Petition — Vernell v. United States

in the <

Supreme Court

of the

United States

wm 77-1145

LOUIS VERNELL, JR..,

et

~ Supreme Court. y 3

D

FFR 18 1978

AEL RODAK, JR., CLERK

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United

States Court of Appeals for the Fifth Circuit

LOUIS VERNELL

In Pro Se

Executive Building

Miami Springs Villas

500 Deer Run

Miami Springs, Florida 331¢*

(305) 871-6565

INDEX

Page

OPINION BELOW ....... Pere rT Eero e erry Perr e 2

I dads <add vekc esewesedtbensecanees 3

QUESTION PRESENTED ....................... 4

RULES AND STATUTES INVOLVED........... 5

Ee pone err ere Peer enn et 7

REASONS FOR GRANTING WRIT.............. 14

EIR PREIS Se eer Oe rae 27

CERTIFICATE OF SERVICE .................... 28

TABLE OF CITATIONS

Andrews vs. United States,

ww F F F | + | Pape 20

Berman vs. United States,

i ae ewe ween 25

Blackwell vs. United States

ow eS } . & | f |! eee 24

DelGenio vs. United States,

wee Se F 6 lL tl eee 24

Fuentes vs. United States,

Ce, BE Bree Ge PO vc ccdcicecccscces 16

Haynes vs. Ciccone,

W.D. Missouri, 1965, 248 F.Supp. 898......... 20

Holt vs. United States,

tore fF & | hy Ge 21

Kyle vs. United States,

C.C.A. 2nd 1961, 207 F.2d 507 ............006. 21

Sanders vs. United States,

SR PS ee 14

Saunders vs. United States,

C.C.A., D.C. 1951, 192 F.2d 409............... 19

Saville vs United States,

ot BS ee lk | ee 20

TABLE OF CITATIONS (Continued)

Page

Wallace vs. United States,

wee F 5 &. i A L.. 19

Wallace vs. United States,

A Ae. GE Be Ge ce EE coc ec vccccccccces 17

Wilson vs. United States,

Sees GD ME, PIED 6 ov conccescckoece 19

STATUTORY PROVISIONS

I 2, 4, 5, 25

eee

in the

Supreme Court

of the

United States

NO. .

LOUIS VERNELL, JR.,

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

The Petitioner, Louis Vernell, Jr., respectfully

prays that a Writ of Certiorari issue to review the judg-

ment of the United States Court of Appeals Fifth Cir-

cuit, entered on September 21, 1977. (App. “A’’). A

timely Petition for Rehearing was denied on November

14, 1977.

OPINION BELOW JURISDICTION

The judgment of the Court of Appeals was entered US a nosy Mery Pn Seer See

without hearing pursuant to its Local Rule 18 and served Toe Tera

to affirm the summary dismissal of a Petition to Vacate

Conviction filed pursuant to 28 U.S.C. 2255. The opi-

nion of the Circuit Court is reported at 559 F.2d 963.

‘By writ of certiorari granted upon the petition

of any party to any civil or criminal case, before

or after rendition of judgment or decree;”’

Jurisdiction is also invoked under Rule 19(1)(b) of

the Rules of the Supreme Court of the United States:

‘‘Where a court of appeal has rendered a deci-

sion in conflict with the decision of another

court of appeals on the same matter; or has

decided an im 2ortant state or territorial ques-

tion in a way in conflict with applicable state or

territorial law; or has decided an important

question of federal law which has not been, but

should be, settled by this court; or has decided

a federal question in a way in conflict with ap-

plicable decisions of this court; or has so far

departed from the accepted and usual course of

judicial proceedings, or so far sanctioned such a

departure by a lower court, as to call for an ex-

ercise of this court’s power of supervision.”’

to

w

QUESTION PRESENTED

Where a 28 U.S.C. 2255 Petition to Vacate Convic-

tion alleges grounds sufficient to make requisite the

vacating of Petitioner’s conviction, i.e.: (1) un-

authorized wiretapping; (2) deliberate suppression of

exculpatory evidence; and (3), the Government’s know-

ing use of perjurious testimony and false records, are

Petitioner’s constitutional rights of due process and

equal protection under the law violated where such Peti-

tion is summarily dismissed without evidentiary hear-

ing, notwithstanding that none of such grounds were

ever previously heard or determined on the merits?

RULES AND STATUTES INVOLVED

Title 28 U.S. Code, 2255. Federal custody;

remedies on motion attacking sentence.

“A prisoner in custody under sentence of a

court established by Act of Congress claiming

the right to be released upon the grounds that

the sentence was imposed in violation of the

Constitution or laws of the United States, or

that the court was without jurisdiction to im-

pose such sentence, or that the sentence was in

excess of the maximum authorized by law, or is

otherwise subject to collateral attack, may

move the court which imposed the sentence to

vacate, set aside or correct the sentence.

A motion for such relief may be made at any

time.

Unless the motion and the files and records

of the case conclusively show that the prisoner

is entitled to no relief, the court shall cause

notice thereof to be served upon the United

States attorney, grant a prompt hearing

thereon, determine the issues and make

findings of fact and conclusions of law with

respect thereto. If the court finds that the judg-

ment was rendered without jurisdiction, or that

the sentence imposed was not authorized by

law or otherwise open to collateral attack, or

that there has been such a denial or infringe-

ment of the constitutional rights of the prisoner

as to render the judgment vulnerable to

collateral attack, the court shall vacate and set

the judgment aside and shall discharge the

prisoner or resentence him or grant a new trial

or correct the sentence as may appear ap-

propriate.

A court may entertain and determine such

motion without requiring the production of the

prisoner at the hearing.

The sentencing court shall not be required to

entertain a second or successive motion for

similar relief on behalf of the same prisoner.

An appeal may be taken to the court of ap-

peals from the order entered on the motion as

from a final judgment on application for a writ

of habeas corpus.

An application for a writ of habeas corpus in

behalf of a prisoner who is authorized to apply

for relief by motion pursuant to this section,

shall not be entertained if it appears that the

applicant has failed to apply for relief, by mo-

tion, to the court which sentenced him, or that

such couft has denied him relief, unless it also

appears that the remedy by motion is inade-

quate or ineffective to test the legality of his

detention’’.

STATEMENT

Petitioner, a practicing attorney in the State of

Florida for 27 years, was convicted after jury trial in the

United States District Court for the Southern District of

Florida of the offense(s) of wilfull failure to file income

tax returns for the taxable years 1967 through 1971, as

proscribed by 26 U.S.C. Section 7203. Upon adjudica-

tion, Petitioner was sentenced to concurrent terms of

nine months imprisonment and fined $5,000.

Prior to trial, the parties stipulated to all elements

of the offense, save for the issue of wilfulness. To negate

such singular element, the Petitioner sought to establish

that a myriad of circumstances precluded an earlier fil-

ing of Petitioner’s returns which included the loss and

destruction of Petitioner’s records; the ill health and

repeated ‘‘intensive care’ hospitalizations of

Petitioner’s wife; Petitioner’s own deteriorated health;

his absence from the country; and other matters related

to the pressure and requirements of Petitioner’s law

practice.

Aside from such evidentiary matters, the very crux

of Petitioner’s defense rested on his ability to

demonstrate: (1) that Petitioner had, in fact, filed all of

the required tax returns and fully paid all taxes due

thereon, almost one year prior to the filing of Informa-

tion in the cause; (2) that during each of the years

charged in the Information, the Petitioner did, in fact,

make timely and appropriate application(s) for exten-

sion of time to file required returns and that such exten-

sions had been granted to him by the Internal Revenue

Service.

Although the Government conceded all other fac-

tual matters presented in Petitioner's defense, it

vigorously denied both the filing of Petitioner’s applica-

tions for extensions of time and/or the granting of the

same. Because of the prior loss of Petitioner’s records,

the Petitioner was unable to establish the filing and/or

granting of such extensions, except through his own

testimony.

In direct conflict therewith, the Government placed

into evidence what it represented were the ““complete’’

records of ‘‘all of the transactions” of the Petitioner as

well as the testimony of ‘“‘the personal representative of

the District Director’, Walter McDaniel. Such records

and testimony diametrically conflicted with Petitioner's

own sworn testimony. At one point in the trial the

Government actually pitted Petitioner's testimony

against the McDaniel testimony and records, viz:

(App. B).

‘“Vernell — Cross

Q. Now, you heard the testimony of Mr.

McDaniel?

A. Yes, sir.

Q. Have you examined Government Exhibit No. 1

— No. 8?

A. Relative to my extension applications?

Q. Yes, sir.

A. Yes.

Q. They don’t show that you filed extensions for

all those years, do they?

A. They are incorrect.

Q. You believe they are incorrect?

A. I know they are incorrect.”

Aside from the exculpatory effect of such exten-

sions, the dispute concerning the filing and/or granting

of the same constituted the sole test of Petitioner’s

credibility. Absent physical evidence to support

Petitioner’s sworn testimony, the prohibitive force of the

government's “‘official records’ and the testimony of

such ranking I.R.S. representative served to fully dis-

credit Petitioner and to otherwise hold him up to

ridicule before the jury.

Albeit, the consequential affect of such uneven test

of credibility upon the issue of ‘“‘wilfulness”’ virtually

mandated the adverse verdict rendered.

POST-TRIAL PROCEEDINGS

Petitioner thereafter appealed such conviction to

the Fifth Circuit Court of Appeals, raising three specific

issues, i.e., (1) Error in the trial Court’s instruction to

the Jury, (2) prosecutorial misconduct during trial, and

(3) the existence of a material variance between the

charge and proof adduced. After the record and briefs in

such cause had been filed, Petitioner discovered an ex-

culpatory exhibit which mysteriously surfaced in the

court file following its return from the United States At-

torney’s office, (App. C). The bizarre circumstances of

such discovery are reflected in Petitioner’s Affidavit

filed before such Court (App. D).

As noted, the subject exhibit consisted of a copy of

an official IRS transcript reflecting both the filing and

granting of at least one, and perhaps the most impor-

tant, of the tax extensions which formed the basis of the

factual dispute at trial.!

Although Petitioner immediately advised the Court

of Appeals as to his discovery, it was not until after the

entry of such Court’s summary dismissal of Petitioner’s

appeal under Rule 21, 510 F.2d 383, (App. E) that

Petitioner filed a motion for remand and Petition for

‘As a result of the unauthorized service of a subpoena on

Petitioner's accountant the day prior to trial and a claimed illegal

wiretap, the government knew Petitioner was unable to produce ex-

tensions for the years 1967, 1970 and 1971. At trial, the government

coincidentally conceded the filing of the extensions possessed by

Petitioner, but vigorously denied those which Petitioner was unable

to produce. The crux of such factual dispute centered on the last of

the questioned taxable years, i.e. 1971, the existence of which was

subsequently discovered, infra.

10

Rehearing, therein raising for the first time a collateral

issue concerning the consequential effect of the subject

exhibit. The Circuit Court refused to consider either of

such motions and accordingly denied the same,

specifically holding as follows: (App. F).

‘Appellant also has filed a motion that the

case be remanded for evidentiary hearing. The

various grounds asserted are raised for the first

time on appeal, on petition for rehearing, or in

the motion itself, and we will not consider

them. The motion is DENIED.”

Despite the complete failure and refusal of the

Court to consider such matter on the merits, the same

Fifth Circuit Court of Appeals based its findings in the

case at bar, largely on its contention that it had

previously ‘“‘decided”’ the issues herein on the basis of

such undetermined Petition for Rehearing (App. A).

Following remand of Petitioner’s original appeal,

Certiorari was thereafter taken to this Honorable Court,

raising only two issues for consideration, i.e.: (1) error in

the trial court’s instruction to the jury, and (2) the ex-

istence of a fatal variance between the charge and the

proof adduced. Such application was thereafter denied

by this Honorable Court, 423 U.S. 1014, 96 S.Ct. 446

(1975).

Albeit, during the pendency of such Certiorari

proceeding, the Petitioner filed a Motion for New Trial

in the District Court under Rule 33, based on newly dis-

covered evidence (App. G). The District Court

summarily denied such motion without evidentiary

ll

hearing (App. H). No traverse or other response to such

motion was ever made by the Government.

Again, and despite the fact that no determination

on the merits had been rendered by the District Court

on such motion, nor hearing had thereon, the Court of

Appeals in the case at bar relied upon such District

Court denial as a further basis for its contention that the

issues contemplated herein had been “‘decided’’. (App.

A).

Following such summary denial, Petitioner then

appealed the District Court action to the Fifth Circuit

Court of Appeals which once again entered a summary

judgment of affirmance without hearing pursuant to its

Local Rule 18, 526 F.2d 814 (App. I). In its opinion in the

case at bar the Circuit Court erroneously relied upon

such summary disposal of the appeal as an additional

basis for its opinion that the issues contemplated herein

had previously been ‘‘decided”’ (App. A).

Albeit, and following affirmance of such summary

denial of Petitioner's Rule 33 Motion for New Trial, the

Petitioner, while incarcerated, filed a Petition to Vacate

Conviction under 28 U.S.C. 2255 which vastly differed

from his prior motion for New Trial in both scope and

content (App. J). As noted, rather than relying upon the

singular ground of newly discovered evidence, Petitioner

alleged innumerable constitutional infirmities in his

conviction, based upon his claim of unauthorized

wiretapping, deliberate suppression of exculpatory

evidence and the Government’s knowing use of per-

jurious testimony and false records.? Although the suf-

*Petitioner further claimed that exculpatory exhibits, other

than that previously discovered and included in his Rule 33 motion

had. likewise, been suppressed by the government.

12

ficiency of such grounds to werrant the vacating of

Petitioner’s conviction was never challenged, the Dis-

trict Court nonetheless summarily dismissed the Peti-

tion without evidentiary hearing. (App. K) The

Petitioner then filed in the District Court a Motion for

Rehearing and for vacation of the Order of dismissal

which was likewise summarily denied by the District

Court without hearing (App. L).

Following such summary dismissal, the Petitioner

then appealed both the original order of dismissal of the

District Court as well as its further Order denying his

Motion for Rehearing (App. M). As noted, the opinion of

the Circuit Court in the case at bar erroneously suggests

that Petitioner’s appeal was directed only to the denial

of his Motion for Rehearing and Vacation of Order dis-

missing his 2255 Petition (App. A).

Significantly, and for the third time, the Circuit

Court entered a summary judgment of affirmance

without hearing pursuant to Local Rule 18, on this last

appeal of Petitioner.

Albeit, and notwithstanding that the Circuit Court

in the case at bar based its opinion upon the express

ground that the issues contemplated herein had

previously been “‘decided’”’, at no time has any hearing

whatsoever been accorded to Petitioner thereon, nor has

the Government ever heretofore filed any traverse or

other response, either admitting or otherwise denying

any of the constitutionally impermissible actions as

alleged by Petitioner. Indeed, the record convincingly

demonstrates that the last and only “hearing” ever ac-

corded to Petitioner since the filing of the original Infor-

mation in the cause was the trial itself, in which

Petitioner’s conviction was entered.

13

REASONS FOR GRANTING WRIT

The decision of the Circuit Court in affirming the

District Court’s summary dismissal of Petitioner's Mo-

tion to Vacate Conviction without evidentiary hearing,

is in conflict with this Court’s decision in Sanders vs.

LS. (1963) 373 U.S. 1, and is otherwise repugnant to the

statutory requirements of 28 U.S.C. 2255.

At the outset, it should be noted that the sole thrust

of both the Petition filed before this Honorable Court

and the appeal taken to the Circuit Court circumscribes

Petitioner's claim that he has thus far been totally

deprived of any opportunity or hearing to present for

determination on the merits, any of the constitutionally

impermissible actions of the Government attendant to

Petitioner's conviction.

Contrary to the opinion rendered by the Circuit

Court, none of the several grounds urged to vacate

Petitioner’s conviction have ever been heard or deter-

mined on the merits, notwithstanding that the suf-

ficiency thereof has never been challenged or put in

issue.

With all due respect, it is deemed incredulous that

either the Circuit Court or the District Court in the case

at bar, could conceivably, after presumed required

review of the record, reject in toto, Petitioner's con-

stitutional claims of deliberate suppression of ex-

culpatory evidence, wire tapping, perjury and falsifica-

tion of records upon the singular and unsupported basis

that the same had previously been “‘decided”’.

14

Certainly the record should speak the truth as to

such “finding”. Suffice it to say that if the Government

is able to demonstrate in its response to the within Peti-

tion the conduct of any hearing upon Petitioner’s claims

or the existence of any proceeding in which the same

were determined on the merits, the Petitioner would be

content to accept, without further proceeding, the

travesty of justice attendant to his conviction.

Realistically, if matters of such constitutional

magnitude have, in fact, been “decided’’, there must at

least be something in the record to demonstrate the

same, beyond the mere terms “‘Denied”’ or ‘“‘Affirmed’”’,

which have summarily been applied to every prior ap-

plication made by Appellant in connection with his

claims.

While noting in its opinion that the Circuit Court

alluded to three presumed instances to support its deter-

mination that Petitioner’s constitutional claims had

previously been ‘decided’, i.e., in ‘Petition for Re-

hearing’, ‘‘Motion for New Trial’’, and “direct appeal

therefrom”’ such reliance by the Court is totally repug-

nant to the record, viz:

(1) The record demonstrates that the cited ‘‘Peti-

tion for Rehearing’ was not even filed until after the

Circuit Court had summarily affirmed Petitioner’s con-

viction on his original appeal.’ Albeit, because the

previously suppressed IRS transcript was discovered

only by pure chance during Petitioner’s appeal and no

issue concerning the same had previously been raised,

‘Summary judgment of Affirmance was entered February 25,

1975; Petition for Rehearing was filed April 1/1, 1975.

15

the Circuit Court expressly refused to even consider

such matter, holding: (App. F)

‘Appellant also has filed a motion that the case

be remanded for evidentiary hearing. The

various grounds asserted are raised for the first

time on appeal, on petition for rehearing, or in

the motion itself, and we will not consider

them. The motion is DENIED.”

(2) The record further demonstrates that

Petitioner’s Rule 33 ‘Motion for New Trial’ was

summarily denied by the District Court, without

evidentiary hearing, and indeed, without even, Govern-

ment response thereto. (App. H).

(3) Similarly, and with respect to the “direct ap-

peal therefrom” the record otherwise reflects that the

Circuit Court summarily affirmed such denial by the

District Court without hearing. 512 F.2d 814. (App. I).

Ergo, neither in the three instances cited in the Cir-

cuit Court’s Opinion, nor elsewhere in the record is there

found any basis whatsoever which could even remotely

suggest that any of Petitioner’s claims had previously

been “decided” in the manner as mandated by 28

U.S.C. 2255.

Certainly, where as in the instant cause, each of the

several grounds raised are sufficient per se, to require

the vacating of Petitioner’s conviction, neither the Cir-

cuit Court nor the District Court could possibly have

previously “‘decided”’ such vital issues on the pleadings

and briefs filed by the parties”. Fuentes us. US.,

(C.C.A. 5th, 1972) 455 F.2d 911.

16

Significantly, the 9th Circuit in Wallace us. U.S.,

(C.C.A. 9th, 1972) 457 F.2d 547, decisively held that

‘since Appellant did not have an evidentiary hearing on

his earlier petition, denial was not on the merits of his

claim.”

In the somewhat analogous case of Sanders vs.

L’.S., supra, this Honorable Court interpreted the provi-

sions of a Section 2255 application as the same related to

prior proceedings seeking collateral relief. In Sanders,

the Petitioner filed two motions under Section 2255 after

a conviction on a bank robbery charge. Both motions

were denied by the trial court and affirmed by the court

of appeals without hearing. This Court granted cer-

tiorari and reversed the court of appeals, holding that

the sentencing court should have granted a hearing on

the second motion. Subpart A of this Court’s opinion

particularly addresses itself to the question of successive

motions on grounds previously heard and determined,

viz:

“Controlling weight may be given to denial of a

prior application for federal habeas corpus or

Section 2255 relief only if (1) the same ground

presented in the subsequent application was

determined adversely to the applicant on the

prior application. (2) the prior determination

was on the merits, and (3) the ends of justice

would not be served by reaching the merits of

the subsequent application.” (at 1077).

Although in such instance, this Court did not

specifically refer to a Rule 33 Motion for New Trial as

presented in the case sub judice, its discussion of suc-

cessive motions in general terms certainly suggests that

17

the rationale of the case applies to all successive motions

for federal collateral relief:

“‘No matter how many prior applications

for federal collateral relief (emphasis added) a

prisoner has made, the principle elaborated in

Subpart A, supra, cannot apply if a different

ground is presented by the new application. So,

too, it cannot apply if the same ground was

earlier presented but not adjudicated on the

merits. In either case, full consideration of the

merits of the new application can be avoided

only if there has been an abuse of the writ or

motion remedy; and this the government has

the burden of pleading.” (at 17).

This court went on to set forth three criteria for

finding successive motions to be res judicata:

“By ground, we mean simply a sufficient

legal basis for granting the relief sought by the

applicant . . . identical grounds may often be

proved by different factual allegations. So also,

identical grounds may ofter be supported by

different arguments. . . or vary in immaterial

respects . . . Should doubts arise in particular

cases as to whether two grounds are different or

the same, they should be resolved in favor of

the applicant (at 1077.)

Concerning motions summarily denied, this court

in Sanders specifically held:

“The prior trial must have rested on the

merits of the ground presented in the subse-

18

quent application. . . . This means that if

factual issues were raised in the prior applica-

tion, and it was not denied on the basis that the

files and records conclusively resolved these

issues, an evidentiary hearing must be held.”’

(at 1077).

Since a Rule 33 Motion is deemed to be a motion for

federal collateral relief, and this court in Sanders made

specific reference to motions for federal collateral relief,

the rationale of such case should apply to the situation

presented in the case at bar, wherein a Rule 33 Motion

for federal collateral relief was followed by the 2255 Mo-

tion filed herein.

In cases involving successive Rule 33 motions, such

as Saunders vs. U.S. (D.C. Cir. 1951) 192 F.2d 409, and

Wilson vs. U.S., (8th Cir. 1948) 166 F.2d 527, the only

time that successive motions have been found to be res

judicata was in instances where a full hearing had been

held on the first motion, and the second motion was

based on identical grounds. As noted, the lower court

cases involving successive Sec.‘on 2255 motions have

reiterated the findings of this Court in Sanders.

In Wallace vs. U.S., (8th Cir. 1949) 174 F.2d 112,

the Eighth Circuit Court of Appeals reversed the denial

of successive 2255 motions by the District Court,

stating:

“The action of the District Court upon the joint

motion of Wallace and Story . . . to vacate

their sentences cannot, we think, be regarded

as res judicata of Wallace’s present motion,

since the record fails to show that the prior mo-

19

tion was heard upon the merits or that any for-

mal order denying it was entered.” (at 1177).

Also, in Andrews us. U.S., (5th Cir. 1961) 286 F 2d

829, the court found that a prisoner was entitled to a

hearing upon a second motion attacking his sentence. In

Andrews there had been no hearing on an earlier motion

and the files and records of the court did not con-

clusively show that the prisoner was entitled to no relief.

Further in Haynes vs. Ciccone, (W.D. Missouri, 1965)

248 F. Supp. 898, the Court held:

“If the hearing on petitioner’s prior motion un-

der Section 2255 was not a full and fair hearing

resulting in reliable findings, successive ap-

plications for relief under Section 2255 may be

filed by the petitioner in the committing court

. and rulings thereon appealed until a full

and fair hearing and a lawful decision has been

rendered, and until the ends of justice would

not be served by reaching the merits of a subse-

quent application. (At 902).

Further, in Saville vs. U.S. (1st Cir. 1971) 451 F.2d

649, the First District Court of Appeals found that the

district court had erred in relying on prior 2255 motion

denials in its refusal to grant a hearing on a successive

motion. The court stated that:

‘

‘... prior refusal to discharge a prisoner

on a like application can be given controlling

weight only if it was an adjudication on the

merits of the ground presented.” (at (650)

ee ee ec

In Holt vs. U.S., (8th Cir. 1962) 303 F.2d 791, the

Eighth Circuit Court of Appeals considered the

propriety of both a Rule 33 motion and a Section 2255

Petition. As noted therein, while an appeal of a convic-

tion for narcotic violations was pending, the defendant

in Holt filed a Rule 33 Motion for new trial. The District

Court summarily dismissed the motion because it felt

that it was without jurisdiction to entertain the motion

for new trial while an appeal of the conviction was

pending. After the conviction had been affirmed by the

court of Appeals, the appellant filed a motion under

Section 2255 and in the alternative, reiterated his claim

for a new trial under Rule 33. The Court of Appeals

vacated the order of the district court dismissing the

motion for new trial and remanded the cause for purpose

of consideration of the Rule 33 motion along with the

Section 2255 motion. The Court determined that it was

necessary to conduct a full hearing on both of these mo-

tions — though subsequently denying the same on the

merits.

It is accordingly submitted from the foregoing that

where no hearing was had on a prior application for

federal collateral relief, a subsequent 2255 motion em-

bracing either the same or different grounds, must be

heard and determined by the trial court — unless such

latter motion conclusively shows that movant is entitled

to no relief.

In Kyle vs. U.S. (CCA 2nd, 1961) 297 F.2d 507, the

Second Circuit Court of Appeals considered a situation

virtually on ‘‘all fours’ with the case at bar. In such

case, the District Court denied a Section 2255 Petition

where it was claimed that the Government had ‘“‘sup-

21

pressed”’ certain let*ers of exculpatory value. In such

instance,

“The Government opposed the motion on

the grounds that petitioner should have ‘‘raised

and pushed” the issue earlier, that the copies of

the letters would not have helped him in any

event, and that if he had deemed them essen-

tial, he could have obtained the originals from

Salzburg. Chief Judge Bruchhausen denied the

motion with an oral opinion, rendered after

argument but without an evidentiary hearing.”

(Emphasis supplied)

In further alluding to the factual situation of such

cause, the Court observed:

“Here the appearance in the Govern-

ment’s files of the letters, the possession of

which it had disclaimed at and after the trial,

sufficiently altered the situation since the

denial of the first motion to demand eviden-

tiary inquiry...”

In noting that no evidentiary hearing had been

held, the Court in Kyle remanded the cause and di-

rected the conduct of such hearing if only to determine

whether the Government’s failure to disclose was wilful

or negligent.

In applying such principle to the case at bar, it is

noted that the Government denied the existence of cer-

tain extensions to file tax returns which Petitioner

claimed had been both requested and granted. Aside

from the exculpatory effect of such extensions, this

22

direct conflict in testimony materially and adversely af-

fected Petitioner’s credibility. Subsequent discovery

made during the course of original appeal reflected not

only the existence of at least one of the extensions

claimed, but the Government’s knowing possession and

suppression thereof.

In affidavits tiled before the Court (App. D and N)

both Petitioner and Petitioner’s trial counsel, E. David

Rosen, swore that the existence of such exculpatory ex-

hibit was completely unknown to them at time of trial

and further, that the Government had at no time dis-

closed or supplied the same.

Moreover, and while Petitioner’s Rule 33 Motion for

New Trial made reference only to such singular exten-

sion, the 2255 Petition filed herein claimed both the ex-

istence and suppression of other exculpatory exhilits

and extensions as well.

Significantly, neither the District Court nor the Cir-

cuit Court ever entered a finding that “the ends of

justice would not be served by reaching the merits of the

subsequent application” as required in Sanders, supra.

Nor indeed, has either the Circuit Court or the District

Court ever required the Government to either admit,

deny, or otherwise respond to any of Petitioner’s claims

of Government misconduct ... which, as of this date,

the Government has totally failed to do.

Ergo, and aside from the absence of any predicate

in the record to support the summary rejection of

Petitioner’s claims, even the authorities cited in the Cir-

cuit Court’s opinion are viewed to be totally inap-

plicable, viz:

23

In Del Genio vs. U_S., 352 F.2d 304 (5 Cir. 1965), the

Court specifically determined that Petitioner’s prior ap-

plication had been given ‘‘an exhaustive evidentiary

hearing covering the identical matters again asserted in

the Section 2255 Petition’’.

In Blackwell vs. US., 429 F.2d 514 (5 Cir. 1970), the

Court specifically determined there was no factual

predicate in the record to support Petitioner’s Section

2255 claim that his confession had been ‘“‘coerced” since

no such confession had ever been received in evidence at

trial of the cause.

. It is significant to note that during proceedings on

his 2255 motion to vacate, the Petitioner made the

following unanswered challenge!

" . . to demonstrate from the record the ex-

istence vel non of any of the following:

(a) any pleadings or instruments wherein

the Government either admits, denies or

otherwise responds to the constitutionally im-

permissible claims raised herein by Petitioner,

(b) any proceeding or hearing heretofore

held in the cause whereat any of the eviden-

tiary matters reflective of Petitioner’s claims

was considered by this or any other court.

(c) any order, ruling or directive wherein it

might appear that a determination of

Petitioner’s claims was rendered on their

respective merits.”’

Neither the Government nor the District court met

such challenge, apparently for the simple reason that

none of the foregoing matters do, in fact, exist.

Petitioner accordingly submits that absent any

prior determination of the constitutional grounds herein

urged on their respective merits, the statutory require-

ments as prescribed by 28 U.S.C. 2255, make requisite

the granting of an evidentiary hearing upon Petitioner's

Motion to Vacate. Certainly, if, at such evidentiary

hearing, the Petitioner can meet the requisite burden of

proof supportive of his constitutional claims, he would

clearly be entitled to the consequent vacating of his con-

viction. Only then, could the Petitioner be said to have

had his “day in Court” in the manner envisioned by the

late and revered Justice Black, who,.in Berman vs.

United States, (1964) 378 U.S. 530, admonished:

“The Criminal Rules were framed with the

declared purpose of ensuring that justice not be

thwarted by those with too little imagination to

see that procedural rules are not ends in them-

selves, but simply means to an end; the

achievement of equal justice for all. I have no

doubt that the disposition of this case would

have been very congenial to the climate of

Baron Parke’s day. I confess, however, that |

am uncomfortable with the notion that courts

exist to fashion and preserve rules inviolate in-

stead of to apply those rules to do justice to

litigants.”

Needless to state, the consistent refusal on the part

of the lower courts to even allow a hearing upon

Petitioner's constitutional claims is, to the absolute dis-

grace of our judicial system, reminiscent of

“Watergate”.

Certainly, and to the extent that Petitioner has

been denied such a hearing, his constitutional right of

equal protection under the law must be said to have

been violated. Similarly, and with respect to the sum-

mary rejection of such claims, his additional con-

stitutional right of due process was effectively denied.

26

CONCLUSION

For these reasons, a Writ of Certiorari should issue

to review the judgment and opinion of the Court of

Appeals.

Respectfully submitted,

LOUIS VERNELL,

In Proper Person

27

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the above

and foregoing was mailed this 13th day of February,

1978, to:

The Solicitor General

Department of Justice

Washington, D.C. 20530

LOUIS VERNELL |