Petition for Writ of Certiorari — In Re Sherman Alexander Lynch, Petitioner

Supreme Court briefSep 10, 2019

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6441

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

5MAJI

FILED

SEP 1 0 2019

OFFICE OF THE CLERK

SUPREME COURT. U.S.

IN RE SHERMAN ALEXANDER LYNCH - PETITIONER.

PETITION FOR WRIT OF MANDAMUS

AGAINST TENTH CIRCUIT JUDGES

CARSON, BALDOCK, AND MURPHY

Sherman A. Lynch

OFN 64063

Central Utah Correctional Facility

P.O. Box 550

Gunnison, Utah 84634-0550

Petitioner, Pro se

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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Petitioner is incarcerated and pro se without access to a law library or adequate

legal assistance.

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QUESTIONS PRESENTED

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)?

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Second Question: Whether the District Court erred when it did not hold that

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Lynch’s constitutional-jBrady-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 u. 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 Schluv. supra, at 332?

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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-Emvire Co.. 332 U.S. 238, 246 (1944) (it “is a wrong against the

1 Murray v. Carrier, 477 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 facihties 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 estabhshed 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 issue a writ of mandamus against Tenth Circuit Court of Appeals Judges Carson,

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Baldock, and Murphy .

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LIST OF PARTIES

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Circuit Court Judge Joel M. Carson

Tenth Circuit Court of Appeals

1823 Stout Street

Denver, Colorado 80257

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Circuit Court Judge Bobby R. Baldock

Tenth Circuit Court of Appeals

1823 Stout Street

Denver, Colorado 80257

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Circuit Court Judge Michael R. Murphy

Tenth Circuit Court of Appeals

1823 Stout Street

Denver, Colorado 80257

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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: andrewpeterson@agutah.gov

Respondent’s Counsel

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hi

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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i

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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 EXTRAORDINARY WRIT

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I.

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II.

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District Court’s Order Denying “Fundamental Miscarriage of

Justice” Exception Was Contrary to Estabhshed Law.............

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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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District Court’s Denial Of Appointed Counsel Was Contrary to

Established Law.............................................................................

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District Court’s Denial Of Motion For Law Library Was Contrary

To Estabhshed Law.............................................................................

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District Court’s Denial Of Motion Not To Transfer Lynch Was

Contrary To Estabhshed Law......................................................

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VIII. District Court’s Denial Of Motion To Purchase Computer Was

Contrary To Estabhshed Law......................................................

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V.

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VI.

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VII.

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IX.

Court of Appeals’ Order Denying COA Was Contrary To

Estabhshed Law..................................................................

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Reasons A Writ of Mandamus Should Be Issued

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X.

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CONCLUSION

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A Court Of Appeals’ Orders Denying COA Was Contrary To

Established Law..............................................................................

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B.

Lynch’s Appeal Was Timely.

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c.

Constitutional Questions From A District Court Must First Be Passed

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Upon By A Circuit Court....................... .............................

D.

Lynch’s Appeal Was The Only Means To Attain Relief.

E.

Lynch’s Right To A Writ Of Mandamus Is Clear And Undisputable. ..22

F.

Issuance Of This Writ Of Mandamus Is To Compel The Court Of

Appeals To Exercise Its Jurisdiction To Do Its Duty

A.

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INDEX TO APPENDICES

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Appendix A

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Court of Appeals’ ORDER DENYING CERTIFICATE OF

APPEALABILITY

Appendix B

District Court’s ORDER GRANTING MOTION TO

DISMISS HABEAS CORPUS PETITION

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Appendix C

Court of Appeals’ ORDER DENYING PETITION FOR

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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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Allied Chemical Co. v. Daiflon. Inc., 449 U.S. 33 (1980)..

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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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Bayard v. U.S.. 127 U.S. 246.................................................

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Banker’s Life & Cas. Co. v. Holland, 346 U.S. 379 (1953)

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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)....................................

5

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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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Chicot County v. Sherwood, 148 U.S. 529 (1893)...............

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Coleman v. Thompson, 501 U.S. 722 (1991).......................

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Conley v. Gibson, 355 U.S. 41 (1957)................................ .

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D&HMarketers. Inc, v. Freedom Oil Gas, Inc.,744 F.2sd 1943 (10th Cir. 1984)

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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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Ex parte American Steel Barrell Co, 230 U.S. 34 (1913)...................

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Ex parte Newman. 14 Wall. 152.............................................................

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Ex parte Fahey, 332 U.S. 258 (1947)

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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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Insurance Co. v. Comstock, 83 U.S. 258 (1872)

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Kerr v. U.S. District Court for Northern CA, 426 U.S. 394 (1976)

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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)....

i, 5, 6, 11, 20

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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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Moses H. Cone Memorial Hospital v. Mercury Const. Coro., 400 U.S. 1 (1983)

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Murray u. Carrier, 477 U.S. 478 (1986)......................

Passim

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Pennsylvania v. Finley. 481 U.S. 551 (1987).............

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Re Morrison. 147 U.S. 14...............................................

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Rini v. Katzenbach, 374 F.2d 836 (7th Cir. 1967)......

.....19, 20

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Roche v. Evaporated Milk Assn., 319 U.S. 21 (1943)

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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. Washinston, 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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Tumey v. Ohio, 273 U.S. 510 (1927)...........................

5, 10, 19

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U.S. v. Basley. 473 U.S. 667 (1985)............................

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U.S. v. Duett. 172 U.S. 576 (1899)...............................

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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 (10th 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)..................

13

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

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Will v. U.S.. 389 U.S. 90 (1967)...................................

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Williams, v. Taylor, 529 U.S. 362 (2000)...................

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vm

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

....2, 13

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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 mandamus issue to order Tenth Circuit

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Judges Carson, Baldock, and Murphy to review the judgments of the U.S. District

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Court, Central Utah District below.

OPINIONS BELOW

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For cases for federal courts:

The opinion of the United States Court of Appeals appears at Appendix A to

the petition and is unpublished.

The opinion of the United States District Court appears at Appendix B to the

petition and is unpublished.

JURISDICTION

The date on which the United States Court of Appeals, (“Court of Appeals”),

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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. Section 1651(a).1

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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.

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1 The Supreme Court and all courts established by Act of Congress may issue all

writs necessary or appropriate in aid of their respective jurisdiction and agreeable

to the usages and principles of law.” 28 U.S.C. §1651(a).

Page 1 of 24

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U.S. Constitution, Amendment V. (relevant portion)

No person shall be ... deprived of life, liberty, or property, without due

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35.

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)

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

Page 2 of 24

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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-Strickland-error2 at trial with the assistance of

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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 u. 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-Hrady-error3 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 Carrier4 standard, DC Doc. No. I,5 and Lynch filed a

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Motion for Appointed Counsel, (“first Motion for Counsel”), as a constitutional right

2 Strickland v. Washinston, 46 U.S. 668, 687 (1984) (ineffective assistance of

counsel).

3 Brady v. Maryland, 373 U.S. 83, 87 (1963) (where prosecutors unconstitutionally

withheld exculpatory evidence from the defense).

4 Murray v. Carrier. 477 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).

5 District Court Document Numbers reference as “DC Doc. No.”.

Page 3 of 24

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for access to the courts under Bounds v. 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

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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,6 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

6 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.

Page 4 of 24

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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.7 On March 25, 2019, the Court of Appeals

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denied the Petition for Rehearing. See App. C. This Petition for Writ of Mandamus

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Against Tenth Circuit Judges Carson, Baldock, and Murphy 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.” IcL, 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. Bagley, 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

7 “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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[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

146

process of law.” Turney v. OH. 273 U.S. 519, 532 (1927). Emphasis added. “A fair

147

tribunal is a basic requirement of due process [where] our system of law has always

148

endeavored to prevent the probability of unfairness.” In re Murchison, 349 U.S.

149

133, 136 (1955). Emphasis added. In other words, the Supreme Court has

150

established the rule of law that the Fifth and Fourteenth Amendment Due Process

151

Clause guarantees habeas corpus proceedings must be in a fair tribunal where the

152

judge has a duty to hold the balance nice, clear and true to prevent the probability

153

of unfairness, or the habeas petitioner is denied due process of law.

In this case, the District Court rendered judgments that violated

154

155

Lynch’s constitutional right to due process of law by: (1) holding Lynch was not

156

entitled to the “fundamental miscarriage of justice” exception under the Carrier

157

standard contrary to established law in Schlup, 513 U.S., at 321, 324, 327-328, 331-

158

332; (2) holding Lynch’s constitutional-Brady-errors were procedurally defaulted

159

contrary to established law in Martinez v. Ryan, 566 U.S., 1, 17 (2012); (3) making

160

false statements to deny Lynch’s actual-innocence claims contrary to established

161

law in Lisenba. 314 U.S., at 236; (4) holding a conclusion of law for summary

162

judgment on the credibility of new evidence presented contrary to established law in

163

Schlup. 513 U.S., at 332; and (5) failing to address allegations of false statements in

164

the Motion to Dismiss contrary to established law in Hazel-Atlas, 332 U.S., at 246.

165

Also, the Court of Appeals rendered an Order denying a COA that violated Lynch’s

166

constitutional right to due process of law by not addressing the claimed violations of

167

Federal rights raised in Lynch’s Brief contrary to established law in Chambers v.

168

Baltimore O. R. Co.. 207 U.S. 142, 148 (1907).

169

170

B.

Access to the Courts:

Under the Fourteenth Amendment Equal Protection Clause, the

171

Supreme Court held: “It is established beyond doubt that prisoners have a

172

constitutional right to access to the courts.” Bounds. 430 U.S., at 821. The District

173

Court rendered Orders that violated Lynch’s constitutional right of access to the

Page 6 of 24

174

Court by denying Lynch: (1) appointed counsel contrary to established law in

175

Bounds, 430 U.S., at 823, 828; (2) an adequate law library or legal assistance

176

contrary to established law in Lewis, 518 U.S., at 351; and (3) a remedy to prison

177

officials’ interference with presentation of claims to the Court contrary to

178

established law in Lewis, 518 U.S., at 349-350. Also, the Court of Appeals denied

179

Lynch’s constitutional right of access to the Court by procedurally denying Lynch

180

reasonable time to file a Petition for Rehearing of Order Denying COA contrary to

181

established law in Bounds, 430 U.S., at 821.

REASONS FOR GRANTING THE EXTRAORDINARY WRIT

182

183

184

185

I.

District Court’s Order Denying “Fundamental Miscarriage of Justice”

Exception Was Contrary To Established Law.

186

In Schluv, the Supreme Court established four criteria the habeas petition

187

must meet to be entitled to a “fundamental miscarriage of justice” exception under

188

the Carrier standard: (1) “this Court explicitly tied the miscarriage of justice

189

exception to the petitioner’s innocence,” Schluv, 513 U.S., at 321; (2) “when the

190

claimed injustice that constitutional error has resulted in the conviction of one who

191

is actually innocent of the crime,” id., at 324; (3) “to be credible, such a claim

192

requires petitioner to support his allegation of constitutional error with new reliable

193

evidence ... that was not presented at trial,” icL, and (4) “the application of the

194

Carrier standard arises in the context of a request for an evidentiary hearing,” id.,

195

at 331.

196

Lynch’s eleven claims of actual innocence, DC Doc. No. 1, at pp 92-104, met

197

the first criteria for the Carrier standard under Schluv. Lynch’s eleven

198

constitutional-Braafy-error claims, DC Doc. No. 1, at pp 59-79, and his four

199

constitu.tionail-Strickland-eYvor claims, id., at pp 80-92, met the second criteria for

200

the Carrier standard under Schluv. Lynch supported each constitutional-error and

201

actual-innocence claim with new reliable evidence that was not presented at trial,

202

DC Doc. No. 1, at pp 59-104, met the third criteria for the Carrier standard under

203

Schluv. And, Lynch requested an evidentiary hearing, DC Doc. No. 1, at p 109, met

204

the fourth criteria for the Carrier standard under Schluv. Also, the District court

Page 7 of 24

205

stated: ‘procedurally defaulted claims may be reviewed only if “the petitioner can

206

demonstrate cause and prejudice or a fundamental miscarriage of justice.” Thomas

207

V. Gibson. 218 F.3d 1213, 1221 (10th Cir. 2000)’. DC Doc. No. 59, at p 4. Emphasis

208

added. Thereby, the District Court and this Court of Appeals agree with the

209

Supreme Court that a “fundamental miscarriage of justice” exception applies to

210

Lynch’s Habeas petition as Lynch has shown it met the four criteria for this

211

exception for the Carrier standard under Schlup.

212

II.

213

214

215

District Court’s Failure To Apply Martinez Exception To Procedural Default

Was Contrary To Established Law.

In Martinez v. Ryan, the Supreme Court established:

216

217

218

219

220

221

“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.”

222

IcL, 566 U.S., at 17. See Trevino v. Thaler. 133 S.Ct., 1911, 1912, 1921 (2013) (citing

223

Martinez. 566 U.S., at 17); Avestas v. Davis. 138 S.Ct., 1080, 1083, 1096 (2018)

224

(same). As “Lynch filed pro se a PCRA Petition with the [Utah] District Court for

225

constitutional error at trial citing 18 claims of prosecutorial misconduct by

226

withholding exculpatory and impeachment evidence from Lynch,” DC Doc. No. 1, at

227

p 47, then a procedural default would not bar the District Court from hearing

228

Lynch’s claims of substantial constitutional-jBmc?v-error at trial. Id., at pp 59-79.

229

The District Court’s failure to apply this well-established exception by the Supreme

230

Court for procedural default to Lynch’s constitutional-Brady-error claims violated

231

Lynch’s Constitutional right to due process of law under the Fifth and Fourteenth

232

Amendment Due Process Clause contrary to established law in Martinez, 566 U.S.,

233

at 17, that reasonable jurists could debate whether Lynch’s Habeas case should

234

have been resolved in a different manner.

235

Page 8 of 24

236

237

III.

District Court’s False Statements Were Contrary To Established Law.

The District Court stated as fact that Lynch’s “evidence presented in [claims]

238

1, 3, 7, 8, 9 and 10 is not new, but was presented and considered at trial.” App. B,

239

at p 5. Emphasis added. This statement of fact is false for the following reasons:

240

Claim 1: “Testimony and exhibit evidence on the Victim’s pants.” Id. Lynch

241

presented new reliable evidence not presented at trial that the “exhibit evidence on

242

the Victim’s pants” was manufactured by the prosecution, see DC Doc. No. 1, at pp

243

59-61, which is evidence not presented and considered at trial.

244

Claim 3: “Location of the Victim’s back injuries.” App. B, at p 5. Lynch

245

presented new reliable evidence not presented at trial that the location of the fatal

246

back injury that severed the Victim’s spinal cord was at 49.2 inches and too high to

247

align with 37.25-inch height of the hood on Lynch’s truck, see DC Doc. No. 1, at pp

248

68-70, which is evidence not presented and considered at trial.

249

Claim 7: “Evidence that potential witness Maxwell saw a red truck in the

250

area of the accident.” App. B, at p 5. Lynch presented new reliable evidence not

251

presented at trial that Maxwell heard and saw a large red industrial truck, versus

252

Lynch’s white pickup truck, at the scene of the collision at the moment of the

253

collision, see DC Doc. No. 1, at pp 98-99, which is evidence not presented and

254

considered at trial.

255

Claim 8- “Evidence that a potential witness overheard a conversation about a

256

hit and run.” App. B, at p 5. Lynch presented new reliable evidence not presented

257

at trial that Michele Ashe told Det. Adamson she overheard one man confessing to

258

another man that he had accidently hit and killed a woman in Hollady, Utah, the

259

location of where the Victim was killed, and gave a description of the man

260

confessing, who looked nothing like Lynch, see DC Doc. No. 1, at pp 100-101, which

261

is evidence not presented and considered at trial.

262

Claim 9: “Testimony that the DNA evidence on the truck did not match the

263

Victim.” App. B, at p 5. Lynch presented new reliable evidence not presented at

264

trial that ‘Barbara Reed, the Crime Lab photographer, described the Victim’s pants

265

as “bloody.” Also, photographs taken by the M.E. of the Victim’s left and right

Page 9 of 24

266

calves show they both had significant open wounds.’ DC Doc. No. 1, at p 101. This

267

is new evidence that the impact vehicle would certainly have blood or tissue from

268

the Victim transferred to it from the collision, and after twice swabbing Lynch’s

269

truck for DNA samples, see id., at pp 16-17, 17-18, then this is new reliable evidence

270

Lynch’s truck was not the impact vehicle, which is evidence not presented and

271

considered at trial.

272

Claim 10: “Evidence about paint-and paint analysis.” App. B, at p 5, Lynch

273

presented new reliable evidence not presented at trial that the white paint tested

274

from the pants tested at the State Crime Lab showed inconsistencies with the white

275

paint sample taken from the hood on Lynch’s truck and was not from Lynch’s truck.

276

See DC Doc. No. 1, at pp 102-103. Also, Lynch presented new reliable evidence not

277

presented at trial that the “evidence about paint and paint analysis” was

278

manufactured by the prosecution. See id., at pp 59-61, 92-94. Thereby, this is

279

“evidence about paint and paint analysis” that was not presented and considered at

280

trial, that reasonable jurists could debate whether Lynch’s Habeas case should have

281

been resolved in a different manner.

c

282

As the District Court’s Order made false statements of fact to support its

283

judgment to dismiss these actual innocence claims, then the Order violated Lynch’s

284

constitutional right to due process of law under the Fifth and Fourteen Amendment

285

Due Process Clause and is contrary to established law in Turney, 273 U.S., at 532.

286

(“The requirement of due process of law in judicial procedure [requires a judge] to

287

hold the balance nice, clear and true between the State and the [petitioner, or it]

288

denies the latter of due process of law”).

289

290

291

292

IV.

293

294

295

296

297

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,

Page 10 of 24

298

299

300

301

302

303

304

305

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.’

IcL, 513 U.S., at 332.

306

In regard to Lynch’s actual-innocence claims 2, 4, 5 and 6, the District Court

307

agrees that these claims “involve evidence ... which were not presented during the

308

trial.” App. B, at p 6. But then the District Court concluded ‘this new evidence

309

alone is insufficient to determine that “it is more likely than not that no reasonable

310

juror would have convicted [Lynch] in light of [this] new evidence.” Calderon fv.

311

Thompson. 523 U.S. 538, 559 (1998)] (emphasis added).’ IcL Emphasis added. ‘The

312

habeas court must make its determination concerning the petitioner’s innocence “in

313

light of all the evidence.’” Schlup. 513 U.S., at 328. As the District Court cannot

314

assess the credibility of Lynch’s new evidence at this stage of the habeas proceeding

315

and the District Court must make its determination of the new evidence presented

316

in light of all the evidence. then the District Court’s Order dismissing Lynch’s

317

actual-innocence claims 2, 4, 5 and 6, because it has determined the new evidence

318

presented in these claims alone is insufficient. then the. Order violates Lynch’s

319

constitutional right to due process of law under the Fifth and Fourteenth

320

Amendment, Due process Clause and contrary to established law in Lisenba. 314

321

U.S., at 236 (‘due process guarantees that a [petitioner] will be treated with “that

322

fundamental fairness essential to the very concept of justice’”), that reasonable

323

jurists could debate whether Lynch’s Habeas case should have been resolved in a

324

different manner.

325

V.

326

327

328

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

329

September 4, 2018, Lynch filed an Objection to Motion to Dismiss, DC Doc. No. 41,

330

alleging Respondent made eleven false statements of fact or law. Lynch showed

Page 11 of 24

331

with facts in the court record or relevant legal authority Respondent’s statements

332

were false on the following issues: (1) Respondent misrepresented Coleman v.

333

Thompson. 501 U.S. 722, 729-732, 735 n. 1 (1991) as a relevant authority to

334

procedurally default Lynch’s constitutional--Bm<7v-error claims, see DC Doc. No. 41,

335

at pp 64-65; (2) Respondent misrepresented Coleman, supra, as a relevant authority

336

to procedurally default Lynch’s constitutional-Stnckland-exror claims, see id., at pp

337

66-67; (3) Respondent made a false statement to support his allegation there was a

338

tow hook on the front of Lynch’s truck, see id., at pp 68-69; (4) Respondent made a

339

false statement to support his allegation Lynch had not shown any apparent conflict

340

between the Victim’s injuries and truck’s grill, see id., at p 69; (5) Respondent made

341

a false statement that defense counsel elicited an admission that Det. Adamson

342

never had the substance on the zip tie tested on cross-examination, see idL, at p 75;

343

(6) Respondent made a false statement to support his allegation Det. Adamson

344

admitted nothing in the paint analyst’s report matched the white substance on the

345

zip tie to paint on Lynch’s truck, see id., at pp 75-76; (7) Respondent made a false

346

statement Lynch had not shown prejudice in his Strickland claim that defense

347

counsel failed to present Maxwell as a witness, see id., at p 82; (8) Respondent made

348

a false statement Lynch had not said what Maxwell would have testified to at trial,

349

see id., at p 83; (9) Respondent made a false statement Lynch had to explain how

350

testimony could have created reasonable likelihood on appeal, see id., (10)

351

Respondent made a false statement there is no prejudice to accumulate Lynch’s

352

constitutional-error claims, see id., at p 88; and (11) Respondent made a false

353

statement that free-standing claims of innocence are not cognizable, see id., at pp

354

88-91.

355

As the District Court’s Order failed to address Respondent’s eleven false

356

statements made to support his Motion to Dismiss, then the Order violated Lynch’s

357

constitutional right to due process of law under the Fifth and Fourteenth

358

Amendment Due Process Clause and contrary to established law in Hazel-Atlas, 332

359

U.S., at 246 (it “is a wrong against the institutions set up to protect and safeguard

Page 12 of 24

360

the public, institutions in which fraud cannot complacently be tolerated”)8, that

361

reasonable jurists could debate whether Lynch’s Habeas case should have been

362

resolved in a different manner.

363

VI.

364

365

366

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

367

right to access to the courts under the Fourteenth Amendment Equal Protection

368

Clause established by the Supreme Court, citing Bounds, 430 U.S., at 825, as a

369

relevant authority because the Utah prisons were lacking the “most minimal legal

370

research materials” and that “the legal services provided to assist the prisoner are

371

grossly inadequate,” citing Adams. 123 P.3d, at 406 (Utah 2005), as relevant

372

authority.9

373

“The Court notes that Petitioner has no constitutional right to appointed pro

374

bono counsel in [this] habeas corpus case,” citing as its seemingly relevant authority

375

United States v. Lewis. No. 97-3135-SAC, 91-0047-01-SAC, 1998 WL 105477, at 3

376

(D. Kan. December 9, 1998). DC Doc. No. 14, at p 1. (“There is no constitutional

377

right to appointment of counsel in a §2255 proceeding. See United States v.

378

Vasauez, 7 F.3d 81, 83 (5th Cir. 1993)”). Vasauez stated: “No such right [of

379

appointed counsel] flows from the Constitution. Pennsylvania v. Finley. 481 U.S.

380

551, 555 (1987) (No Sixth Amendment right to appointed counsel extends to

381

prisoners collaterally attacking their convictions).” Id.. 7 F.3d, at 83. However,

382

Finley held “the underlying constitutional right to appointed counsel [in Federal

8 See also i.d.. 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”).

9 “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 24

1

{

I

383

habeas corpus proceedings was] established in Douglas v. California, 372 U.S. 353

384

(1963).” Id., 481 U.S., at 555.

385

In other words, while an indigent habeas corpus petitioner has no constitutional

386

right to counsel under the Sixth Amendment, he does have a constitutional right to

387

appointed counsel under the Fourteenth Amendment Equal Protection Clause for

388

access to the courts. The District Court’s analysis of constitutional law on this issue

389

was based on an obscure irrelevant authority that was “not reported in F. Supp. 2d

390

(1998),” see Lewis. 1998 WL 1054227, that is contrary to established law that

391

‘counsel must be appointed to give indigent inmates “a meaningful appeal” from

392

their convictions,’ Bounds, 450 U.S., at 822, that reasonable jurists could debate

393

whether Lynch’s Habeas case should have been resolved in a different manner.

394

395

396

397

VII.

398

Counsel, DC Doc. Nos. 14, 40, Lynch filed a Motion for Law Library, DC Doc. No.

399

58. The District Court denied the Motion because “a legal-access claim such as the

400

one Petitioner suggests is not appropriate in this habeas corpus case but would be

401

more properly addressed in a civil right complaint regarding conditions of

402

confinement.” App. B, at p 16.

403

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

404

of class action civil rights suits, Lynch is unaware of any caselaw or statute that a

405

civil suit to order prison authorities to provide inmates with a law library or legal

406

assistance program must be separate from a 28 U.S.C. §2254 civil suit. In fact, it

407

would be during the proceedings of a 28 U.S.C. §2254 civil suit that the need would

408

manifest itself for a habeas corpus petition file for an injunction with the habeas

409

court for the Constitutional right of access to a law library or legal assistance

410

program for meaningful legal papers to be filed with the courts under the

411

Fourteenth Amendment, Equal Protection Clause, and not in another civil suit after

412

the habeas corpus petitioner has had his habeas corpus petition dismissed, which is

413

now the case for Lynch.

Page 14 of 24

414

As the District Court’s denial of Lynch’s Motion for Law Library has caused

415

injury to Lynch due to the District Court’s wrongful dismissal of Lynch’s Habeas

416

Petition, which more likely than not would not have occurred if Lynch had had

417

access to a law library or legal assistance program to enable Lynch to file

418

meaningful legal papers with the District Court, and as the District Court denied

419

Lynch’s Motion for Law Library without citation to any relevant legal authority,

420

and as the District Court’s denial of Lynch’s Motion for Law Library was contrary to

421

established law in Bounds, 430 U.S., at 821-823, 825-826, 828; Lewis. 518 U.S., at

422

349-351,

423

424

425

426

427

428

429

430

431

432

(‘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

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’),

433

then the District Court’s denial of Lynch’s Motion for a Law Library was

434

contrary to established law that reasonable jurists could debate whether

435

Lynch’s Habeas case should have been resolved in a different manner.

436

437

438

VIII. District Court’s Denial Of Motion Not To Transfer Lynch Was Contrary to

Established Law.

439

Lynch was incarcerated in the Utah State Prison (“USP”), Draper, Utah on

440

January 29, 2009. Within the year following the filing of his Habeas Corpus

441

Petition on May 25, 2017, DC Doc. No. 1, prison officials had transferred Lynch

442

three (3) times between USP, Draper and the Central Utah Correctional Facility

443

(“CUCF”), Gunnison, Utah. See DC Doc. Nos. 8, 10, 26. During the process of each

444

transfer, Lynch was separated from the legal materials he needed for access to the

445

courts for up to three (3) weeks. As Lynch is a pro se litigant in his habeas case, the

446

separation from these legal materials by prison officials violated Lynch’s

447

constitutional right to access to the District Court under the Fourteenth

Page 15 of 24

448

Amendment Equal Protection Clause as established by the Supreme Court’s

449

decision in Bounds. 430 U.S., at 821 (“It is estabhshed beyond doubt that prisoners

450

have a constitutional right to access to the courts”). The Supreme Court has also

451

estabhshed under Lewis. 518 U.S., at 349-350 (“[I]t is the role of courts to provide

452

relief to claimants, in individual or class actions, who have suffered, or wih

453

imminently suffer actional harm. ... It is for the courts to remedy past or imminent

454

official interference with individual inmates’ presentation of claims to the courts.”

455

In an effort to prevent further violations by prison official’s interference with this

456

constitutional right to access to the District Court, Lynch filed his Motion Not to

457

Transfer Lynch, DC Doc. No. 19, citing as relevant authority Bounds, supra, and

458

Lewis, supra. The District Court’s August 30, 2018 interlocutory Order denied said

459

Motion because “the Court has been liberal in granting time extensions for

460

petitioner and sees no need to impose an injunction on Respondent.” DC Doc. No.

461

40, at p 1. This bandaid remedy does not cover any future time when Lynch is

462

transferred to another Utah prison facility, separating Lynch from his needed legal

463

materials for weeks at a time, which could cause Lynch not to be able to file a

464

timely motion for extension of time that would be procedurally barred by the

465

District Court, which would result in prejudice to Lynch due to loss of a critical legal

466

issue by default for the Lynch and his habeas case.

467

As the District Court had a duty and the judicial authority to remedy the

468

imminent suffering of actual harm by the Prison’s official interference with his

469

constitutional right to access to the courts, then the District Court’s denial of

470

Lynch’s Motion Not to Transfer was contrary to established law in Lewis, 518 U.S.,

471

at 349-350, cited above, that reasonable jurists could debate whether Lynch’s

472

Habeas case should have been resolved in a different manner.

473

474

475

IX.

District Court’s Denial Of Motion To Purchase Computer Was Contrary To

Established Law.

476

Previously, when Lynch requested documentation with assistance of counsel

477

from Utah State agencies involved in collecting, analyzing or processing of evidence

478

for the crimes which Lynch was convicted, the agencies had provided the

Page 16 of 24

479

documentation in the format it was stored, to wit, digitally on CD-Rs. As Lynch

480

was then represented by counsel, then accessing digitally stored documents was not

481

an issue because counsel could provide copies as printed documents. And, as the

482

USP, Draper had provided access to a laptop computer for inmates to view digitally

483

stored documents, then it was not an issue for nro se incarcerated litigants to have

484

documents provided digitally. However, on March 19, 2018, Captain Crane, the

485

officer with overall responsibility for the facility Lynch was housed at that time,

486

informed him that the Warden had withdrawn the privilege for inmate access to

487

these laptop computers due to security issues dealing with unauthorized use of CR-

488

Rs, flash drives, and thumb drives by some inmates. See DC Doc. No. 24, at p 3.

489

‘It is now established beyond doubt that prisoners have a constitutional right

490

of access to the courts ... to give indigent inmates “a meaningful appeal” from their

491

convictions. Douglas v. California. 322 U.S. 353, 358 (1963).’ Bounds, 430 U.S., at

492

821-822. “Moreover, our decisions have consequently required States to shoulder

493

affirmative obligations to assure all prisoners meaningful access to the courts.” Id.,

494

at 824. And, “it is often more important that a prisoner’s complaint sets forth a

495

nonfrivolous claim meeting all procedural prerequisites, since the court may pass on

496

the complaint’s sufficiency ... and may dismiss the case if it is deemed frivolous. ...

497

Even the most dedicated trial judges are bound to overlook meritorious cases

498

without the benefit of an adversary presentation.” Id., at 826. “It is the rule of

499

courts to remedy past or imminent official interference with individual inmates’

500

presentation of claims to the courts.” Lewis. 518 U.S., at 349-350.

501

502

503

504

505

506

507

508

509

510

511

‘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.

Page 17 of 24

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.” LL, at 825.’ Id., at 350-351.

(Emphasis added.)

512

513

514

515

516

517

518

As to Lynch’s Motion for Purchase of Computer, the District Court did not

519

have to deny Lynch’s request et al.. but could have insured Lynch’s constitutional

520

right to view digitalized legal documents for his access to the courts by ordering the

521

Warden, the Respondent, to provide in each housing unit a laptop computer for all

522

inmates who needed to view digitalized legal documents for access to the courts.

523

But the District Court decided to Order “Petitioner’s Motion to Order

524

Respondent to Contract with Lynch for Purchase of a Computer is DENIED. (DC

525

Doc. No. 24.) This request is simply not legally supportable.” DC Doc. No. 40, at p

526

1. As the District Court failed to cite any legal authority to support its denial, then

527

its denial of Lynch’s said Motion can be construed as “arbitrary,” and thereby an

528

abuse of discretion. See U.S. v. Wright, 826 F.2d, 938, 943 (10th Cir. 1987). (“Abuse

529

of discretion occurs when a judicial determination is arbitrary”). Additionally, an

530

abuse of discretion occurs when a district court makes “an overriding of the law by

531

the manifestly unreasonable judgment... as shown by ... the.record of proceedings.”

532

Id., As the District Court’s interlocutory Order on this issue, DC Doc. No. 40, at p 1,

533

was contrary to law on the Fourteenth Amendment Equal Protection Clause for

534

access to the courts as established by the U.S. Supreme Court decisions of Bounds,

535

430 U.S., supra, and Lewis, 518 U.S., supra, then the District Court’s said Order

536

was contrary to established law that reasonable jurists could debate whether

537

Lynch’s Habeas case should have been resolved in a different manner.

538

X.

539

540

541

542

Reasons A Writ Of Mandamus Should Be Issued.

A.

Court of Appeals’ Order Denying COA Was Contrary To Established

Law.

Subsequent to Lynch’ Notice of Appeal, the Court of Appeals ordered

543

Lynch to file an Appellant’s Combined Opening Brief and Application for a

544

Certificate of Appealability. On January 28, 2019, Lynch mailed to the Court of

Page 18 of 24

545

Appeals his Combined Opening Appellant Brief, (“Appellant Brief’), and Application

546

for Certificate of Appealability, (“Request for COA”). On February 19, 2019, the

547

Court of Appeals denied Lynch’s Request for COA ‘because Lynch has not “made a

548

substantial showing of the denial of a constitutional right,” [28 U.S.C.] §2253(c)(2).’

549

App. A, at p 1. Also:

550

551

552

553

554

555

556

557

558

559

560

561

562

563

564

565

“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 appeal are not adequate to

deserve further proceedings. Furthermore, it cannot be reasonably

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.

First: As the Court of Appeals did not address specifically any of the

566

substantial constitutional “issues [Lynch] seeks to raise on appeal” that are

567

“adequate to deserve further proceedings,” id, supra, that are substantiated with

568

citation to facts in the record and relevant established law, see Appellant Brief, at

569

pp 13-23, and Lynch’s “complaint concludes that [he] has indeed been denied

570

substantial constitutional rights, [where a l]iberal construction is to be accorded to a

571

pro se complaint,” Sisafus v. Brown. 416 F.2d 105, 106 (7th Cir. 1969); 106 n. 4,10

572

then the Court of Appeals’ Order denying Request for COA, see App. A, at p 1,

573

violated Lynch’s constitutional right to due process of law under the Fifth and

574

Fourteenth Amendment Due Process Clause, which is contrary to established law

575

under Turney. 273 U.S., at 532 (“not to hold the balance nice, clear and true ...

10 “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).”

Page 19 of 24

>

576

denies the [petitioner] of due process of law”), that reasonable jurists could debate

577

whether Lynch’s Request for COA should have been resolved in a different manner.

578

Second: The Court of Appeals “concludes it is unnecessary to

579

recapitulate the district court’s careful analysis of “Lynch’s request for appointed

580

counsel, provisions of a law library, ability to purchase a computer, and the ability

581

to block his transfer to another facility.” Ann. A. supra. The Court of Appeals could

582

not “recapitulate the district court’s careful analysis” because there is nothing in the

583

District Court’s record to show it performed any “analysis,” “careful” or otherwise, of

584

these Federal issues Lynch raised in his Brief, as the District Court had presented

585

no facts from the record or citation to established law to rebut Lync’s claims of

586

violation to his constitutional right of access to the courts established by Bounds.

587

430 U.S., at 821, 823, 825, 828, 828 n. 17; Lewis. 518 U.S., at 349-350, 351, under

588

the Fourteenth Amendment Equal Protection Clause. Thereby, the Court of

589

Appeals’ conclusion of fact is a false statement that fails as a matter of law and

590

violates Lynch’s constitutional right of due process of law under the Fifth and

591

Fourteenth Amendment Due Process Clause, which is contrary to established law in

592

Lisenba. 314 U.S., at 236 (“that fundamental fairness is essential to the very

593

concept of justice”), that reasonable jurists could debate whether Lynch’s Request

594

for COA should have been resolved in a different manner.

595

Third: Since Lynch’s complaint concludes he has been denied the

596

substantial constitutional right of access to the courts from the denial of his

597

“request for appointed counsel, provisions of a law library, ability to purchase a

598

computer, and the ability to block his transfer to another facility,” CA Doc. No. 40,

599

at p 4, under the Fourteenth Amendment Equal Protection clause, then a liberal

600

construction is to be accorded Lynch as a pro se complainant. See Sisafus, 416

601

F.2d, at 106; Diosuardio. 139 F.2d, at 775; Rini. 374 F.2d, at 873. And, as each

602

“Federal question was decided against the claim of Federal rights, and the decision

603

of the question was essential to the judgment rendered[, then t]his is enough to give

604

this Court the authority to re-examine [each] question on writ of error,” Chambers.

605

207 U.S., at 148, as a violation of Lynch’s constitutional right of access to the courts

Page 20 of 24

606

that jurists could debate whether Lynch’s Request for COA should have been

607

resolved in a different manner.

608

B.

Lynch’s Appeal Was Timely.

Rules of United States Court of Appeals, (“RACP”), “govern procedures

609

610

in the United States court of appeals.” RACP Rule 1(a)(1). “In a civil case the

611

notice of appeal required by Rule 3 must be filed with the district court within 30

612

days after entry of the judgment.” RACP Rule 4(a)(1)(A). On December 10, 2018,

613

Lynch filed his Notice of Appeal with the District Court. See DC Doc. No. 66. As

614

the District Court filed its final judgment on November 21, 2018, see DC Doc. No.

615

59, then Lynch’s Notice of Appeal was timely.

616

617

618

C.

Constitutional Questions From A District Court Must First Be Passed

Upon Bv A Circuit Court.

619

The Supreme Court has established: “As a means of implementing the

620

rule that the writ [of mandamus] will issue only in extraordinary circumstances, we

621

have set forth various conditions for its issuance. Among these are that the party

622

seeking issuance of the writ have no other means to attain the relief he desires.

623

Roche v. Evaporated, Milk Assn., [319 U.S. 21, 26 (1943)].” Kerr v. U.S. District

624

Court for Northern CA, 426 U.S. 394, 403 (1976). Emphasis added. See also. Ex

625

parte American Steel Barrel Co.. 230 U.S. 34, 45 (1913) (“The writ of mandamus will

626

be granted by the court when it is clear and indisputable that there is no other legal

627

remedy. Ex parte Newman, 14 Wall. 152, 165; Bayard v. United States, 127 U.S.

628

246; Re Morrison. 147 U.S. 14”) (emphasis added). The Supreme Court established

629

it “is not inclined to re-examine any questions coming up from the District Court

630

until they have first been passed upon by the Circuit Court.” Insurance Co. v.

631

Comstock. 83 U.S. 258, 270 (1872). See Will v. Calvert Fire Ins. Co.. 437 U.S. 655,

632

662 (1978) (‘where a court persistently and without reason refuses to adjudicate a

633

case properly before it, the court may issue the writ [of mandamus] “in order that

634

[it] may exercise the jurisdiction of review given by law.” Insurance Co.. 83 U.S., at

635

270. “Otherwise the appellate jurisdiction could be defeated and the statute

)*

Page 21 of 24

636

authorizing the writ thwarted by unauthorized action of the court obstructing the

637

appeal.” Roche fv. Evaporated Milk Assn.. 319 U.S. 21, 26 (1943)]’).

Lynch presented nine (9) constitutional questions in his Appellant’s

638

639

Combined Opening Brief and Application for Certificate of Appealability ordered by

640

the Court of Appeals. It was the Court of Appeals’ duty to examine Lynch’s nine (9)

641

constitutional questions from the District Court’s final judgment. See Chicot

642

County v. Sherwood. 148 U.S. 529, 534 (1893) (“courts of the United States are

643

bound to proceed in every case to which their jurisdiction extends”) (emphasis

644

added). This view is also supported by the Tenth Circuit Court of Appeals, itself.

645

See D & HMarketers. Inc, v. Freedom Oil & Gas. Inc., 744 F.2d 1443, 1444 (10th

646

Cir. 1984) (“Jurisdiction to consider an appeal is not discretionary but is

647

circumscribed by 28 U.S.C. §1291) (emphasis added).

648

D.

Lynch’s Anneal Was The Only Means To Attain Relief.

649

The Supreme Court has established: “As a means of implementing the

650

rule that the writ [of mandamus] will issue only in extraordinary circumstances, we

651

have set forth various conditions for its issuance. Among these are that the party

652

seeking issuance of the writ have no other means to attain the relief he desires.

653

Roche v. Evaporated Milk Assn., [319 U.S. 21, 26 (1943)].” Kerr, 426 U.S., at 403.

654

Emphasis added. Thereby, as shown in Part X. C. above that this Supreme Court

655

“is not inclined to re-examine any questions coming up from the District Court until

656

they have first been passed upon by the Circuit Court,” Insurance Co., 83 U.S., at

657

270, then Lynch’s Appeal to the Court of Appeals was the only adequate means

658

Lynch had for examination of his nine (9) constitutional questions from the District

659

Court’s final judgment.

660

661

E.

Lynch’s Right To A Writ Of Mandamus Is Clear And Undisnutable.

The Supreme Court established “movant must show that his right to

662

the writ [of mandamus] is clear and undisnutable.” Moses H. Cone Memorial

663

Hospital u. Mercury Const. Coro.. 400 U.S. 1, 18 (1983). Emphasis added. See also

664

Will v. Calvert Fire Ins. Co., 437 U.S. 655, 662 (1978) (It is essential that the

665

moving party satisfy “the burden of showing that [his] right to issue of the writ is

Page 22 of 24

666

‘clear and undisputable.’” Banker’s Life & Cas. Co. v. Holland. 346 U.S. 379, 384

667

(1953), quoting United States v. Duell. 172 U.S. 576, 582 (1899)’).11 As shown in

668

Part X. D. above, Petitioner has shown he has a clear and undisputable right for a

669

writ of mandamus to order the Court of Appeals to exercise its authority and do its

670

duty to review the merits of Lynch’s Appeal.

671

672

673

674

F.

Issuance Of This Writ Of Mandamus Is To Compel The Court of

Appeals to Exercise Its Jurisdiction To Do Its Duty.

The Supreme Court established ‘that the writ of mandamus “has

675

traditionally been used in the federal courts only ‘to confine an inferior court to a

676

lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority

677

when it is its duty to do so.’” Will v. United States. 389 U.S. 90, 95 (1967), quoting

678

Roche v. Evaporated Milk Assn.. 319 U.S. 21, 26 (1943).’ Allied Chemical Cory, v.

679

Daiflon. Inc.. 449 U.S. 33, 35 (1980). Emphasis added. See also Will, 437 U.S., at

680

661 (same); Kerr. 426 U.S., at 402 (same). “It is not disputed that the remedy of

681

mandamus is a drastic one, to be invoked only in extraordinary situations. Will v.

682

United States. 389 U.S. 90, 95 (1967); Banker’s Life & Cas. Co. v. Holland, 346 U.S.

683

375, 382-385 (1953); Ex parte Fahey. 332 U.S. 258, 259 (1947).” Allied Chemical.

684

449 U.S., at 34. Emphasis added. “The reason for this Court’s chary Authorization

685

of mandamus as an extraordinary remedy have often been explained. See Kerr v.

686

United States District Court, 426 U.S. 394, 402-403 (1976).” Id., at 35. In this case,

687

the purpose of the writ of mandamus is to compel the Court of Appeals to exercise

688

its jurisdiction and duty to examine Lynch’s nine (9) constitutional questions from

689

the District Court’s final judgment.

690

CONCLUSION

691

As the Supreme Court is not inclined to examine constitutional questions

692

from the District Court’s final judgment until they have first been passed upon by

693

the Court of Appeals, and the Court of Appeals repeatedly declined without reason

u “ Nothing is better settled than that the writ of mandamus will not ordinarily be

granted if there is another legal remedy, nor unless the duty sought to be enforced

is clear and indisputable.” Duell. 172 U.S., at 582. Emphasis added.

Page 23 of 24

694

to examine Lynch nine (9) constitutional questions from the District Court’s final

695

judgment, which was within the Court of Appeals’ jurisdiction and was its duty to

696

do so, then it is clear and undisputable there is no other legal remedy than for the

697

Supreme Court to issue an extraordinary writ of mandamus against Tenth Circuit

698

Court Judges Carson, Baldock, and Murphy to examine Lynch’s nine (9)

699 .

constitutional questions from the District Court’s final judgment.

700

Respectfully submitted,

701

702

703

704

705

706

707

708

Sherman A. Lynch

Petitioner, pro se

Dated: October 2/ . 2019.

709

Page 24 of 24

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.

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