Leavy v. Hutchison

Docket: 18-6246

Opinion Date: March 19, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

In 1997, Leavy and friends broke into the home of 71-year-old Terry and waited for Terry to return from visiting his wife at a nursing home. The young men ambushed him, binding his hands and feet with duct tape and weighted him down in a bathtub they had filled with water and kerosene. Terry died. Leavy and his friends took $20 and some household items. A Tennessee jury convicted Leavy of first-degree murder and other crimes. He was sentenced to life in prison. Leavy's habeas corpus petition, 28 U.S.C. 2254, was denied in 2006. Leavy moved for relief from that judgment under Civil Rule 60(b) in 2017. The district court denied the motion and entered a formal judgment on September 12, 2018. The Sixth Circuit dismissed his appeal, filed on October 9, as untimely. Litigants generally have 30 days from the entry of a final judgment or final order to file a notice of appeal, 28 U.S.C. 2107(a). Leavy claimed that he mailed a timely notice of appeal in September but no record of this filing appears on the district court’s docket and Leavy’s application for a certificate of appealability makes no mention of it. He did not submit a copy of the purported document with his show-cause response and gave only a vague description of mailing the document, saying only that he handed it to prison officials, not that he paid for postage.

Emard v. Commissioner of Social Security

Docket: 19-1591

Opinion Date: March 19, 2020

Judge: Ronald Lee Gilman

Areas of Law: Public Benefits

Emard, age 33, was injured in a 2010 motorcycle accident. Emard had previously worked as a truck driver, assembler, and packager. He ceased working after the accident. His application for Social Security disability-insurance benefits claimed chronic low-back pain, chronic neck pain, cervical radiculopathy, lumbar radiculopathy, chronic migraine headaches, fatigue, mood swings, anxiety, and Crohn’s disease. An ALJ determined that Emard had not engaged in substantial gainful activity during his insured period; that Emard’s degenerative disc disease, asthma, obstructive sleep apnea, anxiety, and depression were severe impairments, but that his other conditions were mild impairments; that none of Emard’s impairments or any combination thereof met the criteria of any listed impairment; that Emard had the residual functional capacity to perform sedentary work; that Emard’s “subjective complaints exceed the available objective records,” particularly in light of Emard’s conservative course of treatment; that Emard could not perform past relevant work; and that Emard could perform jobs that existed in significant numbers in the national economy. The district court and Sixth Circuit affirmed the denial of benefits. The ALJ made no procedural error by declining to give weight to the opinion of a treating source offered after the claimant’s date last insured that did not relate back to the insured period. The ALJ complied with requirements to view Emard’s impairments in combination and to consider Emard’s ability to work on a sustained basis.