KENTUCKY APPELLATE DECISIONS 
January 19-24 2004

• The links from this page are to the Kentucky Administrative Office of the Court's (AOC) web site at www.KyCourts.net which contains both published and unpublished opinions of the Kentucky Supreme Court and Kentucky Court of Appeals. First, opinions that are labeled "NOT TO BE PUBLISHED" shall never be cited or used as authority in any other case in any court of this state. CR 76.28(4)(c). This is true even after the unpublished opinions become final. Secondly, although opinions labeled "TO BE PUBLISHED" may be cited as authority in any court of the Commonwealth of Kentucky, the opinions shall not be cited until all steps in the appellate process have been exhausted and they become final. 

• As of the date Court of Appeals opinions were placed on the web site, none were final.  

• "Clicking" on the link in the left column should bring up the full text of the decision in "pdf" format as listed on the AOC's web site.  Consequently, the current status of that opinion is the official version which will note date rendered, amended, modified, published, and finality.  www.Adobe.com

Kentucky Supreme Court Decisions 
January 22, 2004

Kentucky Court of Appeals Decisions 
January 23, 2004

    
Discretionary Reviews Granted by Kentucky Supreme Court 
For a current list of discretionary reviews posted at AOC - Click Here

Oral Arguments Calendar

Kentucky Federal Court Decisions
January 26-30, 2004

• Western District Court - Kentucky
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Darrell Embry, et al. v. City of Cloverport, Ky.   Plaintiffs challenged a curfew ordinance passed by the City of Cloverport, which restricted anyone from being out on the streets of Cloverport between certain early morning hours on weekdays and weekends. The ordinance excepted persons out because of a lawful occupation, persons going to and from jobs, persons en route to a specific legally permissible destination, persons operating a motor vehicle, persons having a specific legitimate reason for being out, and persons with authorized permission to be out. First-time violators were given a warning, and subsequent violators within a one-year period were guilty of a criminal violation and fined no more than $250. The Court ruled that Plaintiffs had standing because the ordinance had a chilling effect on their constitutional rights, which was sufficient to constitute an injury in fact. The Court applied strict scrutiny because the constitutional right at issue—the right to intrastate travel—is considered fundamental under Sixth Circuit case law. While the Court recognized that Cloverport’s asserted interests, namely protecting the safety and welfare of its citizens and reducing crime, were sufficiently compelling, the Court ruled that the ordinance was unconstitutional and therefore unenforceable because it was not narrowly tailored. The ordinance neither defined “specific legally permissible destination” or “specific legitimate reason” nor specified who was authorized to give permission. And there was no way to know how a police officer might interpret these exceptions. In addition, Cloverport could use alternative, less constitutionally burdensome language to achieve its goals. The Court granted summary judgment in favor of Plaintiffs and permanently enjoined Cloverport from enforcing the ordinance. Kentucky Resources Council, Inc. and Sara Lynn Cunningham v. U.S. Environmental Protection Agency, et al.   The Louisville Metro Air Pollution Control District (the “District”) terminated the Vehicle Emission Testing (“VET”) program, upon the command of the Kentucky State Legislature in KRS 77.320. Plaintiffs, a group of Louisville residents, challenged that decision on the grounds that the District lacks the authority under the Clean Air Act, 42 U.S.C. § 7401 et seq. (the “Act”), to take such action without approval of the United States Environmental Protection Agency (the “EPA”). The Court determined that the District did lack the authority to unilaterally terminate the VET, which was part of Kentucky’s federally enforced state implementation plan (“SIP”). The Court stated that the Act mandated SIP revisions, such as the removal of the VET, be approved by the EPA before states implement such changes. Because the Kentucky Natural Resources and Environmental Protection Cabinet (the “Cabinet”), nor the District, received EPA approval, and in fact received proposed disapproval from the EPA, the revision to the SIP has no effect. Therefore, the federally enforced SIP must be enforced, and the VET re-instated. Robert Booker v. Chief Michael Horton, et al.   Motion to amend an order of the court dismissing the action without prejudice for failure to exhaust administrative remedies. Held: Dismissal vacated as to two plaintiffs who were not incarcerated at the time of the filing of the complaint, so were not subject to the Prison Litigation Reform Act's exhaustion requirement. Dismissal affirmed as to prisoner plaintiffs who admitted that they had not appealed the initial disposition of their grievance, but contended that their failure to exhaust should be excused. Their contention that appeal was not an "available" remedy was rejected as both factually and legally untenable in this case.

• Sixth Circuit Court of Appeals 
  

  Opinion Pub Date Short Title/District/Synopsis from Decision 04a0031p.06 2004/01/26  USA v. Monus     Northern District of Ohio at Youngstown SILER, Circuit Judge. After Michael I. Monus was convicted of various financial crimes, this court upheld his conviction but remanded for resentencing. Subsequently, Monus moved for: (1) a new trial on the basis of newly-discovered evidence, (2) a sentence reduction pursuant to 18 U.S.C. § 3582(c), and (3) a writ of coram nobis. The district court determined that the motion for a new trial was untimely, that the motion for sentence reduction was without merit because the new sentencing guideline at issue was substantive and not clarifying (and thus not retroactive), and that the coram nobis motion was inappropriate because Monus is still is federal custody. He appeals from the district court’s rulings on these three motions. We affirm. 04a0032p.06 2004/01/27  USA v. Forest     Northern District of Ohio at Akron      RONALD LEE GILMAN, Circuit Judge. A federal jury found Craig Forest and Herman E. Garner, III guilty of conspiring to distribute more than 500 grams of cocaine and of unlawfully possessing firearms. In addition, Forest was convicted of possessing with the intent to distribute both powder cocaine and crack cocaine. Forest was sentenced to 188 months in prison followed by 8 years of supervised release. Garner was sentenced to 120 months in prison followed by 8 years of supervised release.      On appeal, Forest and Garner both contend that the government violated their statutory and constitutional rights by intercepting cellular phone data that revealed their general location while they were traveling on public highways. Forest, moreover, individually argues that government agents violated his Fourth Amendment right not to be arrested without probable cause, and that the jury-selection procedures in the Northern District of Ohio violated his Sixth Amendment right to a jury drawn from a fair cross-section of the community. Garner individually contends that the district court abused its discretion by refusing to allow him to introduce an allegedly exculpatory statement by his codefendant Forest, erred in ruling that the government had given him adequate notice of its intent to seek a sentence enhancement based upon his prior felony drug conviction, and erred at sentencing by finding him responsible for at least two kilograms of cocaine. For the reasons set forth below, we AFFIRM the convictions and sentences of both defendants. 04a0033p.06 2004/01/27  USA v. Carter     Western District of Michigan at Grand Rapids SILER, Circuit Judge. Jermaine Cortez Carter appeals his conviction and sentence under 18 U.S.C. § 922(g)(1)(felon in possession of a firearm) on the basis of: (1) insufficiency of the evidence; (2) ineffective assistance of counsel for failing to move the court for acquittal based upon the insufficiency of the evidence; (3) the addition of a four-level enhancement to his sentencing guideline range for possessing the firearm in connection with another felony offense under USSG § 2K2.1(b)(5); and (4) denial of his right of allocution at sentencing. For the reasons that follow, we AFFIRM. 04a0034p.06 2004/01/28  USA v. Nelson     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. This case was presented as part of a consolidated appeal with United States v. Sims, No. 02-1734, which will be discussed in a separate opinion. In this case, Walter Nelson appeals his sentence following his guilty plea conviction for identity theft and bank and mail fraud. For the following reasons, we affirm the district court’s sentencing decision in part and vacate in part. 04a0035p.06 2004/01/29  Eagles LTD v. Amer Eagle Fndtn     Eastern District of Tennessee at Knoxville AVERN COHN, District Judge. This is a trademark case. Defendant American Eagle Foundation (AEF) appeals from the district court’s denial of its motion for attorney’s fees and costs under 15 U.S.C. § 1117(a) and 28 U.S.C. § 1927 and the district court’s denial of its motion to order the Patent and Trademark Office (PTO) to dismiss a trademark opposition filed by plaintiffs based on the dismissal of the district court action. AEF says that (1) the district court erred by failing to articulate its reasons for denying attorney’s fees and costs; (2) the district court improperly held it to a higher standard for proving an “exceptional” case under 15 U.S.C. § 1117(a); and (3) the district court had jurisdiction and should have ordered the PTO to dismiss the pending opposition. Plaintiffs say that (1) the district court adequately stated the applicable legal standards for an award of attorney’s fees as well as its reasoning for the denial; (2) the district court did not abuse its discretion in holding that the circumstances of the case were not “exceptional;” and (3) the district court correctly refused to dismiss the opposition because the issue of estoppel must be raised before the PTO not the district court. We affirm. 04b0001p.06 2004/01/30  Monsanto Co v. Trantham     Western District of Tennessee at Memphis J. VINCENT AUG, JR., Bankruptcy Appellate Panel Judge. Monsanto Company (Monsanto) appeals the bankruptcy court’s memorandum and order denying its motion for summary judgment on its complaint for nondischargeability of Monsanto’s claim against the Debtor, William Farris Trantham (Trantham). The bankruptcy court determined that the pre-petition patent infringement judgment obtained by Monsanto against Trantham in the amount of $592,677.89 is dischargeable. The decision of the bankruptcy court is REVERSED. Monsanto’s entire judgment for willful patent infringement in the amount of $592,677.89 is nondischargeable. See Cohen v. De La Cruz, 523 U.S. 213, 118 S. Ct. 1212 (1998) (finding that bankruptcy law prevented the discharge of all liability arising from fraud, including actual and treble damages); Spring Works, Inc. v. Sarff (In re Sarff), 242 B.R. 620, 627 (B.A.P. 6th Cir. 2000) (recognizing no distinction between compensatory and punitive damages).

Order the KTCR 2003 Year in Review

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Cases In Context - a/k/a "The One-Minute CLE"

• RCr 11.42 standard for review
  "As the standard of this rule [RCr 11.42 - Motion to vacate, set aside or correct sentence] has been explained, if upon consideration of the whole case the reviewing court does not conclude that a substantial possibility exists that the result would have been any different, the error complained of will be held to be nonprejudicial." [Jackson v. Commonwealth, Ky.App., 717 S.W.2d 511, 514 (1986), citing Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, 952 (1962)] "This means, upon consideration of the whole case, the reviewing court must conclude that a substantial possibility exists that the result would have been different in order to grant relief." [ Partin v. Commonwealth, Ky., 918 S.W.2d 219, 224 (1996)]
• Ineffective Assistance of Counsel
  "[S]tandard for ineffective assistance of counsel is different from that for palpable error. 'The two-pronged test for ineffective assistance of counsel is (1) whether counsel made errors so serious that he was not functioning as 'counsel' guaranteed by the Sixth Amendment, and (2) whether the deficient performance prejudiced the defense." [ Fraser v. Commonwealth, Ky., 59 S.W.3d 448, 457 (2001)]. 

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