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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Page 1 of 1
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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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V
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)..........................
13
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Asosto v. I.N.S.. 436 U.S. 748 (1978)....................................
10
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Allied Chemical Co. v. Daiflon. Inc., 449 U.S. 33 (1980)..
23
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Anderson v. Liberty Lobby. 477 U.S. 242 (1986)................
10
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Avestas v. Davis. 138 S.Ct. 1080 (2018)...............................
8
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Bayard v. U.S.. 127 U.S. 246.................................................
21
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Banker’s Life & Cas. Co. v. Holland, 346 U.S. 379 (1953)
23
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Bell v. Cone. 535 U.S. 685 (2002)..........................................
5
175
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).......................
11
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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)...............
21
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Coleman v. Thompson, 501 U.S. 722 (1991).......................
12
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Conley v. Gibson, 355 U.S. 41 (1957)................................ .
2
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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)...........................
19, 20
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Douslas v. California, 372 U.S. 353 (1963)..........................................
14, 17
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Estelle v. Gamble. 429 U.S. 97 (1976).....................................................
2
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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.............................................................
21
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Ex parte Fahey, 332 U.S. 258 (1947)
................................................
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Haines v. Kerner, 404 U.S. 519 (1972)...................................................
2
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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).............
5
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Insurance Co. v. Comstock, 83 U.S. 258 (1872)
22
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21, 22, 23
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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)
3
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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).......
19
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Moore v. Illinois, 408 U.S. 786 (1972)..............
5
201
Moses H. Cone Memorial Hospital v. Mercury Const. Coro., 400 U.S. 1 (1983)
22
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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).............
13
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Re Morrison. 147 U.S. 14...............................................
21
205
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)
21, 22, 23
207
S&E Contractors. Inc, v. U.S.. 406 U.S. 1 (1972)......
13
208
Schlup v. Delo, 513 U.S. 278 (1995).............................
Passim
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Sisafus v. Brown, 416 F.2d 105 (7th Cir. 1969).........
19, 20
210
Slack v. McDaniel 529 U.S. 473 (2000).....................
19
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Strickland v. Washinston, 466 U.S. 668 (1984)........
3
212
Thomas v. Gipson, 218 F.3d 1213 (10th Cir. 2000)....
8
213
Trevino v. Thaler. 133 S.Ct. 1911 (2013)....................
8
214
Tumey v. Ohio, 273 U.S. 510 (1927)...........................
5, 10, 19
215
U.S. v. Basley. 473 U.S. 667 (1985)............................
5
216
U.S. v. Duett. 172 U.S. 576 (1899)...............................
23
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U.S. v. Lewis. 1998 WL 105477 (D. Kan. 1998).......
13
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U.S. v. Wrisht. 826 F.2d 938 (10th Cir. 1987)...........
18
219
U.S. v. Valenzuela-Bernal, 548 U.S. 858 (1982).......
5
220
U.S. v. Vasauez. 7 F.3d 81 (5* Cir. 1993)..................
13
221
Will v. Calvert Fire Ins. Co., 437 U.S. 655 (1978)....
22, 23
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Will v. U.S.. 389 U.S. 90 (1967)...................................
23
223
Williams, v. Taylor, 529 U.S. 362 (2000)...................
5
vm
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225
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CONSTITUTIONAL PROVISIONS
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U.S. Constitution, Article III (relevant portions)......
1
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U.S. Constitution, Amendment V (relevant portions)
Passim
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U.S. Constitution, Amendment VI..............................
....2, 13
230
U.S. Constitution, Amendment XIV, Section 1..........
Passim
231
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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
124
the United States, shall be vested in one Supreme Court, and such inferior Courts
125
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
127
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
129
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
134
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
141
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).
143
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).
Page 5 of 24
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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
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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.