Petition for Writ of Certiorari — Donald James Anson, Petitioner v. United States

Supreme Court briefJan 31, 2019

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IN THE

SUPREME COURT OF THE UNITED STATES

FILED

FEB 12019

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OFFICE OF THE C

PETITIONER

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(Your Name)

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RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

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

PETITION FOR WRIT OF CERTIORARI

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(Your Name)

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(Address)

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RECEIVED

FEB - - 5 2019

OFFICE OF THE CLERK

SUPREME COURT, U.S.

QUESTION(S) PRESENTED

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LIST OF PARTIES

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

[1 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:

TABLE OF CONTENTS

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

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

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

STATEMENTOF THE CASE............................................................................................

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

CONCLUSION....................................................................................................................

INDEX TO APPENDICES

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX 0

APPENDIX E

APPENDIX F

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TABLE OF AUTHORITIES CITED

CASES

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STATUTESAND RULES

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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

4 For cases from federal courts:

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

the petition and is

[I reported at

; or,

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

1)4 is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

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

is unpublished.

H For cases from state courts:

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

Appendix

to the petition and is

; or,

[ I reported at

has

been

designated

for publication but is not yet reported; or,

is unpublished.

The opinion of the ___________________________________ court

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.

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JURISDICTION

For cases from federal courts:

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

was

__________

[I No petition for rehearing was timely filed in my case.

D4 A timely petition for rehearing was denied by the United States Court of.

11 / /1

Appeals on the following date:

, and a copy of the

order denying rehearing appears at Appendix P

[1 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).

{ I 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

[I 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 ifie 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. § 1257(a).

STATEMENT OF THE CASE

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REASONS FOR GRANTING THE PETITION

This petition should be granted, and the case remanded back to the Court of Appeals, in the

interest of justice and fairness and to demonstrate that the Federal Court System still cares

about, and wants to maintain, it's credibility and integrity.

I am no lawyer, but even I can see that it is a huge injustice for the Court of Appeals to

dismiss an appeal BEFORE the petitioner even has a chance to state the reason he is appealing

and BEFORE the petitioner can present the facts and reasoning that he feels supports that

appeal.

The Court of appeals dismissed the appeal -site unseen- stating "it lacks an arguable basis

either in law or in fact" (order of the appellate court, appx. A). How could it make such a ruling

when it never allowed the petitioner to file it? Was the Court of Appeals formed just to rubberstamp the District Court's rulings without any review or was it formed to provide a

'meaningful' review Of those rulings.

BASIS UNDER LAW

The petitioner was attempting to appeal a dismissal of his law suit which the District

Court based on a 'credibility determination' regarding to two versions of events that led to the

underlying injury. The first, which the District Court ruled to be the 'credible' one, consisted of

events occurring when the plaintiff was the ONLY inmate being transported at around NOON on

4/13/05. The second version, which the District Court found not to be credible consisted of

events occurring when the plaintiff was transported WITH OTHER INMATES at around EIGHT

O'CLOCK on 4/13/05'

The petitioner fully understands that credibility determinations are the province of the trial

judge, see Fujitsu Ltd. -V- Federal Express Corp., 247 F.3d 423 (2nd Cir. 2001), however he also

understands that this Court, Anderson -V- Bessemer City, 470 us 564, 105 s.ct 1504, 84 L.ed 2d

518 (1985) said:

"This is not to suggest that the trial judge may insulate his [her] findings

from review by denominating them as credibility determinations, for factors

factors other than demeanor and inflection go into the decision whether or

not to believe a witness. Documents or other objective evidence may contradict the witness' story. Where such factors are present the Court of appeals

may well find clear error even in a finding based on a credibility determination.

See eg. US -v- US Gupsum Co., supra at 396" Anderson, 470 us at575-576

The instant case falls squarely under Anderson. The "logs" from the prison which the

petitioner was being transported format the time of the injury clearly show that he left

Receiving and Discharge (R+D) at 7:55am which supports the plaintiffs version of an EIGHT

O'CLOCK departure and not the NOON departure the District Court accepted as more credible.

In addition the R+D log was supported by the prison's Population Control log which also showed

an 8:05am departure of the plaintiff in the US Marshal's custody. Both of these prison "log

book" entries were submitted as trial evidence by the Government itself. Not only did both of

the independent "logs" show that the plaintiff left the facility 7:55am as his version claimed but

they clearly showed that NO inmates at all left the facility between 8:05am and midnight on the

day, in question which shows that the "around NOON" departure is highly implausible, if not

impossible. If there is one thing prisons are very careful about its keeping track of inmates

especially when they leave the facility. There were also records of prisoner 'counts' and 'meal

counts' to support the "log" entries and contradict the version of events the District Court

found to be the "credible" one.

In addition there was a third "log" entered as evidence, again by the defense itself, that

showed the plaintiff was placed on an early wake-up list, and escorted from his cell block to R+D

at 6:55am, which supports the other two log entries. Not only that, but in the version of events

the District Court found to be the "credible" one, the defense claimed that the whole reason

that the plaintiff was transported ALONE at @ NOON was that the Marshals did not place the

plaintiff on the 'transport list' until after the transport team reached the courthouse around

9:00

9:30am on 4/13/05. This casts even more doubt on that version of events because it was

testified to that it is the Marshals who notify the prison (at least a day ahead) of who the prison

needs to have ready for transport and when. So in the version accepted by the District Court

the Marshals would have to of notified the prison at least a day ahead of 4/13/05, (that's the

only way plaintiff would be put on 'early wake-up' or be taken to R+D) but would have to have

forgotten to notify the transporting Marshals. That is unlikely, at best, and goes against the

"presumption of regularity" the Government so often relies on in so many criminal cases.

It should also be noted that the "Logs" also show that there were multiple inmates that left

in the Marshal's custody that morning which also directly contradicts the 'ONLY' inmate version

the District Court found to be "credible".

There are several other problems with the version the District Court found to be 'credible'.

They include contradictory statements in other documents submitted to the court (different

judge) and conflicting statements in interrogatories among others. Not to mention things like

the lies made by the Defense in its "Findings of Fact" such as "Anson [petitioner] was found

guilty of perjury" (doc 224, page ii) or claims during the trial that the petitioner had a history/

habit of filing law suits.([ never filed a law suit prior to this injury, which is in the record (doc

128-1 page 22-24)

Oddly the District Court Judge made no mention of the "logs" in her findings which also

raises a different reason for appellate review. In Locurto -v- Giulini, 447 F.3d 159,181 (2nd

cir.2000) the Court said:

"Similarly, we have found clear error where, for example, 'the trial court

incorrectly assessed the Probative value of the various pieces of evidence

leading it to rely on speculation, and where the Court failed to weigh all the

relevant evidence before making its factual findings" id (citing United

States -v- Rizzo, 349 F.3d 94, 100-02 (2nd Cir.2003); Ortega -v- Duncan, 333

F.3d

102, 107 (2nd Cir. 2003))"

The Courts have previously said:

"Thus, reviewing for clear error allows an appellate court to examine the

District Court's Credibility determination in light of the evidence in the

record as a whole, in order to determine whether the credibility assessment

can be reconciled with the evidence." :Doe -v- Menefee, 391 F.3d 147 (2nd

Cir. 2004).

The Court of Appeals never even afforded the petitioner a chance to the present the

"evidence in the record" so that a clear error review could be made.

This Court has gone on the record as saying:

"For these reasons review of factual findings under the clearly erroneous

standard -with deference to the trier of fact- IS THE RULE, NOT THE

'EXCEPTION" Anderson -v-.Bessemer, 470 us 564 at 575

How can that statement be reconciled with the Court of Appeals dismissing an appeal

before itiseven made? And then refusing to 'reconsider' that decision when confronted with

the conflicting evidence and facts.

There would have been a lot more evidence to support my claim and version of the events

leading to my injury. However the defendants failed to preserve the prison security camera

footage that they agreed would have shown the incident at issue, but it was recorded over

despite the prison having been informed that there had been an accident. Or the fact that the

government denied the existence of the prison "logs" for many years, and once they were

produced the defendants claimed they could not locate the other inmates because they were

released or deported and the prison staff at issue had retired and could not be located. This

would not have been a problem had the defense (US Government) not delayed, despite

discovery orders, providing the requested information, and really no inmates were on parole or

in custody and the retired staff was not getting a government pension or Social Security?

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.