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February 4, 2009
ZENAIDA JACKSON, PLAINTIFF,v.VIRGINIA JEFFERIES, ET AL., DEFENDANT.
This matter comes before this Court on the application to proceed in forma pauperis filed by pro se plaintiff Zenaida Jackson ("Plaintiff"). Having reviewed Plaintiff's application and the attached complaint, this Court will grant Plaintiff's application to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915, ask the Clerk to file the complaint, and dismiss the complaint for failing to state a claim on which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
In her complaint, Plaintiff alleges "being harrassed by Virginia Jeffries [sic] and Debbie Barr," and claims that they told her that she "[has] open Cases pending in Englewood." Plaintiff alleges that these actions, which violated her civil rights, occurred in 1985.
Reading this complaint as broadly as possible, as this Court must when addressing claims of pro se litigants, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992), this Court concludes that Plaintiff intends to bring a claim pursuant to 42 U.S.C. § 1983.
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of her constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, a violation of a right secured by the Constitution or laws of the United States and, second, that the alleged deprivation was committed or caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
Here, Plaintiff fails to provide any information which would enable this Court to determine whether the defendants are "state actors," as required for bringing a claim pursuant to § 1983 and federal question jurisdiction. As a result, this claim shall be dismissed, without prejudice.
IT IS, on this 4th day of February, 2009, ORDERED that the application to proceed in forma pauperis is GRANTED, pursuant to 28 U.S.C. § 1915; and it is further
ORDERED that the Clerk of the Court shall file the Complaint without prepayment of fees and security; and it is further
ORDERED that the complaint, to the extent it seeks to bring a cause of action, pursuant to 42 U.S.C. § 1983, is DISMISSED, without prejudice, for failing to comply with FED. R. CIV. P. 8; and it is further
ORDERED that Plaintiff shall have 30 days from the date of this order to file an amended complaint, if she so chooses; and it is further
ORDERED that a copy of this Order be served on all parties within seven (7) days of the date of entry of this Order.
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Top Camping Gear Buyer's Guide
February 24, 2004
Filed under Camping Gear, Misc. Camping Gear
Each year brings a cavalcade of clever products to help make the outdoor experience more enjoyable, and this year is no exception. We've searched high and low to gather information on some of the most interesting new camping gear. What follows is just a taste of what will be available.
Let's get down to basics: Nothing says "campsite" like a good tent. Gone are the days of the heavy, canvas, khaki-colored army tent. Today's tents feature lightweight, attractive fabrics with enough technical properties to make the scientists at NASA stand up and take notice. Many are a breeze to set up, courtesy flexible, jointed poles. Most will keep you warm and dry and protect you from mosquitoes. Some will even keep you grounded in a stiff wind.
Among the offerings we've discovered are some of the new models in the Eureka! (800/572-8822; eurekatent.com) lineup. The 6-foot-tall, three-aluminum-pole Twister ($385) is a freestanding hexagonal dome, outfitted with three minivestibules that protect doors from rain. Featuring full mesh walls and three large doors/windows, and a zippered roof vent, the tent is not only easy to get in and out of, but offers maximum ventilation, even when you're all zipped up. The Twister can sleep six with a 10' 4"x12' footprint. The nylon taffeta three-season tent, which comes in periwinkle blue, features a nylon Oxford bathtub floor, a StormShield polyester fly, No-see-um mesh and weighs just 22 pounds. Also check out the Kahuna external frame tent ($569), the Tunnel Vision ($630) tunnel tent and the Zeus 4EXO ($300).
Another manufacturer with some cool new offerings is Kelty (800/535-3589; kelty.com). Among its new tents for 2004 is the Trail Dome 6 ($200), which the company says has the greatest ventilation of its freestanding tents. Constructed of nylon taffeta (both walls and floor), the Trail Dome features four aluminum poles, one door, color-coded clip constructions, taped floor seams and water-tight walls. Side wall vents, mesh ceiling and closable mesh panels help keep things airy inside. It can sleep six, but the model is also available in two-person ($120) and four-person ($180) configurations. Interior storage pockets, gear-loft loops and noiseless zipper pulls round out an attractive, lightweight package (the four-person weighs 7 pounds, 9 ounces) that measures 99"x80"x57". While you're at it, also consider Kelty's Yellowstone tents, which come with fiberglass poles in two-, four- and six-person configurations ($80, $120, and $160, respectively).
OK, even if you're one of those hardy types who prefers sleeping out under the stars, you must admit that when camping, a sleeping bag can come in handy. Like tents, sleeping bags are, you might say, shadows of their former hefty selves. Remember those bulky bags with the ducks and hunters scampering across their inner flannel? Sometimes they could get downright damp and musty — either from sweat, rain or dew. Nowadays, bags are designed to keep you comfy and dry with incredibly breathable fabrics that repel water. These lightweight bags also won't give you a hernia as you're hiking around with them and, unlike the heavy-duty bedrolls, it's easy to stuff them away in their neat little sacks.
Among the premium 2004 choices we found are the Buffalo Park 40-degree bag ($99) from Big Agnes (877/554-8975; bigagnes.com). Part of the company's Park Series of bags, the navy and gray Buffalo Park offers a rip-stop nylon shell that's been treated to repel water. Quallofil insulation is designed to provide breathability as well as excellent warmth. The lining is a cotton and polyester blend that is both soft and breathable and treated with a stain-resistant finish. The extra-wide, rectangular bag also features a perma-pillow sleeve and water-repellent exterior pad sleeve for those who like things a little cushier. It compresses down to 11"x8" to fit into its stuff sack and weighs only 3 pounds, 10 ounces.
Also available from Big Agnes is the Little Red 15-degree bag ($89), which, at just under 2 pounds, is made especially for kids. Featuring similar construction to the Buffalo Park, the Little Red is insulated with Polarguard Delta that will keep your little ones cozy. If it gets wet, it dries quickly and will still provide insulation.
Sea to Summit (702/240-1600; seatosummitusa.com) is an Australian company that has come up with an innovative way to boost the warmth of your sleeping bag. Its Reactor ($49.95) is basically a super techy bag liner. Made of DuPont's Thermolite fabric, the Reactor absorbs and returns body heat to increase your bag rating by 15 degrees. It can also be used by itself as a warm-weather bag. Weighing 8 ounces, the bag liner packs down to 3"x5".
Not one to be left behind when it comes to sleeping bag innovations, Slumberjack (800/233-6283; slumberjack.com) has produced the Big Bend 20-degree, a lightweight (2 pounds, 14 ounces) mummy bag that even the claustrophobics in your crowd might appreciate. Thanks to strategically placed Lycra-stretch panels, the bag is designed to allow more movement than the typical mummy. A rip-stop nylon and Teflon exterior shell helps keep you dry, Thermolite Microfleece liner lends a soft hand, and Thermolite Extreme insulation provides superior warmth. A fully contoured hood with flip-over option and an internal media pocket are just a couple of other nifty features. Available in two lengths (maximum heights of 5' 11" and 6' 5"), prices range from $209 to $219.
If you're the type who actually enjoys having a good night's sleep in the great outdoors, a mattress or mat of some kind should be on your list. Mats not only provide a softer, more even sleeping surface, but also help you retain body heat.
When it comes to mats, Swiss manufacturer Exped (253/735-6200; exped.com) has no shortage of them. The company's newest offerings include the Down Mat 7 ($139) and Down Mat 7 Short ($119), which offer lightweight comfort and double the warmth of traditional self-inflating mats. Made of airtight, slip-resistant polyfabric, the mats are designed with integrated baffles and feature 700 fill, high-loft goose down, treated to prevent moisture buildup. At 27 ounces and 18 ounces respectively, they roll up to under a foot and ahalf each.
Slumberjack, mentioned above, also offers a variety of mats. Its latest is the Longitude ($49.99), which features specially cut foam tubes that are inserted lengthwise within a mummy mat. The results are an extremely thick and comfortable mat that weighs only 2 pounds, 8 ounces. It's the perfect mat, says the manufacturer, to go with the Big Bend bag.
Whether you're a car camper or RV enthusiast, a decent duffel to stow your gear is almost a necessity. Among the new duffel bag offerings we found are the ORV (Off-Road Vacation) Trunk ($240) from Eagle Creek (800/874-1048; eaglecreek.com). Basically, it's a duffel bag on wheels that features a front panel opening and 7000 cubic inches of structured interiors for organizing a ton of gear. Designed with a wet/dry boot compartment and external pockets, the durable, water-resistant trunk is a great way to keep track of things — including your sanity. The 9200-cubic-inch ORV Super Trunk is available for $275.
The Kiva (707/748-1614; kivadesigns.com) 22-inch Big Mouth Xtreme duffel ($79.95) includes a stay-open top hinged lid and a plethora of organizer pockets. The company also offers the 26-inch Giant Big Mouth Xtreme ($139.95) and the 36-inch Titanic Big Mouth Xtreme ($169.95) for lots of storage space on wheels. Both of these duffels come with Kiva's integrated Rack-Lash System for easy attachment to any roof rack. Also check out the Mini Mouth ($19.95) combination toiletry kit, medical bag, and shaving kit.
The All Terrain Duffel ($85) from Seattle Sports (800/632-6163; seattlesports.com) comes with detachable backpack shoulder straps so it can double as either a duffel bag or short-trip backpack. Three internal pockets keep things organized and a Hydrokiss super weather-resistant zipper keeps things dry. This tough, versatile bag is designed with four compression straps for custom load fitting. It also comes with four rack-attachment straps.
Hydration packs are a great way to make sure you don't become dehydrated when out on the trail. Kelty's (800/535-3589; kelty.com) Firefly ($35) and Starfish ($40) hydration packs are made just for kids. The tough little lightweight packs come in fun colors and feature the easy-to-clean Source reservoir, so kids can vary their beverage choices. The Starfish offers a storage system large enough to hold extra clothes, too.
High Sierra's (800/323-9590; highsierra.com) Trek 35+ internal frame pack ($49.99) is designed with a 35+ liter top-load main compartment with gusseted drawstring closure. Gear can be secured via multiple compression straps, and an adjustable sternum strap stabilizes the pack. Constructed with Vapel Mesh Airflow, the padded shoulder harness (featuring adjustable load lifters), waist belt and back wick moisture while keeping loads from shifting. Also included is a stowable rain cover and hydration port (reservoir purchased separately). A slightly larger Trek 45+ internal frame pack goes for $59.99.
For another great daypack, see Jansport's (800/346-8239; jansport.com) Tribe hydration pack ($90). Pack capacity is 1550 cubic inches and reservoir capacity is 3 liters. The pack is designed to provide the maximum in flexibility and offers what the company calls the Hytundration organizer with headphone exit, fleece-lined sunglasses pocket and "keyper". Padded back and shoulder straps are constructed with Airvent mesh for great breathability. The Tribe is fitted with a Nirvana bite valve with EZ shut-off valve.
The new Mountainsmith (800/551-5889; mountainsmith.com) Chute Daysipper hydration pack ($80) is great for those on the go. Features include panel zipper access, front pocket, side mesh pockets and padded valuables pocket. S-curved breathable shoulder staps and a sternum strap help keep everything stable and secure. A version of this pack especially made for women is also available. The pack comes with a 3-liter reservoir and is fitted with the company's Bite Me valve.
Slightly different — for casual travel carry — is the Pacsafe (800/727-1985; pac-safe.com) Gosafe shoulder bag ($29.95). Made of 1200D nylon, the bag, which is designed with several internal pockets, features a slash-proof, steel wire-reinforced shoulder strap and a concealed, slash-proof front guard for security. The strap converts so the bag can be worn as a hip pack.
You don't have to get fancy, but there are some basics that are nice to have around the campsite.
The Mini Camp Lantern ($42) from Athena (800/272-8603; athenabrands.com) runs on either the company's High-Performance Fuel Blend or a butane fuel cartridge. Featuring piezoelectric ignition, the compact, lightweight lantern provides illumination for more than five hours on maximum flame. To cook your breakfast, the Mini Camp Stove with Heater Accessory ($56) is also worth considering. Both are great for those solo trips when you don't need the big appliances.
Another cool light source on the market is Essential Gear's (800/582-3861; essential gear.com) 12-LED Lantern ($50). Designed with a dimmer switch for adjustable brightness, the 8.75"x4.5" lantern features a water-resistant case and hanging handle. The LED bulbs are said to last more than 100,000 hours. And it produces no fumes, making it a great tent lamp. Battery life is 12 days on the lowest setting and 40 hours on the brightest setting.
Here's a clever concept. The New River Grill Company's (304/252-0883; newrivergrill.com) Stowaway Grill's most trick feature is that it can be quickly disassembled and stored in a compact tubular container. Constructed of heavy-duty stainless steel, and easy to clean, it could be just the thing you're looking for if you're a car camper. The grill is available in three sizes: 12"x24" ($49.95), 9"x18" ($39.95) and 6"x12" ($29.95).
After a long day on the trail, it's nice to have something besides the picnic bench to sit on. Crazy Creek's (800/331-0304; crazycreek.com) Crazy Legs Convertible Chair ($52) is designed for double duty. The chair fits on an aluminum frame for campsite lounging, but lifts off the frame for use while sitting on the ground, which you're more likely to do while hiking. The light-weight chair comes in a range of colors.
There's no need to visit scary campground shower rooms or go without a refreshing or warming shower when you have the Zodi (800/589-2849; zodi.com) Hot Camp Shower ($149.95). The portable shower provides large quantities of up to 100-degree hot water on demand. The multifunction 4-gallon plastic storage case holds enough water to give you a 10-minute shower. Just place the battery-operated pump in the water and ignite the burner. Included is an 8-foot flexible shower hose with water-saving shower head.
There are some tools that are a must when you plan to spend a lot of time outdoors. Some could save your life; others will just make it easier.
Gerber's (800/777-6805; gerberblades.com) Recoil Auto Plier ($59.99), with plier jaws that pop out when triggered, can come in handy in any number of situations. In one stainless steel tool you get scissors, single-hand-opening knife blade, wire stripper, twine cutter, crosshead driver, bottle opener, flathead driver and can opener.
From Tektite Industries (800/540-2814; tek-tite.com) comes the Expedition Luxeon Star LED Flashlight ($79.95). Utilizing specialized optics that produce an ultra-tight, 10-degree beam pattern, the flashlight provides a strong light output with a depth rating of 1000 feet. The spot beam can cut through fog or smoke and will burn at full power up to 15 hours with an added 50 hours of usable light. It runs on three C-cell alkaline batteries.
The Tracer Headlamp ($25) by CMG (888/699-0622; cmgequipment.com) is another useful light source. The hands-free lamp, using two white LEDs, will illuminate objects up to 30 feet away. The compact, lightweight lamp offers a burn time of 40 usable hours, a comfortable head strap and water-resistant, durable construction. It runs on a AAA battery that is said to be boosted, via a patented circuit, to three times standard output.
Gear to GO (866/683-2276; geartogopak.com), a line of Adventure Paks, is just what is says. In one pack you get a multitool, lensatic compass, hunting knife, mini entrenching tool, axe, saw, and various sizes of aluminum flashlights. Made of high-quality rip-stop nylon with individual pockets for each item, and a selection of loops for different types of carry, the gear is available in various configurations and ranges in price from $19.99 to $99.99.
Don't risk getting sick. The Miox Purifier ($129.95) from MSR (206/505-9500; msrcorp.com) is a pocketsize, battery-operated portable mixed-oxidant purifier designed to kill viruses, bacteria, Giardia and Cryptosporidia. It's an easy way to purify large amounts of water without using iodine — no off taste and no health risk. All you do is add fresh water and table salt, shake and press a button.
Need a knife, firestarter and whistle all in one? No problem. The SL3 Pocket Knife ($37.95) from Tool Logic (805/339-9725; toollogic.com) gives you a sharp, 3-inch, partially serrated, stainless blade; pre-mium magnesium alloy fire-starter, and loud signal whistle in a handy little pocket tool. A custom notch in the blade assists in firestarting, and the Firesteel firestarter will last for up to 3000 strikes.
Why get lost? From Thales Navigation (800/669-4477; thalesnavigation.com) comes the Magellan SportTrak Topo GPS ($349). This light-weight, rugged handheld GPS comes ready to rock and is preloaded with 108 MB of interactive, nationwide topographic maps. The pocketsize device is a great tool for finding your way around unknown terrain.
It's one thing to dress up your campsite, but how about yourself? With all the great innovations in outdoor clothing and footware today, you'd be crazy not to take advantage of their benefits. For example, ThermoSense base layers by Duofold (800/994-4348; duofold.com) are designed to cool you down when you get hot by absorbing body energy, only to warm you up when you get cold by releasing the stored energy. Made of 100 percent polyester rib knit, the ThermoSense base layers are also great moisture managers and odor inhibitors. Available in a range of sizes for men and women, the Long-Sleeve Crew and Coordinating Pants retail for $25 each.
Another type of base layer can be found in some of the fabulous socks that are on the market today. Take, for instance, the new Adrenaline socks from SmartWool (800/550-WOOL; smartwool.com). Designed for outdoor athletes, these comfortable, easy-care socks have excellent moisture management properties, also controlling temperature and odor. They are 100 percent wool but are guaranteed by the manufacturer not to scratch or shrink. Styles include crew, 3/4 crew, mini and micro. Prices range from $13.95 to $17.95.
With the threat of West Nile Virus, Lyme Disease and other insect-borne diseases, bug repellency in clothing is another hot ticket of late. Examples of this can be found in Ex Officio's (800/833-0831; exofficio.com) Buzz Off line of insect repellent apparel. The way it works is an effective active ingredient is bound to the fibers of the fabric. This forms an odorless, environmentally safe protective barrier on the clothes, and hence, around the body. The EPA-approved garments are said to be effective against mosquitoes, ticks, ants, flies, chiggers and no-see-ums. The Buzz Off Lite Long-Sleeve shirts ($79) for both women and men are also endowed with UV-Block 30+ and good moisture-wicking properties.
Outdoor Research (888/4-orgear; orgear.com) also offers insect-repellent clothing but with a different spin. Its Inuvik Bug Jacket ($75) provides protection from bugs via its construction. Elastic cuffs, a neck cinch cord and a single shock cord at the hem create a seal said to keep bugs out. Made of No-see-um netting and SolarLite fabric with a 50+ UPF rating, the jacket, available in bone and olive and a variety of sizes, also features an arm pocket that can be used as a self-storage pocket.
If it's a parka you're looking for, try the Expedition Lt. Parka ($100) from Red Ledge (800/722-7345; redledge.com). Made of a Dupont Tactel nylon shell with T-Core coating that' s waterproof and breathable, and has a water-repellent finish, the parka features a polyester mesh and nylon taffeta lining, 100 percent taped seams, double exterior storm flaps on the main zipper, pit zips for ventilation and a hood with a visor.
In the footware department, check out the Synergizer Footbeds ($30.95) for kids from Superfeet (800/634-6618; superfeet.com). The company makes custom footbeds for adults and kids that fit inside footware to provide maximum support, balance and shock absorption. Its Synergizer Green footbeds are designed for running and training shoes, tennis sneakers, basketball sneakers and ski and snowboard boots. Synergizer Blue footbeds go with tighter-fitting sports footware.
The Enerstrap sandals ($69) from Bite Footware (800/248-3465; biteshoes.com) are great for water-based activities and even just for wearing around on land. The sandals, available in black only, provide the kind of support and comfort found in lightweight running shoes. They offer an adjustable nylon upper atop a nonmarking Burst outsole as well as a toe guard. The dual-density rubber outsole lends superior traction.
Hi-Tec Sports (800/521-1698; hi-tec.com) has recently introduced its Sierra V-Lite Collection of lightweight hiking boots. Available in either leather or suede/fabric, the boot, which features a vertical build system to eliminate weight and a Comfort-Tec footbed with CoolMax HydroCool, provides breathable comfort on those long dayhikes for a street price of $60.
BioMex is a biomechanical technology used by Lowa (203/353-0116; lowaboots.com) that combines lightweight construction with a unique type of ankle support. It consists of an articulated plastic upper cuff that is positioned so that when the knees are bent, the boots' uppers follow the line of the lower leg. This helps protect against angle twists. The design is also said to enhance comfort while decreasing fatigue. You can find the BioMex cuff on the Vertex GTX ($225) high-performance, lightweight hiking boot, with models available for both men and women.
The Tamarack ($95) from Montrail (800/826-1598; montrail.com) gives you the durability, traction and protection of a boot in addition to the comfort and flexibility of a trail runner. Just the thing for day hiking, the Nubuck upper and TerraFlex platform are designed to take heavy use. Lugged sticky-rubber outsole will help keep you surefooted.
There you have it. Practically an entire outdoor store's worth of gear and clothing to prepare you for whatever you encounter in the wilderness, even if it's not too far from your own backyard.

subset: commoncrawl


text: I can't get it. I bought this Dlink router (DI-524) last week, I couldn't make it work at the beginning then some people at this forum helped me to fix it (the DNS was wrong on the iPod). Since then, it works, I mean, I can browse sites... and I notice it is slight slower then computer (even being right in front of the router). But I noticed it get extremely slow when I want to install things through installer. I re-jailbroke my iPod so I'm downloading BSD Subsystem again and it is talking forever to download it (its only 6mb and my internet is 1mbit, shouldn't take that long). So yea guys, any of you could guess what's wrong here? Thx


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Definition of baldhead
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February 9, 2010
MARIO TORO, PETITIONER,v.UNITED STATES OF AMERICA, RESPONDENT.
Pro se prisoner Mario Toro ("Toro") petitions for a writ of habeas corpus to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the ground that his attorneys provided ineffective assistance of counsel to him at various stages of his prosecution. For the following reasons, the petition is denied.
Toro was arrested on drug charges on August 21, 2001. Toro provided some initial assistance to the Government, but after two proffer sessions was advised that the Government would not enter into a cooperation agreement with him. Toro fled to Canada and then to Colombia, from which he was extradited. Toro was arraigned on February 6, 2003.
On March 7, 2003, Toro entered a plea of guilty to Count One of the Indictment, which charged him with participating in a conspiracy to distribute drugs. He was advised that he faced a ten-year mandatory minimum term of imprisonment. The Government's Pimentel letter calculated his sentencing guidelines range as 292 to 365 months' imprisonment, and Toro was specifically advised of that fact during the plea allocution. The Court explained the safety valve provision of the law to Toro as well. At the allocution, Toro asserted that he was satisfied with his attorney.
The Presentence Report ("PSR") calculated Toro's guidelines range as 235 to 293 months' imprisonment. Defense counsel objected that the PSR contained several errors. He argued, inter alia, that Toro should receive adjustments for his extraordinary acceptance of responsibility and his minor role in the offense. He also argued that the drug quantity should be calculated as ten kilograms, rather than sixty kilograms, and that a downward departure was warranted based on aberrant behavior. Toro also submitted his own letter in support of a reduced sentence.
A Fatico hearing was held on August 28, November 3, and November 5, 2003. Toro and his mother testified on his behalf. The Government called witnesses as well. The Court made findings at the conclusion of the hearing, including finding that Toro had committed perjury during the Fatico hearing. The Court also ruled that there was no basis for a minor role adjustment, and that Toro was not entitled to any credit for acceptance of responsibility in light of his flight, his lies to the Government during his proffer sessions, and his perjury during the Fatico hearing. It rejected any departure based on aberrant conduct.
In advance of sentencing, defense counsel and the Government made extensive submissions. At the March 5, 2004 sentencing, the Court imposed a sentence that consisted principally of 168 months' imprisonment. In doing so, the Court rejected the Government's position that Toro should be held accountable for the 50 kilograms of cocaine that he discussed in February 2001, and that he should receive a role enhancement. The Court imposed separate obstruction of justice enhancements of two levels for absconding while on bail and one level for perjury during the Fatico hearing.
Toro appealed. On March 2, 2005, the Court of Appeals summarily affirmed the Court's guidelines calculations, but remanded the case to determine whether resentencing was required pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). The Court of Appeals declined to reach Toro's ineffective assistance of counsel claim.
After this Court rejected Toro's request to be resentenced, Toro appealed again. On March 3, 2006, Toro's attorney moved to be relieved as counsel and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). The Government moved for summary affirmance. On June 26, 2006, the Court of Appeals granted defense counsel's motion to withdraw, but denied the Government's motion for summary affirmance. The Court of Appeals directed that new counsel be appointed to represent Toro during his second appeal and ordered additional briefing. On February 29, 2008, the Court of Appeals affirmed the judgment. It again declined, however, to consider Toro's ineffective assistance of counsel claim.
On February 24, 2009, Toro filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The Government filed a response on November 13, 2009. Toro filed a reply to the Government's submission on January 6, 2009.
Toro contends that his attorneys provided ineffective assistance of counsel in connection with his plea, sentence, the Crosby proceedings on remand, and during his second appeal. The Supreme Court has defined a two-part test for evaluating ineffective-assistance claims. See Strickland v. Washington, 466 U.S. 668, 687 (1984); accord Palacios v. Burge, 589 F.3d 556, 561 (2d Cir. 2009). First, "the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland, 466 U.S. at 687. Second, "the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. While a petitioner must prove both incompetence and prejudice, "there is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.
The Strickland standard is a high bar for Toro. A constitutional claim does not arise unless a lawyer's error is so egregious as to amount to a failure to provide even minimal professional representation. See, e.g., Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006); Lindstadt v. Keane, 239 F.3d 191, 198-199 (2d Cir. 2001). The burden of proving prejudice is equally stringent in that petitioner must show a "reasonable probability" that, but for the counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 693.
1. Entry of Plea of Guilty
Toro contends that his attorney did not fully explain to him the consequences of entering a plea of guilty prior to the time that he entered his plea, and misled him as to the "potential punishment he was facing." Toro asserts that he received no benefits from pleading guilty since the Court ultimately accepted all of the Government's sentencing arguments and rejected all of his.*fn1 Toro speculates that he would have received a much lower sentence if he had proceeded to trial.
At the plea allocution, the Court advised Toro of all of the relevant sentencing parameters, including the mandatory minimum sentence and the maximum sentence that could be imposed. The Court confirmed that Toro had been advised of the guidelines calculation in the Government's Pimentel letter. Toro, who had been placed under oath, confirmed that he understood each of these facts, and also confirmed that he had discussed the consequences of pleading guilty with his attorney. There is no basis to find, therefore, that defense counsel failed to advise Toro adequately about the consequences to him of entering a plea of guilty. As for Toro's assertion that he received no benefits from entering a plea of guilty, suffice it to say that the sentence imposed upon him was significantly below the guidelines range set out in either the Government's Pimentel letter or in the PSR.
2. Fatico Hearing and Sentencing
Toro contends that his attorneys failed to request a downward departure based on his assistance to the Government and his minor role in the offense, or to seek a reduced sentence based on aberrant conduct. Toro also asserts that his counsel failed to object to the Court's finding that Toro committed perjury at the Fatico hearing. Finally, Toro asserts that he was eligible for the safety valve adjustment even though he had committed perjury.
Contrary to Toro's assertions, his attorney did argue for a reduced sentence based on Toro's cooperation with the Government. In a letter submitted prior to sentencing, Toro's attorney sought a downward departure on based on Toro's attempts to cooperate at the time of arrest by placing a telephone call to his co-defendant. Further, Toro's attorney contended that the conversations between Toro and the law enforcement agents had created a binding agreement that entitled Toro to credit for his cooperation. At the conclusion of the Fatico hearing, the Court found that Toro had placed a telephone call to a co-conspirator that made it easier for agents to arrest the man.
In a presentencing letter submitted to the Court, defense counsel also advocated for a minor role adjustment and a reduced sentence based on aberrant conduct. At the conclusion of the Fatico hearing, the Court found that neither of these requests was appropriate. After the Fatico hearing, Toro's attorney continued to argue against the two-level increase sought by the Government based on Toro's alleged leadership role in the conspiracy. At sentencing, the Court found that no adjustment for role was warranted.
With respect to the one-level upward adjustment based on Toro's perjury at the Fatico hearing, Toro's attorney argued against any such enhancement at sentencing given that Toro had already lost his acceptance of responsibility adjustment and had received an enhancement for fleeing the country to evade prosecution. Counsel cannot be found ineffective for failing to make an argument that he did in fact make.
Finally, Toro was not eligible for the safety valve adjustment since that adjustment requires, inter alia, that the defendant "truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." 18 U.S.C. § 3553(f)(5). Toro had lied to the Government during his proffer sessions with them, and does not assert that on any separate occasion he truthfully provided to the Government the information that he had about the offense of conviction. There was, therefore, no basis for his attorney to advocate an adjustment based on the safety valve provision of the law.
3. Crosby Remand
Toro argues that his counsel should have argued for a reduced sentence following the March 2005 remand based on his post-arrest cooperation with the Government and the harsh conditions in the Colombian prison in which he was confined pending extradition. In addition, Toro asserts that his attorney should have pointed out that the Court had not given Toro notice prior to imposing sentence that it would be departing upward based of the defendant's perjury.*fn2 None of these arguments has any merit.
In a detailed and well-written letter, defense counsel made four arguments for a reduced sentence on remand. The letter focused on Toro's personal circumstances and did not revisit issues already addressed at length during the prior sentencing proceedings, including Toro's post-arrest cooperation. Although the letter did not discuss the harsh conditions Toro endured in Colombia while awaiting extradition, Toro's attorney had already made the Court aware of such harsh conditions in his presentence submissions. Counsel's tactical judgment in not raising these issues again in connection with the Crosby remand cannot be faulted.
Furthermore, there is no basis to find that counsel should have complained about Toro's lack of notice before sentence of the obstruction of justice enhancement based on his perjury. In advance of the Fatico hearing, the Court advised Toro that he risked a possible upward departure for obstruction of justice if he perjured himself. After the Fatico hearing and in advance of sentencing, the Government argued for an upward departure based on Toro's perjury. Toro was thus adequately advised of the potential enhancement and it was not error for his attorney to fail to raise this issue.
4. Second Appeal
Finally, Toro argues that he received ineffective assistance of appellate counsel in connection with his second appeal because his appellate counsel filed a motion to be relieved accompanied by an Anders brief. Toro suggests that his attorney failed to give him adequate notice that he intended to file an Anders brief, or provide him with an opportunity to review the Anders brief. These allegations, however, are belied by the fact that Toro timely filed a pro se brief in opposition to defense counsel's Anders brief on June 15, 2006. Furthermore, after granting defense counsel's motion to withdraw, the Court of Appeals appointed new counsel to represent Toro in his second appeal. Toro does not contend that this appointed counsel was ineffective during his second appeal. As such, Toro's argument in this regard also fails.
Toro's February 24, 2009 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 is denied. In addition, the Court declines to issue a certificate of appealability. Toro has not made a substantial showing of a denial of a federal right pursuant to 28 U.S.C. § 2253(c), and appellate review is therefore not warranted. Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). The Court also finds pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall close the case.
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Dot Da Genius has let his side be known in the building drama that's been going on between him and his ex Jhené Aiko since she filed for divorce last week.
After some fans accused Jhené of being unfaithful, hence her desire for the split, the singer explained herself, saying she only "cheated" herself and that she's glad to be free of all of the "confrontation, drugs and depression."
But when one person tried to accused her of cheating on Da Genius with TWENTY88 collaborator Big Sean, who she's been seen kissing on stage, whose face she sometimes dons on her breasts, and who she may've just written a love song for, she responded.
"With the internet as ur source…ur point is invalid and inaccurate and ur ignorance grows stronger," she wrote."
Another commenter suggested that Aiko "should have found a way to make her marriage work and not jump ship." "Marriage is sacred, [you don't] just jump ship [because] of temporary pain," he wrote, to which the singer replied, "He jumped the ship along time ago. He wants to be the victim and I'll let his bitch ass assume the role."
Then, Dot's longtime homie, Kid Cudi got in on the subliminal tweet action.
"The funny thing is, we aint sweatin these bum bitches and these corn ball ass n—-s. We too busy makin better music," he tweeted. He then added, "I will ether anyone for my family."
Now, Dot has found it imperative to speak up for himself in light of what he views to be "public threats, false allegation, and attempts to slander" his name and character.
"I've never been violent or abusive towards any woman in my life. Such behavior is abhorrent to me and far from how I conduct myself," he wrote on Instagram last night (Aug. 15). "Moving forward, I will continue to focus on my family, friends, and music, and soon enough the truth will come to light."
Jhene never actually said her ex hit her, but maybe the "confrontation" part is what he's referring to and felt needed some clearing up. At any rate, he's made his stance be known.
Check out Dot Da Genius' instagram post below.


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Diamond Comics Shipping List for August 3rd!
Chris joined the Allspark community in 2002 and has been a member of the News and Content team since 2014.
Latest posts by Chris (see all)
- Sponsor News: TFsource SourceNews! Cyber Monday Sale! MP-31 Delta Magnus! - November 28, 2016
- Diamond Comics Shipping List for November 30th! - November 23, 2016
- Sponsor News: TFsource News! Countdown to Black Friday, Day 1 – Titans Return Fortress Maximus – $99.99! New Sales Every Day! - November 21, 2016
Not a lot next week, fans, but IDW has a few things to add to your summer reading pile. Check out our weekly Diamond Comics Shipping List for Transformers and MLP titles scheduled for August 3rd.Continue reading »


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Woah! While we were all focusing on the relationship brewing between Lee and El, Sam and Brooke were strengthening on the sidelines – and that's exactly why Flick decided to blindside her bestie. Flick tells NW she had no regrets about betraying Brooke – even if Brooke is STILL screening her calls. True story.
So Brooke was your bestie, do you have any regrets about blindsiding her?
I made the right move by getting rid of the biggest player. Had I have stayed with Brooke, she would have just taken Sam to the end – and I wouldn't have beaten her even if I was in the final two. Oh, and supposedly she was wanting to get rid of me!
How did the tribe react after she was eliminated?
El Lee and Kristie were happy after. Matt was so depressed – I actually felt bad for him. I didn't feel bad for Sam, though. Sam was always "I'm gonna make it to the end – I'm real." But he wasn't. I wasn't that sad to see him upset.
Don't you think a smarter move would have been to separate Lee and El though?
I stand by by the decision I made, only because Brooke kept winning challenges and she would have taken Sam to the end. I don't think people realise how close Sam and Brooke were strategically. They were a lot closer than Lee and El were – Lee and El are together now and they have a romantic connection. Brooke and Sam were stronger than people think they were.
How are things with Brooke now?
We're civil. I've messaged her a couple of times every week and I might get one message back or maybe a short response. I thought I'd give her some time and then we had a couple of phone calls before her elimination episode and I thought she'd forgiven me, but her elimination episode set her back.
So the friendship is dead?
I think she was a bit hurt. I was so worried about our friendship and I was so upset and I wanted to mend it so badly. But I've gotten to the point now where it's like the ball's in her court. I'm not going to force someone to be friends with me if they don't want to be. I love Brooke. I think she's an amazing person and I want to be friends with her, but she may not want that.


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March 13, 2012: In the present day world almost all the businesses are information driven. Information has become an essential part of any business, which helps them to offer innovative products and to serve the customer in a better manner.
With the increased importance of information in business, the Knowledge Process Outsourcing service providers are now looked upon by the organizations for meaningful information that will promote business growth. This is true in the case companies operating in the retail sector too. KPO service providers provide all the information required to start a business and to run it successfully.
The KPO service providers help retail businesses to find out solutions to the most difficult questions they face in their business. It will give them answers regarding the reasons for decline in market share, whether the pricing of the products or services is proper etc.
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They also provide innovative solutions such as competitive intelligence solutions which help clients to track their competitors on their pricing and launching of new products.
The services provided by KPO firms help clients to handle their business in a better manner. The information provided by the KPO firms will help clients to manage their products and brand better than competitors. More over they help firms to improve the brand image of the clients business with proper marketing techniques and practices.
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Such firms will also help in managing the customers via website, engage customers via social networks and thus build a relation with the customers, for the client. Thus with wide range of services offered by KPO firms, the clients will be able to make their business more attractive and productive.


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Fitness Sport
Sport England's new This Girl Can campaign aims to tackle women's fear of being judged as they exercise - and is a refreshing change from imagery of athletes and models
40+ Special Moments Collection of Sports Photography
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Australians love their sport and the rivalry with NZ is second to none...particularly in the netball!
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Inspirational Motivational Quote Sign Poster Print Picture(IT WILL HURT) SPORTS, BOXING, CYCLING, ATHLETICS, BODYBUILDING, TRIATHLON,BASKETBALL, FOOTBALL, RUGBY, SWIMMING, MARTIAL ARTS ETC ETC: Amazon.co.uk: Kitchen & Home


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Brookston IN Real Estate & Homes for Sale
1 Properties Found
The median home value in Brookston, IN is $139,550.
This is
higher than
the county median home value of $107,200.
The national median home value is $177,414.
The average price of homes sold in Brookston, IN is $139,550.
Approximately 67.33% of Brookston homes are owned,
compared to 21.73% rented, while
10.93% are vacant.
Brookston real estate listings include condos, townhomes, and single family homes for sale.
Commercial properties are also available.
If you see a property you're interested in, contact a Brookston real estate agent to arrange a tour today!
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9172 W 1200 S Brookston, IN 47923
Courtesy: RE/MAX Ability Plus
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2 Barns & 3.75 Acres! Brick ranch w basement delivers 3 BD, 2 full BA, & 2,000 sq ft! Features a newly remodeled kit w quartz countertops & ss apps. Beautiful master suite w walk-in tile shower! Wood coal stove in the 4 seasons sun rm, w soaring vaulted ceilings. Att 2 car garage, large 108x56 pole barn, & 38x32 pole barn. Barns wired w electric, smaller barn plumbed & insulated w concrete floor & heat. Newer roof on house & large barn, new wiring panel w general box (generator stays).
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MLB The Show 16 PS4 holds top five PSN sales in Apr.
By News Division On May 14, 2016 · In Business, News, Playstation 4, Retail, Systems
Sony Corp. this week said MLB The Show 16 for the Playstation 4 ranked in the top five digital download sales at the Playstation Store in Apr. 2016 data.
In Apr., MLB The Show 16 ranked as the No. 4 best-selling PS4 digital download title for the month.
MLB The Show 16 includes gameplay improvements, new game modes, new personalization options.
It sells at $59.99.
Follow us on Twitter @PunchJump, @WeLoveHotDeals, @PreOrderBonus, @SQUARE Gentleman, and visit us at Facebook and YouTube.
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Is this restaurant good for business meetings?
Is this a Steakhouse?
Does this restaurant have a TV?
Does this restaurant serve Bar / Pub food?
Does this restaurant specialize in Soups?
Are the prices at this restaurant mid-range / moderate?
Is this restaurant good for lunch?
Does this restaurant accept reservations?
Is this restaurant good for dinner?
Does this restaurant have tables with seating?
Thanks for helping!
Pacifica Cafe is the only restaurant for Embassy Suites in Seaside, CA (next to Monterey). The menu is attractive, but somewhat limited. The service depends on what time of day you go, but servers are attentive and helpful.
As we were without a car, it was convenient to have meals in the hotel. Apart from breakfast, we ate 3 lunches (soup and freshly cooked bread rolls) and 2 dinners. They were all nicely served and enjoyable.
We had the calamari for an appetizer and it was actually very good. I had the caesar salad with shrimp and didn't eat half....my husband had the caesar salad with tri tip which was over cooked. The service was excellent which is why it's getting a higher rating....
We were given a complimentary dinner for two because my shower was not hot enough and I would take a lukewarm shower again to enjoy the food at Pacifica Cafe.
We had the Filet Mignon which was cooked perfectly! The clam chowder was excellent and would have had my vote at Pismo Beach's Chowder Fest this past year!
The restaurant...
The ranch dressing was very watery. I felt bad for the one staff who had to wait tables, bartender, deliver room servicd while a man in a suit walked around asking if every thing was ok.
Had the Calamari appetizer and really enjoyed it! Very tender and cooked to perfection. The bartender even remembered my non alcoholic beverage of choice!
We ate there late on a Saturday night and actually had to sit in the bar area because they were closing soon but that was okay. The waiter was very friendly, attentive, and knowledgeable of the menu. We started with a grilled artichoke appetizer that came with several sauces to dip in. My wife and I agree that is one...
decent food good pizza. the restaurant is inside the embassy suites and has no water views. there are other nicer places to eat. It's good if you don't want to leave your hotel and like complimentary drinks during the manager's reception.
The restaurant in the hotel was a convenient location for lunch. The food was good and the service was friendly and helpful.
They have very few real entrees. Mostly sandwiches and pizza. I expected more from an Embassy Suites restaurants.
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N. prodotti: 0
Totale ordine: € 0,00
FASCICOLI E ARTICOLI I PIÙ LETTI eTOC
Official Journal of the Italian Society of Physical and Rehabilitation Medicine (SIMFER), European Society of Physical and Rehabilitation Medicine (ESPRM), European Union of Medical Specialists - Physical and Rehabilitation Medicine Section (UEMS-PRM), Mediterranean Forum of Physical and Rehabilitation Medicine (MFPRM), Hellenic Society of Physical and Rehabilitation Medicine (EEFIAP)
In association with International Society of Physical and Rehabilitation Medicine (ISPRM)
Indexed/Abstracted in: CINAHL, Current Contents/Clinical Medicine, EMBASE, PubMed/MEDLINE, Science Citation Index Expanded (SciSearch), Scopus
Impact Factor 2,063
Periodicità: Bimestrale
Online ISSN 1973-9095
Kado D. M.
1 Department of Orthopedic Surgery, UCLA Orthopaedic Hospital, Los Angeles, CA, USA;
2 Department of Medicine, David Geffen School of Medicine at UCLA, Los Angeles, CA, USA
The angle of thoracic kyphosis tends to increase with age resulting in hyperkyphosis in some individuals. While the term "kyphotic" is occasionally used to describe someone with accentuated thoracic curvature, hyperkyphosis is preferred since kyphosis itself refers to the normal sagittal angle of thoracic curvature. Epidemiolo-gic studies have demonstrated that age-related hyperkyphosis commonly affects the elderly population with estimates ranging from 20% to 40%. In addition, hyperkyphosis affects a substantial number of older men. Apart from being a cosmetic deformity, older persons who suffer from hyperkyphosis are at increased risk for a variety of adverse health outcomes that include poor physical function, pulmonary compromise, falls, fractures, and even earlier mortality. Most clinicians and patients have assumed that thoracic hyperkyphosis is a result of underlying spinal osteoporosis, but approximately two thirds of those who are most hyperkyphotic don't have vertebral fractures. Over the past few years, there has been increased awareness and focus on potential effective treatments for age-related hyperkyphosis. Of these treatments, exercise based interventions and spinal orthoses are conservative rehabilitation management techniques that have shown promise in potentially improving health outcomes for affected patients. To date, all of these types of trials have been small in scale, and most short in duration. In the future, larger rigorously designed clinical trials will be needed to test and confirm the efficacy and feasibility of the most promising treatments for age-related hyperkyphosis. This invited review will discuss hyperkyphosis in terms of its etiology, clinical associations, and treatment in elderly individuals.
lingua: Inglese


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Firstwatch: A day for bird watching and quitting smoking
If you're a smoker and you're trying to stop, here's some good news to start your Thursday: Smoking isn't that hard to quit.
Hey, Louis C. Camilleri, the head of Philip Morris International Inc., said so. To a cancer nurse. And his company makes cigarettes, so he should know.
Camilleri seems to be getting push back on this belief, but you might as well give it a shot. Camilleri did. He quit for a whole three months one time, according to the reports.
So, good news. Today is the first day of the end of your habit. Toss those sticks into the trash.
If you received help from the federal government after a recent disaster, the news might not be so rosy. The Federal Emergency Management Agency is seeking $1.1 million from state residents who received aid after recent floods, sewer backups and other incidents. Our Tom Held has the details.
Sorry. If you're looking for sunny weather, the weather isn't cooperating. Showers and thunderstorms are likely, mainly in the afternoon, according to the forecast.
So it's not ideal weather for bird watching, but the state's most intense bird watchers will gather to explore their passion.
The Wisconsin Society for Ornithology holds its 72nd annual convention today through Sunday in La Crosse.
- Video: Frank Kaminsky dances for Charlotte Hornets fans in China
- Eddie George taunts Bucky with Ohio State boast on 'Fox & Friends'
- NYT features Milwaukee in story about rising murder rates
- Wanna see JJ Watt knock over a Gatorade vending machine? You're welcome
- Video: John Daly tosses club into Lake Michigan after trouble on 7th
- Social media reacts to lion spotted in Milwaukee
- JJ Watt achieves lifelong dream -- of meeting Jennifer Aniston
- 'Harley Davidson Arena'? Google Maps says so
- Bing changes photo, puts UW fan in Duke crowd
- Taliesin, Milwaukee included in grad student's massive road trips maps


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Knock Out
Release Date: October 15th, 2010
Not Yet Rated|1 hr. 52 min.
Plot Summary
A sniper (Sanjay Dutt) holds a businessman (Irrfan Khan) hostage in a phone booth and triggers a history-changing act.
Cast: Sanjay Dutt, Irrfan Khan, Kangana Ranaut, Joey Ansah, Gulshan Grover, Silvio Simac, Rukhsar, Sushant Singh
Director: Mani Shankar


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Miami (Ohio) RedHawks Basketball vs Akron Zips Tickets
Sat, January 14, 2017 @ 03:30 PM
Millett Hall | Oxford , OH
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WRF Insurance Partner to Speak at Women's Conference
Wiley Rein & Fielding partner Laura A. Foggan will be speaking on "Proven Techniques for Negotiating to Best Advantage" at The National Institute for Women Corporate Counsel's 10th Anniversary Conference on July 25-26, 2005, at the AICPA Boardroom in New York, NY.
The conference will feature top women corporate counsel representing a wide array of industries, including education, technology, hospitality, manufacturing and more. Topics include setting and achieving goals for personal and corporate success, best practices in law department management, compliance management as a risk management tool and strategies for time- and cost-effective litigation.
For the agenda and registration information, please view the conference brochure.


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This completely renovated 3 bedroom/ an, high vaulted ceilings, rich hardwood floors, and a dramatic circular staircase which leads up to the 2nd floor. One bedroom is located downstairs with two master bedrooms suites upstairs, this home allows everyone to live comfortably. The living room is adorned with a cozy → Read More
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Manager / Assistant Manager – Research and Consulting (THAI NATIONALS ONLY)
Jones Lang LaSalle (Thailand) Limited
jobsDB ref: JTH300003001238492
Location: Bangkok, Thailand
Job Description and Responsibilities
We are currently expanding our Research and Consulting Group in the Bangkok office and are seeking an enthusiastic Manager or Assistant Manager to support our efforts to provide clients with in-depth insight and analysis on real estate markets in Thailand, Cambodia, Lao PDR, and Myanmar. This is an excellent opportunity to be an integral part of an award-winning team in a professional, multi-national working environment. The position is backed by a strong and supportive property and economic research capability, unique database, and access to major clients. This position offers a considerable challenge, industry profile, and long-term career potential in an industry-leading, globally oriented international firm.
As a Manager or Assistant Manager, the successful candidate will:
- Oversee data collection, maintenance, updating and expansion our best-in-class research database,
- Lead the composition of local and regional research reports related to real estate issues,
- Lead the preparation consulting reports and ensure client expectations are exceeded in terms of content and presentation,
- Provide English language support services internally and to clients,
- Engage and coordinate with clients and industry professionals,
- To perform other tasks as assigned
Qualifications and Experience
Required (Placement as Manager or Assistant Manager depending on experience and education)
- Bachelor's degree in Business, Finance, Economics, Urban Planning, Architecture or other related field,
- Graduate degree in a similarly related field,
- Minimum of 2-3 years professional experience in real estate, urban development or finance
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April 22, 2009
BRADLEY D. AUSMUS; ELIZABETH A. AUSMUS, PLAINTIFFS,v.LEXINGTON INSURANCE COMPANY; AMERICAN INTERNATIONAL GROUP, INC.; DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.
ORDER GRANTING MOTION TO DISMISS [doc. #2] and DIRECTING ENTRY OF JUDGMENT
On December 22, 2008, Defendants filed a motion to dismiss the action. (Doc. No. 2.) On January 26, 2009, Plaintiffs filed their response in opposition to the motion to dismiss. (Doc. No. 5.) Defendants filed their reply in support of their motion on February 2, 2009. (Doc. No. 7.) The Court concludes that this matter is appropriate for resolution without oral argument and submits the motion on the papers under Civil Local Rule 7.1(d)(1). For the following reasons, the Court dismisses Plaintiffs' complaint and denies leave to amend.
Plaintiffs' complaint alleges causes of action against Defendants for breach of contract, breach of the implied covenant of good faith and fair dealing in connection with damage to their home caused by Defendants' insured, American Coatings, Inc. (Doc. No. 1.)
Plaintiffs own the residence located at 1644 Stratford Way, City of Del Mar, California. (Compl. ¶ 2.) American Coatings, Inc., along with several other subcontractors, provided materials and labor used in the construction of plaintiffs' home. American Coatings completed its work on the residence in approximately 1998. (Compl. ¶ 7.) In November 2005, the residence suffered damage due to leaks in and through the foundation walls. These leaks were allegedly caused by defects in construction attributable to the negligence of the subcontractors, including American Coatings. (Compl. ¶ 8.)
Subsequently, Plaintiffs filed a complaint against the developer and subcontractors in San Diego Superior Court. (Compl. ¶ 9.) Plaintiffs allege that Defendants initially appointed their in-house attorneys to defend American Coatings in the litigation, but later withdrew from representation. (Compl. ¶ 10.) Before trial, Plaintiffs settled with all defendants, with the exception of American Coatings, in the amount of $850,000 for the below grade water intrusion damage. (Id.) As part of the settlement, the developer and certain subcontractors assigned to Plaintiffs their rights for contribution and indemnity against American Coatings. (Compl. ¶ 12, 13.) American Coatings then settled with the Plaintiffs. The settlement agreement provided for a stipulated entry of judgment against American Coatings in the amount of $537,575 and an assignment by American Coatings of its indemnification rights against Defendants Lexington Insurance Company ("Lexington") and American International Group, Inc. ("AIG"). (Compl. ¶ 15.)
On February 1, 2001, Lexington issued a comprehensive insurance policy to American Coatings. (Compl. ¶ 16; Kurz Decl. in Opp. to Mot. to Dismiss ["Kurz Decl."] Ex. 1.) This policy covered work performed by American Coatings with no date restrictions. (Id.) The policy was renewed April 1, 2002 and again on April 1, 2003 -- each time with no date restrictions on covered work. (Kurz Decl. Ex. 2, 3.) On April 1, 2004, Lexington once again renewed American Coatings's policy. (Kurz Decl. Ex. 4.) This new policy contained an endorsement entitled "Exclusion - Designated Work." (Id. at 224.) That endorsement states that the insurance does not apply to property damage arising out of American Coatings's work completed prior to April 1, 2001. (Id.) The following year, on April 1, 2005, Lexington issued another renewed policy, which also contained the endorsement limiting the time period for covered work. (Id. at 288.)
Based on this exclusionary endorsement, nominally in effect when the Residence was damaged, Defendants move for dismissal of Plaintiffs' case under Federal Rule of Civil Procedure 12(b)(6).
I. Legal Standard
Rule 12(b)(6) provides that a complaint may be dismissed for "failure to state a claim upon which relief may be granted." FED. R. CIV. P. 12(b)(6). A complaint fails to state a claim when it lacks a cognizable legal theory or states insufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). The Supreme Court has stated that the factual allegations of a complaint must be "enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). If the complaint fails to "state a claim for relief that is plausible on its face," it should be dismissed. Twombly, 127 S.Ct. at 1960.
In general, the scope of review on a motion to dismiss for failure to state a claim is limited to the contents of the complaint. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). However, a court may consider evidence on which the complaint "necessarily relies" as long as: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion. Id.
II. Lexington's Exclusionary Endorsement
As an initial matter, the Court notes that Plaintiffs' complaint necessarily relies on the language of its insurance policy with Defendant Lexington. The complaint refers to the policy and it is central to the Plaintiffs' breach of contract claim. (Compl. ¶ 16-20.) Plaintiffs have not challenged the authenticity of the policy copies submitted along with Defendants' motion to dismiss. Accordingly, under Marder, the Court may properly rely on its contents in evaluating Defendants' motion. 450 F.3d at 448.
If Lexington's coverage exclusion is binding on the parties, Defendants are not liable for the damage to the Residence and Plaintiffs will have no cognizable legal theory to support their claim. Plaintiffs argue that the exclusion is void for two reasons. First, Plaintiffs assert that Lexington failed to adequately notify American Coatings of the reduction in coverage in the April 1, 2004 policy as required by California state law. Second, Plaintiffs argue that the exclusionary endorsement is not clear and understandable. The Court considers these arguments in turn.
A. Notification of Reduction in Coverage
The Complaint alleges that "[a]t no time prior to either the issuance of the [April 1, 2005] policy or to the date American Coatings notified Lexington of plaintiffs' claim did Lexington notify American Coatings that the policy purported to afford less coverage than the policies issued by it during the first three policy periods . . . ." (Compl. ¶ 20.) Plaintiffs argue that this failure to notify American Coatings of reduced coverage violated California Insurance Code § 678.1(c) and renders the exclusion void. That statute requires an insurer to notify a policy holder before the expiration of a policy if the insurer intends not to renew the policy or to condition the renewal upon elimination of coverages. CAL. INS. CODE § 678.1(c).
However, § 678.1(a) states, "This section applies only to policies of insurance of commercial insurance that are subject to Sections 675.5 and 676.6." CAL. INS. CODE § 678.1(a). Section 675.5 applies "to any policy of insurance specified in Section 675" and to policies of commercial insurance issued after January 1, 1987. CAL. INS. CODE § 675.5(a). While Section 675 includes "policies primarily insuring risks arising from the conduct of a commercial or industrial enterprise," § 675.5(d)(7) excludes surplus line insurance from its definition of commercial insurance. The policies issued to American Coatings in 2002, 2003, 2004 and 2005 contain full page notices informing the policy holder that Lexington is a surplus line insurer. (Kurz Decl. Ex. 2-5.) Because American Coatings's carried commercial surplus line insurance, the policies were not covered by § 678.1(c).
Section 676.6 applies to "commercial umbrella liability insurance policies, commercial excess liability insurance policies, and commercial excess property insurance policies." CAL. INS. CODE § 676.6(a). American Coatings's policies with Lexington do not fall into any of these categories. Accordingly, Lexington had no statutory duty to notify American Coatings of the reduction in coverage.
B. Clarity and Conspicuousness of the Exclusion
Alternately, Plaintiffs argue that the exclusion is void because it is not sufficiently clear and conspicuous. In California, "policy exclusions are strictly construed." E.M.M.I. Inc. v. Zurich American Ins. Co., 32 Cal. 4th 465, 471 (Cal. 2004). To be effective, "the exclusionary clause must be conspicuous, plain and clear." Id. (internal quotes omitted). Whether an exclusion meets this standard is a question of law to be decided by the Court. See, Malcom v. Farmers New World Life Ins. Co., 4 Cal. App. 4th 296, 300 (Cal. Ct. App. 1992); Marquez Knolls Property Owners Assoc., Inc. v. Executive Risk Indemnity, Inc., 153 Cal. App.4th 228, 233-234 (2007) ("The interpretation of an exclusionary clause is an issue of law subject to this court's independent determination.").
To be conspicuous, "an exclusion must be positioned in a place and printed in a form which will attract the reader's attention." Haynes v. Farmers Ins. Exchange, 32 Cal. 4th 1198, 1216 (Cal. 2004). In this case, the April 1, 2005 policy contains a "Forms Schedule" near the beginning of the document which lists exclusions including the "Past Work Exclusion." (Kurz Decl. Ex. 5 p. 230.) The exclusion itself is positioned along with the other coverage exclusions and appears on its own page with key portions in capital letters. Accordingly, the Court concludes that the exclusion is sufficiently conspicuous as a matter of law.
"To be plain and clear, the substance of the exclusion must be precise and understandable." Malcom, 4 Cal. App. 4th at 301 (internal quotes omitted). Its substance must be "stated in words that convey the proper meaning to persons expected to read the contract." Haynes, 32 Cal. 4th at 1216. Here, the exclusion begins by stating that "this endorsement changes the policy. Please read it carefully." It is entitled "Exclusion -- Designated Work." It then states that "This insurance does not apply to 'bodily injury' or 'property damage' included in the 'products -- completed operations hazard' and arising out of 'your work' shown in the schedule." On the same page, the schedule defines "your work" as "all work completed prior to the first date of continuous insurance coverage provided by Lexington Insurance Company." (Kurz Decl. Ex. 5 p. 288.) The Court concludes that the exclusion is sufficiently precise and understandable and conveys the proper meaning to persons expected to read it. By its clear language, it excludes designated work from coverage. It then goes on to explain what work is excluded. Accordingly, the exclusion is plain and clear as a matter of law.
Because American Coatings's policies are not covered by California Insurance Code § 678.1(c), and because the exclusion is clear and conspicuous, the Court concludes as a matter of law that the Lexington policy did not cover damage arising out of work completed by American Coatings before April 1, 2001. American Coatings completed work on the residence in approximately 1998. Accordingly, the damage to the residence is excluded from coverage and Plaintiffs' complaint lacks a cognizable legal theory. Robertson, 749 F.2d at 534.
III. Conclusion
Based on the foregoing, the Court dismisses Plaintiffs' complaint with prejudice. The Court concludes that Plaintiffs are unable to cure the deficiencies of their complaint and denies leave to amend. The Clerk of the Court is directed to enter judgment in accordance with this Order.
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Super Smash Bros. Global is the fifth game in the Super Smash Bros. series of games. It contains many characters from across all series of consoles, and some fan favorites, to be in Smash!


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Transatlantic Women's Literature
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Transatlantic Women's Literature by Heidi Slettedahl MacPherson
Book DescriptionTransatlantic Women's Literature is a valuable contribution to the evolving debate surrounding Transatlantic Studies and transatlantic literature. Its originality and importance lie in its focus on 20th century women's narratives of travel and adventure, and its deliberate expansion of the Transatlantic concept beyond the familiar US-UK axis to include Canada, South America, the Caribbean, and Eastern Europe. The crisscrossing of the Atlantic is contested and problematised throughout. The book explores culturally resonant literature that imagines "views from both sides" and examines the imaginary, "in-between" space of the Atlantic. It offers a considered exploration of the way in which the space of the Atlantic-and women's space-work together in the construction of meaning in transatlantic texts. Focusing on contemporary literature, this book engages with a range of genres, from novellas and novels to essays, memoirs, and travel literature. Nella Larsen's Quicksand is read alongside Bharati Mukherjee's Jasmine in relation to constructions of the exotic; Eva Hoffman's Lost in Translation is explored in relation to memoirs of travel such as Jenny Diski's Skating to Antarctica and Stranger on a Train; and Anne Tyler's transatlantic novel The Accidental Tourist is read alongside her latest transpacific novel, Digging to America as well as Isabel Allende's Daughter of Fortune. Readers will gain an appreciation of the complexity of the transatlantic narrative and the ways in which these narratives are defined by and infused with gender considerations.
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Book DetailsISBN: 9780748624454
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Publish Date: 4-Nov-2008
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Heidi Slettedahl Macpherson is Dean of the Faculty of Humanities, De Montfort University. She is the author of Courting Failure: Women and the Law in 20th-Century Literature (University of Akron Press, 2007), Women's Movement: Escape as Transgression in North American Feminist Fiction (Rodopi, 2000) and co-editor of Transatlantic Studies (UPA, 2000), New Perspectives in Transatlantic Studies (UPA, 2002) and Britain and the Americas: Culture, Politics and History (a 3-volume encyclopedia) (ABC-Clio, 2005).
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Manfred Krug (1937-2016) was a German actor who played Manfred on Sesamstrasse from 1982 to 1983.
He replaced Uwe Friedrichsen on the show, and was usually paired with Lilo, played by Liselotte Pulver, to interact with Samson, Tiffy, Finchen, and Uli von Bödefeld in the street scene frame stories.
After Sesamstrasse, Krug appeared on the long-running crime series Tatort, playing Hauptkommissar Stoever in the Hamburg-produced episodes from 1984 until 2001.