batson claim. See Cotto. 331 F.3d at 240; see also
Garcia, 188 F.3d at 79-82 (finding that CPL § 470.05 constitutes an
"adequate" state ground precluding habeas review).
Torres makes no claim of any circumstances that would constitute
"cause" for the procedural default. See Harris. 489 U.S. at 262. He has
also failed to put forward any evidence of "actual innocence," which
could demonstrate a "fundamental miscarriage of justice" sufficient to
excuse the procedural default. See Calderon. 523 U.S. at 558-59. Thus,
the procedural default constitutes an adequate and independent ground for
the state court decision in this case and federal habeas review of
Torres's Batson claim is precluded.
For the foregoing reasons, Torres's petition should be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from service of
this Report and Recommendation to file any objections. See also
Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to
Page 19
shall be filed with the Clerk of the Court, with copies sent to the
Honorable Deborah A. Batts, 500 Pearl Street, New York, New York 10007,
and to the undersigned at 40 Centre Street, New York, New York 10007. Any
request for an extension of time to file objections must be directed to
Judge Batts. If a party fails to file timely objections, that party will
not be permitted to raise any objections to this Report and
Recommendation on appeal. See Thomas v. Am. 474 U.S. 140 (1985).
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New Jersey Superior Court, Appellate Division
Decided: April 26, 1978.
PLUMBERS AND STEAMFITTERS LOCAL NO. 270, CARPENTERS LOCAL NO. 65 AND PAINTERS LOCAL NO. 144, PETITIONER-RESPONDENT,v.WOODBRIDGE BOARD OF EDUCATION, RESPONDENT-APPELLANT
On appeal from Decision and Order of Public Employment Relations Commission.
Michels, Pressler and Bilder. The opinion of the court was delivered by Bilder, J.s.c. (temporarily assigned).
[159 NJSuper Page 85]
This is an appeal by the Woodbridge Board of Education (board) from a determination by the Public Employment Relations Commission (PERC) in a scope-of-negotiations proceeding, holding tenure of maintenance men to be a mandatory subject of negotiations.
Beginning with the 1970-71 school year the collective bargaining agreement between the board and respondent Plumbers and Steamfitters Local No. 270, Carpenters Local No. 65 and Painters Local No. 144 (hereinafter union) (governing plumbers, painters and carpenters, hereafter "tradesmen") has included a provision granting tenure after three years. During the negotiations for the 1976-77 school year contract the board refused to include a tenure clause in the terms or to negotiate such a clause. The board contended that tenure could only be granted in accordance with the education laws and since those laws made no provision for this class of employee, such a provision would be ultra vires and illegal.
The parties compromised their differences by agreements which essentially left the question open. They provided in the contract for tenure "according to law to those employees entitled to it statutorily after three years of continuous satisfactory employment" and executed a separate ["side-bar"] agreement expressly reserving rights with regard to claims of entitlement to tenure.
This appeal arises from a petition for scope-of-negotiations determination filed by the union with PERC. Following consideration on briefs (with uncontradicted facts), PERC found tenure to be a mandatory subject of negotiations and ordered the board to negotiate in good faith regarding tenure for this group of employees.
Defendant board contends that PERC exceeded the boundaries of the submission by considering the right to negotiate a tenure not provided for in the Education Act; that the issue submitted to PERC was the negotiability of "tenure"
[159 NJSuper Page 86]
as it is known in Title 18A. It is not disputed that PERC interpreted "tenure" as set forth in the petition as referring to "job security".*fn1 The board further contends on this appeal that even if PERC's decision was within the submission, its conclusion was error because the board is without power to grant tenure; that tenure can only be given by the legislature.
Upon review the court is bound to uphold the action of the Commission unless it is arbitrary or capricious. State v. Prof. Assoc. of N.J., Dept. of Ed. , 64 N.J. 231, 258-259 (1974). Due deference should be accorded to the agency expertise. Ibid.
This controversy finds its basis in a semantic argument as to the meaning of "tenure." The definitional dispute underlies not only the substantive issue of negotiability but also the procedural question as to whether PERC dealt with the issue presented by the petition. The board takes the position that "tenure" means tenure under the provisions of our Education Act (N.J.S.A. 18A-1 et seq.); that the issue presented is whether the parties can negotiate to extend the tenure provisions of Title 18 to include maintenance men. Respondent union contends that "tenure" means tenure without legislative mandate and as generally understood -- i.e. , a right to continued employment during good behavior; that the issue presented is whether the legislative grants of tenure in Title 18A to particular categories of employees makes it illegal for board of education employees not covered by those provisions to negotiate continued employment protection for themselves.
We agree with respondent as to the scope of the submission. The question as set forth by the board presents a non issue. All the parties agree that the members of respondent union are not covered by any of the tenure
[159 NJSuper Page 87]
provisions of the Education Act.*fn2 And it is undisputed that expansion or modification of the statutory provisions is beyond their power or that of PERC. See N.J. Const. (1947), Art. IV, § I, par. 1 and Art. III, § 1. The issue in dispute between the parties and the issue before PERC was the right of these employees, barren of statutory tenure protection, to negotiate job security for themselves.
And we agree with respondents that board of education employees who are not within the categories covered by statutory tenure provisions may negotiate job security.
The application of the constructional principles of expressio unius est exclusio alterius to the tenure sections of the Education Act would be a non sequitur. To attribute legislative intent to the absence of statutory job security for this category of employee would be to blind oneself to the realities of the legislative process -- to the history of the growth of the existing tenure provisions. The existing protections are the result of successful appeals by the covered groups for the passage of protective laws. Their ad hoc nature is implicit in the diversity of sections in which they are found.*fn3 Each legislative grant has been sui generis. The failure to provide a specific tenure should not be interpreted as a legislative prohibition. See Maywood Education Assn., Inc. v. Maywood Bd. of Ed. , 131 N.J. Super. 551, 554-555 (Ch. Div. 1974); Camden v. Dicks , 135 N.J. Super. 559, 562-563 (Law Div. 1975).
The right of public employees to negotiate the terms and conditions of their employment is now an accepted public
[159 NJSuper Page 88]
policy. N.J.S.A. 34:13A-5.3. The right of employees to bargain for extra-statutory rights has received judicial recognition. South Orange-Maplewood Ed. Ass'n v. South Orange Bd. of Ed. , 146 N.J. Super. 457 (App. Div. 1977) (sabbatical leaves); Maywood Ed. Ass'n, Inc. v. Maywood Bd. of Ed., supra (lump sum retirement payment for unused sick leave); Camden v. Dicks, supra (same); see Donaldson v. North Wildwood Bd. of Ed. , 65 N.J. 236, 248 (1974) (obligation to furnish reasons for termination of nontenured teacher).
We agree with PERC's conclusion that job security and protection from unfair or unwarranted dismissal must rank high among an employee's rights. And we agree with its conclusion that board of education employees whose tenure is not provided for by the Legislature may negotiate job security.
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Saturday, 22 September 2012
Small canvas with a lot of techniques
This project was spotlighted on Anything but a card challenge
My new Mixed Media piece: a very small canvas with a lot of stamping, mediums and details.
This 4*4'' canvas and I used distress stains, Gelatos, Pitt pen (all gold), mask, molding paste, gesso, alcohol inks over metals to change this silver color of them, glitter and a lot of stamps. The Lady face is from Graphic 45 vintage set, also one of clocks and some more stamps are from 7 Gypsies set. Stickers and metals are TH and flowers? They were Prima before I made them mine! In between a few washi tapes were added for the interest and a texture and it's again about Life being beautiful.
I enter this to Symon Says stamp and show " use tapes" challenge
And to Docerela Anything goes challenge
I also enter this to Card and Scrap Use flowers challenge
I enter this to Anything goes for Anything but a Card challenge
10 comments:
- Dan said...
Great canvas, I love all the rich detail you've included - so much to reward the repeat viewer! Thanks so much for joining us for this week's Simon Says Stamp and Show Challenge!
- 22 September 2012 at 01:40
- Candy C said...
Great canvas! I love your background! It's amazing!! Love the colors, the textures and the patterns of all of the stamped and stenciled images. Love the wing and the bits of Ideaology metal you've added. The flowers also give nice dimension! Thank so much for sharing your art with us at Simon Says Stamp and Show. <3 Candy
- 22 September 2012 at 15:40
- abusybee - DoubleClick Connections said...
Gorgeous! Love all your amazing details and colors on this! Thanks for joining us at Docerela Creations! DT Member Carri ~abusybee
- 23 September 2012 at 05:10
- Anne Bente said...
waww hvor er den bare flot♥
10000 tak for at du deltager på Card and scraps udfordring.
- 23 September 2012 at 09:16
- butterfly said...
Wow, this is simply glorious - such texture and colour and so many amazing techniques... beautiful!
Alison x
- 23 September 2012 at 19:21
- Hjørdis said...
Lækker collage eller mixed medie !
1000 tak for din deltagelse i udfordringen på Card and scrap og lykke til !
Knus :0)
- 23 September 2012 at 21:06
- Docerela said...
Great canvas. Super fun mixes media. I actually used that same TH key hole for my wedding bouquet.
Thank you for joining us at Docerela Creations.
Catarina aka docerela
- 25 September 2012 at 04:37
- Carole said...
Great canvas so interesting and detailed great design. http://carolescreativecritters.blogspot.com/2012/09/anything-but-card.html
- 25 September 2012 at 13:49
- Sammi said...
What a great canvas!!
Thanks for playing along with us at Anything but a card.com :)
- 27 September 2012 at 10:14
- Maura said...
Way a cool canvas. Anything steam punk catches my eye! Congratulations over at SSS!
- 1 October 2012 at 00:25
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text:
Job Ref: 26023
Talent Area: RN - Oncology/BMT
Houston Methodist Hospital
Houston, TX 77030
Area/Department: Cancer Center Infusion
Employment Type: Regular
Job Type: Full-Time
Organization: Houston Methodist
Work Shift: DAY
Work Week: VARIES
Since its founding in 1919, Houston Methodist Hospital has earned worldwide recognition. Houston Methodist Hospital is affiliated with the Weill Medical College of Cornell University and New York-Presbyterian Hospital, one of the nation's leading centers for medical education and research. Houston Methodist is consistently ranked in U.S. News & World Report's "Best Hospital" list and was recently named the number one hospital in Texas. FORTUNE magazine has placed Houston Methodist on its annual list of "100 Best Companies To Work For" since 2006. Houston Methodist Hospital directs millions of research dollars into patient care and offers the latest innovations in medical, surgical and diagnostic techniques. With 1,119 licensed beds, 67 operating rooms and over 6,000 employees, Houston Methodist offers complete care for patients from around the world.
10. Demonstrates the components of the ICARE values statement.
11. Demonstrates SERVICE PRIDE standards.
12. Follows all safety rules while on the job. Reports accidents promptly and corrects minor hazards.
13. Performs other duties as assigned.
Graduation from an accredited School of Nursing
Bachelor's or Master's degree in Nursing required at HMH, preferred at other HM system hospitals
15 CEU's annually
At least 18 months' experience required
Registered nurse with current Texas license
BLS, certification must be approved by the American Heart Association
Other certifications as required by unit/service
Must be able to perform skills and competencies as defined in orientation checklist and annual departmental competency checklist if applicable.
Basic computer skills
Must be able to write and speak effectively in English
Competencies, skills, training as listed in Policy NU-903, "Competence of Nursing Staff" and HR 07 "Competency Assessment"
Houston Methodist is an Equal Opportunity Employer.
Equal employment opportunity is a sound and just concept to which Houston Methodist is firmly bound. Houston Methodist will not engage in discrimination against or harassment of any person employed or seeking employment with Houston Methodist on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, age, disability, status as a protected veteran or other characteristics protected by law.
VEVRAA Federal Contractor – priority referral Protected Veterans requested.
Houston Methodist
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January 28, 1963
NATIONAL LABOR RELATIONS BOARD, PETITIONERv.LOCAL 182, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, RESPONDENT.
Before LUMBARD, Chief Judge, SWAN and FRIENDLY, Circuit Judges.
FRIENDLY, C.J.: The National Labor Relations Board seeks enforcement of an order, 135 NLRB No. 90, finding that Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereafter the Union or the respondent, violated § 8(b)(7)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(7)(B), added by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, which prohibits "recognitional" or "organizational" picketing within twelve months after a valid election.*fn1 The order, entered February 5, 1962, required the Union to cease and desist from such picketing (a) "for a period of one year from March 1, 1961", and (b) "where within the preceding twelve months a valid election under 9(c) of the Act has been conducted which the Respondent did not win." We grant enforcement.
Woodward Motors, Inc. (hereafter Woodward, the Company or the employer) is engaged, in upstate New York, in the sale and servicing of automobiles procured from outside the state. On August 1, 1960, the Union informed Woodward that it represented a majority of the Company's employees and requested negotiations. After polling its 15 employees, Woodward, on August 8, recognized the Union as representative of the employees in a specified unit, agreed to enter into negotiations and to establish union shop conditions in the meantime, and further agreed to submit to arbitration the discharge of one Gorecki on August 2. Some seven bargaining sessions were held, without result. On September 21, Woodward received a petition signed by eight of the employees stating that they did "not want to become associated with the Local Teamsters Union" but did "want to form our independent shop union." At the next scheduled bargaining session, Woodward informed the Union that, in the light of the petition, it could not continue to negotiate. On October 5 the Union filed charges alleging violation by the Company of § 8(a)(1), (2), (3) and (5) - because of a refusal to bargain, the discriminatory discharge of Gorecki, and unlawful assistance to the "independent" union. Woodward countered on October 7 with a petition for an election.
Beginning on October 10, 1960, representatives of the Union appeared at the entrance to the Company's property, carrying signs:
The Company, on October 28, filed charges that this picketing violated § 8(b)(7)(C) in that is was for recognitional and organizational purposes and was being conducted when a petition for an election had not been filed within a reasonable period after its commencement. On November 3 the Regional Director accepted a settlement of the Union's § 8(a)(1) and (3) charges with respect to the discriminatory discharge of Gorecki; he later notified the Union he was dismissing its other charges under § 8(a)(2) and (5). The Union appealed to the General Counsel from the dismissal of these charges; this was denied on December 23. Next, on January 6, 1961, the Regional Director dismissed the Company's § 8(b)(7)(C) charge against the Union on the ground that a timely petition for election had been filed, to wit, the Company's own petition of October 7, "and a determination has been made that an expedited election should be conducted upon such petition in accordance with the provisions of sections 8(b)(7)(C) and 9(c)."
Picketing stopped on January 16, 1961. At the election, on January 17, no labor organization achieved a majority of the valid ballots. About January 30 representatives of the Union reappeared near Woodward's premises and stationed themselves in autos parked on the shoulder of the adjacent highway, having previously planted two signs in a snowbank abutting the entrance. The first read:
The second read:
The Union business representative testified that if people inquired of the sign watchers what this Janus-like display was supposed to mean, the watchers "would tell them we had a signed Union agreement with this Company and there are certain things that happened, we had lost the people, some were discharged for unjust cause, some were laid off. There was, in other words, a motive to break the Union I would tell these people." He conceded that if the Union had had a contract with Woodward at the time, "there would be no reason to to place a sign out." Mr. Woodward testified that if a truck came along, the Union representatives "would run out, stop it, speak to the driver after which action the driver would always drive away", and that, in general, deliveries were thus interrupted. The Union continued this activity until March 1, 1961, when Judge Brennan granted a temporary injunction under § 10(1). Finding a violation of § 8(b)(7)(B) by the Union, the Board entered the order described above, which it asks us to enforce.
The Union challenges the order on five grounds. It (1) denies that there was picketing after the election, (2) says that if there was, this did not have the object defined in the introductory clause of § 8(b)(7), (3) claims that any picketing was within the second proviso to § 8(b)(7)(C), which, it asserts, applies also to § 8(b)(7)(B), (4) contends that the election was not "a valid election", and (5) urges finally that the order by its terms is "academic, useless, and illegal".
The Union's first objection, that the postelection activity was not "picketing", is without merit. Webster's New International Dictionary (2d ed.) says that the verb "picket" in the labor sense means "to walk or stand in front of a place of employment as a picket" and that the noun means "a person posted by a labor organization at an approach to the place of work. * * *" Movement is thus not requisite, although here there was some. The activity was none the less picketing because the Union chose to bisect it, placing the material elements in snowbanks but protecting the human elements from the rigors of an upstate New York winter by giving them the comfort of heated cars until a delivery truck approached; this was still "more than speech and establishes a locus in quo that has far more potential for inducing action or non-action than the message the pickets convey", Building Service Employees' Int'l Union v. Gazzam, 339 U.S. 532, 537 (1950). At the very least, the Board did not act unreasonably in construing "picket", a statutory term relating to a subject within its area of special competence, to include what the Union did here. NLRB v. Hearst Publications, Inc ., 322 U.S. 111, 130-31 (1944); Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947). See also, Comment, Picketing by an Uncertified Union: The New Section 8(b)(7), 69 Yale L.J. 1393, 1395-98 (1960).
There is little more in the Union's second claim, that the post-election picketing did not have as "an object thereof * * * forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative." The Union does not dispute that stopping deliveries would amount to "forcing or requiring" if the other conditions are met; but denies that they were. Professor Cox, who writes with peculiar authority on this subject, says, with respect to the phrases here at issue, "The very few men close to the drafting of the Conference Report who understood this problem had no common intention - perhaps 'had conflicting intentions' would be a better phrase"; he suggests that "The best solution would be to treat the union's objective as a question of fact." 44 Minn. L. Rev. at 266-67. So treating it, we cannot find unreasonable the Board's conclusion that the Union's protest "was directed to the Employer's withdrawal of recognition and discontinuance of bargaining negotiations" and that "Satisfaction of such protest required a renewal of recognition and resumption of negotiations." The Board was not bound to accept at face value the disclaimer on the sign first described; it was entitled to consider the totality of the Union's conduct. See Penello v. Retail Store Employees Local Union No. 692, 188 F. Supp. 192, 201 (D. Md. 1960), aff'd, 287 F.2d 509 (4 Cir. 1961). It is true that even the second sign did not contain specific reference to the picketing union, as did the signs in the Penello case, in Kennedy v. Los Angeles Joint Executive Board of Hotel & Restaurant Employees, 192 F. Supp. 339 (S. D. Calif. 1961), and in NLRB v. Local 239, IBT, 289 F.2d 41 (2 Cir.), cert. denied, 368 U.S. 833 (1961), but stated only that Woodward's employees "are not protected by a union contract." We assume in the Union's favor, without deciding, that in proscribing picketing whose object is to force or require the employer's recognition of "a labor organization" or the employees' selection of "such labor organization", the statute refers only to the particular labor organization which is doing the picketing, so that § 8 (b)(7) would not apply if the object of the picketing was merely to get some union into the shop - as, for example, if it were shown here that the Teamsters would have withdrawn their pickets if the Company made a suitable contract with the independent union. No such showing was made, and the Board was warranted - particularly in the light of the timing of the picketing and of the business representative's testimony quoted above - in concluding that recognition or organization of Local 182 as bargaining representative of Woodward's employees was at least "an object"*fn2 of the post-election picketing.*fn3
Little need be said as to the Union's third objection, namely, that picketing of the sort described in the introductory clause may be conducted, as provided in § 8(b)(7)(C), "for the purpose of truthfully advising the public (including consumers) that an employer does not * * * have a contract with * * * a labor organization", even "where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted", § 8(b)(7)(B). The language and structure of § 8(b)(7), its legislative history, its manifest purpose, its administrative construction, and such judicial decisions as have been rendered, unite to negate this. See 105 Cong. Rec. App. A7915 (Representative Griffin), App. A8524 (Senator Goldwater), 6656, 17900 (Senator Kennedy), 15540 (Representatives Thompson and Udall), 17883-884 (Senator Morse); Cox, The Landrum-Griffin Amendments to the National Labor Relations Act, 44 Minn. L. Rev. 257, 260, 265-70 (1959); International Hod Carriers, Local 840, Supplemental Decision and Order, 135 NLRB No. 121, sheet 8 (1962); Cavers v. Teamsters "General" Local No. 200, 188 F. Supp. 184, 190-92 (E. D. Wis. 1960); Penello v. Retail Store Employees Local Union No. 692, supra, 188 F. Supp. at 192; Kennedy v. Los Angeles Joint Executive Board of Hotel & Restaurant Employees, 192 F. Supp. 339, 342 and fn. 2 (S. D. Calif. 1961); Graham v. Retail Clerks Int'l Ass'n, Local No. 57, 188 F. Supp. 847 (D. Mont. 1960). Congress intended, in Senator Kennedy's words, "to provide that for a certain period of time following a legitimate election, there could not be picketing," of the sort described in the introductory clause. It is thus unnecessary to consider whether the Board was warranted in finding, as it did, that the post-election picketing had the effect of inducing the stoppage of deliveries and services and hence did not meet the standards of the second proviso.
This brings us to the fourth objection, that the election was not a "valid" one, primarily because, as the Union contends, the employer was guilty of unfair labor practices that had not been remedied. It has long been "customary Board policy not to proceed with a representation case while charges are pending against a company or the effects of prior unfair labor practices remain undissipated; employees cannot exercise true freedom of choice in the face of interference or coercion." Cox, Labor Law: Cases and Materials (1958), 341.*fn4 Although § 8(b)(7) imposes no express conditions in this regard, the Board considers that "it strains credulity to believe that Congress proposed to make the rights of unions and employees turn upon the results of an election which, because of the existence of unremedied unfair labor practices, is unlikely to reflect the true wishes of the employees", International Hod Carriers, Local 840, Supplemental Decision and Order, 135 NLRB No. 121, sheet 15 (1962). In view of the sense of the situation and Congressional acquiescence in the Board's long standing practice, cf. NLRB v. Gullett Gin Co ., 340 U.S. 361, 365-66 (1951), this seems a sound view,*fn5 at least if limited to practices of a sort that would be likely to prevent a fair election, which evidently is what the Board meant. The Trial Examiner, whose Intermediate Report was approved by the Board, overruled the Union's claim on the basis that here the General Counsel had dismissed the unfair labor practice charges against the employer under § 8(a)(2) and (5), and that the Examiner did "not believe it incumbent upon the trier of the facts in one case to reexamine an administrative determination reached in another case." Although we appreciate the difficulties, arising from the internal bifurcation of the Board, which have led to a similar holding in another context, see Times Square Stores Corp ., 79 NLRB 361 (1948), 2 Davis, Administrative Law Treatise (1958), § 13.05 fn. 24 and 31, we are not sure the issue can always be settled in such summary fashion. Section 8(b)(7)(B) applies only to picketing for the forbidden object within the twelve months after "a vailid election". The Board's brief concedes, properly we think, that in an unfair labor practice proceeding under § 8(b)(7)(B), "all questions relating to the validity of the election, including the propriety of directing it, are open to Board and judicial review", citing Department & Specialty Stores Employees' Union, Local 1265 (Kinney Co .), 136 NLRB No. 29 (1962), and Department & Specialty Stores Employees' Union, Local 1265 v. Brown, 284 F.2d 619 (9 Cir. 1960), cert. denied, 366 U.S. 934 (1961). As the Board indicated in the Hod Carriers opinion, we cannot suppose that Congress was concerned only with validity in the formal sense, cf. Brown v. Bullock, 294 F.2d 415, 420-21 (2 Cir. 1961); an election in which a union has in fact been strong-armed by tactics violating § 8(a) would hardly be "valid" under § 8 (b)(7)(B) - even in the unlikely event that the General Counsel had refused to issue a complaint and although the Board could not make him issue one, and his refusal would not be reviewable by a court of appeals under § 10(f), Lincourt v. NLRB, 170 F.2d 306 (1 Cir. 1948), and only dubiously so by a district court, Hourihan v. NLRB, 201 F.2d 187 (D.C. Cir. 1952), cert. denied, 345 U.S. 930 (1953); Retail Store Employees Union Local 954 v. Rothman, 298 F.2d 330 (D.C. Cir. 1962). However, a union wishing to argue that an election is invalid because of the employer's unremedied unfair labor practices despite the General Counsel's refusal to act upon its charges, must do more than prove that it has filed charges which the General Counsel has dismissed; there must be something to indicate that he was wrong in doing so and that unfair labor practices in fact prevented a valid election. Here the Union neither proved nor offered to prove anything of the sort; indeed it did not even appeal from the Regional Director's settlement of its § 8(a)(3) and 8(a)(1) charges relating to the alleged discriminatory discharge, nor from his determination that an election should be conducted upon the Company's petition, see Statements of Procedure, § 101.7 and § 101.23(b).
Another possible flaw in the election is that it was held, purportedly under the authority of the first proviso of § 8(b)(7)(C), as an "expedited" one, "without regard to the provisions of section 9(c)(1)". Section 9(c)(1) directs that when a petition of a specified character has been filed, "the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice"; "if the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof." Although determinations under § 9(c)(1) are made locally by the Regional Director, Regulations § 102.67(a), there are limited opportunities for review by the Board, § 102.67(b)-(j). All this may be dispensed with, however, if the conditions of the first proviso of § 8(b)(7)(C) are met.*fn6
Whether they were met here might be questioned on two grounds. One arises from the fact that the Company's petition*fn7 was filed before picketing began rather than "within a reasonable period of time not to exceed thirty days from the commencement of such picketing." This would appear to be at most a formal defect not impairing the validity of an election; we are unable to perceive how anyone's rights were adversely affected by the Board's pinning the election to a petition filed a few days before the start of picketing and allowed to remain on file therafter, as against the one that could have been filed a few hours after the pickets appeared. The other question stems from the Board's view that "picketing which meets the requirements of the second proviso also renders the expedited procedure inapplicable." International Hod Carriers, Local 840, supra, at sheet 7; cf. Reed v. Rummell, 40 CCH LC 66,666 (1960). Assuming in the Union's favor the propriety of this reading, which has some textual basis and derives support from the statement of Senator Kennedy in presenting the Conference Report to the Senate,*fn8 the case is still one where the expedited procedure was proper. For there was ample evidence that the pre-election picketing was not within the second proviso since, as the Examiner found with respect to the post-election activity, "an effect of such picketing" was "to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services." Mr. Woodward testified that during the preelection period the pickets "marched up and down and if a truck did enter they would stop the truck, stand in front of it and engage the driver in conversation shortly after it came in", with the result that the picketing prevented deliveries of new vehicles, laundry, uniforms, undercoating materials, janitorial supplies, automotive parts - and Pepsi Cola.
We come finally to the respondent's challenge to the order as "academic, useless and illegal". The two former adjectives rest on the fact that the period of one year from March 1, 1961, during which respondent was ordered to cease and desist by subdivision (a) of the order, has expired, as it very nearly had when the order was made.*fn9 Plainly the order is not academic or useless if we enforce subdivision (b), which forbids picketing for the proscribed object "where within the preceding twelve months a valid election under 9(c) of the Act has been conducted which the Respondent did not win." Respondent claims this to be "illegal", but we do not find it so. "It is a salutary principle that when one has been found to have committed acts in violation of a law he may be restrained from committing other related unlawful acts * * *. Having found the acts which constitute the unfair labor practice the Board is free to restrain the practice and other like or related unlawful acts." NLRB v. Express Publishing Co ., 312 U.S. 426, 436 (1941). But even if subdivision (a) stood alone, the mere lapse of time would not render the proceeding moot.A direction to enforce the Board's order necessarily connotes judicial approval of its findings and conclusions that respondent's conduct violated § 8(b)(7), which are essential to its validity, and this might furnish "reasonable cause to believe" under § 10(1) with respect to subsequent picketing of the same general nature by the Union against the Company. See NLRB v. American Nat'l Ins. Co ., 343 U.S. 395, 399 fn. 4 and cases cited (1952); NLRB v. Pure Oil Co ., 103 F.2d 497 (5 Cir. 1939). Compare NLRB v. Cosmopolitan Studios, Inc ., 291 F.2d 110, 112 (2 Cir. 1961). Cf. 5 U.S.C. § 1004(d).
Enforcement granted.
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Homemade Halloween Decorations
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Sewn Halloween Apron
By: Kristin Rix, Guest Contributor
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Bake those ghoulish cookies and eyeball treats wearing your cute sewn Halloween apron. Using ribbon and fabric you can have this great pattern for your kitchen apron.
- Hand sewing needle
- Measuring tape/yard stick
- 2 yards fabric
- 1 spool coordinating thread
- Coordinating ribbon (optional)
- Scissors
- Straight pins
I find having an iron and ironing board on hand very helpful throughout the whole project. It makes hemming much easier. A sewing machine is not required for this project, but is recommended. With a sewing machine, the whole project takes only a few hours to complete.
Additionally, in this tutorial I use a fabric that has a decorative border, which means that I must be careful where I cut my pieces from. If you don't use a decorative border fabric, you can cut the pieces out more efficiently using the pattern guide below.
- Cutting the Pieces
Cut your pieces using the pattern guide. I start with the skirt first, then the tie pieces and waistband and fold them in that order. That way, the pieces won't get mixed up with each other. If you chose a decorative border print and wish to match your pocket to your skirt to maintain the integrity of the print, consider these facts: the top of the finished and hemmed pocket will be approximately 1" from where the skirt and waistband meet, and the edge of the finished and attached pocket will be about 1" from the left or right edge of the skirt; hemming takes up approx. 1/2" of fabric from the piece.
- Preparing the Skirt
To hem the skirt, fold, iron, and pin the bottom, left, and right edges of the skirt, leaving the top edge undone. Fold each edge twice at the 1/4" mark, snipping the corner fabric from the two bottom corners after the first fold to reduce the amount of fabric that runs through the sewing machine. Sew the hems down using your machine. You can use a basic straight stitch, or get creative with a decorative stitch if your machine has that option. Use your hand sewing needle to securely tie off the excess thread at the beginning and end of your stitches.
- Preparing the Waistband
Fold, iron, and pin the top, left, and right edges of the waistband, leaving the botton edge undone. FOl each edge twice at the 1/4" mark, snipping the corner fabric from the two top corners after the first fold. Sew only the top edge down, tying off the excess thread with your hand sewing needle.
- Preparing the Ties
Place two of the tie pieces together, print-sides facing each other. At this point you may want to consider cutting the end of the fabric at a diagonal. If so, I suggest cutting all four tie pieces at the same time, to ensure the diagonal is consistent for both ties. Sew the two tie pieces together, wrong side out. Do the same for the remaining tie pieces. Tie off the excess thread with your hand needle. Turn the ties right side out. Carefully iron the ties flat. Sew along the entire edge of the piece, 1/4" from the edge of the tie, to create a border and to maintain the shape of the tie. Tie off the excess thread with your hand sewing needle.
- Attaching the Waistband to the Skirt
Find the middle of the skirt and mark with a straight-pin. Do the same for the waistband. Pin the center of the top of the skirt to the center of the bottom of the waistband, the two unfinished edges, so that their print sides are facing each other. Pleat and pin the skirt to the left and right of the center until the left and right edges of the skirt align with the left and right edges of the waistband. Iron the pleats flat. Sew the two pieces together. Tie off the excess thread with your hand sewing needle.
- Attaching the Ties to the Waistband
Fold, iron, and pin the rough end of the tie twice at the 1/4" mark. Line up the folded end of the tie to the side of the waistband and pin, adding a pleat tuck to ensure they match. Sew the two pieces together. Tie off the excess thread with your hand needle.
- Preparing and Attaching the Pockets
Fold, iron, and pin all edges of each pocket, folding at the 1/4" mark and snipping the fabric from each corner after the first fold. I like to use decorative coordinating ribbon on the top edge of the pocket. If sew, add this piece now. Sew the top edge of the pocket. Tie off the excess thread with your hand needle. Place the pocket on the skirt, approx 1" from the top and right or left edge. Pin the left, bottom, and right edge of the pocket to the skirt. How you pin your pocket's interior edge will determine how jauntily your pocket sticks out at the top. Personally, I prefer jaunty pockets. Sew the pinned edges. Tie off the excess thread with your needle.
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(100 ML oil in bottle)
Rs. 120
Rs. 120
(100 ML oil in bottle)
Product Details
Trichup Healthy, Long & Strong Oil is a ayurvedic hair care oil contains potent hair vitalizing herbs such as Bhringraj, Amalaki, Neem, Gunja and the ilk meticulously processed with Sesame and Coconut oil.
Trichup's Healthy, Long & Strong oil transform the hair into long, black and healthy lustrous hair. Trichup's oil effectively penetrates into the hair roots and strengthens them with nutrients like Vitamin A, E and friendly fatty acids to help in delaying greying of hair, apart from soothing and protecting the follicles.
Key Benefits of Trichup Oil:
- Renourishes hair by stimulating blood flow to the scalp and follicles
- Strengthens hair from its roots giving it a natural bounce and luster
- Helps in reducing hair fall by invigorating growth of fresh hair cuticles
- Delays hair greying by stimulating the melanin content within the follicles
- When applied before washing it makes your hair soft and shiny and when applied after washing it nourishes and protects your hair from damage
Directions of use:
- After a thorough drying, apply Trichup HLS Oil onto the scalp and massage gently using finger tips until it get absorbed into the scalp.
- Keep overnight for best results.
- Repeat at least twice a week.
Note: It is recommended, cleanse your hair with Trichup HLS Shampoo.
Use under Medical supervision.


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Hi supporter,
On behalf of the CHHASE and staff, thank you for your hard-earned sacrifice with your donation.
It is too hot in day time and cold in the night. The Gypsy who live in open under trees and under over bridges suffered a lot during night. Your donations are made possible to provide blankets to 15 gypsy families to save them from cold.
Your donations also helped to provide drinking water. We are happy to have donors like you to support these migrants. We are making arrangements to provide medical treatment in last week of march.
We once more thank you and request you to kindly continue your support in our future projects.
We sincerely thank you for the help you provide to the most disadvantaged.
Thank you,
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You Melt Away My Winter Blues By Kathy M
I try to be less lethargic during the predominantly cold and snowy winter months in Calgary by driving around the outskirts of the city and taking pictures of desolate places with a personal touch.
Mar 16, 2011
Candid Captures
Big Hill Springs Provincial Park
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Calgary's nightlife heats up after sundown. Clubs, lounges and great restaurants of all sorts throughout the city.
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Looking for fun activities for mom, dad and the kids? Calgary has one of the youngest populations in the country, and where there are kids, there are things for kids to do.
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This beautifully designed top control dishwasher harnesses the power of the Dynamic Wash Arms to provide complete water coverage and superior cleaning. The unique design has nine arms that directly spray water everywhere in the dishwasher, including hard to reach places. It also features exclusive Clean Water Wash System that continuously cleans the wash water for superior performance, even with the heaviest loads.
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This is the best dishwasher ever! There are extra spinners to get the dishes really clean. It's well insulated and quiet. The controls are grouped logically. There is a light so that you...Read complete review
This is the best dishwasher ever! There are extra spinners to get the dishes really clean. It's well insulated and quiet. The controls are grouped logically. There is a light so that you can see what you are doing. Even the plumber was impressed with this feature. A section of the bottom rack is adjustable for larger bowls. There are two extra sprayers that clean the inside of cups or the inside of the dog's Kong. The handle has a nice grip and it's wide enough to hang a towel on it.The designers and engineers delivered an awesome product.
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Top rack bracket on our KitchenAid dishwasher fragmented nine months after purchase, spewing plastic into the inner workings of the machine and seizing up / damaging the unit. Think that's covered under warranty? Think again! KitchenAid/Whirpool's service technicians don't think so! Don't buy KitchenAid!
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Great features and very quiet
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Bought this in November 2016. Everything works great. Especially like the option to wash only items in the top drawer sine there are just two of us. Also, really like the scrub option as pots and pans really come out spotless.
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Works well and is great that it is quiet so we can watch tv and run the dishwasher
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Great features, some flaws
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My new Kitchenaid dishwasher
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it has a lot of bells and whistles that my old kitchenaid dishwasher did not have. It is beautifully designed. I like the light that goes on inside. So far...I 've only used it about 4 times but it appears to do a complete job. I am not so clear on instructions yet.
Great flexibility &cleaning power
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Global Fish Sales Market 2016 Product types, with sales, Revenue, Price,Share and Growth 2021
Global Fish Sales Market Research Report is a professional and in-depth study on industry Size, Share, Trends, Growth, Price, Application, Product types, with sales, Revenue 2016 to 2021
This report studies sales (consumption) of Fish in Global market, especially in North America, Europe, China, Japan, Southeast Asia and India, focuses on top players in these regions/countries, with sales, price, revenue and market share for each player in these regions, covering
High Liner Foods
Iglo Group
Access full report at : http://www.fiormarkets.com/report/global-fish-sales-market-report-2021-6694.html
Leroy Seafood Group
Marine Harvest
Thai Union Frozen Products
Beijing Princess Seafood International Trading
Dong Won Fisheries
Empresas AquaChile
Faroe Seafood
Findus Group
Hansung Enterprise
Labeyrie Fine Foods
Marine Harvest
Mogster Group
Princes Group
Sajo Industries
Stolt Sea Farm
Surapon Foods
Tassal Group
Market Segment by Regions, this report splits Global into several key Regions, with sales (consumption), revenue, market share and growth rate of Fish in these regions, from 2011 to 2021 (forecast), like
North America
Southeast Asia
Request for sample report at : http://www.fiormarkets.com/report-detail/6694/request-sample
Split by product types, with sales, revenue, price, market share and growth rate of each type, can be divided into
Fresh and Chilled Fish
Canned Fish
Frozen Fish
Other Fish
Split by applications, this report focuses on sales, market share and growth rate of Fish in each application, can be divided into
Application 1
Application 2
Application 3
Table of Contents
Global Fish Sales Market Report 2021
1 Fish Overview
1.1 Product Overview and Scope of Fish
1.2 Classification of Fish
1.2.1 Fresh and Chilled Fish
1.2.2 Canned Fish
1.2.3 Frozen Fish
1.2.4 Other Fish
1.3 Applications of Fish
1.3.1 Application 1
1.3.2 Application 2
1.3.3 Application 3
1.4 Fish Market by Regions
1.4.1 North America Status and Prospect (2011-2021)
1.4.2 China Status and Prospect (2011-2021)
1.4.3 Europe Status and Prospect (2011-2021)
1.4.4 Japan Status and Prospect (2011-2021)
1.4.5 Southeast Asia Status and Prospect (2011-2021)
1.4.6 India Status and Prospect (2011-2021)
1.5 Global Market Size (Value and Volume) of Fish (2011-2021)
1.5.1 Global Fish Sales, Revenue and Price (2011-2021)
1.5.2 Global Fish Sales and Growth Rate (2011-2021)
1.5.3 Global Fish Revenue and Growth Rate (2011-2021)
2 Global Fish Competition by Manufacturers, Type and Application
2.1 Global Fish Market Competition by Manufacturers
2.1.1 Global Fish Sales and Market Share of Key Manufacturers (2015 and 2016)
2.1.2 Global Fish Revenue and Share by Manufacturers (2015 and 2016)
2.2 Global Fish (Volume and Value) by Type
2.2.1 Global Fish Sales and Market Share by Type (2011-2021)
2.2.2 Global Fish Revenue and Market Share by Type (2011-2021)
2.3 Global Fish (Volume and Value) by Regions
2.3.1 Global Fish Sales and Market Share by Regions (2011-2021)
2.3.2 Global Fish Revenue and Market Share by Regions (2011-2021)
2.4 Global Fish (Volume) by Application
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National Security/CFIUS Team Comments on Department of Defense's Interim Rules for FOCI Reviews Referenced in The Deal
As seen in The Deal's "Defense Department Tweaks Foreign Investment Reviews"
The Deal reports that the Department of Defense (DoD) issued interim rules in April designed to clarify how Foreign Ownership, Control or Influence (FOCI) reviews should be conducted over federal contractors with security clearances that are in negotiations to be acquired by or invested in by a foreign company. These rules provide three options for mitigation measures to address relevant FOCI issues depending on the degree of foreign interest in the contractor. The DoD requested comments on these rules from interested parties, and many who responded feel that while the rules do make the process more transparent, they also do not provide enough flexibility to allow the alteration of these proposed mitigation templates for each individual deal.
Kaye Scholer's National Security/CFIUS lawyers in Washington, DC issued comments to the DoD that were referenced by The Deal, in which they suggested changes "that are meant to acknowledge the limits of 'one-size-fits-all' FOCI-mitigation templates and provide the Defense Security Service (DSS) with the flexibility to exercise its discretion within the bounds of the requirements of the interim rule." They added, "While templates serve the important purpose of providing baseline requirements and formats, the diverse industries, corporate forms, ownership structures, and governance arrangements of Department of Defense contractors and their corporate parents require that DSS have the flexibility to tailor FOCI-mitigation agreements based on the specific FOCI factors in each case."
Also of Interest
- Maier Plans Emergency Response with Fort Meade and Fort Detrick Commanders October 20, 2016 • Client Successes
- Maier Featured in Congressional Quarterly on CFIUS and Foreign Investment July 26, 2016 • Media Mentions
- NISPOM's New Insider Threat Program Is an Opportunity to Establish Competitive Edge July 13, 2016 • Client Alerts
- Maier Manages Military Support to Vibrant Response 2016 May 1–7, 2016 • Client Successes
- Mark Maier Joins Kaye Scholer's Washington, DC Office February 11, 2016 • Firm News
- Was bedeutet das Safe Harbor-Urteil des EuGH für die Privatwirtschaft? Hat es Auswirkungen auf FATCA? 23. Oktober 2015 • Reports / Newsletters
- EU's Highest Court Declares the US-EU Safe Harbor Agreement for Data Sharing "Inadequate" October 6, 2015 • Client Alerts
- Kaye Scholer Advances in Chambers USA Rankings May 19, 2015 • Recognitions
- Corporate Alert: Commerce Department Requires US Companies to Submit Filings Regarding Certain Foreign Affiliates April 10, 2015 • Client Alerts


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Natural Treatment for Chronic Pain Syndrome
Do you suffer from mild to severe pain that won't go away? What may have started as an irritating injury that refused to heal has turned into chronic pain. This condition, which has various causes and symptoms, is broadly characterized as pain that lasts for six months or longer. About 100 million Americans suffer from chronic pain, whether merely inconvenient or totally incapacitating.
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'Doctor Who' Christmas Special Sets Ratings Record for BBC AmericaNetwork Hits High with Adults 25-54, Posts Second-Most-Watched Telecast Ever 1/02/2013 10:15 AM Eastern
The Christmas Day special Doctor Who: The Snowmen gave BBC America its top-rated telecast in the adults 25-54 demo ever, drawing a 0.95 rating and 807,000 viewers in the demo from 9 p.m.-10:20 p.m. on Dec. 25, according to Nielsen.
The demo numbers were up 60% from last year's Christmas episode, and total viewers improved by 54%. It was the network's second best telecast ever in total viewers, averaging 1.43 million, second only to the Doctor Who season seven premiere, which drew 1.56 million in September.
Doctor Who returns the second half of its seventh season on BBC America in the spring.
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