United States v. Michael Holmes

231 F. App'x 535

8th Cir.

2007

Check Treatment

Docket

John J. SANDERSON, Appellant v. COMMISSIONER OF INTERNAL REVENUE, Appellee

No. 06-3112

United States Court of Appeals, Eighth Circuit

Submitted: Aug. 8, 2007. Filed: Aug. 14, 2007.

246 F. App‘x 427

Chief Counsel, Washington, DC, for Appellee.

Before MURPHY, SMITH, and SHEPHERD, Circuit Judges.

[UNPUBLISHED]

PER CURIAM.

John J. Sanderson appeals following the tax court‘s¹ dismissal of his petition for redetermination, and its denial of his motion for reconsideration. Sanderson filed the petition after receiving a notice of deficiency from the Internal Revenue Service for taxes and additions to tax for the years 2001 through 2003.

Sanderson‘s timely motion for reconsideration and timely appeal from the denial of that motion permit us to review the underlying dismissal order. See Nordvik v. Comm‘r, 67 F.3d 1489, 1492-94 & nn. 3-5 (9th Cir.1995) (where taxpayers filed notice of appeal 10 days after tax court denied their motion for reconsideration, but more than 90 days after entry of underlying order, appeal of underlying order was nevertheless deemed timely because motion for reconsideration terminated running of initial 90-day limitations period (citing United States v. Ibarra, 502 U.S. 1, 6-7, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991) (per curiam); Robert Louis Stevenson Apartments, Inc. v. C.I.R., 337 F.2d 681, 683 (8th Cir.1964))).

Upon de novo review of the tax court‘s dismissal for failure to state a claim, we affirm because Sanderson‘s legal theories were patently frivolous and none of his allegations gave rise to a cognizable claim. See Bell Atlantic Corp. v. Twombly, — U.S. —, —, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007) (complaint must plead enough facts to state claim for relief that is plausible); May v. Comm‘r, 752 F.2d 1301, 1303-04 & n. 3 (8th Cir.1985) (affirming dismissal for failure to state claim because, even if all of taxpayer‘s allegations were assumed to be true, petition merely contained conclusory assertions attacking constitutionality of Internal Revenue Code and its applicability to taxpayer, all of which had long been rejected); Crain v. Comm‘r, 737 F.2d 1417, 1417 (5th Cir.1984) (per curiam) (affirming dismissal of frivolous petition; noting lack of need to address frivolous arguments with extensive reasoning and citations to authority, because doing so might suggest arguments have colorable merit); cf. Am. Home Assurance Co. v. Pope, 487 F.3d 590, 604-05 (8th Cir.2007) (district court‘s dismissal for failure to state claim is reviewed de novo).

Accordingly, the tax court‘s orders dismissing Sanderson‘s petition and denying his motion for reconsideration are affirmed. See 8th Cir. R. 47B.

UNITED STATES of America, Appellee, v. Michael James HOLMES, Appellant.

No. 06-4183

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2007. Filed: Aug. 15, 2007.

244 F. App‘x 775

Roger Alan Keller Jr., Sirena Miller Wissler, Assistant U.S. Attorney, U.S. Attorney‘s Office, St. Louis, MO, for Appellee.

Lewis Steven Goldblatt I, Goldblatt Law Office, St. Louis, MO, for Appellant.

Michael James Holmes, Memphis, TN, pro se.

Before MURPHY, BEAM, and SHEPHERD, Circuit Judges.

[UNPUBLISHED]

PER CURIAM.

Michael James Holmes was found guilty, following a jury trial, of possession with intent to distribute 50 grams or more of a substance containing cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and of knowing possession of one or more firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The district court¹ sentenced Holmes to mandatory consecutive prison terms of 240 months, the statutory minimum, on the drug conviction and 60 months, the statutory minimum, on the firearm conviction; he was sentenced to concurrent supervised-release terms of ten years and three years, respectively. On appeal, Holmes‘s counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising issues under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and with regard to the admission of evidence. Holmes has submitted letters to this court which raise issues related to those already raised by his counsel on appeal.

Concerning the Batson claim, the district court correctly denied Holmes‘s challenge to the government‘s use of peremptory strikes against three venire persons. See United States v. Pherigo, 327 F.3d 690, 695 (8th Cir.2003) (clear error standard of review). On appeal, Holmes specifically challenges the use of the peremptory strike against a certain black venire woman. However, the government presented a race-neutral reason for the strike and had also used its peremptory strikes against similarly-situated white venire persons. Holmes failed to show that this proffered explanation was pretext for discrimination. See United States v. Maxwell, 473 F.3d 868, 871 (8th Cir.2007) (explaining the process and burdens in presenting a Batson challenge).

Further, the district court did not abuse its discretion in denying Holmes‘s motions in limine to exclude the introduction of a prior drug conviction or his 2003 tax returns. See United States v. Walker, 428 F.3d 1165, 1171 (8th Cir.2005) (abuse of discretion standard of review); United States v. Molina, 172 F.3d 1048, 1054-55 (8th Cir.1999) (upholding admission of trafficking and possession convictions from ten years prior to offense charged to refute defendant‘s assertion that she was innocent bystander in drug transactions); United States v. Trotter, 889 F.2d 153, 155 (8th Cir.1989) (evidence that defendant failed to file tax return was probative of net worth and relevant to defendant‘s claim that money found with drugs was not product of drug distribution).

After conducting a careful, independent review of the record, including the transcripts of the trial and the sentencing, in accordance with Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues. Thus, we grant counsel‘s motion to withdraw, and we affirm. We deny appellant‘s second motion to supplement the record.

Michael TERRELL, Appellant, v. Steven SCHWERB; Eric Lingard; Michael Marks, Appellees.

No. 06-2671.

United States Court of Appeals, Eighth Circuit.

Submitted: Aug. 10, 2007. Filed: Aug. 16, 2007.

244 F. App‘x 776

Michael Terrell, St. Louis, MO, pro se.

John M. Roodhouse, Attorney General‘s Office, Jefferson City, MO, for Appellees.

Before MURPHY, SMITH, and SHEPHERD, Circuit Judges.

[UNPUBLISHED]

PER CURIAM.

Michael Terrell appeals the district court‘s¹ adverse grant of summary judgment in his civil rights lawsuit. We agree with the district court that Terrell failed to counter defendants’ evidence showing their actions did not violate his constitutional rights, see Parks v. City of Horseshoe Bend, Ark., 480 F.3d 837, 839 (8th Cir. 2007) (to survive summary judgment motion, nonmovant must present more than scintilla of evidence and must advance specific facts to create genuine trialworthy issue); Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir.2006) (summary judgment standard of review); and we reject as meritless Terrell‘s arguments for reversal. Further, to the extent he was attempting to bring criminal charges for kidnaping and abduction, he cannot do so, see Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). Finally, to the extent he challenges the district court‘s denial of his Federal Rule of Civil Procedure 60(b) motion, we find no abuse of discretion. See Brooks v. Ferguson-Florissant Sch. Dist., 113 F.3d 903, 905 (8th Cir.1997) (standard of review).

Accordingly, we affirm. See 8th Cir. R. 47B.

Notes

The Honorable Peter J. Panuthos, United States Tax Court Judge. The Honorable Carol E. Jackson, Chief Judge, United States District Court for the Eastern District of Missouri. The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.