Petition for Writ of Certiorari — Sherman Alexander Lynch, Petitioner v. Shane Nelson
Supreme Court briefJun 20, 2019
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ORIGIN
IN THE
SUPREME COURT OF THE UNITED STATES
FILED
JUN 2 fl 2019
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SHERMAN ALEXANDER LYNCH, Petitioner
v.
SHANE NELSON, Respondent
ON PETITION FOR WRIT OF CERTIORARI TO
UNITED STATES COURT OF APPEALS FOR THE
TENTH CIRCUIT, CASE NO. 18-4174
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Sherman A. Lynch
OFN 64063
Central Utah Correctional Facility
P.O. Box 550
Gunnison, Utah 84634-0550
Petitioner, Pro se
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Petitioner is incarcerated and pro se without access to a law library or adequate
legal assistance.
QUESTIONS PRESENTED
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First Question: Whether the District Court erred when it held Lynch was not
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entitled to the “fundamental miscarriage of justice” exception under the Carrier
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standard1 was contrary to holdings established by the Supreme Court in Schlup v.
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Delo. 513 U.S. 278, 321, 324, 327-328, 331-332 (1975)?
Second Question: Whether the District Court erred when it did not hold that
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Lynch’s constitutional-jjmtiv-error2 claims, raised in initial-review collateral
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proceedings in a Utah State court “where there was no counsel” for Lynch, that
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were procedurally defaulted was contrary to holdings established by the Supreme
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Court in Martinez v. Ryan. 566 U.S. 1, 17 (2012)?
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Third Question: Whether the District Court erred when it made six (6) false
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statements of fact to deny Lynch the “fundamental miscarriage of justice” exception
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under the Carrier standard was contrary to the holdings established by the
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Supreme Court that “[d]ue process guarantees that fundamental fairness essential
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to the very concept of justice,” Lisenba v. CA. 314 U.S. 219, 236 (1941)?
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Fourth Question: Whether the District Court erred when it made a
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conclusion of law for summary judgment on the credibility of new evidence not
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presented at trial without an evidentiary hearing was contrary to holdings
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established by the Supreme Court in Schlup. supra, at 332?
Fifth Question: Whether the District Court erred when it failed to address
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allegations of eleven (11) false statements of fact or law as fraud on the court in
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Respondent/Appellee’s Motion to Dismiss Petition for Writ of Habeas Corpus was
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contrary to holdings established by the Supreme Court in Hazel-Atlas Glass Co. v.
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Hartford-Empire Co.. 332 U.S. 238, 246 (1944) (it “is a wrong against the
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Murray v. Carrier. All U.S. 478, 496 (1986) (“We think that in an extraordinary
case, where a constitutional violation has probably resulted in the conviction of one
who is actually innocent, a federal habeas court may grant the writ even in the
absence of a showing of cause for the procedural default”) (emphasis added).
2 Brady v. Maryland. 373 U.S. 83, 87 (1963) (where prosecutors unconstitutionally
withheld exculpatory evidence from the defense).
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institutions set up to protect and safeguard the public, institutions in which fraud
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cannot complacently be tolerated”)?
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Sixth Question: Whether the District Court erred when it denied Lynch’s
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three (3) requests for appointed counsel was contrary to the holdings established by
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the Supreme Court in Bounds v. Smith. 450 U.S. 817, 822 (1977) (‘counsel musts be
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appointed to give indigent inmates a “meaningful appeal” from their convictions’)
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(emphasis added)?
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Seventh Question: Whether the District Court erred when it denied Lynch’s
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request for the prison to provide a Law Library or an adequate Legal Assistance
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Program to inmates was contrary to holdings established by the Supreme Court in
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Lewis v. Casey. 518 U.S. 343, 351 (1996) (‘prison law libraries and legal assistance
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programs are the means for ensuring “a reasonably adequate opportunity to present
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claims for violations of fundamental constitutional rights to the courts.” \Bounds.
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430 U.S.], at 825’)?
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Eighth Question: Whether the District Court erred when it denied Lynch’s
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Constitutional right of access to the courts by not granting Lynch’s request for an
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order to not transfer Lynch to other correctional facilities was contrary to holdings
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established by the Supreme Court in Bounds. 430 U.S., at 821 (“It is established
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beyond doubt that prisoners have a constitutional right of access to the courts”).
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Ninth Question: Whether the District Court erred when it denied Lynch’s
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constitutional right of access to the courts by not granting Lynch’s request for an
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order to allow Lynch to purchase computer was contrary to holdings established by
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the Supreme Court in Bounds. supra?
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Tenth Question: Whether the Court of Appeals erred when, after being
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Briefed on the Federal issues of the case with citations to facts in the record and
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relevant legal authorities, it denied Lynch’s Application for Certificate of
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Appealability, (“COA”), without considering claims of violations of Federal rights
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raised in Lynch’s Brief that is reviewable under Chambers v. Baltimore & O.R. Co.,
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207 U.S. 142, 148 (1907) (“the Federal question was assumed to be in issue, was
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decided against the claim of Federal right, and the decision of the question was
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essential to the judgment rendered. This is enough to give this Court the authority
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to re-examine that question on writ of error”)?
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LIST OF PARTIES
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Andrew F. Peterson (10072)
Assistant Solicitor General
Sean R. Reyes (7969)
Utah Attorney General
160 East 300 South, Sixth Floor
P.O. Box 140854
Salt Lake City, Utah 84114-0854
Telephone: (801) 366-0180
Email: andrewneterson@agutah.gov
Respondent’s Counsel
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in
TABLE OF CONTENTS
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PAGE
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OPINIONS BELOW
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JURISDICTION
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CONSTITUTIONAL PROVISIONS INVOLVED
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LESS STRINGENT STANDARD.........................
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STATEMENT OF THE CASE
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I.
Nature of the Case
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II.
Course of Proceedings.......
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III.
Statement of the Facts.....
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A.
Due Process of Law.
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B.
Access to the Courts
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REASONS FOR GRANTING THE WRIT
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I.
District Court’s Order Denying “Fundamental Miscarriage of
Justice” Exception Was Contrary to Established Law.............
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II.
District Court’s Failure To Apply Martinez Was Contrary to
Established Law.........................................................................
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III.
District Court’s False Statements Were Contrary To Established Law.
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IV.
District Court’s Conclusion Of Law For Summary Judgment Was
Contrary To Established Law.....................................................................
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V.
District Court’s Failure To Address Eleven False Statements In
Motion To Dismiss Was Contrary To Established Law................
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VI.
District Court’s Denial Of Appointed Counsel Was Contrary to
Established Law.............................................................................
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VII.
District Court’s Denial Of Motion For Law Library Was Contrary
To Established Law.............................................................................
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VIII. District Court’s Denial Of Motion Not To Transfer Lynch Was
Contrary To Established Law......................................................
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District Court’s Denial Of Motion To Purchase Computer Was
Contrary To Established Law......................................................
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IX.
IV
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X.
Court of Appeals’ Order Denying COA Was Contrary To
Established Law..................................................................
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CONCLUSION
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INDEX TO APPENDICES
Appendix A
Court of Appeals’ ORDER DENYING CERTIFICATE OF
APPEALABILITY
Appendix B
District Court’s ORDER GRANTING MOTION TO
DISMISS HABEAS CORPUS PETITION
Appendix C
Court of Appeals’ ORDER DENYING PETITION FOR
REHEARING OF ORDER DENYING COA
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TABLE OF AUTHORITIES
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PAGE(S)
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CASE LAW
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Adams v. State. 123 P.3d 400 (Utah 2005).............................................
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Asosto v. I.N.S.. 436 U.S. 748 (1978).......................................................
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Anderson v. Liberty Lobby, 477 U.S. 242 (1986)...................................
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Avestas v. Davis. 138 S.Ct. 1080 (2018)..................................................
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Bell v. Cone. 535 U.S. 685 (2002).............................................................
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Bounds v. Smith. 430 U.S. 817 (1977)....................................................
Passim
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Bouslev v. U.S.. 523 U.S. 614 (1998).......................................................
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Brady v. Maryland. 373 U.S. 83 (1963)..................................................
Passim
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Calderon v. Thompson. 523 U.S. 538 (1998).........................................
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Chambers v. Baltimore O.R. Co., 207 U.S. 142 (1907).........................
ii, 6, 20
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Coleman u. Thompson. 501 U.S. 722 (1991)..........................................
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Conley v. Gibson. 355 U.S. 41 (1957).......................................................
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Diosuardi v. Durnins. 139 F.2d 774 (2nd Cir. 1944)............................
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Douslas v. California. 372 U.S. 353 (1963)...........................................
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Estelle v. Gamble. 429 U.S. 97 (1976).....................................................
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Haines v. Kerner. 404 U.S. 519 (1972)....................................................
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Hazel-Atlas Glass Co. v. Hartford-Empire Co.. 322 U.S. 238 (1944)
i, 6, 12
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In re Murchinson, 349 U.S, 133 (1955).................
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Lewis v. Casey. 518 U.S. 343 (1996).....................
Passim
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Lisenba v. California. 314 U.S. 219 (1941).........
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Lynch v. State. 400 P.3d 1047 (UT App. 2017)....
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Martinez v. Ryan. 566 U.S. 1 (2012).....................
6, 8
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Miller-El v. Cockrell. 537 U.S. 322 (2003)...........
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Moore v. Illinois. 408 U.S. 786 (1972)...................
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Murray v. Carrier. 477 U.S. 478 (1986)................
Passim
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Pennsylvania v. Finley. 481 U.S. 551 (1987).......
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Rini v. Katzenbach, 374 F.2d 836 (7th Cir. 1967)
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S&E Contractors. Inc. v. U.S.. 406 U.S. 1 (1972)..
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Schlup v. Delo. 513 U.S. 278 (1995).........................
Passim
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Sisafus v. Brown. 416 F.2d 105 (7th Cir. 1969).....
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Slack v. McDaniel. 529 U.S. 473 (2000).................
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Strickland v. Washington. 466 U.S. 668 (1984)....
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Thomas v. Gipson. 218 F.3d 1213 (10th Cir. 2000)
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Trevino v. Thaler, 133 S.Ct. 1911 (2013)................
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Tumev v. Ohio. 273 U.S. 510 (1927).......................
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U.S. v. Baelev. 473 U.S. 667 (1985).........................
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U.S. v. Lewis. 1998 WL 105477 (D. Kan. 1998)....
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U.S. v. Wrisht. 826 F.2d 938 (10* Cir. 1987)........
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U.S. v. Valenzuela-Bernal. 548 U.S. 858 (1982)....
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U.S. v. Vasauez. 7 F.3d 81 (5* Cir. 1993)...............
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Williams, v. Taylor. 529 U.S. 362 (2000)................
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CONSTITUTIONAL PROVISIONS
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U.S. Constitution, Article III (relevant portions).......
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U.S. Constitution, Amendment V (relevant portions)
Passim
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U.S. Constitution, Amendment VI................................
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U.S. Constitution, Amendment XIV, Section 1...........
Passim
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IN THE
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SUPREME COURT OF THE UNITED STATES
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Petitioner respectfully prays that a writ of certiorari issue to review the judgments
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below.
OPINIONS BELOW
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For cases for federal courts:
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The opinion of the United States Court of Appeals appears at Appendix A to
the petition and is unpublished.
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The date on which the United States Court of Appeals, (“Court of Appeals”),
The opinion of the United States District Court appears at Appendix B to the
petition and is unpublished.
JURISDICTION
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denied Lynch’s Application for Certificate of Appealability, (“Request for COA”), was
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February 21, 2019, and a copy of the order denying the Request for COA appears at
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Appendix. A. A Petition for Rehearing was denied by the Court of Appeals on
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March 25, 2019, and a copy of the order denying rehearing appears at Appendix C.
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The jurisdiction of the Court is invoked under 28 U.S.C. §1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
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U.S. Constitution. Article III. (relevant portions)
Section 1. The judicial power of the United States, shall be
vested in one supreme court.” And in such inferior courts as the
Congress may from time to time ordain and establish.
Section 2. The judicial power shall extend to all cases, in Law
and Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their
Authority.
U.S. Constitution. Amendment V. (relevant portion)
No person shall be ... deprived of life, liberty, or property, without due
process of law.
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U.S. Constitution. Amendment VI.
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and district wherein
the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of
the accusations; to be confronted with witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.
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U.S. Constitution. Amendment XIV. (relevant portions)
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All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the
state herein they reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
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LESS STRINGENT STANDARD
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Lynch is a pro se litigant where ‘the Court unanimously held in Haines v.
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Kerner. 404 U.S. 519 (1972), a pro se complaint, “however artfully pleaded,” must be
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held to “less stringent standards than formal pleadings drafted by lawyers” and can
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only be dismissed for failure to state a claim if it appears ‘“beyond doubt that the
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plaintiff can prove no set of facts in support of his claim which would entitle him to
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relief.’” Id., at 520-521, quoting Conley v. Gibson. 355 U.S. 41, 45-46 (1957).’ Estelle
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v. Gamble. 429 U.S. 97, 106 (1976). Emphasis added.
STATEMENT OF THE CASE
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I.
Nature of the Case:
On November 14, 2008, Lynch was convicted at trial of homicide for the death
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of his wife, Patricia Rothermich, and obstruction of justice in the Third District
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Court, State of Utah, Case No. 071907498, and subsequently sentenced to 16-years-
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to-life and l-to-15 years consecutively. After the direct appeal was denied, Lynch
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filed an Amended Petition for Relief under the Post-Conviction Relief Act, (“PCRA”),
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on the ground of constitutional-StriMand-error1 at trial with the assistance of
1 Strickland v. Washington. 46 U.S. 668, 687 (1984) (ineffective assistance of counsel).
Page 2 of21
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counsel, Case No. 110913691. The State filed a Motion for Summary Judgment on
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procedural grounds and on the merits, which the State District Court granted on
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January 6, 2014. With counsel, Lynch appealed the decision to the Utah Court of
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Appeals, which was denied. See Lynch v. State. 400 P.3d 1047 (UT App. 2017). In
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January 2015, Lynch filed with the state District Court a PCRA Petition on
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constitutional--Bm<iy-error2 at trial, Case No. 150900245, and a PCRA Petition for
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Actual Innocence, Case No. 150900286. The State filed Motions for Summary
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Judgment against both PCRA Petitions on procedural grounds, which the Court
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granted in March 2016. Lynch filed a timely appeal, which the Utah Court of
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Appeals summarily dismissed the appeals, Case Nos. 20160234-CA and 0216035-
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CA. Lynch filed timely Petitions for Writ of Certiorari with the Utah Supreme
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Court, which were denied, Case Nos. 20160851SC and 20160852-SC.
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II.
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Course of Proceedings:
Having exhausted all appellate procedures in the Utah courts, on May 25,
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2017, Lynch filed a Petition for Writ of Habeas Corpus, (“Habeas Petition”), under
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28 U.S.C. §2254 on grounds of constitutional errors at trial under Brady, 373 U.S.,
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at 87, and Strickland. 466 U.S., at 687, and actual innocence under Schlup, 513
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U.S., at 321-322, 324, 327-328, 331-332, requesting a “fundamental miscarriage of
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justice” exception under the Carrier3 standard, DC Doc. No. I,4 and Lynch filed a
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Motion for Appointed Counsel, (“first Motion for Counsel”), as a constitutional right
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for access to the courts under Bounds u. Smith. 430 U.S. 817 (1977). DC Doc. No. 2.
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On January 11, 2018, the District Court ordered Respondent to answer the Habeas
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Petition and denied Lynch’s first Motion for Counsel. DC Doc. No. 14. On March
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22, 2018, Lynch filed a Motion for Relief from Order Denying Appointed Counsel,
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(“second Motion for Counsel”). DC Doc. No. 18. On March 27, 2018, Lynch filed a
2 Brady u. Maryland. 373 U.S. 83, 87 (1963) (where prosecutors unconstitutionally withheld
exculpatory evidence from the defense).
3 Murray v. Carrier. All U.S. 478, 496 (1986) (“We think that in an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in the absence of a showing of cause for the procedural
default”) (emphasis added).
4 District Court Document Numbers reference as “DC Doc. No.”.
Page 3 of 21
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Motion to Order Respondent Not to Transfer Lynch to Other Facilities, (“Motion Not
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to Transfer”), DC Doc. No. 19. On April 19, 2018, Lynch filed a Motion to Order
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Respondent to Contract with Lynch for Purchase of a Computer, (“Motion to
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Purchase Computer”), DC Doc. No. 24. On May 23, 2018, Respondent filed a Motion
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to Dismiss Petition for Writ of Habeas Corpus, (“Motion to Dismiss”). DC Doc. No.
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31. On June 28, 2018, Lynch filed a Motion to Appoint Counsel to Assist With
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Objection to Motion to Dismiss Petition for Writ of Habeas Corpus, (“third Motion
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for Counsel”). DC Doc. No. 36. On August 30, 2018, the District Court denied
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Lynch’s second and third Motions for Counsel, Motion Not to Transfer, and Motion
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to Purchase Computer. DC Doc. No. 40. On September 4, 2018, Lynch filed an
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Objection to Motion to Dismiss Petition for Writ of Habeas Corpus, (“Objection”).
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DC Doc. No. 41. On November 15, 2018, Lynch filed a Motion to Order Respondent
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to Provide Law Library or Legal Assistance, (“Motion for Law Library”). DC Doc.
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No. 58. On November 21, 2018, the District Court filed its Order Granting Motion
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to Dismiss Habeas Corpus Petition that also denied the Motion for Law Library.
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App. B. On December 10, 2018, Lynch filed a Notice of Appeal. DC Doc. No. 66.
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Notice of Appeal was timely.
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Subsequent to the Notice of Appeal, the Court of Appeals ordered Lynch to
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file an Appellant’s Combined Opening Brief and Application for a Certificate of
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Appealability,5 which Lynch mailed on January 28, 2019. On February 19, 2019,
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the Court of Appeals denied Lynch’s request for COA and dismissed his appeal. See
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App. A. On February 26, 2019, Lynch mailed a Request for Extension of Time to file
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a Petition for Rehearing of Order Denying COA from March 5, 2019 to April 4, 2019.
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On March 14, 2019, Lynch mailed a Motion to Submit Out of Time Petition for
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Rehearing of Order Denying COA.6 On March 25, 2019, the Court of Appeals
5 Lynch requested a copy of the Docketing Statement and all pleadings and documents for this case
from the Clerk of the Court of Appeals. To date, Lynch has not received the copies.
6 “A paper filed by an inmate confined in an institution is timely if deposited in the institution’s mail
system on or before the last day for filing.” 10th Cir. R. 25(a)(2)(C).
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A.
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denied the Petition for Rehearing. See App. C. This Petition for Writ of Certiorari
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is timely.
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I.
Statement of the Facts.
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Article III, Section 1, of the U.S. Constitution states: “The judicial power of
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the United States, shall be vested in one Supreme Court, and such inferior Courts
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as the Congress may from time to time ordain and establish,” and Section 2 states:
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“The judicial power shall extend to all cases, in Law and Equity, arising under this
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Constitution, [or] laws of the United States.” The Supreme Court has established
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that “once the Court has spoken, it is the duty of other courts to request that
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understanding of the governing rule of law.” Bouslev v. U.S.. 523 U.S. 614, 625-626
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(1998). Emphasis added. The word ‘contrary’ is commonly understood to mean
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‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’
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Bell v. Cone. 535 U.S. 685, 698 (2002), citing Williams v. Taylor, 529 U.S. 362, 405
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(2002). “Clearly established law is determined by the Supreme Court of the United
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States.” Id., at 412. Emphasis added.
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A.
Due Process of Law:
Under the Fifth and Fourteenth Amendment Due Process Clause, the
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Supreme Court established ‘due process guarantees that a [petitioner] will be
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treated with “that fundamental fairness essential to the very concept of justice.”’
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U.S. v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982), citing Lisenba v. CA, 314 U.S.
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219, 236 (1941). Emphasis added. ‘Formulation of this right [to a fair trial], and
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imposition of this duty, are “the essence of due process of law.’” U.S. v. Baslev, 473
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U.S. 667, 695-696 (1985), citing Moore v. IL. 408 U.S. 786, 809-810 (1972).
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Emphasis added. “The requirement of due process of law in judicial procedure
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[requires] every procedure which might lead [a judge] not to hold the balance nice,
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clear and true between the State and the [petitioner] denies the latter of due
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process of law.” Tumev v. OH. 273 U.S. 519, 532 (1927). Emphasis added. “A fair
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tribunal is a basic requirement of due process [where] our system of law has always
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endeavored to prevent the probability of unfairness.” In re Murchison. 349 U.S.
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133, 136 (1955). Emphasis added. In other words, the Supreme Court has
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established the rule of law that the Fifth and Fourteenth Amendment Due Process
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Clause guarantees habeas corpus proceedings must be in a fair tribunal where the
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judge has a duty to hold the balance nice, clear and true to prevent the probability
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of unfairness, or the habeas petitioner is denied due process of law.
In this case, the District Court rendered judgments that violated
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Lynch’s constitutional right to due process of law by: (1) holding Lynch was not
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entitled to the “fundamental miscarriage of justice” exception under the Carrier
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standard contrary to established law in Schlup. 513 U.S., at 321, 324, 327-328, 331-
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332; (2) holding Lynch’s constitutional-JBmdv-errors were procedurally defaulted
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contrary to established law in Martinez v. Ryan, 566 U.S., 1, 17 (2012); (3) making
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false statements to deny Lynch’s actual-innocence claims contrary to established
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law in Lisenba. 314 U.S., at 236; (4) holding a conclusion of law for summary
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judgment on the credibility of new evidence presented contrary to established law in
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Schlup, 513 U.S., at 332; and (5) failing to address allegations of false statements in
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the Motion to Dismiss contrary to established law in Hazel-Atlas. 332 U.S., at 246.
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Also, the Court of Appeals rendered an Order denying a COA that violated Lynch’s
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constitutional right to due process of law by not addressing the claimed violations of
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Federal rights raised in Lynch’s Brief contrary to established law in Chambers, 207
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U.S., at 148.
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B.
Access to the Courts:
Under the Fourteenth Amendment Equal Protection Clause, the
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Supreme Court held: “It is established beyond doubt that prisoners have a
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constitutional right to access to the courts.” Bounds. 430 U.S., at 821. The District
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Court rendered Orders that violated Lynch’s constitutional right of access to the
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Court by denying Lynch: (1) appointed counsel contrary to established law in
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Bounds. 430 U.S., at 823, 828; (2) an adequate law library or legal assistance
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contrary to established law in Lewis, 518 U.S., at 351; and (3) a remedy to prison
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officials’ interference with presentation of claims to the Court contrary to
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established law in Lewis. 518 U.S., at 349-350. Also, the Court of Appeals denied
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Lynch’s constitutional right of access to the Court by procedurally denying Lynch
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reasonable time to file a Petition for Rehearing of Order Denying COA contrary to
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established law in Bounds. 430 U.S., at 821.
REASONS FOR GRANTING THE PETITION
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I.
District Court’s Order Denying “Fundamental Miscarriage of Justice”
Exception Was Contrary To Established Law.
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In Schlup, the Supreme Court established four criteria the habeas petition
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must meet to be entitled to a “fundamental miscarriage of justice” exception under
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the Carrier standard: (1) “this Court explicitly tied the miscarriage of justice
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exception to the petitioner’s innocence,” Schlup. 513 U.S., at 321; (2) “when the
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claimed injustice that constitutional error has resulted in the conviction of one who
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is actually innocent of the crime,” id., at 324; (3) “to be credible, such a claim
191
requires petitioner to support his allegation of constitutional error with new reliable
192
evidence ... that was not presented at trial,” id., and (4) “the application of the
193
Carrier standard arises in the context of a request for an evidentiary hearing,” id.,
194
at 331.
195
Lynch’s eleven claims of actual innocence, DC Doc. No. 1, at pp 92-104, met
196
the first criteria for the Carrier standard under Schlup. Lynch’s eleven
197
constitutional-Brae/y-error claims, DC Doc. No. 1, at pp 59-79, and his four
198
constitutional-Sincfe/ami-error claims, id., at pp 80-92, met the second criteria for
199
the Carrier standard under Schlup. Lynch supported each constitutional-error and
200
actual-innocence claim with new reliable evidence that was not presented at trial,
201
DC Doc. No. 1, at pp 59-104, met the third criteria for the Carrier standard under
202
Schlup. And, Lynch requested an evidentiary hearing, DC Doc. No. 1, at p 109, met
203
the fourth criteria for the Carrier standard under Schlup. Also, the District court
204
stated: ‘procedurally defaulted claims may be reviewed only if “the petitioner can
205
demonstrate cause and prejudice or a fundamental miscarriage of justice.” Thomas
206
v. Gibson. 218 F.3d 1213, 1221 (10th Cir. 2000)’. DC Doc. No. 59, at p 4. Emphasis
207
added. Thereby, the District Court and this Court of Appeals agree with the
208
Supreme Court that a “fundamental miscarriage of justice” exception applies to
Page 7 of 21
209
Lynch’s Habeas petition ,as Lynch has shown it met the four criteria for this
210
exception for the Carrier standard under Schlup.
211
II.
212
213
District Court’s Failure To Apply Martinez Exception To Procedural Default
Was Contrary To Established Law.
214
In Martinez v. Ryan, the Supreme Court established:
215
216
217
218
219
220
“Where, under state law, claims of [constitutional-error] must be
raised in an initial-review collateral proceeding, a procedural default
will not bar a federal habeas court from hearing a substantial claim of
[constitutional-error] at trial if, in the initial-review collateral
proceeding, there was no counsel.”
221
Id., 566 U.S., at 17. See Trevino v. Thaler. 133 S.Ct., 1911, 1912, 1921 (2013) (citing
222
Martinez. 566 U.S., at 17); Avestas v. Davis. 138 S.Ct., 1080, 1083, 1096 (2018)
223
(same). As “Lynch filed pro se a PCRA Petition with the [Utah] District Court for
224
constitutional error at trial citing 18 claims of prosecutorial misconduct by
225
withholding exculpatory and impeachment evidence from Lynch,” DC Doc. No. 1, at
226
p 47, then a procedural default would not bar the District Court from hearing
227
Lynch’s claims of substantial constitutional-Hradv-error at trial. Id., at pp 59-79.
228
The District Court’s failure to apply this well-established exception by the Supreme
229
Court for procedural default to Lynch’s constitutional-Brady-error claims violated
230
Lynch’s Constitutional right to due process of law under the Fifth and Fourteenth
231
Amendment Due Process Clause contrary to established law in Martinez. 566 U.S.,
232
at 17, that reasonable jurists could debate whether Lynch’s Habeas case should
233
have been resolved in a different manner.
234
III.
235
District Court’s False Statements Were Contrary To Established Law.
The District Court stated as fact that Lynch’s “evidence presented in [claims]
236
1, 3, 7, 8, 9 and 10 is not new, but was presented and considered at trial.” App. B,
237
at p 5. Emphasis added. This statement of fact is false for the following reasons:
238
Claim 1: “Testimony and exhibit evidence on the Victim’s pants.” Id. Lynch
239
presented new reliable evidence not presented at trial that the “exhibit evidence on
240
the Victim’s pants” was manufactured by the prosecution, see DC Doc. No. 1, at pp
241
59-61, which is evidence not presented and considered at trial.
Page 8 of 21
*
242
Claim 3: “Location of the Victim’s back injuries.” App. B, at p 5. Lynch
243
presented new reliable evidence not presented at trial that the location of the fatal
244
back injury that severed the Victim’s spinal cord was at 49.2 inches and too high to
245
align with 37.25-inch height of the hood on Lynch’s truck, see DC Doc. No. 1, at pp
246
68-70, which is evidence not presented and considered at trial.
247
Claim 7: “Evidence that potential witness Maxwell saw a red truck in the
248
area of the accident.” App. B, at p 5. Lynch presented new reliable evidence not
249
presented at trial that Maxwell heard and saw a large red industrial truck, versus
250
Lynch’s white pickup truck, at the scene of the collision at the moment of the
251
collision, see DC Doc. No. 1, at pp 98-99, which is evidence not presented and
252
considered at trial.
253
Claim 8: “Evidence that a potential witness overheard a conversation about a
254
hit and run.” App. B, at p 5. Lynch presented new reliable evidence not presented
255
at trial that Michele Ashe told Det. Adamson she overheard one man confessing to
256
another man that he had accidently hit and killed a woman in Hollady, Utah, the
257
location of where the Victim was killed, and gave a description of the man
258
confessing, who looked nothing like Lynch, see DC Doc. No. 1, at pp 100-101, which
259
is evidence not presented and considered at trial.
260
Claim 9: “Testimony that the DNA evidence on the truck did not match the
261
Victim.” App. B, at p 5. Lynch presented new reliable evidence not presented at
262
trial that ‘Barbara Reed, the Crime Lab photographer, described the Victim’s pants
263
as “bloody.” Also, photographs taken by the M.E. of the Victim’s left and right
264
calves show they both had significant open wounds.’ DC Doc. No. 1, at p 101. This
265
is new evidence that the impact vehicle would certainly have blood or tissue from
266
the Victim transferred to it from the collision, and after twice swabbing Lynch’s
267
truck for DNA samples, see id., at pp 16-17, 17-18, then this is new reliable evidence
268
Lynch’s truck was not the impact vehicle, which is evidence not presented and
269
considered at trial.
270
Claim 10: “Evidence about paint and paint analysis.” App. B, at p 5, Lynch
271
presented new reliable evidence not presented at trial that the white paint tested
Page 9 of21
272
from the pants tested at the State Crime Lab showed inconsistencies with the white
273
paint sample taken from the hood on Lynch’s truck and was not from Lynch’s truck.
274
See DC Doc. No. 1, at pp 102-103. Also, Lynch presented new reliable evidence not
275
presented at trial that the “evidence about paint and paint analysis” was
276
manufactured by the prosecution. See id., at pp 59-61, 92-94. Thereby, this is
277
“evidence about paint and paint analysis” that was not presented and considered at
278
trial, that reasonable jurists could debate whether Lynch’s Habeas case should have
279
been resolved in a different manner.
280
As the District Court’s Order made false statements of fact to support its
281
judgment to dismiss these actual innocence claims, then the Order violated Lynch’s
282
constitutional right to due process of law under the Fifth and Fourteen Amendment
283
Due Process Clause and is contrary to established law in Tumev, 273 U.S., at 532.
284
(“The requirement of due process of law in judicial procedure [requires a judge] to
285
hold the balance nice, clear and true between the State and the [petitioner, or it]
286
denies the latter of due process of law”).
287
288
IV.
289
290
291
292
293
294
295
296
297
298
299
300
301
302
303
District Court’s Conclusion Of Law For Summary Judgment Was Contrary
To Established Law.
Schlup established:
‘The court is not [ ] to test the new evidence by a standard
appropriate for deciding a motion for summary judgment. Cf. Asosto v.
I.N.S.. 436 U.S. 748, 756 (1978) (“[A] district court generally cannot
grant summary judgment based on ‘its assessment of the credibility of
the evidence presented”); Anderson v. Liberty Lobby. Inc.. 411 U.S. 242,
249 (1986) (“At the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial”). Instead,
the Court may consider how the timing of the submission and the
likely credibility of the affiants bear on the probable reliability of that
evidence.’
Id- 513 U.S., at 332.
304
In regard to Lynch’s actual-innocence claims 2, 4, 5 and 6, the District Court
305
agrees that these claims “involve evidence ... which were not presented during the
306
trial.” App. B, at p 6. But then the District Court concluded ‘this new evidence
Page 10 of 21
>
307
alone is insufficient to determine that “it is more likely than not that no reasonable
308
juror would have convicted [Lynch] in light of [this] new evidence.” Calderon fv.
309
Thompson, 523 U.S. 538, 559 (1998)] (emphasis added).’ Id. Emphasis added. ‘The
310
habeas court must make its determination concerning the petitioner’s innocence “in
311
light of all the evidence.’” Schlup. 513 U.S., at 328. As the District Court cannot
312
assess the credibility of Lynch’s new evidence at this stage of the habeas proceeding
313
and the District Court must make its determination of the new evidence presented
314
in light of all the evidence. then the District Court’s Order dismissing Lynch’s
315
actual-innocence claims 2, 4, 5 and 6, because it has determined the new evidence
316
presented in these claims alone is insufficient. then the Order violates Lynch’s
317
constitutional right to due process of law under the Fifth and Fourteenth
318
Amendment. Due process Clause and contrary to established law in Lisenba. 314
319
U.S., at 236 (‘due process guarantees that a [petitioner] will be treated with “that
320
fundamental fairness essential to the very concept of justice’”), that reasonable
321
jurists could debate whether Lynch’s Habeas case should have been resolved in a
322
different manner.
323
324
325
326
V.
327
September 4, 2018, Lynch filed an Objection to Motion to Dismiss, DC Doc. No. 41,
328
alleging Respondent made eleven false statements of fact or law. Lynch showed
329
with facts in the court record or relevant legal authority Respondent’s statements
330
were false on the following issues: (1) Respondent misrepresented Coleman v.
331
Thompson. 501 U.S. 722, 729-732, 735 n. 1 (1991) as a relevant authority to
332
procedurally default Lynch’s constitutional-Brady-error claims, see DC Doc. No. 41,
333
at pp 64-65; (2) Respondent misrepresented Coleman, supra, as a relevant authority
334
to procedurally default Lynch’s constitutional-Strickland-error claims, see id., at pp
335
66-67; (3) Respondent made a false statement to support his allegation there was a
336
tow hook on the front of Lynch’s truck, see id., at pp 68-69; (4) Respondent made a
337
false statement to support his allegation Lynch had not shown any apparent conflict
District Court’s Failure To Address Allegations Of Eleven False Statements
In Motion to Dismiss Was Contrary to Established Law.
On May 23, 2018, Respondent filed a Motion to Dismiss, DC Doc. No. 31. On
Page 11 of 21
338
between the Victim’s injuries and truck’s grill, see icb, at p 69; (5) Respondent made
339
a false statement that defense counsel elicited an admission that Det. Adamson
340
never had the substance on the zip tie tested on cross-examination, see id., at p 75;
341
(6) Respondent made a false statement to support his allegation Det. Adamson
342
admitted nothing in the paint analyst’s report matched the white substance on the
343
zip tie to paint on Lynch’s truck, see i(L, at pp 75-76; (7) Respondent made a false
344
statement Lynch had not shown prejudice in his Strickland claim that defense
345
counsel failed to present Maxwell as a witness, see id., at p 82; (8) Respondent made
346
a false statement Lynch had not said what Maxwell would have testified to at trial,
347
see id., at p 83; (9) Respondent made a false statement Lynch had to explain how
348
testimony could have created reasonable likelihood on appeal, see id.. (10)
349
Respondent made a false statement there is no prejudice to accumulate Lynch’s
350
constitutional-error claims, see id., at p 88; and (11) Respondent made a false
351
statement that free-standing claims of innocence are not cognizable, see id., at pp
352
88-91.
353
As the District Court’s Order failed to address Respondent’s eleven false
354
statements made to support his Motion to Dismiss, then the Order violated Lynch’s
355
constitutional right to due process of law under the Fifth and Fourteenth
356
Amendment, Due Process Clause and contrary to established law in Hazel-Atlas, 332
357
U.S., at 246 (it “is a wrong against the institutions set up to protect and safeguard
358
the public, institutions in which fraud cannot complacently be tolerated”)7, that
359
reasonable jurists could debate whether Lynch’s Habeas case should have been
360
resolved in a different manner.
361
362
363
364
VI.
365
right to access to the courts under the Fourteenth Amendment Equal Protection
District Court’s Denial Of Appointed Counsel Was Contrary to Established
Law.
Lynch filed his first Motion for Counsel, DC Doc. No. 2, as a constitutional
7 See also i.cL at 245 (“Every element of the fraud here disclosed demands the exercise of the historic
power of equity to set aside fraudulently begotten judgments”) (emphasis added); S & E Contractors.
Inc, v. U.S.. 406 4.S 1, 15 (1972) (“fraud on ... the court enforcing the action is ground for setting
aside the judgment”).
Page 12 of 21
366
Clause established by the Supreme Court, citing Bounds. 430 U.S., at 825, as a
367
relevant authority because the Utah prisons were lacking the “most minimal legal
368
research materials” and that “the legal services provided to assist the prisoner are
369
grossly inadequate,” citing Adams. 123 P.3d, at 406 (Utah 2005), as relevant
370
authority.8
371
“The Court notes that Petitioner has no constitutional right to appointed pro
372
bono counsel in [this] habeas corpus case,” citing as its seemingly relevant authority
373
United States v. Lewis. No. 97-3135-SAC, 91-0047-01-SAC, 1998 WL 105477, at 3
374
(D. Kan. December 9, 1998). DC Doc. No. 14, at p 1. (“There is no constitutional
375
right to appointment of counsel in a §2255 proceeding. See United States v.
376
Vasauez, 7 F.3d 81, 83 (5th Cir. 1993)”). Vasauez stated: “No such right [of
377
appointed counsel] flows from the Constitution. Pennsylvania v. Finley. 481 U.S.
378
551, 555 (1987) (No Sixth Amendment right to appointed counsel extends to
379
prisoners collaterally attacking their convictions).” Id., 7 F.3d, at 83. However,
380
Finley held “the underlying constitutional right to appointed counsel [in Federal
381
habeas corpus proceedings was] established in Douelas v. California. 372 U.S. 353
382
(1963).” Id., 481 U.S., at 555.
383
In other words, while an indigent habeas corpus petitioner has no constitutional
384
right to counsel under the Sixth Amendment, he does have a constitutional right to
385
appointed counsel under the Fourteenth Amendment Equal Protection Clause for
386
access to the courts. The District Court’s analysis of constitutional law on this issue
387
was based on an obscure irrelevant authority that was “not reported in F. Supp. 2d
388
(1998),” see Lewis, 1998 WL 1054227, that is contrary to established law that
389
‘counsel must be appointed to give indigent inmates “a meaningful appeal” from
390
their convictions,’ Bounds. 450 U.S., at 822, that reasonable jurists could debate
391
whether Lynch’s Habeas case should have been resolved in a different manner.
392
8 “In Utah, most minimal legal research materials are lacking at the prison, and the legal services
provided to assist prisoners are grossly inadequate,” Adam v. State. 123 P.3d 400, 406 (Utah 2005).
Page 13 of 21
393
394
395
396
VII.
397
Counsel, DC Doc. Nos. 14, 40, Lynch filed a Motion for Law Library, DC Doc. No.
398
58. The District Court denied the Motion because “a legal-access claim such as the
399
one Petitioner suggests is not appropriate in this habeas corpus case but would be
400
more properly addressed in a civil right complaint regarding conditions of
401
confinement.” App. B, at p 16.
402
District Court’s Denial Of Motion For Law Library Was Contrary to
Established Law.
After the District Court denied all three (3) of Lynch’s Motions for Appointed
Though Bounds. 430 U.S., at 828, and Lewis. 518 U.S., at 346 were the result
403
of class action civil rights suits, Lynch is unaware of any caselaw or statute that a
404
civil suit to order prison authorities to provide inmates with a law library or legal
405
assistance program must be separate from a 28 U.S.C. §2254 civil suit. In fact, it
406
would be during the proceedings of a 28 U.S.C. §2254 civil suit that the need would
407
manifest itself for a habeas corpus petition file for an injunction with the habeas
408
court for the Constitutional right of access to a law library or legal assistance
409
program for meaningful legal papers to be filed with the courts under the
410
Fourteenth Amendment Equal Protection Clause, and not in another civil suit after
411
the habeas corpus petitioner has had his habeas corpus petition dismissed, which is
412
now the case for Lynch.
413
As the District Court’s denial of Lynch’s Motion for Law Library has caused
414
injury to Lynch due to the District Court’s wrongful dismissal of Lynch’s Habeas
415
Petition, which more likely than not would not have occurred if Lynch had had
416
access to a law library or legal assistance program to enable Lynch to file
417
meaningful legal papers with the District Court, and as the District Court denied
418
Lynch’s Motion for Law Library without citation to any relevant legal authority,
419
and as the District Court’s denial of Lynch’s Motion for Law Library was contrary to
420
established law in Bounds. 430 U.S., at 821-823, 825-826, 828; Lewis, 518 U.S., at
421
349-351,
422
423
(‘It is the role of the courts to provide relief to claimants, in individual
or class actions, who have suffered, or will imminently suffer actual
Page 14 of 21
424
425
426
427
428
429
430
431
harm. ... It is for the courts to remedy past or imminent official
interference with individual inmate’s presentation of claims to the
courts. ... In other words, prison law libraries and legal assistance
programs are not the ends in themselves, but only the means for
ensuring “a reasonably adequate opportunity to present claims
violations of fundamental constitutional rights to the courts.” \Bounds,
430 U.S.], at 825’),
432
then the District Court’s denial of Lynch’s Motion for a Law Library was
433
contrary to established law that reasonable jurists could debate whether
434
Lynch’s Habeas case should have been resolved in a different manner.
435
VIII. District Court’s Denial Of Motion Not To Transfer Lynch Was Contrary to
Established Law.
436
437
438
Lynch was incarcerated in the Utah State Prison (“USP”), Draper, Utah on
439
January 29, 2009. Within the year following the filing of his Habeas Corpus
440
Petition on May 25, 2017, DC Doc. No. 1, prison officials had transferred Lynch
441
three (3) times between USP, Draper and the Central Utah Correctional Facility
442
(“CUCF”), Gunnison, Utah. See DC Doc. Nos. 8, 10, 26. During the process of each
443
transfer, Lynch was separated from the legal materials he needed for access to the
444
courts for up to three (3) weeks. As Lynch is a pro se litigant in his habeas case, the
445
separation from these legal materials by prison officials violated Lynch’s
446
constitutional right to access to the District Court under the Fourteenth
447
Amendment Equal Protection Clause as established by the Supreme Court’s
448
decision in Bounds, 430 U.S., at 821 (“It is established beyond doubt that prisoners
449
have a constitutional right to access to the courts”). The Supreme Court has also
450
established under Lewis. 518 U.S., at 349-350 (“[I]t is the role of courts to provide
451
relief to claimants, in individual or class actions, who have suffered, or will
452
imminently suffer actional harm. ... It is for the courts to remedy past or imminent
453
official interference with individual inmates’ presentation of claims to the courts.”
454
In an effort to prevent further violations by prison official’s interference with this
455
constitutional right to access to the District Court, Lynch filed his Motion Not to
456
Transfer Lynch, DC Doc. No. 19, citing as relevant authority Bounds. supra, and
Page 15 of 21
457
Lewis. supra. The District Court’s August 30, 2018 interlocutory Order denied said
458
Motion because “the Court has been liberal in granting time extensions for
459
petitioner and sees no need to impose an injunction on Respondent.” DC Doc. No.
460
40, at p 1. This bandaid remedy does not cover any future time when Lynch is
461
transferred to another Utah prison facility, separating Lynch from his needed legal
462
materials for weeks at a time, which could cause Lynch not to be able to file a
463
timely motion for extension of time that would be procedurally barred by the
464
District Court, which would result in prejudice to Lynch due to loss of a critical legal
465
issue by default for the Lynch and his habeas case.
466
As the District Court had a duty and the judicial authority to remedy the
467
imminent suffering of actual harm by the Prison’s official interference with his
468
constitutional right to access to the courts, then the District Court’s denial of
469
Lynch’s Motion Not to Transfer was contrary to established law in Lewis. 518 U.S.,
470
at 349-350, cited above, that reasonable jurists could debate whether Lynch’s
471
Habeas case should have been resolved in a different manner.
472
473
474
475
IX.
476
from Utah State agencies involved in collecting, analyzing or processing of evidence
477
for the crimes which Lynch was convicted, the agencies had provided the
478
documentation in the format it was stored, to wit, digitally on CD-Rs. As Lynch
479
was then represented by counsel, then accessing digitally stored documents was not
480
an issue because counsel could provide copies as printed documents. And, as the
481
USP, Draper had provided access to a laptop computer for inmates to view digitally
482
stored documents, then it was not an issue for pro se incarcerated litigants to have
483
documents provided digitally. However, on March 19, 2018, Captain Crane, the
484
officer with overall responsibility for the facility Lynch was housed at that time,
485
informed him that the Warden had withdrawn the privilege for inmate access to
486
these laptop computers due to security issues dealing with unauthorized use of CR-
487
Rs, flash drives, and thumb drives by some inmates. See DC Doc. No. 24, at p 3.
District Court’s Denial Of Motion To Purchase Computer Was Contrary To
Established Law.
Previously, when Lynch requested documentation with assistance of counsel
Page 16 of 21
488
‘It is now established beyond doubt that prisoners have a constitutional right
489
of access to the courts ... to give indigent inmates “a meaningful appeal” from their
490
convictions. Douglas v. California. 322 U.S. 353, 358 (1963).’ Bounds. 430 U.S., at
491
821-822. “Moreover, our decisions have consequently required States to shoulder
492
affirmative obligations to assure all prisoners meaningful access to the courts.” Id..
493
at 824. And, “it is often more important that a prisoner’s complaint sets forth a
494
nonfrivolous claim meeting all procedural prerequisites, since the court may pass on
495
the complaint’s sufficiency ... and may dismiss the case if it is deemed frivolous. ...
496
Even the most dedicated trial judges are bound to overlook meritorious cases
497
without the benefit of an adversary presentation.” Id., at 826. “It is the rule of
498
courts to remedy past or imminent official interference with individual inmates’
499
presentation of claims to the courts.” Lewis. 518 U.S., at 349-350.
‘The right that Bounds acknowledged was the (already well
established) right of access to the courts. E.g., Bounds. 430 U.S., at
817, 821, 828. In the cases to which Bounds traced its roots, we have
protected that right by prohibiting state prison officials from actively
interfering with inmates’ attempts to prepare legal documents. ... for
indigent inmates Bounds focused on the same entitlements of access to
the courts. Although it affirmed a court order requiring North
Carolina to make law library facilities available to inmates, it stressed
that that was merely “one constitutionally acceptable means to assure
meaningful access to the courts” and that “our decision here ... does
not foreclose alternative means to achieve that goal.” 430 U.S., at 830.
In other words, prison law libraries and legal assistance programs are
not ends in themselves, but only the means for ensuring “a reasonably
adequate opportunity to present claimed violations of fundamental
constitutional rights to the courts.” Id., at 825.’ Id., at 350-351.
(Emphasis added.)
500
501
502
503
504
505
506
507
508
509
510
511
512
513
514
515
516
517
As to Lynch’s Motion for Purchase of Computer, the District Court did not
518
have to deny Lynch’s request et al., but could have insured Lynch’s constitutional
519
right to view digitalized legal documents for his access to the courts by ordering the
520
Warden, the Respondent, to provide in each housing unit a laptop computer for all
521
inmates who needed to view digitalized legal documents for access to the courts.
Page 17 of 21
522
But the District Court decided to Order “Petitioner’s Motion to Order
523
Respondent to Contract with Lynch for Purchase of a Computer is DENIED. (DC
524
Doc. No. 24.) This request is simply not legally supportable.” DC Doc. No. 40, at p
525
1. As the District Court failed to cite any legal authority to support its denial, then
526
its denial of Lynch’s said Motion can be construed as “arbitrary,” and thereby an
527
abuse of discretion. See U.S. v. Wrisht. 826 F.2d, 938, 943 (10th Cir. 1987). (“Abuse
528
of discretion occurs when a judicial determination is arbitrary”). Additionally, an
529
abuse of discretion occurs when a district court makes “an overriding of the law by
530
the manifestly unreasonable judgment... as shown by ... the record of proceedings.”
531
Id., As the District Court’s interlocutory Order on this issue, DC Doc. No. 40, at p 1,
532
was contrary to law on the Fourteenth Amendment Equal Protection Clause for
533
access to the courts as established by the U.S. Supreme Court decisions of Bounds,
534
430 U.S., supra, and Lewis. 518 U.S., supra, then the District Court’s said Order
535
was contrary to established law that reasonable jurists could debate whether
536
Lynch’s Habeas case should have been resolved in a different manner.
537
X.
Court of Appeals’ Order Denying COA Was Contrary To Established Law.
538
Subsequent to Lynch’ Notice of Appeal, the Court of Appeals ordered Lynch
539
to file an Appellant’s Combined Opening Brief and Application for a Certificate of
540
Appealability. On January 28, 2019, Lynch mailed to the Court of Appeals his
541
Combined Opening Appellant Brief, (“Appellant Brief’), and Application for
542
Certificate of Appealability, (“Request for COA”). On February 19, 2019, the Court
543
of Appeals denied Lynch’s Request for COA ‘because Lynch has not “made a
544
substantial showing of the denial of a constitutional right,” [28 U.S.C.] §2253(c)(2).’
545
App. A, at p 1. Also:
546
547
548
549
550
551
552
553
“Having undertaken a review of Lynch’s appellate filings, the district
court’s thorough order, and the entire record before this court pursuant
to the framework set out by the Supreme Court in Miller-El fv.
Cockrell 537 U.S. 332 (2003)] and Slack fv. McDaniel. 529 U.S. 473
(2000)], we conclude Lynch is not entitled to a COA. The district
court’s resolution of Lynch’s §2254 petition is not reasonably subject to
debate and the issues he seeks to raise on anneal are not adequate to
deserve further proceedings. Furthermore, it cannot be reasonably
Page 18 of 21
554
555
556
557
558
559
560
argued the district court abused its discretion when it denied Lynch’s
request for appointed counsel, provision of a law library, ability to
purchase a computer, and the ability to block his transfer to another
facility. In so ruling, this court concludes it is unnecessary to
recapitulate the district court’s careful analysis.”
Id., at p 4. Emphasis added.
561
First: As the Court of Appeals did not address specifically any of the
562
substantial constitutional “issues [Lynch] seeks to raise on appeal” that are
563
“adequate to deserve further proceedings,” id., supra, that are substantiated with
564
citation to facts in the record and relevant established law, see Appellant Brief, at
565
pp 13-23, and Lynch’s “complaint concludes that [he] has indeed been denied
566
substantial constitutional rights, [where a l]iberal construction is to be accorded to a
567
pro se complaint,” Sigafus v. Brown. 416 F.2d 105, 106 (7th Cir. 1969); 106 n. 4,9
568
then the Court of Appeals’ Order denying Request for COA, see App. A, at p 1,
569
violated Lynch’s constitutional right to due process of law under the Fifth and
570
Fourteenth Amendment Due Process Clause, which is contrary to established law
571
under Turney, 273 U.S., at 532 (“not to hold the balance nice, clear and true ...
572
denies the [petitioner] of due process of law”), that reasonable jurists could debate
573
whether Lynch’s Request for COA should have been resolved in a different manner.
574
Second: The Court of Appeals “concludes it is unnecessary to recapitulate the
575
district court’s careful analysis of “Lynch’s request for appointed counsel, provisions
576
of a law library, ability to purchase a computer, and the ability to block his transfer
577
to another facility.” App. A, supra. The Court of Appeals could not “recapitulate
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the district court’s careful analysis” because there is nothing in the District Court’s
579
record to show it performed any “analysis,” “careful” or otherwise, of these Federal
580
issues Lynch raised in his Brief, as the District Court had presented no facts from
581
the record or citation to established law to rebut Lync’s claims of violation to his
582
constitutional right of access to the courts established by Bounds. 430 U.S., at 821,
583
823, 825, 828, 828 n. 17; Lewis. 518 U.S., at 349-350, 351, under the Fourteenth
9 “Diosuardio v. Durnins. 139 F.2d 774, 775 (2nd Cir. 1944); Rini v. Katzenbach. 374 F.2d 836, 837
(7th Cir. 1967); 2A Moor’s Federal Practice P8.13 p. 1707 (2d ed. 1968).”
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Amendment Equal Protection Clause. Thereby, the Court of Appeals’ conclusion of
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fact is a false statement that fails as a matter of law and violates Lynch’s
586
constitutional right of due process of law under the Fifth and Fourteenth
587
Amendment Due Process Clause, which is contrary to established law in Lisenba,
588
314 U.S., at 236 (“that fundamental fairness is essential to the very concept of
589
justice”), that reasonable jurists could debate whether Lynch’s Request for COA
590
should have been resolved in a different manner.
591
Third: Since Lynch’s complaint concludes he has been denied the substantial
592
constitutional right of access to the courts from the denial of his “request for
593
appointed counsel, provisions of a law library, ability to purchase a computer, and
594
the ability to block his transfer to another facility,” CA Doc. No.
595
the Fourteenth Amendment Equal Protection clause, then a liberal construction is
596
to be accorded Lynch as a pro se complainant. See Sisafus, 416 F.2d, at 106;
597
Dioguardio. 139 F.2d, at 775; Rini, 374 F.2d, at 873. And, as each “Federal question
598
was decided against the claim of Federal rights, and the decision of the question
599
was essential to the judgment rendered[, then t]his is enough to give this Court the
600
authority to re-examine [each] question on writ of error,” Chambers. 207 U.S., at
601
148, as a violation of Lynch’s constitutional right of access to the courts that jurists
602
could debate whether Lynch’s Request for COA should have been resolved in a
603
different manner.
., at p 4, under
604
CONCLUSION
605
Lynch has shown in Questions X. with citation of facts in the record and
606
established law, the Court of Appeals’ Orders denying Lynch’s Request for COA
607
violated Lynch’s constitutional rights of due process of law and access to the courts.
608
Pursuant to 28 U.S.C. §2253(c)(l)(A), “a circuit justice or judge” must issue a COA
609
before an appeal can “be taken to the court of appeals from the final order in a
610
habeas corpus proceeding.” Thereby, this Supreme Court can simply remand this
611
case to the Court of Appeals with instructions to rehear Lynch’s Request for COA
612
based on the constitutional issues raised in Lynch’s Opening Brief. Elsewise, as
613
shown in the Reasons for Granting the Writ above that Lynch substantiated with
Page 20 of 21
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citation to facts in the record and established law that the judgments rendered by
615
the District Court and the Court of Appeals had substantially violated Lynch’s
616
constitutional rights of due process of law and access to the courts guaranteed by
617
the Fifth and Fourteenth Amendment Due Process Clause and the Fourteenth
618
Amendment Equal Protection Clause, where such judgments were contrary to law
619
established by the Supreme Court and where reasonable jurists could debate
620
whether Lynch’s Habeas Corpus claims of constitutional-error at trial and claims of
621
actual innocence, and his claims of constitutional-error on Appeal, should have been
622
resolved in a different manner, then Lynch respectfully requests this august
623
Supreme Court that the Petition for Writ of Certiorari should be granted.
624
Respectfully submitted,
625
626
627
628
629
Sherman A. Lynch
Petitioner, pro se
630
631
632
633
Dated: June
. 2019.
Page 21 of 21
Rev 2
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.