Petition for Writ of Certiorari — Peeler v. United States

Supreme Court, U.S,

( FILED

|

“931836 My 17 Ow

NUMBER __gprice OF THE CLERK

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1993

CAROL C. PEELER,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Amold Anderson Vickery

COUNSEL FOR PETITIONER

ARCHER, WALDNER,

& VICKERY, L.L.P.

2929 Allen Parkway,

Suite 2770

Houston, Texas 77019

(713) 526-0700

QUESTIONS PRESENTED FOR REVIEW

Whether either the Fifth or Sixth Amendment

to the United States Constitution affords a

basis of relief to a person whose pre-

indictment retained counsel betrays her by

failing to commur..ate the Government’s

unequivocal offer of transactional immunity

because he was being "loyal to the others”

instead of his client?

Whether the Fifth Circwit’s action in partially

self-selecting the panel to consider this case

on rehearing violates due process?

Certificate of Interested Persons

The undersigned counsel of record certifies that the

following listed parties have an interest in the outcome of

this case. These representations are made in order that the

Justices of this Court may evaluate possible disqualification

or recusal.

(1) Carol C. Peeler, Defendant/Petitioner;

(2) Arnold A. Vickery, of the firm of ARCHER,

WALDNER, & VICKERY, L.L.P., 2929 Allen Parkway,

Suite 2770, Houston, Texas 77019

(3) United States of America, Plaintiff/Respondent;

(4) Robert D. Lindsay, Chief, Criminal Division,

Department of Justice - Tax Division, 10th & Constitution

Avenue, N.W., Suite 4131, Washington, D.C. 20530

ii

QUESTIONS PRESENTED FOR REVIEW

CERTIFICATE OF INTERESTED PERSONS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CASES

STATUTES AND RULES

REFERENCE TO LOWER COURT

OPINION

GROUNDS FOR JURISDICTION

STATEMENT OF THE CASE

ARGUMENT

s BOTH THE FIFTH AND SIXTH

AMENDMENTS REQUIRE THE

GOVERNMENT TO "HONOR,

RESPECT AND PRESERVE"

PEELER’S CHOICE OF COUNSEL

AS THE "ESSENTIAL MEDIUM"

OF COMMUNICATION BETWEEN

THE GOVERNMENT AND HERSELF.

ill

A. The Sixth Amendment

"Ineffective Assistance"

Analysis is NOT

Coextensive with the

"Critical Phase --

Appointment of

Counsel Issue. 7

B. Peeler is Also Entitled to

Relief Under the Fifth

Amendment 18

o Jordan’s Deficient

Representation Prejudiced

Peeler 22

Il. THE FIFTH CIRCUIT’S HANDLING

OF THE CASE ALSO VIOLATES

DUE PROCESS 26

CONCLUSION 31

PROOF OF SERVICE

CERTIFICATE OF SERVICE 34

iV

CASES

Akins v, Texas,

325 U.S. 398,

65 S.Ct. 1276,

89 L.Ed. 1692 (1945)

r

323 F.2d 333,

(Sth Cir. 1963),

cert. denied

376 U.S. 908 (1964)

430 U.S., 387,

97 S.Ct. 1232,

51 L.Ed.2d 424 (1977)

labama,

399 U.S. 1,

90 S.Ct. 1999,

26 L.Ed.2d 387 (1970)

Cuyler y. Sullivan,

464 U.S. 335,

100 S.Ct. 1708,

64 L.Ed.2d 333 (1980)

Edwards vy. Arizona,

451 U.S. 477,

101 S.Ct. 1880,

68 L.Ed.2d 378 (1981)

30

29

13

10, 11

16, 24

14, 15, 16, 18

378 U.S. 478,

84 S.Ct. 1758,

12 L.Ed.2d 977 (1964)

Evitts v. Lucey,

469 U.S. 387,

105 S.Ct. 830

83 L.Ed. 821 (1985)

Hill vy. Lockhart,

474 U.S. 52,

106 S.Ct. 366,

88 L.Ed.2d 203 (1985)

Irvin v. Dowd,

366 U.S. 717,

81 S.Ct. 1639 (1961)

Kimmelman y. Morrison,

477 U.S. 365,

106 S.Ct. 2574,

91 L.Ed.2d 305 (1986)

Kirby vy. Illinois,

406 U.S. 682,

92 S.Ct. 1877,

32 L.Ed.2d 411 (1972)

Lockhart v. Fretwell,

eS Saat

113 S.Ct. 838,

122 L.Ed.2d 180 (1993)

10

19, 20

16

30

17

10, 11

23

487 U.S. 285,

108 S.Ct. 2389,

101 L.Ed.2d 261 (1988)

vania vy. Finl

481 U.S. 551,

107 S.Ct. 1990 (1987)

Maine y. Moulton,

474 U.S. 159,

106 S.Ct. 484,

88 L.Ed.2d 481 (1985)

ichigan n,

475 U.S. 625,

106 S.Ct. 1404,

89 L.Ed.2d 631 (1986)

466 U.S. 668,

104 S.Ct. 2052,

80 L.Ed.2d 674 (1984)

ni Vv veia,

467 U.S. 180,

104 S.Ct. 2292,

81 L.Ed.2d 146 (1984)

United States v. Williams,

a? ae

112 S.Ct. 1735,

118 L.Ed.2d 352 (1992)

Vil

14, 15, 18

12, 13, 16, 20

15, 25

22, 23, 24, 31

9, 10, 11

11

Wainwright v. Torna,

455 U.S. 586, |

102 S.Ct. 1300,

71 L.Ed.2d 475 (1982) 7, 8,9

|

|

Viil

STATUTES & RULES

18 U.S.C. §371

28 U.S.C. §46(d)

28 U.S.C. §636(b)(1)

28 U.S.C. §1254(1)

28 U.S.C. §2255

Constitution of the

United States of America,

Sth Amendment

Constitution of the

United States of America,

6th Amendment

Rule 10.1(a), Rules of the

Supreme Court of the

United States

Rule 14(g), Rules of the

Supreme Court of the

United States

ix

PAGE

5

27

22

xii

1, 2, 3, 4,

31, 33

1478, 4

17, 18, 22

7, 8, 9, 10

11, 12, 13, 14

15, 16, 17, 18

26, 31

Rule 14(i), Rules of the

Supreme Court of the

United States

Rule 14.1(k), Rules of

the Supreme Court of the

United States

Rule 29.3, Rules of the

Supreme Court of the

United States

Rule 34, Federal Rules of

Appellate Procedure

Disciplinary Rule 7-104(A)(1)

of the American Bar Association’s

Code of Professional Responsibility

xi

34

28

13

a an

Reference to Lower Court Opinions

None of the opinions of the courts below are

reported. In accordance with Supreme Court Rule 14. 1(k),

all are reproduced in the appendix.

xi

(i)

(ii)

(ili)

5 ls for Juriadiction

Peeler seeks certiorari to review the January

19, 1994, opinion and judgment of the Fifth

Circuit Court of Appeals.

Peeler’s Motion for Rehearing was denied on

February 16, 1994.

Jurisdiction is conferred on this Court by 28

U.S.C. §1254(1).

Xii

Statement of the Case

The operative facts of this case are simple, but

alarming. They are recited in some detail in Peeler’s Motion

for §2255 Relief and accompanying exhibits, and reiterated

in a separate chronology, both of which are included in the

Appendix to the Petition. See Tr. 00134-165. Consistent

with the admonitions of Rule 14(g), we recount only the

most essential facts in "concise" fashion.

The gravamen of Peeler’s Motion is that the

Government offered her immunity, through her lawyer, in

December of 1985, in exchange for her voluntary

cooperation and truthful testimony, and that her lawyer chose

not to tell her about the Government’s offer or otherwise to

pursue it because he was being "loyal to the others", i.e. the

other potential codefendants and their counsel, all of whom

were signatories to a joint defense pact.

According to the sworn testimony of the AUSA

assigned to prosecute this case, he told Peeler’s lawyer that

"I would offer her immunity from the beginning of time to

the end of the world as concerned the Hillcrest Securities

activities." Exhibit 3 to §2255 Motion, Alexander

Deposition at pp. 17-18. Subsequently, AUSA Alexander

confirmed again that the offer was made. His affidavit

stated simply that “on or about December 1-3, 1985, I made

a definite, unambiguous offer of transactional immunity

regarding all Hillcrest matters to Darrell Jordan, the attorney

for Carol Peeler. Specifically, as best I recall, I advised Mr.

Jordan that the government was willing to ‘forgive all of Ms.

Peeler’s sins regarding the Hillcrest matter from the

beginning of the world until the end of time’ in exchange for

her cooperation. The immunity offer extended to Ms.

Peeler’s husband as well, and would have prevented both of

them from being indicted or prosecuted had Mr. Jordan

EA GE RIOY BANGED TS seme ey ree

communicated Ms. Peeler’s acceptance of the offer to me."

Darrell Jordan has admitted in sworn testimony that

an effective or reasonable defense lawyer should

communicate an offer of immunity to his client, and he has

also admitted that he did not communicate any offer of

immunity to Carol Peeler. Exhibit 9 to Motion, Jordan

Deposition at pp. 7-9.

The question of why Jordan failed to communicate

the offer is germane to the legal issue of prejudice under the

applicable case law from this Court. The record before the

Court demonstrates that the reason Jordan betrayed his own

client was -- in his own words

"we were remaining loyal to

the other people"

Exhibit 10 to §2255 Motion, Deposition of Sally Giddens,

quoting Darrell Jordan, at p.54. The “other people” were

the lawyers and potential codefendants in the joint defense

pact. The reason that Jordan thought that it was necessary

to put the question of immunity for his own client on the

back burner was that, he and the other defense counsel had

launched an end run around prosecutor Alexander via a joint

defense stratagem known as the "GIDEON INITIATIVE".

In order to give that initiative a chance to work, it was

important that the prosecutor not perceive any “cracks in the

dyke" [sic]". Exhibit 14 to §2255 Motion, HUGHES &

LUCE internal memorandum dated January 21, 1986, to

Darrell Jordan. Jordan made the decision to withhold the

immunity offer from his client and to defer the opportunity

for immunity, even though his associates had advised him in

writing that "“[t]he risks of doing so are that Bill

[Alexander] will find another crack in the dyke [sic], or

develop additional harmful information on Carol." Id,

Unfortunately for Carol Peeler, Jordan’s unilateral

decision to gamble with her freedom did not work out.

Prosecutor Alexander found another crack in the dike in the

personage of Hillcrest principal Buzz Tompkins. Tompkins

got immunity. Exhibit 18 to Motion (March 10, 1986

agreement between Tompkins and Government). Tompkins

then shared some information with the government about the

September 1982 "as of” trades. This information caused the

government to alter the focus of its entire investigation and

prosecution and to indict Peeler, her husband, and the other

Hillcrest principals. Exhibits 5-8 to the Motion. Even

though Peeler had been cleared by polygraph of having mens

rea, (Exhibit 25 to Motion) the defense to this charge’ was

much more difficult because, indisputably, on two days in

September of 1982, Peeler had executed trades “as of"

earlier in that week. When Congress passed the tax bill in

January of 1983 it made that portion of the law effective "as

' Peeler was actually charged with multiple violations of 18 U.S.C.

§371, all stemming from the September 1982 “as of” trades. This was

the basis of federal jurisdiction in the lower courts. See Rule 14(i),

S.Ct.R.

of" September 22, 1982, thereby rendering the deductions

arising out of those trades putatively unlawful.

Consequently, she was persuaded by one of her HUGHES &

LUCE lawyers that she was "guilty" and should plead guilty

to one count of the 22 count indictment so that the charges

against her husband would be dropped.

Peeler plead guilty on March 31, 1989. Several days

later she learned for the first time -- from reporter Giddens -

- that the Government had, in fact, offered her immunity

before Buzz Tompkins and that her lawyer had failed to tell

her about it.

Argument

I. BOTH THE FIFTH AND SIXTH AMENDMENTS

REQUIRE THE GOVERNMENT TO “HONOR,

RESPECT AND PRESERVE" PEELER’S CHOICE

OF COUNSEL AS THE "ESSENTIAL MEDIUM"

OF COMMUNICATION BETWEEN THE

GOVERNMENT AND HERSELF.

A. The Sixt ) “Ineffect to

Appointment of Counsel Issue, All of the courts below

have denied Sixth Amendment relief to Peeler -- not on the

substantive constitutional merits of her claim -- but rather

because they believed that their hands were tied by a single

phrase from this Court’s one page, per curiam, opinion in

Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71

L.Ed.2d 475 (1982). For this reason only this Court can

remedy the situation and do justice in this case. This is a

compelling reason for the Court to grant certiorari.

The phrase is "[sJince respondent had no

constitutional right to counsel, he could not be deprived of

the effective assistance by his retained counsel’s failure to

file the application timely". 102 S.Ct at 1301.

The reasoning of the lower courts in applying that

phrase has been that (a) because Peeler was not erititled to

appointed counsel at this stage of the proceedings against

her, then (b) she was not entitled to constitutionally effective

representation from the lawyer whom she hired to represent

her. This is not only illogical, but also inconsistent with

other Sixth (and Fifth) Amendment case law.

In Torna habeas relief was denied to a petitioner who

complained about his retained counsel’s failure to seek

discretionary review by the Florida Supreme Court, after he

had already been convicted and his conviction upheld on

direct appeal. In denying relief the Court made the

statement quoted above. Taken out of the factual context of

the case, this seems, at first blush, to make the Sixth

Amendment appointment of counsel analysis coextensive

with the “ineffective assistance” claim. But the factual

context of Torna was markedly distinguishable from the case

of Carol Peeler. Torna had already been adjudicated as

guilty in a proceeding which comported with due process;

thus, he had no presumption of innocence. Peeler, by

contrast, had not even been formally indicted, so she still

enjoyed the presumption of innocence.”

More importantly, subsequent opinions from this

Court make it clear that Torna should not be applied so

mechanistically. Two years after Torna the Court handed

down United States v. Gouveia, 467 U.S. 180, 104 S.Ct.

2292, 81 L.Ed.2d 146 (1984). The Court denied relief. But

in so doing it focused on the Sixth Amendment’s right to

appointment of counsel, and it carefully demonstrated that

Chief Justice Rehnquist noted this important distinction in

Pennsylvania _v, Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993

(1987).

this Sixth Amendment right and the Sixth Amendment right

to effective counsel are not coextensive:

The narrow issue before the Court of Appeals

and before us today is whether the Sixth

Amendment requires the appointment of

counsel for indigent inmates in respondents’

situation. Respondents have not contended

that they were denied the opportunity to

retain their own private counsel .. .

Respondents also have not asserted a Sixth

Amendment ineffective-assistance-of-counsel

claim ...

104 S.Ct. at 2296n.1 [emphasis added, citations omitted].’

> In view of this language in Gouveia which suggests that these

Sixth Amendment rights are not necessarily coextensive, we do not

address the more thorny issue of whether a person who is confronted

with a prosecutor, a grand jury, and an immunity offer is at such a

critical stage of the proceedings as to be entitled to appointment of

counsel. Clearly Escobedo v. Ilinois, 378 U.S. 478, 84 S.Ct. 1758, 12

L.Ed.2d 977 (1964), holds that the Sixth Amendment’s right to counsel

can attach before formal charges have been filed. So, too, does

Coleman y. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387

(1970) (defendant is entitled to appointed counsel at pre-indictment

preliminary hearing). And certainly a person who does face that “skilled

prosecutor” is in the very predicament that the Court envisioned in

Gouveia anc Kirby v. Mlinois, 406 U.S. 682, 92 S.Ct. 1877, 32

L.Ed.2d 411 (1972). Although many courts view the plurality opinion

in Kirby as establishing a “bright line" test, in fact the Court explained

its constitutional concerns and the rationale for its holding in oft-quoted,

practical, functional terms:

10

If the twin Sixth Amendment rights were coextensive, then

this last sentence of Justice Rehnquist’s opinion would be

meaningless surplusage.

The initiation of judicial criminal proceedings

is far from a mere formalism. It is the starting point

of our whole system of adversary criminal justice.

For it is only then that the government has committed

itself to prosecute, and only then that the adverse

positions of the government and defendant have

solidified. It is then that a defendant finds himself

faced with the prosecutorial forces of organized

society, and immersed in the intricacies of substantive

and procedural criminal law.

92 S.Ct. at 1882.

In December of 1985 Carol Peeler was confronted by very

powerful “prosecutorial forces of organized society,” including an

experienced prosecutor who was telling her lawyer that he intended to

convene a grand jury, summon her before that grand jury to testify, and,

if she did not cooperate by accepting the immunity offer, he would ask

that grand jury indict her. She was, in the words of Kirby deeply

“immersed in the intricacies of substantive and procedural criminal law.”

If, as the Court held in Coleman a person is entitled to counsel at a pre-

indictment hearing, then surely she would also be entitled to counsel

when she was summoned before the grand jury to either testify or plead

the Fifth. But see United States v. Williams, ..-«~U.S.___—_, «112

S.Ct. 1735, 1743, 118 L.Ed.2d 352 (1992)

Therefore, if the Court retreats from the language of Gouveia,

Peeler would ask the Court to carefully consider and apply these

precedents to the peculiar facts of her case and hold that she was entitled

to counsel at this juncture.

11

Other Sixth Amendment cases demonstrate what

obligations the government has once an accused person has

counsel. For example in Maine vy. Moulton, 474 U.S. 159,

106 S.Ct. 477, 489, 88 L.Ed.2d 481 (1985), this Court

upheld the exclusion of taped confessions which were

obtained by a police informant after Moulton had invoked

his right to hire counsel. After quoting from other cases

about the fundamental nature of the right to counsel, the

importance of having the "guiding hand of counsel at every

stage of the proceedings against him", and observing that

"the right to the assistance of counsel is shaped by the need

for the assistance of counsel. . . at earlier, ‘critical’

Stages in the criminal justice process ‘where the results

might well settle the accused’s fate" the Court stated

something that would seem to be a constitutional truism:

Once the right to counsel has

attached and been asserted, the

State must of course honor it.

12

474 U.S. at 170 (emphasis added). The Court went on to

elaborate: "This means more than simply that the State

cannot prevent the accused from obtaining the assistance of

counsel. The Sixth Amendment also imposes on the State an

affirmative obligation to respect and preserve the

accused’s choice to seek this assistance." Id, at 170-71

(emphasis added).

In a footnote the Court explained one of the reasons

that the government must "honor, respect and preserve" the

attorney client relationship and the role of the lawyer as

liaison between his client and the government: "‘[T]he

lawyer is the essential medium through which the demands

and commitments of the sovereign are communicated to the

citizen.’” Id at 171n.7, quoting Brewer v. Williams, 430

U.S., 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). See also

474 at 187-88 (Burger, C.J., dissenting) which quotes the

ethical limitation of Disciplinary Rule 7-104(A)(1) of the

13

American Bar Association’s Code of Professional

Responsibility .*

This constitutional admonition to "honor, respect and

preserve” the right to counsel clearly does not depend on

whether the defendant is in the post-indictment "critical"

phase at which he has a Sixth Amendment right to appointed

counsel. The obligation also extends to a preindictment

suspect who asserts his Fifth Amendment right to counsel.

Edwards y. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68

L.Ed.2d 378 (1981). Recently the Court observed that

"[p]reserving the integrity of an accused’s choice to

* The Court reiterated the point again in Patterson v. Illinois, 487

U.S. 285, 290n.3, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988):

We note as a matter of some significance that petitioner

had not retained, or accepted by appointment, a lawyer

to represent him at the time he was questioned by

authorities. Once an accused has a lawyer, a distinct

set of constitutional safeguards aimed at preserving

the sanctity of the attorney-client relationship takes

effect.

~.

14

communicate with police only through counsel is the essence

of Edwards and its progeny”. Patterson v. Illinois, 487

U.S. 285, 291, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988).°

In Michigan v. Jackson, 475 U.S. 625, 106 S.Ct.

1404, 89 L.Ed.2d 631 (1986); the Court affirmed the

overturning of a murder conviction because the police had

obtained incriminating evidence after the accused had

asserted his right to counsel. The holding demonstrates

again that, for constitutional purposes, it really does not

matter whether the right to have counsel emanates from a

Sixth Amendment obligation on the government to

provide/appoint counsel, or from a Fifth Amendment choice

to request or retain counsel. _ Rather, its holding was

"grounded in the understanding that ‘the assertion of the

5 In Patterson the Court held that the waiver analysis of the right

to counsel is essentially the same, regardless of whether that right

emanates from a pre-indictment Fifth Amendment invocation of counsel,

or a post-indictment Sixth Amendment right.

15

right to counsel [is] a significant event,’" 106 S.Ct. at 1410-

11, citing and quoting Edwards y. Arizona, supra, and

Maine vy, Moulton, supra.

Under the teachings of these subsequent cases, once

a criminal target is represented by counsel, there is no

difference for Sixth Amendment "effectiveness" purposes

between counsel retained by the defendant himself and

counsel appointed to represent an indigent defendant.

ler_v llivan, 464 U.S. 335, 100 S.Ct. 1708, 64

L.Ed.2d 333 (1980)(a person is not foreclosed from asserting

an ineffective assistance claim merely because he hired the

lawyer in question).°

* In addition to the distinction between defendants with retained vs.

appointed counsel, some of the older cases also distinguished between

adjudications of guilt vs. guilty pleas. That distinction, too, is no longer

of any constitutional significance. Hill v, Lockhart, 474 U.S. 52, 106

S.Ct. 366, 369-71, 88 L.Ed.2d 203 (1985)(ineffective assistance of

counsel can vitiate guilty plea).

16

arrears

The application of these principles to the case at bar

is simple. Once Peeler exercised her constitutionally

mandated’ right to hire counsel, the government was obliged

to use that lawyer as the “essential medium” to convey the

offer of immunity. Prosecutor Alexander could not call

Carol Peeler directly to offer her immunity. And when that

lawyer chose to sacrifice his client’s liberty out of "loyal[ty]

to the others", his constitutional deficiencies are necessarily

imputed to the government itself. Kimmelman v, Morrison,

477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)

That would be so even if the government was not aware of

the ineffective assistance. But, a fortiori is it so where, as

here, the prosecutor and other government officials were

aware in early 1986, shortly after the offer was made, that

Jordan failed to convey the offer of immunity; but Peeler

7 In addition to the Fifth and Sixth amendments, the contract clause

of the Constitution also confers an inalienable right to hire a lawyer.

17

herself did not become aware until April of 1989, three days

after she plead guilty to a technical malum prohibitum

offense on the advice of the same law firm.

B. Peeler Is Also Entitled to Relief under the Fifth

Amendment. As we have seen, the Fifth Amendment also

obligates the government to “honor, respect and preserve"

the role of counsel as the “essential medium" for

communications between the government and the accused.

Edwards vy. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68

L.Ed.2d 378 (1981); Patterson v. Illinois, 487 U.S. 285,

291, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988).

Correlative to the government’s obligation to respect

the role of defense counsel, counsel also has a duty to render

constitutionally effective representation. The Fifth

Amendment guarantee of due process, like the Sixth

Amendment, also safeguards this right. Therefore,

ineffective assistance claims are also cognizable under this

18

Amendment. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct.

830, 836, 83 L.Ed. 821 (1985) is a due process "ineffective

assistance" case. It holds that due process requires a

criminal defendant to have effective assistance of counsel on

his first appeal as of right. It, thus, affirmed the granting of

the Great Writ. In Evitts the Court was confronted with an

argument by the state of Kentucky that is extremely

analogous to the reasoning of the courts below. Kentucky

argued that, because the Constitution does not require a state

to have any system of appeals as of right in the first

instance, then the fact that a defendant might get ineffective

representation in the course of the gratuitous appeal that is

present is inconsequential. The Court rejected this argument

resoundingly because it recognized that due process was a

broader concept which required courts to take the situations

as they were presented to them and make sure that they

comported with the requirement for fundamental fairness.

Id. at 838-39.

The lesson of Evitts is clear: if the state has an

appeal (even one that is not constitutionally required), due

process requires counsel to be effective in handling that

appeal; similarly, because Peeler had a lawyer (regardless of

whether or not the government was obliged to appoint one to

represent her at this juncture), due process required him to

be loyal and effective. If he is not, his ineffectiveness is

imputed to the government. Or, to reiterate it in the words

of Maine vy. Moulton, 474 U.S. 159, 106 S.Ct. at 484, 88

L.Ed.2d 481 (1985), once Peeler had chosen to have

counsel, the government was constitutionally obliged to

"honor, . . . respect and preserve” her choice.

Several times during the course of the Evitts opinion,

the Court analogized the plight of Lucey to "one who has no

counsel at all." Jd. at 836; also, 835n.6. Its reasoning was

20

that, if the benefits which a person received from his

representation were really not much better than a person who

had "no counsel at all", then the person is entitled to relief

under the Constitution. Ironically, the facts in the case

before this Court graphically illustrate that Carol Peeler

would have been much better off if she had had “no counsel

at all", because then the prosecutor would have been

ethically obliged to communicate the immunity offer directly

to Peeler and she would have then been aware that she had

been offered a reasonable and expedient exit from the

criminal process. She could have made her own decision.

And, as the record evidence indicates, she would have

accepted the offer, conditioned, as it was, only on her

willingness to tell the truth. For this reason the Court of

21

Appeals erred in not even reaching the Fifth Amendment

argument.*

Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), establishes the twin prongs

for substantive analysis of the ineffective assistance claim.

There is little dispute’ about whether or not the record facts

satisfy both prongs of the test.

* The Fifth Circuit refused to address Peeler’s Fifth Amendment

argument because her pleadings and briefings did not differentiate

between the Fifth and Sixth amendment arguments until she filed her

objections to the Magistrate’s report and recommendation. Contrary to

the panel’s opinion, this was properly before the district court because 28

U.S.C. §636(b)(1) provides for de novo review.

* In some cases there would be a need to remand for an evidentiary

hearing to decide two fact issues: (i) whether or not the immunity offer

was made, and (ii) whether it was communicated to Peeler or not. There

is no need for an evidentiary hearing in this case because both points are

established by the prosecutor’s own testimony. AUSA Alexander

testified that he made the offer, and also that he learned shortly thereafter

that it had not been communicated to Peeler. His testimony about the

offer being made was corroborated by two IRS agents who heard him

make the offer, and his testimony about the lack of communication was

readily admitted by Jordan himself.

22

First, both prosecutor Alexander and defense counsel

Jordan have testified that the standard of reasonable

representation would require communication of an immunity

offer. So deficient representation is established as a matter

of fact. Even absent this testimony, however, it would likely

be established as a matter of law under the holdings of this

Court. In Strickland itself the Court acknowledged that the

professional norms for defense counsel include a duty "to

consult with the defendant on important decisions and to

keep the defendant informed of important developments in

the course of the prosecution." Id. at 2065.

Similarly, the prejudice component is established."°

In Strickland the Court observed that there are some

'© The test of prejudice is still the same. As Justice O’Connor

pointed out in her concurring opinion in Lockhart vy. Fretwell, __

U.S. ___, 113 S.Ct. 838, 845, 122 L.Ed.2d 180 (1993) "[t}he

determinative question [under Strickland] -- whether there is ‘a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,’ -- remains

unchanged.”

23

circumstances which are so inherently prejudicial that, when

shown, prejudice is conclusively presumed. One such

circumstance is to show a conflict of interest that affected

counsel’s performance. The reason that this species of

ineffective assistance is so pernicious is

[ijn those circumstances

counsel breaches the duty of

loyalty, perhaps the most

basic of counsel’s duties.

Id. 104 S.Ct. at 2067. Accord Cuyler vy. Sullivan, 464

U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

Again, the facts of this case squarely meet this

component of the Strickland test. The reason that Darrell

Jordan failed to pursue immunity for Carol Peeler in a timely

manner -- according to Mr. Jordan’s own admission to

reporter Sally Giddens -- was that

" we were remaining loyal to the other people".

(Deposition of Sally Giddens, quoting Darrell Jordan.)

24

Thus, if this Court truly meant what it said in

Michigan vy. Jackson, supra, when it wrote that "‘the

assertion of the right to counsel [is] a significant event,’”

which must be “honored”, “respect[ed] and preserve[d]"

then Peeler’s conviction must be overturned.

25

Il. THE FIFTH CIRCUIT’S HANDLING OF THE

CASE ALSO VIOLATES DUE PROCESS

Peeler would prefer that this Court accept certiorari

on the substantive constitutional merits of her ineffective

assistance claims and avoid this issue altogether. However,

because the Fifth Circuit’s’’ handling of her appeal “has so

far departed from the accepted and usual course of judicial

proceedings” Rule 10.1(a), S.Ct.R., Peeler would be remiss

if she did not point out this defect to the Court and ask, as

an alternative remedy, that this Court reverse the opinion of

'' This point of error is brought most reluctantly. The undersigned

counsel began his legal career as a law clerk for the late John R. Brown,

then Chief Judge of the Fifth Circuit. Consequently, he has a great

appreciation for the legacies of that great court and some understanding

of the burdens which face the judges of that court. The Fifth Circuit's

long-standing summary calendar procedures are a necessary and

important tool for assisting the court in its workload. On the other hand,

the reason that it has worked well for the Court is that the Court itself

has been scrupulously sensitive to the procedural regularity of summary

disposition without oral argument. It has assigned screening cases to all

active judges “selected in rotation” and has “carefully separated" the

functions of judge assignments and calendaring of cases.

26

the court below and remand the case for reconsideration by

a randomly chosen panel.

In accordance with the “screening” procedures

employed by the Fifth Circuit this case was originally

scheduled for oral argument. This means that at least one of

the three judges on the screening panel thought that the case

merited oral argument. However, unbeknownst to Peeler,

apparently one of the judges on the oral argument panel

decided sua sponte to recuse himself from the oral argument

panel. The other two judges on the panel then instructed the

clerk to advise counsel that the case would be decided on the

briefs without argument. On November 9, 1993, the

remaining two judges issued an unpublished, per curiam

opinion affirming the denial of relief. A footnote to this

opinion indicates that these two judges decided the case as a

quorum of the scheduled oral argument panel under the

ostensible authority of 28 U.S.C. §46(d). Peeler filed a

27

a teniartiaiaeeeeel

Motion for Rehearing arguing that summary disposition by

a two judge court without oral argument was violative of

Rule 34, Fed.R.App.P. On December 29, 1993, the panel

granted the Motion and vacated its opinion, ordering that

"the case will be resubmitted to a three-judge panel".

At this point justice and due process required the

complete reassignment of the case to another panel of judges

who had not already made up their minds about the

Substantive issues in the case -- either a new, standard

screening panel, or a regularly scheduled oral argument

panel.

The reason for this is clearly stated in the Fifth

Circuit’s Internal Operating Procedures:

To insure complete objectivity in the

assignment of judges and the calendaring of

cases, the two functions of (1) judge

assignment to panels and (2) calendaring of

cases are carefully separated.

28

That was not done. The Fifth Circuit clerk’s office

advised Peeler’s counsel that the third member of the panel

was specifically requested by the junior judge on the original

panel to participate in the resolution of this case.’ The

result is the reissuance of the same, per curiam, unpublished

opinion previously rendered by the ostensible two judge

quorum.

Peeler has been unable to find any reported opinion

from this Court in which the constitutional implications of

panel gerrymandering were considered. The only time

known to counsel at which a judge of the Fifth Circuit was

accused of such conduct was in Judge Cameron’s scathing

dissent in Armstrong v. Board of Education, 323 F.2d

'? Unfortunately this is not in the record and not available to Peeler’s

counsel. However, if the Court grants the writ on this issue, Peeler will

request that this Court order the augmentation of the record by directing

the clerk of the Fifth Circuit to forward to this Court the back page of

the docket sheet and any internal memoranda regarding the selection of

the panel which ultimately resolved the case.

29

ES a VE a Ae a ae ~"

Pe A OOS ORE o-

Pn WA lea a te PE

333, 352-59 (Sth Cir. 1963), cert. denied 376 U.S. 908

(1964), which hails from an extremely divisive period in the

Fifth Circuit's history. Cf Akins y. Texas, 325 U.S. 398,

400n.1, 65 S.Ct. 1276, 1278n.1, 89 L.Ed. 1692 (1945).

However, there are reasonable analogies. For

example, this Court has a long history of reviewing the

selection process for juries to make sure that they were truly

"impartial" and "indifferent". E.g. Irvin vy. Dowd, 366

U.S. 717, 81 S.Ct. 1639 (1961). Is it any less important

that the judges who are assigned to hear cases are chosen

randomly and impartially, and that they come to the case

with no preconceived notion? Of course not.

The deprivation of due process to Peeler is clear.

Moreover, because this case involves a professional betrayal

by a very highly visible Texas lawyer” and has attracted a

') The Court can take judicial notice that Mr. Jordan is the former

President of the Texas Bar Association.

30

fair amount of media attention already, it not only

jeopardizes justice in this case, but undermines public

confidence in the procedures of the federal courts as a

whole. Therefore, it cries out "for an exercise of this

Court’s power of supervision.” Rule 10.1(a).

Conclusion

Since Strickland a host of ineffective assistance

attacks have been launched -- usually by pro se prisoners

who do not understand the stringency of the twin

requirements of that case. Most have failed. One apparent

reason for this is that most defense counsel are both

competent and loyal. However, this is an extraordinary

case. The well-documented motion for relief under §2255

demonstrates a blatant betrayal of the client’s interests by a

very highly paid defense lawyer, . . . and the

government knew all about it.

31

A person accused of a crime has many forces aligned

against him. All of the power of the government -- police

and prosecutor -- are arrayed against him. Many times

friends and family might turn against him. And the best that

he can hope for from the bench is impartiality. But the

Constitution contemplates that there is one person who will

stand by him. There is one person in whom he could

confide his sins and his fears with confidence that this

information is protected from disclosure by a sacred

privilege. There is one person from whom he could expect

and require unswerving fidelity. There is one person who

will interpose himself between the accused and the

government and serve as the "essential medium" for

communication between them. That person is the accused’s

lawyer. And the constitutional precedents of this Court

unambiguously require the government to "honor, respect

and preserve" the role and function of that person.

32

Carol Peeler hired such a person -- a former

prosecutor turned prominent lawyer, bar politician and

partner in a prestigious Dallas law firm. The government

conveyed its offer of immunity to this “essential medium”.

He failed to tell her about it because he had a different

agenda and conflicting loyalties. The government knew it;

Peeler did not. Under these unique circumstances Peeler

was denied constitutionally effective representation.

Only this Court can rectify that error. On the

authority of the numerous opinions of this Court set forth

herein, Peeler implores the Court to grant the writ of

certiorari, and, after reviewing the merits to "vacate and set

the judgment aside and... discharge the prisoner". 28

U.S.C. §2255.

33

Respectfully submitted

ARCHER, WALDNER & VICKERY

(Signed) Arnoid Anderson Vickery

Arnold Anderson Vickery

S.D. Fed. 1.D. No. 4470

Texas State Bar No. 20571800

2929 Allen Parkway, Suite 2770

Houston, Texas 77019

(713) 526-0700

PROOF OF SERVICE

CERTIFICATE OF SERVICE

Pursuant to Rule 29.3 of the Rules of the Supreme

Court of the United States, I certify that three copies of the

Petition for Writ of Certiorari has been served on Robert D.

Lindsay, Chief, Criminal Division, Department of Justice -

Tax Division, 10th & Constitution Avenue, N.W.,

Suite 4131, Washington, D.C. 20530

via first class postage prepaid, on this Lt day of May,

1994,

(Signed) Arnaid Anderson vicnery