Application — Oscar Stilley, Applicant v. United States
Supreme Court briefOct 17, 2022
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^upieirieCourt, US
FILED
No. 22-
Mil
OCT 1 7 2022
^OCEOFTHECLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OSCAR STILLEY,
Petitioner
v.
UNITED STATES
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit
APPLICATION FOR CERTIFICATE OF APPEALABILITY
By: Oscar Stilley
10600 North Highway 59
Cedarville, AR 72932
479.384.2303
479.401.2615 fax
oscarstillev@gmail.com
RECEIVED I
0^ 2 0 2022
fSf”’1
QUESTIONS PRESENTED
1. Whether this Court 1) has a duty to construe an application for a certificate
of appealability consistent with the legal test under 28 USC 2253(c)(1)(B) as
enunciated in Barefoot v. Estelle, 463 US 880 (1983), or 2) has the option to
treat such applications as “discretionary,” such that the Court need not
necessarily apply any articulable legal test whatsoever.
2. Whether a criminal defendant who is compelled to exhaust administrative
remedies as condition precedent to getting those things indispensable to a
competent appeal, is afterward entitled to prosecute the appeal.
3. Whether a criminal defendant who is by the written admission of the
government not guilty of the charge of the indictment, or of the theories of
the government pretrial, is entitled to a certificate of appealability, or else
some other reasonably direct means of procuring a ruling on those issues?
PARTIES TO THE PROCEEDING
Petitioner is Oscar Stilley. His co-defendant in the federal criminal case
below was Lindsey Kent Springer. Petitioner is denied access to the contact
information of Springer by his adversary the US Department of Justice, even
though the direct criminal appeals were partially consolidated.
Respondent is the United States.
LIST OF ALL PROCEEDINGS
US Court of Appeals for the 10th Circuit, No. 22-5000, United States v. Oscar
Stilley, appeal of dismissal of 2255 petition, judgment entered 6-6-2022.
US District Court for the Northern District of Oklahoma, United States v.
Oscar Stilley, Civil Case 4:21-cv-00361-SPF-CDL, 2255 petition dismissed 11-42022.
US District Court for the Northern District of Oklahoma, United States v.
Lindsey Kent Springer, Civil Case 4:13-cv-00145-SPF-TLW, 2255 petition,
terminated 8-22-2014.
US District Court for the Northern District of Oklahoma, United States u.
Lindsey Kent Springer and Oscar Amos Stilley, Criminal 4:09-cr-43 SPF-2),
Judgment and Commitment Order entered 4-23-2010.
US Court of Appeals for the 10th Circuit, No. 10-5055 and 10-5057, (partially
consolidated) United States v. Lindsey Kent Springer, United States v. Oscar Stilley,
judgment affirmed 10-26-2011, rehearing and rehearing en banc denied 12-12-2011.
li
US Court of Appeals for the 10th Circuit, No. 09-5165, In Re Lindsey Kent
Springer, petition for writ of mandamus, denied by order 12-04-2009.
US Court of Appeals for the 10th Circuit, No. 10-5101, In Re Lindsey Kent
Springer, petition for writ of mandamus, denied by order 10-22-2010.
US Court of Appeals for the 10th Circuit, No. 11-5053 (#447) United States et
al v. Lindsey Kent Springer, petition for writ of certiorari denied 11-28-2011.
US Court of Appeals for the 10th Circuit, No. 13-5062 (#497) United States v.
Lindsey Kent Springer, dismissed procedurally 6-20-2013.
US Court of Appeals for the 10th Circuit, No. 13-5113, In Re: Lindsey Kent
Sprinser, petition for writ of mandamus, rehearing and rehearing en banc denied
11-15-2013.
US Court of Appeals for the 10th Circuit, No. 14-5047 (#554) United States v.
Lindsey Kent Springer, criminal case, other, dismissed 6-4-14.
US Court of Appeals for the 10th Circuit, No. 14-5109 (#588) United States v.
Lindsey Kent Springer, prisoner petition, motion to recall mandate denied 9-222015, no action letter on petition for rehearing, 11-13-2015.
US Court of Appeals for the 10th Circuit, No. 14-5111, In Re Lindsey Kent
Springer, petition for writ of mandamus, dismissed 10-22-14, procedural
termination without judicial action.
US Court of Appeals for the 10th Circuit, No. 15-5109 (#607) United States v.
Lindsey Kent Springer, criminal case, other, terminated 11-17-17, certificate of
appealability denied. From this case arises US Supreme Court 17-8312.
in
US Court of Appeals for the 10th Circuit, No. 18-5104 (#659) United States v.
Springer, prisoner petition, terminated 6-28-2019.
US Court of Appeals for the 10th Circuit, No. 20-5000 United States v.
Springer, criminal, post-conviction, terminated 7-15-2020.
United States Supreme Court, No. 11-10096, Lindsey Kent Springer v. United
States, petition for certiorari related to direct criminal appeal denied 6-4-2012.
United States Supreme Court, No. 17-8312 Lindsey Kent Springer v. United
States, petition for certiorari denied May 14, 2018.
US Court of Appeals for the 5th Circuit, No. 21-60022, Oscar Stilley v. Merrick
Garland, et al, appeal of MSSD 3:19-cv-00006, affirmed May 18, 2022, rehearing
and rehearing en banc denied 7-19-2022.
US District Court for the Southern District of Mississippi, Oscar Stilley v.
Merrick Garland, et al, Civil Case 3:19-cv-00006-HTW-LRA, prison conditions
litigation regarding the right of reasonable access to the courts, lost “Good Conduct
Time” (GCT), etc., dismissed 11-20-2020.
US Court of Appeals for the 8th Circuit, No. 18-2188, Oscar Stilley v. USA et
al, appeal of ARED 2:15-cv-163, affirmed 7-11-19, rehearing and rehearing en banc
denied 9-11-2019.
US District Court for the Eastern District of Arkansas, Oscar Stilley v. USA,
et al, Civil Case 2:15-cv-163 BSM, prison conditions litigation including claims
regarding the right of reasonable access to the courts. Dismissed 2-16-2018.1
l
Petitioner believes this list to be legally sufficient but not overinclusive
IV
based upon the language of Supreme Court Rule 14(b)(iii). Petitioner’s adversary
the DOJ has denied him the contact information of his co-defendant Lindsey Kent
Springer, which interferes with further inquiry as to potentially includable
litigation by Springer.
v
TABLE OF CONTENTS
Contents
PARTIES TO THE PROCEEDING
LIST OF ALL PROCEEDINGS.....
TABLE OF AUTHORITIES...........
DECISIONS BELOW........................
STATEMENT OF JURISDICTION
11
11
vm
1
1
PERTINENT CONSTITUTIONAL AND STATUTORY PROVISIONS .
REASONS FOR GRANTING A CERTIFICATE OF APPEALABILITY
1
14
14
Considerations of efficiency
I. The Court should grant a certificate of appealability, and furthermore
clarify that this Court has a duty to review an application for a certificate
of appealability consistent with the legal test under 28 USC 2253(c)(1)(B)
as enunciated in Barefoot v. Estelle, 463 US 880 (1983), rather than
“discretionary” whereby the Court may simply decline certiorari.............. 15
A.
On motion to dismiss, well pleaded allegations are presumed true.
17
B.
19
Statute of limitations is an affirmative defense...........................
26
C.
Fraud upon the court prevents limitations from commencing,
D.
27
This case is suited for answering this longstanding question.
II.
The Court should grant a certificate of appealability, clarifying that a
criminal defendant compelled to exhaust administrative remedies as
condition precedent to getting those things essential to a competent
27
appeal, is entitled to prosecute the appeal afterward.
A.
28
One direct appeal is a matter of right................
B.
The evil of which Petitioner complains is a feature, not a bug, in the
30
DOJ’s carefully crafted and much refined system.
32
C.
Remedies must be available to be material
III. A justice or the Court should grant a certificate of appealability
because actual innocence renders criminal conviction and punishment
inconsistent with the 5th Amendment................................................................. 36
37
CONCLUSION..........................
38
CERTIFICATE OF SERVICE
vi
APPENDICES
APPENDIX 1: District Court dismissal of Respondent’s 2255 petition in United
States v. Oscar Stilley, Civil Case 4:21-cv-00361-SPF-CDL, Criminal Case #4:09-crAppendix page 1
43 SPF, Docket #719.
APPENDIX 2: Tenth Circuit Order Denying Certificate of Appealability in United
States v. Stilley, No. 22-5000, 2022 U.S. App. LEXIS 15469 (10th Cir. June 6, 2022).
Appendix page 6
APPENDIX 3: Tenth Circuit ruling in United States v. Lindsey Kent Springer,
United States v. Oscar Stilley, No. 10-5055 and 10-5057, (partially consolidated)
judgment affirmed 10-26-2011. Docket #52 reported at United States v. Springer,
Appendix page 9
444 F. App'x 256 (10th Cir. 2011).
APPENDIX 4: Tenth Circuit 10-5057, Docket #57, order denying rehearing and
Appendix page 31
rehearing en banc 12-12-2011.
APPENDIX 5: District Court Docket #701. Petition under 28 USC 2255.
Appendix page 32
Appendix page 113
APPENDIX 6: Text of 28 USC 2255
APPENDIX 7: Brent E. Newton, Applications for Certificates of Appealability and
the Supreme Court’s “Obligatory” Jurisdiction, 5 J. App. Prac. & Process 177 (2003)
Appendix page 115
Vll
TABLE OF AUTHORITIES
Cases
16
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)................................................
29
Atilus v. United States, 406 F.2d 694, 698 (5th Cir. 1969)...........................
Barefoot v. Estelle, 463 US 880 (1983)...............................................................
passim
Bousley v. United States, 523 U.S. 614, 624, 118 S. Ct. 1604, 1612 (1998)
36
32, 33
Cantwell v. Sterling, 788 F.3d 507, 508-09 (5th Cir. 2015)..........................
Coppedge v. United States, 369 U.S. 438, 441, 8 L. Ed. 2d 21, 82 S. Ct. 917 (1962) .28
29
Cuyler v. Sullivan, 446 U.S. 335, 345, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980)
29
Douglas v. California, 372 U.S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963).........
Dzenits v. Merrill Lynch, Pierce, Fenner & Smith, 494 F.2d 168, 171 (10th Cir. 1974)
20
Grannis v. Ordean, 234 U.S. 385, 394 (1914)..................................................
16
29
Jackson v. Turner, 442 F.2d 1303, 1307 (10th Cir. 1971)............ ................
32, 33
Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007) ...
Kerber v. Qwest Group Life Ins. Plan, 647 F.3d 950, 959 (10th Cir. 2011)
17
17,
23
Laurson v. Leyba, 507 F.3d 1230, 1231 (10th Cir. 2007....................................
20
Lindley v. Amoco Production Co., 639 F.2d 671, 672 (10th Cir. 1981).......
29
Mack v. Smith, 659 F.2d 23, 25-26 (5th Cir. 1981)........................................
16
Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976)...........
20
Maughan v. SWServicing, 758 F.2d 1381, 1387-1388, (10th Cir. 1985)....
29
Rivera v. United States, 477 F.2d 927, 928 (3d Cir. 1973)............................
21
Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002).................................
Robinson v. Ledezma, 399 Fed. Appx. 329, 329-330 (10th Circuit 2010).... 18, 21, 22
9
Ross v. Blake, 578 U.S. 632, 136 S. Ct. 1850 (2016)......................................
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000........ 17
Starke v. United States, 338 F.2d 648, 649 (4th Cir. 1964)......................................... 29
Thoele v. Collier, No. 20-50666, 2022 U.S. App. LEXIS 6237, at *5 (5th Cir. Mar. 9,
32, 33
2022)
United States v. Diebold, Inc., 369 U.S. 654, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) ..20
19
United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008)...
17
United States v. Gallegos, 459 Fed. Appx. 714, 716 (10th Cir. 2012)
United States v. Havmond. 139 S. Ct. 2369, 2379, 204 L. Ed. 2d 897, 906-907 (2019)
36
21
United States v. Kelly, 235 F.3d 1238, 1243 (10th Cir. 2000)................
16
United States v. Rodriguez, 768 F.3d 1270, 1271-72 (10th Cir. 2014).
1
United States v. Springer, 444 F. App'x 256 (10th Cir. 2011)...............
28, 30
United States v. Winterhalder, 724 F.2d 109, 111-12 (10th Cir. 1983)
26
Weese v. Schukman, 98 F.3d 542, 552-53 (10th Cir. 1996)....................
29
Williams v. United States, 307 F.2d 366 (9th Cir. 1962)........................
Vlll
Statutes
18 USC 3582(c)
28 USC 1254(1)
28 USC 1291....
28 USC 1331....
28 USC 2241....
28 USC 2253....
28 USC 2255....
10, 13
1
1
1
passim
27
passim
Rules
FRAP 10(a)................................................................................
FRCivP 8(c)................................................................................
Rule 6 of the Rules Governing Section 2255 Proceedings
Supreme Court Rule 14(4).....................................................
Supreme Court Rule 16(1.)....................................................
12, 22
20
20
14
15
Other Authorities
17
Antiterrorism and Effective Death Penalty Act of 1996........................................ .
Brent E. Newton, Applications for Certificates of Appealability and the Supreme
Court’s “Obligatory” Jurisdiction, 5 J. App. Prac. & Process 177 (2003)............ 27
1
US Constitution, 1st Amendment.....................................................................................
2
US Constitution, 5th Amendment.....................................................................................
2
US Constitution, Article I, Section 9, Clause 2..............................................................
IX
DECISIONS BELOW
The District Court’s dismissal of Respondent’s 2255 petition in United States
v. Oscar Stilley, Civil Case 4:21-cv-00361-SPF-CDL, is not reported. See Pet. Ann.
1.
The Tenth Circuit’s ruling is reported at United States v. Stilley, No. 22-5000,
2022 U.S. App. LEXIS 15469 (10th Cir. June 6, 2022) and reprinted at Pet. Ann. 2.
The Tenth Circuit’s ruling in United States v. Lindsey Kent Springer, United
States v. Oscar Stilley, No. 10-5055 and 10-5057, (partially consolidated) judgment
affirmed 10-26-2011, is reported at United States v. Springer, 444 F. App'x 256
(10th Cir. 2011). Pet. Ann. 3. The Tenth Circuit’s order denying rehearing and
rehearing en banc 12-12-2011 is not reported. Pet. Ann. 4.
STATEMENT OF JURISDICTION
On June 6, 2022, the Tenth Circuit issued its opinion denying a certificate of
appealability. The District Court had jurisdiction pursuant to 28 USC 1331.
Jurisdiction to appeal to the 10th Circuit is at 28 USC 1291, for appeal from a final
decision of a US District Court. This Court has jurisdiction pursuant to 28 USC
1254(1).
PERTINENT CONSTITUTIONAL AND STATUTORY PROVISIONS
This case principally involves:
1) US Constitution, 1st Amendment, “Congress shall make no law ...
1
abridging ... the right of the people peaceably to ... petition the
Government for a redress of grievances...”
2) US Constitution, 5th Amendment, “No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury ... nor shall any person ... be deprived of life,
liberty, or property, without due process of law...”
3) US Constitution, Article I, Section 9, Clause 2 “The Privileges of the Writ
of Habeas Corpus shall not be suspended...”
4) 28 USC 2255 (f)(1) (finality) and (2), (one year to file after removal of
impediment to petition), see Pet. App. 6 for the full text of the statute.
2
STATEMENT OF THE CASE
Oscar Stilley for almost 20 years was an attorney known for advocacy on
behalf of taxpayers, in civil, criminal, and administrative proceedings, initiative and
referendum, etc. During the later years, Stilley primarily worked for individuals in
criminal or civil trouble with the IRS. During those years, he had a national
practice, learning a new set of local rules for almost every case.
Stilley came to be under criminal investigation in the middle of 2004, when
he prepared a 10th Circuit criminal appellate brief2 for Ms. Judy Patterson,
concerning amongst other things the Paperwork Reduction Act (PRA). Stilley
drafted it, Judy Patterson’s attorney Jerry Barringer read, signed, and filed it.
The DOJ through various machinations procured a deal for Judy Patterson to
drop her appeal in exchange for immediate termination of her prison sentence. Id.
At the same time (middle of 2004) the DOJ started a retaliatory criminal
investigation on Barringer, Stilley, and Lindsey Springer.
Springer and Stilley were purportedly indicted almost 5 years later, in 2009.
The proper term is purportedly, because no indictment was returned in open
court.
The government proceeded under not less than 4 different theories of
criminal liability. Dkt. 701, pg. 23-25. esp. 24. Pet. App. 55. Two theories were
claimed pretrial, one was deceitfully raised during trial, and one was raised post
trial. The government resisted any response to a bill of particulars, on the very
2
This is the docket only. Apparently the filed brief is unavailable.
3
theory that the government is bound by the particulars so stated. Dkt. 42, pg. 8.
Charles O’Reilly was the lead prosecutor. During trial, Mr. O’Reilly casually
handed Springer and Stilley copies of a proposed “gift” jury instruction, effectuating
the theory switch from the pretrial theories to the trial theory.
This instruction was not filed by the government. Nor was it openly
presented to the District Court. O’Reilly and company left no fingerprints on it.
The District Court sua sponte came up with basically the same jury instruction,
tweaked to make it harsher on the defendants, and submitted that instruction to
the jury. Dkt. 244. pg. 29-31.
On information and belief, O’Reilly engaged in ex parte communication with
the District Court, to provide him with the jury instruction and theory switch that
O’Reilly desperately needed, to avoid an adverse jury verdict.
On 12-8-2009, Stilley filed a consolidated motion for judgment as a matter of
law, and motion for new trial, along with a brief in support.
Dkt. 261 and 263.
The District Court struck both pleadings sua sponte Dkt. 264. This was
utterly contrary to the District Court’s stated opinion of the law, in written
decisions both before and after striking Stilley’s pleadings. Dkt. 701. pg. 44-49. Pet.
App. 75-80.
On 12-1-2009 Stilley filed a 5 page motion, Dkt. 254. and a 5 page brief, Dkt.
255. requesting transcripts at public expense. These pleadings laid out the utterly
destructive impact of incarceration on Stilley’s ability to prosecute an appeal. The
government didn’t respond at all - on the record. Judge Friot burned the clock from
4
12-1-2009 to 1-12-2010, some 42 days, then denied this unopposed motion. Dkt. 278.
The District Court’s theories were laughably wrong and utterly incompatible
with the published policy of the Administrative Office of the Courts. See Dkt. 701,
pg. 59-67, esp. pg. 62 Pet. App. 93. On information and belief the District Court
once again engaged in ex parte contact with the government, to make this decision.
Dkt. 278. By the District Court’s own admission he was getting information from
sources not disclosed on the record. Id.
The District Court on 1-22-2010 issued another sua sponte order, (Dkt. 290)
this one much more subtle that the one described above. This was a scheduling
order, quite often done sua sponte without malice and without prejudice to the
parties.
Tucked into this order was a cutoff date of 2-1-2010, for dispositive motions.
A mere 12 days later the government switched to a “theft” theory of criminal
liability, at least as to Count 4. See comment made 2-12-2010, at Dkt. 310. pg. 11
about Patrick Turner’s “naive belief’ that “Defendant Springer had any intention of
repaying the money Defendants stole.”
In other words, the government admitted that their pretrial theories, as well
as their brand new theory trotted out in the middle of trial under the most
suspicious of circumstances, were all thoroughly incapable of supporting a criminal
judgment.
Indeed, the government on 3-3-2010 confessed that if the trial jury had not
adopted the post-trial “stealing” theory of the case, they would have returned
5
verdicts of “not guilty,” at least as to Count 4. Objections to PSR, page 3. They
could do this with great confidence, since the District Court had just days before cut
clean off any opportunity to file any dispositive motions. Stilley was relegated to
seeking relief on appeal.
The government thereupon utterly crushed and destroyed this legal right precisely because they knew the probable outcome of a competent appeal by Stilley.
At sentencing, the government manufactured brand new theories of “tax loss”
which resulted in dramatically higher offense levels and restitution amounts.
These new theories were all either the product of 1) perjury, or 2) false evidence not
arising to the level of perjury, or 3) mathematically impossible claims that won’t
even survive a trip to a calculator. Dkt. 701. pg. 25-38. Pet. App. 56-69.
US Probation found a Total Offense Level of 26, corresponding to a guideline
range of 63-78 months. Original PSR dated 2-25-10, pg. 16, 19. Stilley by objection
got the calculated Total Offense Level down to 24, for a guideline sentence of 51-63
months. Revised PSR dated 4-8-10, pg. 15, 19.
The government argued for a Total Offense Level of 32, with a Guideline
Range of 121-151 months. The District Court mixed and matched, but still came up
with the government’s requested Total Offense Level and Guideline Range.
The District Court then slammed both Springer and Stilley with 180 months,
denouncing Stilley as a “thief with a law degree.” Sent. TR 450. When Stilley
complained about the upward departure, the District Court claimed that it was a
variance rather than a departure. Sent. TR 466. This can be fairly described as a
6
distinction without a difference.
O’Reilly successfully opposed release pending appeal - once again, because he
knew the devastating effects of a competent appeal upon his fraudulent case.
The District Court ordered both defendants to jail 4-23-2010, the last day of
sentencing, directing that Stilley and Springer not be incarcerated together. Dkt.
338. pg. 2.
The District Court 1) acknowledged that the right of self-representation is an
important right, 2) that incarceration has a negative impact on the ability to
exercise that right, and 3) promised to do what he reasonably could to ameliorate
the impact of incarceration. Sent. TR 455-456.
The DOJ, by and through its subsidiary the Federal Bureau of Prisons (DOJFBOP) made a complete mockery of the administrative remedy process. Dkt. 701.
pages 70-80. Pet. App. 101-111. They rendered it impossible to even get through
the process during the pendency of the direct criminal appeal proceedings. Id.
Since coming to home confinement, Stilley has compiled the 10-5057 docket
into convenient and readily accessible form, with links to material filings using
ordinal numbers applied by Stilley. For a stacked 448 page set of 10-5057 docket
items, click here.
This docket shows that from May 2010 through December 2011, Stilley filed
not less than 13 pleadings in the 10th Circuit, trying to get access to the basic
wherewithal for a competent appeal. 10-5057 docket ## 9, 11, 20, 21, 26, 28, 29,
34, 40, 43, and 56.
7
Stilley’s wife packed up a set of the docket and docket items (created by
Stilley prior to incarceration) and mailed them to Stilley. Dkt. 701. pg. 75. Pet.
App. 106. The DOJ-FBOP arbitrarily returned them to her, without even giving
Stilley his due process right to object. This violated official policy of the DOJ-FBOP
set forth in their own Program Statements.
Near the end of the proceedings in 10th Circuit 10-5057, Stilley filed a 6 page
motion3 (10-5057 Dkt. 56) asking for permission to file an appeal brief after having
completed the ridiculously pathetic administrative remedies to which he had been
relegated.
The panel rejected the request, but not for the most obvious reason that could
possibly be cited. If any judge on the 10-5057 panel thought Stilley had already
prosecuted the one direct appeal to which he was entitled, they easily could have
said that.
Not one of the 10th Circuit judges did that. Stilley specifically asked for a
court order commanding the clerk to withhold issuance of the mandate pending
completion of the administrative remedy process and court litigation of his right of
reasonable access to the courts. Circuit judges Lucero, Baldock, and Tymkovich
construed the motion “as a motion to stay the mandate.” 10-5057 Dkt. 57. Knowing
full well that Stilley wanted opportunity to brief the court at the conclusion of
administrative remedies, and any legal challenges to follow, the panel denied the
Stilley has no idea how the second page of the document appears to be
extraneous. Stilley was in prison, someone else helped him file the document. Filed
page 2 has the correct filemark headers at the top.
3
8
motion.
Stilley on 4-15-2011 filed a district court motion with included brief (Dkt.
443) that the DOJ-FBOP was rendering the exhaustion of administrative remedies
a practical impossibility. O’Reilly sprang into action, now willing to write, to oppose
any relief. (Dkt. 444). Stilley replied. (Dkt. 454). The District Court denied the
motion on the ground that Stilley was still seeking relief through administrative
remedies. (Dkt. 455) Nothing was said about the allegations that the DOJ-FBOP
was rendering administrative relief “unavailable” within the meaning of Ross v.
Blake, 578 U.S. 632, 136 S. Ct. 1850 (2016).4
Stilley spent over 400 days in SHU,5 on hunger strike, mostly either directly
or indirectly due to his efforts to get the right of peaceful petition and due process.
Dkt, 701. pg. 65. Pet. App. 96. Over 10% of the time Stilley spent in DOJ-FBOP
institutions was in SHU, on active hunger strike. Stilley has been force fed with a
nasogastric tube 8 times, and threatened with it many more times. Dkt. 701. pg.
75. Pet. App. 106.
Stilley suffered approximately 13 “shots” (formal disciplinary incident
reports) and lost over 6 months of “Good Conduct Time,” (GCT) all or nearly all of
which amounted to attacks on his right of due process and peaceful petition.
Stilley’s direct appeal of a district court challenge to the DOJ-FBOP’s denials,
evasions, retaliatory “shots,” dirty tricks in the administrative process, etc., was
5
Admittedly Ross v. Blake came years after this motion and order.
Special Housing Unit, or jail for the prison.
9
only recently decided by the 5th Circuit. Stilley’s opening brief, the government’s
response brief. Stilley’s reply brief, and the official record on appeal, in Stilley v.
Garland et al, 5th Cir. 21-60022, are all available online. Likewise the 5th Circuit’s
decision, and their denial of panel or en banc rehearing.
The government claimed, with a straight face, that Stilley has attempted
over 50 administrative remedies while in DOJ-FBOP custody, and has failed to
exhaust a single remedy. Stilley v. Garland, government response brief, pg. 21.
The truth of the matter is that Stilley did exhaust his administrative
remedies - long after the panel in Stilley’s vain attempt for his one direct appeal as
of right, (10th Cir. 10-5057) had rendered its opinion. The DOJ-FBOP just clammed
up and refused to admit it.
After coming to home confinement, Stilley filed a motion for reduction of his
sentence pursuant to 18 USC 3582(c). Dkt. 694. Stilley submitted a proposed
preliminary order, (Id.) which made it plain that Stilley’s goal was to first get a
truthful record, and then to get a ruling on his motion for reduction of sentence.
Stilley didn’t get the truthful record. The District Court denied the motion.
Stilley filed his motion under 28 USC 2255 9-1-2021, within one year of
coming to home confinement. Dkt. 701 Pet. App. 32. The following day he filed a
motion for the phone, email, and mailing address of his codefendant Lindsey
Springer, as well as a request for the District Court to explain how he still has any
authorization to hear the case,6 since no version of Miscellaneous #23 is currently
District Judge Stephen P. Friot is a duly authorized judge of the
10
valid. Dkt. 702.
The government moved to “dismiss” Dkt. 701 (Pet. App. 32) and Dkt. 702.
Dkt. 705. Dkt. 707. The District Court treated the entire 81 page motion, with
numbered paragraphs under oath, as mere “argument.” Dkt. 719. Pet. App. 1.
Since he unilaterally converted all of Stilley’s evidence into “argument,” Stilley
couldn’t possibly have any “new” evidence. The District Court didn’t deny that
Stilley is “actually innocent.” The District Court “dismissed” both motions
without acknowledging or discussing Stilley’s evidence. Id.
Stilley prepared a district court docket with entries from the time he came to
home confinement to the present. This is essentially a docket with active links to
pertinent pleadings, and also to the proposed order previously mentioned. OKND
4:09-cr-43, ##693-730 That’s how a single link can be cited as going to multiple
documents.
In summary, this is what has transpired.
1) Stilley and Springer utterly devastated the government’s pretrial theories,
so much that the government abandoned them in favor of theories laughably
inconsistent with the indictment. Dkt. 701, pg. 23-25. esp. 24. Pet. App.5456, esp. 55.
2) Stilley was denied a trial, fair or otherwise, on the allegations of the
purported indictment. Everyone concedes Stilley is innocent of that.
Western District of Oklahoma, but not the Northern District of Oklahoma, from
whence this criminal case arises.
11
3) Stilley was denied any consideration of his motion for new trial and
judgment as a matter of law, altogether contrary to the District Court's own
written belief of the requirements of due process. Dkt. 701. pg. 44-49. Pet.
App. 75-80.
4) Stilley was denied an unopposed motion for transcripts, at a time that
would have allowed him to prepare appellate arguments on the issue of
criminal liability, prior to incarceration. Stilley was denied transcripts until
the DOJ7 was able to deprive its adversary Stilley of access to the official
record as defined by FRAP 10(a).
5) The District Court sua sponte slammed the door on dispositive motions,
just days before the government abandoned the trial theory of liability (itself
contradictory to the pretrial theory) and adopted the “theft theory.”
6) The government for purposes of sentencing more than doubled its pretrial
alleged “tax losses,” knowing full well that the evidence in support of this
claim was false and fraudulent. Dkt. 701, pg. 26. Pet. App. 57.
7) Stilley and Springer were both locked up immediately upon the imposition
of sentence, with instructions to keep the two separate. Dkt. 338. pg. 2. The
District Judge ignored objection to interference with the US mails, committed
with the apparent intention of obstructing peaceful petition and due process.
Dkt. 364, 376.
8) Stilley repeatedly sought the wherewithal to prepare a competent appeal
7
By and through its subsidiary the DOJ-FBOP.
12
brief, by pleadings filed from May 2010 through November 2011. 10-5057
docket
9) Stilley sought relief from District Court, for denial of access to those
things necessary for a competent appeal, explaining that his administrative
remedy requests were being obstructed, but was denied. Dkt. 443, pg. 7.
10) Stilley has exerted full efforts since that time, and pursued a 5th Circuit
appeal recently denied, with respect to amongst other things the denial of
access to those things necessary for the preparation of competent appeal
briefs.
11) Stilley filed a motion for sentence reduction under 18 USC 3582(c),
requesting that the District Court first issue a preliminary order ensuring
that the District Court could rule on the basis of an honest record. Dkt. 694.
The District Court declined to order such relief.
12) Stilley filed his motion under 28 USC 2255 within one year of coming to
home confinement, same being the earliest plausible time that Stilley was
freed from obstruction of access to those things indispensable to a competent
appeal. Nobody contends otherwise.
13) The District Court “dismissed” Stilley’s 2255 motion, as well as his
motion for Springer’s contact information, and the District Court’s claim of
authority to decide this case. Dkt. 719. Pet: App. 1. The District Court
declared that Stilley’s verified motion under 28 USC 2255 was merely
“argument.”
13
Thus we can see that Stilley wasn’t tried on the allegations of the
indictment, was denied any consideration of the most critical post-trial motions,
was sentenced on an altogether new theory, after being barred from challenging
it, was tagged for obviously false and fraudulent sentencing guideline “points”
and restitution, was denied the one direct appeal to which he was legally entitled,
was denied his 1st Amendment right of peaceful petition and due process for the
duration of his incarceration, was repeatedly and extensively punished for efforts to
get due process and the right of peaceful petition, and has never had so much as a
pretense that any district court has considered or decided any motion under 28 USC
2255 on the merits.
REASONS FOR GRANTING A CERTIFICATE OF APPEALABILITY
Considerations of efficiency.
The honor of clerking for the US Supreme Court is granted only to a select
group of highly qualified individuals. Associate Justices get 4 law clerks each - and
you’re one of them. The fact that you’re reading this means you have repeatedly
succeeded beyond reasonable expectations.
Part of any petitioner’s job is to lighten your load. In fact, failure so to do is
sufficient reason, standing alone, to deny a discretionary writ. Supreme Court Rule
14(4).
Petitioner has prepared this motion with links/to make it easier to see the
materials that he discusses. Petitioner as a pro se litigant cannot file electronically.
14
However, this pleading is available at https://bustingthefeds.com/wpcontent/uploads/2022/10/MtnCOA.pdf.
Petitioner hopes you will use these resources. The trial transcript is some
4,000 pages. The district court criminal record is now well over 7,000 pages.
Petitioner generated over 400 pages in his failed attempt to get the one direct
appeal to which he is entitled, in 10th Circuit 10-5057. This criminal prosecution
has spawned a veritable blizzard of related and/or appellate litigation. The use of
links, timelines, etc., is practically indispensable for anyone wishing to present a
reasonably complete yet concise summary of the litigation.
Petitioner on the caption page of his original filing requested 2 separate
reliefs. First, he requested a certificate of appealability (COA) as to all claims in his
petition under 28 USC 2255. Second, he requested certiorari on certain questions.
The clerk rejected the pleading because it combined a petition for certiorari
with another pleading, in contravention of Rule 12.4. Petitioner split these claims
into two pleadings but hopes these related pleadings will be assigned with efficiency
in mind. If a law clerk understands one of these pleadings, they mostly understand
the other one as well.
The Court should grant a certificate of appealability, and
I.
furthermore clarify that this Court has a duty to review an application for
a certificate of appealability consistent with the legal test under 28 USC
2253(c)(1)(B) as enunciated in Barefoot v. Estelle, 463 US 880 (1983), rather
than “discretionary” whereby the Court may simply decline certiorari.
Summary dispositions are specifically authorized by the Court’s rules. See
Supreme Court Rule 16(1.), which provides:
15
1. After considering the documents distributed under Rule 15, the Court will
enter an appropriate order. The order may be a summary disposition on
the merits.
(Emphasis added)
The government thus far has evaded any obligation to respond substantively
to Petitioner’s claims. A substantive response would have great value to Petitioner.
As the Court explained in Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893,
902 (1976):
... The fundamental requirement of due process is the opportunity to be
heard "at a meaningful time and in a meaningful manner." Armstrong v.
Manzo, 380 U.S. 545, 552 (1965). See Grannis v. Ordean, 234 U.S. 385, 394
(1914)
Petitioner was sentenced based on theories utterly contradictory to the trial
or pretrial theories, or the text of the indictment. Petitioner was denied the one
direct appeal to which he was and still is entitled through utterly lawless
machinations. After more than 12 years in custody, Petitioner has never had a
ruling on the merits of his core arguments. He has never received due process, as
that word is defined in the law. Petitioner’s conviction and sentence cannot survive
a rational decision on the merits.
Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090
(1983) predates the current statutory scheme but remains the seminal case with
respect to the legal test for a COA. For example, see United States v. Rodriguez,
768 F.3d 1270, 1271-72 (10th Cir. 2014):
A certificate of appealability is necessary for Mr. Rodriguez to appeal. 28
U.S.C. § 2253(c)(1)(B). We will issue a certificate only when the applicant
makes "a substantial showing of the denial of a constitutional right." Id. at §
2253(c)(2). This showing requires a demonstration that "reasonable jurists
16
could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were
'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529
U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090
(1983), superseded by statute, Antiterrorism and Effective Death Penalty Act of
1996, No. 104-132, 110 Stat. 1214,, as recognized in Slack, 529 U.S. at 48384). Under this test, Mr. Rodriguez must show "that the district court's
resolution of the claim was either 'debatable or wrong.'" Laurson v. Leyba, 507
F.3d 1230, 1231 (10th Cir. 2007) (quoting Slack, 529 U.S. at 484). We conclude
that no reasonable jurist could regard the merits of the § 2255 motion as
debatable or wrong.
Petitioner overwhelmingly meets the legal test for a COA. The government
doesn’t claim otherwise. They got the 2255 petition “dismissed” on a claim that it
was untimely. Pet. Ann. 1.
A.
On motion to dismiss, well pleaded allegations are presumed
true.
In United States v. Gallegos, 459 Fed. Appx. 714, 716 (10th Cir. 2012) the 10th
Circuit explained as follows:
[*716] Mr. Gallegos has failed to satisfy this burden. In his application for a
COA, Mr. Gallegos first contends that the district court erred in "dismissing
[his] petition under Fed. R. Civ. P. 12(b)(6) when it failed to assume all facts
pleaded ... to be true and considered material not included in the petition."
Aplt. Br. at 3. Mr. Gallegos is correct that in resolving a motion to
dismiss under Rule 12(b)(6), a court must "accept as true all wellpleaded factual allegations ... and view [those] allegations in the
light most favorable to the [nonmoving party]." Kerber v. Qwest Group
Life Ins. Plan, 647 F.3d 950, 959 (10th Cir. 2011) (quotations omitted). He is
also correct that a district court cannot consider material outside of a
complaint when considering whether to dismiss a claim under Rule 12(b)(6).
See Fed. R. Civ. P. 12(d). ...
(Emphasis added)
The government takes precisely the opposite approach. Stilley used pages
70-80 of his 2255 motion (Pet. App. 5) to set forth facts that render the 1 year
17
statute of limitations inapplicable to him. The government at page 5 of its motion
to dismiss says “[I]t need not be said, but Mr. Stilley’s claims are false.”
In other words, the government asked the District Court to summarily
presume Stilley’s factual allegations false - and the District Court obliged. The
government presents no evidence whatsoever, to contradict some 80 pages of
detailed factual allegations, made under penalty of perjury. The government
presented neither argument nor authority to show that Stilley’s claims, if true,
would not entitle him to relief. The government simply invited the District Court to
summarily declare all Stilley’s factual allegations false, just because counsel for the
government wanted it that way.
Robinson v. Ledezma, 399 Fed. Appx. 329, 329-330 (10th Circuit 2010)
involved a petition under 28 USC 2241. Stilley is proceeding under Section 2255,
not Section 2241. Nevertheless, this case holds the key to understanding why the
government is wrong both on procedure and on the merits. Therefore Stilley will
reproduce and highlight substantial parts of this case, beginning with the first two
paragraphs:
This case presents unusual and compelling circumstances for federal post
conviction relief. Petitioner is currently incarcerated for an additional five
years beyond the statutorily authorized term due to an erroneous
specification of his offense in the indictment, plea agreement, and judgment
of conviction. The operative mistake, actively shared in by defense
counsel, the prosecution, and the trial judge, is patently evident on
[**2] the record. The government specifically charged, petitioner (advised by
counsel) pled guilty to, and the district court formally convicted defendant of
violating 21 U.S.C. § 841(b)(1)(C) for possessing with intent to distribute 1300
grams of marijuana. But possessing with intent to distribute 1300 grams, or
1.3 kilograms, of marijuana is not a violation of [*330] § 841(b)(1)(C), it is a
violation of § 841(b)(1)(D) (addressing offense involving less than 50
18
kilograms of marijuana). And this factually unsupported conviction
demonstrably prejudiced the petitioner: the 120-month sentence he received
would have been permissible for the former violation but plainly exceeds the
five-year maximum authorized for the latter. Petitioner has already served
more than the allowed five years; to keep him confined longer is an injustice.
Errors cannot always be remedied by legal action, of course. This is
particularly true where early inaction or procedural misstep by the
defendant has left an error in a criminal prosecution unchallenged
until well after a conviction has become final. Congress has erected
formidable barriers to relief in this circumstance: the one-year statute of
limitations in § 2255(f); [**3] and, where the defendant has already pursued
one (or more) § 2255 motion(s) challenging the conviction or sentence in
question, the rigorous constraints in § 2255(h) on filing second or successive §
2255 motions. 1 But these procedural barriers do not fully extinguish
the interests ofjustice. HN1 The limitations period in § 2255(f) is subject
to equitable tolling for various reasons, including the actual innocence
of the defendant. United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir.
2008). More generally, none of the barriers to or constraints on § 2255
motions may be operative if the § 2255 remedy is properly found "inadequate
or ineffective to test the legality of [the defendant's] detention," 28 U.S.C. §
2255(e)-in which case a petition for a writ of habeas corpus under 28
U.S.C. § 2241 may substitute for the remedy unavailable under § 2255.
(Emphases added)
In sharp contrast to the facts of Robinson v. Ledezma, Stilley has fought for
his rights from beginning to end. Stilley has unfailingly claimed his right to one
direct appeal. Stilley has continuously persisted in his claim for reasonable access
to the courts. His claim of right of reasonable access to the courts, Stilley v.
Garland, 5th Circuit #21-60022, was only recently decided - and that decision
merely upheld a dismissal without prejudice.
Keep in mind that the material Stilley presents for the consideration of this
Court is far from exhaustive.
B.
Statute of limitations is an affirmative defense.
19
Statute of limitations is an affirmative defense. FRCivP 8(c). The 10th
Circuit requires proof sufficient to support a limitations defense. In Maughan v.
SW Servicing, 758 F.2d 1381, 1387-1388, (10th Cir. 1985) the Court opined:
HN8 Summary judgment is appropriate only when the moving
party has established that there is no genuine issue of material fact,
and that he is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). In considering a motion for summary judgment, the evidence must be
viewed in the light most favorable to the party opposing the motion. Lindley
v. Amoco Production Co., 639 F.2d 671, 672 (10th Cir. 1981). The motion
should not be granted where there are conflicting inferences to be drawn from
the affidavits. United States v. Diebold, Inc., 369 U.S. 654, 8 L. Ed. 2d 176, 82
S. Ct. 993 (1962). While cases involving statute of limitations defenses [**16]
frequently lend themselves to summary disposition, a court should not
grant summary judgment for the defendant if there is a viable issue
of fact as to when the limitations period began. Dzenits v. Merrill
Lynch, Pierce, Fenner & Smith, 494 F.2d 168, 171 (10th Cir. 1974); 10A
Wright & Miller, and Kane, Federal Practice and Procedure § 2734, at 421
(2d ed. 1983).
(Emphases added)
The government did not properly raise the defense of limitations at district
court. Consider Rule 6 of the Rules Governing Section 2255 Proceedings, which
provides in pertinent part:
Rule 6. Discovery
(a) Leave of Court Required. A judge may, for good cause, authorize a
party to conduct discovery under the Federal Rules of Criminal
Procedure or Civil Procedure, or in accordance with the practices and
principles of law. If necessary for effective discovery, the judge must appoint
an attorney for a moving party who qualifies to have counsel appointed under
18 U.S.C. §3006A.
(b) Requesting Discovery. A party requesting discovery must provide reasons
for the request. The request must also include any proposed
interrogatories and requests for admission, and must specify any
requested documents.
(Emphases added)
20
We can clearly see that a district court must have the proposed discovery
requests, from a litigant seeking discovery. This would be practically impossible
prior to the government’s answer to the 2255 motion. If the government admits a
fact, why would a 2255 claimant wish to conduct discovery in order to establish that
fact? Such procedure puts the cart before the horse. Stilley filed an 80 page motion
which includes 510 numbered paragraphs. The applicable rules simply do not
contemplate discovery prior to a response to the motion.
Indeed, the government must decide whether it will properly raise the
limitations defense at all. Consider once again Robinson v. Ledezma, 399 Fed.
Appx. 329, 331 (10th Circuit 2010), where the court said:
[*331] The district court rejected this argument. Assuming that a § 2255
motion was presently unavailable to petitioner, the court held such a motion
nevertheless was his exclusive remedy, and dismissed the § 2241 petition
without prejudice for lack of jurisdiction. Petitioner now appeals. We affirm
the dismissal of the § 2241 petition, but on a slightly different analysis that
has significant practical consequences for petitioner: we hold that relief
under § 2255 is still potentially available and should be pursued
promptly in the District of Kansas. As explained below, petitioner has a
colorable basis for equitably tolling the limitations period in § 2255(f). He
must pursue that possibility in the Kansas district court through a proper §
2255 motion before resort to a $ 2241 petition as a substitute for an
allegedly "inadequate or ineffective" § 2255 motion is considered. In addition,
in light of the non-iurisdictional nature of the time bar, see United States
u. Kelly, 235 F.3d 1238, 1243 (10th Cir. 2000), the government could
expressly waive it in the interest of justice to enable a prompt and
procedurally [**7] appropriate remedy for the patently prejudicial error
tainting petitioner's conviction and resultant sentence, see generally
Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002) (collecting cases
recognizing that time-bar in § 2255 and habeas proceedings may be waived
by government). Under the unique circumstances here, we encourage the
government to fully consider this expeditious course.
(Emphases added)
21
Two factors are in play. One, Stilley has a strong claim that limitations
didn’t start to run until Stilley left prison. Nobody contends that Stilley didn’t file
within one year of leaving prison. Nobody contends that Stilley failed to file within
one year of having access to the official court record, as defined by FRAP 10(a).
No competent attorney would even attempt an appeal without the docket and
docket items. Nobody argues otherwise. Any such “appeal” would at best be an
argument from ignorance, at worst an invitation to malpractice and ethics charges.
Two, the government has a continuing ethical duty to waive limitations even
if an arguable limitations defense could be raised. Charles Anthony O’Reilly is a
California licensed attorney, bar # 160980. Mr. O’Reilly cannot discharge his
ethical duties unless he waives limitations on behalf of the government.
In fact, the failure to formally waive limitations at District Court was an
ethics violation separate from his other ethics violations. He had various ethical
duties to the District Court,8 that could not have been discharged in any other way.
Even if he stonewalled on a petition under 28 USC 2255, and confessed error in the
2241 court, his acts and omissions would violate the attorney ethics rules of
California as well as those of practically every other state in the union.
The Tenth Circuit in Robinson v. Ledezma, 399 Fed. Appx. 329, at pages 333334 did not say that the remedy of 28 USC 2241 was necessarily unavailable.
Consider what they actually said:
As we have already touched on, HN6 the time bar in § 2255(f) is subject to
tolling on the basis of a developing set of equitable considerations. And
8
He also has ethical duties to this Court, which he will probably flout.
22
this court has recognized actual innocence as one of them. Gabaldon, 522
F.3d at 1124; see also Laurson u. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007)
(noting same point in connection with time bar in § 2244(d)(1)). Diligence in
pursuing a § 2255 motion is also a consideration, Gabaldon, 522 F.3d at 1124,
[**14] though its role in actual-innocence cases has not been definitively
settled by this court. We have yet to decide, for instance, whether a
defendant who has demonstrated actual innocence must
nevertheless serve the rest of his sentence-possibly the rest of his
life-in prison for a crime he did not commit simply because he
cannot persuade a court that he acted with sufficient diligence in
raising the issue. Fortunately, we need not wade deeply into this legal
quicksand here. The circumstances surrounding petitioner's prosecution,
plea, and sentencing proceedings, described earlier, suggest a facially
plausible excuse for his failure to promptly recognize and seek to remedy
the claim he has now raised. In accepting the factual validity of his
conviction, and the resultant legality of his ten-year sentence, under §
841(b)(1)(C), petitioner followed legal representations made throughout the
proceedings by the government, his own counsel, and the trial judge; indeed,
the unanimous affirmation of legal regularity here culminated in a defense
waiver of appellate and collateral review should sentencing be carried
out in accordance [*334] with his conviction under § 841(b)(1)(C).
These circumstances [**15] raise at least a colorable basis to argue for the
exercise of judicial discretion in tolling the limitations period in § 2255(f)
to permit the presentation of a claim of actual innocence in a proper § 2255
motion. And that is enough to render petitioner's direct recourse to § 2241 in
this proceeding plainly premature and inappropriate.
(Emphases added)
Stilley’s conduct was diametrically opposed to that outlined in Robinson v.
Ledezma. Stilley has always claimed innocence, with the utmost vigor, and
continuously claimed his rights under the 1st Amendment peaceful petition clause,
5th Amendment right to indictment, etc. For example, the District Court on 1-282010, in ruling on Stilley’s objection to having his motion for judgment as a matter
of law and motion for new trial unceremoniously stricken, declared that “[S]ome of
what Mr. Stilley includes in his supporting brief can only be described as a rant.”
DC Dkt. 293. pg. 17.
23
Rant or not, Stilley maintained the fight for the duration. Stilley was in SHU
(Special Housing Unit, or jail for the prison) on the day he discovered he was going
to home confinement. You should know the specific reason and how this transpired.
Stilley at FCC Yazoo City Low had been told since his arrival that computers
were on the way. Some 2 years after his arrival at this prison complex, Assistant
Supervisor of Education Dontae Dennis was still telling Stilley that primitive
typing keyboards (brand names include Forte, Fusion, or Neosmart) were coming
soon. They were in Dennis’ office - he just wouldn’t let the inmates use them.
Stilley knew Dennis was lying through his teeth, and why he was doing it.
DOJ-FBOP brass, top to bottom stem to stern, are terrified of educational resources,
precisely because such resources are dual use. The objectionable use is the exercise
of the 1st Amendment right of peaceful petition, and the 5th Amendment right of due
process.
By this time Stilley was at FCC Yazoo City Camp. Stilley refused to eat. He
deliberately ran his blood sugar down well below 50. He proved this fact to medical
personnel, and explained his reasoning. He explained that he wanted the long
promised keyboards, and would eat if he got them. Stilley drank enough nutritious
liquids to keep from going to SHU immediately, but not enough to prevent him from
running his blood sugar down again the next day. Stilley tried to talk to responsible
personnel, to get access to the keyboards.
24
The prison administration sent a flunky to pick up Stilley, late at night, to
take him to SHU. At that point in time, negotiation was impossible, “folding” was
unthinkable.
On Wednesday, April 8, the day before Passover 2020, Stilley rejected the
Passover package. That was truly painful because Stilley is a Messianic, and keeps
the Appointments (feasts, even though one is actually a fast) of Yahweh our Elohim.
What could he do? He already knew that folding in the face of an attack would
virtually guarantee the same attack in the future.
After rejecting the food, the Unit Manager at the housing unit of the Low,
where Stilley was previously assigned, told Stilley that he was leaving prison, with
words to the following effect. “Forget the keyboards, I’ve seen your name on the list,
you’ll soon be using your own computer.”
Stilley agreed to eat. The Chaplain brought the food back. Stilley broke the
hunger strike and ate.
On September 9, 2020, the day before Feast of Trumpets, the first feast of the
7th Hebrew month, Stilley left halfway house for home confinement. From that time
forward, Stilley has worked diligently to expose the manifold frauds practiced upon
him, which sent him to prison.
If the petitioner in Robinson had a colorable basis to argue tolling, there can
be no dispute that Stilley had the same. Stilley has devoted a massive amount of
resources toward proving that he is not guilty of any count whatsoever, and that he
25
should not be obstructed from the use of his own property in the defense of his
liberty.
C.
Fraud upon the court prevents limitations from commencing.
In case of fraud upon the court, the statute of limitations never starts. Weese
v. Schukman, 98 F.3d 542, 552-53 (10th Cir. 1996) See 5th Circuit Brief, ppg. 51-63.
Stilley has a very strong claim for fraud upon the court, despite the fact that such
claims are amongst the most difficult to plead and prove.
If the Barefoot test prevails, Stilley necessarily wins.
If Stilley is relegated to a discretionary test, he almost necessarily loses.
Why? This Court only accepts about 1 case in 100. Plus, some cases involve major
companies and large sums of money. Some, such as the recent flurry of abortion
litigation,9 are highly likely to be considered and decided by this Court. The true
probability that an obscure criminal litigant will be granted certiorari is far below
1%.
Each member of this Court gets 4 law clerks. That’s 36 law clerks.10 The
least of these clerks are vastly superior to the average judge on an American bench.
So why can’t these clerks simply tell the justices when they come across a
meritorious application for certificate of appealability? At the core, clerks get the
9
Stilley was involved in certain lawsuits, concerning Dr. Alan Braid,
M.D., and others, partly because Stilley knew that a grant of certiorari was highly
likely. A Google search for “Oscar Stilley” will make this clear. Whether or not
Stilley thought he could get a front row seat or a speaking part for proceedings at
the US Supreme Court is beside the point.
10
Unless the Chief Justice exercises his right to 5 clerks.
26
job not only because of their qualifications, but also because of the general
intangibles that enable a relationship of trust. Why is it necessary to trouble the
entire Court? Why can’t one justice (primarily by and through one clerk) solve these
problems? The text of 28 USC 2253(c)(1) speaks in the singular, not the plural.
D.
This case is suited for answering this longstanding question.
Petitioner’s research suggests this isn’t done. Brent E. Newton, Applications
for Certificates of Appealability and the Supreme Court’s “Oblieatorv” Jurisdiction, 5
J. App. Prac. & Process 177 (2003), (Pet. App. 115) suggests that there is a split of
opinion as to the justices of this Court, as to whether the Barefoot or discretionary
standard applies.
Perhaps Petitioner’s research skills fall short, but he doesn’t see a pattern of
granting certificates of appealability independent of certiorari. In fact he doesn’t
see any summary grants of a certificate of appealability, absent certiorari on some
legal question upon which the Court has chosen to speak.
This Court should grant a certificate of appealability to Stilley, and remand
for further proceedings.
II.
The Court should grant a certificate of appealability, clarifying that
a criminal defendant compelled to exhaust administrative remedies as
condition precedent to getting those things essential to a competent
appeal, is entitled to prosecute the appeal afterward.
Stilley at the 10th Circuit filed his Appellant’s Combined Opening Brief and
Application for a Certificate of Appealability. Stilley in this pleading laid out
reasons that he is entitled to 1) a certificate of appealability, as to every issue listed
27
in Stilley’s 2255 motion filed at District Court, and 2) to a reversal of the District
Court’s decision, and remand for appropriate further proceedings.
Stilley was unlawfully deprived of the one direct appeal to which he was by
law entitled. That’s what he wants back - more than a decade after the fact.
Stilley wants the opportunity to prepare and file his own appeal brief, using
his own resources, without obstruction by his governmental adversaries.
Stilley’s adversaries have long feigned a belief that Stilley sought free stuff
from the government, to prepare a competent appellate brief. This diversionary
tactic is a malicious fraud. Stilley had all the stuff, when he was
unceremoniously hustled off to jail. Stilley was an experienced attorney who
had fully briefed literally dozens of appellate cases, both in Arkansas and various
federal appellate courts. Stilley didn’t need or want governmental largesse. Stilley
sought freedom from invidious governmental interference with his right to one
direct appeal, from an utterly corrupt and totally fraudulent criminal conviction.
A.
One direct appeal is a matter of right.
Occasionally, a single case tells the Court and parties the whole story. This
time, the name of the case is United States v. Winterhalder, 724 F.2d 109, 111-12
(10th Cir. 1983):
In the instant appeal, counsel was appointed for defendant, but upon
discovery of the possible jurisdictional defect the appointment was vacated
pending the resolution of the jurisdictional problem. The parties were asked
to address the jurisdictional question, and both parties have responded.
"Present federal law has made an appeal from a District Court's
judgment of conviction in a criminal case what is, in effect, a matter
of right." Coppedge v. United States, 369 U.S. 438, 441, 8 L. Ed. 2d 21, 82 S.
Ct. 917 (1962). The criminal defendant is entitled to counsel on his first
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appeal of right as a matter of constitutional law. Douglas v. California, 372
U.S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963).
This circuit has held that counsel appointed to represent indigent persons on
appeal must advise them of their right to appeal and perfect an appeal if that
is the client's wish. Jackson v. Turner, 442 F.2d 1303, 1307 (10th Cir. 1971).
Of course, later decisions have shown that a defendant who retains counsel is
entitled to the same constitutional protections as the indigent whose counsel
is appointed. See, e.g., Cuyler u. Sullivan, 446 U.S. 335, 345, 64 L. Ed. 2d 333,
100 S. Ct. 1708 (1980).
A line of Fifth Circuit decisions holds that when Sixth Amendment rights
have been violated by counsel who promises but fails to file a timely appeal,
the proper remedy under 28 U.S.C. § 2255 is an out-of-time appeal. See,
e.g., Mack v. Smith, 659 F.2d 23, 25-26 (5th Cir. 1981); Atilus v. United
States, 406 F.2d 694, 698 (5th Cir. 1969). It was this line of cases that the
district court relied upon in granting defendant a new appeal.
The proper remedy for a denial of effective assistance of counsel in the
prosecution of an appeal is a question of first impression in this circuit. The
relief granted by the district court here was to order defendant to file a new
notice of appeal which would purportedly resurrect defendant's earlier direct
criminal appeal. The filing of a notice of appeal, however, transfers
jurisdiction over the matter from the district court to the court of appeals,
and the power to reinstate an appeal previously dismissed for failure to
prosecute lies with the court of appeals, not the district court. See Williams v.
United States, 307 F.2d 366 (9th Cir. 1962).
28 U.S.C. § 2255 is not the proper vehicle for the reinstatement of an appeal
which has been dismissed by this court for failure to prosecute. We agree
with the position of the Ninth Circuit that, "if an appeal is improvidently
dismissed in this court, the remedy is by way of a motion directed to
this court asking for a recall of the mandate or certified judgment so
that this court may determine whether the appeal should be
reinstated." Williams v. United States, 307 F.2d at 368; accord Rivera v.
United States, All F.2d 927, 928 (3d Cir. 1973); Starke v. United States, 338
F.2d 648, 649 (4th Cir. 1964).
Because the effect of the district court's order is to reinstate defendant's
earlier appeal, we hold that the district court lacked the authority under 28
U.S.C. § 2255 to create appellate jurisdiction by directing defendant to file a
notice of appeal. Nevertheless, because the district court's findings of fact are
unchallenged and the legal conclusion of ineffectiveness of counsel is correct,
we will treat the notice of appeal as an application
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to recall the mandate in defendant's earlier anneal. No. 81-2158. The
factual finding of the district court regarding the dismissal of defendant's
direct criminal appeal justifies a recall of our mandate and a reinstatement of
appeal No. 81-2158.
Accordingly, we adopt the district court's findings that defendant was denied
the right to effective assistance of counsel on appeal. By order entered this
same date, the mandate shall be recalled and the appeal reinstated.
The reinstatement of defendant's direct criminal appeal allows defendant
to raise any and all claims of error properly available to him. Without
expressing any opinion as to the merit of defendant's claim of ineffectiveness
of counsel at trial and in order to preserve the record made by the district
court, the matter is remanded with instructions to the district court
to consolidate the record of the § 2255 proceedings with the record in
the direct criminal appeal and they shall be certified together in No.
81-2158.
The mandate shall issue forthwith.
(Emphases added)
Winterhalder is about an inmate whose lawyer royally screwed things up,
thus depriving the defendant of his right to one direct appeal.
Does it matter one whit that Stilley has been denied his one direct appeal by
the lawless deeds of his adversaries and captors? Does it matter that Stilley
diligently pursued administrative remedies, and to this day continues to litigate
relevant legal questions with utmost vigor?
The evil of which Petitioner complains is a feature, not a bug,
B.
in the DOJ’s carefully crafted and much refined system.
Stilley plainly alleged that the administrative remedy system is designed to
cheat inmates out of their constitutional rights. By the time an inmate exhausts
the utterly fraudulent pretense of remedies maintained by the Department of
Justice-Federal Bureau of Prisons, (DOJ-FBOP) and litigates the question of his 1st
30
Amendment right of reasonable access to the courts, due process, etc., the
underlying criminal appeal will be long over and done with.
That’s precisely the way the US Department of Justice (DOJ) wants it. They
have engineered this system, and continue refining their cynical trick-bag to this
very day. They crush the litigating capacity of their victims, slow-walk everything,
and lie about whether the remedies were actually exhausted. They softly mock their
victims when the time is up, and it is too late.
Stilley’s 2255 proved he was prevented from filing a competent appeal brief.
Dkt. 701, pg, 70-80 Pet. App. 101-111. Nobody denies this. Nobody denied
anything.u Stilley’s 2255 was “dismissed.” Dkt. 719. pg. 5 Pet. App. 5. It was not
considered on the merits. The District Court demoted factual allegations under
penalty of perjury to the status of mere “argument.” Dkt. 719, pg. 2-4 Pet. App. 2-4.
The form itself tells inmates that they must allege facts - argument should
be saved for the brief. Take a look at the 2255 form and related documents at the
website of the Northern District of Oklahoma. You will see that Stilley is telling
the truth.
Stilley litigated the denial of peaceful petition and reasonable access to the
courts. 5th Circuit 21-60022. The next to last entry in that case is 4-6-2021, more
than a year ago. The 5th Circuit on 5-18-2022 upheld the dismissal of Stilley’s
entire complaint in an unpublished per curiam opinion. On 7-19-2022, the 5th
li
Unless an offhand claim or two in a brief can be construed as a denial.
There were no denials in conformity with applicable rules and binding precedent.
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Circuit denied rehearing and rehearing en banc. The timeline on that litigation
alone proves that it is impossible to exhaust administrative remedies, and the legal
remedies to follow, and afterward file a competent appellate brief. It simply can’t
be done.
C.
Remedies must be available to be material.
In the 5th Circuit decision 5-18-22, Stillev v. Garland, at page 6. the
unidentified author claims that the government’s burden of proof of failure to
exhaust does not include any requirement to prove that the allegedly unexhausted
claim was available.
The biggest fly in that wonderful ointment is the fact that the 5th Circuit less
than 3 months prior said the exact opposite. Here is the paragraph from the
unpublished per curiam in Thoele v. Collier, No. 20-50666, 2022 U.S. App. LEXIS
6237, at *5 (5th Cir. Mar. 9, 2022):
To prove this affirmative defense, TDCJ must show that (1) administrative
remedies were available and (2) Thoele failed to exhaust them. Cantwell v.
Sterling, 788 F.3d 507, 508-09 (5th Cir. 2015) (per curiam). Thoele admitted
that he did not exhaust, so the only dispute is about the first requirement.
(Emphases added)
Just one more click takes us to Cantwell v. Sterling, 788 F.3d 507, 508-09 (5th
Cir. 2015). There the Court explained in its published opinion as follows:
Exhaustion is an affirmative defense; the defendants have the burden
of proving that the plaintiff failed to exhaust available administrative
remedies. Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798
(2007); Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). Here, it is
undisputed that Texas prisons have a two-step grievance process. Cantwell
says that he filed a step-one grievance with prison authorities but never
received a response. Because there was no response, he says, he did not
proceed to the second step.l The question for us is whether these
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circumstances suffice for exhaustion. But we cannot decide that issue on the
present record.
(Emphasis added)
Stilley v. Garland, Thoele v. Collier, and Cantwell v. Sterling all three cite to
the US Supreme Court case of Jones v. Bock, 549 U.S. 199, 222, 127 S. Ct. 910, 924
(2007). Thoele and Cantwell both read Jones v. Bock to require defendants to prove
availability of administrative remedies, in order to succeed on that affirmative
defense. The Stilley v. Garland panel has gone in the diametrically opposite
direction.
Stilley gave the 5th Circuit a chance to correct their clash with the US
Supreme Court, on petition for rehearing and rehearing en banc. Rehearing has
been denied, but that issue is not really the point here. The main point is that
Stilley’s 2019 case (MSSD 3:19-cv-6 HTW-LRA) (which would have been a 2018 case
but for hyper-technical objections by the clerk) is just now getting a decision,
approximately 3 Yz years later.
This time frame alone proves that exhaustion of administrative remedies,
and legal remedies to follow, cannot as a practical matter be completed prior to the
entry of decision on direct appeal. If Stilley cannot prosecute his appeal after the
conclusion of his administrative remedies and litigation to follow, the DOJ has the
perfect recipe for rendering the right to one direct appeal in a criminal case a
practical nullity.
Stilley’s litigation over the denial of his 1st Amendment rights of peaceful
petition, reasonable access to the courts, due process, etc., has been dismissed
33
without prejudice, leaving Stilley without a decision on the merits, but with 1) the
right to petition for certiorari,12 and 2) the right to file the same lawsuit again, in
the same or (more likely) another venue.
Everyone knows the legally correct and required result, but it is just so very
painful to put it down on paper. Confession may be good for the soul, but it is
downright deleterious for everything else. Stilley’s enemies much prefer to leave
Stilley dangling, without any definitive decision. A definitive decision requires a
ruling that Stilley was right all along, and that Stilley’s lesal right to one direct
appeal was not annihilated by the fraud, oppression, and chicanery of his
adversaries.
The DOJ wants the opposite of justice. Never let Stilley set a decision on
the merits. That’s their mantra, and that’s exactly the system enforced by the
DOJ’s puppet subsidiary, the DOJ-FBOP. The prosecutor and the jailer have been
essentially rolled into one. That one stomps out the ability of incarcerated persons
(including but not limited to Stilley) to prepare and file a competent brief.
Their idea is to stampede their victims into filing a pathetic shadow of a
competent opening brief. Reply briefs aren’t required and don’t matter. The
opening brief, however inadequate and incompetent, is enough for courts to
conclude that the one direct appeal has been exhausted. The mandate then starts
the clock - their home-made clock they got from Congress through lies and deceit -
12
Not to suggest whether or not such petition will be filed. The calendar
suggests it won’t.
34
on their one year statute of limitations. It is impossible for the inmate to get the
wherewithal for reasonable access to the courts within that time. If the victim files
a 2255, it will be a joke, easy to swat down, with plausible deniability as to the
fraud that gave rise to it.
If the victim does not file within the year, he will get the same treatment that
Stilley got. The fact that the time doesn’t start - according to the statute - until an
impediment preventing the preparation of a competent 2255 is removed, will be
glossed over or ignored altogether. How else to put innocent people in prison?
The goal is to snuff out the victim’s last hope. Convince the victim that the
racket worked, that they have no further remedies, and that they should meekly
acquiesce to the fraud practiced upon them.
Stilley never did that. Stilley stood firmly on his claim of right to one direct
appeal - always but always, to this very day. Stilley adopted most of Springer’s
counseled brief, but nobody claimed that this partial adoption constituted the
opening brief for the one direct appeal to which his is indisputably entitled.
10-
5057 docket, pg. 9 Faced with the question of whether Stilley would get his appeal
after exhaustion of administrative remedies and litigation to follow, neither the 10th
Circuit panel nor the government argued that Stilley had already filed the opening
brief for the one direct appeal to which he is entitled. Id.
This Court should grant a certificate of appealability on grounds that time
spent exhausting administrative remedies doesn’t count against the 1 year statute
of limitations.
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III. A justice or the Court should grant a certificate of appealability
because actual innocence renders criminal conviction and punishment
inconsistent with the 5th Amendment.
Stilley has already served more than 5 years each, on two out of three counts,
day for day. Therefore, the loss of any count of the indictment means that Stilley is
entitled to immediate release, from any incarceration or supervision whatsoever.
United States v. Havmond. 139 S. Ct. 2369, 2379, 204 L. Ed. 2d 897, 906-907 (2019).
The government admits that Stilley could not possibly be guilty of the
charges of the purported indictment, Count 4. 10th Circuit Opening Brief 36-39.
The trial theory irreconcilably contradicted the pretrial theory, (Id.) and before
sentencing the government admitted in writing that if the jury hadn’t concluded
that Springer and Stilley had stolen Patrick Turner’s money, they would have
acquitted. Id.
Pretrial, the government consistently claimed that Springer earned the
money, and Stilley paid it over out of client funds. That left Stilley utterly baffled
about how he could even be named in the purported indictment.
The illegality of Petitioner’s conviction and punishment is clearly established
by this Court’s precedent. See Bousley v. United States, 523 U.S. 614, 624, 118 S.
Ct. 1604, 1612 (1998), where the Court said:
In this case, the Government maintains that petitioner must demonstrate
that he is actually innocent of both "using" and "carrying" a firearm in
violation of § 924(c)(1). But petitioner's indictment charged him only with
"using" firearms in violation of § 924(c)(1). App. 5-6. And there is no record
evidence that the Government elected not to charge petitioner with "carrying"
a firearm in exchange for his plea of guilty. Accordingly, petitioner need
36
demonstrate no more than that he did not "use" a firearm as that term is
defined in Bailey.
The District Court sua sponte swatted down Stilley’s motion for judgment as
a matter of law, despite written opinions or orders both before and after, stating
that he cannot constitutionally do that without prior notice and opportunity to be
heard. Dkt. 701. pg. 44-49. Pet. App.75-80.
Stilley proved that attorney ethical rules, civil law, and criminal law required
him to pay over the money to the “person entitled.” 10th Cir. 22-5000 Opening Brief
47-51. To this day Stilley has not been able to get a ruling on the merits of this legal
claim and argument - anywhere. There is no non-frivolous argument in support of
denying Stilley a reversal and dismissal of all counts of conviction, with prejudice to
any refiling, on this argument.
CONCLUSION
This Court or one of its justices should grant a certificate of appealability,
and remand to the 10th Circuit with appropriate instructions.
Respectfully submitted,
By: Is/ Oscar Stilley
Oscar Stilley
10600 N Highway 59
Cedarville, AR 72932-9246
479.384.2303 mobile
479.401.2615 fax
oscarstillev@gmail.com
37
CERTIFICATE OF SERVICE
I, Oscar Stilley, by my signature above as well as the signature set forth
below certify that I have this October 16, 2022 served the following by email at
Gregorv.V.Davis@usdoi.gov, katie.s.baglev@usdoi.gov. and also with hard copy sent
by US Mail, with 1st class postage attached to:
Gregory Victor Davis
US Department of Justice
Tax Division, Appellate Section
Ben Franklin Station
PO Box 502
Washington, DC 20044
And
Solicitor General of the United States
Room 5616
Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
Stilley is incapable of serving his co-defendant Lindsey Kent Springer, in the
partially consolidated 10th Circuit cases, 10-5055 and 10-5057, because the
government refuses to provide his contact information, the District Court refused to
order such production, Docket #719. pg. 4 (Pet. App. 4) and the 10th Circuit declined
to compel the production of such information on motion and on motion for
reconsideration.
By: Is/ Oscar Stilley
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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.