591 F. App'x 508

6th Cir.

2015

Odraye G. JONES, nka Malik Allah-U-Akbar, Petitioner-Appellant, v. Margaret BRADSHAW, Warden, Respondent-Appellee.

No. 07-3766

United States Court of Appeals, Sixth Circuit.

Jan. 28, 2015.

508

Before: COLE, Chief Judge; MOORE and GRIFFIN, Circuit Judges.

ORDER

Odraye G. Jones, an Ohio death row inmate, moves this court to expand its January 30, 2009 order in this capital habeas appeal to allow: (1) the district court to consider Jones‘s pro se motions to remove counsel and waive his lethal injection litigation; and (2) the filing and full consideration of further pleadings to demonstrate cause to excuse the procedural default of various, ineffective assistance of trial counsel claims under Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, — U.S. —, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013).

The warden does not oppose Jones‘s first motion, and we granted a similar motion on September 6, 2012. We now grant this motion as well.

The warden opposes Jones‘s second motion, filed through counsel, in which he seeks to supplement or amend his pleadings with claims related to the ineffective assistance of trial counsel. Jones contends that there is cause to excuse the procedural default of those claims under the authority of Martinez and Trevino. Our court has not yet decided whether an Ohio habeas petitioner can show cause to excuse a procedural default under Trevino. See McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 751-52 (6th Cir.2013). We therefore grant Jones‘s second motion to expand the limited remand to allow the filing and full consideration of supplemental or amended pleadings related to the ineffective assistance of trial counsel, and for the district court to consider Jones‘s contention that there is cause to excuse the procedural default of those claims under Martinez and Trevino.

Timothy H. COOPER, Plaintiff-Appellant, v. The COMMERCIAL SAVINGS BANK, et al., Defendants-Appellees.

No. 14-3031

United States Court of Appeals, Sixth Circuit.

Jan. 30, 2015.

509

BEFORE: COLE, Chief Judge; KEITH and BATCHELDER, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge.

Plaintiff Timothy Cooper challenged the constitutional validity of a cognovit note that he signed, arguing in a lawsuit brought under 42 U.S.C. § 1983 that such a debt instrument violates the Fourteenth Amendment‘s Due Process Clause. The district court dismissed the suit, holding that the defendants were not state actors and therefore not liable under § 1983. Cooper appealed. However, his brief on appeal is completely devoid of any legal argument. Therefore we hold that he has waived any arguments he might have offered and forfeited his appeal, and accordingly AFFIRM the district court.

A cognovit note is a debt instrument recognized by Ohio law, whereby the debtor agrees to allow the creditor to obtain judgment without notice or a hearing in the event of nonpayment. Cooper signed a cognovit note in the amount of $334,175, evidencing his indebtedness to Defendant The Commercial Savings Bank. Cooper became delinquent on the payments and a cognovit judgment was entered against him. After years of state litigation contesting aspects of the debt instrument he had signed, Cooper filed this action against multiple defendants in the United States District Court for the Southern District of Ohio. The amended complaint included a due-process claim, brought under 42 U.S.C. § 1983, as well as various state law claims; Cooper also filed a motion for class certification. The defendants each filed separate motions for summary judgment, which the district court granted as to all federal claims on the ground that the defendants were not state actors and therefore are not liable under § 1983. The court declined to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice, and denied the motion for class certification as moot. Cooper filed a timely notice of appeal, assigning as error only the district court‘s ruling that the defendants are not state actors subject to 42 U.S.C. § 1983.

We review de novo a determination of whether a defendant is a state actor for purposes of 42 U.S.C. § 1983. Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir.1995). But this appeal begins and ends with the issue of waiver. “An appellant waives an issue when he fails to present it in his initial briefs before this court.” Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444, 462 (6th Cir.2003); see, e.g., United States v. Newsom, 452 F.3d 593, 607 (6th Cir. 2006) (holding defendant waived objections to jury instructions by not raising those objections on appeal). An appellant abandons any argument not raised in his opening brief. Sommer v. Davis, 317 F.3d 686, 691 (6th Cir.2003). This lenient standard can be satisfied even by a short and undeveloped argument. See, e.g., Robert N. Clemens Trust v. Morgan Stanley DW, Inc., 485 F.3d 840, 852-53 (6th Cir.2007) (holding that a brief parroting the language of one section from an SEC rule was sufficient to avoid waiver, but that arguments regarding two other sections were waived because appellant‘s brief was “devoid of any reference” to the two sections).

Cooper‘s brief on appeal fails to provide even a modicum of legal argument as to why the district court erred in holding that the defendants are not state actors. He cites only to a single case, D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 176–77, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972), which holds that cognovit notes are not per se unconstitutional, and does not address at all the question before us here, namely whether persons or entities in the positions of these defendants have engaged in state action.

Accordingly, we AFFIRM the judgment of the district court.

UNITED STATES of America, Plaintiff-Appellee, v. Robert LEAL, Defendant-Appellant.

No. 14-3084.

United States Court of Appeals, Sixth Circuit.

Feb. 3, 2015.

510

Before: CLAY, GILMAN, and SUTTON, Circuit Judges.

SUTTON, Circuit Judge.

Robert Leal pleaded guilty to being a felon in possession of a firearm and received a 100-month sentence. That sentence, he asserts on appeal, is both procedurally and substantively unreasonable. Because it was neither, we affirm.

Start with procedural unreasonableness. Leal contends that the district court erred by improperly enhancing his sentence for “[using] or possess[ing] any firearm or ammunition in connection” with the sale and distribution of illegal drugs. U.S.S.G. § 2K2.1(b)(6)(B). Not so. The guideline applies when a defendant possesses a firearm “in close proximity to drugs” intended for sale. United States v. Seymour, 738 F.3d 923, 929 (6th Cir.2014). That is this case. When police searched Leal‘s house, they found a shotgun “between the mattress and the box spring in [Leal‘s] bedroom,” and heroin “papered out for distribution in that same bed along the bed rails.” R. 34 at 9. That means the enhancement applies.

Now for substantive unreasonableness. On appeal, we presume that Leal‘s sentence was substantively reasonable since it falls within his properly calculated guidelines range. See United States v. Vonner, 516 F.3d 382, 389 (6th Cir.2008) (en banc). Leal has not rebutted the presumption. To start, we cannot say on this record that the district court clearly erred in determining that Leal‘s heroin was for more than personal use. Police, after all, found individually packaged quantities of the drug in Leal‘s home, plus a digital scale, multiple cellphones, and drug-packaging materials. Leal also claims that his guidelines range should not have gone up due to what he considers to be two minor prior convictions. Still, he has four other prior felonies. Finally, we agree that his age, military service, work history, and educational background may counsel in favor of a downward variance. But they certainly do not compel one. See U.S.S.G. § 5H1.1 (“Age may be a reason to depart downward ....” (emphasis added)); United States v. Sims, 511 Fed.Appx. 429, 431 (6th Cir.2013) (“In recognizing that veterans have traditionally been afforded leniency, the Supreme Court did not require leniency” in Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009)); United States v. Riley, 290 Fed.Appx. 910, 912 (6th Cir.2008) (affirming a district court‘s decision not to vary downward despite recognizing that the defendant‘s “good work history” was “suggestive of

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