# Opposition Brief — Sowders v. Carter > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1289%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1994 - **Citation:** 511 U.S. 1097 ## Text RECEIVED Rg Bie se SIN THE SUPREME ‘COURT OF THE UNITED STATES OFFICE OF THE CLERK OCTOBER (ator EL ODS SUPREME COURT, U.S. 2 a DEWEY SOWDERS, WARDEN, PETITIONER, > V. CLAUDE EARN CARTER, RESPONDENT. \ a PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RESPONDENT'S BRIEF IN OPPOSITION LARRY H. MARSHALL ASSISTANT PUBLIC ADVOCATE ¥ 100 FAIR OAKS LANE .) SUITE 302 3 FRANKFORT, KENTUCKY 40601 (502) 564-8006 4 Counsel of Record JULIE NAMKIN ASSISTANT PUBLIC ADVOCATE 100 FAIR OAKS LANE SUITE 302 FRANKFORT, KENTUCKY 40601 (502) 564-8006 Counsel for Respondent QUESTION PRESENTED WHERE THE ACCUSED IS FREE ON PRE- TRIAL BOND AND ALL LOWER COURTS HAVE AGREED HE DID NOT HAVE NOTICE OF A PRE-TRIAL DEPOSITION OF THE COMMONWEALTH'S KEY WITNESS, CAN THE ACCUSED'S ABSENCE FROM SAID DEPOSITION EQUAL WAIVER OF HIS CONSTITUTIONAL RIGHT OF CONFRONTATION? TABLE OF CONTENTS PAGE ES PEER IES LODE EOE FP PR ae ETE T -i- Se i i eehbbedueneeeveeasenea. -iii- DS TRIS gt SN PRINT i ep NU a a 1 SS aa ae wees one 1 CONSTITUTIONAL PROVISIONS INVOLVED.........-eeeeeceeeeeees 2 STATUTORY PROVISIONS INVOLVED..........ccccccccccccccceees 2-3 COUNTERSTATEMENT OF THE CASE...........ccccccccccccccccees 3 REASONS FOR DENYING THE WRIT........cccccccccccccccccccces 9 I. THIS COURT LACKS JURISDICTION TO REVIEW THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BECAUSE THE COMMONWEALTH'S PETITION FOR WRIT OF CERTIORARI FAILED TO COMPLY WITH THE REQUIREMENTS OF SUPREME COURT RULE 14(1)(h) ieee aeeeces 9 II. BY FAILING TO OBJECT TO THE MAGISTRATE JUDGE'S REPORT FINDING THAT RESPONDENT DID NOT HAVE NOTICE OF THE DEPOSITION, THE COMMONWEALTH OF KENTUCKY HAS WAIVED ITS RIGHT TO CHALLENGE THAT FINDING OF FACT BEFORE THIS COURT IN ITS PETITION FOR WRIT OF CERTIORARI.........--eeeee- 13 ee ee ee ee ee cnces akes estes 18 APPENDIX -ji- TABLE OF AUTHORITIES PAGE CASES Carter v. Commonwealth, Ky., 782 S.W.2d SOT CIGED) cccccccccescecssevesecevesesceseccvere ese §& Carter v. Sowders, 5 F.3d 975 CGEM CAF. B9OS) a ccccccecceseseseevesesesecsese oe 2, PASSIM Cracker v. Procunier, 756 F.2d 1212 (SER CAG. T9ES) co cccccccccccvsccccccceescecess cose an Crosby v. United States, 113 S.Ct. FOS CAPPS cccccscccsevesccenccccescccecseceesees 13 Praylow v. Martin, 761 F.2d 179 SSE CAPs. EPSS) cece seveveccccscsccevecseseseeeceee 13 Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)... ceeuee - 14, PASSIM United States v. Schronce, 727 F.2d DE CGE GEE a ASSO) hove eccaewcvcecvecccececesece 15-14 OTHER AUTHORITIES: Sixth Amendment, United States Constitution........... 2 Fourteenth Amendment, United States Constitution...... 2 Be Wetec BOSC he ee acceeceseserevesecsoseeeseeansenbes 3, PASSIM MO ee ee ee ere ee re 1 De WalleGe Bae eeecaevcocccceseseecensevses peceeesedéees 1, PASSIM SuUPTOMS COUFE RULE U4 ccccccccesceccccccevecececssves 9, PASSIM Federal Rule of Criminal Procedure 43.......... eseese tea Rule 8 of the Rules Governing §2254 Cases........... 15 Kentucky Rule of Civil Procedure CR 76.04........... 13 -34i- Ou Batt ee eK NO. 93-1500 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1993 DEWEY SOWDERS, WARDEN, PETITIONER Vv. CLAUDE EARN CARTER, RESPONDENT. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RESPONDENT'S BRIEF IN OPPOSITION The respondent, Claude Earn Carter, respectfully requests that this Court deny the petition for writ of certiorari seeking review of the opinion of the United States Court of Appeals for the Sixth Circuit in this case. OPINION BELOW The opinion of the United States Court of Appeals for the Sixth Circuit is reported as Carter v. Sowders, Ky. 5 F.3d 975 (6th Cir. 1993), and is attached as part of the respondent's appendix (Appendix hereinafter A 1-8). JURISDICTION Respondent contests petitioner's assertion that this Court has jurisdiction over petitioner's petition under 28 U.S.C. §2254(1), and respondent further states that this Court lacks jurisdiction over petitioner's petition under 28 U.S.C. §1254(1). CONSTITUTIONAL PROVISIONS INVOLVED The Sixth Amendment of the United States Constitution provides: In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him;...and to have the Assistance of Counsel for his defence. The Fourteenth Amendment to the United States Constitution provides: -_No State shall...deprive any person of life, liberty, or property, without due process of law[.] STATUTORY PROVISIONS INVOLVED 28 U.S.C. §2254(d) provides: In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court cf competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed correct,.... Se 2 @ And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), 2 inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous. 28 U.S.C. §636(b)(1) provides: (B) a judge may also designate a magistrate...to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the COUEC, « « OF applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. * * * Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. COUNTERSTATEMENT OF THE CASE On December 27, 1985, the Logan County, Kentucky, Grand Jury = is indicted respondent, Claude Earn Carter, for unlawfully possessing more than eight (8) ounces of marijuana on November 5, 1985, for purposes of sale; selling more than eight (8) ounces of marijuana on November 3, 1985; possessing and selling LSD on November 3, 1985; possessing drug paraphanalia; and being a first degree persistent felony offender. (Transcript of Record, hereinafter TR I (Indictment No. 85-CR-072) 1-2). Respondent was arraigned on January 17, 1986, and trial was set for April 24, 1986. (TRI 4). On March 4, 1986, the Commonwealth of Kentucky, petitioner herein, moved to take a videotape deposition of Charles Elam, Jr., a paid police informant and the key witness against respondent. (TR I B-9). No specific ground for taking the deposition was given. (Id.). On March 17, 1986, the Commonwealth filed a second motion to depose Elam. (TR I 12-13). Since Elam was a Tennessee resident, it was necessary - according to the prosecutor - for the Commonwealth to depose him now as it lacked the power to ensure his attendance at respondent's trial in Kentucky on April 24, 1986. (Id.). After a hearing on April 2, the Logan Circuit Court sustained the prosecutor's motions to depose Elam. (TRI 13, 26). On April 14, 1986, the prosecutor subpoenaed three (3) Kentucky Police Officers to appear at respondent's April 24th trial. (TR I 27-29). No subpoena was issued for Elam, nor were any other efforts made to secure his attendance. On April 23, 1986, respondent's trial was continued until September 25, 1986. (TR I 30). The next day, the prosecutor filed an ex parte petition, pursuant to Tennessee's Uniform Non-Resident Witness Act, ea pe oe cement officials from “3a fens of defending # = Il claims. Jd at 395- paz 4 (plurality opinion); 278% 1195 (O’Connor;J? 5 greements should be See es where substantia] waived his Sixth Amendment rights througa) oa *s? ) another institution, when another bank as sumed management control of insured bank after purchasing 80% of insured bank's stoc’ at public foreclosure sale Affirmed. 1. Contracts 176(1) Federal Courts 776 Contract interpretation is a quesven law and is subject to de novo review P posit Co. of Mary 4 A Before: MART F BATCHELDER, 13 we | & »-BOYCE F. MA -? (In this diversi First American ? = declaratory judgm COMMONWEALTH OF KENTUCKY DEPARTMENT OF PUBLIC prt Se 100 Fair Oaks Lane Suite 302 Frankfort, Kentucky 40601 < ay 4 : FICE. OF THE CLERK April 14, 1994 4 ¢ couRT, U.S: OF SUPREM Mr. William K. Suter Clerk of the Court Supreme Court of the United States Office of the Clerk Washington, D.C. 20543 RE: 93-1500 Sowders v. Carter Dear Mr. Suter: Enclosed please find the original and one copy of the Respondent's Brief in Opposition to the Petitioner's Petition for Writ of Certiorari in the above-styled case. Very truly yours, ( ‘ / f iw HO d C—- Prrn whut Julie Namkin Assistant Public Advocate JN/byh An Equal Opportunity Employer M/F/D Primed on 4) recycied paper --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1289%3A3. Public record. Not legal advice.