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decided: April 20, 1979.
COMMONWEALTH OF PENNSYLVANIAv.WILLIAM J. PALMER, APPELLANT
No. 1152 October Term, 1978, Appeal from the Judgment of sentence entered February 27, 1978, by the Court of Common Pleas, Criminal Division, Northampton County, at No. 1631-1977.
Donald P. Russo, Public Defender, Bethlehem, for appellant.
John J. Segata, Jr., Assistant District Attorney, Bethlehem, for Commonwealth, appellee.
Van der Voort, Watkins and Montgomery, JJ. Van der Voort, J., concurs in the result.
[ 265 Pa. Super. Page 463]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Northampton County, Criminal Division, by the defendant-appellant, William J. Palmer, after conviction by a jury of driving under the influence. He was fined $350.00 as a result of the conviction.
On appeal, the defendant claims that there was insufficient evidence adduced at trial in order to establish his guilt beyond a reasonable doubt.
At 2:21 A.M. on the morning of July 9, 1977 a police officer of the Upper Mt. Bethel Township police department received a call concerning an accident on Route 611 in the Village of Mt. Bethel, just south of Middle Village Road. The officer responded to the call and arrived at the scene at 2:35 A.M. where he discovered a vehicle the front end of which was hanging off the roadway over an embankment. The officer saw two men standing near the rear portion of
[ 265 Pa. Super. Page 464]
the vehicle and asked them who the driver of the vehicle was. The defendant responded that he was the driver. He then asked the defendant for his driver's license and owner's card. Although he was able to produce these documents he had great difficulty extracting them from their normal resting place as he was staggering about and fumbling for the requested items. The officer also noticed a strong smell of alcohol while talking to the defendant and the defendant's voice was unsteady, wavering and muffled.
The officer then suggested that the defendant be seated in the police vehicle while he inspected the vehicle's damages. Defendant complied with this suggestion but then left the police vehicle twice and attempted to walk to his home which was a relatively short distance away. The officer had to bring him back to the vehicle both times and during the second episode the defendant threw a punch at one of the other officers who had arrived on the scene. At that point he was handcuffed.
At trial another officer testified that the guardrail where defendant's vehicle was found was dented, that the wheels of defendant's vehicle were still warm when he arrived at the scene, and that the guardrail and a metal pole had been damaged about one-quarter mile down the roadway from where they came upon defendant's vehicle. They found a portion of defendant's vehicle's chrome at that point and paint scrapings removed from that area matched the paint on defendant's vehicle.
Defendant claims that the foregoing evidence was insufficient to convict him to driving under the influence as a matter of law as no one actually saw him driving the vehicle or behind the steering wheel. The problem with this argument is that the defendant admitted that he was the operator of the vehicle to the investigating police officer and, of course, this admission is admissible at trial as an exception to the hearsay rule. Logue v. Gallagher, 133 Pa. Super. 570, 3 A.2d 191 (1939). However, defendant claims that the admission by the defendant that he was the operator of the vehicle amounted to a confession and that
[ 265 Pa. Super. Page 465]
the conviction was therefore invalid because the confession was introduced where the Commonwealth had failed to prove the corpus delicti of the crime beyond a reasonable doubt. With this contention we disagree. The Pennsylvania Motor Vehicle Code defines the crime of operating under the influence as follows:
"(a) A person shall not drive any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving: . . . ."*fn1
To be guilty of the offense, which is a misdemeanor of the third degree, the person must have: (1) operated a vehicle while (2) under the influence which renders him incapable of safe driving. Operating a motor vehicle in and of itself is no crime. Being involved in an accident when operating a motor vehicle is no crime in and of itself. Operating a vehicle becomes a crime only when the person partakes in the endeavor while under the influence of alcohol to a degree which renders him incapable of safe driving. Therefore, when the officer asked of the two men near the damaged vehicle which one of them the operator was he was not asking them to confess to a crime. Had the officer asked the men which one of them "had operated the vehicle while under the influence", the question would have amounted to requesting a confession. But merely asking the identity of an operator of a vehicle is not asking for a confession even though this information later is used as an admission against interest when it was determined that the defendant was under the influence.
As the court below stated: "Thus, the defendant misconstrues the meaning of 'corpus delecti' for the rule makes no requirement that the accused be identified with the crime as a prerequisite to offering and having received in evidence statements made by him."
Therefore, whether proof of the corpus delecti of the crime need be established before a confession can be admitted into evidence in a misdemeanor case (a doubtful proposition
[ 265 Pa. Super. Page 466]
at best) or not we need not address that issue here because we hold that the statement made by defendant did not amount to a confession. When the defendant stated that he was the operator of the vehicle it became incumbent upon the Commonwealth to prove that he was doing so under the influence of alcohol or other intoxicants at the time of such operation.*fn2 This he did to the jury's satisfaction.
Judgment of sentence affirmed.
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September 2, 2010
VERNETTA WILLIAMS, PLAINTIFF,v.NICASA NFP, DEFENDANT.
Vernetta Williams ("Williams") has filed a self-prepared Complaint of Employment Discrimination*fn1 against her ex-employer, which her case caption lists as "NICASA NFP" ("NICASA"*fn2 ), using the form of such Complaint provided by this District Court's Clerk's Office for pro se plaintiffs. Williams has accompanied her Complaint with two other documents, again using Clerk's-Office-supplied forms: an In Forma Pauperis Application ("Application") and a Motion for Appointment of Counsel ("Motion"). This memorandum opinion and order is being issued contemporaneously with the issuance of this Court's customary initial scheduling order.
To begin with, the Application demonstrates Williams' inability to pay the initial filing fee, so the Application is granted. In addition, the Motion reports a substantial number of efforts by Williams to obtain counsel on her own, and with all of those efforts having been unsuccessful, this Court has obtained the name of this member of the trial bar to provide Williams with legal representation pro bono publico:
Dennis H. Stefanowicz, Jr.
Holman & Stefanowicz, LLC 233 South Wacker Drive Suite 5620 Chicago IL 60606 (312)258-9700
To turn to the Complaint, this Court has noted that it was filed on September 1, 91 days after the June 2 date when Williams received EEOC's right-to-sue letter according to Complaint ¶8(b).*fn3 Like other courts, our Court of Appeals (and this Court following its lead) have found even one day's tardiness enough to require dismissal of a Title VII employment discrimination case unless the defendant does not raise the issue--but in this instance this Court finds Williams' lawsuit viable because her identification of alleged race-based discrimination in Complaint ¶9(e) invokes 42 U.S.C. §1981 ("Section 1981") as well as Title VII, and a Section 1981 claim is not subject to any administrative precondition (see, e.g., Tyson v. Gannett Co., 538 F.3d 781, 783 (7th Cir. 2008)).
Accordingly, in conjunction with the earlier-mentioned appointment of pro bono counsel, he will be expected (1) to arrange for service of process on NICASA and (2) to comply with the provisions of this Court's scheduling order in advance of the initial status hearing date. That should enable counsel for both parties to be present at that time to provide a progress report.
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May 4, 2007
PHILLIP O'NEIL, PETITIONER,v.STEPHEN C. BRYANT, RESPONDENT.
This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 17) of Magistrate Judge Clifford J. Proud recommending that the Court deny petitioner Phillip O'Neil's ("O'Neil") petition for a writ of habeas corpus under 28 U.S.C. § 2254. O'Neil has objected to the Report (Doc. 18).
I. Report and Recommendation Review Standard
After reviewing a magistrate judge's report and recommendation, the Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court must review de novo the portions of the report to which objections are made. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999). Because O'Neil has objected to every aspect of the Report, the Court reviews all issues de novo.
II. Background
The Report sets forth a complete picture of the relevant facts, to which no party has objected, and the Court sees no need to repeat those facts here. Suffice it to say for now that O'Neil was convicted in an Illinois state court in 1994 for the murder of Michael Adams. He appealed his conviction and filed two state petitions for post-conviction relief, none of which resulted in a reversal of his conviction. O'Neil then filed this petition under 28 U.S.C. § 2254 raising three basic arguments: (1) that he was denied effective assistance of counsel because his trial counsel pursued a theory of innocence and not self-defense and because his trial counsel failed to call him and two other witnesses to testify, (2) that the prosecution improperly used perjured testimony in front of the grand jury and at trial and withheld exculpatory evidence and (3) that his second state post-conviction petition was erroneously dismissed.
III. The Report
The Report finds that O'Neil's prosecutorial misconduct claims were procedurally defaulted because, while he raised the issues in his first post-conviction petition and touched on them in his appeal of the denial of that petition to the Illinois Appellate Court, he never presented those issues to the Illinois Supreme Court. The Report further found that O'Neil's procedural default was not excusable because he did not establish cause or prejudice from failing to do so or that the failure to hear his claims in this forum would amount to a fundamental miscarriage of justice.
The Report further found that the Appellate Court's resolution of O'Neil's ineffective assistance of counsel claims on direct appeal from his criminal conviction was not contrary to and did not involve an unreasonable application of clearly established federal law. The Appellate Court identified the proper legal standard -- Strickland v. Washington, 466 U.S. 668 (1984) -- and reasonably applied it consistent with United States Supreme Court precedent.
Finally, the Report noted that the Illinois courts properly rejected his second petition for post-conviction relief because it did not present a state or federal constitutional claim and that any flaws in the Illinois courts' conclusions cannot serve as a basis for federal habeas relief.
IV. O'Neil's Objection
O'Neil objects to the Report's recommended disposition of his prosecutorial misconduct claims, arguing that the trial court that decided his first post-conviction petition did not understand, and therefore did not decide, many of the issues he raised in that petition. O'Neil believes this prevented him from presenting his claims to the Illinois Supreme Court.
O'Neil also objects to the Report's recommended disposition of his ineffective assistance of counsel claims. He believes the Illinois Appellate Court unreasonably applied Strickland to the facts when it did not find counsel ineffective after he promised the jury it would hear certain evidence about what O'Neil said during the events at issue in his criminal case, then declined to call O'Neil to the stand.
O'Neil objects to the Report's recommendation with respect to the issues regarding his second post-conviction petition. He makes other arguments about why the Illinois courts' resolution of the petition was wrong.
V. Analysis
The Court has conducted a de novo review of all the issues to which O'Neil objects. It will address each issue in turn.
A. Procedural Default of Prosecutorial Misconduct Claims
The Report was correct that O'Neil procedurally defaulted his prosecutorial misconduct claims by failing to present them to the Illinois Supreme Court and that he has not shown cause for or prejudice from that default. Before a federal court will grant habeas relief to a state prisoner, the prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Illinois, this includes presenting the issue in a petition for leave to appeal to the Illinois Supreme Court even though that review is discretionary. Id.
In O'Neil's case, his pro se petition for leave to appeal the denial of his first post-conviction petition to the Illinois Supreme Court did not contain his prosecutorial misconduct arguments. Thus, those claims were procedurally defaulted.
In his objection, O'Neil seeks to avoid the consequences of that default by arguing that he had cause for it and will suffer prejudice from it. Procedural default can be excused if the petitioner can show cause for the default and prejudice from it. Dretke v. Haley, 541 U.S. 386, 388 (2004).
There was no cause for O'Neil's default. He was not foreclosed from raising his claims in his petition for leave to appeal to the Illinois Supreme Court simply because the trial court that decided his first post-conviction petition and the Appellate Court that affirmed that denial may not have fully understood or appreciated those claims. He could have included those claims in his petition and argued that the lower courts had inadequately addressed them, but he did not.
Furthermore, O'Neil has not offered any evidence of prejudice. In light of the overwhelming evidence against him at trial, the prosecutorial misconduct he alleges was not serious enough to call into question the fundamental fairness of the proceedings or to have had a reasonable probability of changing their results.
Because O'Neil has failed to establish cause and prejudice for his procedural default, that default cannot be excused.
B. Ineffective Assistance of Counsel Claims
The Report was correct that the Illinois Appellate Court properly and reasonably applied the Strickland v. Washington, 466 U.S. 668 (1984), test to O'Neil's ineffective assistance of counsel claims on direct appeal.
With respect to claims adjudicated on the merits in state court, a federal court can grant a writ of habeas corpus only if the state court proceeding "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." 28 U.S.C. § 2254(d)(1). A decision is "contrary to" clearly established Supreme Court law if the state court (1) applies a rule that contradicts the governing law as determined by the Supreme Court or (2) decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000); see Ouska v. Cahill-Masching, 246 F.3d 1036, 1044 (7th Cir. 2001). A decision is an "unreasonable application of" clearly established Supreme Court law if the state court applies the proper law to the facts of a criminal defendant's case in an objectively unreasonable manner. Williams, 529 U.S. at 407; Ouska, 246 F.3d at 1044. An unreasonable application is different than an incorrect or erroneous application of federal law. Williams, 529 U.S. at 410; Roche v. Davis, 291 F.3d 473, 481 (7th Cir. 2002). As long as the state court acted reasonably, this Court is not permitted to substitute its own independent judgment as to the outcome. Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000).
In this case, the Illinois Appellate Court identified the correct legal standard -- Strickland. O'Neil has not pointed to, and the Court has been unable to find on its own, any Supreme Court case with materially indistinguishable facts that was decided any differently. Furthermore, the Court cannot say that the Illinois Appellate Court applied Strickland to the facts in an objectively unreasonable manner. The Illinois Appellate Court's opinion exhibited thoughtful and reasonable analysis of the evidence, the defenses available to O'Neil in light of that evidence and his counsel's performance in light of those choices. Counsel's performance cannot therefore serve as a basis for habeas relief.
C. Dismissal of Second Post-Conviction Petition
The Report was correct to find that nothing relating to the denial of O'Neil's second post-conviction petition presented any constitutional issue warranting federal habeas relief.
VI. Conclusion
For the foregoing reasons, the Court ADOPTS the Report (Doc. 17), DENIES O'Neil's petition for a writ of habeas corpus (Doc. 1) and DIRECTS the Clerk of Court to enter judgment accordingly.
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"If you are truly flexible and go until... there is really very little you can't accomplish in your lifetime."
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Native Plants
Q. Who is Mr. Smarty Plants?
A: There are those who suspect Wildflower Center volunteers are the culpable and capable culprits. Yet, others think staff members play some, albeit small, role. You can torture us with your plant questions, but we will never reveal the Green Guru's secret identity.
Did you know you can access the Native Plant Information Network with your web-enabled smartphone?
Ask Mr. Smarty Plants is a free service provided by the staff and volunteers at the Lady Bird Johnson Wildflower Center.
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Wednesday - June 09, 2010
From: Austin, TX
Region: Southwest
Topic: Diseases and Disorders, Transplants, Watering, Trees
Title: Texas Pistachio trees dropping leaves in Austin
Answered by: Barbara Medford
QUESTION:I have several Texas Pistachio that are about 13 years old. Despite good rainfall in Travis county this year, they seem to be losing most of their new leaf growth now in early June. Leaves are simply yellowing and dropping much as they would in the winter. Any idea what the problem could be?
While Pistacia mexicana (American pistachio) is native to Texas, this USDA Plant Profile shows it growing in only one county in the Big Bend area. That doesn't mean it won't grow in Austin, because obviously they do, at least for 13 years anyway. If they had not gone ahead and leafed out in the Spring, we would have blamed the very unusual cold temperatures we had this past winter. That could still be the problem.
What we have to do is try to discover what happened between last year and this year that could be causing this. For instance, has some kind of herbicide or "weed and feed" fertilizer been spread on your grass to get rid of broad-leafed weeds? Trees are also broad-leafed plants, and a too-vigorous application or (in the case of spraying) a brisk wind might have caused the leaf drop. Of course, if the same conditions don't apply to all the trees showing stress, that is probably not the only cause of the problem. Another clue we found said that the pistachio could flourish for years in the right location,and suddenly die of root rot from too much moisture in the soil. Have you put in a sprinkler system or started wateriing more often? We had several dry years and then a more normal rainfall. If the drainage in your soil is not good, the roots of the pistachio could be drowning. Desert trees do not flourish in lush conditions.
Finally, take a good close look at the tree. While we found no documentation of disease or insect pests bothering this plant, it's always a possibility. Beyond that, we are out of ideas. If you are watering more, we would suggest you direct it away from your trees. You might try treating it like transplant shock, and trimming away some of the upper portion of the trees. If the roots are struggling, this could help them get the needed moisture up to the leaves so the leaves can continue to manufacture food for the whole plant. Don't fertilize.The last thing stressed roots need is stimulation to put on new growth when they are just trying to stay alive.
Fiinally, we suggest you contact the Texas AgriLIFE Extension Office for Travis County and see if they have encountered similar problems in the neighborhood.
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- Product Details
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ERIC Number: ED393866
Record Type: RIE
Publication Date: 1995-Jun-16
Pages: 40
Abstractor: N/A
Reference Count: N/A
On the Behrens-Fisher Problem: A Review.
Kim, Seock-Ho; Cohen, Allan S.
The Behrens-Fisher problem arises when one seeks to make inferences about the means of two normal populations without assuming the variances are equal. This paper presents a review of fundamental concepts and applications used to address the Behrens-Fisher problem under fiducial, Bayesian, and frequentist approaches. Methods of approximations to the Behrens-Fisher distribution and a simple Bayesian framework for hypothesis testing are also discussed. Finally, a discussion is provided for the use of generalized "p" values in significance testing of hypotheses in the presence of nuisance parameters. It is shown that the generalized "p" value based on a frequentist probability for the Behrens-Fisher problem is numerically the same as those from the fiducial and Bayesian solutions. A table of tests of significance is also included. (Contains 3 tables, 2 figures, and 93 references.) (Author)
Publication Type: Reports - Evaluative; Speeches/Meeting Papers
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: Behrens Fisher Problem; P Values; Variance (Statistical)
Note: Paper presented at the Annual Meeting of the Psychometric Society (Minneapolis, MN, June 1995).


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- Developer: Chris Chang
- Genre: Family
- Release: Aug 19, 2009
If you are stuck on Blockhead level 8 you came to the right place. Below you will find a video walkthrough and some written tips that will guide you through that level. Have fun and enjoy this great game.
level 8 Walkthrough
This page contains Blockhead video walkthroughs for iOS (iPhone/iPad) called "flash game walkthrough finale/ending" and has been uploaded on DestructiveDave1900 official channel at May 9, 2013.
Still need help with this level? Here you can ask questions and discuss with other Blockhead users.
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Stuck on some levels in Blockhead? This walkthrough can help you finish the game.


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Torrentz.eu, one of the world's largest torrent sites, has announced "farewell" to its millions of users. The meta-search engine, which hosted no torrents of its own but linked to other sites including The Pirate Bay, has decided to cease its
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|This is a discussion on Finishing Deeper within the online poker forums, in the Tournament Poker section; Hey guys, I'm pretty new to tournament play although I'm a fairly experience ring game player. In my tournaments, I usually finish in the money but
Finishing Deeper
Hey guys,
I'm pretty new to tournament play although I'm a fairly experience ring game player. In my tournaments, I usually finish in the money but usually just barely, and I often have a hard time making a deep finish into any tournament.
Most often, it's because I succumb to a pitfall where I have a good hand and someone has just a little better. For example, I had pocket 9's and flopped a set, but then someone else had pocket A's and also hit their set.
Any advice on how to avoid these mistakes? I need to build my chip stack on big hands but I always seem to get a bad beat sooner or later, ending my tournament life and leaving me with worse results than I had hoped for.
It's not really an issue of this single hand but more of a general theme of me getting beat out on a good hand when someone has just a little bit better hand that's not obvious. I get what you're saying though, that maybe there's a trend in my play. I don't know how to get the hand history though. I'm not very well versed in online play, but I'm generally a good poker player. If you tell me how to post the hand history then I can definitely do that for you. Thanks for the reply.
re: Poker & Finishing Deeper
It's just bad luck. You can't do anything about it.. something like set vs. set or AQ vs AK or KK vs AA ect. is nothing you can do. But it seems to me that you need to steal more blinds on the bubble to sustain a comfortable chip stack when you're moving up in cash.
re: Poker & Finishing Deeper
Set vs. set is just too unlikely, if ur getting it in with a set and someone has a higher set thats just a cold deck... dont worry about that.
Tips for getting deeper:
- Don't play to just cash, play to win the tournament. Dont look at the bubble and say "if i play tight here I will cash..." it leads to too small of a chipstack fight after the bubble.
- Don't worry about your position in the overall tournament, only be comparing your stack to those around you. If you really want to measure your capability to succeed and win the entire tournament, keep your chipstack measured against the avg as that is middle of the field.
- When play tightens up around the bubble, you must learn to be able to steal blinds and antes, this allows you to keep your chipstack up to at least the same level, if not increasing it slowly.
- After the bubble, play should loosen up, especially in larger fields. This means you should tighten up and wait for better cards to go after people. This wont work if your shortstacked, if you are, wait for position and shove with any good looking starting hand.


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We've had some lean DVD offerings in the past, but this week could take the cake for the most paltry. On March 24th, 2009, you can choose among a Czech double-feature, two Sci-Fi Channel (before they were Syfy) originals, the saga of a Japanese serial killer who happens to be handicapped, and an obscure indie that sounds like the best of the bunch.
Enjoy the calm before the storm; next week is a whole 'nother story!
Got news? Click here to submit it!
Discuss this week's releases in the Dread Central forums!


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United States District Court, S.D. Illinois
May 9, 2014
HENRY WALKER, # R-68122, Plaintiff,v.RICHARD HARRINGTON, ASSISTANT WARDEN OF OPERATIONS, C/O JOHN DOE (BADGE #9387), and JOHN DOE DEFENDANTS. Defendants.
PHIL GILBERT, District Judge.
This matter comes before the Court for consideration of Plaintiff Walker's amended complaint[1] (Doc. 10), which he filed pursuant to 42 U.S.C. § 1983. Plaintiff, who is currently incarcerated at Stateville Correctional Center ("Stateville"), alleges that Defendants failed to protect him from being physically attacked by other inmates while he was incarcerated at Menard Correctional Center ("Menard"). (Doc. 10, p. 7). Plaintiff seeks declaratory and injunctive relief, as well as monetary damages. (Doc. 10, pp. 7, 9).
The amended complaint comes now before the Court for a preliminary review pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court is required to promptly screen prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).
The Complaint
On September 21, 2012, Plaintiff informed a correctional officer that his cellmate possessed two homemade weapons. (Doc. 1, p. 4). As a result, Plaintiff and his cellmate were placed in disciplinary segregation. Other inmates suspected Plaintiff was responsible for reporting the contraband. Id. When Plaintiff was mistakenly released from disciplinary segregation on October 4, 2012, members of his former cellmate's gang began to call Plaintiff a "snitch." Id. Plaintiff was placed back into disciplinary segregation until April 2013 when he was placed in a special unit for alleged staff-assaulters and weapons violators.
On May 27, 2013, Plaintiff learned from another inmate that members of his former cellmate's gang were going to "hit" him for being a snitch. Id. at 5. Plaintiff alleges that around 2:30 p.m. that day he informed Defendant John Doe (Badge #9387) that "his life was in danger." Id. According to Plaintiff, Defendant John Doe (Badge #9387) laughed and said, "A big guy like you shouldn't have anything to worry about! Plus shift is about to change. Holla at 3 to 11... Who you getting ready to tell on now? I'm going home!!" Id.
Plaintiff maintains that he attempted to inform numerous (unnamed) staff members that his life had been threated, but that he was told, "Go to chow or lock up!" Id. At approximately 3:30 p.m., while eating in the East Dining Room, Plaintiff was attacked by four inmates, who beat and stabbed him 13 times with an 8 inch homemade weapon. Id.
Plaintiff spent two days at Carbondale Memorial Hospital where he was treated for a partially collapsed lung and multiple puncture wounds to the neck, back, side and arms. Upon being transferred back to Menard, Plaintiff was placed in administrative detention. Id. at 6. On June 10, 2013, Plaintiff filed a grievance requesting an emergency transfer, removal from administrative detention, and money damages. (Doc. 10-1, p. 8). On July 24, 2013, Plaintiff was transferred to Stateville. (Doc. 10, p. 6). Plaintiff is suing Richard Harrington (warden), Assistant Warden of Operations, John Doe (Badge #9387), and other unnamed correctional officers in both their official and individual capacities.
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that "prison officials have a duty... to protect prisoners from violence at the hands of other prisoners." Id. at 833 (internal citations omitted); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). However, not every harm caused by another inmate translates into constitutional liability for the corrections officers responsible for the prisoner's safety. Farmer, 511 U.S. at 834. In order for a plaintiff to succeed on a claim for failure to protect, he must show that he is incarcerated under conditions posing a substantial risk of serious harm, and that the defendants acted with "deliberate indifference" to that danger. Id .; Pinkston, 440 F.3d at 889. A plaintiff also must prove that prison officials were aware of a specific, impending, and substantial threat to his safety, often by showing that he complained to prison officials about a specific threat to his safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). In other words, defendants had to know that there was a substantial risk that those who attacked plaintiff would do so, yet failed to take any action. See Sanville v. McCaughtry, 266 F.3d 724, 733-34 (7th Cir. 2001).
Accepting Plaintiff's allegations as true, the Court finds that the complaint sets forth a claim for failure to protect under the Eighth Amendment against Defendant John Doe (Badge #9387), and other John Doe Defendants who were on duty May 21, 2012 and may have been informed by Plaintiff of the threats made against his life. While Plaintiff has not provided the names of these defendants, the Seventh Circuit has held that where a prisoner's complaint states specific allegations describing conduct of individual prison staff members sufficient to raise a constitutional claim, but the names of those defendants are not known, the prisoner should have the opportunity to engage in limited discovery to ascertain the identity of those defendants. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009).
However, Plaintiff has failed to allege facts sufficient to support his claim against Richard Harrington or the Assistant Warden of Operations. Plaintiff asserts that Harrington and the Assistant Warden of Operations should be liable under the doctrine of supervisory liability. However, the doctrine of respondeat superior does not apply to § 1983 actions; in order to hold a defendant liable, a plaintiff must allege that the defendant was personally responsible for the constitutional violation. See Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001) (citing Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)). Plaintiff does not allege that either Defendant Harrington or the Assistant Warden of Operations knew about the threat made against Plaintiff prior to the attack on May 21, 2012. Absent direct, personal involvement in the alleged violation, a defendant in a supervisory capacity may still be found liable for "deliberate, reckless indifference" where he or she has purposefully ignored the misconduct of his/her subordinates. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (discussing Chavez, 251 F.3d at 651 ("The supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see.")). But again, Plaintiff makes no such allegations beyond the vague assertion that Menard is a violent place and Defendant Harrington and the Assistant Warden of Operations were responsible for the care and custody of all inmates. This does not suffice. As such, Plaintiff may not proceed on his claims against Richard Harrington or the Assistant Warden of Operations.
Lastly, Plaintiff is not entitled to declaratory or injunctive relief. Under § 1983, "declaratory or injunctive relief is only proper if there is a continuing violation of federal law. When there is no continuing violation of federal law, injunctive relief is not part of a federal court's remedial powers.'" Kress v. CCA of Tennessee, LLC, 694 F.3d 890, 894 (7th Cir. 2012) (quoting Al-Alamin v. Gramley, 926 F.2d 680, 685 (7th Cir.1991)) (internal citations omitted). Plaintiff's request for transfer to a new institution was approved and he was transferred to Stateville in July 2013; Plaintiff makes no allegation that he continues to be threatened by inmates, nor does he claim that officials intend to return him to Menard. Therefore, Plaintiff's claim for injunctive relief is moot.
In summary, Plaintiff shall be allowed to proceed with his Eighth Amendment failure to protect claim against Defendant John Doe (Badge #9387) and other John Doe Defendants who were on duty May 21, 2012 and may have been informed by Plaintiff of the threats made against his life. The Court will direct the Clerk of Court to add the current Warden of Menard as a party for the sole purpose of assisting with the identification of the John Doe Defendants. See FED. R. CIV. P. 21; FED. R. CIV. P. 17(d);[2] s ee also Donald v. Cook County Sheriff's Dept., 95 F.3d 548, 556 (7th Cir. 1996) ("Depending on the particular circumstances of the case, the court may assist the plaintiff by providing counsel for the limited purpose of amending the complaint; by ordering the named defendants to disclose the identities of unnamed officials involved; by allowing the case to proceed to discovery against high-level administrators with the expectation that they will identify the officials personally responsible; by dismissing the complaint without prejudice and providing a list of defects in the complaint; by ordering service on all officers who were on duty during the incident in question; or by some other means."). Lastly, the claims against Defendant Harrington and the Assistant Warden of Operations shall be dismissed without prejudice.
Pending Motions
Plaintiff's motion for leave to proceed in forma pauperis (Doc. 3) remains PENDING. Plaintiff is advised that pursuant to the Court's Order dated April 17, 2014 (Doc. 7), Plaintiff must provide the Clerk of Court with a certification completed by the Trust Fund Officer at his facility and a copy of his trust fund account statement (or institutional equivalent) for the period 10/1/2013 to 4/11/2014 no later than 6/2/2014. Failure to do so will result in dismissal of this action for failure to comply with an Order of this Court. See FED. R. CIV. P. 41(b).
Plaintiff's motion for appointment of counsel (Doc. 4) is PENDING and shall be addressed in a separate order referred to a United States Magistrate Judge for disposition.
The motion for service at government expense (Doc. 5) is GRANTED IN PART AND DENIED IN PART. Service shall be ordered on the Warden of Menard for the sole purpose of assisting with the identification of the John Doe Defendants. Service cannot be ordered on the John Doe Defendants until Plaintiff identifies them by name in an amended complaint.
IT IS HEREBY ORDERED that Plaintiff's claim for damages against Defendant JOHN DOE (BADGE # 9387) and other JOHN DOE DEFENDANTS shall proceed.
Defendants RICHARD HARRINGTON and the ASSISTANT WARDEN OF OPERATIONS are DISMISSED without prejudice.
IT IS FURTHER ORDERED that Plaintiff's claims for declaratory and injunctive relief are DISMISSED as MOOT.
The Clerk of Court is DIRECTED to add WARDEN OF MENARD as a party for the sole purpose of assisting with the identification of the John Doe Defendants.
The Clerk of Court shall prepare for the WARDEN OF MENARD: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this Memorandum and Order to Defendant's place of employment as identified by Plaintiff. If Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect formal service on Defendant, and the Court will require Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
Service shall not be made on the remaining Unknown (John Doe) Defendants until such time as Plaintiff has identified these Unknown Defendants by name in a properly filed amended complaint. Plaintiff is ADVISED that it is Plaintiff's responsibility to provide the Court with the names and service addresses for these individuals.
If the Defendant cannot be found at the work address provided by Plaintiff, the employer shall furnish the Clerk with the Defendant's current work address, or, if not known, the Defendant's last-known address. This information shall be used only for sending the forms as directed above or for formally effecting service. Any documentation of the address shall be retained only by the Clerk. Address information shall not be maintained in the court file or disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance is entered), a copy of every pleading or other document submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed a certificate stating the date on which a true and correct copy of the document was served on Defendant or counsel. Any paper received by a district judge or magistrate judge that has not been filed with the Clerk or that fails to include a certificate of service will be disregarded by the Court.
Defendant is ORDERED to timely file an appropriate responsive pleading to the complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States Magistrate Judge for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to a United States Magistrate Judge for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs under § 1915, Plaintiff will be required to pay the full amount of the costs, even if his application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for leave to commence this civil action without being required to prepay fees and costs or give security for the same, the applicant and his or her attorney were deemed to have entered into a stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court, who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule 3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of Court and each opposing party informed of any change in his address; the Court will not independently investigate his whereabouts. This shall be done in writing and not later than 7 days after a transfer or other change in address occurs. Failure to comply with this order will cause a delay in the transmission of court documents and may result in dismissal of this action for want of prosecution. See FED. R. CIV. P. 41(b).
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…for apple picking.
Today, we took a trip to the apple orchard despite somewhat blustery weather.
This was really Owen's first experience with the orchard (last year, many of Minnesota's orchards were apple-less after a late-spring frost). Mostly, he took individual bites out of 56 different grounded apples, threw them around like balls, and ran up and down the rows like it was his job.
As usual, we were happy to be joined by the Johannsen family!
But this year, we also had the pleasure of orcharding with a few other people from our church: the Rowleys and their two adorable daughters as well as a new friend, Kristin.
Bound by tradition, Brad and Eric faced off in their epic apple toss competition, you know, the one in which they basically throw their backs out in an attempt to throw apples about five feet with a shotput-like motion…using only their mouths. It is super manly and impressive.
But newcomer Matt outdid them both this year and looked pretty graceful while doing so. Just look at that form.
Despite the clouds, wind, and a lost hat, we made the most of apple season, picking a huge bag of honeycrisps that I'll probably dream about tonight. And of course, photography nerds that we are, we made the most of all of the vintage farm machinery at the orchard. And so did the older kids.
If that's what we have to look forward to in a few years, I'm happy that for now, our little guy is content to just sit (safely) on the tractor.
I've got apple crisp in mind, and maybe some more of these super easy apple cinnamon rolls. What's on your apple-to-do list this fall?


text: By James Warren • September 9, 2016"Where in the World is Matt Lauer?" was long a popular segment on "Today." If only he'd been in, say, Jakarta rather than New York City Wednesday night, he wouldn't be suffering rebukes for artlessly questioning Donald Trump and Hillary Clinton. He also would have avoided becoming the brunt of a hashtag, "#LaueringTheBar," a pun that began trending on … Read More


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1. See and talk to more people who may need your products or services – most sales professionals – new and not so new, don't call on enough prospective customers. By having a more full pipeline, one can have more options for potential opportunities to come to closure.
When I get feeling like I don't have enough "possibilities" of deals happening, I make some phone calls, set some appointments, and get out there and talk to people. In addition to this being a really good habit to get into, it is a powerful feeling to know you are in charge of your destiny, and that you control how much happens or not.
2. Be tenacious and persistent. Most sales professionals – new and not so new, follow up with prospective customers too few times. if a prospect says no, find out why – and still check in with them down the road. If they don't say no, keep following up until you get an answer, and offer compelling reasons for them to work with you.
3. Be prepared. They say "luck" is where preparation meets opportunity. Ask any Broadway understudy how "lucky" they are when they fill-in for a sick performer. They must be ready! Are you preparing as if you may be going on stage at any time>


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wealthyminds hasn't come back to VirtualTourist in a while.Meet other members!
My Favorite Pages
GG1808 Nov 13, 2011 at 4:23 PM
Thanks Wealthyminds!
Your advice make me feel more stable and less worry. Now, I have to work hard to let my parents and sibling to stop objecting my trip and stop giving me stress. As I will be bringing my 2 boys along with me, they are worry that the situation there is not healthy for the children :-(
1 - 2 of 2


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Princess Shyngle
Curvaceous Gambian Actress, Princess Shyngle Flaunts S*xy Body in Alluring Bikini Photos
In anticipation for the premiere her latest movie 'The 30-Year-Old Virgin' which was shot in Nigeria about a month ago, popular Gambian actress has put her banging hot body in full display.
Ghanaian-based Gambian actress, Princess Shyngle, has released new teasing promo photos and looks super hot in the kente-inspired bikini shots alongside some African outfits that made her look even more gorgeous.
The Ghana Movie Awards nominee is set to premiere her latest movie "The 30-Year-Old Virgin" […]


text:
1 language school in Auckland offering Mini Group (max 6 students) courses from for a 2 week English course including accommodation.
English courses in small groups of maximum 6 students allow better adaption to the needs of each student. A more intensive learning experience and highly recommended especially if improvement of English speaking skills is main objective.
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Comments: This course is specifically for executives wanting intensive Business English - max of 5 students per class. In Auckland we require a minimum of 3 students to run the class.
|3.5/5.0 27 reviews (all students from the school)
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Map with location of English schools in Auckland
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August 11, 1970
UNITED STATES of America ex rel. John BUONORABA, Dominick D'Amico, Dominick Pilotta, Joseph Sarcinella, John Varone, Leonard Vento, Rudolph Santabello and Alfred Mauriello, Petitioners-Relators,
COMMISSIONER OF CORRECTION, CITY OF NEW YORK, Respondent
MacMahon, District Judge.
MacMAHON, District Judge.
Each of the petitioners is currently serving a ninety-day sentence for contempt following indictment, trial and conviction before three judges in the Criminal Court of the City of New York for violation of former New York Penal Law § 600(6) (McKinney's Consol. Laws. c. 40, 1944), for refusing to answer questions before a grand jury after being granted immunity under former New York Penal Law § 2447 (McKinney 1966). Each challenges the validity of his conviction under the Fifth, Sixth and Fourteenth Amendments on the grounds that: (1) he was never brought before a judge and directed to answer the prosecutor's questions after he had invoked the Fifth Amendment; (2) he was neither permitted, nor advised of his right, to leave the grand jury room and consult with his lawyer who was present outside and (3) he was denied his right to a jury trial.
The convictions were affirmed by the Appellate Term, First Department. Leave to appeal to the Court of Appeals was granted, and the claims made here were urged and unanimously rejected there without opinion. Application for a stay pending filing of a petition for certiorari was denied on June 29, 1970 by Mr. Justice Harlan.
There are no issues of fact so we proceed at once to the merits.
Lack of Judicial Direction to Answer
During the course of an investigation into a conspiracy to bribe labor representatives and related crimes, the New York County grand jury subpoenaed petitioners, among other witnesses. Each was accompanied by an attorney who waited outside the grand jury room. An Assistant District Attorney explained the purposes of the proceeding and advised each petitioner that he could refuse to answer questions on the ground of possible self-incrimination and that, if he refused to answer on that ground and the Assistant asked the Foreman to direct him to answer and he were so directed, the witness would be granted immunity from prosecution. The Assistant further explained the scope of the immunity and stated that once it was granted no prosecution could be had for any crimes disclosed as a result of an answer except for perjury, or, if the witness persisted in his refusal, contempt.
Petitioners Sarcinella, Pilotta and Coppabianca said their attorney had explained their rights to them and that they understood the Assistant's explanation; Mauriello said his attorney had not explained his rights to him but acknowledged that he understood the Assistant's explanation; the remaining petitioners, claiming possible self-incrimination, refused to answer whether they had been advised of their rights or whether they understood the Assistant's explanation.
Each petitioner was then asked at least four questions as to whether he was employed by Service Loading Corporation or had been paid for working for that company when in fact he had performed no services. Each refused to answer. The Foreman of the grand jury, upon the Assistant's request, in accordance with a vote previously taken, directed each petitioner to answer. Each persisted in his refusal. After these refusals, the fact that immunity had been tendered was again explained by the Assistant.
No petitioner raised any question about the scope of his privilege or of the immunity to be conferred. Nor was any claim made of lack of understanding of the question; nor of its relevance or materiality. None asked to be brought before a judge for any reason; nor to leave the grand jury room to consult with his counsel; nor were any advised of their right to do so by the Assistant.
The grand jury and the Assistant had satisfied all the procedural prerequisites for conferral of immunity under former Penal Law § 2447.
If a petitioner had answered, he would have acquired immunity from prosecution "for or on account of any transaction, matter or thing concerning which * * * he gave answer or produced evidence."
Each would thus have "obtained an immunity from prosecution for any and all crimes to which their testimony might relate and accordingly could not assert the privilege against self incrimination and refuse to testify."
There can be no question that each petitioner, "after being sworn, [refused] to answer any legal and proper interrogatory."
Petitioners now claim that they were deprived of due process because, after they refused to comply with the Foreman's directions to answer, they were not taken before a judge to have their rights explained to them and to be directed to return to the grand jury room and answer the questions.
The Applicable Statutes
Former Penal Law § 600(6) provides:
"A person who commits a contempt of court, of any one of the following kinds, is guilty of a misdemeanor:
* * *
Contumacious and unlawful refusal to be sworn as a witness, or, after being sworn, to answer any legal or proper interrogatory; * * *"
Former Penal Law § 2447 provides:
"1. In any investigation or proceeding where, by express provision of statute, a competent authority is authorized to confer immunity, if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, and, notwithstanding such refusal, an order is made by such competent authority that such person answer the question or produce the evidence, such person shall comply with the order. If such person complies with the order, and if, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, then immunity shall be conferred upon him, as provided for herein.
2. 'Immunity' as used in this section means that such person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order by competent authority, he gave answer or produced evidence, and that no such answer given or evidence produced shall be received against him upon any criminal proceeding. But he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury or contempt committed in answering, or failing to answer, or in producing or failing to produce evidence, in accordance with the order, and any such answer given or evidence produced shall be admissible against him upon any criminal proceeding concerning such perjury or contempt.
3. 'Competent authority' as used in this section means:
(c) The grand jury before which a person is called to answer questions or produce evidence, when such grand jury is expressly requested by the prosecuting attorney to order such person to give answer or produce evidence; * * *"
In affirming petitioners' convictions, the New York Court of Appeals followed earlier New York cases construing these statutes, which have consistently held that as long as the statutory formula for conferring immunity under former Penal Law § 2447 is followed, as it was here, the grand jury has power to order the witness to respond to "any legal or proper" question under pain of contempt without a further directive or order from the court.
This construction of the New York statutes by the highest court of the state raises the question of whether petitioners were deprived of due process when they were indicted, tried and convicted of criminal contempt, although no court ever ordered or directed them to answer the grand jury's questions.
We note at the outset that the state procedure differs from federal practice, which entitles a witness before a grand jury to persist in his refusal free from contempt until the court orders him to answer.
States, however, have wide latitude to fashion their own rules of criminal procedure. The Due Process Clause of the Fourteenth Amendment requires that these procedures be fundamentally fair in all respects, but it does not impose on the states the rules that may be in force in the federal courts, except where such rules are also found to be essential to basic fairness.
As Mr. Justice Cardozo observed, a state rule of law "does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar."
The Fourteenth Amendment denies the states the power to "deprive any person of life, liberty or property without due process of law." Many of the rights guaranteed by the first eight amendments to the Constitution have been held to be protected against state action by the Due Process Clause, including the Sixth Amendment's right to counsel, to a speedy and public trial, to confrontation of opposing witnesses and to compulsory process for obtaining witnesses.
The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways. Federal courts seek to determine whether a right is among those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,"
whether it is "basic in our system of jurisprudence,"
and whether it is "a fundamental right, essential to a fair trial."
Petitioners fail to demonstrate how they have been deprived of any of these essential rights or how there is anything fundamentally unfair in New York's procedures for initiating prosecutions for criminal contempt when subpoenaed witnesses persist in refusing to answer proper questions by a grand jury after a grant of full immunity and specific direction. Contempts before investigative bodies, including congressional committees, without court intervention until trial have deep roots in our history.
Indeed, it can be argued that the procedures accorded petitioners by the state of New York are fairer and give promise of greater protection of constitutional rights than the procedure urged by petitioners "whereby a contempt already completed out of the court's presence may be reproduced in a command performance before the court to justify summary disposition."
We are not dealing here with summary contempt. The role of the grand jury was not to determine whether petitioners had committed a contempt but simply to lay the basis for the initiation of criminal contempt proceeding by indictment. The ultimate determination of whether petitioners were guilty of wilful contempt and decision of such subsidiary questions as relevance of the questions, scope of the immunity, specific direction to answer and fair warning were next determined by laymen but by three trained judges upon a plenary trial. Thus, the procedure here not only gave petitioners all of the safeguards of notice, bail, opportunity to prepare a defense, representation by counsel, a speedy and public trial, confrontation of opposing witnesses and compulsory process, but also of the presumption of innocence, proof beyond a reasonable doubt of deliberate, intentional refusal to answer
and other rights basic to due process.
Under the applicable state statutes, the contempt was complete upon the petitioners' persistent refusal to answer the questions before the grand jury. There was no need for the prosecutor to take the petitioners, who had already committed contempt outside of the presence of the court, to repeat the action before the court, as there might have been under the federal practice in order either to subject petitioners to summary civil contempt by order of a judge
or to cite them for criminal contempt by order to show cause or arrest under Rule 42(b), Fed. R. Crim. P.
Nor was there anything in the grand jury proceedings here which required the intervention of a judge. There was no challenge to the authority of the grand jury to confer immunity in an investigation covering the crimes then under investigation.
Clearly, any such challenge would have been futile for the grand jury was "a competent authority to grant immunity."
The witnesses were informed that immunity had been offered and would be granted if they answered the questions.
No question was raised by any petitioner about the relevancy of any question or the scope of the immunity to be conferred. Indeed, there was no challenge upon the trial or even now as to the legality and propriety of the questions or the granting of full transactional immunity. Petitioners show no "entrapment," no lack of understanding, no lack of warning, no prejudice and no fundamental unfairness in anything that occurred during the grand jury proceedings.
In summary, there simply were no questions raised before the grand jury requiring adjudication, and there is nothing in the statutes nor in the requirement of procedural due process which requires the futile act of repeating their refusal to answer proper questions before a judge. As the Supreme Court put it years ago, "it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality."
There is no such showing here. We hold, therefore, that petitioners were not deprived of due process.
Opportunity to Consult with Counsel
Each of the petitioners was represented by an attorney who was outside the grand jury room when the petitioner testified. None ever requested permission to speak with counsel, raised any question concerning the granting of immunity or objected to answering any questions, except to invoke the privilege against self-incrimination.
Relying on Escobedo v. Illinois
and Miranda v. Arizona,
petitioners claim that the prosecutor was required to tell them of their right to counsel and their right to leave the grand jury room to consult with him. Escobedo and Miranda are inapposite for they rest on the necessity for procedures which assure that an individual is accorded his privilege under the Fifth Amendment not to be compelled to incriminate himself. The immunity conferred here supplied a fully effective equivalent of the Escobedo and Miranda warnings since it obviated any possible self-incrimination. There is, therefore, no necessity for warnings other than of the danger of contempt, nor is there necessity for consultation with counsel.
Moreover, petitioners were mere witnesses before the grand jury and, as such, had no constitutional right to be represented by counsel in the technical sense.
A witness before a grand jury may be allowed to consult with counsel about his right to refuse to answer questions as a matter of fairness, but that right need not be surrounded with the same safeguards as the right of an accused in police custody to consult with counsel and surely not where the witness has been granted full immunity. Thus, the rationale of constitutional decisions such as Escobedo and Miranda does not apply to witnesses appearing before the grand jury.
Petitioners' contention that they were denied effective assistance of counsel is, therefore, without merit.
Failure to Grant Jury Trial
Relying on Duncan v. Louisiana,
Baldwin v. New York
and Williams v. Florida,
which mandate a jury trial in state courts for any crime punishable by imprisonment for more than six months, petitioners contend that they were entitled to a jury trial for the crime of contempt, a misdemeanor punishable by not more than one year in prison.
The one-year sentence, it is urged, precludes the designation of the misdemeanor as a "petty offense" for which a jury trial is not constitutionally mandated.
The claim that these petitioners were denied their constitutional right to a trial by jury is without merit. Their trial began on April 29, 1968. The Supreme Court has recently held that the Sixth Amendment right to a jury trial, which was first made applicable to the states in Duncan v. Louisiana, supra, does not apply where the trial began prior to May 20, 1968, the date Duncan was decided. The recent decision in Baldwin v. New York, supra, does not require a different result. The point was recently decided against petitioners' contention by the New York Court of Appeals in People v. Dargan.
We agree with that court's decision. The court said:
"There is ample precedent for holding that the Baldwin case, not any prior case, is the appropriate landmark in determining which cases should be affected by the new rule. The courts, both Federal and State, have often chosen the date of the new decision, not previous cases on which it was based, as the starting date for its applicability (see Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106; Tehan v. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694; DeStefano v. Woods, 392 U.S. 631, 88 S. Ct. 2093, 20 L. Ed. 2d 1308. See, also, People v. Morhouse, 21 N.Y. 2d 66, 77, 286 N.Y.S. 2d 657, 665, 233 N.E. 2d 705, 711; People v. Kaiser, 21 N.Y. 2d 86, 286 N.Y.S. 2d 801, 233 N.E. 2d 818, aff'd 394 U.S. 280, 89 S. Ct. 1044, 22 L. Ed. 2d 274). Accordingly, the recent decision of the United States Supreme Court in Baldwin v. New York, supra should be applied only to those trials commencing on or after the date of that decision, June 22, 1970."
Determining whether a new constitutional standard should be granted retroactive or prospective application turns on three factors: (1) the purpose to be served by the new standard; (2) the extent of reliance by law enforcement authorities on the old standard and (3) the effect on the administration of justice of a retroactive application of a new standard.
These circumstances, we think, call for the application of Baldwin starting with the date of that decision. There can be no question that a contrary ruling would result in drastic disruption of the administration of justice. Thousands of convictions entered before Baldwin would be needlessly overturned and the cases reopened. This would result in chaos totally unjustified by any concern that the fact-finding process here, in a trial before three impartial judges, one of whom dissented, was unreliable.
There can be no doubt that New York state courts, prosecutors and other officials have relied with justification on a conclusion that a jury trial was not constitutionally required in misdemeanor cases in the New York City Criminal Court. Bench trials have their roots deep in New York's history and have been undisturbed by the Supreme Court from the inception of the state.
Accordingly, we conclude that Baldwin is not to be applied retroactively and that petitioners were therefore not entitled to a jury trial.
Equal Protection
Finally, petitioners argue that the state's denial of a jury trial to misdemeanants tried in New York City, while granting a six-man jury for trial of identical offenses in the rest of the state, denies equal protection.
This question was left open in Baldwin, but the problem is now largely academic because, in response to Baldwin, six-man juries are now granted for such crimes tried in the city. It is not academic, however, for these petitioners who were tried before the new rule.
Exact equality is no prerequisite of equal protection of the laws within the meaning of the Fourteenth Amendment.
Rather, the Fourteenth Amendment only forbids classifications involving "invidious discrimination,"
which is defined as a classification which is arbitrary, irrational and not reasonably related to a legitimate purpose.
Petitioners' equal protection argument rests on the thesis that because New York State provides a six-man jury somewhere in the state it must do so everywhere. This argument is untenable.
"Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it."
Here, the legislative classification is territorial, and "territorial uniformity is not a constitutional prerequisite."
In Salsburg v. Maryland,
the Supreme Court quoted from an opinion in an earlier case which disposes of petitioners' contention:
"[There] is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or part of its territory. If the State of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties, and the common law and its method of procedure for the rest of the State, there is nothing in the Constitution of the United States to prevent its doing so. * * * Where part of a State is thickly settled, and another part has but few inhabitants, it may be desirable to have different systems of judicature for the two portions, -- trial by jury in one, for example, and not in the other. Large cities may require a multiplication of courts and a peculiar arrangement of jurisdictions. It would be an unfortunate restriction of the powers of the State government if it could not, in its discretion, provide for these various exigencies."
The requirement of state-wide uniformity in criminal procedures would inhibit progress in the administration of justice. A state should not be forbidden from employing new or different procedures in certain parts of the state, either as an experiment or because of particular local conditions. Surely, a defendant arrested at night in upstate New York would not be denied equal protection because the experimental night arraignment program recently inaugurated in New York City is not available in his locality.
Similarly, to ease the burdens on the police and courts, the New York City Criminal Court adopted a rule permitting a summons instead of arrest for persons charged with offenses below the grade of felony committed within the City.
Surely, one arrested for such a misdemeanor in Syracuse could not claim denial of equal protection because this procedure has not been adopted there.
The classification here, we think, is reasonably related to a legitimate purpose.
New York City is sui generis.
Pressures inherent in an enormous cosmopolitan population crowded into a tiny geographical area, coupled with oppressive economic and social conditions suffered by many, spawn crime at an ever-increasing rate.
The administrative advantages, recognized even in the Colonial period, of trials of misdemeanors without juries continue.
As New York City grew and caseloads multiplied, congestion placed severe strains on the lower criminal court in the City. The Chief Justice complained that the Court was being overtaxed in 1954 when he pointed to the previous year's calendar of 32,000 cases and to an increase of 150% in its business between 1945 and 1950.
The problem grew from bad to worse. Enormous increases in crime in the 1960's, as well as a proliferation of hearings on the validity of searches and seizures, confessions and eye-witness identifications, have resulted in delay inherent in long calendars and congested dockets.
As any trial judge sitting in New York City knows, jury trials consume far more time and considerable extra personnel, money and courtrooms than non-jury trials. Clearly, jury trials contribute much to delay.
The problem of court congestion and the expense in administering justice in the lower courts are inherently harder to resolve in New York City than anywhere else in the state. The City's population density, a factor directly associated with crime,
is more than twice Buffalo's, the second largest city.
The City is the national center for narcotics and traffic in drugs -- almost half of the nation's addicts are here, more than fifty times as many as live in Buffalo --
and it suffers from the other crimes that addiction produces. As the transportation and financial center of the state and nation, it faces special problems of law enforcement.
The result, as the Court of Appeals noted in Matter of Hogan v. Rosenberg,
is that the Criminal Court of the City of New York is burdened with misdemeanor calendars far heavier than those found elsewhere in the state. In Buffalo, the City Court disposed of 8,189 non-traffic misdemeanor cases in a recent thirty-month period for which figures are available; in the comparable period the New York City Criminal Court disposed of 321,368 non-traffic misdemeanor cases.
Surely, the New York legislature could reasonably conclude that the problems of administering justice in the lower courts are most urgent in New York City and therefore require different procedures from those employed elsewhere in the state.
The Supreme Court has recognized these considerations as valid in the case of petty offenses, noting that a legislature may rationally conclude that "the possible consequences to defendants from convictions for petty offenses" are "insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting in the availability of speedy and inexpensive non-jury adjudications"
and that juries may be dispensed with in trials of petty offenses in cities with unique problems of court congestion, expense and delay.
The rational basis for the New York legislature's territorial classification is not vitiated by the fact that we deal here not with petty offenses but with a misdemeanor punishable by not more than one year in prison, even though Duncan mandates a jury trial in the latter case. As was said in Norvell v. Illinois,
"the 'rough accommodations' made by government do not violate the Equal Protection Clause of the Fourteenth Amendment unless the lines drawn are 'hostile or invidious.'" Clearly, the classification here is reasonably justified by the facts and a legitimate legislative objection and, therefore, does not constitute a denial of equal protection. The state has a free hand in dividing its territory into areas for the performance of public functions, and so long as all citizens in an area designated are treated equally, no denial of equal protection occurs, even if in a neighboring area the function is performed differently.
We think, therefore, that within the liberal legislative license allowed a state in prescribing rules of practice relating to its police power, New York has not violated the Equal Protection Clause by denying petitioners a jury trial while granting a six-man jury trial to defendants charged with the identical offense elsewhere within the state.
We find nothing arbitrary, irrational or not reasonably related to a legitimate purpose in the fact that the New York City trial scheme differs from that for identical offenses elsewhere within the state. Plainly, there is a rational reason for a different type of trial in New York City than elsewhere in the state. We conclude, therefore, that there is no classification here involving the invidious discrimination essential to a denial of equal protection.
Accordingly, the petition for a writ of habeas corpus is in all respects denied.
So ordered.
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Edit your search:(X) Lyndon Station, WI
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Carter-Brinley Group - Lyndon Station, WI
The Carter-Brinley Group is a firm of real estate investors and marketers who are looking to change lives. We are looking for entrepreneurial individuals who are willing and able to attend the Real Estate College Online*. The delivery of the curriculum is similar to the University of Phoenix onli ...
Posted: 2016-10-15 | Industry: 100% Commission | Base Salary: 100% commission
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NexRep - Lyndon Station, WI
NexRep Inbound Sales Work from Home You will be reading from scripts that describe products or services, in order to persuade potential customers to purchase a product or service. These customers know the product or service price when they call you. These are mostly nutritional supplements wit ...
Posted: 2016-01-28 | Industry: Work from Home | Base Salary: 100% commission
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Apex Systems - Lyndon Station, WI
Job Title: Outside Sales Representative (Account Manager) Company Information: Apex Systems LLC and parent company On Assignment combine to be the 2nd largest IT staffing firm in the U.S. Founded in 1995 and headquartered in Glen Allen, Virginia, Apex utilizes specialized technology and industr ...
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Company confidential - Lyndon Station, WI
We are seeking an EXPERIENCED APPOINTMENT SETTER to connect people in pain with local medical professionals. This is a unique, full-time position with FLEXIBLE SHIFTS and HIGH EARNING POTENTIAL. If you are interested in a STABLE and REWARDING SALES CAREER with a growing company, then this is th ...
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We are looking for an ASSERTIVE PHONE SALES PROFESSIONAL to sell a FREE exam and consultation with a local licensed medical provider to individuals in need of treatment. This is a full-time Inside Sales position with high earning potential. ABOUT THE POSITION: All leads are provided via pre ...
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We are seeking an EXPERIENCED PHONE SALES PROFESSIONAL to connect people in pain with local medical professionals. This is a unique, full-time position with high earning potential. Our average performers make $50,000 - $55,000 in their first year. If you are interested in a STABLE and REWARDI ...
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Travelhost - Madison, WI
This is an Advertising Sales business opportunity. Its a chance to OWN YOUR OWN BUSINESS, keeping 100% of your ad revenue and partnering with a powerful brand who supports you on everything from ad building and design to social media campaign management. You own your territory. You find your ad ...
Posted: 2016-11-28 | Industry: Media | Base Salary: 100% commission
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NexRep - Madison, WI
NexRep Outbound Sales Work from Home You are calling back customers who are interested in a product but did not make a purchase on the initial call. You will be reading from scripts that describe the product and gives the customer more incentive to purchase with you by presenting a better offer ...
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Honeywell - Madison, WI
Regional Operations Administrative Analyst Job Description: RESPONSIBILITIES: For ROL direct reports, collect weekly time sheets and schedules Enter time in SAP Approve time as ROL delegate Enter payroll exceptions in People Soft Consolidate 2 week schedule for directs Track team ...
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TermSync, a division of Esker, Inc - Madison, WI
Are you an experienced sales professional tired of the traveling? Does having a set work schedule that enables you to have a life outside of work sound nice? If this is something you are looking for in your next role we have the position for you! At TermSync, an Esker Company, we are looking for ...
Posted: 2016-11-30 | Industry: Software | Base Salary: At least $40,000


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Some franchisors are using some major creative incentives to bring new franchise owners on board. Could the lousy economy be to blame? {Let's blame something..or somebody!}
Those of you who subscribe to this blog know how much my franchise consulting firm has been hurt by the recession. I am seeing 60% less franchise candidates than normal, and even though I am optimistic about the future, I just don't know when the future will become the present….
Sometimes, one has to ride things out. That is what I am doing, although my family might disagree. I am accepting some paid blogging/writing assignments, and I am helping some young franchise companies with their marketing efforts. Here.
{If you are a franchisor, I really have a unique way to help you get noticed, which will help your phone ring. The program is probably too expensive for most of you, but what the heck, I have to find a way to get my kid to college.} Kidding. {On the expensive part..not the college part}
How are some franchisors attracting new franchisees during this rather slow time? The Wall Street Journal has a brief story concerning 4 of them.
Email marketing is a great way to stay in front of your prospective franchisees. Look.
What I said about the economy. Last November.
Check out The Daily Franchise Show
{If you would like to know more about Joel Libava, just go to www.JoelLibava.com}