Petition for Writ of Certiorari — Spurgeon Green, Jr., Petitioner v. United States

Supreme Court briefApr 18, 2018

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IN THE

SUPREME COURT OF THE UNITED STATES

SPURGEON GREEN, JR.,

PETITIONER

VS.

UNITED STATES OF AMERICA

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Spurgeon Green, Jr., 93214-020

Pro Se

Federal Correctional Institution

PMB 1000 Unit: Beta B

Talladega AL 35160

Questions Presented

Does the decision denying issuance of a

Certificate of Appealability based upon

the merits of a prisoner's constitutional

issues prior to the COA being issued

conflict with relevant decisions of the

U.S. Supreme Court?

Does the refusal to issue a COA where an

allegation of a constitutional issue

remains unresolved violate a person's

constitutional rights, and/or prohibits

federal habeas or §2255 review?

Can a person receive a fair and impartial

hearing in lower courts that have previously

denied that person's due process during

the proceedings under 28 U.S.C. §2255 (2008)

in that same case?

Does a conviction and punishment for an

act violate due process where the act has

been authorized under the State of Georgia's

laws, codes, and rules and where there is

no fed=eral law enacted by Congress that

makes void the State of Georgia's laws,

codes, and rules nor makes the act criminal?

Did Green violate 21 U.S.C. §841(a)(1) for

which he was convicted under Counts 52-83

for his act of leaving signed and dated

prescriptions with his Physician Assistant

with instructions to dispense them to his

patients during his physical absence from

the.medical facility—subject to the patients'

having a legitimate medical need based on

his Physician Assistant's medical examination—

violate Green's Fifth Amendment due process

because (1) the State of Georgia laws, codes,

and rules that govern the relationship between

physicians and physician assistants establish

an agency between a physician and his physician

assistant, and (2) there is no federal law

enacted by Congress that makes void the State

of Georgia laws, codes, and rules nor makes

Green act criminal?

Did the federal district court's decision

not to allow Green's witness to testify at

trial on Green's behalf violate Green's

Sixth Amendment rights and Greens Fifth

Amendment due process rights?

Did the federal district court fail in its

constitutional duty to protect and uphold

Green's Fifth and Sixth Amendments rights

because that court adopted decisions that

maintained suppression of exculpatory

evidence—Evon Harper's medical records—

that would exonerate Green?

Within the purview of ineffective assistance

of counsel, was Green's conviction a result

of 12 constitutional violations under the

Fifth and Sixth Amendments?

During the proceedings under Green's

28 U.S.C. §2255 (2008) motion, did the

district court violate/infringe upon Green's

Fifth Amendment due process rights because

the record4facts demonstrate that the

district court failed to conduct thd

proceedings in accordance with the

provisions of 28 U.S.C. §2255 (2008) that

is substantive law enacted by Congress?

During the proceedings under 28 U.S.C. §2255

(2008), did the district court violate/

infringe upon Green's constitutional rights

because the recoid-facts demonstrate that

the district court rendered decisions in a

way that conflicted with relevant decisions

by this Court and the Eleventh Circuit Court

of Appeals?

During the Direct Appeal process, did the

Eleventh Circuit Court of Appeals violate

Green's due process when it failed to act

appropriately on a plain error that allowed

the jury to consider a prosecution-created

false-premise to determine guilt of the

accused under 21 U.S.C. §841(a)(1)?

L. During the Direct Appeal process, did the

Eleventh Circuit Court of Appeals violate

Green's FifthAmendment due process and

Sixth Amendments rights when it failed to

act appropriately on a plain error where

the

that the

district court refused to allow Green's

witness to testify at trial on Green's

behalf?

N. Did Respondent violate Green's Fifth

Amendment due process when it used the

Privacy Act to suppress exculpatory

evidence—Evon Harper's medical records—

based on the assumption or reasoning that

the Privacy Act protects the privacy

rights of the person who is dead?

111

List of Parties

All parties appear in the caption of the case on the

cover page.

Table Of Contents

Questions Presented

Listof Parties ...........................................iv

Tableof Contents .......................................v

Table of Authorities Cited ..............................xi

OpinionsBelow ..........................................1

Jurisdiction............................................2

Constitutional and Statutory Provisions Involved ........

Statementof The Case ....................................4

Reasons For Granting The Writ ...........................13

The Eleventh Circuit's two-judge order

(Appendix A to this petition) denying

issuance of a COA contravened this

Court's well established precedents,

and the order violated 28 U.S.C.

§2253(c)(1) because (a) this Court's

precedents were violated because the

Eleventh Circuit failed to limit the

examination of Green's COA application

(Appendix B to this petition) to a

threshold inquiry; and, (b) the Eleventh

Circuit denied Green's COA application

on the merits of Green constitutional

claims, and thereby violated 28 U.S.C.

§2253(c)(1) because the appellate court

did not have jurisdiction to conduct

an appeal—the appeal being the denial

of Green's constitutional claims on the

merits, which in essence is an adjudication—where a COA had not been issued ...............13

"[U]ntil a COA has been issued

federal courts of appeals lack

jurisdiction to rule on the merits

of appeals from [2255 movants]." ...............13

"The COA statute establishes

procedural rules and requires a

threshold inquiry into whether the

circuit court may entertain an appeal .............. 13

"[A] COA ruling is not the occasion

for ruling on the merit of [a]

petitioner'.laim." ...............................13

Where, as in this case, "a court

of appeals sidesteps this process

[the threshold inquiry] by first

deciding the merits of an appeal,

and then justifying its denial of

a COA based on its adjudication of

the actual merits, it is in essence

deciding an appeal without jurisdiction." .......13

In this case, the Eleventh Circuit

engaged in precisely the analysis

Miller-El and the COA statute forbid;

that analysis being, an evaluation

of the merits and then concluding

that issuance of a COA was not

warranted because Green "has offered

no new evidence or arguments of

merit to warrant relief." .......................14

This Court has emphasized that a

court should not decline the application

for a COA merely because it believes

that the applicant will not

demonstrate entitlement to relief ...............14

"It is consistent with §2253

that a COA will issue in

instances where there is no

certainty of ultimate relief." .............14

Petitioner's constitutional

claims under §2253(c) [only]

require[] an overview of the

claims in the [COA application]

and a general assessment of

their merits. This threshold

inquiry does not require full

consideration of factural or

legal basis adduced in support

of the claims. In fact, the

statute forbids it. When a court

or appeals sidesteps this process

by first deciding the merits of

an appeal, and then justifying

its denial of a COA based on its

adjudication of the actual merits.

• it is in essence deciding an

appeal without jurisdiction." ..............15

B. During the Direct Appealipzocess,rhe

Eleventh Circuit Court of Appeals

failed to make the appropriate

response to two plain errors that

violated Green's due process ........................15

1. The first plain error: The jury

was presented with a materially

false premise created by the

prosecution, and the false premise

was used to infer guilt ..........................16

"It is only Congress, and not

the courts, which can make

conduct criminal." .........................16

The prosecution made criminal

the act whereby a physician

leaves signed and dated

prescriptions with his Physician

Assistant to be dispensed to

his patients during his physical

absence from the medical facility ..........16

Green's act of leaving signed

and dated prescription-s-so-called presigned and predated

prescriptions—with his Physician

Assistant was authorized by

State of Georgia laws, codes,

and rules (Appendix C to this

petition); and, there is no

federal law enacted by Congress

that makes void the State of

Georgia laws, codes, and rules

nor makes Green's act criminal;

therefore, Green's act of

leaving signed and dated

prescriptions with his Physician

Assistant was not a criminal act ...........16

Green left the dated and signed

prescriptions with his Physician

Assistant with instructions not

to dispense the prescriptions

in the situation where there

was not a legitimate medical need

based on the medical examination

of the patient on the date of

theprescription ............................16

vii.

State of Georgia laws, codes,

and rules regulate the

relationship between physician

and physician assistant through

an agency relationship whereby

the physician assistant is

under the direct supervision

of the physician not only during

the physician's physical presence

within the medical facility but

also via telecommunication

during the physician's physical

absence from the medical facility ..........16

During the criminal trial in

the district court, the prosecution

alleged that a violation of the

federal regulation 21 C.F.R.

§1306.05 is a violation of

criminal statute 21 U.S.C. §841;

however, 21 C.F.R. §1306.05 only

prescribes the manner of issuance

ofprescriptions ............................16

It was the Eleventh Circuit's

opinion on review during the

Direct Appeal process that a

violation of the federal regulation

21 C.F.R. §1306.05 "does not

constitute a per se violation of

[the criminal statute 21 U.S.C.

§841(a)(1)], [but] the jury was

entitled to infer, based on

Green's pre-signing and pre-dating

of the prescriptions and Mack's

delivery of those prescriptions

to Green's patients, that they

violated the Act." .........................17

Plain error is the means used

at the appellate court to

determine if a federal prisoner's

constitutional rights—or rights—

have been violated or infringed

upon during trial at the district

court......................................17

(1) Green's Sixth Amendment right

"to have compulsory process

for obtaining witnesses in

his favor" during the criminal

trial was violated because

the district court chose to

viii

suspend the U.S. Constitution

and not allow Green's

computer-expert witness to

testify in order to punish

Defense Counsel Almand for

his failure to comply with

a pretrial discovery order ............17.

(2) Had Green's computer-expert

been allowed to testify in

the district court on

Green's behalf, the outcome

of the trial would have been

inGreen's favor .......................17

2. The second plain error: The district

court's refusal to allow Green's

witness to testify on Green's behalf,

and thereby violating Green's Sixth

Amendmentright ..................................17

The district court violated the Supremacy

Clause, U.S. Constitution, Article VI,

Clause 2 because—in response to Green's

§2255 motion for post-conviction relief-.the district court failed to conduct the

proceedings in accordance with 28 U.S.C.

§2255 (2008) and therefore violated

Green's due process as demonstrated in

Appendix B to this petition, Section IV-A,

Pages3-22 ..........................................18

During the criminal trial in the district

court, Green was convicted because of

12 violations of his constitutional

rights under the Fifth and Sixth

Amendments; and, the 12 constitutional

violations of Green's rights are claims—

issues—that arise from matters arising

inside and outside the record and within

the purview of ineffective assistance

of counsel as demonstrated in Appendix B

to this petition, Section IV.B, Pages 23-36 .........18

Conclusion..............................................18

Index To Appendices

Appendix A Opinions: Two-judge order denying :COA on 2/15/2018

One-judge order denying COA on 11/29/2017

Motion For Reconsideration on 12/15/2017

Appendix B Green's COA Application

Appendix C Re State of Georgia Lsws. Codes, and Rules

Appendix D 21 C.F.R. §1306.05 Manner of Issuance of

21 U.S.C. §841(a) Prescriptions

Appendix E Re Privacy Act of 1974

Table of Authorities Cited

Page

Cases

Brady v. Maryland, 373 US 83 (1963 ......................7, 8

10 L Ed 2d 215

83 S Ct 1194

Miller-El v. Cockrell, 537 US 322 (2003) ..........13, 14, 15

154 L Ed 2d 931

123 5 Ct 1029

Slack v. McDaniel, 529 US 473 (2000) ...................13, 14

146 LEd 2d 542

120 5 Ct 1595

United States v. Joseph, 709 F 3d 1082 (11th Cir 2013)....17

Welch v. United States, 136 S Ct 1257 (2016) ..............16

194 L Ed 2d 387

2016 US LEXIS 2451

Statutes

21 U.S.C.. §841 ........................................16, 17

28 U.S.C. §1254(1) .........................................2

28 U.S.C. §2253 .....................................13, 14, 15

28 U.S.C. §2255 (2008) ...................3, 4, 7, 11, 12, 18,

Privacy Act of 1974....................................3, 11

Federal Rules

21 C.F.R. §1306.05 ....................................16, 17

Federal District Court Documents

Doc. 482, P. 52 .............................................17

US Constitution

Article VI, Clause 2 ....................................3, 18

Constitution, U.S ........................................17

Fifth Amendment .......................3, 7, 8. 9, 12, 17, 18

Sixth Amendment ........................... 3, 7, 8, 9, 17, 18

Appendices to This Petition

AppendixA.............................................13, 14

Appendix B........................................13, 17, 18

Appendix C................................................16

AppendixD ................................................ 16

AppendixE................................................11

State of Georgia Law, Codes, And Rules ................. 8, 16

xii

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARA

Petitioner respectfully prays that a writ of certiorari issue

to review the judgment below and other issues presented in this

petition.

OPINIONS BELOW

The Eleventh Circuit Court of Appeals' two-judge order denying

Green's COA on the merits of Green's constitutional claims on

February 15, 2018 appears at Appendix Ato this petition and

is unpublished.

61.

Jurisdiction

The date on which the United States Court of Appeals decided

Green's case was Februaryy15, 2018. See Appendix A to this

petition.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

Constitutional And Statutory Provisions Involved

Constitution of The United States, Article VI, Clause 2

Constitution of The United States, Fifth And Sixth

Amendments

28 U.S.C. §2255 (2008)

Privacy Act 1974

Statement of The Case

The Eleventh Circuit's two-judge order denied issuance

of a COA on the merits of Green's constitutional claims.

See Fig 1, Diagram of The Counts From Docket #250,

beginning on the following page.

It was alleged—during trial—that Green maintained a

place of business for the purpose of distributing controlled

prescription-medications illegally—Count 87—and as a result

of which, 13 named patients suffered bodily injury or death—

Counts 2-14. All 13 counts—Counts 2-14—had the same

attributes; and, of these 13 counts with the same attributes,

Green was convicted only on Count 12, and acquitted of 11 with

one no-verdict. The jury failed to reach a verdict as to

Counts 3 and 87. The 12 guilty counts within Counts 15-47 are

centered on Count 12, Evon Harper.. Count 1 is based on Counts

52-83.

Counts 52-83 are 32.'- prescriptions that Green signed and

dated and left with his Physician Assistant—Dorothy Mack—

to dispense to his patients during his physical absence from

the medical facility and the prescriptions were alleged illegal

by the prosecution who inferred that codefendant Joseph—a

pharmacist—filled the prescriptions in conspiracy with Green.

Green filed a motion to vacate under 28 U.S.C. §2255 (2008).

Fig. 1.

Diagram Of The Counts

From Docket #250

Jury Verdict

By Count Nklmber

Count

Number

Applicable

Statute

Guilty

21 U.S.C. §846

21 U.S.C. §841(a)(1)

& b(1)(c)

Acquitted

No Verdict

Alleged conspiracy with

two co-defendants to

dispense Schedule II,

III, and IV medications

not for a legitimate

medical purpose and

outside the usual

course of professional

medical practice

47 21 U.S.C. §841(a)(1)15,17,21,

23,24,31,

34,35,37,

Continued, next page)

Case

Setting

2,4,5,6,7,8,

9,10,11,13,

16118,19,20,

22,25,26,27

28,29,30,32,'

33,36,40,41

42,43,44,46,47

Count 12 is patient

named Evon Harper.

Alleged death or serious

bodily injury to 13

named patients because

of dispensed Schedule

II medications not for

a legitimate medical

purpose and outside the

usual course of

professional medical

practice

Alleged dispensing of

Schedule II medications

pertaining to Counts

2-14

Fig. 1.

Diagram Of The Counts

From Docket #250

Jury Verdict

By Count Number

•

Count

Number

Applicable

Statute

-. §841(a)(1)

51 21 U.S-'.

•

Guilty

Acquitted

No Verdict

48,49,50,51

Alleged dispensing

of Schedule II

medication illegally

•

None Exists

The alleged so-called

presigned

prescriptions

21 U.S.C. §856(a)(1)

21 U.S.C. 853

(End of Diagram)

iMáintained a place of

business for the

purpose of distributing controlled

substances, alleged

•

Case

Setting

N/A

Property forfeiture

Green's §2255 motion to vacate consisted of 21 Grounds21 constitutional issues—demonstrating violations under the

Fifth and Sixth Amendments. During the proceedings under

§2255, nine of the 21 Grounds were discoveredto be moot

because of the 11 acquittals and one no-verdict within Counts

2-14. The district court denied Green's §2255 motion on the

merits of the constitutional issues that are within the

purview of ineffective assistance of counsel.

Green contends that there are 12 constitutional violations

of his Fifth and Sixth Amendments rights within the purview of

ineffective assistance of counsel pertaining to matters that

fall within and outside of the record, the most egregious being

(1) Issue One that demonstrates Almand's—Green's defense

Attorney—and the prosecution's suppression of Evon Harper's

medical records—Brady material—and (2) Issue Two that

demonstrates that Almand labored under an actual conflict of

interest that explains one motive for Almand's suppression of

Harper's medical records becauseAlmand labored under an actual

conflict of interest in his capacity as attorney-employee for

his client, Bibb County, State of Georgia, and as defense

attorney for his client, Green—Almand's two clients having

conflicting interests because of Evon Harper. The remaining

ten constitutional violations are

(3) Issue Three: Almand failed to call Green's second

expert witness to&testify at trial, and Almand failed to give

Evon Harper's medical records to Green's expert witnesses to

prepare for testimony at trial.

Issue Four: Almand failed to challenge the district

court's decision not to allow Green's expert witness to testify

at trial on Green's behalf, in violation of Green's Sixth

Amendment "right

...

to have compulsory2process for obtaining

witnesses in his favor."

Issue Five: Almand failed to call a defense witness

who had Brady material that would impeach the prosecutions

witness—Sims, the Medical Examiner.

Issue Six: Almand failed to present exculpatory

evidence that would demonstrate that Green's act of leaving

signed and dated prescriptions with his Physician Assistant

during his physical absence from the medical facility was

authorized under State of Georgia laws, codes, and rules and

there is no federal law—enacted by Congress—that makes the

State of Georgia laws, codes, and rules void nor makes Green's

act a crime.

Issue Seven: Almand failed to present exculpatory

evidence that would demonstrate that narcotic medications

prescribed on September 27, 2002—Date of Offense—could not

possibly have contributed to Evon Harper's death on December 27,

2002 that was caused by Pneçimococc.al pneumonia three months

after the Date of Offense because of the half-life of the

medications.

Issue Eight: Almand violated Green's due process

because he failed to challenge the prosecution's inference

that would lead the jury to believe that there existed a

federal law that made Green's act of leaving signed and dated

prescriptions with his Physician Assistant a crime.

Issue 'Nine: Appellate Counsel Hogue failed to raise

on Direct Appeal the district court's decision not to allow

Green's computer-expert witness tootestify on Green's behalf,

therefore violating Green's due process and Green's Sixth

Amendment right to have witnesses testify on his behalf.

Issue Ten: Almand violated Green's due process

because he failed to challenge the indictment as multiplicious

because Green was improperly charged with the same offense in

several counts - of the indictment.

Issue Eleven: Appellate Counsel Hogue violated

Green's due process because she failed to raise on Direct

Appeal the indictment as multiplicious because Green was

improperly charged with the same offense in several counts of

the indictment.

Issue Twelve: Almand violated Green's Sixth

Amendment rights because—before the trial began—he failed to

challenge the district court's violation of Green's Sixth

Amendment right to a speedy trial because the trial began one

year and six months after the arraignment.

Evon Harper became ill at home during the latter part of

December 2002, which was approximately three months after the

Date of Offense. Evon Harper-was taken by ambulance to Fort

Valley Hospital located in Fort Valley, Georgia whereshewas

treated and subsequently transferred by ambulance to The

Medical Center of Central Georgia ("MCCG") located in Macon,

Georgia. After triage in the Emergency Room at MCCG, she was

admitted as an inpatient at MCCG under the medical care of a

MCCG staff physician and under whose medical care she died on

December 27, 2002. MCCG is owned by Bibb County, State of

Georgia, andforibom Aimandcwas attorney-employee.

The Medical Examiner—Sims—testified at Gréeii's trial

that Harper died of Pneumococcal pneumonia, which, in her

opinion, was the result of narcotics prescribed by Green, with

the inference that the narcotics were not prescribed for a

legitimate medical purpose. Sims was under an. active investigation for Felony Forgery for which she had been relieved of

her duty around the time she testified for the prosecution at

Green's trial. Evon Harper's Death Certificate was entered

into evidence with the inference that the Death Certificate was

Evon Harper's medical record. At trial, Green was examined and

cross-examined for about two days and all of the testimony was

basically centered on Evon Harper's death reports.

Green contends that Evon Harper's medical records were

suppressed by Almand and the prosecution and if Harper's

medical records had been premarked and tendered into evidence

as required by the pretrial Stipulation Agreement, Green would

have been exonerated because all 13 patients within Counts 2-14

had the same attributes and Green was acquitted of 11 with one

no-verdict because the medical records of those 12 patients had

been premarked and tendered into evidence as required by the

pretrial Stipulation Agreement whereas Evon:Harper's medical

records were suppressed by Almand and the prosecution because

there is no entry in the trial transcript that

demonstrates that Evon Harper's medical records were premarked

and tendered into evidence as required by the pretrial

Stipulation Agreement;

there is no entry on the Exhibit Sheet that the

prosecution presented during the §2255 proceedings demonstrating

that Evon Harper's medical records were premarked and tendered

into evidence at trial—bécatise only Evon Harper's Death

•

Certificate is listed on the Exhibit Sheet.

Green contends that during the proceedings under 28 U.S.C.

§25 (2008), the district court violated Green's due process

because

(1) the district court maintained suppression of Evon

Harper's medical records because

the district court violated Rule 12 of 28 U.S.C.

§2255 (2008) because of its decision that 28 U.S.C. §2255 (2008)

is civil; therefore, the district court denied Green's motions

to subpoena Harper's medical records from all medical facilities

that rendered medical treatment to her;

the district court failed to respond to Green's

motions to compel the prosecution to release Harper's medical

records to Green, medical records that the Department of Justice

admits to having in their possession but refuses torrease

them because they have declared Evon Harper's medical records

as being privileged information under the Privacy Act (AppendixE).

medical records were stipulated to at trial with the inference

that they were premarked and tendered into evidence are false

because theiallegations are not demonstrated in the trial

transcript nor in the Exhibit Sheets that the prosecution gave

to the district court during the §2255 proceedings;

the district court violated green's due process

because it failed to follow the proceedings mandated in

28 U.S.0 §2255 (2008).

the district court rendered decisions in a way that

conflicted with relevant decisions by the U.S. Supreme Court.

Green contends that—during the Direct Appeal process—

the Eleventh Circuit Court of Appeals àcted.inappaopriately 'on

two plain errors demonstrated in the triaLrecord.

Reasons For Granting The Writ

A. The Eleventh Circuit's two-judge order (Appendix A to this

petition) denying issuance of a COA contravened this

Court's well established precedents,. and the order

Jt.

violated 28 U.S.C. §2253(c)(1) because (a) this Court's

precedents were violated because the Eleventh Circuit

failedto limit the examination of Green's COA application

(Appendix B to this petition) to a threshold inquiry; and,

(b) the Eleventh Circuit denied Green's COA application on

the merits of Green's constitutional claims, and thereby

violated 28 U.S.C. §2253(c)(1) because the appellate court

did not have jurisdiction to conduct an appeal—the appeal

being the denial of Green's constitutional claims on the

merits, which in essence is an adjudication—where a COA

had not been issued.

"[Ujntil a COA has: been issued federal courts of

appeals lack jurisdiction to rule on the merits of

appeals from [2255 movants]."

[Miller-El v. Cockrell

537 Us 322, 336, 154 L Ed 2d 931, 123 S Ct 1029j

"The COA statute establishes procedural rules and

requires a threshold inquiry into whether the circuit

court may entertain an appeal."

[Slack v. McDaniel

529 US 473, 482, 146 L Ed 2d 542, 120 S Ct 1595]

"[A] COA ruling is not the occasion for ruling on the

merit of [a] petitioner's claim."

[Miller-El v. Cockrell

537 Us 322, 331, 154 L Ed 2d 931, 123 5 Ct 1029j

Where, as in this case, "a court of appeals sidesteps

this process [the threshold inquiry] by first deciding

the merits of an appeal, and then justifying its denial

of a COA based on its adjudication of the actual merits,

it is in essence deciding an appeal without

jurisdiction."

[Id., 537 US, at 336-337]

In this case, the Eleventh Circuit engaged in precisely

the analysis Miller-El and the COA statute forbid; that

analysis being, an evaluation of the merits and then

conéttklingthat issuance of a COA was not warranted

because Green "has offered no new evidence or arguments

of merit to warrant relief."

[Appendix A to This Petition]

It was not Green's burden to offer "new [or additional]

evidence or arguments of merit to warrant relief; because this

Court has decided that

"At the COA stage, however, a court

need not make a definitive inquiry

into this matter. As we have said,

a COA determination is a separate

proceeding, one distinct from the

underlying merits. Slack, 529 Us,

at 481.... The Court of Appeals

should have inquired whether a

"substantial showing of the denial

of a constitutional right" had been

proved. Deciding the substance of

an appeal in what should only be a

threshold inquiry undermines the

concept of a COA. The question is

the debatability of the underlying

constitutional claim, not the

resolution of that debate."

[Miller-El v. Cockrell

537 Us 322 1 342, 154 L Ed 2d 931, 123 S Ct 1029J

This Court has emphasized that a court should not

decline the applicationifor a COA merely because it

believes that the applicant will not demonstrate

entitlement to relief.

[!, 537 Us, at 3373

(a) "It is consistent with §2253 that a COA will issue

in instances where there is no certainty of

ultimate relief."

[Id.]

Noting that a COA is necessarily sought in the context in

which a movant has lost on the merits at the district court,

this Court explained,

"We do not require petitioner to

prove, before the issuance of a COA,

that some jurists would grant the

petition.... Indeed, a claim can be

debatable even though every jurist

of reason might agree, after the COA

has been granted and the case received

full consideration, that petitioner

will not prevail."

537 Us, at 3381

The possibility that claims might falter down the stretch

should not bar them from leaving the starting gate—the

threshold inquiry. The Eleventh Circuit's fundamental mistake

was failing to "limit [its examination of Green's COA

application] to a threshold inquiry."

at 327]

(b) Petitioner's constitutionàicljms"under §2253(c)

[only] require[] an overview of the claims in the

[COA application] and a general assessment of

their merits. This threshold inquiry does not

require full consideration of factural or legal

basisadduced in support of the claims. In fact,

the statute forbids it. When a court of appeals

sidesteps this process by first deciding the :ilt

merits of an appeal, and then justifying its

denial of a COA ba1on its adjudication of the

actual merits, it is in essence deciding an appeal

without jurisdiction."

at 336-337]

B. During the Direct Appeal process, the Eleventh Circuit court

Court of Appeals failed to make the appropriate response

to two plain errors that violated Green's due process.

1. The first plain error: The jury was presented with a

materially false premise created by the prosecution,

and the false premise was used to infer guilt.

"It is only Congress, and not the courts, which

can make conduct criminal."

[Welch v. United States

136 S Ct 1257, 1268, 194 L Ed 2d 387, 403j

The prosecution made criminal the act whereby a

physician leaves signed and dated prescriptions

with his Physician Assistant to be dispensed to

his patients during his physicalabsence from the

medical facility

Green's act of leaving signed and dated

prescriptións----so-called presigned and predated

prescriptions—with his Physician Assistant was

authorized by State of Georgia laws, codes, and

rules (Appendix C to this petition); and, there

is no federal law enacted by Congress that makes

void the State of Georgia laws, codes, and rules

nor makes Green's act criminal; therefore, Green's

act of leaving signed and dated prescriptions with

his:.Physician.Assistant was not:à.criminai.act.

Green left the dated and signed prescriptions

with his Physician Assistant with instructions not

to dispense the prescriptions in the situation

where there was not a legitimate medical need

based on the medical examination of the patient on

the date of the prescription.

State of Georgia laws, codes, and rules regulate

the relationship between physican and physician

assistant through an agency relationship whereby

the physician assistant is under the direct

supervision of the physican not only during the

physician's physical presence within the medical

facility but also via telecommunication during the

physician's physical absence from the medical

facility.

[Appendix C to this petition]

During the criminal trial in the district court,

the prosecution alleged that a vièlàtiènnof the

federal regulation 21 C.F.R. §1306.05 is a

vi6l6ti6noficrimina1 statute-21 U.S.C. §841;

however, 21 C.F.R. §1306.05 only prescribes the

manner of issuance of prescriptions.

[Appendix D to this petition]

It was the Eleventh Circuit's opinion on review

during the Direct Appeal process that a viêlàtiéni?

of the federal regulation 21 C.F.R. §1306.05

"does not constitute a per se violation of [the

criminal statute 21 U.S.C. §841(a)(1)], [but]

the jury was entitled to infer, based on Green's

pre-signing and pre-dating of the prescriptions

and Mack's delivery of those prescriptions to

Green's patients, that they violated the Act."

"Although we agree with Green and

Mack that a violation of section

1306.05 does not constitute a per se

violation of section 841, the jury

was entitled to infer, based on Green's

pre-signing and pre-dating of the

prescriptions and Mack's delivery of

thoseprescriptions to Green'spatients,

that they violated the Act."

[United States v. Joseph

709 F 3d 1082, 1102 (11th Cir. 2013)j

Plain error is the means used at the appellate

court to determine if a federal prisoner's

constitutional right—or rights—have been

violated or infringed upon during trial at the

district court.

•

Green's Sixth Amendment right "to have

compulsory process for obtaining witnesses

in his favor" during the criminal trial was

violated because the district court chose to

suspend the U.S. Constitution and not allow

GreeiYs computer-expert witness to testify

in order to punish Defense Counsel Almand

for his failure to comply with a pretrial

discovery order.

[Doc. 482, p. 521

Had Green's computer-expert witness been

• allowed to testify in the district court on

Green's behalf, the outcome of the trial

would have been in Green's favor.

JAppendi - B-- o€h1s peitio

Page 20, Paragraph 13(b) and (c)]

2. The second plain error: The district court's refusal

to allow Green's witness to testify on Green's behalf,

and thereby violating Green's Sixth Amendment right.

The district court violatedthe Supremacy Clause, U.S.

Constitution, Article VI, Clause 2 because—in response to

Green's §2255 motion for post-conviction relief—the

district court failed to conduct the proceedings in

accordance with 28 U.S.C. §2255 (2008) and therefore

violated Green's due process - as demonstrated in Appendix B

to this petition, SectionIV.A, Pages 3-22.

During the criminal trial in the district court, Green was

convicted because of 12 violations of his constitutional

rights under the Fifth and Sixth Amendments; and, the 12

constitutional violations of Green's rights are claims—

issues—that arise from matters arising insidé;andoutside

the record and within the purview of ineffective assistance

of counsel as demonstrated in Appendix B to this petition,

Section IV.B, Pages 23-36.

Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Pro Se

Signed and placed in the prison mailing system onJ/?O/8

under Certified Mail 7016 1370 0000 1279 8844 postage prepaid.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.