author: CARMAN, Judge:

text:
    ALHAMBRA FOUNDRY, et al., Plaintiffs, v. UNITED STATES, Defendant, and South Bay Foundry, et al., Intervenors.
    Court No. 83-4-00500.
    United States Court of International Trade.
    Dec. 30, 1985.

      Simonelli & Hall (Michael H. Hall, Washington, D.C., on the motion), for plaintiffs.
    Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, (A. David Lafer, Washington, D.C., on the motion), for defendant.
    Brownstein, Zeidman & Schomer (David Amerine and Irwin Altschuler, Washington, D.C., on the motion), for intervenors.
   MEMORANDUM OPINION AND ORDER

CARMAN, Judge:

In this action plaintiffs challenge a final affirmative countervailing duty determination of the Department of Commerce, International Trade Administration (ITA) regarding iron-metal construction castings from Mexico. See 48 Fed.Reg. 8834 (1983). Defendant and defendant-intervenors oppose the motion and claim that the final determination, issued pursuant to 19 U.S.C. § 1303 (1982), is supported by substantial evidence upon the administrative record.

Background

Subsequent to plaintiffs’ petition alleging that numerous governmental programs conferred bounties or grants upon the iron-metal construction castings industry in Mexico, the ITA made an affirmative preliminary determination and stated that it was investigating the alleged subsidization practices from January 1 to September 30, 1982. 47 Fed.Reg. 56377 (1982). In issuing the preliminary determination published on December 16, 1982, the ITA was required to use the “best information available” in accordance with 19 U.S.C. § 1677e, since the ITA had not yet received responses to its countervailing duty questionnaire from the Mexican government. On the basis of this information, presumedly much of it obtained from petitioners (see Record at 136, letter from plaintiffs), the ITA estimated the net bounty or grant to equal 40.53 percent ad valorem.

In the final determination reached February 17, 1983, the ITA determined the net bounty or grant to be 2.85 percent ad valorem. The verification report, however, was not placed in the record until March 8, 1983. Upon plaintiffs’ motion for reconsideration of its motion to strike the verification report from the record and defendant’s cross-motion for remand in order to allow all parties to provide the ITA with comments on the report and accompanying exhibits, the Court, on July 2, 1984, granted the cross-motion for remand. The ITA filed its remand results on September 11, 1984, and concluded that no changes in the final determination were warranted.

The final determination stated the following programs constituted countervailable subsidies:

(1) FOMEX pre-export and export financing loans at preferential interest rates;
(2) FONEI long-term financing at preferential interest rates;
(3) FOGAIN priority industry/regionally targeted financing at preferential interest rates;
(4) State tax incentives; and
(5) Import duty reductions and exemptions (although the ITA found that the production facilities used in the manufacture of the subject product did not appear to have been imported).

The ITA determined that CEPROFI tax credits conferred bounties or grants, but had not been granted for the production of merchandise subject to the investigation, and that the CEDI program, also providing countervailable tax certificates, had been suspended.

The following programs were determined not to confer bounties or grants:

(1) Government control of Mexican iron and steel industries;
(2) Dual level currency exchange;
(3) Free zone and in-bond assembly programs; and
(4) COMESEC Mexican credit insurance at preferential rates.

Finally, the ITA determined that the following programs were not used by the iron-metal construction castings industry:

(1) Government-financed facilities;
(2) Mexican Institute for Foreign Trade (IMCE) promotional benefits;
(3) Trust for Industrial Parks, Cities, and Commercial Centers (FIDEIN) benefits;
(4) National Preinvestment Fund for Studies and Parks (FONEP) benefits;
(5) Favorable tax treatment;
(6) Discounts on Industrial Energy and Basic petrochemicals; and
(7) FOMIN preferential financing.

Plaintiffs in this action now make the following challenges, as the Court discerns them, to the final determination of the ITA:

(1) the ITA failed to explain in its determination how it arrived at the benchmark interest rates used in calculating FOMEX and FONEI benefits;
(2) the ITA failed to properly determine the subsidy amounts from FONEI and FOGAIN financing;
(3) the ITA failed to fully investigate the extent of receipt of state tax exemptions, or free or low-priced land incentives;
(4) The ITA failed to properly calculate the benefit of a state tax exemption received;
(5) the ITA failed to investigate import duty reductions and exemptions for equipment purchased prior to the investigation;
(6) the determination that the receipt of a CEPROFI tax credit was connected only to merchandise not the subject of the investigation is unsupported by substantial evidence;
(7) the ITA’s determination that the dual level currency exchange does not confer a bounty or grant is unsupported by substantial evidence;
(8) the ITA failed to investigate whether FOMEX loan guarantees conferred bounties or grants;
(9) the ITA’s determination that none of the firms received IMCE benefits is unsupported by substantial evidence;
(10) the ITA failed to investigate benefits from FIDEIN industrial park programs;
(11) the ITA failed to investigate benefits provided by National Financeria, S.A;
(12) the ITA’s determination that the Mexican construction castings industry did not receive discounts on basic petrochemicals or industrial energy supplies is unsupported by substantial evidence;
(13) the ITA failed to investigate whether foreign debt restructuring constituted a bounty or grant;
(14) the ITA failed to set forth in its determination the exchange rates used to calculate the net benefit received by the Mexican construction castings industry; and
(15) the verification report submitted subsequent to the final determination should not be included as part of the administrative record.

Opinion

Judicial review of a final countervailing duty determination is provided under 19 U.S.C. § 1516a(b)(l)(B) (1982), which requires the court to hold the determination unlawful if it is found “to be unsupported by substantial evidence upon the record, or otherwise not in accordance with law.” The standard of review has been well explicated in many judicial decisions, see Car-lisle Tire and Rubber Co. v. United States, — CIT —, 622 F.Supp. 1071 (1985), but is essentially a limited review of the agency determination, insuring that agency conclusions are reasonably drawn from some evidence, more than a mere scintilla, in light of the record as a whole. However, the court is not placed in the position of having to weigh the evidence. Consolo v. Federal Maritime Commission, 388 U.S. 607, 620, 86 S.Ct. 1018,1026, 16 L.Ed.2d 131 (1966). With these considerations in mind, the Court concludes that twelve of the determinations and conclusions contested by plaintiffs in this action are supported by substantial evidence upon the record. In those instances where the Court is not able to affirm the administrative determinations, it is primarily because information in the record and the briefing is not sufficiently clear to enable the Court to meaningfully review the issues or to determine what actually transpired during the investigation. These three issues— challenge two to the calculation of FONEI and FOGAIN benefits, challenge four to the calculation of the state tax benefit, and challenge fourteen to the failure to set forth exchange rates — must therefore be remanded to the ITA.

1. Commercial Interest Rates

In calculating the benefits from the Fund for the Promotion of Exports of Mexican Manufactured Products (FOMEX), the ITA used as a benchmark for the commercial rate of interest the national average commercial rate for comparable short-term peso or dollar-denominated loans during the first nine months of 1982 as determined from information supplied by the Department of the Treasury. 48 Fed.Reg. at 8835. The source of Treasury’s information was in turn the Bank of Mexico’s publication Economic Indicators. Administrative Record at 474-76. For the Guarantee and Development Fund for Medium and Small Industries (FOGAIN), the ITA used as their benchmark the national average commercial interest rate for comparable peso-denominated loans in 1981 as provided by the Department of the Treasury, 48 Fed.Reg. at 8835-36. For the Fund for Industrial Development (FONEI), the ITA used the 1977 average commercial rate for peso-denominated loans as obtained from the Mexican government’s Diario Official. Id. at 8835. Plaintiffs’ contention that the determinations of benchmark interest rates must be explained is therefore unfounded. It is presumed that the Treasury Department acted with regularity in obtaining interest rate data. It was therefore reasonable for the ITA to rely on this information, as well as that provided by official publications of the Mexican government, as “the best information otherwise available” in determining its benchmark interest rates for purposes of this investigation. See 19 U.S.C. § 1677e (1982).

2. Calculation of FONEI and FOGAIN Benefits

Plaintiffs contend that the methodology used by the ITA in calculating these benefits failed to take into account all of the costs which would be incurred in obtaining commercial loans in Mexico. First, maintain plaintiffs, the ITA’s methodology of comparing payment streams of hypothetical commercial loans using the benchmark interest rates with the payment streams of the subsidized loans disregarded the Mexican practice with respect to both commercial loans and subsidized loans of requiring the payment of interest at the beginning of loan periods. See Administrative Record at 146, 602, 576, 1116. According to plaintiffs, “[t]he result is reduction in the calculated benefit, resulting from treating each benefit as occurring one year too late in the loan period. The effect is to decrease the total grant equivalent, since each benefit is discounted for an extra year at the benchmark rate in the benefit calculation.” Plaintiffs’ brief at 19-20.

Plaintiffs, citing Administrative Record at 682-96, 576, allege that the ITA failed to account for 3-month holidays from the repayment of principle of certain FOGAIN loans, and further citing Administrative Record at 146, 602, that the payment of commissions and maintenance of compensating balances for commercial loans were not taken into account.

In response to these contentions, defendant argues simply that “[t]he ITA’s methodology does not have to be the most reasonable in order to be upheld by this Court nor need it be the methodology that this Court would have selected had it been the decision maker. Asahi Chemical Industry Co. v. United States, 4 C.I.T. 120, 123, 548 F.Supp. 1261, 1264 (1982).” Defendant’s Brief at 18. While the Court agrees that the ITA in its discretion may choose one methodology or another in calculating the benefits of bounties or grants, any methodology employed must reasonably accurately reflect factual information in the administrative record. It does not readily appear from the record or the briefs that the ITA took into account in the calculation of FO-NEI and FOGAIN benefits the payment of “up-front” interest, 3-month holidays from the payment of principle on FOGAIN loans, and the payment of commissions and maintenance of compensating balances for commercial loans. Accordingly, the Court must remand these issues to the ITA to determine whether this additional information in the record as pointed out by plaintiffs has any significant impact upon the ITA’s determination.

3. State Tax Exemptions or Free or Low-Priced Land Incentives

The Mexican government’s response to the questionnaire indicated that none of the companies investigated received state tax exemptions. Administrative Record at 101-102, 256. During the verification, however, the ITA found that one of the foundries did benefit from a partial exemption of a state tax because it produced products exclusively for export. In light of this finding, as well as other evidence in the record that other of the firms also produced only for export, plaintiffs argue that the ITA’s finding that only one of the firms received state tax exemptions is not supported by substantial evidence upon the record.

Although the Court should not weigh the evidence, “the Court must consider the record as a whole” and consider “evidence on the record which detracts from the substantiality of the evidence relied on by the agency in making its determination.” Car-lisle Tire & Rubber Co. v. United States, — CIT —, 622 F.Supp. 1071, 1075 (1985). Viewing the record as a whole, the Court is convinced that there is sufficient “evidence as a reasonable mind might accept as adequate to support [the] conclusion” that only one firm received state tax exemptions for exportation. See Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938). On-site verification at three other firms did not disclose receipt of state tax benefits. It appears that at least one of these firms also produced only for export. See Administrative Record at 259. The ITA’s determination is therefore sustained.

Concerning land at reduced prices, plaintiffs have not met their burden of pointing to any evidence in the record detracting from the ITA’s conclusion that none of the firms investigated received this benefit.

4. Calculation of State Tax Benefit

Plaintiffs also challenge the ITA’s calculations of the state tax benefit as received by the one firm by pointing out that if the ITA’s calculations are correct, wages paid by the firm over the investigative period amounted to less than .09 percent of total sales. Defendant avoids this argument, countering only that plaintiffs have failed “to demonstrate in a concrete fashion that the net amount of the benefit has in fact been undervalued.” Defendant’s Brief at 22. Intervenors state that the ITA’s verification report explains the method of calculation in detail and as well sets forth the records used to support the calculation. The ITA’s explanation consists entirely of the following:

We examined a schedule showing how much Fundición Tijuana would have had to pay for 1982 had it not received such an exemption (M-l). The total tax amount for the period, January 1, 1982 through September 30, 1982 came to 260.23035.

The “records,” or schedule referred to, consist solely of a column of unintelligible figures. See Administrative Record at 1065. There is no indication of where the numbers came from, who prepared them, or even what they purport to represent. This issue must therefore be remanded to the ITA for further clarification of the methodology employed by the ITA in calculating the amount of the state tax benefit received.

5. Import Duty Reductions and Exemptions

Plaintiffs contend that the ITA did not investigate import duty reductions and exemptions received for equipment imported prior to the 1982 investigative period. Although the ITA did find that de mini-mus benefits had been conferred under this program for certain tools imported from the United States, defendant claims that the verification report shows that none of the machinery or parts imported prior to 1982 was purchased from the United States. Since the record indicates that the ITA did inquire into the issue and plaintiffs have not overcome the government’s presumption of correctness, the ITA’s finding that only de minimus benefits from import duty reductions and exemptions is supported by substantial evidence on the record.

6. Certificate of Fiscal Promotion (CEPROFI)

The ITA determined that only one of the companies subject of the investigation received a CEPROFI tax credit, but for the manufacture of a product other than the iron-metal municipal construction castings under investigation and for a related increase in company employment. 48 Fed.Reg. at 8836. Plaintiffs contend that to the extent that the increase in employment was due to the production of municipal castings, the tax credit related to the employment increase is countervailable. The Court finds, however, that the ITA’s finding that the employment increase was related to the production of a product other than the castings under investigation is a reasonable inference from the record, which indicates that municipal castings were a small part of the company’s production and that the production of such castings was stopped in 1981, while the CEPROFI credit was granted for an increase in employment in 1980,1981 and 1982. Administrative Record at 608 and 610. Accordingly, the Court finds that the ITA determination concerning CEPROFI benefits is supported by substantial evidence and is in accordance with law.

7. Currency Exchange Rates

Plaintiffs argue that the ITA improperly considered the exchange rate program that became operational after the period of the investigation while ignoring the program that was in effect at the time of the investigation. The dual level exchange control system alleged by plaintiffs to be countervailable was itself not enacted until September 6, 1982, shortly before the close of the January 1 to September 30, 1982 period under investigation. The program actually analyzed by the ITA, however, was substantially modified, as announced in the Diario Official on December 13, 1982. This revised program would therefore apparently be the only one relevant to entries of the merchandise under investigation made after the publication of the ITA’s affirmative preliminary determination on December 16, 1982. See Plaintiffs’ brief at 26-27. The Court accepts as reasonable the ITA’s consideration of the most current currency exchange program, which was in effect prior to the publication of the countervailing duty order on March 2, 1983, and the termination of the investigation. See C.F.R. § 355.6(b)(3).

8. FOMEX Loan Guarantees

Plaintiffs contend that the ITA did not investigate the FOMEX loan guarantee program. The ITA did, however, investigate the overall FOMEX program and make a determination as to which firms received any FOMEX benefits. See Administrative Record at 589-91. Intervenors additionally point out that the FO-MEX credit insurance program is operated by COMESEC. Intervenors’ Brief at 38. The ITA explicitly determined that COME-SEC Mexican credit insurance at preferential rates did not confer a bounty or grant. 48 Fed.Reg. at 8837.

9. Mexican Institute for Foreign Trade Benefits (IMCE)

IMCE promotes Mexican foreign trade and coordinates efforts stimulating foreign trade, apparently through a variety of means including general advertising and promotion of Mexican products in international markets, as well as the provision of information and assistance directly to manufacturers, merchants, distributors and exporters. Administrative Record at 620. The ITA has verified “that none of the companies exporting the merchandise under investigation used any of the services offered by the IMCE.” 48 Fed.Reg. at 8837. Plaintiffs nevertheless contend that the ITA failed to adequately investigate and determine what subsidy benefits may be conferred upon the iron-metal construction castings industry from general advertising and promotion. See e.g., Administrative Record at 278-84 (promotional questionnaire, firm list, catalog and advertisement apparently distributed by IMCE). Although the ITA could have perhaps done more in looking into this aspect, the Court finds the ITA’s reliance on the questionnaire response and verifications at IMCE and the firms, which indicated that none of the firms had received IMCE benefits, was reasonable.

10. Full Investigation of Industrial Park Programs

Based on the preliminary determination that several programs required additional information, see Administrative Record at 177, plaintiffs allege that the ITA made no further effort to acquire the needed information. Among the programs are land at reduced cost and state tax incentives (dealt with supra pp. 407-408), FOMEX loan guarantees (dealt with supra p. 409), benefits provided by National Financiere, S.A., and benefits of industrial park programs.

The ITA’s finding regarding industrial parks is supported by substantial evidence. The verification report clearly shows that none of the companies investigated are located in industrial parks and therefore do not receive benefits under the Trust for Industrial Parks, Cities and Commercial Centers (FIDEIN). See Administrative Record at 595.

11. Full Investigation of National Financeria

Plaintiffs allege that the ITA failed to investigate and make determinations regarding programs administered by National Financeria. The ITA made explicit determinations regarding FIDEIN and FONEP, both programs administered by the National Financeria. See 48 Fed.Reg. at 8837, see also Administrative Record at 598. The Court finds that the ITA’s actions and determinations in this regard to be supported by substantial evidence and in accord with the law.

12. Industrial Energy Discounts

The ITA’s determination, See 48 Fed.Reg. at 8837, that Mexican producers of iron construction castings did not receive discounts on basic petrochemicals or industrial energy supplies is sustained. The determination is supported by the Mexican government’s questionnaire response, Administrative Record at 103, 256, Administrative Record at 598-99, and on-site review of electric bills for each company verified. Administrative Record at 599.

13. Failure to Investigate Foreign Debt Restructuring

Plaintiffs allege that the ITA failed to make any investigation or determination regarding certain programs brought to the attention of the ITA during the investigation, as would be required by 19 U.S.C. § 1677d. Defendant appears not to have responded to this issue at all in its brief, while intervenors argue essentially that since the ITA should have made a negative determination regarding these programs, the failure to amend the notice of investigation to include these programs constitutes harmless error. Intervenors assert further that there is a lack of any suggestion in the verification that the foreign debt repayment schedule was altered in any way. Given that plaintiffs have not pointed to any evidence in the record supporting their claim other than their own conclusory statements made during the administrative proceeding, the Court affirms the ITA in not investigating and making a determination regarding this issue.

14. Exchange Rates

Plaintiffs challenge the ITA determination for failing to set forth the exchange rates used by the ITA in calculating the net benefit received by the Mexican iron castings exporters. Presumably plaintiffs are concerned with whether the exchange rates employed resulted in an undervaluation of the bounty or grant conferred. Defendant answers this contention in a footnote stating that the ITA, pursuant to 31 U.S.C. § 5151(c), uses exchange rates published by the Secretary of the Treasury. Defendant’s Brief at 16, n. 5. Alternatively, intervenors allege that the exchange rates used were set by the Mexican government and cites the Administrative Record at 499-503. The Court is unable to discern from the record and the briefs what exchange rates the ITA in fact used in this case. Accordingly, the Court must order a remand to determine what exchange rates were used and if they were in accordance with law.

15. Verification Report

Plaintiffs again challenge the conclusion of the verification report as part of the administrative record. Although the verification report was placed with the record subsequent to the final determination, the report consists of information and exhibits compiled prior to the final determination. Plaintiffs had the opportunity to comment on the verification report during the remand to the ITA. As the report does not appear to be a post hoc rationalization of the final determination, see e.g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419-20, 91 S.Ct. 814, 825-26, 28 L.Ed.2d 136 (1971), but rather a compilation of material gathered during the administrative proceeding, the verification report is properly part of the administrative record within the meaning of 19 U.S.C. § 1516a(b)(2)(A) (1982).

CONCLUSION

In order to determine whether all of the ITA’s determinations are supported by substantial evidence upon the agency record, the Court requires further clarification and determination regarding the following challenges:

(2) the calculation of FONEI and FO-GAIN benefits,
(4) the calculation of the benefit of the state tax exemption received,' and
(14) the exchange rates used by the ITA in calculating the net benefit used.

With respect to plaintiffs’ other challenges in this case, the Court finds that the ITA determinations are supported by substantial evidence upon the record. Plaintiffs’ motion for judgment upon the agency record is therefore granted in part and denied in part, and the case is remanded for further action consistent with this opinion.

      . FOMEX (Fund for the Promotion of Exports of Mexican Manufactured Products) is a government trust which provides low-interest loans to Mexican companies to promote the manufacture and sale of exported products. 48 Fed.Reg. at 8834.

      . FONEI (Fund for Industrial Development) is a specialized financial development fund, administered by the Bank of Mexico, which grants long-term credit at below-market rates for the creation, expansion or modernization of enterprises and to foster industrial decentralization. 48 Fed.Reg. at 8835.

      . FOGAIN (Fund for the Guarantee of Development of Medium and Small Industry) provides financing at interest rates below prevailing commercial rates based upon whether a small or medium business has a designated priority status or based upon its geographical location. 48 Fed.Reg. at 8835.

      . CEPROFI (Certificates of Fiscal Promotion) are nontransferrable tax certificates used to promote the goals of NIDP. These tax credits are provided to Mexican companies for locating in certain regions, investing in certain infant industries, generating jobs, investing in new plants and equipment, and purchasing Mexican capital goods. 48 Fed.Reg. at 8836.

      . CEDI (Certificado de Devolución del Impuesto), suspended by the Mexican Government in August 1982, was also a tax rebate. The certificates were direct export subsidies with their value equal to a percentage of the value of qualifying exports. 48 Fed.Reg. at 8836.

      . FOMIN (Fondo National de Fomento Industrial) operates as a trust fund and provides funding to companies through stock acquisition or the provision of convertible loans at rates below those of commercial lending institutions. 48 Fed.Reg. at 8837.


source: Caselaw Access Project

author: NEESE, Senior District Judge,

license: Public Domain

text:
    Daniel Preston RUCKER, Petitioner, v. J.H. ROSE, etc., et al., Respondents.
    Civ. A. No. 3:83-0083.
    United States District Court, M.D. Tennessee, Nashville Division.
    Jan. 27, 1983.
    Supplemental Memorandum Opinion Feb. 14, 1983.
    Daniel Rucker, pro se.
    Wayne Uhl, Asst. Atty. Gen., Nashville, Tenn., for respondents.
   MEMORANDUM OPINION, ORDERS AND CERTIFICATE

NEESE, Senior District Judge,

sitting by designation and assignment.

The petitioner Mr. Daniel Preston Rucker, in custody of the respondent-warden pursuant to the judgment in 1945 of an unspecified Court of the state of Tennessee as well as pursuant to the subsequent judgment of the Criminal Court of Blount County, Tennessee, applied pro se to this Court for the federal writ of habeas corpus, claiming, that such is in violation of the Constitution, Fourteenth Amendment. 28 U.S.C. § 2254(a). Annexed to such petition is the applicant’s affidavit that he is unable to pay the fees and costs of this proceeding or give security therefor and his statement of his belief that he is entitled to redress. 28 U.S.C. § 1915(a). Therefore, he hereby is

AUTHORIZED to commence and prosecute this proceeding without prepayment of fees or costs or the giving of security therefor. Id.

The crux of the applicant’s complaint of federal constitutional deprivation appears to relate to earlier judicial decisions which he claims are in diametrically-opposed contradiction. He was convicted in 1945 of rape and sentenced to a term of life imprisonment; while serving that sentence, he escaped from custody; and, while in the status of an escapee, he committed the felony of attempting to commit an armed robbery, for which he was again convicted and again sentenced, this time to a term of five years.

The applicant applied to the Criminal Court of Davidson County, Tennessee for the state writ of habeas corpus. “ * * * On April 26, 1978, an agreed order was entered in the trial [hearing] court wherein it was ordered by that court that the Appellant [applicant, here] would not be required to serve any more time on the [his] life sentence and that he would be eligible for parole on the five (5) [-]year sentence after serving the minimum time required by law for the [i.e., 5-year] sentence. * * * ” Rucker v. State, 556 S.W.2d 774, 775 (Tenn.Ct.Crim.App.1977), cert. den. by Supreme Court of Tennessee (1977).

The applicant observes that his initial (life) sentence lacked any date of expiration, but that he would have become eligible for conditional release on parole after he had served 13 years, 7 months of such term. His escape appears to have occurred before he had served the immediately-above portion of his life-sentence.

A statute of the state of Tennessee provides:

If any inmate serving a term in the state penal system shall commit a felony while he is an escapee from such institution, he shall upon conviction and sentencing, commence the new sentence only after the expiration of all present sentences due to be served.

T.C.A. § 41-726 (1973). A literal application of the foregoing statute, thus, would have required the applicant, as an inmate serving a term in the state penal system who committed a felony while he was an escapee from the institution of his incarceration, upon his second conviction and second sentencing, to have commenced such second sentence only after the expiration of his earlier life-sentence which, as contended by the applicant, had no time of expiration.

“ * * * The Board of Pardons and Paroles apparently did not follow * * * ” the aforementioned judicial adjudication, Ruck-er v. State, supra; whereupon, the applicant filed a petition with the Criminal Court of Davidson County, Tennessee, for a mandate, “ * * * directing the Board to establish [on the two sentences] a parole date * * claiming that the aforementioned agreed order was “ * * * binding on the Board of Pardons and Paroles * * and that the Court of Criminal Appeals “ * * * should order the Board of Pardons and Paroles to comply with the order.” Id. Judge Byers said inter alia for the Court of Criminal Appeals of Tennessee:

* * * Upon reviewing the present petition, the trial [hearing] court, in an order entered October 1, 1976, ordered the five (5)[-]year sentence to run consecutive [sic] to the life sentence. The trial judge, by this order, appears to have abrogated the agreed order of April 28, 1976.
* # # * * *
* * * A sentence for life does not expire but continues so long as a person serving such sentence lives, or, until a pardon has been granted. Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d 891 (1960).
* * * A commutation would also terminate a life sentence. The granting of parole does not terminate a sentence but merely suspends the execution of the penalty thereon. Doyle v. Hampton, supra. Therefore, so long as the life sentence remains in effect, service of the five (5) [-]year sentence shall not commence and eligibility for parole does not exist. [Emphasis added by the writer.]
* * * The courts have no authority or jurisdiction to terminate a valid sentence of confinement. The authority to grant pardons and commutations of sentences rests solely with the executive authority of this State. Article III, Section 6 of the Constitution of Tennessee, T.C.A. § 40-3501 — § 40-3508. The granting of parole is vested exclusively in the Board of Pardons and Paroles. T.C.A. § 40-3613. Therefore, the agreed order entered in the trial court on April 28, 1976, was void and had no binding effect on the Board of Pardons and Paroles.
The trial court [sic] order of October 1st, 1976, recognized the imperative provisions of T.C.A. § 41-726 and abrogated the order of April 28, 1976.
The petitioner is not entitled to the relief sought. * * *

lb., 556 S.W.2d at 776[2], [3, 4], [5, 6].

The novel insistence of the applicant is that such adjudication rendered him ineligible permanently for conditional release on parole, but that the Tennessee Board of Pardons and Paroles “ * * * illegally paroled me in 1981 * * when it should have recommended that he receive executive clemency from the Governor of Tennessee; and that: “ * * * On June 23, 1982, I was returned to prison as a ‘parole violat[o]r.’ He complains that: “ * * * Neither the U.S. District Court or the State courts have sought to force the Parole Board to comply with the law.”

The applicant plainly is not entitled to relief on that contention herein, because his claim is not one violative of the federal Constitution, 28 U.S.C. § 2254(a), supra. “ * * * The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody. * * * ” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495-496, 93 S.Ct. 1123, 1129[4], 35 L.Ed.2d 443 (1973).

Under the applicant’s present petition for the writ of habeas corpus, “* * * ‘the only judicial relief authorized [would be either] the discharge of the prisoner or his admission to bail.’ * * * ” Parker v. Ellis, 362 U.S. 574, 575, 80 S.Ct. 909, 910, 4 L.Ed.2d 963 (per curiam, 1960). And, “ * * * it is unquestioned doctrine that only the sentence [emphasis added by this writer] being served is subject to habeas corpus attack. * * *” Darr v. Burford, 339 U.S. 200, 203, 70 S.Ct. 587, 589[2], 94 L.Ed. 761 (1950) (where a state prisoner was serving the first of two sentences, “ * * * to run consecutively * * id., 339 U.S. at 201, 70 S.Ct. at 589).

The gist of the applicant’s claims for relief is that the parole board of Tennessee infringed his federal right to due process of law by placing him on parole when it should not have done so and by revoking thereafter his parole. “ * * * Decisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection; there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations. * * * This is especially true with respect to the sensitive choices presented by the administrative decision to grant [or reject] parole release.

“ * * * A state may, as [Tennessee] has, establish a parole system, but it has no duty to do so. Moreover, to insure that the state-created parole system serves the public interest, purposes of rehabilitation and deterrence [footnote references omitted], the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority. It is thus not surprising that there is no prescribed or defined combination of facts which, if shown, would mandate release on parole. * * * In parole release, * * * few certainties exist. In each case, the decision differs from the traditional mold of judicial decisionmaking in that the choice involves a synthesis of record[-]facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community. The latter conclusion requires the Board to assess whether, in light of the nature of the crimefs], the inmate’s release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice. The entire inquiry is, in a sense, an ‘equity’ type judgment that cannot always be articulated in traditional findings.

jj; * ¡fc * * *

“A * * * difference between discretionary parole release from confinement and termination [as in original] of parole lies in the nature of the decision that must be made in each ease. * * * [T]he parole-revocation determination actually requires two decisions: whether the parolee in fact acted in violation of one or more conditions of parole and whether the parolee should be recommitted either for his or society’s benefit. * * * ‘The first step in a revocation decision thus involves a wholly retroactive factual question.’ * * *

“The parole-release decision, however, is more subtle and depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisibility of parole release. Unlike the revocation decision, there is no set of facts which, if shown, mandate a decision favorable to the individual [or which he or she may think is favorable]. The parole-determination * * * may be made

‘for a variety of reasons and often involve[s] [as in original] no more than informed predictions as to what would best serve [correctional purposes] [as in original] or the safety and welfare of the inmate.’ * * *

The decision turns on a ‘discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.’ * * *

* * * * * *

“ * * * ‘[T]here is a human difference between losing what one has and not getting what one wants.’ * * * Greenholtz v. Inmates of Nebraska Penal & Cor., 442 U.S. 1, 7-10, 99 S.Ct. 2100, 2104[2], [3, 4], 2105[5], 60 L.Ed.2d 668 (1979). Whatever “hope” the applicant may have had that he would not be placed on parole or have it revoked for his misconduct is “ * * * a hope which is not protected by due process. * * * ” lb., 442 U.S. at 11, 99 S.Ct. at 2105.

Finally, the applicant does not even shadow forth a federal claim of deprivation of the equal protection of the laws as applied to him; the constitutionality of a state’s power to fix, grant, deny, or revoke parole “ * * * is too well established to require further discussion. * * * ” Bennett . v. People of the State of California, 406 F.2d 36, 38[3] (9th Cir.1969), cert. den., 394 U.S. 966, 89 S.Ct. 1320, 22 L.Ed.2d 568 (1969), citing inter alia Dreyer v. Illinois, 187 U.S. 71, 83, 23 S.Ct. 28[32], 47 L.Ed. 79 (1902). “ * * * ‘So long as the law applies to all alike, the requirements of equal protection are met.’ * * * ” Hodge v. Stout, 377 F.Supp. 131, 135 (E.D.Tenn.1974), quoted in Buda v. Saxbe, 406 F.Supp. 399, 404 (E.D.Tenn.1975) (both per Neese, J.).

It appearing plainly on preliminary consideration from the face of the applicant’s petition and the exhibits annexed to it that the petitioner is not entitled to any relief in this Court, his application hereby is

DISMISSED summarily. Rule 4, 28 U.S.C. fol. § 2254. The clerk forthwith will so notify the petitioner. Id. A copy of the petition and of this order shall be served forthwith by the clerk by certified mail on the respondent and the attorney general and reporter of Tennessee. Id.

Should the applicant give timely notice of an appeal from the judgment to be entered herein, Rule 58(1), F.R.Civ.P., he is authorized to proceed thereon in forma pauperis. Rule 24(a), F.R.App.P. Any such notice will be treated also as an application for a certificate of probable cause. Rule 22(b), F.R.App.P. As the petitioner is serving a term of life imprisonment with another sentence to follow consecutively, and because of the first aforementioned judicial decision, such certificate WILL issue. Id.

SUPPLEMENTAL MEMORANDUM OPINION

This Court entered a final order on January 27, 1983 in this habeas corpus proceeding. Therein, the petitioner was authorized to proceed on any timely notice of an appeal to the United States Court of Appeals for the Sixth Circuit in forma pauperis and granted (conditioned on such giving of a timely notice of appeal) the petitioner a certificate of probable cause. Id.

Since that date, the petitioner has filed several documents, the crux of which is that this Court was wrong in its aforementioned order. This Court has no authority to act further in this matter now that its final order has been entered.

That order is appealable by the petitioner, 28 U.S.C. § 2253, now that a certificate of probable cause has been ordered to issue conditionally; however, notice thereof must be filed, Rule 3(a), F.R.App.P., timely, Rule 4(a)(1), F.R.App.P. (“the notice required by Rule 3, [, supra,] shall be filed with the clerk of the district court within 30 days after the date of entry of the * * * order appealed from * * * )”; see Browder v. Director, Dept. of Corrections of III., 434 U.S. 257, 264, 98 S.Ct. 556, 561[3], 54 L.Ed.2d 521 (1978) (“This 30 days time limit is ‘mandatory and jurisdictional.’ ”) On any such timely appeal, the appellate court may consider any issue previously considered by the courts of Tennessee which was presented to this Court and which provides a ground for reversal of this Court’s order as well as any issue which would be ground for affirmance of such order of this Court. United States ex rel. Hickey v. Jeffes, 571 F.2d 762, 766[6] (3d Cir.1978).

      . " * * * No State shall * * * deprive any person of * * * liberty * * * without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Constitution, Fourteenth Amendment, supra, § 1.

      . Cf. Rucker v. Lane, 452 F.Supp. 245 (E.D.Tenn. 1978), and Daniel Rucker, petitioner, v. Lamar Alexander, Governor, et al, respondents, no. 80-3672 in the Middle District of Tennessee, Nashville Division (1981).

      . Greenholtz was cited and quoted-from in Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980).


text:
    Daniel Preston RUCKER, Petitioner, v. J.H. ROSE, etc., et al., Respondents.
    Civ. A. No. 3:83-0083.
    United States District Court, M.D. Tennessee, Nashville Division.
    June 18, 1985.

      Daniel Rucker, pro se.
    Wayne Uhl, Asst. Atty. Gen., Nashville, Tenn., for respondents.
   MEMORANDUM OPINION, ORDER AND CERTIFICATE OF PROBABLE CAUSE

NEESE, Senior District Judge,

sitting by designation and assignment.

Obedient to the mandate of the United States Court of Appeals for the Sixth Circuit, this Court determines whether the petitioner Mr. Daniel Preston Rucker has exhausted his available state-remedies. The petitioner appears to concede, and the expanded-record reflects clearly, that he has not given the Supreme Court of Tennessee a fair opportunity to consider the grounds he urges herein.

He contends, however, that such was not necessary because of the existence of circumstances rendering the pertinent state processes ineffective to protect his rights as a prisoner (or former prisoner). See 28 U.S.C. § 2254(b). “ * * * An exception [to the rule requiring exhaustion of state remedies before seeking federal habeas corpus relief] is made only if there is no opportunity to obtain redress in a state court or if the corrective process is so clearly deficient as' to render futile any effort to obtain relief. * * * ” Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19[3], 70 L.Ed.2d 1 (1981).

The above is not the situation herein: Mr. Rucker contends that pursuing his claims through the appellate-courts of Tennessee would be futile since he would have to go through the Court of Criminal Appeals of Tennessee which is the same Court which removed his eligibility for parole in 1977. The hostility of the state-courts to the position of the petitioner will excuse exhaustion on the ground of futility only when the question raised in the federal-proceeding has recently been decided adversely to the petitioner by the highest court of the state, Robinson v. Berman, 594 F.2d 1, 3[10] (1st Cir.1979); just because Tennessee’s intermediate criminal-appellate Court might be hostile to Mr. Rucker's claims does not imply that he would be unable to obtain relief in the Supreme Court of Tennessee — in fact, that would be all the more reason to present the instant claims to the highest Court of Tennessee.

This Court is satisfied that the petitioner has available to him presently a means to present the federal-claims raised herein to the courts of Tennessee. He may institute proceedings under Tennessee’s Post-Conviction Act, T.C.A. §§ 40-30-101, et seq., or Habeas Corpus Act, T.C.A. §§ 29-21-101, et seq.; in addition, an action may be pursued under the Declaratory Judgment Act, T.C.A. §§ 29-14-101, et seq., for the purpose of securing a determination of the lawfulness of the action or inaction of the state board of pardons and paroles. See Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d 891 (1960); McFadden v. State, 532 S.W.2d 944 (Tenn.Crim.App. 1975), cert. den. by Tenn.S.Ct. (1975). Furthermore, the Constitution of Tennessee, art. 1, § 17, guarantees that Mr. Rucker “ * * * has a constitutional right to institute and prosecute a civil action seeking redress for injury or damage to his person or property, or for the vindication of any other legal right * * Whisnant v. Byrd, 525 S.W.2d 152, 153[2] (Tenn.1975).

An examination of the expanded-record results in the conclusion that the petitioner is not entitled to relief in this Court for his failure to have exhausted his available state-remedies. Accordingly, the petitioner hereby is

DENIED all relief herein. Rule 8(a), 28 U.S.C. fol. § 2254.

Should the petitioner give timely notice of an appeal from this order and the judgment which the clerk will enter hereon, Rule 58(1), F.R.Civ.P., he is authorized to proceed thereon in forma pauperis. Rule 24(a), F.R.App.P. Any such notice will be treated also as an application for a certificate of probable-cause, Rule 22(b), F.R. App.P., which in this instance will issue so that the Court of Appeals may be afforded an opportunity to review this Court’s effort to comply with its mandate. Id.

      . Mr. Rucker filed in the Criminal Court of Knox County, Tennessee a petition for the writ of habeas corpus, which apparently was considered also by that Court as a petition for post-conviction relief. See T.C.A. § 40-30-108. Such petition was dismissed; but, instead of taking an appeal from the order of dismissal, Mr. Rucker sought writs of mandamus, respectively, from the Court of Criminal Appeals of Tennessee and the Supreme Court of Tennessee. Each such application was dismissed for lack of jurisdiction. (The appellate courts of Tennessee lack original jurisdiction to issue writs of mandamus, although they may issue such writs where their appellate jurisdiction has been properly invoked. Ing v. Davey, 70 Tenn. 276, 279 (1879); Whitfield v. Greer, 62 Tenn. 78, 80-81 (1873)).
      The exhaustion rule requires that the grounds raised in a petition for the federal writ of habeas corpus have been presented fairly to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512[2], 30 L.Ed.2d 438 (1971); this means, among other things, that the applicant must have followed the procedures established by the state for the presentation of issues to its highest court. See Williams v. Marshall, 628 F.2d 934, 935 (6th Cir.1980), cert. den. 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980). Tennessee does not permit mandamus to serve as a substitute for an appeal; mandamus is a proper remedy only where the petitioner " * * * has no other specific or adequate remedy.” State v. Sandefur, 215 Tenn. 690, 389 S.W.2d 266, 269 [1] (Tenn.1965).

      . Apparently Mr. Rucker is no longer incarcerated, having been released on parole. That, however, does not moot his claim for relief nor defeat this Court's jurisdiction of the subject-matter. Glenn v. Dallman, 686 F.2d 418, 422[5] (6th Cir.1982).

      . The Supreme Court of Tennessee often disagrees with the Court of Criminal Appeals of Tennessee on matters of federal-constitutional law.

      . See Parker v. Rose, 728 F.2d 392 (6th Cir. 1984), where a state prisoner was required to seek relief for a third time under Tennessee's Post-Conviction Procedure Act, supra.


author: JAMES LAWRENCE KING, Chief Judge.

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. Janet RENO, as State Attorney, 11th Judicial District of Florida, or Her Successors, Defendant.
    No. 84-0141-CIV-JLK.
    United States District Court, S.D. Florida.
    April 10, 1984.
    Patrick Q. White, Miami, Fla., for E.E. O.C.
    Bruce A. Minnick, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for Janet Reno.
   ORDER GRANTING MOTION TO DISMISS

JAMES LAWRENCE KING, Chief Judge.

THIS CAUSE comes before the court upon the defendant’s Motion to Dismiss.

The defendant contends that this court lacks jurisdiction over all claims presented by this plaintiff pursuant to the Age Discrimination Employment Act of 1967. 29 U.S.C. §§ 621-634 (1975 & Supp.1983). (Hereinafter ADEA.) In support of this contention the defendant makes two arguments. First, the defendant argues that she is not governed by the act because she is not an employer as defined by the act. The defendant cites 29 U.S.C. § 630(b) for the proposition that an employer under the act is a member of a class of persons who employ employees. The defendant then asks the court to analogize this statutory scheme with certain other statutory schemes so that the court will find that the defendant has no employees and, therefore, find that the defendant could not be an employer.

Interpreting 29 U.S.C. § 630(b) to mean that a State, or political subdivision or the agents or instrumentalities of either, can only be an employer when it has employees as defined by the act, the court finds that the defendant does not employ employees and, therefore, that she is not an employer as defined by the act.

The statute defines an employee to be: [A]n individual employed by any employer except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision.

29 U.S.C. § 630(f).

In interpreting the identical language found in the civil rights statute 42 U.S.C. § 2000e, the United States Court of Appeals for the Ninth Circuit found that a deputy district attorney was not an employee within the statute. Ramirez v. San Mateo County, 639 F.2d 509 (9th Cir.1981). That court concluded that the above quoted language was intended to exempt certain workers, such as deputy district attorneys, who serve at the pleasure of their superior who has plenary power of appointment and removal. The court also noted that deputy district attorney’s were unlike other workers in that the deputies were not subject to the normal protections of the county civil service system.

The court went on to explain:
This characterization of the deputy’s position in county law tells us much about the working relationship the county envisions between district attorney and deputy. The exclusive powers of selection and retention indicate that deputies perform to the district attorney’s personal satisfaction rather than to the more generalized standards applied to other county workers by the civil service system. Such a level of personal accountability is consistent with the highly sensitive and confidential nature of the work which deputies perform as well as with the considerable powers of the deputy to represent the district attorney in legal proceedings and in the eyes of the public. (Citations omitted). We conclude that when a job includes this level of personal accountability to one elected official, it is precisely the sort of job Congress envisioned to be within the “personal staff” of that official and thus exempt from Title VII.

Ramirez, 639 F.2d at 513.

The court finds the analysis in Ramirez to be persuasive in the interpretation of the ADEA. Florida law provides that the defendant herein shall appoint and direct assistant state attorneys. The assistant state attorney’s so appointed serve at the pleasure of the state attorney appointing him. Further, assistant state attorneys have been exempted from the provisions of Florida’s Career Service System. The court concludes that this is the exact type of personal accountability relied upon by the Ninth Circuit in Ramirez and the court agrees that assistant state attorneys are precisely the sort of workers that Congress envisioned to be within the “personal staff” of the states attorney and thus exempt from the ADEA.

Since the pertinent portions of the ADEA only give this court jurisdiction to enforce the proscription of discrimination by an employer and since the defendant herein is not an employer, the court is forced to the conclusion that it does not have jurisdiction in this case.

Having come to this conclusion, it is not necessary for the court to consider the defendant’s second argument.

Accordingly, the court does:

ORDER and ADJUDGE that the defendant’s motion to dismiss be, and it is, GRANTED. This action is DISMISSED.

Vw\ [O I KEY NUMBER SYSTEM)


author: GRADY, District Judge.

text:
    Marie ZAKARIAN, et al., Plaintiffs, v. The PRUDENTIAL INSURANCE CO. OF AMERICA, et al., Defendants.
    No. 84 C 91.
    United States District Court, N.D. Illinois, E.D.
    May 23, 1984.

      Kasdin & Nathanson, Chicago, Ill., for plaintiffs.
    Joseph J. Hasman, James B. Davidson, Peterson, Ross, Schloer & Seidel, Chicago, Ill., for Prudential Ins. Co. of America.
    Jane H. Veldman, Lord, Bissell & Brook, Chicago, Ill., for Massachusetts Indem. and Life Ins. Co.
   MEMORANDUM OPINION

GRADY, District Judge.

This action is before the court on defendants’ motion to dismiss certain counts of plaintiffs’ complaint, pursuant to Fed.R. Civ.P. 12(b)(6). The basic allegation of each of the disputed counts is that the defendant insurers (“the insurers”) breached their duty to deal fairly and in good faith with plaintiffs, thereby causing plaintiffs emotional and physical injury. Plaintiffs seek both compensatory and punitive damages.

FACTS

In ruling on motions to dismiss, we accept as true the allegations of the complaint. Parr v. Great Lakes Express Company, 484 F.2d 767, 769-70 (7th Cir.1973). Plaintiffs allege that they were the beneficiaries of certain insurance policies written on the life of their decedent, Zare Zakarian (“Mr. Zakarian”). After Mr. Zakarian died, plaintiffs asserted claims against the insurers under the policies. When the insurers refused to pay the claims, plaintiffs brought this action for breach of contract and in tort.

DISCUSSION

Defendants argue that those counts of the complaint seeking compensatory and punitive damages for the alleged breach of an implied covenant of good faith, and for wrongful, vexatious and unreasonable actions, are preempted by Section 155 of the Illinois Insurance Code, Ill.Rev.Stat. ch. 73, If 767. Section 155 permits certain extraordinary costs to be taxed against an insurer that vexatiously or unreasonably refused to pay a claim.

The Illinois Supreme Court has not yet addressed the issue of the preemptive effect, vel non, of Section 155. There is a split in the state appellate courts and indeed in this district over this question. Judge Marshall, for example, has held that if confronted with this issue, the Illinois Supreme Court would rule that Section 155 has no preemptive effect. Roberts v. Western-Southern Life Ins. Co., 568 F.Supp. 536 (N.D.Ill.1983); Kelly v. Stratton, 552 F.Supp. 641 (N.D.Ill.1982). Judge Aspen, on the other hand, believes that the Illinois Supreme Court would decide that Section 155 precludes all extracontractual common law actions, including both claims for compensatory and punitive damages. Aabye v. Security-Connecticut Life Ins. Co., 586 F.Supp. 5, 8 (N.D.Ill.1984) (Aspen, J.); Strader v. Union Hall, Inc., 486 F.Supp. 159 (N.D.Ill.1980). Although Judge Shadur believes that the duty of a district judge is to apply the law prevailing in the state appellate district in which the federal court sits, rather than to attempt to predict what the state supreme court would do if presented with the question, he believes that the controlling precedent supports Judge Aspen’s position, i.e., punitive damage claims have been preempted. Abbott Laboratories v. Granite State Ins. Co., 573 F.Supp. 193 (N.D.Ill.1983). Finally, in a more recent decision, Judge Moran takes a middle road, ruling that while Section 155 preempts claims for punitive damages, it does not bar suits for compensatory damages. Barr Co. v. Safeco Ins. Co. of America, 583 F.Supp. 248 (N.D.Ill. 1984) (Moran, J.).

On the three occasions that we have interpreted the state law, we have held that when the Illinois legislature enacted Section 155 it preempted the field, foreclosing common law actions seeking compensatory and punitive damages for breach of the duty of good faith and fair dealing. Tramm Investment Corp. v. Great Southwest Insurance Company, et al., No. 81 C. 1851 (N.D.Ill. Feb. 15, 1983) (Grady, J.); Bank of Naperville v. Merrimack Mutual Fire Insurance Company, No. 81 C 774 (N.D.Ill. Oct. 28, 1982) (Grady, J.); Hyler v. Prudential Insurance Company of America, et al., No. 79 C 2507 (N.D.Ill. Aug. 3, 1982) (Grady, J.).

Although there is state decisional authority supporting each of the variant positions, we adhere to our prior rulings and hold that if faced with this question, the Illinois Supreme Court would decide that both compensatory and punitive damage actions are preempted by the Illinois Insurance Code. We note additionally that the Illinois Appellate Court, First Division, recently held that Section 155 preempts both punitive and compensatory damage actions. Kinney v. St. Paul Mercury Ins. Co., 120 Ill.App.3d 294, 75 Ill.Dec. 911, 458 N.E.2d 79 (1st Dist.1983).

Thus, the Illinois Insurance Code provides the sole remedy for Illinois plaintiffs claiming denial of benefits under insurance policies due to the vexatious and unreasonable conduct of an insurer; no independent tort action exists.

Accordingly, we grant defendants’ motion to dismiss Counts II, IV and VIII of the complaint.

      . One plaintiff is the decedent’s mother, the other is his sister.

      . In their answers, the insurers set forth as an affirmative defense that Mr. Zakarian committed suicide. Their contention, therefore, is that they need not pay benefits under the terms of the policies.

      . Ill.Rev.Stat. ch. 73, ¶ 767, provides:
      767. Attorney fees
      § 155. Attorney fees. In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus an amount not to exceed any one of the following amounts:
      (a) 25% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs;
      (b) $5,000;
      (c) the excess of the amount which the court or jury finds such party is entitled to recover, exclusive of costs, over the amount, if any, which the company offered to pay in settlement of the claim prior to the action.
      (2) Where there are several policies insuring the same insured against the same loss whether issued by the same or by different companies, the court may fix the amount of the allowance so that the total attorney fees on account of one loss shall not be increased by reason of the fact that the insured brings separate suits on such policies.

      . Nothing in this opinion should be read to affect the validity of plaintiffs' claims for intentional infliction of emotional distress.


author: THELTON E. HENDERSON, District Judge.

text:
    Diane Carol COKELY, Plaintiff, v. PACIFIC GAS & ELECTRIC CO., Does I through XX, inclusive, Defendants.
    No. C 84-0680 TEH.
    United States District Court, N.D. California.
    June 13, 1984.

      Sondra J. Thornally, San Francisco, Cal., for plaintiff.
    Henry J. LaPlante and John R. Low, San Francisco, Cal., for defendants.
   ORDER OF REMAND

THELTON E. HENDERSON, District Judge.

Defendant Pacific Gas and Electric Company has moved to dismiss portions of the plaintiff’s complaint as preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Our review of the complaint leads us to conclude, however, that this action was improperly removed from state court and that we therefore lack jurisdiction to consider the defendant’s motions. Accordingly, this action will be remanded to the state court of its origin, the Superior Court of the State of California for the County of Marin.

The defendant removed this action on the ground that the plaintiff’s fourth cause of action states a claim for breach of the governing collective bargaining agreement on its face and therefore must be “recharacteriz[ed]” as an action arising under section 301. Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir.1980); see also Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367, 1370-1371 n. 5 (9th Cir.1984). We disagree. Interpreting the plaintiff’s fourth cause of action liberally and in light of the recent decision of the Court of Appeals in Garibaldi v. Lucky Food Stores, Inc., supra, it appears that the plaintiff alleges that she suffered retaliatory treatment because she filed and successfully pursued a claim of sexual harrassment and sex discrimination with a state administrative agency. Such a claim is not, on its face, preempted by section 301. Garibaldi v. Lucky Food Stores, Inc., 726 F.2d at 1371 n. 6, 1373-1375. To the contrary, the plaintiff seeks to remedy conduct which allegedly violates the public policy of the State of California, as codified in section 12940(e) of the Government Code, forbidding retaliatory treatment of employees who file administrative employment discrimination complaints. See id. Accordingly, the plaintiff’s fourth cause of action does not provide a basis for removal because it is not, on its face, preempted by section 301. Id. at 1370-1375, 1370 n. 5.

Having concluded that this Court lacks jurisdiction to consider this matter, IT IS HEREBY ORDERED that this action is REMANDED to the Superior Court of the State of California for the County of Marin.

IT IS SO ORDERED.

      . Section 12940(e) of the California Government Code provides, in pertinent part:
      It shall be an unlawful employment practice ...:
      (e) For any employer ... to discharge, expel or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified or assisted in any proceeding under this part.

      . In so ruling, we recognize that facts which may be undiscovered in future discovery may not support the allegations of the plaintiffs fourth cause of action and that that claim may, in fact, be preempted by section 301. The final determination of the preemption issue, however, is for the state court. See Garibaldi v. Lucky Food Stores, Inc., 726 F.2d at 1369 n. 4.


author: OBERDORFER, District Judge.

text:
    WISCONSIN ELECTRIC POWER COMPANY, et al., Plaintiffs, v. Donald P. HODEL, Secretary, Department of Energy, Defendant.
    Civ. A. No. 83-2281.
    United States District Court, District of Columbia.
    July 18, 1984.

      Jay E. Silbert, Shaw, Pittman, Potts & Trowbridge, Washington, D.C., for plaintiffs.
    Thomas Millet, U.S. Dept. of Justice, Washington, D.C., for defendant.
   MEMORANDUM

OBERDORFER, District Judge.

This matter is before the Court on a motion to dismiss and on cross-motions for summary judgment. Plaintiffs are a number of electric utility companies who use or plan to use nuclear reactors to generate electric power in conformity with the Nuclear Waste Policy Act, 42 U.S.C. § 10101 et seq. (“the Act”). They seek judicial review of the standard form of nuclear waste disposal contract adopted by the Secretary pursuant to the Act after notice and comment in the rulemaking proceeding. Specifically, they challenge as unlawful, arbitrary, capricious, and an abuse of discretion contract provisions for calculation of the fee they must pay to the Department of Energy for the cost of removing nuclear waste that they create because the fee base would include electricity generated by a utility’s reactor system, but consumed by the utility to operate its own plant and not sold directly to customers of the utility.

I.

Section 10222(a)(1) of the Act authorizes the Secretary (“in the performance of his functions under this chapter”) to contract “with any person who generates or holds title to high-level radioactive waste, or spent nuclear fuel ... for the ... disposal of such fuel.” Under this section the contracts must provide for payment to the Secretary of fees sufficient to offset expenditures incurred with respect to disposal.

The portion of the statute specifically at issue here (42 U.S.C.A. § 10222(a)(2)) provides that

For electricity generated by a civilian nuclear power reactor and sold on or after the date 90 days after January 7, 1983, the fee under paragraph (1) shall be equal to 1.0 mil per kilowatt hour.

The legislative history is substantially as follows. In 1983, Congress enacted the Nuclear Waste Policy Act, 42 U.S.C. § 10101 et seq. Findings stated by Congress as its predicate for the Act, include, among other things, the following:

While the Federal Government has the responsibility to provide for the permanent disposal of high-level radioactive waste and ... spent nuclear fuel ..., the costs of such disposal should be the responsibility of the generators and owners of such waste and spent fuel.

42 U.S.C.A. § 10131(a)(4). Part A of Sub-chapter I of the Act states one of its purposes to be the establishment of

a Nuclear Waste Fund, composed of payments made by the generators and owners of such waste and spent fuel, that will ensure that the costs of carrying out activities relating to the disposal of such waste and spent fuel will be borne by the persons responsible for generating such waste and spent fuel.

42 U.S.C.A. § 10131(b)(4).

To develop a form of standard contract, as contemplated by section 10222(a), the Secretary turned to rulemaking “because this process presents the best opportunity to interested persons, particularly the affected parties, to participate____” 48 Fed. Reg. 5459 (1984). To that end, the Secretary published a proposed rule. He recited as an element of the legislative background that:

The key concept in the statutory financing mechanism is that owners and generators ... are required to bear the full costs of nuclear waste disposal activities by paying fees into the Nuclear Waste Fund established by the Act.

48 Fed.Reg. at 5458. The form of standard contract published with the proposed rule provided that

Effective April 7, 1983, Purchaser shall be charged a fee ... of 1.0 mil per kilowatt-hour on electricity generated and sold by Purchaser’s nuclear power reactors.

Article VIII, A 1, 48 Fed.Reg. at 5464. Commentators attracted by the proposed rulemaking (proposed Article VIII of the standard contract) noted that the proposed language “did not account for or adequately reflect the Congressional intent regarding the method of establishing waste disposal charges” and was based upon the inaccurate premise that the words “generated ... and sold” meant to establish disposal charges based upon the “net” electricity. These commentators urged that the relevant language of the statute “should be read to require establishment of disposal charges based upon the electricity generated by a civilian nuclear reactor,” i.e. the total of “gross” electricity generated. While the utilities themselves generally consume only a small fraction of the electricity they generate, and sell the remainder, the potential waste fees on this small increment are significant.

After considering these arguments, the Secretary stated the belief of the Department that the latter was the “proper interpretation” because use of the “net” rather than the “gross”

would unfairly subject future users of electricity [in the rate charges passed by the Purchaser utility] to increased charges. The words “and sold on or after a date 90 days after enactment ...” should be read to establish a date certain for calculation of the Act’s differing methods of establishing fees for disposal charges [i.e. past 90 days after enactment and prior to 90 days after enactment].

48 Fed.Reg. 16591 (1983).

II.

Defendants’ motion to dismiss is a threshold challenge to this Court’s jurisdiction. The complaint invokes 28 U.S.C. § 1331(a), 28 U.S.C. § 2201 and 5 U.S.C. §§ 553 and 701. Defendant’s motion to dismiss is based on the theory that jurisdiction to review actions of the Secretary of Energy in respect to administration of the Act is vested exclusively in the Court of Appeals. 42 U.S.C. § 10139(a)(1)(A), which lies within Subchapter I of Part A, gives the Court of Appeals “original and exclusive jurisdiction over a civil matter ... for review of any final decision of the Secretary ... under this part." (Emphasis added.) Plaintiffs counter that the Court of Appeals’ exclusive jurisdiction is limited to “this part,” i.e. sections 10131 through 10145 which comprise Part A of Subchapter I of Chapter 108 of Title 42.

Despite the statute’s lack of clarity, defendant’s argument is plausible. Section 10222, creating the Nuclear Waste Fund, and providing for the contracts (subsection (a)(1)) and fees (subsection (a)(2)) at issue here is physically included in Subchapter III of Chapter 108 rather than Part A of Subchapter I. However, the very first words of Section 10222(a)(1) are:

In the performance of his functions under this chapter, the Secretary is authorized ..., etc. [Emphasis added.]

This reference to “chapter” should be enough, without more, to meld sections 10139(a)(1)(A) relating to exclusive jurisdiction and section 10222(a)(1), unless doing so would do serious violence to scheme of the Act. Neither the numbering, placement or cross referencing of this statute reflect model draftsmanship. So some violence is necessary to carry out many of Congress’ plain purposes. Literal reliance on the words “part” and “chapter” would be misplaced. Moreover, all the reasons why any rulemaking by a department or agency should be reviewed directly by a Court of Appeals apply with full force here. The rulemaking record and the original fact findings were made by and for the Secretary. There is little or no fact collecting or fact finding role for a trial court. The Secretary’s interpretation of the statute (unlike a trial court’s) is cushioned by expertise and, in this case, by his (or his staff’s) live experience with the proposal, hearing, mark-up, and enactment of the Act. The Court of Appeals must inevitably review this Court’s interpretation of the Act, essentially de novo. A trial court’s interpretation would be, at best, modest assistance to the Court of Appeals. For all these reasons the Court concludes that, although the issue is not free from doubt, the Court of Appeals does have exclusive jurisdiction here, and that the motion to dismiss should be granted.

III.

Even if this Court had jurisdiction, the ultimate result should be the same. As the Supreme Court has recently emphasized, a specialized agency’s contemporaneous interpretation of a newly enacted statute is entitled to great deference, and should be contradicted by a court only when it is crystal clear that the agency’s interpretation of the statute is an impermissible one. Compare Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). At issue here is the meaning of the words "generated ... and sold,” as used in 42 U.S.C.A. § 10222(a)(2), for purposes of calculating the cost of nuclear waste disposal to utilities which consume some of the electric power that they generate from waste generating nuclear reactors. All the signals in the preamble to the Act and in the legislative history point to Congress’ intent to have the utility which created the waste pay currently for its disposal. To achieve this clear purpose of the Act, the Secretary responded to comments on the proposed regulations by a final regulation which based the disposal charge on the “gross” rather than the “net” cost of disposal. He plausibly construed the words “and sold” as establishing a date certain for calculating the different methods of establishing fees.

As stated in connection with discussions on the jurisdiction question, this statute is not a model of draftsmanship. There was some mystery at the hearing on these motions as to where the language invoked by plaintiffs came from in the first place. A subsequent July 11, 1984, joint pleading sheds some light, but fails to identify the source of the precise phrasing at issue here. There were indications at the argumeat from which it may be inferred that it was introduced into a markup of a bill by plaintiffs but never scruticized or commented on by the interested agency or by Congressmen and Senators. Whatever the source of the words at issue, the defendant’s construction was “in the context of this particular program ... a reasonable one.” Chevron v. National Resources Defense Council, supra. In the circumstances Chevron teaches that the defendant’s interpretation, which fairly reflects the manifest intent of Congress, should be honored by a reviewing court. Accordingly, if this Court has jurisdiction, it would grant defendant’s motion for summary judgment.

        Cf. In re Subpoenas Duces Tecum Fulbright & Jaworski, 738 F.2d 1367, 1375 (D.C.Cir.1984).


author: ALLEN SHARP, Chief Judge.

text:
    Peter CACCAVALLO, Petitioner, v. Jack R. DUCKWORTH, Indiana Attorney General, Respondents.
    No. S 83-571.
    United States District Court, N.D. Indiana, South Bend Division.
    Nov. 19, 1984.

      Peter Caccavallo, pro se.
    David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., fqr respondents.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by Peter Caccavallo, an inmate incarcerated at the Indiana State Prison in Michigan City, Indiana. The matter is now before this court on respondents’ motion to dismiss, filed as part of their Return to Order to Show Cause. In accord with the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct.' 745, 9 L.Ed.2d 770 (1963), the complete state court record has been filed with, and carefully examined by, this court.

A careful examination of the underlying state court record and the opinion of the Supreme Court of Indiana, 436 N.E.2d 775 (1982), on transfer, reveals that petitioner has exhausted his available state court remedies per 28 U.S.C. § 2254(b), (c); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). Both sides having briefed their respective positions, this petition is now ripe for ruling.

Petitioner was convicted in a state court jury trial of child molesting for which he received a determinate sentence of eight years. This conviction was unanimously affirmed on appeal by the Supreme Court of Indiana. Following unfavorable action on his post-conviction filings in state courts, petitioner now brings this petition for a federal writ of habeas corpus.

Petitioner raises the following issues in this application for habeas relief:

1. Conviction obtained by use of evidence gained pursuant to an unconstutional search and seizure.

2. Ineffective assistance of counsel-trial.

3. Due process of law, (a) right to confrontation-depositions, (b) denial of right to testify, (c) erroneous sentencing, (d) inadmissable evidence.

4. Impartiality of judge.
5. Illegal detention.
6. Cruel and unusual punishment.

Each will be addressed in its turn.

I.

On September 19, 1980, the petitioner was charged with the crime of child molesting for acts of October 31, 1979. The petitioner filed a motion to suppress evidence prior to trial, alleging an illegal search of his residence. The motion was denied after a hearing before the trial court.

On the first day of trial, the petitioner moved for a continuance in order to depose the victim. The motion was denied. The trial proceeded and petitioner was found guilty of said charge on December 9, 1980 by a jury. The petitioner was sentenced by the trial court on January 27, 1981, at which time he was given the maximum possible term of years for the crime of which he was convicted.

Petitioner appealed his conviction to the Court of Appeals of Indiana, Fourth District, which reversed the trial court conviction on grounds that 15 of the photographs admitted into evidence should not have been so admitted. A request for rehearing by the State was denied. The Supreme Court granted transfer and affirmed the conviction and sentence.

The petitioner then filed a pro se petition for post-conviction relief which was denied on the pleadings on September 27, 1982. After filing of and denial of several other motions, petitioner appealed to the Court of Appeals of Indiana, and said appeal was filed in the Third District. The appeal to the Third District, Court of Appeals, was denied on November 23, 1983 as to each issue with one exception concerning whether effective assistance of counsel was rendered during the direct appeal. This issue was sent back to the trial court because it is an issue of fact for which no facts were before the trial court.

II.

For his first claim petitioner alleges that a search and seizure of his residence was unconstitutional. He alleged the unconstitutionality of the search and seizure in his motion to correct errors following the original trial. However, a careful review of the record does not show where petitioner at any time pursued this issue within the state appeal. An issue that is available for a direct appeal but is not argued is waived under Indiana law. Cummings v. State, Ind., 434 N.E.2d 90, 91 (1982). An allegation of error that is waived under state law is unavailable to a petitioner in the federal courts. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594, reh. denied, 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 163 (1977); Blenski v. LaFollette, 581 F.2d 126, 130 (7th Cir.1978); United States ex rel. Barksdale v. Sielaff, 585 F.2d 288, 292-93 (7th Cir.1978). The State did nothing to foreclose the appeal. See, United States ex rel. Maxey v. Morris, 591 F.2d 386, 389 (7th Cir.1979).

In order for this waived issue to be considered in a federal habeas corpus proceeding, petitioner must show both cause for his noncompliance and actual prejudice resulting therefrom. Wickcliffe v. Duck-worth, 574 F.Supp. 979, 986 (N.D.Ind.1983) (citing Wainwright v. Sykes, supra; Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). The Seventh Circuit Court of Appeals in United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir. 1983) (en banc) applied the “cause and prejudice” standard of Wainwright v. Sykes, supra, to a state prisoner’s failure to raise a claim on direct appeal. Williams v. Duckworth, 724 F.2d 1439, 1442 (7th Cir. 1984) .

Notwithstanding his statements to the contrary, the petitioner has not met the requisite “cause + prejudice” criteria. The petitioner has thus waived any claim that the search and seizure was unconstitutional when he failed to pursue the available appeal.

The petitioner raised his second claim of ineffective assistance of counsel at trial during his direct appeal. He claimed the representation rendered on his behalf was ineffective due to counsel’s inexperience, failure to depose the victim, failure to object to the victim’s testimony concerning sexual conduct other than that specifically charged.

The Supreme Court of the United States has set forth the standards to be applied in a case where the effectiveness of counsel is challenged in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), wherein the Court held:

The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective . standard of reasonableness. Strickland v. Washington, supra, 104 S.Ct. p. 2065.

The Seventh Circuit Court of Appeals has recently followed the two-pronged test for determining whether a conviction must be set aside due to ineffective assistance of counsel in Crisp v. Duckworth, 743 F.2d 580, 582 (7th Cir.1984). The Crisp decision further held:

Though we examine each example of incompetence individually, we must also consider their cumulative effect in light of the totality of the circumstances. Strickland, 104 S.Ct. at 2069; United States v. Brown, 739 F.2d 1136, 1145 (7th Cir.1984).

The Seventh Circuit Court of Appeals has also recently held in Arrowood v. Ciasen, 732 F.2d 1364 (7th Cir.1984):

This circuit has addressed the issue of ineffective assistance of counsel in a number of recent decisions. It is clear, from these cases, that there is a presumption of adequate representation and that the burden is on the criminal defendant to show that a trial counsel’s performance was constitutionally inadequate. United States v. Zylstra, 713 F.2d 1332 (7th Cir.), cert. denied [464 U.S. 965], 104 S.Ct. 403 [78 L.Ed.2d 344] (1983); United States v. Phillips, 640 F.2d 87, 92 (7th Cir.), cert. denied, 451 U.S. 991 [101 S.Ct. 2331, 68 L.Ed.2d 851] (1981); Clyburt v. Rowe, 638 F.2d 1100, 1105 (7th Cir.1981); United States v. Fleming, 594 F.2d 598, 607 (7th Cir.), cert. denied, 442 U.S. 931 [99 S.Ct. 2863, 61 L.Ed.2d 299] (1979).

This court having carefully reviewed the pleadings, transcript and record before it finds that the petitioner fails to establish that his trial counsel’s representation fell within the purview set forth in Strickland and its progeny and thus, petitioner’s claim does not state sufficient grounds for this court to grant habeas relief.

IV.

The petitioner further contends that his due process rights were denied when he was (a) denied the right to confrontation through the denial of the right to depose the victim, (b) denied the right to testify in his own behalf, (c) erroneously sentenced, and (d) when the judge admitted inadmissable evidence. Each of these will be discussed separately below.

In regard to the contention that the petitioner’s due process rights were denied when the trial judge denied him the opportunity to depose the victim, the petitioner must demonstrate what prejudice he suffered from said decision. The record clearly indicates that the petitioner was granted the right to depose the victim and that the prosecuting attorney was willing to cooperate with any efforts made by petitioner, or his counsel, to depose the victim. Petitioner’s counsel did not depose the victim prior to the trial. On the day of trial the attorney for petitioner requested a continuance in order to depose the victim witness. The court denied the motion on the grounds that there had been ample time for counsel to depose the victim prior to trial and a continuance was not warranted. Further, the Supreme Court of Indiana held that the petitioner did not make it clear on appeal how he might have used information acquired from deposition of the State’s witnesses to impeach their credibility or otherwise cast aspersions on their testimony, Caccavallo v. State, 436 N.E.2d 775, 778 (Ind.1982), and also found that petitioner’s trial counsel conducted a skillful cross-examination.

This court under 28 U.S.C. § 2254(d)(8), as stated in United States of America ex rel. Sidney Foster v. DeRobertis, 741 F.2d 1007 (7th Cir.1984), is required to presume that a factual determination by the State court is correct unless one of several situations exists, including a finding that the “factual determination is not fairly supported by the record." This court finds that the factual determination is fairly supported by the record and gives deference to the State court factual determination that counsel conducted a skillful cross-examination.

Petitioner next claims that he was denied the right to testify in his own behalf. He claims that on the advise of counsel he declined to testify because the state was in possession of what he claims to be unconstitutionally seized evidence, more specifically, a video-tape recording. The state indicated it would use the video-tape as rebuttal evidence should the defendant decide to testify. The petitioner first raised this issue during the motion to suppress. He later failed to present the issue in his state appeal and has thus waived his right to raise the issue at this time, in this proceeding, under the same rationale as hereinabove set forth on procedural due process waiver.

Petitioner asserts that he was erroneously sentenced by the trial court. The petitioner raised this issue on direct appeal and the Supreme Court of Indiana held:

All of the factors named by the trial court as aggravating circumstances are either authorized by the statute or have been held by this Court or the Court of Appeals to be proper considerations. See, e.g., Cherry v. State, (1981) [275] Ind. [14], 414 N.E.2d 301 (consideration of likelihood that defendant will commit another crime is proper); Coleman v. State, (1980) Ind.App., 409 N.E.2d 647 (lack of remorse is properly considered as aggravating circumstance); Hogan v. State, (1980) [274] Ind. [119], 409 N.E.2d 588 (consideration of age of victim and effect of crime upon victim is proper). We find appellant’s contention that there is no supporting evidence to find aggravating circumstances is incorrect. The evidence in this record and the reasonable inferences the trial court could draw from that evidence support the existence of each named aggravating circumstance. Caccavallo v. State, supra, p. 779.

The respondents contend that if the sentencing in some way was erroneous then a violation of state law occurred for which this court does not have jurisdiction under 28 U.S.C. § 2254. They contend that this court therefore cannot issue a writ upon errors of state law only if there has been no constitutional violation.

The Seventh Circuit Court of Appeals in United States ex rel. Hoover v. Franzen, 669 F.2d 433, 436 (7th Cir.1982) has held:

The district court, in ordering habeas relief, based its exercise of power on 28 U.S.C. § 2254, the provision that governs the procedure for habeas relief to state prisoners:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a) (1976) (emphasis added). This provision, like the corresponding general jurisdictional grant applying to habeas corpus, limits habeas relief to violations of the Constitution or laws or treaties of the United States. Cases interpreting the habeas corpus statutes have uniformly held that a writ of habeas corpus can be issued only for a violation of federally protected rights. Cronnon v. Alabama, 587 F.2d 246 (5th Cir.), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1979); Chance v. Garrison, 537 F.2d 1212 (4th Cir.1976); Israel v. Odom, 521 F.2d 1370 (7th Cir.1975); McCord v. Henderson, 384 F.2d 135 (6th Cir.1967). (footnotes omitted).

This court in Franklin v. Duckworth, 530 F.Supp. 1315, 1322 (N.D.Ind.1982), affd, 714 F.2d 148 (7th Cir.1983), stated “An error in a state trial does not rise to the level of a Fourteenth Amendment violation unless the error infected the entire trial so as to make it fundamentally unfair,” citing Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); Bibbs v. Twomey, 506 F.2d 1220, at 1223 (7th Cir.1974).

The petitioner has failed to show this court any support for his claim that his sentence imposed pursuant Indiana law was erroneous. More importantly, he fails to show his sentencing poses an issue which this court can address in a petition for habeas corpus absent a showing of some violation of the Constitution. Thus, this claim does not have merit in an application for habeas corpus relief before this court.

The next claim asserted by the petitioner involves the admission of 15 polaroid photographs of the victim in various nude poses. He claims the admission of the photographs was unconstitutional, immaterial and prejudicial.

This court when considering the merit of a claim involving state evidentiary rulings within a petition for heabeas corpus has held in Williams v. Duckworth, 562 F.Supp. 506, 512 (N.D.Ind.1983):

Traditionally, state evidentiary rulings are not cognizable under federal habeas corpus actions. The admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the derogation of a specific constitutional right, no constitutional issue is involved. United States ex rel. Harris v. Illinois, 457 F.2d 191, 198 (7th Cir.1972). Evidentiary questions are not subject to review by a Federal court in a habeas corpus proceeding by a state prisoner unless there is an error of such magnitude as to deny fundamental fairness. United States ex rel. Bibbs v. Twomey, 506 F.2d 1220 (7th Cir.1974). An alleged error arising from admission of disputed evidence is not grounds for Federal habeas relief absent a showing of deprivation of a specific due process right. Guzzardo v. Bengston, 643 F.2d 1300 (7th Cir.1981).
The Fifth Circuit’s standard for determining whether fundamental error resulted from erroneous admission of prejudicial evidence (and hence whether habeas relief may be justified) is whether the error was “material in the sense of a crucial, critical, highly significant factor.” Bryson v. Alabama, 634 F.2d 862 (5th Cir.1981).

The victim was allowed to testify at trial about the acts depicted in the photographs without objection by petitioner. The Indiana courts held that the photographs admitted substantiated the victim’s testimony and refused to second guess the trial strategy and tacts of trial counsel. Caccavallo v. State, supra, at 778. Petitioner has failed to demonstrate to this court how the admission of the photographs constitutes error the magnitude of denying fundamental fairness at the trial in the totality of the circumstances.

IV.

Petitioner attempts to raise the issue of the impartiality of the trial judge. The petitioner first raised the issue of the judge not being impartial on his post-conviction appeal. The Court of Appeals of Indiana held that this issue was one clearly available to the petitioner on direct appeal at which time he failed to raise the issue and subsequently has waived the issue.

This court finds that the petitioner waived this issue by failing to present the issue to the Indiana courts. In order for this waived issue to be considered in a federal habeas corpus proceeding, petitioner must show both cause for his noncompliance and actual prejudice. Wickcliffe v. Duckworth, supra, at 984. Petitioner has not shown this court “cause” for the noncompliance nor any “actual prejudice” resulting therefrom.

V.

Petitioner’s next contention is that he was illegally detained after the decision of the Court of Appeals of Indiana, Fourth District, vacating his conviction. As a matter of state law, the decision of the Fourth District was not final. Rules 11(B)(3), 15(B), Indiana Rules of Appellate Procedure.

The petitioner’s claim does not present an issue for which relief can be granted and therefore is moot. Lane v. Williams, 455 U.S. 624,102 S.Ct. 1322, 71 L.Ed.2d 508 (1982). The petitioner fails to show a connection between his conviction and the asserted denial of his release while the petition for transfer was pending before the Supreme Court of Indiana. Thus, there is no relief available to the petitioner under 28 U.S.C. § 2254 for this claim.

VI.

The petitioner’s sixth contention is that his sentence violates the cruel and unusual punishment prohibition of the Eighth Amendment. Once again, petitioner raises an issue which purely involves a question of state law. The question concerning the punishment for crime which was within the range and was properly prescribed by the institution by the legislature. Further, this is an issue which the petitioner first attempted to raise in his post-conviction appeal. The Court of Appeals, Third District held the issue to be waived since petitioner failed to present the issue on direct appeal when it was available.

As this court has already stated, it will not issue a writ on an alleged error of state law only. Petitioner fails to show this court how said state law violates the Eighth Amendment prohibition against cruel and unusual punishment.

CONCLUSION

For all the foregoing reasons, petitioner’s application for federal habeas relief must fail. The writ is DENIED. Petition DISMISSED.

SO ORDERED.