MATTHEWS v. DAVIS
United States Court of Appeals, Fifth Circuit.
841 F.3d 322
Simply put, the mitigation case investigated and presented by Matthews‘s trial counsel was infinitely better than the mitigation casе in Trevino v. Davis. The record in this case shows an abundance of mitigating evidence, presented in multiple volumes of punishment phase transcripts. Trial counsel retained a mitigation specialist and clinical psychologist, and that psychologist testified, along with Matthews‘s family members, as to his social history, including his mother‘s substance abuse, his difficult life, and virtually all of the other factors highlighted in Wiggins as being relevant to a good mitigation defense. Indeed, the mitigation case presented here sounds precisely like “the kind of troubled history we have declared relevant to assessing a defendant‘s moral culpability.”17
Examining the record as it would have appeared at the time of the first state habeas proceeding, we conclude that no reasonable jurist would debate whether Matthews‘s state habeas counsel rendered ineffеctive assistance for failing to assert an ineffective-assistance-of-trial-counsel claim for failure to conduct a constitutionally sufficient mitigation investigation. The mitigation evidence presеnted at trial, in terms of both quantity and quality, would not suggest to a reasonable habeas attorney that Matthews‘s trial counsel rendered ineffective assistance. Strickland does not require a perfect defense, only a constitutionally sufficient defense, and the investigation and evidence presented are a far cry from the facts of Wiggins, Trevino v. Davis, and similar cases.
We conclude that no reasonable jurist would debate the district court‘s resolution of the question of whether Matthews‘s state habeas counsel rendered ineffective assistance by failing to bring an insubstantial ineffective-assistance-of-trial-counsel claim pertaining to Matthews‘s possible FASD. Consequently, no reasonable jurist would debate whether he can overcome the procedural default bar under Martinez/Trevino. Accordingly, Matthews is not entitled to a COA.
COA DENIED.
UNITED STATES of America, Plaintiff-Appellant Cross-Appellee v. Thomas E. LIPAR; Jesse Valeriano; Lipar Group, Incorporated; LGI Land, L.L.C.; LGI GP, L.L.C.; LGI Development; JTI Contractors, Incorporated; JTI Construction, Incorporated, Defendants-Appellees Cross-Appellants
No. 15-20625
United States Court of Appeals, Fifth Circuit.
Date Filed: 11/07/2016
Casey T. Wallace, Johnson, Trent, West & Taylor, L.L.P., Houston, TX, for Defеndant-Appellee Cross-Appellant Thomas E. Lipar
Michael Paul Fleming, Michael P. Fleming & Associates, P.C., Houston, TX, for Defendants-Appellees Cross-Appellants Jesse Valeriano, JTI Contractors, Incorporated, JTI Construction, Incorporated
Casey T. Wallace, Benjamin Allen, Johnson, Trent, West & Taylor, L.L.P., Houston, TX, for Defendants-Appellees Cross-Appellants Lipar Group, Incorporated, LGI Land, L.L.C., LGI GP, L.L.C., LGI Development
Before JONES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Despite having before it a lengthy and detailed summary judgment record, includ
Thomas Lipar and Jesse Valeriano (collectively with other defendants, “Lipar“) are real estatе developers who began developing two parcels of land (Lake Windcrest and Benders Landing) in 2004. The parcels, located roughly in the northern suburbs of Houston, Texas, are about twenty miles apart from еach other. In 2007, the Environmental Protection Agency (EPA) took an interest in Benders Landing and Lake Windcrest and began investigating possible Clean Water Act (CWA) violations. The EPA eventually issued multiple cease and desist orders to stop Lipar from discharging dredged and/or fill material into “waters of the United States.” In 2010, the Department of Justice sued Lipar alleging that Lipar discharged pollutants in violation of the Clean Watеr Act,
In 2011, Lipar moved for sаnctions and summary judgment. The government filed no cross-motion for summary judgment. The district court held a hearing in April 2011, at which both of Lipar‘s motions were taken up although the parties had not been notified that the summary judgmеnt motion would be heard. In May 2012, the government asked the district court to allow its expert witnesses to inspect the sites at both Benders Landing and Lake Windcrest in preparation for trial. The court denied that motion in June 2012. Finally, in August 2015 the district court produced the eight-page opinion that granted summary judgment to the Lipar defendants and then assessed attorneys’ fees as a sanction against the government for its “intractаble, uncooperative, and defiant” behavior.
The government has appealed on the CWA disposition, while Lipar urges its right immediately to collect the sanction. Three main issues are presented: (1) whether the district court erred in granting summary judgment, (2) whether the court abused its discretion in denying the government site inspections, and (3)
1. Because the district court‘s opinion insufficiently articulates the “basis of its ruling,” we remand this issue for further clarification. See Wright v. Allstate Ins. Co., 415 F.3d 384, 391 (5th Cir. 2005). Despite the government‘s having compiled a record that comprises thousands of pages, the district court resolved the analysis of the seven dispersed tracts and an alleged streambed as not falling within the statutory term “waters of the United States” in about five pages of discussion. This was flawed legally and faсtually.
“Waters of the United States” has been a disputed term for several decades, and following Rapanos, a split decision of the Supreme Court, there still exists a circuit split on the statute‘s interpretation. Lipar proposed a third plausible interpretation, and the parties’ views differ substantially on this fundamental issue. The district court failed to address the varying tests. While the court purported to reject the government‘s position under either the Rapanos plurality or concurring opinions, which would have been a legally permissible approach, its legal analysis does not satisfactorily dispel the government‘s contention that covered “waters” need only have a “relatively permanent flow” and can be seasonal. See, e.g., Rapanos, 126 S.Ct. at 2220-21 and n.5. Instead, “the opinion consists almost entirely of conclusory statements,” and shows little evidence of addressing the extensive record relied upon by the government as non-movant. United States ex rel. Little v. Shell Expl. & Prod. Co., 602 Fed.Appx. 959, 976 (5th Cir. 2015).
Factually, the district court focused on the two properties (Lake Windcrest and Bender‘s Landing) generally rather thаn the individual tracts and streambed. Disaggregated, fact-specific appellate review of the ruling as applied to each of the tracts is necessary but has been rendered impossible. Expеrt opinions, maps, biological data, and aerial surveys were among the voluminous technical evidence submitted by the government. Contrary to its duty to examine the facts in the light most favorable to the non-mоvant, the district court seems to discount some of this evidence and make credibility decisions adverse to the government.
From our current vantage point, it cannot be determined whether further evaluatiоn of the record and more nuanced legal analysis will reveal material fact issues requiring a jury trial about any or all of the challenged tracts. The Supreme Court has previously held that “[g]iven the circumstances of this case and the unclear basis of the District Court‘s decision, the Court of Appeals should have remanded the case to the District Court for clarification.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 1144, 170 L.Ed.2d 1 (2008). Such remand is the prudent course of action in this case.
2. In view of our remand for further clarification, we do not speculate on whether the court should reconsider and exercise its discretion to permit the government‘s experts to conduct additional site visits.
3. Lipar‘s ostensible cross-aрpeal is dismissed because the fee order is not ripe. An appeal of an award of attorneys’ fees is not ripe until the fees have been reduced to a sum certain. See Instone Travel Tech Marine & Offshore v. Int‘l Shipping Partners, 334 F.3d 423, 433 (5th Cir. 2003) (“It is difficult to imagine how a district court‘s refusal to award appellate attorney fees before an appeal had even been taken could possibly be declared an error.“); S. Travel Club, Inc. v. Carnival Air Lines, Inc., 986 F.2d 125, 131 (5th Cir. 1993) (per curiam). The district court has
For the foregоing reasons, the judgment of the district court is REVERSED and REMANDED for further proceedings in accordance herewith, and the cross-appeal of the fee determination is DISMISSED.