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Appellate Advocacy Clinic complete briefs on four appeals

Rising third-year law students in the Appellate Advocacy Clinic were very busy over the summer, completing briefs in four different appeals, including three in one week.

“It’s unusual and also very exciting that we have had so many brief deadlines fall during the summer,” said Clinic Director John Korzen.  “By completing so many briefs over the summer, we will be better able to focus on upcoming oral arguments and other aspects of appellate practice once classes begin.  Each student pair did a great job researching and drafting the briefs we have filed in the past three weeks.”

On May 29, the Clinic filed a reply brief on behalf of the plaintiff-appellant in Bridges v. Parrish in the North Carolina Court of Appeals.  Rory Agan and Laura Esseesse researched and drafted the brief.  The issue on appeal is whether the allegations in the complaint allege a duty under North Carolina’s common law of negligence.  The trial court dismissed the complaint under North Carolina Rule of Civil Procedure 12(b)(6).  A panel of appellate judges met on June 6 to decide the case without oral argument, and an opinion is expected in August.

On June 18, the Clinic filed a brief of appellant in Waldburger v. CTS Corp. in the United States Court of Appeals for the Fourth Circuit.  The appeal involves statutory interpretation, specifically whether Congress intended in CERCLA to preempt all state limitations periods or only state statute of limitations and not  statutes of repose.  The trial court held that CERCLA does not preempt North Carolina’s statute of repose and allowed the defendant’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).  Hillary Kies and Emma Maddux researched and drafted the brief.

On June 20, the Clinic filed a brief of appellant in United States v. Fugit, a federal habeas case in the Fourth Circuit.  The appeal involves both statutory interpretation — specifically does “sexual activity” in 18 U.S.C. § 2422(b)’s prohibition against enticing a minor to engage in “sexual activity” require physical contact — and whether Fugit’s trial attorney was ineffective for advising him to plead guilty when his conduct did not involve physical contact but only online chatting and telephone calls that were not about physical contact.  The trial court denied Fugit’s motion for relief under 28 U.S.C. § 2255.  Melissa Evett (’13) and Mary Beth Usher (’13) researched and drafted the brief.

On June 21, the Clinic filed a reply brief in Estep v. Ballard, a state habeas case in the Fourth Circuit.  Estep, like Fugit, involves ineffective assistance of counsel.  Estep’s trial attorneys failed to object when the State introduced evidence of the murder victim’s good character, which under Rule 404(b) was inadmissible.  The main issue on appeal is whether their failure to object prejudiced Estep, meaning whether there was a reasonable probability that the jury would have given him “mercy” (the possibility of parole down the road, versus the life without parole “no mercy” sentence he received).  The trial court denied Estep’s motion for relief under 28 U.S.C. § 2254 while observing that the issue is “a close call.”

Kelley Chan (’13) and Morgan McCall (’13) researched and drafted the brief.  Oral arguments were tentatively scheduled for the Sept. 18-21 session.

The Appellate Advocacy Clinic is a two-semester course for third-year law students who have completed Appellate Advocacy.  For more information about the Clinic, contact Professor Korzen at korzenjj@wfu.edu.