Eddie Lee FRANKLIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 15-71562
United States Court of Appeals, Ninth Circuit
April 19, 2016
647 Fed. Appx. 729
Appellant Eddie Lee Franklin (“Franklin“) appeals the denial of his motion to vacate, set aside, or correct his sentence pursuant to
To establish ineffective assistance of counsel, Franklin “must show both that his counsel‘s performance was deficient and that the deficient performance prejudiced his defense.” Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986) (citing Strickland, 466 U.S. at 687). When a petitioner alleges ineffectiveness of counsel‘s assistance, he or she must show not just what counsel could have done differently, but that counsel‘s representation fell below an objective standard of reasonableness. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998) (citing Strickland, 466 U.S. at 687-88). Counsel is presumed, with high deference, to have provided effective assistance. Strickland, 466 U.S. at 689. Courts must not simply give attorneys the benefit of the doubt, but must “affirmatively entertain the range of possible reasons ... counsel may have had for proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170, 195, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (internal quotation marks omitted). “Mere criticism of a tactic or strategy” alone is not sufficient to show that counsel‘s performance was deficient. Gustave v. United States, 627 F.2d 901, 904 (9th Cir.1980).
In this case, Franklin fails to show that either his trial or appellate counsel‘s performance fell below an objective standard of reasonableness. While Franklin‘s counsel could have presented an argument that Franklin‘s prior offenses were not predicate offenses for purposes of the Sentencing Guideline‘s career offender enhancement,
AFFIRMED.
Peter G. BUKIRI, Plaintiff-Appellant, v. Loretta E. LYNCH, Attorney General; Department of Justice; Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendants-Appellees.
No. 15-56524
United States Court of Appeals, Ninth Circuit
Argued and Submitted April 5, 2016. Filed April 19, 2016.
647 Fed. Appx. 729
Before: FARRIS, Circuit Judge, TYMKOVICH, Chief Judge,* and M. SMITH, Circuit Judge.
Keith Miles Staub, Assistant U.S., Office of the U.S. Attorney, Los Angeles, CA, for Defendants-Appellees.
MEMORANDUM **
Peter Bukiri appeals the district court‘s denial of his request for a preliminary injunction. The district court concluded Bukiri was not likely to succeed on the merits of his discrimination claim against the United States Attorney General, the Department of Justice, and the Bureau of Alcohol, Tobacco, Firearms and Explosives under the Rehabilitation Act,
ATF hired Bukiri in 2010 for a position at its headquarters in Washington, D.C. Shortly after starting, Bukiri requested a hardship transfer to California so he could care for his wife, who suffers from disabilities relating to an auto accident. These disabilities arose before Bukiri began working for ATF. ATF granted Bukiri‘s request, and Bukiri served in several positions in California. But in August 2014, ATF informed Bukiri it was transferring him back to its D.C. headquarters because of agency staffing needs. Bukiri filed a second hardship transfer request to remain in California. ATF denied his request and, after two extensions, he transferred to D.C. Bukiri then commenced internal agency proceedings challenging the transfer, which are ongoing.
Bukiri also filed a complaint for a preliminary injunction with the district court. The basis for Bukiri‘s complaint is that ATF violated the Rehabilitation Act by transferring him because of his wife‘s disabilities. That is, the disability dictating
To obtain a preliminary injunction, among other things, Bukiri was required to show he is likely to succeed on the merits of his claim. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). We review the district court‘s denial of Bukiri‘s request for a preliminary injunction for abuse of discretion. DISH Network Corp. v. F.C.C., 653 F.3d 771, 776 (9th Cir.2011).
The Rehabilitation Act provides the exclusive remedy for federal employees alleging disability discrimination, see Johnston v. Horne, 875 F.2d 1415, 1420 (9th Cir.1989), abrogated on other grounds by Irwin v. Dep‘t Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), and incorporates the employment-related standards of Titles I and V of the Americans with Disabilities Act (ADA).
The only evidence Bukiri offers to show ATF discriminated against him is that the agency denied his second hardship transfer request partly because of the preexisting nature of his wife‘s disabilities. ATF‘s hardship transfer policy provides accommodations for employees experiencing certain hardships. But the policy expressly excludes hardships that arose prior to an employee‘s tenure with the agency. Bukiri argues ATF‘s refusal to grant him relief under the policy because his wife‘s disabilities were preexisting shows that his transfer was predicated on a discriminatory motive. This reasoning lacks merit. ATF‘s denial of a hardship accommodation has no bearing on its motive for the transfer itself. And, in any event, the evidence actually supports ATF‘s explanation that it was motivated strictly by agency staffing needs. The district court did not err in finding that Bukiri was not entitled to a preliminary injunction because his evidence failed to establish a likelihood of success on the merits.
Lewis A. HARRY, Jr., Plaintiff-Appellant, v. Anna M. JACOBS; et al., Defendants-Appellees.
No. 14-16726
United States Court of Appeals, Ninth Circuit
Submitted April 13, 2016.* Filed April 19, 2016.
647 Fed. Appx. 732
Before: FARRIS, TALLMAN, and BYBEE, Circuit Judges.
Paul Edward Carter, Assistant Attorney General, Office of the Arizona Attorney General, Tucson, AZ, Michael E. Gottfried, Arizona Attorney General‘s office, Phoenix, AZ, for Defendants-Appellees.
MEMORANDUM **
Arizona state prisoner Lewis A. Harry, Jr., appeals pro se from the district court‘s summary judgment in his
We review de novo summary judgment on the basis of qualified immunity. McSherry v. City of Long Beach, 584 F.3d 1129, 1134 (9th Cir.2009). We affirm.
The district court properly granted summary judgment for Talley on the basis of qualified immunity because it would not have been clear to every reasonable official that it was unlawful under the circumstances to temporarily take possession of religious property to allow for approval by the chaplain and to not ensure the property was returned earlier. See Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 2083, 179 L.Ed.2d 1149 (2011) (discussing qualified immunity and noting that a right is clearly established only if “every reasonable official would have understood that what he is doing violates that right” (citation and internal quotation marks omitted)); see also Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir.2015) (elements of a free exercise claim).
The district court did not abuse its discretion in granting Talley‘s request to file a second motion for summary judgment to further develop the record. See Hoffman v. Tonnemacher, 593 F.3d 908, 911-12 (9th Cir.2010) (setting forth standard of review and explaining that “allowing a party to file a second motion for summary judgment is logical, and it fosters the just, speedy, and inexpensive resolution of suits” (citation and internal quotation marks omitted)).
We do not consider the merits of Harry‘s remaining claims because Harry does not challenge the basis for their dismissal.
AFFIRMED.