# Petition for Writ of Certiorari — Paar v. Finnerty > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2165%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 918 ## Text = 7! - ( 8 4 3 08 ~ | Office - Supreme Court, us. FILED No. JUN 29 1984 IN THE capa = STEVAS. SUPREME COURT OF THE UNITED STATES October Term, 1983 WILLIAM M. PAAR, Petitioner Vv. JOHN P. FINNERTY, SHERIFF and ROBERT ABRAMS, NEW YORK STATE ATTORNEY GENERAL, Respondents PETITION FOR A WRIT OF CERTIORARI TO "HE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT QUESTION PRESENTED FOR REVIEW Whether the Second Circuit's denial of a Certificate of Probable Cause meets the sufficiency requirement of Civil Rule 52(b) if the Respondents have failed to answer an Order to Show Cause as required by Rule 5 of Rules Governing Section 2254 Cases in the United States District Courts. ii TABLE OF CONTENTS CMETRON BOSOM. csi scececcccces mp oS a” SPP eerT ree eee Statutory Provisions i PTT CC CLE TEE Eee Reason for Granting eS Appendix 1ii TASLE OF AUTHORITIES Case Page Graver Tank and Mfg. Co. v. Linde Air Prods. Co. (1949) 336 U.S. 271, 275, 69 S. Ct. 535, 93 L. ed 672 13 Court Rules Rule 52(b) of the Federal Rules of Civil Procedure 3,12 Rule 4, Rules Governing Section 2254 Cases in the United States District Courts 4,8,9 Rule 5, Rules Governing Section 2254 Cases in the United States District Courts 4,19 Advisory Committee Notes Note to Section 2254, Rule 4 3 or b- UI Note to Section 2254, R No. IN THE SUPREME COURT OF THE UNITED STATES October Term, 1983 William M. Paar, Petitioner Vv. John P. Finnerty, Sheriff, Suffolk County, Robert Abrams, New York State Attorney General and Martin Bradley, Suffolk County Attorney, Respondents. PETITION FOR A WRIT OF CERTIORARI ‘7O THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Petitioner, William M. Paar, respectfully urges that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Second Circuit rendered on March 1, 1984. OPINION BELOW _ The decision of the United States Court of Appeals for the Second Circuit is attached as part of the appendix (App. 1A ) affirming the refusal of the United States District Court for the Eastern District of New York to issue a certificate of probable case (App. 2 ) so William M. Paar could appeal that Court's decision denying his petition for a writ of habeas corpus. (App. 3 ) JURISDICTION Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1), to review the judgment of the United States Court of Appeals for the Second 3 ‘Circuit. This judgment was dated and entered on March 1, 1984 (App. 1A ). Justice Thurgood Marshall on May 29, 1984 extended petitioner's time for filing a petition for writ of certiorari to and including June 29, 1984. (App. 1 ). STATUTORY PROVISIONS INVOLVED This case involves Rule 52(b) of the Federal Rules of Civil Procedure and Rules 4 and 5, Rules Governing Section 2254 in the United States District Courts. Civil Rule 52(b) When findings of fact are made by the court without a jury, ... the sufficiency of the evidence ... may thereafter be raised 4 Rule 4 - Rules governing Section 2254 cases in the United States District Courts. if it plainly appears ... that the petitioner is not entitled to relief ... the Judge shall make an order for its summary dismissal otherwise the Judge shall order the respondent to file an answer or other pleading. Rule 5 = Rules governing Section 2254 cases in the United States District Courts. The answer shall respond to the allegations of the petitioner shall state whether the petitioner nas exhausted his state remedies 5 The court on its own motion may order that ... transcripts be furnished STATEMENT OF CASE The petitioner, William M. Paar, is pro se and has been since the time he filed for writ of habeas corpus under Title 28 U.S.C. § 2254. The petitioner was incarcerated under F 102-80 as a result of a finding by the Family Court, County of Suffolk, State of New York, that he was in contempt for refusing to make child support payments to the Suffolk County Department of Social Services. On November 4, 1982 the Honorable Jacob Mishler, 6 District of New York issued an order to show cause ordering the Attorney General to respond to petitioner's application for a writ of habeas corpus and submit any available transcript and record to the Court at the time of filing such return. In an order dated November 29, 1982 the Honorable David F. Jordan, Magistrate, amended the show cause order dated November 4, 1982 by adding the name of the Suffolk County Attorney to that of the Attorney General. Neither the Attorney General of the State f New York nor the Suffolk County Attorney answered the show = - - .- | I ~ der dated November 4, 1982 7 in conformance with Rule 5 of the Rules Governing Section 2254 cases in the United States District Courts. The District Court never enforced its jurisdiction under Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts. The Court of Appeals did not have benefit of the answer to the order to show cause as provided by Rule 5 of the Rules Governing Section 2254 cases in the District Courts when it denied petitioner's certificate of probable cause without comment. 8 REASON FOR GRANTING THE WRIT The Second Circuit's Affirmation of the District Judge's denial of a certificate of probable cause lacks suf- ficiency of evidence to support such findings and is therefore subject to review under Rule 52(b) of the Federal Rules of Civil Procedure. Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts gives the District Court Judge great latitude in determining that evidence necessary to proper disposition f the case, and states in part below: "If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the District Court, that the Judge shall make an order 9 for its summary dismissal and cause the petitioner to be notified. Otherwise the Judge shall order the respondent to file an answer or other pleading within the period of time fixed by the Court or to take such other action as the Judge deems appropriate." Further, the advisory committee note to Section 2254, Rule 4 States in part: "It has been suggested that an answer should be required in every habeas proceeding, taking into account the usual petitioner's lack of legal expertise and the important functions served by the return. See Developments in The Law - Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1178 (1970)." 10 The District Court having determined that an answer is necessary to the proper disposition of the case, Rule 5 is specific in its requirements oi the respondent and states in part: "The answer shall respond te the allegations of the petition. In addition, it shall state whether the petitioner has exhausted his state remedies including any post-conviction remedies available to him under the Statutes or procedural rules of the st ace and including also his right of appeal bsoth from — judgment of conviction and from any adverse 31 epee: or order n the post- -conviction : proceeding. The answer shall indicate what transcripts (of pretrial, trial, sentencing and post- conviction proceedings) are availabie, when they can be Turnished, and also what proceedings have been recorded and not transcribed." 11 Further, the advisory committee note Section 2254, Rule 5 states in part: "The answer plays an obviously important role in a habeas proceeding: The return serves several important functions; it permits the Court and the parties to uncover quickly the disputed issues; it may reveal to the petitioner's attorney grounds for release that the petitioner did not know; and it may demonstrate that the petitioner's claim is wholly without merit. Developments in the Law- Federal Habeas Corpus, 83 Harv. L. Rev. 1083, 1178 (1970)." The District Court having determined that under Rule 4 that 12 an answer is necessary , the importance of the evidence required by Rule 5, and its relevance to the proper adjudica- tion of the petition for habeas corpus surely cannot be denied. Petitioner represents that the District Court's refusal of a certificate of probable cause and the Court of Appeals' affirmation in the absence of the answer as required by Rule 5 of the Rules Governing Section 2254 cases does ot meet the sufficiency requirement of Rule 52(b) of the Federal Rules of Civil Procedure and constitutes 13 two Court Rule, Graver Tank and Mfg. Co. v. Linde Air Prods. Co. (1949) 336 US 271, 275, 69 S. Ct. 535, 93 L. ed 672. Respectfully submitted, William M. Paar Pro Se c/o S. Mackin 311 East 54th Street New York, New York 10022 (212) 751-6182 APPENDIX INDEX APPENDIX Order Extending Time to File Petition for Writ OE BOPCAOTETS c 6 6 Hbe See ceeseuce Decision = United States Court of Appeals for the Second Circuit..... 7 ee Order Denying Certificate of Probable Cause = District PSs Sec eWeth ed eueeen ae ees ce Memorandum of Decision and Order - District Court....... . rere eras ci ehesies 1A App. 1 SUPREME COURT OF THE UNITED STATES No. A-965 WILLIAM M. PAAR, Petitioner, Ts JOHN P. FINNERTY ORDER EXTENDING TIME TO FILE PETITION FOR WRIT OF CERTIORARI UPON CONSIDERATION of the application of counsel for petitioner(s), IT IS ORDERED that the time for filing a petition for writ of certiorari in the above-entitled cause be, and the same is hereby, extended to and including June 29, 1984. /s/Thurgood Marshall Associate Justice of the Supreme Court of the United States Dated this 29th day of May , 1984. App. 1A PRO SE UNITED STATES COURT OF APPEALS 83-2346 2/28 FOR THE SECOND CIRCUIT At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, in the City of New York, on the lst day of March, one thousand nine hundred and eighty-four. William M. Paar, Vie John P. Finnerty and ano., 83-2346 a *% Appellees. A motion having been made herein by 538 - od appellant pro se for a certificate of ~ 9 ** - ° orcebable cause, for leave to proceed in Pa] forma pauperis, for the assignment of counsel Upon consideration thereof, it is Ordered that said motion be and it herehy ad der? eda. . s “7-2 ~ ym.» oe a> 0 asi Sauiman UNITED STATES DISTRICT COURT App. 2 EASTERN DISTRICT OF NEW YORK ee a a ww ww we x WILLIAM M. PAAR, CV 82-3238 Plaintiff, Memorandum -against- of Decision JOHN P. FINNERTY, Sheriff, and ROBERT ABRAMS, N.Y.S. Attorney Order General, November 38, Defendants. 1983 MISHLER, District Judge Plaintiff's application for a certificate of probable cause pursuant to 28 U.S.C. § 2253 is denied. The claim is frivolous. The Clerk of the Court is directed to forward the file to the Clerk of the Court of Appeals for review by a circuit judge. U.S.D.d. Jacob Mishler App. 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK me we oe ow oe ww oe eee ee x WILLIAM M. PAAR, CV 82-3238 Plaintiff, Memorandum -against- of Decision and Order JOHN P. FINNERTY, Sheriff, and ROBERT ABRAMS, New York State Attorney General, September Defendants. 12, 1983 — ee ee ee ee ee me ee ee ee ee ee ee ee ee ee ee ee ee es ee ee ee ae ee es x WILLIAM M. PAAR, Plaintiff, Pro Se c/o S. Mackin 311 East 54th Street New York, New York 19022 HONORABLE DAVID J. GILMARTIN SUFFOLK COUNTY ATTORNEY Veterans Memorial Highway Hauppauge, New York 11788 Chris Termini, Assistant County Attorney MISELER, District Judge This is a motion by plaintiff, April 29, 1983 pursuant to the court's memorandum of decision and order of the Same date. The memorandum of decision App. 3 Page 2 and order of the court dismissed Mr. Paar's petition for a writ of habeas corpus because, since Mr. Paar had been released from custody and was under no other restraint, the petition was moot. Petitioner's motion asserts no ground for vacating the aforesaid judgment. The motion to vacate the judgment is denied,2/ and it is SO ORDERED. U.S.D.J. Jacob Mishler App. 3 Page 3 FOOTNOTES Petitioner moves for renewal or reconsideration of the judgment. Because the judgment is final, a motion for renewal or reconsidera- tion is not available. We consider petitioner's motion as one to vacate the judgment. Magistrate Jordan's order for a status conference on December 19, 1983 is hereby vacated pursuant to the dismissal of petitioner's motion. | ) F : App. 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA ex rel. No. 82 CV WILLIAM M. PAAR 3238 Petitioner, ORDER TO SHOW -against- CAUSE JOHN P. FINNERTY-SHERIFF, ROBERT ABRAMS, NYS ATTY. GENERAL Respondent. Upon the petition for issuance of a writ of habeas corpus, dated Oct. 23, 1982 a copy of which is attached, it is ORDERED that: (1) The Attorney General of the State of New York, as attorney for the Respondent, show cause before this Court by the filing of a return to the petition, why a writ of App. 4 Page e habeas corpus should not be issued; (2) Within ten (10) days of receipt of this order, the Attorney General of the State of New York shall serve a copy of his return on che petitioner herein and file the original thereof, with proof of such service, with the Clerk of this Court; (3) If the transcript of the trial be available, the Attorney General of the State of New York is directed to submit such transcript and record to this Court at the time of the iling of such return; App. 4 Page (4) Petitioner, within ' ten (10) days of the receipt by him of a copy of the return of the Attorney General, shall file his reply, if any, with the Clerk of this Court, in duplicate; (5) Service of a copy of this order shall be made by the Clerk of this Court by mailing a copy thereof, together with a copy of the petition, to the Attorney General of the State of New York, 80 Centre Street, New York, N.Y. 10013 and by mailing a copy of this order to the petitioner. Date: Uniondale, New York November 4, 1982 UsdeWeds Jacob Mishler --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2165%3A1. Public record. Not legal advice.