Petition for Writ of Certiorari — Dale Giles, Petitioner v. United States

Supreme Court, U.S.

FILED

APR 17 2019

OFFICE OF THE CLERK

Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

DALE GILES,

Petitioner,

—

UNITED

vs-

STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Eighth Circuit

(USDC No. 8:11-CV-00017 (D. of Neb.); USCA No. 18-1680)

PETITION FOR A WRIT OF CERTIORARI

Lk.

U

•' s:—.

Dale Giles,

pro se

Reg. No. 14443-047

Federal Correctional Complex

U.S. Penitentiary-Coleman 2

P.O. Box 1034

Coleman, FL 33521-1034

QUESTIONS PRESENTED

DID THE EIGHTH CIRCUIT COURT OF APPEALS

VIOLATE PETITIONER'S DUE PROCESS RIGHTS

TO FAIR NOTICE AND AN OPPORTUNITY TO BE

HEARD BY THE COURT'S PROCESS OF LEADING

PETITIONER TO BELIEVE THAT A DUE DATE FOR

HIS CERTIFICATE OF APPEALABILITY ("COA")

BRIEF WOULD BE ESTABLISHED AFTER THE RULING

ON HIS MOTION TO PROCEED IN FORMA PAUPERIS

BUT ABRUPTLY DENIED HIS IN FORMA PAUPERIS

MOTION AND COA SIMULTANEOUSLY?

DID THE EIGHTH CIRCUIT'S FAILURE TO FIND

THE DISTRICT COURT'S RESOLUTION WRONG OR

DEBATABLE FOR PURPOSES OF A CERTIFICATE

OF APPEALABILITY DETERMINATION CONTRAVENE

THE PRECEDENTS OF THE SUPREME COURT?

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-

LIST OF PARTIES

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

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TABLE OF. CONTENTS

Page:

Questions Presented .................................................... j

Listof Parties ........................................................ ii

Tableof Contents .............................................. ........ iii

Tableof Authorities...................................................iv

Decisions Below.........................................................1

Statement of Jurisdiction .............................................. 1

Constitutional and Statutory Provisions Involved.......................2

Statement of the Case .................................................. 3

LAW AND ARGUMENTS IN SUPPORT OF GRANTING CERTIORARI:

('Is'

DID THE EIGHTH CIRCUIT COURT OF APPEALS

VIOLATE PETITIONER'S DUE PROCESS RIGHTS

TO FAIR NOTICE AND AN OPPORTUNITY TO BE

HEARD BY THE COURT'S PROCESS OF LEADING

PETITIONER TO BELIEVE THAT A DUE DATE FOR

HIS CERTIFICATE OF APPEALABILITY ("cDA")

BRIEF WOULD BE ESTABLISHED AFTER THE RULING

ON HIS MOTION TO PROCEED IN FORMA PAUPERIS

BUT ABRUPTLY DENIED HIS IN FORMA PAUPERIS

MOTION AND COA SIMULTANEOUSLY' .....................9

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DID THE EIGHTH CIRCUIT'S FAILURE TO FIND

THE DISTRICT COURT'S RESOLUTION WRONG OR

DEBATABLE FOR PURPOSES OF A CERTIFICATE

OF APPEALABILITY DETERMINATION CONTRAVENE

THE PRECEDENTS OF THE SUPREME COURT' ...............12

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

Index to Appendices:

Appendix A Fed.R.Civ.P. 60(b) Motion for Relief from Final Judgment

Appendix B District Court Denial of Rule 60(b) Motion (construed as 28 U.S.C. §2255)

Appendix C Notice of Appeal

Appendix D Eighth Circuit Court of Appeals Denial of Certificate of Appealability

Appendix E Order Denying Petition for Panel Rehearing

Appendix F Mandate of the Eighth Circuit Court of Appeals

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TABLE OF AUTHORITIES.

Cases:

U.S. Supreme Court

Page:

ARMSTRONG v. MANZO, 380 U.S. 545 (1965)

CLEVELAND BD. OF EDUC. v. LOUDERMILL, 470 U.S. 532 (1985)

OJOTER & GELL v. HARTMAX CORP., 496 U.S. 384 (1990)

DAY v. McDONOUGH, 547 U.S. 198 (2006)

ERICKSON v. PARDUS, 551 U.S. 89 (2007)

GRANNIS v. ORDEAN, 234 U.S. 385 (1914)

GONZALEZ v. CROSBY, 545 U.S. 524 (2005)

HAINES v. KERNER, 404 U.S. 519 (1972)

XJN v. UNITED STATES, 518 U.S. 81 (1996)

MILLER-EL v. COCKRELL, 537 U.S. 322 (2003)

MOORE v. CLEVELAND, 431 U.S. 494 (1977)

SLACK v. MCDANIEL, 529 U.S. 473 (2000)

UNITED STATES v. ADDONIZIO, 442 U.S. 178 (1979)

11

11

18

13, 17

1

111

13, 15, 16

1

18

14

11

14

16

Federal:

BEAR STOPS v. UNITED STATES, 339 F.3d 777 (8th Cir. 2003)

DYAB v. UNITED STATES, 855 F.3d 919 (8th Cir. 2016)

MARTINEZ v. UNITED STATES, 423 Fed. Appx. 650 (8th Cir. 2011)

SANDUSKY WELLNESS CrR. LLC v. MEDWX SCI., INC.,

821 F.3d 992 (8th Cir. 2016)

SUNBEAR v. UNITED STATES, 644 F.3d 700 (8th Cir. 2011)

UNITED STATES v. APFEL, 97 F.3d 1074 (8th Cir. 1996)

UNITED STATES v. PARKER, 762 F.3d 801 (8th Cir. 2014)

UNITED SITES v. WEILAND, 284 F.3d 878 (8th Cir. 2001)

16

15

17

18

16

16

11

18

Statutes & Rules:

18 U.S.C. §922(g)(1)

18 U.S.C. §924(c)

21 U.S.C. §841(a)(1)

21 U.S.C. §846

28 U.S.C. §1746

28 U.S.C. §2253(c)(2)

28 U.S.C. §2255

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

Fed.R.Crim.P. 48(a)

Fed.R.App.P. 22(b)

4

4

4

4

18

2

6, passim

3, passim

3, passim

14

U.S.Constitution:

Fifth Amendment

2, passim

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DECISIONS BELOW

The Opinion of the United States Court of Appeals for the Eighth

Circuit denying Mr. Giles's Application for a Certificate of Appealability

("COA") appears at Appendix D, and is unpublished.

The Judgment of the United States District Court for the District of

Nebraska appears at Appendix B, and is unpublished.

STATEMENT OF JURISDICTION 11

The decision of the United States Court of Appeals for the Eighth

Circuit denying Mr. Giles's Application for a Certificate of Appealability

was filed on August 29, 2018. SEE: Appendix D

A subsequent Petition for Panel Rehearing was denied on November 19,

2018. SEE: Appendix E SEE ALSO: Apperxli F (Mandate)

The instant petition is timely filed because, prior to the 90-day

deadline following the denial of the Petition for Panel Rehearing, Mr.

Giles filed a Motion for an Extension of Time to File a Petition for a

Writ of Certiorari with the Supreme Court. On March 8, 2019, Justice Gorsuch

granted the motion, extending the time for Giles to file his petition to

and including April 18, 2019. Mr. Giles affirms that he timely mailed the

instant Petition for a Writ of Certiorari on April 17, 2019. SEE: PROOF OF

SERVICE and AFFIDAVIT OF MAILING submitted herewith.

This Honorable Court has jurisdiction to entertain this cause pursuant

to 28 U.S.C. §1254(1).

1/ Giles, proceeding pro se, respectfully asks the Court to liberally construe

his pleadings so as to best achieve substantial justice. HAINES v. KERNER,

404 U.S. 519, 520 (1972); ERICKSON v. PARDUS, 551 U.S. 89, 94 (2007).

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Fifth Amendment to the United States Constitution,

as well as the statutory provision of 28 U.S.C. §2253(c) (2). Each of which,

state:

AMENDMENT V

"No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

grand jury, except in cases arising in the land or naval forces

or in the militia, when in actual service in time of war or

public danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness

against himself, nor deprived of life, liberty, or property

without due process of law; nor shall private property be

taken for public use, without just compensation."

28 U.S.C. §2253(c)(2)

"A certificate of appealability may issue under paragraph (1)

only if the applicant has made a substantial showing of the

denial of a constitutional right."

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STATEMENT OF THE CASE

A.) Nature of the Case.

This case involves important constitutional questions related to a

pro se criminal defendant's Fifth Amendment due process rights of fair

notice and a meaningful opportunity to be heard. Petitioner Giles's due

process rights are submitted to have been denied through processes favored

by the Eighth Circuit Court of Appeals and the U.S. District Court for the

District of Nebraska.

First, while awaiting the Eighth Circuit's decision of his pending

Motion for Leave to Proceed In Forma Puaperis on Appeal, and having clearly

expressed his intent to the Court of wanting to file a brief in support of

a requested Certificate of Appealability ('COA"), the Eighth Circuit abruptly

denied the in forma pauperis motion and a COA simultaneously. The Eighth

Circuit never provided Giles with any notice or an opportunity to be heard.

Second, the Eighth Circuit, as a result of this erroneous process,

failed to find wrong or debatable for purposes of a COA, that the record

evidenced apparent error by the District Court. Specifically, without any

notice of its intent to do so, the District Court recharacterized Giles's

Fed.R.Civ.P. 60(b) motion as a 28 U.S.C. §2255 motion, and simultaneously

dismissed the motion as untimely without giving Giles any opportunity to

be heard. Additionally, the District Court's determination was erroneous

because the Rule 60(b) motion raised only a procedural challenge that is

not even cognizable in a Section 2255 motion. Also apparent was the debatability

of the District Court's decision that the utilization of Fed.R.Crim.P. 48(a)

to dismiss counts of conviction in the post-conviction context was appropriate.

Such apparent errors warranted a COA so that they could be properly considered

in an appeal.

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This case is compelling because it raises significant questions of

federal law, as well as issues of importance beyond the particular facts

and parties involved, that touch closely the fair administration of justice.

Criminal defendants and other litigants have a reasonable expectation that

the due process protections afforded them by the Constitution and this

Court's precedents will be abided by and enforced. Both the public and

criminal defendants alike have a substantial interest in the congruent and

consistent application of this Court's precedents, establishing federal law,

amongst our domestic courts. Based upon the point and authorities set forth

herein, Petitioner Giles respectfully beseeches this Honorable Court to

grant certiorari review and vacate the prior judgment.

B.) Salient Summary of Background Facts.

Following a jury trial in the U.S. District Court for the District

of Nebraska, Giles was convicted of COUNT 1: Conspiracy to Distribute or

Possess w/inent to Distribute 1,000 Kilograms or more of Marijuana, 21 U.S.C.

§841(a)(1) and §846; COUNTS 2, .j and 7: Using, Carrying, or Possessing a

Firearm During and in Relation to a Drug Trafficking Crime, 18 U.S.C. §924(c);

COUNTS 3, 5 and 8: Felon in Possession of a Firearm, 18 U.S.C. §922(g)(1);

and COUNT 6: Possessing at least 100 Kilograms of Marijuana w/intent to

Distribute, 21 U.S.C. §841(a)(1).

The District Court subsequently imposed the following sentences: LIFE

imprisonment on COUNTS 1 and 6, which were grouped; 120 months on COUNTS 3,

5 and 8, to be served concurrently with the LIFE sentence; 120 months on

COUNT 2, to be served, consecutively to all other counts; 300 months on

COUNT 4, to be served consecutively to all other counts; and 300 months on

COUNT 7, to be served consecutively to all other counts.

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Big

Giles appealed to the Eighth, Circuit Court of Appeals. Appeal No.

08-1378 . On March 20, 2009, the Eighth Circuit AFFIRMED Giles's conviction

and sentence. Significantly, however, the Eighth Circuit had determined that

the jury instruction corresponding to the 18 U.S.C. §924(c) offense under

COUNT 7 constituted reversible plain error. Although the error under COUNT 7

applied equally to Giles, only his codefendant, Charmar Brown, was immediately

advantaged by the ruling because Giles's attorney failed to brief the issue.

Petition for Writ of Certiorari

Thereafter, Giles filed a timely Petition for a Writ of Certiorari

which, in pertinent part, sought Supreme Court review of his claim that his

counsel had rendered ineffective assistance. SEE: GILES v. UNITED STATES,

No.09-5455 , Petition, at p. 8-13. Significantly, in the Brief of the

United States in Opposition to the petition, then Solicitor General, Elena

Kagan, now Justice Kagan of the Supreme Court, detailed the COUNT 7 §924(c)

error, at p. 4-5, as well as the Eighth Circuit's finding of plain error,

at p. 7-8, and acknowledged that Giles had been equally affected

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but his

counsel failed to raise the argument at trial or on appeal. Brf. of U.S., at

p. 8-9. Notably, Solicitor Kagan advised that:

"Petitioner's proper avenue for seeking relief is to file

a motion under 28 U.S.C. §2255[.] In such a motion, petitioner

can rely on the analysis of the court of appeals to establish

instructional error and prejudice. He can also seek to show

ineffective assistance of counsel H as a freestanding claim

for relief[.]"

This important mentioning aside, the Petition for a Writ of Certiorari was

denied by the Supreme Court on January 19, 2010. 558 U.S. 1150, 130 5 Ct. 1135.

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28 U.S.C. §2255 Motion

On January 19, 2011, Mr. Giles filed his Section 2255 motion. Giles

argued, inter alia, that his counsel had rendered ineffective assistance

by failing to object to legally erroneous jury instructions in relation to

COUNT 7, a firearm offense in violation of 18 U.S.C. §924(c). Giles also

referenced Solicitor Kagan's advisements for the presentation of this claim.

SEE: (Mem. of Law in Supp. of §2255, at p. 4-7). The District Court's initial

assessment of Gilest s §2255 motion acknowledged the jury instruction error

of CXXJNI' 7 to be an ineffective assistance of counsel claim for failure to

object at trial or raise the issue on direct appeal. SEE: (Dist. Crt. Order,

DOC. 803-1, at p. 6-7, 10). Case No. 8:11-CV-00017 (D. of Neb.)

On June 30, 2011, the Government filed a Motion for Dismissal of Counts,

pursuant to Fed .R Crim. p. 48(a), requesting "leave to dismiss, without prejudice,

.

Count VII of the Fifth Superseding Indictment (filing #298), as relates to

the Defendant, Dale Giles." (emphasis added).

On November 10, 2011, the District Court denied Mr. Giles's §2255

motion, (DOC. Nos. 839, 840), but granted the Government's motion to dismiss

COUNT 7, as reflected by the entry of an AMENDED judgment on November 15,

2011. (DOC. 841).

A subsequent application for a Certificate of Appealability, as well

as a Petition for a Writ of Certiorari to the supreme Court were denied.

Fed.R.Civ.P. 60(b)(6) Motion

In August 2017, Giles filed a Fed.R.Civ.P. 60(b)(6) Motion for Relief

from the Final. Judgment Order Denying his 28 U.S.C. §2255 Motion by the

District Court. SEE: (1ppedix A).. Giles urged that the District Court's

granting of the Government's motion to dismiss COUNT 7, pursuant to

FecLR.rijn.P. 48(a), constituted a defect in the integrity of the Section

2255 proceedings that was not an appropriate procedure in the post-conviction

context since the procedural ruling had the force and effect of precluding

Giles from obtaining a merits, determination of his ineffective assistance

of counsel claim(s) related to COUNT 7. Giles asked the District Court

to vacate the prior Section 2255 judgment to allow for a merits determination

that was wrongly precluded.

On November 29, 2017, the District Court issued a Memorandum and

Order. (DOC. 985). SEE: (Appendix B). The District Court, without any notice

of its intent or any opportunity to be heard, summarily recharacterized

Giles's Rule 60(b)(6) motion as a 28 U.S.C. §2255 motion. (Mem. Order, at 1).

The District Court then concluded, without any analysis of the Rule 60(b) (6)

procedural challenge, that the "2255" was untimely and denied it. (Mem.

Order, at 3). Giles then filed a timely Notice of Appeal on January 22, 2018.

SEE: (Appendix C).

Application for a Certificate of Appealability

Giles sought a Certificate of Appealability from the Eighth Circuit

Court of Appeals so that he could present his Fed.R.Civ.P. 60(b)(6) motion

issues and and the propriety of the District Court's resolution in an appeal.

Appeal No.18-1680

.

Following the filing of his Notice of Appeal, the

Eighth Circuit informed Giles that he had to pay the filing fee or submit

a Motion for Leave to Proceed In Forma Puaperis. Giles submitted an in forma

pauperis motion. On several occasions, both in phone calls. to the Clerk and

in letters to the Court, Giles clearly expressed his desire to file a

Application for a Certificate of Appealability brief setting forth his

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showing that the resolution of the District Court was wrong or debatable

for purposes of warranting a Certificate of Appealability ("COA"), and the

pertinent points and authorities in support. Giles never received any notice

from the Eighth Circuit that his COA brief should be filed prior to a

ruling on his in forma pauperis motion to address the filing fee.

While awaiting the Eight Circuit decision on the in forma pauperis

motion, and anticipating that a due date for his COA brief would then be

given, the Court abruptly issued an Order simultaneously denying Giles's

Motion for Leave to Proceed In Forma Pauperis and denying the issuance

of a (DA. SEE: (Appendix 2, Order, August 29, 2018). The Eighth Circuit

did not give any reason whatsoever for the decision. Giles then filed

a Petition for Panel Rehearing, but it was summarily denied on November 19,

2018. SEE: (Appendix E). The Mandate then issued on November 27, 2018. SEE:

(Appendix F). Giles never received any notice of the Court's intent to

simultaneously decide his case with the in forma pauperis determination or

that his COA brief was expected of him by the Court

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nor did he ever

have a meaningful opportunity to be heard through the filing of his COA

brief.

The instant Petition for a Writ of Certiorari now timely follows.— /

2/ On March 8, 2019, Justice Gorsuch granted Giles' s Motion for Extension

of Time, requiring Giles to file his petition on or before April 18, 2019.

SEE: PROOF OF SERVICE and AFFIDAVIT OF MAILING submitted herewith.

ME

Law and Argument in Support of Granting Certiorari

QUESTION ONE

DID THE EIGHTH CIRCUIT COURT OF APPEALS

VIOLATE PETITIONER'S DUE PROCESS RIGHTS

TO FAIR NOTICE AND AN OPPORTUNITY TO BE

HEARD BY THE COURT'S PROCESS OF LEADING

PETITIONER TO BELIEVE THAT A DUE DATE FOR

HIS CERTIFICATE OF APPEALABILITY ("COA")

BRIEF WOULD BE ESTABLISHED AFTER THE RULING

ON HIS MOTION TO PROCEED IN FORMA PAUPERIS

BUT ABRUPTLY DENIED HIS IN FORMA PAUPERIS

MOTION AND A COA SIMULTANEOUSLY?

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Petitioner Giles respectfully submits that the Eighth Circuit Court

of Appeals process for the consideration of a pro se litigant's application

for a Certificate of Appealability,("cDA"), is constitutionally defective

because it creates a situation where some pro se litigants, like himself,

are erroneously deprived of the opportunity for the Court to consider their

WA brief on the issues. This occurs simply because the Eighth Circuit does

not inform a pro se petitioner of the due date for the WA brief to be

filed with the Court. Petitioner Giles experience makes apparent the denial

of due process that results for many pro se litigants.

Following the District Court's denial of Giles's Fed.R.Civ.P. 60(b)

motion, (Appendix B), he filed a timely Notice of Appeal. (Aerx1ix C). The

Eighth Circuit Court of Appeals acknowledged the filing of the Notice of

Appeal in due course and advised Giles that the filing fee must be paid or

he must file a Motion for Leave to Proceed In Forma Puaperis. Giles timely

filed his Motion for Leave to Proceed In Forma Puaperis. To this point

Giles was never informed of any scheduled deadline for him to file his WA

in

brief with the Court. Following Giles's filing of his Motion for Leave to

Proceed In Forma Pauperis on April 24, 2018, Giles affirms that he waited

for the Eighth Circuit to rule on his in forma pauperis status and notice

of the established deadline for the filing of his COA brief. Giles's prior

experience with an appeal to the Eighth Circuit. was that a briefing schedule

was set by the Court after the filing fee has been paid. Nothing from the

Court had indicated that his COA brief would be treated any differently.

After waiting for more than a month to hear from the Court, Giles

affirms that he wrote to the Court to check on the status of the in forma

pauperis motion and specifically expressed his desire to file his COA brief

with his issues for the Court. Giles affirms that he also wrote another

motion requesting a definite statement of the Court ori the status of the

in forma pauperis motion and his intention to file a OJA brief. Giles affirms

that he also called the Eighth Circuit Clerk to inquire on at least two

separate occasions to inquire about the in forma pauperis status and his

intention to file his COA brief. At each of these inquiries he was told

simply that the in forma pauperis motion was still pending and that he would

be notified of the decision. Giles affirms that he was specifically told by

the Clerk of the Court that he would be given an opportunity to file his

COA brief with the Court after it determined his in forma pauperis status.

Because this is indeed the process Giles had experienced on a prior appeal

he had no cause to doubt the Clerk's advisement of the Court's procedure.

Abruptly, however, on August 29, 2018 the Eighth Circuit issued an

Order in which it simultaneously denied Giles's in forma pauperis motion

and any COA. No reason was given. SEE: (Order, appendix D). Dismayed and

confused, Giles filed a Petition for Panel Rehearing, which was summarily

denied on November 19, 2018. SEE:

,

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Appendix E).

Inherent within the Fifth Amendment is the essential principle that

the constitutional guarantee of due process requires fair notice and an

opportunity to be heard. U.S. Constitution, Amend. V SEE: CLEVELAND BD. OF

EDUC. v. LOtJDERMILL, 470 U.S. 532, 546 (1985)("The essential requirements

of due process

...

are notice and an opportunity to respond."); MCXJRE v.

EAST CLEVELAND, 431 U.S. 494, 542 (1977)("The emphasis of the Due Process

Clause is on 'process."); GRPNNIS v. ORDEAN, 234 U.S. 385, 394 (1914)("A

fundamental requirement of, due process is the opportunity to be heard.");

UNITED STATES v. PARKER, 762 F.3d 801, 810 (8th Cir. 2014)("Our justice

system rests on a foundation of fair notice.").

Equally an essential principle of fair notice and an opportunity to

be heard is that the notice and opportunity occur at a meaningful time and

in a meaningful manner. SEE: ARMSTRONG v. MANZO, 380 U.S. 5451 552 (1965).

Giles respectfully urges that the Eighth Circuit Court of Appeals process

for pro se litigants to file a COA brief with their issues violates due

process simply because it does not routinely notify them of the deadline

by which they must do so. This result in a situation where pro se litigants,

like Mr. Giles, end up losing the opportunity to present their issues in a

(DA 'brief altogether because the Eighth Circuit rules on their case based

soley on the Notice of Appeal. Although this circumstance is easily remedied

by the Eighth Circuit providing clear notice of a CXJA brief deadline, the

Court is not doing so. The failure to provide notice of a fixed deadline in

the COA brief context is inconsistent with the way the Eighth Circuit handles

a pro se prisoner's direct appeal. In that context, the Eighth Circuit does

provide notice of a brief deadline after it rules on a motion to proceed in

forma pauperis. The Eighth Circuit Court of Appeals process of not notifying

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a pro se prisoner of an established deadline for their COA brief is also

in direct conflict with the established procedure of other courts of appeals

that routinely inform a pro se prisoner of the deadline to file their COA

brief

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and do so even after they determine the pro se litigant's in forma

pauperis status.

Petitioner Giles respectfully beseeches this Court to grant certiorari

review of the Eighth Circuit Court of Appeals favoring a COA briefing process

that does not afford adequate notice of a clear deadline for the filing of

the COA brief, and unreasonably risks the pro se prisoner's loss of the

opportunity to be heard altogether. This due process issue affects all

pro se prisoners in the Eighth Circuit's jurisdiction and is worthy of

the Supreme Courts attention based upon the experience of Petitioner Giles.

Giles asks that the Court would grant his Petition for a Writ of Certiorari,

vacate the prior judgment of the Eighth Circuit Court of Appeals, and

remand this matter to allow him a fairopportunity to file his COA brief

for a full consideration de novo by the Eighth Circuit Court of Appeals.

QUESTION TWO

DID THE EIGHTH CIRCUIT'S FAILURE TO FIND

THE DISTRICT COURT'S RESOLUTION WRONG OR

DEBATABLE FOR PURPOSES OF A CERTIFICATE

OF APPEALABILITY DETERMINATION CONTRAVENE

THE PRECEDENTS OF THE SUPREME COURT?

Although Mr. Giles was not afforded an opportunity to present his

Certificate of Appealability ("COA") brief issues for consideration, the

Eighth Circuit Court of Appeals Order indicates that the Court nevertheless

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conducted a review of the record and determined that any COA is denied. SEE:

(Order, Appendix D). The Eight Circuit never gave any reason for the denial.

Giles respectfully urges that the Eighth Circuit's denial of a COA is tantamount

to a violation or conflict with the Supreme Court's precedents because the

District Court's recharacterization of his Fed.R.Civ.P. 60(b) motion as a

28 U.S.C. §2255 motion

and then sua sponte dismissing it as untimely

-

-

was apparently wrong or debatable for purposes of a COA in light of GONZALEZ v.

CROSBY, 545 U.S. 524, 531, 532-533, 538 (2005) (holding that the necessity to

reopen the prior §2255 proceeding based on a defective procedural ruling

that precluded a determination of the merits is a most appropriate utilization

of Fed.R.Civ.P. 60(b)); DAY v. MCEXJNOUGH, 547 U.S. 198, 210 (2006)(holding

that before acting on its own initiative a court must accord the parties

fair notice and an opportunity to present their positions). In Giles's

case, the resolution of the District Court was so apparently contrary to

clearly established law that the Eighth Circuit's denial of a COA is itself

representative of a violation or conflict with existing Supreme Court precedents.

Giles's Fed.R.Civ.P. 60(b) claim and the District Court's resolution.

The arrival of Giles's case at the Eighth Circuit Court of Appeals

was preceded by his filing of a Fed.R.Civ.P. 60(b) motion in the District

Court. SEE: (Rule 60(b) Motion, Appendix A). In his Rule 60(b) motion, Giles

urged that the Court 's granting of the Government's motion to dismiss COUNT 7

through the utilization of Fed.R.Crim.P. 48(a) in the §2255 post-conviction

context constituted a defect in the federal habeas proceedings because the

procedural ruling had the force and affect of precluding a merits determination

of his ineffective assistance of counsel claim. (Rule 60(b) Mot., at 1, 6-13).

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The District Court resolved Giles's Rule 60(b) motion by sua sponte

recharacterizing it as a 28 U.S.C. §2255 motion

and sua sponte determined

-

that the Section 2255 motion was untimely and dismissed it. Significantly,

the District Court never gave Giles or the government any notice of its

intent to do either of these things, nor did it give the parties any opportunity to present their respective positions. SEE: (Order, Appendix B).

The District Court did not make any determination of the procedural utilization of Fed.R.Crim.P. 48(a) to dismiss COUNT 7 in the prior §2255 proceeding.

The Eighth Circuit's denial of a CDA violates Supreme Court precedents.

When the District Court has denied a motion under either 28 U.S.C.

§2255 or Fed.R .Civ .P. 60(b), the Petitioner may not appeal without first

obtaining a Certificate of Appealability ("COA"). Such a certificate may

issue "only if the applicant has made a substantial showing of the denial

of a constitutional right." 28 U.S.C. §2253(c)(2). SEE ALSO: Fed.R.App.P.

22(b). Under this standard, an applicant can make such a showing by demonstarting that jurists of reason would find the District Court's resolution

"wrong or debatable," or "that. jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further." SEE: MILLER-EL v.

cOcKRELL, 537 U.S. 322, 123 S.Ct. 1029, 1034 (2003)(citing SLACK v. McDANIEL,

529 U.S. 473, 484 (2000)). Purportedly applying these standards, the Eighth

Circuit's denial of a (DA is representative of a conflict with the Supreme

Court's precedents dictating that the District Court's resolutibn of Giles's

Rule 60(b) motion was apparently "wrong or debatable" so have to warranted

the issuance of a COA.

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The Eighth Circuit's denial of a COA in light of the District Court's

recharacterization of Giles's Fed.R.Civ.P. 60(b) motion as a Section 2255

motion is in conflict with the Supreme Court's decision in GONZALEZ v. CROSBY,

545 U.S. 524 (2005). In GONZALEZ, the Court held that a Rule 60(b) motion

that attacks a "defect in the integrity of the federal proceedings," or

that challenges a "procedural ruling that precluded a merits determination,"

will not be treated as a "second or successive" §2255 motion. Id., 545 U.S.

at 532-533, 538. It necessarily follows that, as in Giles's case, because

his Rule 60(b) motion only attacked a procedural decision of the District

Court's utilization of Fed.R.Crim.P. 48(a) to dismiss a count of conviction

that precluded a merits determination of his ineffective assistance of counsel

claim, the 60(b) motion could not be recharacterized as a "second or successive"

§2255 under GONZALEZ could not be a §2255 either. The whole point of GONZALEZ

is that the Rule 60(b) motion remains just that, a Rule 60(b) motion. Here,

Giles's Rule 60(b) motion fails squarely within the rubric of GONZALEZ because

it attacks only the Rule 48(a) procedural ruling that precluded a merits

determination. Giles does not attack at all the underlying conviction or

sentence.

The District Court's sua sponte recharacterization of Giles's Rule

60(b) motion as a Section 2255 motion was also apparently inappropriate

because his 60(b) motion did not even state a cognizable claim for purposes

of §2255(a). Giles's Rule 60(b) motion was totally a procedural challenge

to a prior §2255 proceeding, which does, not state a cognizable §2255 claim.

SEE: DYAB v. UNITED STATES, 855 F.3d 919, 922 (8th Cir. 2016)(holding Section

2255 is not the correct vehicle to raise a procedural argument and is not

cognizable in a Section 2255 motion). SEE ALSO: SLJNBEAR v. UNITED STATES,

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644 F.3d 700, 704 (8th Cir. 2011)(expiaining scope of §2255 motion is

an attack on a final conviction or sentence and severely limited

...

an

"error of law does not provide a basis for collateral attack unless the

claimed error constituted a fundamental defect which inherently results

in a complete miscarriage of justice.")(citing, UNITED STATES v ADtX)NIZIO,

442 U.S. 178, 185 (1979)); UNITED STATES v. APFEL, 97 F.3d 1074, 1076

(8th Cir. 1996)(same). "To prevail on a §2255 motion, the petitioner must

demonstrate a violation of the Constitution or the laws of the United States."

BEAR STOPS v. UNITED STATES, 339 F.3d 777, 781 (8th Cir. 2003). Here,

the limited scope of Section 2255 did not provide any vehicle for Giles

to have hoped to raise his Rule 60(b) purely procedural attack on the

District Court's permitting the use of Fed.R.Crim.P. 48(a). Giles's procedural

attack was apparently not cognizable under Section 2255. In sum, the

District court's recharacterization .of Giles's Rule 60(b) motion as a

Section 2255 motion

knowing that it was not cognizable

-

-

is shown

to have been "debatable or wrong" so as to have warranted a (X)A. Moreover,

under GONZALEZ, Giles's Rule 60(b) motion was not properly construed as a

Section 2255 motion in any event because it was a "true" 60(b) motion

attacking a "procedural ruling that precluded a merits determination."

With all due respect, the District Court recharacterization of Gilés's60(b)

motion as a §2255 is also somewhat disingenuous because it placed Giles

in an unnecessary "second or successive" posture when the 60(b) motion was

cognizable and Section 2255 was not. The Eighth Circuit's denial of a COA

in this instance is contrary to this Court's decision in GONZALEZ. It was

debatable or wrong for purposes of a COA that the District Court recharacterized

Giles's 60(b) motion as a §2255 motion, since his claim was plainly cognizable

under Rule 60(b) and not cognizable under §2255.

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The failure of the Eighth Circuit to have granted Giles a COA based

on the District Court's resolution of his Rule 60(b) motion is also in

conflict with the Supreme Court's precedent in DAY v. McDONOUGH, 547 U.S. 198,

210 (2006). The District Court's sua sponte recharacterization of Giles's

Rule 60(b) notion as a Section 2255 motion -and then sua sponte dismissing

the Section 2255 motion as untimely

violate the parties due process

-

rights of fair notice and an opportunity to be heard. In DAY, the Supreme

Court instructed that, before acting on its own initiative, a court must

accord the parties fair notice and an opportunity to present their positions.

Id., 547 U.S. at 210.

In Giles's case, the District Court never provided notice of its

intent to recharacterize his Rule 60(b) motion as a §2255 motion, nor that

it was intent upon dismissing the §2255 as untimely. This process favored

by the District Court, and unrecognized by the Eighth Circuit, was debatable

or wrong so as to warrant the issuance of a (X)A because it was contrary to

the Supreme Court holding in DAY, and violates the fundamental principles

of the Fifth Amendment right to due process. Significantly, in MARTINEZ v.

UNITED STATES, 423 Fed. Appx. 650 (8th Cir. 2011), the Eighth Circuit applied

DAY and granted a COA based upon a finding that the District Court erred in

dismissing the §2255 motion on timeliness grounds without first providing

the parties fair notice and an opportunity to be heard. The Eighth Circuit

granted a COA in MARTINEZ and remanded to the District Court. Notably, in

MARTINEZ the Eighth Circuit observed that timeliness of a §2255 motion is

not jurisdictional and may be waived by the Government, so that the parties

must be given notice and an opportunity±o present their positions.

5V

Giles further submits that the District Court's resolution of his

Rule 60(b) motion

recharacteri zing it as a §2255 motion and dismissing

-

as untimely without any notice of its intent or opportunity to be heard

-

amounted to an apparent abuse of discretion since these actions represent a

clear error of law. SEE: S2NDUSKY WELLNESS dR. LLC v. MEIYIOX SCI., INC.,

821 F.3d 992, 995 (8th Cir. 2016)(cit. omit.)("A district court abuses its

discretion when it makes an error of law."). CF. UNITED STATES v. WEIL1ND,

284 F.3d 878, 882 (8th Cir. 2001)(same)(citing KCXJN v. UNITED STATES, 518

U.S. 81, 100 (1996) ("A district court by definition abuses its discretion

when it makes an error of law.")); CCXJTER & GELL v. HARTMAX CORP., 496 U.S.

384, 405 (1990)(same). To the extent that the District Court's resolution

of Giles's motion contravenes the Supreme Court's decisions in GONZALEZ

and DAY, supra, the Eighth Circuit should have found it debatable as to

whether the District Court abused its discretion in committing an error of

law.

For these foregoing reasons, Giles respectfully submits that this

Court should grant certiorari review and remand this matter to the Eighth

Circuit Court of Appeals to permit it to consider his CDA brief de novo.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, Mr. Giles respectfully prays

this Court grants his Petition for Writ of Certiorari.

I, DALE GILES, declare under the penalty of

perjury, pursuant to 28 U.S.C. §1746, that

the foregoing is both true and correct.

Dated this 17th day of April

,

2019.

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RespegLay Submitted,

Da1Gflès,

Pro se

Reg. No. 14443-047

F-USP Coleman II

P.O. Box 1034

Coleman, FL 33521-1034