# Petition — Vernell v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 1007

## Text

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 |

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0475%3A1. Public record. Not legal advice.