Petition for Writ of Certiorari — William Marion Patterson, III, Petitioner v. United States

IN THE SU

COURT OF THE UNI TED STATE S

W'"

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UNITED STATES OF AMERICA

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V

Supreme Court, U S

FILED

WILLIAM MARION PATTERSON

OCT 0 7 2022

PETITION FOR CERTIORARI

OFFICE OF THE CIFbk-

'..irc'.f.c Court of A

ON APPEAL FROM THE ELEVENTH CIRCUIT

COURT OF APPEALS

No. 21-1 0483-JJ

PRO SE

William M. Patterson, III #67378-018

Federal Satellite Low

2680 U.S. Hwy 301 South

Jesup, GA 31599

REChlVED

OCT 1 2 2022

k'

Questions Presented

1. Whether the Staff Attorney Program in the Eleventh Circuit and the Middle District

of Florida violate the non-delegation principles of Article III duties to non-Article

III decision makers; exceeding the limited rule making authority of the federal courts.

2. Whether Pro Se appeals are Unconstitutionally being decided by Staff Attorneys who

are supervised not by Article III judges, but rather by "Supervisory" Staff Attorney,

thereby reducing the quality of decision by the lower courts and allowing for opinions

seemingly issued by Article III judges, but in reality issued by non-judicial actors

who are frequently only a year or two out of law school, who have abitions to become

prosecutors

(thereby compromising impartiality),

and with only

"rubber stamping" by

Article III judges which results in a "pay to play" venue in the lower courts as Pro

Se filers under this scheme do not have access to Article III Judge determinations,

while counseled petitions do have such access.

3. Whether the "law of the case" doctrine requires a court to at the very least explain

why it is reversing a decision held previously in the same case - or to "stick with:

the previously held decision.

4.

Whether the inclusion of

definition

of

"child

simple receipt and possession of pornography under the

predator"

or

even

"sex

offender"

represents

an

irrebuttable

presumption that is overly broad in definition, and if so whether reliance on "the

nature and characteristics" of the crime under the §3553(a) Factors to justify a denial

of "compassionate release" under 18 U.S.C. § 3582(c)(1)(A)r in light of the evidence

actually presented before the lower courts and the Sentencing Commission's study on noncontact offense recidivism.

i

if

Table of Contents

Questions Presented

i

Table of Contents

ii

Table of Authorities

iv

Petition For a Writ of Certiorari

1

Opinions Below

1

Jurisdiction

1

Statutory Provisions Involved

1

Statement of the Case

2

Reasons For Granting the Petition

4

I. Problems Caused By the Delegation of Prisoner

Pro Se Cases

4

A) Increased Workload on The Supreme Court

4

B) Claims that Cannot Be Delegated

4

C) Opinions That Cannot Be Delegated

8

D) Tasks That Cannot Be Delegated

10

II. Law-of-the-Case Doctrine Precludes Reversing

Previously Held Decisions

11

A) Whether the Doctrine of "Law-of-the-Case" Precludes

the District Court From Changing Its Analysis of the

18 U.S.C. § 3142(g) Factors As Determined In Patterson's

Detention Hearing

11

B) The Irrebuttable Presumption of Patterson's Dangerousness

Violates Supreme Court Precedent

12

Conclusion

15

Certificate of Service

16

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

ii

i

Appendix C

Appendix D

Appendix E

iii

Table of Authorities

Commodity Futures Trading Comm'n v Schor, 478 U.S. 833, 844(1986)

2,4

Geras v Lafayette Display Fixtrures, Inc, 742 F.2d 1037, 1046(7th Cir. 1984)

8,10

INS v Chadha, 464 U.S. 919, 944 (1983)

6

Murray's Lessee v Hoboken Land & Imp.Co • r 59 U.S. 272, 284(1855)

6

N. Pipeline Constr. Co. v Marathon Pipe Line Co • r 458 U.S. 50,

86-87 (1982)

4, 6

Northern Pipeline v Marathon, 458 U.S. 50 (1982)

4, 5

Sanders v Union Pac. R.R.Co • 9 193 F.3d 1080, 1082 (9th Cir. 1999)

9,11

Stern v Marshall, 564 U.S. 462, 469 (2011)

5, 6

Thomas v Union Carbide Agric. Products Co • 9 473 U.S. 568, 582(1985)

4

United States

v Cobb, 856 Fed. App'x 812, 813 (11th Cir. 2021)

1

United States

v Cook, 998 F.3d 1180 (11th Cir. 2021)

2

United States

v Fair, 326 F.3d 1317, 1318 (11th Cir. 2003)

3,11

United States v Reiser, No. 305-CR-80, 2006 WL 3751452, at *3

(D.N.D. Dec. 19, 2006)

2, 9,11

United States v Sigma International, 244 F.3d 841, 853 (11th Cir. 2001)

7

United States v Sloan, 811 F.2d 1359, 1362 n.2 (10th Cir. 1987)

2, 9

United States v Will, 449 U.S. 200 (1980)

4

United States v Visinaiz, 428 F.3d 1300, 1313 n. 4 (10th Cir. 2005)

9,11

Riley v Deeds, 56 F.3d 1117, 1118-20 (9th Cir. 1995)

2, 8,10

United States v Bueno-Sierra, 806 Fed. App'x 676, 678

(11th Cir. 2020)

11

Cristianson v Colt, 486 U.S. 800, 815-15 (1988)

11

United States v Desoto, 2018 U.S. App. LEXIS 24106, at *3

(11th Cir. 2018)

12

Turner v Dep't of Employment Security, 423 U.S. 44, 96 S.Ct. 249,

46 L.Ed 2d 52 (1975)

12

Cleveland Bd. of Education v LaFluer, 414 U.S. 632, 94 S.Ct. 791,

39 L.Ed 2d 52 (1974)

12

Vlandis v Kline, 412 U.S. 441, S.Ct. 2230, 37 L.Ed 2d 63 (1973)

12

Stanley v Illinios, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed 2d 551 (1972)

12

Bell v Burson, 402 U.S. 535, 91 L.Ed 2d 90 (1971)

12

Gurmankin v Costanzo, 556 F.2d 184, 187 and n. 5 (3d Cir. 1977)

12

Pro Se Filers are to be held to a less stringent standard.

iv

Table of Authorities (Cont'd)

Statutes Referenced

28 U.S.C. § 715

1

34 U.S.C. § 20901

14

34 U.S.C. § 20911(7)(G)

14

Other Authorities

Marin K. Levy, Judicial Attention as a Scarce Resource: A Preliminary

Defense of How Judges Allocate Time Accross Cases in the Federal Courts

of Appeals, 81 GEO. WASH. L. REV. 401, 414-15 (2013)

7

Penelope Pether, Sorcerers, Not Apprentices: How Judicial Clerks and

Staff Attorneys Impovrish U.S. Law, 39 ARIZ.ST.L.J. 1, 2-5 (2007)

7

Parker B. Potter, Jr • / Law Clerks Gone Wild, 34 Seatlle U.L.Rev.

173, 184-85 (2010)

8

Polly J. Price, Precedent and Judicial Power After the Founding, 42 B.C.L.

Rev. 81, 111 (2000)

7

Wade H. McCree, Bureaucratic Justice: An Early Warning, 129 U.Pa.L.Rev.

777, 787 (1981)

8

National Institute of Justice, 2021 Review and Revalidation of the

First Step Act Risk Assessment Tool (Dec. 31, 2021) (Appendix E)

v

12,13,14

Table of Authorities (Cont'd)

Other Authorities (Cont'd)

U.S. Department of Justice, First Step Act Annual Report (Apr. 2022)

(Appendix F)

vi

12,13,14

Petition For a Writ of Certiorari

William Marion Patterson, III respectfully submits this Petition for a Writ of Certiorari

Opinion Below

Jurisdiction

The Eleventh Circuit entered judgment

on March 21, 2022; and denied rehearing

en banc on July 20, 2022. Jurisdiction to review the judgment rests on

28 U.S.C. §1254(1).

Statutory Provisions Involved

28 U.S.C. § 715 et. seq.

1

Statement of the Case

Petitioner William M. Patterson, III filed for compassionate release on the issues of

his asthma, diabetes, and other chronic illnesses causing vulnerability to the novel

coronavirus; and citing the unusually harsh and ineffective response by the B.O.P. at

his facility in relation to his sentencing factors. The Government's response relied

chiefly on Patterson's crime of conviction, citing Patterson's status as a sex offender

and the "frightening and high" recidivism rate that has been thoroughly debunked by

every studdy to tackle the matter - even those conducted as far back as the 1940 's. The

district court cited generally back to the Government's response on the Sentencing

Factors,

and determined that Patterson is a "danger to the community" should he be

released at that time. It also declared that Patterson is vulnerable to the virus. : i.L

The determination that Patterson is at high risk for recidivism was despite the fact

that

Patterson

sent

a

rebuttal to

the lower court which contained the Sentencing

Commission's prior study which determined that defendants in Patterson's position l)are

oversentenced due to certain enhancements that were created before the proliferation

of computers and the internet; and 2) are among those least likely to recidivate - a

fact that is supported by Patterson's B.O.P. PATTERN Score of minimum, which was also

before the district court.

Patterson appealed to the Eleventh Circuit Court of Appeals, citing to that Circuit's

Cook case, and another Eleventh Circuit case, Almeyda-Lonergan, which fit Patterson's

case almost word for word.

In Almeyda's case, he was denied principally on his sex

offender status, and the Eleventh Circuit determined that Almeyda's district court used

"boilerplate language" to determine that his sex offender status caused him to fail on

both the Sentencing Factors and the "danger to the community analysis". Almeyda's appeal

was counseled, Patterson's was Pro Se. Patterson also argued that the "law-of-the-case"

doctrine prevented the district court from reversing its previous determination that

the 18 U.S.C. § 3142 factors weigh in favor of release. This argument was not addressed

by either lower court, despite being Patterson's main thrust to show that the district

court has abused its discretion in the instant denial.

Patterson contends now that his Pro Se status placed him before a Staff Attorney who

actually made the decision to deny him, with an Article III judge only "rubberstamping"

those denials, thus creating separate tiers for Pro. Se versus counseled motions.

The Constitution, under Article III, requires the vetment and independence of those

who

would

decide

weighty matters

in

a

Federal

Court;

requiring

life

tenure

and

guaranteed pay for those who would be placed over decision-making matters of those same

courts. Additionally, Congress has authorized limited rule-making authority for Federal

Courts themselves. Said limitation, though, forbids the delegation of the ability to

make decisions on cases to "staff attorneys", as will be discussed in the Reasons For

2

Granting the Petition section. But courts across the nation have determined that someone

other than a vetted Article III judge making a determination on a case constitutes

structural

errors

that would require

reversal,

granting

of

habeas

petitions,

and

constitute serious abuse of the law clerk system and be ground for grave concern. The

Elevnth Circuit's Staff Attorney program, Patterson avers, is just that - a program that

delegates non-delegatable decision making authority to non-Article III actors who make

determinations in proxy for the Article III judges; with true oversight being provided

by

a

"supervisory

staff

attorney"

rather

than

an Article

III

judge,

who merely

"rubberstamps" the opinions placed before the various panels by the staff attorneys^

thereby reducing the quality of

judicial opinions and even in some cases creating

binding precedent in the Eleventh Circuit (see Appendix D).

3

Reasons for Granting the Petition

I. Problems Caused by the Delegation of Prisoner Pro Se Cases

A) Increased Workload on The Supreme Court

In the cases where Staff Attorneys, rather than Article III Judges, make judicial

opinions in the Eleventh Circuit, or any Circuit for that matter, the result of an

inexperienced newly licensed attorney reducing the quality of

inevitably

that

the

Supreme

judicial opinions is

Court's Certiorari Pool will be more bloated than it

otherwise would. Indeed, since the creation of the various staff attorney programs, the

average number of Certiorari petitions has grown steadily, with the vast majority being

in the prisoner Pro Se category - see U.S. Courts, Table C-2

the

Federal

Judiciary

(June

30,

2015),

Statistical Tables For

available

at

http://www.uscourts.gov/statistics/tablec-2/statistical-tables-federal-judiciary/2015/06/30

[hereinafter Table C-2] (listing cases that constitute "prisoner petitions"); see also

Patricia W. Hatamyar Moore, The Civil Caseload of the Federal District Courts, 2015

U.Ill.L.Rev. 1177, 1211-15 (2015); and U.S.Courts, Table C-13

Civil Pro Se and Non

Pro Se Filings (Sept. 30, 2014), available at http://www.uscourts.gov/statistics/table/

c-13/judicial-business/2014/09/30 - at Note 10, indicating that 93% of such cases are

brought Pro Se. Additionally, see Appendix D, which is a table compiled by Judge R.

Posner in his book Reforming the Federal Judiciary, Amazon Createspace (Sept. 2017),

pp 161-167. This table shows that in the Eleventh Circuit, staff attorneys decide a wide

range of cases, including ones like Patterson’s - Pro Se Direct Appeals. (Appeals from

the denial of a "compassionate release" request are treated as direct appeals in the

Eleventh Circuit

United States v Fair, 326 F.3d 1317, 1318 (11th Cir. 2003)(noting

that proceedings under §3582(c) are criminal in nature and therefore covered by the

rules applied to criminal cases).

B) Claims That Cannot Be Delegated

Delegation of Article III power has received significant scrutiny in bankruptcy cases,

which may include some claims that do not require Article III adjudication, alongside

claims that do require Article III adjudication. If Congress creates legislation that

vests Article III Judicial power over Article III claims in non-Article III actors, the

delegation

may

create

a

structural

error,

and

expansion

without

Congressional

authorization may be an Unconstitutional expansion of the Federal Court's limited rulerr. i

making authority. This Court should see such an expansion in relation to staff attorneys

deciding Prisoner Pro Se Appeals of compassionate release denials as a violation of

4

Article III.

Article III vests the federal judicial power in certain courts (U.S. Const. Art. Ill,

§1 -

"The judicial Power of the United States, shall be vested in one Supreme Court,

and

in

such

establish.");

of

the

inferior

Courts

as

the

Congress

may

from

time

to

time

ordain

and

and also determines who may sit on those courts, Id ("The judges, both

Supreme

Courts

and

inferior

Courts,

shall

hold

their offices

during good

Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which

shall not be diminished during the Continuance in Office."); see also N.Pipeline Const.

Co,

v Marathon

Pipe

Line

guarantees that Art.

Co • f

458

U.S.

50,

59

(1982)("The

Ill judges shall enjoy life tenure,

'good Behaviour'

Clause

subject only to removal by

impeachment," whreas "[t]he Compensation Clause guarantees Art. Ill judges a fixed and

irreducible compensation for their services").

In addition, Article III provides that

the judicial power may only be exercised by those who enjoy life tenure and fixed compensatioj

Thomas

v Union

judicial

Cable

Carbide Agric.

qualifications

are meant

Products

to

Co • /

473

U.S.

568,

582

(1985).

These

ensure judicial branch independence and permit

judges to be free from the pressure that might otherwise be exerted on them by the

remaining

branches

(N.Pipeline

Const.

Co • r

458

U.S.

at

59).

In

addition,

the

requirements protect litigants by providing a forum and adjudicator "free from potential

domination" by others

Commodity Futures Trading Comm'n v Schor,

478 U.S.

833, 848

(1986) (quoting United States v Will, 449 U.S. 200, 218 (1980)). Still, the right to an

Article III judge is not absolute, Id.. Congress may, in some instances, delegate certain

decision-making to non-Article III judges without creating Constitutional problems, Id

at 847. But in this case, Staff Attorneys do not derives their powers from Congressional

act,

but

rather

from

"local"

rule

of

procedure

that are

often not

even publicly

available.

The modern doctrine regarding delegation of the judicial power to judges who do not

enjoy life tenure and fixed compensation begins with United States v Will, 449 U.S. 200

(1980).

There,

the

Supreme

Court

struck

down a law through which Congress repealed

previous legislation giving federal judges cost-of-living pay increases - see Jonathan

L.

Entin,

Erik M.

W.

Res.L.Rev.

965,

Jensen;

976

Taxation,

(2006).

Compensation,

and Judicial Independence, 56 Case

In finding a Compensation Clause violation, the Court

emphasized that the Clause is aimed at promoting judicial independence- Will, 449 U.S.

at 218.

Moreover, the Court traced the roots of the Compensation Clause to Hamilton's concern

for protecting judicial pay (Id) - "In the general course of human nature, a power over

a man's subsistence amounts to a power over his will";

1701,

and the Act of Settlement of

which sought to "correct abuses prevalent under the reign of Stuart Kings" by

inter alia,

giving

judges

"ascertained and established salaries^ Id (quoting 12 & 13

5

Will. Ill, ch 2, § III, cl.

7 (1701)). Though colonial judges originally enjoyed salary

protection and life tenure,

by 1761 they served at the pleasure of

219. This "interference" would lead the Framers to ensure that

the

King - Id, at

"both tenure and the

compensation of judges would be protected from one of the evils that

had brought on the

Revolution" Id. - Entin & Jensen, supra note 125, at 977. Since Will, cases addressing

Article

III

judicial

power

delegation

have

emphasized

the

importance

of

judicial

independence.

Delegation issues have arisen frequently in bankruptcy cases. In 1982's Northern

Pipeline v Marathon, 458 U.S. 50 (1982), the Court addressed whether Congress, through

the Bankruptcy Act of 1978, had conferred Article Ill's judicial power to bankruptcy

judges who did not enjoy life tenure or salary security 0 Id, at 52, 53,

60. The

bankruptcy judges received jurisdiction "over all matters related to those arising under

the bankruptcy laws," a delegation that violated Article III by giving the bankruptcy

judges power that only Article III judges could enjoy - Id, at 76. Here, Staff Attorneys

are given identical power over Pro Se Prisoner Appeals, but without even an order from

Congress. This should be seen by the Court as likewise violating Article III.

The delegation of Article Ill's judicial power to judges with periodical appointments

compromised judicial independence

be allowed:

Id, at 58. The Court emphasized that this cannot

"our Constitution unambiguously enunciates a fundamental principle - that

the 'judicial power of the United States' must be reposed in an independent judiciary"

Id, at 60. It saw no need to create courts and judges outside of Article Ill's purview

for matters "related to those arising under the bankruptcy laws" - Id, at 76; including

the appellant's "right to recover contract damages to augment its estate" - Id, at 71.

This Court also rejected the argument that Congress could create courts with judges not

subject to Article III's constraints simply because there was no need for such courts

to adjudicate claims arising under specialized legislation - Id, at 72-73. Just such

a case of delegation exists here in the Staff Attorney Program for both of the lower

courts in this instance.

working

under

a

Staff Attorneys operate without actual judicial oversight,

"supervisory

staff

attorney"

rather

than

an

Article

III

judge.

Accordingly, this Court should find that the delegation of Pro Se criminal appeals to

staff attorneys violates Article III of the Constitution.

This view has been upheld by the Court before - see Stern v Marshall, 564 U.S. 462,

469 (2011); wherein the Court addressed whether a bankruptcy judge could render a final

judgment in a "core" proceeding involving a common law tort counterclaim. The Court held

that,

although legislation permitted a non-Article III decisionmaker to do so, the

Constitution did not

Id, at 485. Constitutionally, a bankruptcy judge improperly

exercises the judicial power by entering final judgment in a state common law tort claim Id, at 487. The Court emphasized the importance of keeping the judicial power with those

6

who, through life tenure and fixed compensation, would render decisions without concern

about "currying favor wit Congress and the Executive" Id, at 494. Here, staff attorneys

are only temporary hires who are fresh out of law school and go on primarily to become

federal prosecutors - engendering a bias toward the Executive, Patterson avers now. To

top it off, the staff attorney program is not even created or authorized by legislation,

but rather by "local" rules promulgated by the district and appellate courts themselves which means that if legislation that would vest Article Ill-like powers in non-Article

III actors is Unconstitutional, how much more Unconstitutional is it to have "limited

rule-making

authority"

powers

that

are

not

intended to

be

as broad as Congress'

legislative powers do so? This conflict is in direct opposition to the plain words of

Article III and the previously cited caselaw. The integrity of the judiciary would be

jeopardized,

the Court explained,

Article III actors

if Congress could confer

judicial powers on non-

Id. This is even more true when the limited rulemaking authority

vested in the federal courts themselves is exceeded, as the Staff Attorney Program

clearly does in the Eleventh Circuit (See Appendix D).

Stern prohibited Congress from altering who wields Article III judicial power by

forbidding Congress from assigning away any claim brought within federal jurisdiction

"made of ' the stuff of the traditional actions at common law tried by the courts at

Westminster in 1789 I II Id. This category is commonly understood to mean claims that were

the subject of suit "at common law, or in equity, or in admiralty" Id; see also Murray1s

Lessee v Hoboken Land & Imp. Co • / 59 U.S. 272, 284 (1855)(stating that Congress cannot

"withdraw from the judicial cognizance any matter which, from its nature, is the subject

of a suit at the common law, or in equity, or admiralty; nor, on the other hand, can

it bring under the judicial power a matter which, from its nature, is not a subject for

judicial determination"). Article III judges in Article III courts must decide them;

Stern, 564 U.S. at 494 (quoting N. Pipeline Constr. Co. v Marathon Pipe Line Co • r 458

U.S. 50, 86-87 (1982)).

Such matters include "the mundane as well as the glamorous, matters of common law and

statute as well as constitutional law" Id. The Court resoundingly refused to give weight

to the argument that its holding, which would limit the work bankruptcy judges could

do, would delay bankruptcy and render it more costly - Id, at 506. Instead, it noted

that there is not a constitutional pass given to a law or procedure that is "efficient,

convenient,

Chadha,

and

462 U.S.

useful in facilitating functions of government"

919,

944

Id

(quoting INS v

(1983)); and the Court should do likewise here for direct

criminal appeals being handled by staff attorneys.

This view has been supported by Chief Justice Roberts in his dissent to Wellness Int'l

Network Limited v Sharif, 135 S.Ct. 1932, 1939 (2015)(wherein the Court announced that

a party may knowingly and voluntarily consent to adjudication by a non-Article III judge) i

distinguishable from the instant case in that Patterson was never given the chance to

"opt out" of having a staff attorney decide his case. In his dissent, Chief Justice

Roberts emphasized that party consent is not a cure for a constitutional violation; a

party, he wrote,

"has not authority to compromise the structural separation of powers

or agree to an exercise of judicial power outside of Article III" Id, at 1954 (Roberts,

C. J • f dissenting). Echoing his majority opinion in Stern, Justice Roberts again noted

that "practical considerations of the Constitution," even if the Congressional incursion

into Article III is "de minimus"

Id, at 1959. Nevertheless, Wellness Internatinal1s

majority is the law; consent can in fact cure a structural constitutional violation in

a civil context

issue here,

see Id, at 1957-67 (2015)(Roberts, C.J. dissenting). The claims at

however,

are not

(as is Wellness) being pulled between legislation and

Article III courts; as here, no argument between public rights and private rights is

being presented.

Instead,

they are claims arguably adjudicated by nonjudicial staff

working within an Article III court - AND the Pro Se Prisoner has no recourse to "opt

out" of having a non judicial actor decide his case, so no consent can even be given to

"cure" the structural error.

Add

to that,

the fact that this is a direct criminal

appeal, and the protections of the Constitution become that much more important than

those same protections are in civil matters.

C) Opinions That Cannot Be Delegated

Much attention has been devoted to delegation of appellate opinion writing, which also

raises concerns about improper delegation of the Article III power. These concerns about

improper

delegation

are

anchored

in

institutionalized

motions

of

who

should

be

responsible for certain tasks.

In the context of appellate opinion writing, the concern over who writes important

decisions intersects with concerns about litigants1 increased reliance on decisions that

were marked

as

"unpublished".

In 1964,

the Judicial Conference decided that "only

opinions of 'general precedential value t ft would be published - Marin K. Levy, "Judicial

Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across

Cases in the Federal Courts of Appeals," 81 GEO. WASH. L.REV. 401, 414-15 (2013). In

2006,

the Federal

Rules of Appellate Procedure were amended to permit citation of

unpublished opinions

see Penelope Pether, "Sorcerers, Not Apprentices: How Judicial

Clerks and Staff Attorneys Impoverish U.S. Law," 39 ARIZ.ST.L.J. 1, 2-5 (2007)(Pether

does not challenge the assumption that staff attorney and law clerk work is second-rate.

Instead,

her article tackles the

"institutionalized unpublication"

"discriminatory origins" of what she refers to as

Id, at 7. As a result of the rule change, "circuit

courts can no longer forbid lawyers to cite back to the [ ] decisions they have made but

8

designated 'not for publication,' nor sanction them if they do." Id, at 8-9. Given the

way all opinions are now in fact published, at a minimum, in some kind of electronic

format, describing them as published or not is a distinction that makes little sense.

Still, there was significant judicial opposition to the seemingly innocuous change

to the appellate rules

(Fed. R. App. P.

32.1(d)). One explanation for the outsized

reaction is the judicial perception that unpublished opinions do not create new law;

instead,

they

represent

decisions

in

routine

preexisting precedent - see Polly J. Price,

Founding,"

42 B.C.L.Rev.

matters

and

therefore

merely

affirm

"Precedent and Judicial Power After the

81, 111 (2000). But why worry about permitting citation to

another kind of carefully drafted

judicial writing? Perhaps because the unpublished

decisions did not actually represent judicial writing (see Chart, Appendix D, labeled

PP. 164-65 for Eleventh Circuit Staff Attorney decision workload). Refocused this way,

the resistance to unpublished opinions begins to look like a resistance to opinions

written by individuals who are not Article III judges. Indeed, if this were the case,

then one would expect to see published opinions that contradict unpublished opinions

supposedly written by the same judge. Such a contradiction can be seen in the Eleventh

Circuit by Judge Tjoflat, who authored the published opinion in United States v Sigma

Int' 1, 244 F.3d 841, 853 (11th Cir. 2001) stating: "[a]lthough Bank of Nova Scotia did

not explicitly overrule Mechanik, we query what, if anything

remains of the Mechanik

rule" and later, in an unpublished opinion states that Mechanik controls with the same

set of circumstances as laid out in Sigma Int'l - see United States v Cobb, 856 Fed.

App'x 812, 813 (11th Cir. 2021). The difference is that the former case was counseled,

whereas

the

latter

was a Pro Se Criminal appeal and therefore went to the Staff

Attorney's Office for adjudication under the Eleventh Circuit's Staff Attorney Program

(see Appendix D).

Many of the

appellate

judges who opposed the new citation rule believed that unpublished

opinions

were

authored

"predominantly

[by]

recently-graduated

corps

of

judicial clerks and staff attorneys," individuals who are not meaningfully supervised Pether, Supra note 165, at 10. These opinion authors were described as "kids that are

just out of law school" Id, at 6. Their work was understood to be "sloppy or wrong" Id,

at 17. One author has suggested that "[c]lerks and staff attorneys are more likely than

judges

to

make

factually

or

legally wrong

findings

because

they

have

missed

or

misinterpreted something where a more thoroughly trained or more experienced person

might not have done" Id, at 39-40. The perception is that citable appellate opinions

should be written by Article III judges because Article III judges are more likely to

get the law right. Accordingly, this Court should see the Staff Attorney Programs as

they exist currently, to be Unconstitutional.

9

D) Tasks That Cannot Be Delegated

Like the resistance to giving increased stature to appellate opinions authored by law

clerks and staff attorneys, there is significant discomfort when law clerks and staff

attorneys take on typically judicial tasks. Judges should be presiding over cases, not

their law clerks, and certainly not staff attorneys who often don't have any personal

interaction with judges and in many courts don't even work in the same building as the

judges they supposedly report to.

Writing in 1981, Wade McCree, an esteemed former

federal trial and appellate judge, and then Solicitor General, warned against increasing

the number of law clerks working for federal judges - see Wade McCree, "Bureaucratic

Justice: An Early Warning," 129 U.Pa.L.Rev. 777, 787 (1981). He worried that an increase

in the number of law clerks would encourage an increase in the "critical aspects" of

judicial work delegated to the new law clerks - Id, at 789. Honing in on the Article

III implications of such a practice, he also warned that "excessive delegation poses

a threat to the traditional institutional structure of the judicial office," Id. Judge

Posner has summarized the problem with over-delegation to law clerks: a law clerk cannot

try a case for a judge because such a delegation would convert law clerks into judges see

Geras

v

Lafayette

Display

Fixtures,

Inc • /

742

F.2d

1037,

1046

(7th

Cir.

1984)(Posner, J. dissenting). The same would be true if staff attorneys in any instance

where the staff attorney made the factual and legal conclusions in any case or appeal just as Appendix D shows is done in the Eleventh Circuit for Pro Se Direct Appeals.

There are several reported examples of law clerk conduct that too closely resembled

judicial action. A law clerk cannot rule on whether a victim's testimony can be read

back to the jury, nor can one preside over the readback - Parker B. Potter, Jr., "Law

Clerks Gone Wild," 34 Seattle U.L.Rev. 173, 184-85 (2010)(citing Riley v Deeds, 56 F.3d

1117, 1120 (9th Cir. 1995)). Such an error is so significant that it renders the trial

in which - it occurs unfair - Riley, 56 F.3d at 1118 (suggesting that such an error is

structural and will result in the granting of a habeas corpus petition).In

Riley,

the

Ninth Circuit refused to review such an error for abuse of discretion because the

standard "presupposes the trial judge exercised some judicial discretion in the matter

under review" and that in the underlying criminal case, the "judge was not present when

the jury requested that the testimony be read back, nor does the record reflect he was

consulted about the matter;" instead, the "law clerk made the decision to grant the

jury's

request

to

read back the testimony."

Id,

at 1120.

At

least one court has

criticized a judge's decision to allow a law clerk to "settle" issues involving jury

instructions;

see

United

States

v

Sloan,

811

F.2d

1359,

1361

n.2

(10th

Cir.

1987) (explaining that "instructions were settled with a law clerk and not the judge,"

even though "the Judge must resolve all the issues pertaining to the instructions, for

10

it is the sole responsibility of the judge to see to it that the jury is correctly

instructed upon the law" (emphasis in original)). A law clerk also may not preside over

a final pretrial conference (Sanders v Union Pac. R.R. Co • r 193 F3d 1080, 1082 (9th Cir.

1999)(Tashima, J. concurring), or handle peremptory challenges (United States v

Visinaiz, 428 F.3d 1300, 1313 n.4 (10th Cir. 2005).

Courts

have

often

rejected losing parties'

arguments that a decision should be

reversed because law clerks were acting as de facto judges on the grounds that the

allegations were not true

see, e.g. United States v Kaiser, No. 305-CR-80, 2006 WL

3751452, at *3 (D.N.D. Dec. 19, 2006); but each court to do so has noted that if the

allegations were true, they would constitute an example of shifting Article III power

away from Article III judges. See Id.

In the Eleventh Circuit, just such a shift of power away from Article III judges has

occurred, Patterson avers, as shown by the charts in Appendix D. Accordingly, this Court

should see fit to declare the Staff Attorney Program as it is practiced in the Eleventh

Circuit to be a violation of Article III, and reverse the denial of Patterson's Appeal,

Request for Rehearing, and because the district court is operating in the same manner,

also reverse the denial of Patterson's Compassionate Release Motion and Remand for

further proceedings that do not run contrary to established precedent.

II. LAW OF THE CASE DOCTRINE PRECLUDES REVERSING

PREVIOUSLY HELD DECISIONS

A) Whether the Doctrine of "Law-of-the-Case" Precludes the District Court From Changing

Its Analysis of the 18 U.S.C. § 3142(g) Factors As Determined In Patterson's Detention

Hearing.

18 U.S.C. § 3582 proceedings are criminal proceedings - United States v Fair, 326 F.3d

1317, 1318 (11th Cir. 2003)(collecting cases on same). Once an issue has been decided

in a criminal case, it cannot later be changed without intervening changes in law, and

law-of-the-case doctrine applies to §3582 proceedings

Sierra,

see United States v Bueno-

806 Fed. App'x 676, 678 (11th Cir. 2020) (citing Christianson v Colt, 486 U.S.

800, 815-16

(1988) for law-of-the-case standard). Here, the district court determined

that the § 3142(g) factors weighed in favor of release at Patterson's detention hearing he was released under the determination that he was not a danger to the community or

anyone in it (§3142 seems to anticipate a conviction in its language). The same fact

cannot now provide justification to deny release (under the irrebuttable presumption

of dangerousness discussed later). The §3142(g) Factors are largely static - unchanging

over time.

Only §§3(A)

change over time,

contains any language that reference circumstances that may

and Patterson's "character, physical and mental condition, family

ties, employment, financial resources, length of residence in the community, community

11

ties,

past conduct,

history relating to drug or alcohol abuse, criminal history, and

record concerning appearance at court proceedings"

(§§3(A)) has not changed toward a

determination of dangerousness since his detention hearing. If anything, it should be

considered to have changed in Patterson's favor, as his "physical and mental condition"

has deteriorated while incarcerated due largely to B.O.P.'s actions in response to the

pandemic, as shown in the Exhibits Patterson produced to the district court below.

There are only three exceptions to the law-of-the-case doctrine. See United Stats v

Desoto, 2018 U.S. App. LEXIS 24106, at *3 (11th Cir. 2018):

evidence;

(2)

where

prior

the

"(1) the existence of new

a change in controlling law that discusses a different result;

decision

is

clearly

erroneous

and

its

implementation would

or (3)

cause

manifest injustice." None of these exceptions apply here, the only one that may is an

argument that the decision was clearly erroneous - except that such a claim would be

based upon the same irrebuttable presumption that Patterson discusses below.

B)

The Irrebuttable Presumption of Patterson's Dangerousness Violates Supreme Court

Precedent.

A long line of Supreme Court precedent has invalidated irrebuttable presumptions deny

persons important interests

44, 96 S.Ct.

see e.g. Turner v Dep't of Employment Security, 423 U.S.

249, 46 L.Ed 2d 181 (1975); Cleveland Bd. of Education v LaFleur, 414 U.S.

632, 94 S.Ct. 791,

39 L.Ed 2d 52 (1974); Vlandis v Kline, 412 U.S. 441, S.Ct. 2230, 37

L.Ed 2d 63

Stanley v Illinios,

(1973);

405 U.S.

645,

92 S.Ct.

1208,

31 L.Ed 2d 551

(1972); Bell v Bur son, 402 U.S. 535, 91 L. Ed 2d 90 (1971); applying this doctrine when

the

private interests are important and the governmental interests are based upon a

false premise

see LaFleur, supra 414 U.S. at 647 "convenience alone is insufficient

to make valid what otherwise is a violation of due process of law."

The

reason

this

is

an

unconstitutional

practice

is

that there

is

no reasonable

opportunity to demonstrate that the premise is false - Gurmankin v Costanzo, 556 F.2d

184, 187 and n. 5 (3d Cir. 1977)P thus

violating the Due Process clauses of both the

Fifth and Fourteenth Amendments.

The

"important

interest"

in

this

case would the Patterson's interest in factual,

rather than fear-based determinations which are based upon no other reasoning than pure

hatred.

Patterson has placed before both lower courts a series of studies that support his

claim that he is not a "danger" to any community, nor any particular person in any community see,

e.g.

exhibits.

Doc.

72,

exhibits;

Opening

Brief,

exhibits;

and

Petition

For

Rehearing,

But the district court adopted the reasoning presented by the Government in

its opposition to Patterson's RIS request - wherein the Government quoted "frightening

and high" recidivism for "all sex offenders", leaning on "the nature and circumstance

12

of the offense" before describing the very items that the Sentencing Commission has

itself produced a study (which was before the district court in Patterson's exhibits)

that

concluded

Patterson's.

should

not

be

considered

in

"non

contact"

offender

cases

like

In his attempt to point this out, Patterson requested for the district

court to reconsider its denial, again placing more reports and studies before it to

refute his dangerousness and was denied. So he appealed, on the same grounds, and was

given the response that the district court had reasonably concluded that Patterson is

"dangerous"

and

that

contradictions of

the

§3553(a)

Factors

do

not

warrant

relief

the

same

fact that the district court had come to. Both lower courts had

Patteron's PATTERN Score before them,

which "maintained a high level of predictive

validity (see USDOJ, 2020a)" (National Institute of Justice 2021 Review and Revalidation

of the First Step Act Risk Assessment Tool,

p.

6

also included as Appendix E).

Patterson's score is now and has always been Minimum - both lower courts knew this, yet

both courts decided to place more weight on the myth of "frighteningly high recidivism"

of sex offenders across the board than on the evidence and set of facts before them.

In short, the lower courts based their decisions on a set of "irrebuttable presumptions"

which the Supreme Court has repeatedly ruled violates due process when the basis for

those decisions contradicts the data. In addition the studies produced iniovthev;ttourts

below, Patterson presents the Department of Justice First Step Act Annual Report, April

2022

(Appendix F). On page 25, the report discusses further the predictive ability of

the PATTERN system,

just as was concluded in the NIJ December 2021 Review, this Tool

has been shown to be, while not perfect, highly predictive of "danger" in the form of

recidivism

see Id, pp 53-56. In this section, the DOJ has broken down the raw numbers

for all inmates released from BOP custody from the enactment of the First Step Act to

December 31, 2021 - a total of 9,790 releasees. Of these, the majority of all categories

did not reenter prison for any reason - see p. 54, under the "percent not recidivating"

column. Under this column, Patterson fits within the "sex offenses" category, which had

a 78.6% rate of clear conduct. The DOJ only found 21.4% to have returned to prison for

any reason - and there is no data listed for new crimes, so there is no way to tell with

these numbers whether the returnees were merely committing technical violations or new

crimes. But in any case, these numbers directly contradict the "danger to the community"

conclusion of the lower courts in the instant case - as did all of Patterson's exhibits

before both courts. This provides further showing that the decisions were unreasonable

and should therefore be seen by this Court as violating the "irrebuttable presumption"

doctrine. In addition to this, the'

DOJ

report

contains. i.\a

chart, j . thatshowfeowthe

recidivism rates when broken down by sentence length (Appendix F, p 55). This chart

shows that the highest recidivism rates are for those serving a sentence between Il­

ls years. Patterson currently fits into the 6-10 years category, which has a recidivism

13

rate of 16.6%; and had the district court granted his RIS request, he would have been

in the "up to five years" category, which carries a recidivism rate of 15.4% - the exact

opposite conclusion proffered by the district court in its denial below. According to

this DOJ chart, ' Patterson would be less likely to recidivate (the "danger" analysis)

had the district court granted his request, and Patterson placed similar information

before the district court (see, e.g. Docs 72-76, as well as accompanying exhibits). Also

in addition to these, on page 55 of Appendix F, this Court can see that security level

assignation by the BOP has a high correlation to eventual recidivism outcome. Patterson

is currently held at the Bureau of Prisons' Satellite Low Facility in Jesup, Georgia.

This facility is a "camp with a fence", which fits somewhere between a Minimum and a

Low security facility, as the inmates housed here have to have Minimum level security

points

(10

or

less-

Patterson has

much

less

than

ten),

but

who

have

some sort

designation that B.O.P. policy states disqualifies them from actually going to a Minimum

security

facility

Patterson

has

the

"Public

Safety Factor"

designation of

"sex

offender", which is itself based upon the same irrebuttable presumption that all

persons designated sex offenders are "dangerous" with a "frighteningly high" recidivism

rate - but he is not challenging the PSF designation here - he is only pointing out that

without the irrebuttable presumption, he would be fully classified as a Minimum security

inmate. All of this brings the argument around to say that Patterson fits within the

literal

lowest re-offense category in the DOJ's Official Opinion. Yet when he files

court doscuments, the reasoning presented for denial is that he will reoffend - based

solely upon the irrebuttable presumtion complained of herein.

As such, this Court should GRANT Certiorari review in order to once and for all, set

the record straight, in a public forum, on what recidivism is, and where the facts

actually lie.

These definitions are (vaguely) codified in 34 U.S.C. § 20901 and § 20911, with the

specific offense as it relates to Patterson enumerated at § 20911(7)(G). In these statutes,

Congress listed dozens of reasons for SORNA Registration, mostly in the form of specific

instances of crimes that were committed by apparent first time offenders, who have

subsequently not reoffended

the only exceptions are reasons #10, a repeat sexual

offender; and #11, an ACCA offender at the time. Then Congress goes on to expand the

definition of who qualifies as a sex offender in § 20911, adding possession of child

pornography when the Declaration of Purpose carries zero non-contact offenses. This

expansion without explanation again represents an irrebuttable presumption as applied

specifically to defendants

like Patterson who are non-contact.

should GRANT Certiorari review on this matter.

14

As such, this Court

CONCLUSION

Both of the lower courts in this instance had a plethora of information and data

points before them that should have led them to find that Patterson is not a "danger

to the community" per the definition of such contained in 18 U.S.C. § 3142(g). Both of

these lower courts disregarded the evidence before them in favor of supporting an

irrebuttable presumption that has been prevalent in the Courts for nearly two decades

and stems from an offhand comment made by a Supreme Court Justice in a published Opinion

of this Court.

This Court should,

therefore,

see this issue as purely the Court's

responsibility to correct. The irrebuttable presumption is codified in Federal Law, and

therefore said laws should be declared unconstitutional by this Court as violative of

Supreme Court Precedent.

Additionally, the Staff Attorney programs as currently practiced in the lower courts

remove prisoner pro se petitions from Article III Judicial Review, and should likewise

be declared unconstitutional.

For these reasons, I, William Marion Patterson, III, request Certiorari review of the

questions presented herein, and/or any other questions as this Court may certify.

Respectfully Submitted,

ia

William Marion Patterson, III

/ 0-6>--zZr

Date

15