Petition for Writ of Certiorari — Markos Pappas, Petitioner v. United States

*

No.

IN THE

SUPREME COURT OF THE UNITED STATES

MARKOS N. PAPPAS

PETITIONER

-

(Your Name)

vs.

UNITED STATES OF AMERICA

RESPONDENT(S)

-

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Markos Pappas, #12622-014

(Your Name)

FCI Berlin

P.O. Box 9000

(Address)

Berlin, NH 03570

(City, State, Zip Code)

N/A

(Phone Number)

QUESTION(S) PRESENTED

Does the certificate of appealability ("COA") requirement of 228

U.S.C. § 2253(c) that explicitly applies to motions under 28 U.S.C. § 2255,

also apply to motions under Federal Rule of civil Procedure 60(b) that relate

to a section 2255 proceeding even though there is no language in section

2253(c) indicating the COA requirement applies to anything other than the

denial of a section 2255 motion?

Because in denying Petitioner's Federal Rule of civil Procedure

60(b)(4) motion (which raised a due process issue based on the court's

application of a 21 U.S.C. § 851 enhancement for the first time in

Petitioner's 28 U.S.C. § 2255 proceeding), the district court decided it was

debatable that a hearing should have been held as to whether a section 851

enhancement was applicable at all, is it appropriate for this Court to either

issue a COA, or GVR to the U.S. Court of Appeals for the second circuit for

further consideration in light of this Court's holding clarifying the standard

for issuance of a COA in Buck v. Davis, 580 U.S., 137 S.Ct. 759 (Feb. 22,

2017)?

should this court issue a COA, or GVR to the U.S. Court of Appeals

for the Second Circuit for further consideration in light of this Court's

recent holding in Rosales-Mirelesv. United States, 585 U.S.

, 138 S.Ct.

197 (June 18, 2018)?

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LIST OF PARTIES

x[x

All parties appear in the caption of the case on the cover page.

I All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

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TABLE OF CONTENTS

OPINIONSBELOW ........................................................................................................1

JURISDICTION...................................................................................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................. 3

STATEMENT OF THE CASE ............................................................................................ q

REASONS FOR GRANTING THE WRIT ..........................................................................

CONCLUSION.................................................................................................................... 1(0

INDEX TO APPENDICES

APPENDIX A .....Excerpt of Ruling on Defendants' Motions Pursuant To

28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence

APPENDIX B...... July 7, 2017 Ruling and Order

APPENDIX C

.....

December 27, 2017 Ruling and Order

APPENDIX D ......June 7, 2018 Summary Order

APPENDIX F

/

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I

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

United States v. Collado,

106 F.3d 1097 CTd Cit. 1997) ........................4

United States v. Ortiz,

143 F.3d 728 (2d CIt. 1998) ........................ 5

Pappas v. United States,

362 Fed. Appx. 175 (2d Cit. 2010) . ....................7

Gonzalez v. Crosby,

545 U.S. 524 (2005) ............................. 10

Buck v. Davis,

580 S.

, 137 S.Ct. 759 (Feb. 22, 2017) . . . . . . . . . . . . . . . . 10

Rosales-tlireles v. United States,

13

585 U.S.

, 138 S.Ct. 1897 (June 18, 2018) . . . . . . . . . . . . . . .

STATUTES AND RULES

18 U.S.C.. § 371 ...............................4

18 U.S.C.. 1513(b)(2) ..........................

4

21 U.S.C. § 841(b)(1)(A) ..........................4

21 U.S.C. § 841(b)(1)(C) ........................... 5

21 U.S.C. § 851 .........................4, 5, 6, 14

28 U.S.C. § 2253(c)(1)(B) .........................11

Fed.R.Civ.P. 60(b) ..........................passim

.

OTHER

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iv-

.

.

.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

W For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[1 reported at

D

to

; or,

has been designated for publication but is not yet reported; or,

f 7j is unpublished.

.

The opinion of the United States district court appears at Appendix A-C

the petition and is

[I reported at

; or,

I has been designated for publication but is not yet reported; or,

4x]c is. unpublished.

I For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

.

[I reported at

; or,

] has been designated for publication but is not yet reported; or,

] is unpublished.

.

The opinion of the

appears at Appendix

court

to the petition and is

reported at

; or,

has been designated for publication but is not yet reported; or,

[] is unpublished.

to

to

JURISDICTION

Jxq For cases froth federal courts:

The date on which the United States Court of Appeals decided my case

was June 7, 2018

No petition for rehearing was timely filed in my case.

I A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

order denying rehearing appears at Appendix

,

and a copy of the

An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date)

in Application No. __A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[1 A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

I An extension of time to file the petition for a writ of certiorari was granted

to and including

Application No.

(date) on

_________________

(date) in

A_______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment provides in pertinent part:

No person shall

be deprived of life, liberty, or

property without due process of law[.]

.

.

.

Title 21 U.S.C. § 851(a)(1) provides:

No person who stands convicted of an offense under this part...

shall be sentenced to increased punishment by reason of one or more

prior convictions, unless before trial, or before entry of a plea

guilty, the United States attorney files an information with the

court

stating in writing the previous convictions relied upon.

.

.

.

Title 28 U.S.C. § 2253(c)(1)(B) provides:

Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of

appeals from-(B) the final order in a proceeding under section 2255....

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STATEMENT OF THE CASE

In July of 1997 Pappas was found guilty after a jury trial

of: (1) conspiring to possess with intent to distribute an

unspecified quantity of a substance containing a "detectable"

amount of cocaine in violation of 21 U.S.C. § 846 (count One);

(2) conspiring to retaliate against a witness in violation of 18

U.S.C. § 371 (count Two); and (3) retaliation against a witness

in violation of 18 U.S.C. § 1513(b)(2).

(Doc. 187).

(cites

preceded by "Doc." areto documents in the docket of D.conn.,

Case No. 96-cr-185-RNc).

Prior to trial Pappas challenged the government's 21 U.S.C.

§ 851(a) filing, but the trial court denied Pappas' motion

without prejudice to renewal before sentencing if Pappas was

found guilty.

(Doc. 149).

At Pappas' sentencing on March 31, 1998 Judge Dorsey granted

Pappas' renewed motion to strike the section 851 enhancement

filing, (Doc. 240),! per the holding in United states v. collado,

106 F.3d 1097 (2d dr. 1997). Judge Dorsey then sentenced Pappas

to 360 months imprisonment and 10 years of supervised release

(under 21 U.S.C. § 841(b)(1)(A)), based on Judge Dorsey's

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application of an objected to preponderance standard to find that

the drug quantity as to Count One was in excess of 50 kilograms

of cocaine and 600 grams of crack cocaine. (Doc. 272, at 95133; Doc. 246/Statement of Reasons, page 5).

While Pappas' direct appeal was pending, a different threejudge panel of this Court, in United States v. Ortiz, 143 F.3d

728 (2d Cir. 1998), overruled the Collado panel's decision that

was the basis of Judge Dorsey's decision to strike the section

851 filing.

Nevertheless, the government did not appeal Judge Dorsey's

decision striking the section 851 filing and this Court did not

disturb that ruling when on direct appeal it affirmed the

judgment against Pappas by summary order filed October 19,. 1999

in Appeal No. 98-1206. The Supreme Court denied certiorari on

October 2, 2000.

Pappas timely moved to vacate, set aside, or correct

sentence under 28 U.S.C. § 2255 in October of 2001. After more

than five years of briefing and supplemental briefing Judge

Dorsey denied Pappas' section 2255 motion. (Doc. 411).

In that ruling Judge Dorsey held that the statutory penalty

applicable to Pappas was 21 U.S.C. § 841(b)(1)(C), and further

held that the maximum term of imprisonment applicableto Pappas

under that provision was 30 years instead of 20 years because the

§ 851 filing that was stricken, (Doc. 240), would be subject to

reinstatement or a new one could be filed since Collado had since

been overruled.

(App. A, at 38).

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Judge Dorsey's decision did

not recognize or provide any analysis on the relevance of the

government's failure to appeal the decision striking the § 851

filing.

LL

Nor did Judge Dorseys holding recognize that there is an

entire process that must be adhered to prior to an increase under

§ 851 can take place. Id. Nor did Judge Dorsey make any

assessment or ruling on the question of whether Pappas in fact

did have a qualifying predicate conviction to enable an increase

under § 851. Id. Nor did Judge Dorsey give Pappas notice or an

opportunity to be heard as to a § 851 increase imposed for the

first time in Pappas' section 2255 litigation. Id. Nor did

Judge Dorsey identify any legal authority for the proposition

that the government can obtain review during a section 2255

proceeding initiated by Pappas, of an issue it forfeited by

failing to appeal after sentencing. Id.

Judge Dorsey's holding was limited to, and based solely on,

his conclusion that the government could move to reinstate the

stricken § 851 or file a new one. Id.

In denying Pappas reconsideration motion Judge Dorsey did

not recognize any argument by Pappas relative to the impropriety

of denying him a re-sentencing on the basis of Judge Dorsey's

conclusion that the stricken § 851 filing could simply be

reinstated or a new one filed. (Doc. 423, at 12 (making no

analysis of arguments raised by Pappas on reconsideration and

stating that Pappas was simply rehashing rejected arguments and

criticizing the court for failing to address certain

arguments.)).

A COA was granted on all issues, (Doc. 423, at 12), and in

response to Pappas' arguments this Court did not provide any

analysis or discussion and held only that as "to Pappas' claims

[it] affirm[ed] the order of the District Court

substantially for the reasons stated in the District Court's

thorough and careful ruling..." of December 13, 2006. Pappas v.

United States, 362 Fed. Appx. 175, 177 (2d Cir. 2010). The

Supreme Court denied certiorari on April 4, 2011 (563 U.S. 930).

Pappas sought other forms of relief in the district court

and appeals court in pursuit of justice, from April of 2011

through November of 2015. (Docs. 455, 457, 460, 470, 473, 478,

480, 485, 486, 487, 489, 494, 495, 502, 506, 507, 510, 513, 514,

523, .525, 534, 552; and Second Citci t. Nos. 13-2186, 13-4760, 146, and 14_773,1 the last of which this Supreme Court denied

certiorari on June 29, 2015).

In November of 2015 Pappas moved for relief under

Fed.R.Civ.P. 60(b)(4) and (6), from that part of the December 13,

2006 ruling relative to the § 851 increase on the basis that the

ruling was void on due process grounds and otherwise defective.

(Doc. 557).

1. Prior to becoming a federal judge, Circuit Judge Christopher

Droney of the United States Court Of Appeals for the Second

Circuit, was the U.S. Attorney for the District of Connecticut

and he prosecuted Pappas in this case from the very start in

September of 1996 through trial and sentencing. Neverthe1es, he

was the only repeat Circuit Judge on the panels in 13-4760, 146,. and 14-773. A footnote in each decision in those appeals says

he did not participate, thus meaning Pappas did not get the

three-judge panel review he was entitled to in those appeals when

those two-judge panels granted motions for summary affirmance

filed by an AUSA who served under former U.S. Attorney, now

Circuit Judge, Droney.

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That motion remained pending for 20 months without any

opposition by the government. On July 7, 2017 the U.S. District

Court for the District of Connecticut denied the m&tion based on

its own arguments invoking two procedural barriers not invoked by

the government and thus fairly deemed as waived by the

government: (a) that the Second Circuit's decision affirming

Judge Dorsey's December 13, 2006 ruling at issue in Pappas' Rule

60(b) motion foreclosed "Pappas's [Rule 60(b)] due process claim"

(.Ap

B,

B,

at 1); and (b) that the motion was untimely.

(App.

at 1-2).

Pappas moved for reconsideration, (Doc. 607), and in that

filing Pappas challenged the court's ruling in all respects,

including that it violated the party-presentation principle and

was otherwise clearly erroneous and gave rise to a manifest

injustice since the lawful 20 year maximum term of imprisonment

Pappas can be subject to has already expired as of September 24,

2016, day-for-day without consideration of all the good conduct

time Pappas has earned. (Doc. 607, at 4-15).

The court ordered the government to file a response, (Doc.

608), and it did so on August 18, 2017.

(Doc. 611). In its

response it did not contest the merits of Pappas' claim that a §

851 increase cannot be applied to him as he does not have a

qualifying predicate conviction, and it agreed that Pappas' Rule

60(4) motion was at least arguably timely. Id.. Pappas submitted

a reply on September 14, 2017, (Doc. 613). He then moved for

release on bail on October 16, 2017, (Doc. 616), and that motion

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was denied on November 30, 2017. (Doc. 622).

On December 27, 2017, the court denied Pappas' motion for

reconsideration, (App. C),

and in that ruling the court did not

re-affirm its previous position on untimeliness and instead

focused the basis of its denial of relief on its own argument

that Pappas waived the due process issue he raised in his Rule

60(b)(4) motion by not raising it on appeal from the denial of

his section 2255 motion. (App. C,

at 6). Even though the

court found that the standard for a COA was fully satisfied,

(App. c,

at 7 ("The propriety of enhancing.Pappas's sentence

without holding a hearing under § 851(c) may be debatable.")), it

still refused to grant ,a COA. Id.

On February 1, 2018, the district court granted Pappas'

motion to proceed in forma pauperis in this appeal. In its

ruling the district court noted its denial of a COA, "even though

the issue [Pappas] asks [-the court] to address may be debatable

on the merits." (Doc. 629). The district court went on to add

that Pappas "seeks to appeal on the ground that the Second

Circuit can and should address that issue [the court said was

debatable] on the merits. [The court does] not think [Pappas']

appeal would be objectively frivlous." Id.

-

Despite theC0Astandard being satisfied per what the

district court said, the U.S. Court of Appeals for • the Second

Circuit denied a COA on June 7, 2018 per a boiler-plate, one

paragraph summary order.

(Appendix D).

-

Because a COA or GVR is appropriate per recent decisions of

this -Court, Pappas submits the instant petition.

men

REASONS FOR GRANTING THE PETITION

There are three reasons why this Court should grant this

petition and either issue a COA or GVR to the U.S. Court of

Appeals for the Second Circuit.

1. Petitioner respectfully submits that this Court should

decide whether or not the COA requirement of 28 U.S.C.

§ 2253(c) that explicitly applies to motions under

28 U.S.C. § 2255 also applies to motions under Federal

Rule of Civil Procedure 60(b) that relate to a section

2255 proceeding even though there is no language in

section 2253(c) indicating the COA requirement applies to

anything other than the denial of a section 2255 motion

Petitioner argued in the Second Circuit that a COA is not

required to appeal the denial of a Rule 60(b) motion that relates

to a section 2255 proceeding. (Pappas Motion For

Clarification..., dated February 5, 2018, filed in Second Circuit

No. 18-232, pages 8-9). However, the Second Circuit did not

acknowledge or address that argument in its summary order now in

issue. (Appendix D). Petitioner respectfully submits that the

issue is worthy of this Court's attention at this time.

In 2005 this Court expressly left open the question of

whether a.COA is required to appeal the denial of a Rule 60(b)

motion. See, Gonzalez v. Crosby, 545 U.S. 524, 535 n. 7

(2005)("Although we do not decide in this case whether this

construction [i.e., requiring of COA] of [28 U.S.C.] § 2253 is

correct..." ) .

More recently, this Court again noted the open nature of the

question, and further observed that there is now conflict among

federal appeals courts on the question. See, Buck v. Davis, 580

U.S.

,

137 S.Ct. 759, 772 n. * (Feb. 22, 2017)(notin that

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-

there is a disagreement among the Federal Courts of Appeal as to

whether or not a COA is needed to appeal the denial of a Rule

60(b) motion that relates to a habeas judgment, and expressly

leaving that question open by assuming without deciding that one

was required in this case).

This Court's enduring commitment to strict adherence to the

plain language of a statute, coupled with this Court's guidance

as to the limited nature in which a "true" Rule 60(b) motion

attacking a habeas judgement can be entertained, supports the

propriety of addressing this issue at this juncture.

Indeed, an assessment of that nature reveals that the plain

and unambiguous language of 28 U.S.C. § 2253(c)(1)(B) is directed

at nothing more than a "final order in a proceeding under section

2255... ."

And, a "true" Rule 60(b) motion is one that attacks

the manner in which a decision was made in a habeas (or section

2255) proceeding, not the actual decision on the merits.

Gonzalez v. Crosby, 545 U.S., at 538. In other words, a true

Rule 60(b) cannot attack a "final order in a proceeding under

section 2255[,]" and is limited solely to the process or manner

or decision.

There was no dispute or holding that Pappas' motion was

anything other than a "true" Rule 60(b) motion. As such, the

circumstances here render the issue and timing ripe for

consideration by this Court as to whether or not a COA is

required to appeal the denial of a "true" Rule 60(b) motion.

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-

(

2. Because in denying Petitioner's Rule 60(b)(4) motion

(wherein Petitioner raised a due process issue based on

the court's application of a 21 U.S.C. § 851 enhancement

for the first time in Petitioner's 28 U.S.C. § 2255

proceeding), the district court decided it was debatable

that a hearing should have been held as to whether a

section 851 enhancement was applicable at all, Petitioner

respectfully submits it is appropriate for this court to

issue a COA or GVR to the Second circuit for further

consideration in light of this court's clarification of

the standard for issuance of a COA in Buck v. Davis, 580

U.S.

, 137 S.Ct. 759 (Feb. 22, 2017)

In Buck v. Davis, 580 U.S.

,

137 S.Ct. 759 (Feb. 22,

2017), this Court clarified the standard applicable to the

assessment of whether a COA should be granted:

The COA inquiry

is not coextensive with a merits

analysis. At the COA stage. , the only question is whether

the applicant has shown that jurists of reason could

disagree with the district court's resolution of his

constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement

to proceed further.

...

137 S.Ct., at 773. (Internal quotation marks and citation

omitted).

As noted supra, Judge Dorsey found all of the issues in this

case "debatable" in 2007 when he granted a COA permitting an

appeal of his denial of relief on the merits of Petitioner's

claims advanced in his § 2255 motion. If a COA is required to

enable Petitioner to appeal the denial of his Rule 60(b) motion,

the COA Judge Dorsey previously granted should be continued for

purposes of this appeal.

If a new COA is required then one should issue as a matter

of formality since, as noted supra at 9, the district court found

in two separate orders that the issue Petitioner raised in his

Rule 60(b) motion is in fact "debatable" thus fully satisfying

the standard clarified in Buck, set forth above.

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The district court made it clear that its basis for denying

a COA was its belief that its denial of Rule 60(b) relief itself

was correct. However, the above quote from Buck, as-applied to

the district court's finding (twice) that Petitioner's issue was

"debatable" (which finding is enhanced by the additional

recognition by the district court in granting Petitioner in forma

pauperis status for appeal that anyappel would not be frivolous)

warrants issuance of a COA (if one is required) per this Court's

holding in Buck v. Davis quoted above.

If this Court does not grant a COA outright, it should at a

minimum GVR to the Second Circuit for further consideration on

whether a COA should be granted in light of this Court's holding

in Buck v. Davis which the Second Circuit did not even allude to

in denying a COA.

-

3. Petitioner respectfully submits that a COA or GVR to the

Second Circuit is appropriate in light of this Court's

recent holding in Rosales-Mireles v. United States,

585 U.S.

138 S..Ct. 1891 (June T8, 2018)

-,

In this Court's recent decision in Rosales-Mireles v. United

States, 585 U.S.

,

138 S.Ct. 1897 (June 18, 2018), this Court

clarified the standard applicable when a court must determine

whether a sentencing error should be corrected. This Court

explained that the "risk of unnecessary deprivation of liberty"

gives rise to all factors needed to satisfy the plain error

standard that governs un-objected to errors. 138 S.Ct., at 1908.

Here, there is far beyond a "risk" that Petitioner's

sentence has been miscalculated under the Sentencing Guidelines

as was the case in Rosales-Mireles. Here, it is undisputed that

Petitioner's sentence has been subject. to a statutory enhancement

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that increased the applicable maximum by 10 years, and that the

enhancement is inapplicable. Specifically, for the first time in

Petitioner's section 2255 litigation the district court •applied a

previously objected to 21 U.S.C. § 851 increase and held that

Petitioner's 30 year sentence was within the enhanced 21 U.S.C. §

841(b)(1)(C) 30 year maximum and left the sentence intact.

Absent the section 851 ten year increase, the undisputed

maximum as to Count One is 20 years imprisonment and 3 years

supervised release. Petitioner's enhanced (again, enhanced for

the first time during Petitioner's section 2255 litigation

despite a prior objection to the enhancement being sustained and

not appealed by the government) 30 year term of imprisonment

exceeds, the maximum term applicable by a decade (full 10 years)

and the supervised release term of 10 years exceeds the 3 years

that actually applies by 7 years. Add to that the fact that

Petitioner has amassed 729 days of good conduct time credit and

the math shows Petitioner has as of the filing of this petition

spent approximately 17 days short of 4 full years longer in

prison than what is permitted by law (i.e., the applicable

statutory maximum)..

It is undisputed by the government and the district court

that the government's section 851 filing stricken at sentencing

in 1998 (which decision was not appealed and which filing has

never been refiled or otherwise reinstated), identifies a single

prior, conviction which does not qualify as a proper section 851

predicate.

In other words, there is no factual or legal basis for the

section 851 increase the district court applied for the first

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time during Petitioner's section 2255 litigation in order to

leave intact a 30 year sentence that is 10 years longer than the

20 year maximum that same court found applicable to Petitioner if

the section 851 ten year increase (that factually and legally

does not aDly) was not applied.

Thus, the 'risk of unnecessary d..?privation of liberty" ths

Court found inRosales-Mireles to be the proper standard in

assessing whether a sentencing error should be corrected is far

exceeded-here as the deprivation of liberty is real and present.

The sentencing error• here is resulting in Petitoiner actually,

right now, being confined longer than the law permits.

The additional finding of this Court in Rosales-Mireles that

the public legitimacy of our justice system relies on procedures

that are neutral, accurate, consistent, trustworthy, and fair,

and that provide opportunities for correction[,]" is fully

applicable here. In Rosales-Mireles the amount of time in issue

was 8 months per a Sentencing Guidelines calculation that could

have ultimately yielded the same sentence found subject to

correction per the improper calculation of the applicable

sentencing range. :Here, Petitioner's sentence exceeds the

undisputed statutory maximum by 10 years based on an enhancement

that the government does not, and cannot, dispute is inapplicable

to Petitioner.

From that perspective, "what reasonable citizen would not

bear a rightly diminished view of the judicial process and its

integrity if courts refused to correct obvious errors of their

own devise that threaten to [but here asto Petitioner Pappas

-15-

actually] require[s] [Petitioner Pappas] to linger longer in

federal prison than the law demands?" Rosales-Mireles, 138

S.Ct., at 1908.

Accordingly, Petitioner respectfully asks this Court to

either issue a COA on this point or GVR to the Second Circuit for

further consideration in light of the clarification provided by

this Court's recent decision in Rosales-Mireles as to how the

question of whether a sentence should be corrected should be

assessed.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

RzCi77)

-

Markos Pappas, pro se

*Mailbox Rule invoked to ensure timely filing as of this date.

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