Petition for Writ of Certiorari — In Re Damon Graham, Petitioner

Supreme Court briefOct 19, 2018

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IN THE SUPREME COURT FOR THE UNITED STATES

IN RE DAMON GRAHAM,

Petitioner

PETITION FOR WRIT OF MANDAMUS TO COMPEL THEI FIRST CIRCUI

COURT OF APPEALS TO DECIDE CERTIFICATE OF APPEALABILITY

Damon Graham, In proprla persona

Fed. Reg No 13787014

FNC Devens

Post Office Box 879

Ayer, Massachusetts

01432

TABLE OF CONTENTS:

TABLE OF AUTHORITIES ............... ....

RELIEF

SOUGHT

QUESTION

000006600000.0

PRESENTED

JURISDICTIONAL

STATEMENT

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........

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0000.000000

FACTS NECESSARY TO UNDERSTAND PETITION

...........

00000000006000600

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00066

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ARGUMENT 0

I. THE COURT SHOULD DIRECT THE FIRST CIRCUIT COURT OF APPEALS

TO PROMPTLY DECIDE MR. GRAHAM'S CERTIFICATE OF

APPEALABILITY

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a000.

The Writ Will Be In Aid Of The Court's Appellate

That Exceptional Circumstances Warrant The Exercise

Of The Court's Discretionary Powers

That Adequate Relief Cannot Be Obtained In Any Other

Form Or From Any Other Court

11, 1.2

Conclusion

urisdiction

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600000000000000600',

.....

00000000000t0000

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Certificate of Service

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TABLE OF AUTHORITIES

Cases

Page

Bankers Life & Cas. Co. v. Holland, 346 U.S. 379(1953) ..........5

Buck v. Davis, 1971.. Ed. 2d(2017)..............

5, 7

Cheney v. United States District Court, 542 U.S. 367(2004).... 2, 3

Cohens v. Virginia, 6 Wheat 264(1821) .............

Colorado River Water Conservation District v. United States,

424U.S. 800(1976) ......................................10

England v. Louisiana Bd. of Medical Examiners,

375 U.S. 411(1964) ......................................10

ExParte Crane. 5 Peters 9O(1832) ..............................6

Hollingsworthv. Perry, 558 U.S. 183(2010) ...........

Insurance Co. v. Comstock, 83U.S.(i6 Wall) 258(1872) ........ 4,9

IDS Life Ins. Co. v. SunAmerica, 103 F. 3d 524(CA7 1996) ..........7

Johnson v. Rogers, 917 F.2d 1283(CA10 1990) ..................7, 8

Jones v. Shell, 572 F.2d 1278(CA 1978) ..........................7

Kendall v. United States, 37 U.S. 524, 12 Peters 524(1838),... 5, 9

Kerrv. United States District Court, 426 U.S. 394(1976) ........

La Buy v0Howes Leather Co., 352 U.S. 249(1957)..... ..........6, 8

Madden v. Myers, 102F.3d74(CA31996) ................. ......... 7

Moses H. Cone Hosp. V. Mercury Constr. , 460U.S. 1(1983)......,.. 8

Quackenbush v. Allstate Ins. Co., 517U.S. 706(1996)........... 10

Roche v. Evaporated Milk Asso., 319 U.S. 21(1943) .............2, 4

Telecommunications Research & Action Center v. FCC,

750F.2d70(CADC1984) ......

Thermtron Products, Inc. v. Hermansdorfer,

........

...

.423 U.S. 336(1976).............,

..L.......

United Statesv. Carpftter, .781 F.3d 599(CA1 2015).

United States v. Nance, 666F.2d353(CA91981) .................. 7

Willy. Calvert Fire Ins. Co., 437 U.S. 655(1978). .............

Willy. United States, 389U.S.90(1967) .......

Willcox v. Consolidated Gas Co. , 212 U.S. 19 (1909) .............10

.."."......

........

......

TABLE OF AUTHORITIES

Page

Statues

28 U.S.C.

§ 1651(a) ...,..............

28 U.S.C.

§ 2241 aeeoo

U.S.C. § 225(c)(1)

28 U.S.C.

,e e..e..

....

,,,,.G..,,,G

...........

§ 2253(B)(2) ...............

28 U.S.C. § 2253(B)(3)

28 U.S.C. § 2255

.... *

S., * 5* oe*•o*e ,

........

1,3

1 3, 4, 5

.......

...

.,..,.,,.,.,,.,

.................

'**O

....... ..

.........,

Rule s

Fed R ADP P. ..........

Fed

U.S. Sup. Ct. Rule 10(a)

U.S. Sup. Ct. Rule 20.1

App.

.. .. . . .......

.......

. ....... . . ...........................

............

.............

iii\

......

2, 5, 6, 8

o..

s........*e.

.....

RELIEF SOUGHT

Petitioner Damon Graham respectfully requests that the

Court grant this petition for a writ of mandamus and direct

the appeals court to promptly rule on Nr. Graharris Certificate

of Appealability.

QUESTION PRESENTED

(1) Whether this Court should compel the First Circuit

Court of Appeals to rule on Mr. Grahams longpendin fourteen

months certificate of appealability?

JURISDICTIONAL STATEMENT

This Court has jurisdiction to issue the requested petition

for writ of mandamus under 28 U.S.C. § 1651(a) and Supreme Court

Rule 20.

FACTS NECESSARY TO UNDERSTAND PETITION

On January 4, 2017, petitioner Graham filed a petition to

vacate, set aside, or correct sentence pursuant to Title 28

U.S.C. § 2255 which was docketed with the district court as

timely filed.

On June 19, 2017, the district court entered a final

unappealable judgment and order against Mr. Grahams petition to

vacate, set aside, or correct sentence-denying him relief.

On July 11, 2017, Mr. Graham filed a notice of apreal

seeking to have the court of appeals review the denial of his

by the district court but he must first receive

permission from the appeals court by requesting for a

certificate of appealability.

On August 21, 2017, Mr. Graham received a legal correspond.'=

ence from the court of appeals notifying him that the court has

docketed the motion for certificate of appealability on August

17, 2017 and will he sudruitted to the court for a determination

on whether a cettificate of appealability should issue

On August 3, 2018, Mr. Graham filed a motion for clarifi

cation or in the alternative a request for conference pursuant

to Rule 33 of the Fed. R. Apo. P. in an attenpt to spur action

on the almost year long wait period from the First Cirucit

Court of Appeals for a answer on the certificate of appealability

but still to no avail was a answer or decision given on the

recent filed motion or the certificate of appealability.

ARGUMENT

THE COURT SHOULD DIRECT THE FIRST CIRCUIT COURT OF

APPEALS TO PROMPTLY DECIDE MR. GRAHAMS CERTIFICATE

OF. APPEALABILITY.

[The writ of mandamus] is a drastic and extraordinary

remedy reserved for really extraordinary causes. Cheney v.

United States District Court, 542 U.S. 367, 380, 159 L. Ed. 2d 459 1

124 S. Ct. 2576(2004).

The traditional use of the writ in aid

of appellate jurisdiction both at common Law and in the federal

courts has been to confine [the court against which mandamus is

sought] to a lawful exercise of its prescribed jurisdiction,"

or to compel it to exercise its authority when it is its duty to

do so". Roche v. Evaporated Milk, 319 U.S. p1,269 87L./d 1185(1943).

A writ of mandamus is properly granted to correct the

judicial usurpation of power \or a t clear abuse of discretion,"

"will justify the invocation of this

supra, 542 U.S. at 380, 159 Lgd. 2d 459, 124 S. Ct, 2576. As

the writ i s a extraordinary remedy by this Court and authorized

to do so by 28 U.S.G.

1651(a), "it is not a matter of right,

but of discretion sparingly exercised," and one of "the most

potent weapons in the judicial arsenal.' Ibid.

Before a writ of mandamus will he issued, a petitioner

must meet three conditions for the writ to succeed. See U.S.

Sup. Ct. Rule 20.1. This Petitioner will explain how he is able

to satisfy the three required requisites for this Court to make

a proper decision and exercise its appropriate authority and

discretion in Petitioner's case. 'The [three] hurdles, however

demanding, are not insuperable'

, 542 U.S. at 381, 159 L. Ed.

2d 459, 124 S. Ct. 2576.

A. The Writ Will Be In Aid of The Court's Appellate

Jurisdiction.

The first criteria for this Petitioner\ to surmount the

odds of having this Court grant the mandamus in his favor is

the Petitioner must satisfy 'the burden of showing that his

right to issuance of the writ is "clear and indisputabie""Y

Kerr v. United States District Court, 426 U.S. 394, 403, 48 L. Ed. 725,

96 S. Ct, 2119(1976),

Petitioner avers that he is currently confined to a state

abeyance with his pending certificate of appealability in

the court of appeals and cannot proceed to a proper appeal to

the denial of his § 2255 petition unless the court of appeals

makes a formal ruling to potentially grant (or deny) the certif

icate of appealability required by Fed. R. App. P. 22(b)(2) and

Title 28 U.S.C. § 2253(c)(1), (B)(2) & (3) as the district court

judge did not issue a certificate of appealability.

The Petitioner has waited fourteen months for a ruling on

his certificate of appealability but has not received a answer

to date and Petitioner has no other choice but to seek relief

With this Court's assistance through a writ of mandamus to diect

the court of appeals to issue a ruling on Petitioners cartif

icate of appealability. This problem falls squarely within this

Courts power, discretion, and appellate jurisdiction to issue

the writ of mandamus to rectify this mate. The power to issue

the writ of mandamus to the circuit courts is exercised by this

Court to compel the circuit court to proceed to a final judgmert

or decre in a cause, in order that this Court may exercise the

jurisdiction of review given by law. Insurance Co. v. Comstock,

83 U.S. (16 Wall) 258, 270, 21 L. Ed. 493(1872). The writ of mandamus

is the sole vehicle to accomplish the tas.K sought by Petitioner

as a function of mandamus in aid of appellate jurisdiction is

to remove obstacles to appeal. Roche, supra, 319 U.S. at 26, 87

L. Ed. 1185. The Petitioner cannot move forward to appeal the

denial of his § 2255 petition unless the court of appeals makes

a decision on

request for a certificate of appeal-

ability which is strictly limited to a "threshold inquiry into

the underlying merit of [the] claims," and ask oni if the

District Courts decision was debatable." Buckv. Davis, 197 L. Ed.

2d 1, 4(2017). Petitioner has followed all necessary steps of the

procedures stipulated to obtain the right to appeal and does not

request the writ of mandamus from this Court in bad faith such

as to circumvent the appeal process or to use the writ of

mandamus as a substitute for an appeal because such a act will

not he allowed by this Court, Bankers Life& Cas. Co. y. Holland,

346 U.S. 379, 383, 98 L. Ed. 106, 74 S. Ct. 145(1953), but to use the

mandamus for one of its intended purposes as "[t]he mandamus

does not direct the inferior court how to proceed, but only that

it must proceed, according to its own judgment, to a final

determination, otherwise it cannot be reviewed in the Appellate

Court. Kendall v, United States, 37 U.S 524 2 12 Peters 524, 526, 9

L. Ed. 1181(1838).

B. That Exceptional Circumstances Warrant The Exercise

Of the Court's Discretionary Powers.

Petitioner asserts that exceptional circumstances exist

with the issue at hand due to the fact that Petitioner's 'hand

are tied' on proceeding forth to appeal the erroneous denial of

§ 2255 petition by the district court because the court of appeals

has refused to issue a decision on Petitioner's pending certifi cate of appealability. Petitioner has not been the cause of the

delay or impeding the court of appeals in reaching a conclusion

on the certificate of appealability as Petitioner has not filed

for an extension, a supplemental motion, or any other document

on his behalf requiring a delay in the court's ruling other than

a Rul 33 motion in accordance with Fed. R. App. P only striving

to initiate the court to take acme fom of action on the certificate of appealability pending at the time of the filing of the

Rule 33 motion for almost a year to the date.

The court of appeals has either decided to ignore both the

pending documents before the court or has refused to exercise

jurisdiction pertaining to the matters. Either action seems to

be done 'arbitrarily and capricious," producing a miscarriage

of justice to occur to Mr. Graham. The only viable solution for

this problem is the writ of mandamus as "[i]t issues to the

judges of any inferior court commanding them to do justice

according to the powers of their office whenever the same is

delayed.' ExParte Crane, 5 Pet. 190, 192, 8L. Ed. 92, 94(1832).

The unwarranted and unca1iLd for delay in ruling on the

certificate of appealability by the court of appeals should not

be allowed to continue to occur by this Court where issuance

of such writs is proper where a court has exceeded or refused to

exercise its jurisdiction, or where appellate review will be

defeated if a writ does not issue." LaBuyv. Howes Leather Co.,

352 U.S. 2499 2609 1 L. Ed. 2d 290, 77 S. Ct, 309(1957).

The certificate of appealability phase does not warrant

a fourteen - month delay for a decision as the requirement for a

certificate of appealability to issue. is only a "substantial

showing of the denial of a constitutional right", not a "definite"

showing of a denial of a constitutional right. A claim can be

debatable even though every jurist of reason might agree, after

the certificate of appealability has been granted and the case

has received full consideration, that petitioner will not prevail.

Buck, supra, 197 L. Ed. 2d at 8. The First Circuit has even conSId

ered a mandamus to be the proper remedy for a unnecessary delay

where it stated hl[w]e do not reject the notion that post—

convict-ion delay might give rise to a remedy, perhaps on mandamus review.

United States v. Carpenter, 781 F.3d 599, 615(CA1.2015). Other circuit

courts 1ave also took a similar stance that a unduly delay is

clearly impermissible. Madden v. Myers, 102 F.3d 74, 79(CA3 1996)

('1[A]n appellate court may issue a writ of mandamus on the ground

that undue delay is tantamount to a failure to exercise juris diction."); IDS Life Ins. Co. v. SunArnerica, 103 F.3d 524, 526(CA7

1996)("Delay that is utterly unjustified and is causing irrepara —

ble harm is, it is true, a ground for mandamus.U); Jones v. Shell,

572 F.2d 1278, 1280(CA8 1978)(busy court docket cannot justify

fourteen - month delay in processing claim from date of remand;

crowded dockets do not excuse compliance with rules and statutes);

United States y. Nance 6,61 6 F.2d 353, 359(CA9 1981)("general conges tion" of courts calendar impermissible factor on which to base it

ends of justice continuance under Speedy Trial Act, 18 U.S.C. §

3161(h)(8)(C), cert. denied, 456 U.S. 918, 72 L. Ed. 2d 179, 102 S. Ct.

1776(1982); Johnson v. Rogers, 917 F.2d 1283, 128485(CA10 1990)

(granting a writ of mandamus based on fourteen - month delay in

district court's processing of 28 U.S.C. § 2241 petition);

Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 79

(CA DC 1984)(In the context of a claim of unreasonable delay, the

first stage of judicial inquiry is to consider whether the [J

delay is so egregious as to warrant mandamus). This Court has also

gave it's opinion on matters of like nature on a feu occaasions.

La B, supra, 352 U.S. at 259, 1 L. Ed. 2d 290, 77 S. Ct. 309 (congestion

of court docket insufficient ground to justify reference to master

under Fed. R. Civ. P. 53(b)); Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336, 345, 46L. Ed. 2d542, 96s. ct. 584(1976)(court's crowded

docket impermissible ground to remand action to state court);

Moses H. Cone Hosp.v..Mercury Constr., 460 U.S. 1 2 10=11 n. 11, 74L.Ed.

2d 765, 103 S. Ct. 927(1983)(holding that a stay order is appealable

because it amounts to a refusal to hear and decide a case).

Any reason for a delay on ruling on Petitioner's certificate

of appealability are unfounded and the court of appeals has blatantly denied Petitioner a timely and meaningful way of moving

forward to litigate his claims of serving a unconstitutionally

enhanced sentence causing undue distress and irreparable harm.

Continued delay on a decision of the certificate of appealability

by the court of appeals is affecting Petitioner's 'rih of

redress is being sevorely impaired".Thermtron, supra, 423 U.S. at

3419 46 L. Ed. 2d 542, 96 S. Ct. 584. At this ;point, justice delayed

is justice denied. Johnson, 917 F.2dat 1285.

C. That Adequate Relief Cannot Be Obtained In Any Other

Form Or From Any Other Court.

Petitioner has sought relief in the First Circuit Court of

Appeals, where the current certificat&'f appealability has been

pending unreasonably for fourteenrnonths by filing a Rul33

motion of the Fed. R. App. P. requesting clarification or a

conference regarding the certificate of appealability, but two

and half months later the court has not took action or made a

decision on either pending motion.

The Cirduit Court in the district is the highest court of

original jurisdiction, Kendall, supra, 12 Peters at 526, 9 L. Ed.

1181, and action was already pursued by the Petitioner to

stimulate a decision on the certificate of appealability from

the court of appeals but nothing has transpired as of yet, so

Petitioner is left with one last option and that is to seek

assistance from this Court to intervene and direct the court of

appeals to rule on the certificate of appealability. This Court

has reiterated that "the rule that this Court has power to issue.

a mandamus, in the exercise of its appellate jurisdiction, and

that the writ will lie in a proper case to direct a subordinate

Federal Court to decide a pending cause." Insurance Coo v.

Comstock, supra, 83 U.S. (16 Wall) at 270, 21 L. Ed. 493; Thermtron,

supra, 423 U.S. at 352, 46 L. Ed. 2d 542, 96 S. Ct. 584; Will v. Calvert

Fire Ins. Co., 437 U.S. 655, 662, 57 L. Ed. 2d 504, 98 S. Ct. 2552(1978).

Petitioning the court of appeals for mandamus relief against

itself would be 'asinine' and pointless regarding the delay.

As there is no other form or court to request assistance

and relief from, Petitioners last resort to end this unnecessarily prolong period of waiting on a ruling is within this Court's

overseeing jurisdiction. This Court also has a significant

interest in supervising the administration of the judicial system.

See this Court's Rule 10(a)(the Court will consider whether the

courts below so far departed from the accepted and usual course

of judicial proceedings

as to call for an exercise of this

Courts supervisory power"). ):. Holl ingsworth v

Perry, 558 U.S. 183,

196 2 130 S. Ct. 705 9 175 L. Ed. 2d 657(2010). The Courts interest in

ensuring compliance with proper rules of judicial administration

is particularly acute when those rules relate to the integrity of

judicial processes. Ibid.

It has been recognized by this Court for the better part of

almost two centuries that when a court has lawful jurisdiction on

a matter it is to exercise that jurisdiction when it is obligated

to do so. This Court has acknowledged this point on multiple

rulings in the past that federal courts have a strict duty to

exercise the jurisdiction that is conferred upon them by Congress.

See e.g. Colorado RiverWater Conservation Dist. v. United States,

424 U.S. 800, 821, 47 L. Ed. 2d 483 9 96 S. Ct. 1236(1976)("[F]ederal

courts have a'virtually unflagging obligation

...

to exercise the

jurisdiction given them"'); England ye Louisiana Bd. of Medical

Examiners, 375 U.S. 411, 415, 11 L. Ed. 2d 440, 84 S. Ct. 461(1964)

("When a federal court is properly appealled to in a case over

which it has by law jurisdiction, it is its duty to take such

jurisdiction '")(quotirigWillcoxv. Consolidated Gas Co., 212 U.S. 19,

409 53 L. Ed. .382, 29 S. Ct, 192(1909)); Cohens vi Virginia, 6 Wheat 264,

404, 5 L. Ed. 257(1:821) (Federal courts have no more right to

decline the exercise of jurisdiction which is given, than to

usurp that which is not"). Quackenbushv. Allstate Ins. Co., 517 U.S.

706, 716, 135 L. Ed. 2d 1, 116 S. Ct. 1712(1996). By the court of

appeals not ruling on Petitioner's certificate of appealability

in a reasonable time frame and choosing not to exercise the courts

jurisdiction authorized and peruiissible.by law, the court of

appeals has disregarded the law it has a obligation to maintain

and to respect the rights of Petitioner as well.

Petitioner is asking

his Court to uphold the law the court

of appeals has ignored thus far and enforce the rights of this

Petitioner through issuing the writ of mandamus as no other

avenue is there available for Petitioner to pursue or utilize. The

perfect reason presently exist in Petitioner's case to use the

mandamus as "it is not to "control the decision of the [] court,"

but rather merely to confine the lower court to the sphere of it's

discretionary power". Willy. United States, 389 U.S. 90 9 1049 19L. Ed.

2d305, 88S. Ct. 269(1967).

CONCLUSION

Therefore, as Petitioner as stated in the above cited reasons

based on facts and law, that "a majority of the Court will vote to

grant mandamus relief" to Mr. Graham as having the solid belief he

has satisfied the three required conditions for the writ of

mandamus to issue bythis Court, and a failure to see Petitioner

point of view on this matter has the potential "likelihood that

irreparable harm will result from the denial of the mandamus, also

calling into question the fairness, integrity, and public reputation

of the judicial proceedings. Petitioner respectfully request that

this Court grant the writ of mandamus and direct the United States

Court of Appeals for the First Circuit to take action on the

Petitioners certificate of appealability within thirty (30)

days to issue a decision.

Date: October 18, 2018

Respectfully submitted,

Is!

Damon Grihth, In propIiersona

Fed. Reg. No 13787014

FMC Devens

Post Office Box 879

Ayer, Massachusetts

01432

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