Petition for Writ of Certiorari — Smith v. United States Court of Appeals for the Tenth Circuit

We.

3 Bupraree

e PILE

98 268 Ave) 1 199

No. OFFICE OF THE CleRx

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

DAVID L. SMITH,

Petitioner,

Vv.

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT, and UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLORADO,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT AND TO THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

COLORADO

DAVID L. SMITH

1630 Welton Street, Suite 300

‘Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-PETITIONER

QUESTIONS PRESENTED FOR REVIEW

Whether Mr. Smith was “in custody”

for purposes of filing his petition for a

writ of habeas corpus, and motion to

vacate, set aside or correct sentence

attacking on Fifth Amendment due process

grounds his suspension and disbarment

from the practice of law in the United

States Court of Appeals for the Tenth

Circuit and the United States District

Court for the District of Colorado.

Whether by issuing its (April 9,

1998) order affirming Judge Daniel’s

(January 21, 1998) order dismissing Mr.

Smith’s petition for a writ of habeas

corpus, and motion to vacate, set aside

or correct sentence without addressing

the issues raised by him in his motion

for issuance of certificate of

appealability and in his appellate brief,

the Tenth Circuit hearing panel deprived

him of his right to meaningful appellate

review under 28 U.S.C. § 2253.

Whether the Tenth Circuit hearing

panel committed reversible error by

finding and concluding that “sanctions

are appropriate” because of Mr. Smith’s

alleged “abuse of the judicial process.”

Whether by issuing its (May 13,

1998) order instructing the Clerk of the

Tenth Circuit to refuse to accept for

filing any submissions from Mr. Smith

which further contest his suspension and

eigen

disbarment from the practice of law in

the Tenth Circuit and the District Court,

ordering him to pay $500.00 to the Clerk

of the Tenth Circuit for appealing Judge

Daniel’s (January 21, 1998) order

dismissing his petition for a writ of

habeas corpus, and motion to vacate, set

aside or correct sentence, and summarily

denying his petition for order

reinstating him to the practice of law in

the Tenth Circuit and the District Court,

as well as his request for an evidentiary

hearing on this petition, the Tenth

Circuit hearing panel deprived Mr. Smith

of his First Amendment right to access to

the federal courts to petition the

government for a redress of grievances,

as well as his Fifth Amendment right to

due process of law.

Whether by issuing its (June l,

1998) order denying Mr. Smith’s petition

for rehearing of its (May 13, 1998) order

without addressing the issues raised by

him therein, the Tentn Circuit hearing

panel demonstrated that it has no

intention of reviewing, reconsidering and

correcting the gross miscarriage of

justice being perpetrated against Mr.

Smith--another blatant and egregious

violation of his First and Fifth

Amendment rights.

-ii-

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......... i

See Ge CORN OMINEO eee ee ab oes webs wee iii

Sn: SE. PPE EEOD Swine cweceeseee ius 1v

CITATIONS OF OPINIONS AND ORDERS ....... x

Ss ee te eer a xii

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE ....... xiii

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>. > -.s ee" S68 S'S OS 2819-87. -O ' Oe -8 <0 26:8 6-0: @ @

Se Ss °6 & a 86 6's 8 e's: 6° OO & O 8° @ So6 -O's-.6

TABLE OF AUTHORITIES

CASES

Allen v. McCurry, 449 U.S. 90,

101 S.Ct. 411, 66 L.Ed.2d 308

CSOD a Fie Se ee a ws ER 12

Board of Regents v. Roth, 408 U.S.

564, 96 S.Ct. 2701, 33 L.Ed.2d 548

CLD Fad k or See ea a OES S, is

Braley v. Campbell, 832 F.2d 1504

(TOT Che. Ss cice Cia eee 9, 14

Brewen v. United States, 375 F.2d

SOG 48 Gis Se bik bee s BEERS 10

Burkett v. Chandler, 505 F.2d 217

(10™ Cir.), cert. denied, 423 U.S.

876, 96 S.Ct. 149, 46 L.Ed.2d 110

CRC OS hs a hn Se Sa Se eee 62 ee 8, 14

California Motor Transport Co. v.

Trucking Unitd., 404 U.S. 508,

92 S.Ct. 609, 30 L.Ed.2d 642

CRORES 686 o ae ee OS EO ie Eile EN 6 oo ee 13

Carafas v. LaVallee, 391 U.S. 234,

88 S.Ct. 1556, 20 L.Ed.2d 554

CSE Cee ce eee FO CLK Sera MESES HK ow OSS 6

Cleveland v. Board of Education v.

Loudermill, 470 U.S. 494, 105 S.Ct.

1467, G6 4.36.26 494 {1965} ......s% a

-iv-

Collie v. Vought Aircraft Company,

U.S. App. LEXIS 9479 (5™ Cir.

Wr Gd A URE io win wba eek es bes che RS 9, 14

Coppedge v. United States, 369 U.S.

436, 82 8.Ct. 917, 8 L.8d.2a 22

See D Ns CE we ee os Oe baa el ile wen 9

Craig v. Lake Asbestos of Quebec,

Les. ;, 6643 F.2d 148 (37 Cie; 14906)...... 10

Crumpacker v. Indiana Supreme Court

Disciplinary Commission, 470 U.S.

WW TR. SEE oie he MERE 6 Coee Meeks bes ks 14

DePompei v. Ohio Adult Parole

Authority, 999 F.2d 138

Ser ee CRO Shs a ek PCa s wie s.vuten owns 5

Evans v. Moseley, 455 F.2d 1084

EG tae Rr Ree og ee 14

Evitts v. Lucey, 469 U.S. 387,

105 &.Ct. 830, 83 L.Ed.2d 821

CRE i ee ee CSO le pi ee oa ck 6

Harbolt v. Alldredge, 464 F.2d 1243

(10 Cir.), cert. denied, 409 U.S.

1025, 93 S.Ct. 473, 34 L.Ed.2d 319

CATER iG ks Paes wee) bok Ss Seok eos 14

Hensley v. Municipal Court, 411 U.S.

345, 93 S.Ct. 1571, 36 L.Ed.2d 294

CAO Fibs Sia aS x te eae cee ee Ce eee ore 5

-Vvo>

Hohn v. United States, U.S.

, £28 6.CS. 2958, L.Ed.2d

CRED ws nh 6 Re ewes oh eRe es CESS g

Honda Motor Co., Ltd. v. Oberg,

S32 U.8. 435, 246:8.6C0: 2aee,

Saw 3s. a ee . EL BRER a6 wihce hac wae 88 10

In re David L. Smith, 10 F.3d 723

(10™ Cir.), cert. denied, 513 U.S.

607, 135 8.Ct. 53, i390 &.56a.426 33

CLOG) 6 eSokice CCEROE Ee See ieee « 0 est ea 1

In re David L. Smith, 76 F.3d 335

(10th Cir.). cert. denied, U.S.

, 217 8. Ce. 206; . 228. ke. 28 i2d

CEOOOS sk codes powess Pad ewe ba ee 68 aKa 2

Johnson v. Board of County

Commissioners, 85 F.3d 489

So ek BD oo 6. SSAA a elle So. 25, 48

Jones v. Cunningham, 371 U.S.

236, 83 8.C¢. 3723, 9 1.80.24 295

CROSS oo keene ke 66k RA eA ee 6b OS .

Kremer v. Chemical Construction

Corp., 456 U.S. 461, 102 S.Ct.

OOS Tae oe x ee RES: 8 2 Sow wok 12

Larche v. Simons, 53 F.3d 1068

CS Cae URS 6 5 ou oa es sk wd hae 6

Logan v. Zimmerman Brush Co.,

455 U.8. 422, 202 8.Ce. 1348,

Sh: Bev Oe Bee Cae ak wo wee eee ws Ss: ae

-vVi a

a

Maggio v. Zeitz, 333 U.S. 56,

68 S.Ct. 401, 92 L.Ed. 476

Ce 8 0 Ws bo CNS ee ASE CLL Coe kek sibd oh 14

Maleng v. Cook, 490 U.S. 488,

109 S.Ct. 1923, 104 L.Ed.2d 540

Sarre meee MED <0 wa é 6 Cu asad ek 0s ha cue 6

Matter of McLinn, 739 F.2d 1395

ape ee MS ere) yer ies in Se 10

Mattox v. Disciplinary Panel of the

United States District Court for the

District of Colorado, 758 F.2d 1362

(a0 Ci Cees Pie 5858 4k 4 ses cas 9, 14

Nakell v. Attorney General of

North Carolina, 15 F.3d 319

(4° Cir.), cert. denied, 513

i, we REECE es Pee oe cee ck ens kes 5

NAACP v. Button, 371 U.S. 415,

Ss §.ct. 326, 3 L.8d.2d 405

Ree: a Fb aes WO © EMA a ce clk Wels Wide 13

Olson v. Hart, 965 F.2d 940

Es em Me ee ee 5

Oyler v. Allenbrand, 23 F.3d 292

(10™ Cir.), cert. denied, 513

eg ek a 5

Razatos v. Colorado Supreme Court,

746 F.2d 1429 (10™ Cir.), cert.

denied, 471 U.S. 1016 (1985) ....... 8, 14

Salve Regina College v. Russell,

499 U.8. 231, itt B3.Cei. igat,

Aa Geese 290. CAGWaP + ik sce weds 6 0 eds 9

Santos v. Franklin, 493 F.Supp.

S47 (S.C) TAC See bes Or es 8 0s 08 6

Silver v. Cormier, 529 F.2d 161

EE ad UR OS Sg ee eee ro aro ne eee 14

Steiner Corp. v. Johnson & Higgins

of California, 135 F.3d 684

(2 SE Be ato O Ee he Gees pe 10

Talamini v. Allstate Insurance Co.,

B70: Seeks eee ee 4a 6 Saw Oe 6% 13

Tinsley v. Mitchell, 804 F.2d 1254

it Be ote oe A eee Te eee ee 15

United States v. Dickstein, 971

v.28 466 (107 Cie. 3008) .cerss >. 20-34

United States v. Jose, 519 U.S. 54,

sa? 6.CU. 463, i136 4.86.28 366

FASO O).. ahve teae eee hehe Owe a 2 eis ec 10

United States v. Rylander, 460 U.S.

132, 103 $.Ct. 1348, 75 1.84.24 S21

CL9GS) knee ee Ow aes eee 4a bo ek e 14

Waldon v. Cowley, 880 F.2d 291

2 ad: RRS tS eS eee ee ee 6

White v. General Motors Corp.,

Inc., 908 F.2d 675 (10™ Cir.

Ree saa a owe eae Oe ae he a ee wb o: Ae

Winslow v. Hunter (In re Winslow),

Lt: POG Bi6 2180 Cie. 1906). e.hs65i Ss. 11

Wisconsin v. Constantineau, 400 U.S.

433; 91 &§.Ct.: $07; 27 2.84.24 $35

SEPA bea 605 0s a ho eee ES MCR Fe

Zal v. Steppe, 968 F.2d 924

(9 Cir.), cert. denied, 506 U.S.

Re SE ee a a 5

OTHER AUTHORITIES

Pe FOB Goa bo is wk BS Sw oe A ES

Amend. V, U.S. Consti. ..... _ Sars * ongae tee S.

ee eas A Oo 6 nb GS 6G oe he ka OE 16

ye eee OR ph ki beck cae he een 3

We ea ee ER ooo sk eked bbe cw K ob oc Pda

ee tee Oe C's ks kb 5 bk wk 6 kee ob eos wee 3

~ix-

CITATIONS OF OPINIONS AND ORDERS

In re David L. Smith, 10 F.3d 723 (10th

Cir.), gert. denied, 513 U.8s. 807, 115

§.ct. 53, 130 L.Ed.2d 13 (1994).

IN THE MATTER OF DAVID L. SMITH,

Disciplinary Action No. 93-DP-28 (D.

Colo. February 10, 1995) (unpublished

order).

In re David L. Smith, 76 F.3d 335 (10th

Cir.), cert. denied, U.S. » Bae

§.Ct. 186, 136 L.Ed.2d 125 (1996).

IN THE MATTER OF THE DISBARMENT OF DAVID

L. SMITH, Disciplinary Action No. 96-DP-4

(D. Colo. April 26, _1996) (unpublished

order).

David L. Smith v. United States District

Court for the District of Colorado and

United States Court of Appeals for the

Tenth Circuit, Civil Action No. 97-D-2498

(D. Colo. January 21, 1998) (unpublished

order).

-x~—

ee

David L. Smith v. United States District

Court for the District of Colorado;

United States Court of Appeals for the

Tenth Circuit, No. 98-1030 (10™ cir.

April 9, 1998) (unpublished order).

David L.Smith v. United States District

Court for the District of Colorado;

United States Court of Appeals for the

Tenth Circuit, No. 98-1030 (10™ Cir. May

13, 1998) (unpublished order) .

David L. Smith v. United States District

Court for the District of Colorado;

United States Court of Appeals for the

Tenth Circuit, No. 98-1030 (10™ cir. June

1, 1998) (unpublished order).

-xi om

JURISDICTION

The orders sought to be reviewed

were entered on November 29, 1993,

February 10, 1995, February 13, 1996,

April 26, 1996, January 21, 1998, April

9, 1998, May 13, 1998, and June 1, 1998.

Rehearing of the Tenth Circuit hearing

panel’s (May 13, 1998) order was

summarily denied by order dated June l,

1998.

The statutory provision believed to

confer jurisdiction on this Court to

review on writ of certiorari the

foregoing orders is 28 U.S.C. § 1254.

-xli-

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE

Amend. I, U.S. Consti.

Amend. V, U.S. Consti.

28 U.S.C. § 2241

48 U.8.C.. § 2253

28 U.S.C. § 2255

See the Appendix hereto for the full

text of the pertinent portions of the

constitutional provisions and statues

involved in the case.

-xliii-

Pro se attorney-petitioner David L.

Smith (“Mr. Smith”) hereby files his

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Tenth Circuit and to the United States

District Court for the District of

Colorado:

I. STATEMENT OF THE CASE

On November 29, 1993, the three-

judge disciplinary panel of the United

States Court of Appeals for the Tenth

Circuit issued its order indefinitely

suspending Mr. Smith from the practice of

law in the Tenth Circuit for filing

alleged “frivolous” appeals in four

federal civil rights cases, and for his

failure to comply with court orders to

pay harsh and unjustified sanctions of

more than $50,000.00 previously imposed

against him by the Tenth Circuit and the

United States District Court for the

District of Colorado, all in alleged

violation of the ABA Code of Professional

Conduct. See In re David L. Smith, 10

F.3d 723. (10™ Cir.), cert. denied, 513

U.S. 807, 135 @.Ct. 33, 1390 h.86@.20 i3

(1994). Mr. Smith may apply for

reinstatement to the Tenth Circuit bar

when he can demonstrate that each

Sanction order of the Tenth Circuit and

the District Court has been

“satisfied.” See id.

On February 10, 1995, the three-

judge disciplinary panel of the United

States District Court for the District of

ee

Colorado issued its order indefinitely

suspending Mr. Smith from the practice of

law in the District Court based on the

Tenth Circuit disciplinary panel’s

(November 29, 1993) suspension order.

Mr. Smith may apply for reinstatement to

the District Court bar when the Tenth

Circuit lifts its suspension of him.

On February 13, 1996, the Tenth

Circuit disciplinary panel issued its

order disbarring Mr. Smith from the

practice of law in the Tenth Circuit for

allegedly practicing law in the Tenth

Circuit in violation of its (November 29,

1993) suspension order, and for allegedly

practicing law in the Tenth Circuit

“without authorization.” See In re David

L. Smith, 76 F.3d 335 (10th Cir.), cert.

denied, U.s. p at: £.6¢.. 166,

136 L.Ed.2d 125 (1996).

On April 26, 1996, the District

Court disciplinary panel issued its order

disbarring Mr. Smith from the practice of

law in the District Court based on the

Tenth Circuit disciplinary panel’s

(February 13, 1996) order of disbarment.

On November 17, 1997, Mr. Smith

filed his petition for a writ of habeas

corpus, and motion to vacate set aside or

correct sentence, alleging that he was

“in custody” under or by color of the

authority of the United States, for an

2

act done or omitted in pursuance of an

order, process, judgment or decree of a

court or judge of the United States, and

in violation of the Constitution or laws

of the United States. See 28 U.S.C. §

2241. Mr. Smith also alleged that he was

“in custody” under sentence of a court

established by Act of Congress claiming

the right to be released upon the ground

that the sentence was imposed in

violation of the Constitution or laws of

the United States, or that the court was

without jurisdiction to impose such

sentence, or that the sentence was in

excess of the maximum authorized by law,

or is otherwise subject to collateral

attack. See 28 U.S.C. § 2255. Mr. Smith

requested the District Court to grant his

petition for a writ of habeas corpus, and

motion to vacate, set aside or correct

sentence, and such other and further

relief as may be just under the

circumstances, including an order

reversing and declaring void ab initio

the Tenth Circuit disciplinary panel’s

(November 29, 1993) suspension order, its

(February 13, 1996) order of disbarment,

the District Court disciplinary panel’s

(February 10, 1995) suspension order, and

its (April 26, 1996) order of disbarment.

On January 21, 1998, United States

District Judge Wiley Y. Daniel issued his

order dismissing Mr. Smith’s petition for

a writ of habeas corpus, and motion to

3

vacate, set aside or correct sentence for

lack of subject matter jurisdiction.

On April 9, 1998, a three-judge

hearing panel of the Tenth Circuit issued

its order affirming Judge Daniel’s

(January 21, 1998) order of dismissal

without addressing the issues raised by

Mr. Smith in his motion for issuance of

certificate of appealability and in his

appellate brief.

On May 13, 1998, the Tenth Circuit

hearing panel issued its order

instructing the Clerk of the Tenth

Circuit to refuse to accept for filing

any submissions from Mr. Smith which

further contest his suspension and

disbarment from the practice of law in

the Tenth Circuit and the District Court,

and ordering him to pay $500.00 to the

Clerk of the Tenth Circuit for appealing

Judge Daniel’s dismissal of his petition

for a writ of habeas corpus, and motion

to vacate, set aside or correct sentence.

The Tenth Circuit hearing panel also

summarily denied Mr. Smith’s petition for

order reinstating him to the practice of

law in the Tenth Circuit and the District

Court, as well as his request for an

evidentiary hearing on this petition.

On June 1, 1998, the Tenth Circuit

hearing panel issued its order denying

Mr. Smith’s petition for rehearing of its

4

(May 13, 1998) order without addressing

the issues raised by him therein.

II. ARGUMENT

In his (January 21, 1998) order of

dismissal, Judge Daniel found and

concluded that Mr. Smith was not “in

custody” for purposes of filing his

petition for a writ of habeas corpus, and

motion to vacate, set aside or correct

sentence. However, “in custody” means

that the petitioner is subject to

“restraints not shared by the public

generally.” See Jones v. Cunningham, 371

U.8. 236, 240, @3:8:Ct. 373;.-9 i268. 20

285 (1963); see also Hensley v. Municipal

Court, 411 U.8. 345, 351; 93 6.66.15 71i,

36 L.Ed.2d 294 (1973) (continuing

government supervision is sufficient for

this purpose); Olson v. Hart, 965 F.2d

940, 942-943 (10™ Cir. 1992) (probation is

sufficient); Zal v. Steppe, 968 F.2d 924,

926 (9 Cir.), cert. denied, 506 U.S.

1021 (1992) (case was not moot since

attorney faced possible disciplinary

action) ; DePompei v. Ohio Adult Parole

Authority, 999 F.2d 138, 140 (6™ Cir.

1993) (revocation of medical license is

sufficient); Nakell v. Attorney General

of North Carolina, 15 F.3d 319, 323 (4™

Cir.), cert. denied, 513 U.S. 866 (1994)

(attorney released on own recognizance

following contempt conviction was “in

custody”); Oyler v. Allenbrand, 23 F.3d

5

Sore oe anata

292, 294 (10 Cir.), cert. denied, 513

U.S. 908 (1994) (possible use of

conviction to enhance future sentence was

sufficient adverse consequence); Santos

v. Franklin, 493 F.Supp. 847 (D.C. Pa.

1980) (activation of reservist from ready

reserve to active military satisfied

jurisdictional requirement of “in

custody”).* In the present case, the

Tenth Circuit and District Court

disciplinary panels have suspended and

disbarred Mr. Smith from the practice of

*Even adverse collateral

consequences of a conviction have been

found to satisfy the “in custody”

jurisdictional requirement. See Carafas

v. LaVallee, 391 U.S. 234, 238, 88 S.Ct.

1556, 20 L.Ed.2d 554 (1968); Evitts v.

Lucey, 469 U.S. 387, 391 n.4, 105 S.Ct.

830, 83 L.Ed.2d 821 (1985); Larche v.

Simons, 53 F.3d 1068 (9™ Cir. 1995)

(presumption of collateral consequences

is irrebutable, even in misdemeanor

cases); but see Maleng v. Cook, 490 U.S.

488, 492, 109 S.Ct. 1923, 104 L.Ed.2d 540

(1989) (per curiam) (“once the sentence

imposed for a conviction has completely

expired, the collateral consequences of

that conviction are not themselves

sufficient to render an individual ‘in

custody’ for the purposes of a habeas

attack upon it”); Waldon v. Cowley, 880

F.2d 291, 292 (10™ Cir. 1989) (civil

collateral consequences not sufficient).

6

aa

law in the Tenth Circuit and the District

Court. Mr. Smith may apply for

reinstatement to the Tenth Circuit bar

when he can demonstrate that each

Sanction order of the Tenth Circuit and

the District Court has been “satisfied”--

an impossible task considering the fact

that the Tenth Circuit and District Court

disciplinary panels have steadfastly

refused to review, reconsider and correct

their transparently invalid suspension

and disbarment orders.* Mr. Smith may

"As a part of his efforts to

persuade the Tenth Circuit and District

Court disciplinary panels to review,

reconsider and correct their

transparently invalid suspension and

disbarment orders, Mr. Smith submitted

affidavits and other evidentiary

materials showing that he was financially

unable to pay all or any part of the more

than $50,000.00 in harsh and unjustified

sanctions previously imposed against him

by the Tenth Circuit and the District

Court. At the time of the submission of

these evidentiary materials, Mr. Smith

had a negative net worth of more than

$360,000.00. Currently, Mr. Smith has a

negative net worth of more than

$400,000.00. Due to his suspension and

disbarment from the practice of law in

the Tenth Circuit and the District Court,

Mr. Smith has no income from which his

negative net worth could be reduced, or

7

apply for reinstatement to the District

Court bar when he can demonstrate that

the Tenth Circuit has lifted its

suspension of him--another impossible

task. Under these circumstances, Mr.

Smith is clearly subject to restraints

not shared by the public generally with

respect to his liberty and property

interests in his good name, reputation,

honor and integrity, and in his right to

practice law and make a living. As Mr.

Smith alleged in his petition for a writ

of habeas corpus, and motion to vacate,

set aside or correct sentence, the Tenth

Circuit and District Court disciplinary

panels deprived him of these liberty and

property interests without Fifth

Amendment due process of law. See

Wisconsin v. Constantineau, 400 U.S. 433,

91 S.Ct. 507, 27 L.Ed.2d 515 (1971);

Board of Regents v. Roth, 408 U.S. 564,

96 S.Ct. 2701, 33 L.Ed.2d 548 (1972);

Logan v. Zimmerman Brush Co., 455 U.S.

422, 102 8.Ct:°2246,. 71 L.84.2a 265

(1982); Cleveland Board of Education v.

Loudermill, 470 U.S. 494, 105 S.Ct. 1487,

84 L.Ed.2d 494 (1985); Burkett v.

Chandler, 505 F.2d 217 (10™ Cir.), cert.

denied, 423 U.S. 876, 96 S.Ct. 149, 46

L.Ed.2d 110 (1975); Razatos v. Colorado

Supreme Court, 746 F.2d 1429 (10™ Cir.),

—

from which harsh and unjustified

sanctions of more than $50,000.00 could

be paid.

8

cert. denied, 471 U.S. 1016 (1985);

Mattox v. Disciplinary Panel of the

United States District Court for the

District of Colorado, 758 F.2d 1362 (10™

Cir. 1985); Braley v. Campbell, 832 F.2d

1504 (10 Cir. 1987); White v. General

Motors Corp., Inc., 908 F.2d 675 (10™

Cir. 1990); United States v. Dickstein,

971 F.2d 446 (10™ Cir. 1992); Johnson v.

Board of County Commissioners, 85 F.3d

489 (10 Cir. 1996); Collie v. Vought

Aircraft Company, U.S. App. LEXIS 9479

(5 Cir. May 12, 1998). It therefore

follows that Mr. Smith was “in custody”

for purposes of filing his petition for a

writ of habeas corpus, and motion to

vacate, set aside or correct sentence,

and that Judge Daniel committed

reversible error by finding and

concluding otherwise, as did the Tenth

Circuit hearing panel.

Under 28 U.S.C. § 2253, Mr. Smith

had the right to receive meaningful

appellate review of Judge Daniel’s

(January 21, 1998) order dismissing his

petition for a writ of habeas corpus, and

motion to vacate, set aside or correct

sentence. See Hohn v. United States,

U.S. , ace 8.CC.. 1968,

L.Ed.2d (1998); see also Coppedge v.

United States, 369 U.S. 438, 82 S.Ct.

917, 8 L.Ed.2d 21 (1962); Salve Regina

College v. Russell, 499 U.S. 231, 111

S.Ct. 1217, 113 L.Ed.2d 190 (1991) (“the

9

obligation of responsible appellate

jurisdiction implies the requisite

authority to review independently a lower

court’s determinations”); Honda Motor

Co., Ltd. v. Oberg, 512 U.S. 415, 114

S.Ct. 2331, 129 L.Ed.2d 336 (1994);

United States v. Jose, 519 U.S. 54, 117

S.Ct. 463, 136 L.Ed.2d 364

(1996) (“finality, not ripeness, is the

doctrine governing appeals from District

Court to Circuit Court”); Brewen v.

United States, 375 F.2d 285 (5™ Cir.

1967); Matter of McLinn, 739 F.2d 1395

(9 Cir. 1984) (“every party is entitled

to a full, considered, and impartial

review of the decision of the trial

court”); Craig v. Lake Asbestos of

Quebec, Ltd., 843 F.2d 145 (3*° Cir.

1988); United States v. Dickstein, 971

F.2d 446 (10™ Cir. 1992); Johnson v.

Board of County Commissioners, 85 F.3d

489 (10 Cir. 1996); Steiner Corp. v.

Johnson & Higgins of California, 135 F.3d

684 (10 Cir. 1997). Therefore, by

issuing its (April 9, 1998) order

affirming Judge Daniel’s (January 21,

1998) order dismissing Mr. Smith’s

petition for a writ of habeas corpus, and

motion to vacate, set aside or correct

sentence without addressing the issues

raised by him in his motion for issuance

of certificate of appealability and in

his appellate brief, the Tenth Circuit

hearing panel deprived him of his right

10

to receive meaningful appellate review

under 28 U.S.C. § 2253. See id.

In its (April 9, 1998) order, the

Tenth Circuit hearing panel found and

concluded as follows:

In light of Mr. Smith’s

contumacious insistence on “attempts

‘ to further litigate matters

already determined by this court or

foreclosed by previous

determinations” sanctions are

appropriate. In re David L. Smith,

No. 95-1119 (10™ Cir. Feb. 16,

1996), supra. His repetitive

filings have strained the resources

of this court, and this abuse of the

judicial process must cease. See

Winslow v. Hunter (In re Winslow),

17 F.3d 314, 316-17 (10™ Cir. 1994).

Mr. Smith has been warned in a

previous order that his continued

abuse could result in the imposition

of sanctions.” In re David L.

Smith, No. 95-1119 (10™ Cir. Feb.

16, 1996), supra.

However, the Tenth Circuit has not

already “determined” the matters raised

by Mr. Smith in his appeal of Judge

Daniel’s (January 21, 1998) order

dismissing his petition for a writ of

habeas corpus, and motion to vacate, set

aside or correct sentence. Nor are these

11

matters “foreclosed by previous

determinations” of the Tenth Circuit.

Finally, it is not Mr. Smith’s

“repetitive filings” that have “strained

: the resources” of the Tenth Circuit, but

rather the Tenth Circuit’s own steadfast

‘ refusal to determine these matters on the

basis of his previous filings. In other

; words, the Tenth Circuit has deprived Mr.

: Smith of his Fifth Amendment due process

right to a full and fair opportunity to

litigate these matters on their merits,

and the doctrines of res judicata,

collateral estoppel, and law of the case

are therefore inapplicable to these

matters. See Kremer v. Chemical

Construction Corp., 456 U.S. 461, 102

S.Ct. 1883, 72 L.Ed.2d 262 (1982) (court

not required to accord full faith and

credit to a constitutionally infirm

judgment); Allen v. McCurry, 449 U.S. 90,

97, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980).

Under these circumstances, the Tenth

Circuit hearing panel committed

reversible error by finding and

concluding that “sanctions are

appropriate” because of Mr. Smith’s

alleged “abuse of the judicial process.”

By issuing its (May 13, 1998) order

instructing the Clerk of the Tenth

Circuit to refuse to accept for filing

any submissions from Mr. Smith which

further contest his suspension and

disbarment from the practice of law in

12

ee ee ee ee

the Tenth Circuit and the District Court,

ordering him to pay $500.00 to the Clerk

of the Tenth Circuit for appealing Judge

Daniel’s (January 21, 1998) order

dismissing his petition for a writ of

habeas corpus, and motion to vacate, set

aside or correct sentence, and summarily

denying his petition for order

reinstating him to the practice of law in

the Tenth Circuit and the District Court,

as well as his request for an evidentiary

hearing on this petition, the Tenth

Circuit hearing panel deprived Mr. Smith

of his First Amendment right to access to

the federal courts to petition the

government for a redress of grievances,

as well as his Fifth Amendment right to

due process of law. See NAACP v. Button,

371 U.8: 415, 83 8.Ct. 326, 9 4.86.26 405

(1963) (“and under the conditions of

modern government, litigation may well be

the sole practicable avenue open to a

minority to petition for redress of

grievances”); Wisconsin v. Constantineau,

400 U.8. 433, 92 S.Ct. 507, 27 kk. BG. 26

515 (1971); California Motor Transport

Co. v. Trucking Unltd., 404 U.S. 508, 92

S.Ct. 609, 30 L.Ed.2d 642 (1972); Board

of Regents v. Roth, 408 U.S. 564, 96

S.Ct. 2701, 33 L.Ed.2d 548 (1972); Logan

v. Zimmerman Brush Co., 455 U.S. 422, 102

§.ct. 1148, 71 L.Ed.2d 265 (1982) ;

Cleveland Board of Education v.

Loudermill, 470 U.S. 494, 105 S.Ct. 1487,

84 L.Ed.2d 494 (1985); Talamini v.

a3

ee ahs

Allstate Insurance Co., 470 U.S. 1067

(1985) ; Crumpacker v. Indiana Supreme

Court Disciplinary Commission, 470 U.S.

1074 (1985); Burkett v. Chandler, 505

F.2d 217 (10™ Cir.), cert. denied, 423

U.S. 876, 96 S.Ct. 149, 46 L.Ed.2d 110

(1975); Silver v. Cormier, 529 F.2d 161,

163 (10 Cir. 1976) (“a public official’s

threats to a citizen to withhold monies

due and owing, should legal proceedings

be instituted, burdens or chills

constitutional rights of access to the

courts”), citing Harbolt v. Allredge, 464

F.2d 1243, 1244 (10™ Cir.), cert. denied,

409 U.S. 1025, 93 S.Ct. 473, 34 L.Ed.2d

319 (1972) and Evans v. Moseley, 455 F.2d

1084, 1087 (10 Cir. 1972); Razatos v.

Colorado Supreme Court, 746 F.2d 1429

(10 Cir.), cert. denied, 471 U.S. 1016

(1985) ; Mattox v. Disciplinary Panel of

the United States District Court for the

District of Colorado, 758 F.2d 1362 (10™

Cir. 1985); Braley v. Campbell, 832 F.2d

1504 (10™ Cir. 1987); White v. General

Motors Corp., Inc., 908 F.2d 675 (10™

Cir. 1990); United States v. Dickstein,

971 F.2d 446 (10 Cir. 1992); Johnson v.

Board of County Commissioners, 85 F.3d

489 (10% Cir. 1996); Collie v. Vought

Aircraft Company, U.S. App. LEXIS 9479

(5 Cir. May 12, 1998); see also Maggio

v. Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92

L.Ed.2d 476 (1948) (impossibility of

performance constitutes a defense to

contempt); United States v. Rylander, 460

14

U.S. 752, 103 S.Ct. 1546, 75. lb.Ed.2d 521

(1983) (the court must consider present

inability to comply with the order in

question); Tinsley v. Mitchell, 804 F.2d

1254, 1256 (D.C. Cir. 1986) (citing Maggio

v. Zeitz). Further, by issuing its (June

1, 1998) order denying Mr. Smith’s

petition for rehearing of its (May 13,

1998) order without addressing the issues

raised by him therein, the Tenth Circuit

hearing panel demonstrated that it has no

intention of reviewing, reconsidering and

correcting the gross miscarriage of

justice being perpetrated against him--

another blatant and egregious violation

of his First and Fifth Amendment rights.

See id.

III. CONCLUSION

The United States Court of Appeals

for the Tenth Circuit has entered a

decision in conflict with the decision of

another United States court of appeals on

the same important matter; has so far

departed from the accepted and usual

course of judicial proceedings, or

sanctioned such a departure by the United

States District Court for the District of

Colorado, as to call for an exercise of

this Court’s supervisory power; has

decided an important question of federal

law that has not been, but should be,

settled by this Court; and has decided an

important federal question in a way that

15

conflicts with relevant decisions of this

Court. For these reasons, Mr. Smith

requests this Court to grant his Petition

for a Writ of Certiorari to the United

States Court of Appeals for the Tenth

Circuit and to the United States District

Court for the District of Colorado, and

such other and further relief as may be

just under the circumstances, including

an order under 28 U.S.C. § 2106 reversing

and declaring void ab initio the Tenth

Circuit disciplinary panel’s (November

29, 1993) suspension order, its (February

13, 1996) order of disbarment, the

District Court disciplinary panel’s

(February 10, 1995) suspension order, its

(April 26, 1996) order of disbarment,

Judge Daniel’s (January 21, 1998) order

of dismissal, and the Tenth Circuit

hearing panel’s (April 9, 1998, May 13,

1998, and June 1, 1998) orders.

Respectfully submitted,

poryva eS

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-PETITIONER

APPENDIX

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

IN RE: )

) No. 93-631

DAVID L. SMITH )

Order

Filed November 29, 1993

Before SEYMOUR, BALDOCK and BRORBY,

Circuit Judges.

Respondent was ordered to show cause

why he should not be fined, disbarred or

otherwise disciplined for filing

frivolous appeals in numbers 93-1070 and

93-1139, DeHerrera v. Denver, after the

entry of this court's orders in Sandlin

v. Canady (In re Canady), No. 92-1169

(10th Cir. April 27, 1993) and Dunkin v.

Louisiana-Pacific Corp., Nos. 92-1230 &

92-1381 (10th Cir. February 11, 1993),

cert. denied, 114 S.Ct. 87 (October 4,

1993) (No. 92-1994) and for filing a

frivolous appeal in Casillan v. Regional

Transportation District, Nos. 92-1009 &

92-1039 (10th Cir. January 15, 1993).

Respondent maintains the appeals were not

frivolous. We disagree.

A-1

The appeals were found to be

frivolous by the panels who decided them.

We cannot overrule the judgment of

another panel of this court. We are

bound by the precedent of prior panels

absent en banc reconsideration or a

superseding contrary decision by the

Supreme Court. United States v. Killion,

No. 92-3130, 1993 WL 408150 (10th Cir.

October 13, 1993); United States v.

Spedalieri, 910 F.2d 707, 710 n. 3 (10th

Cir. 1990) (a three-judge panel cannot

overrule circuit precedent); United

States v. Berryhill, 880 F.2d 275, 277

(10th Cir. 1989), cert. denied, 493 U.S.

1049 (1990).

Lee ee est cee Se Smee Ft

Respondent filed a petition for

certiorari in Dunkin. The question

presented for review was,

"Whether an order sanctioning

counsel currently of record is

immediately appealable under the

collateral order exception rule

established by this Court in Cohen

v. Beneficial Indus. Loan Corp., 337

U.S. 341, 69 6.Ct. 1221, 93 L.8d:.

1528 (1949).

Whether sanctions may be

imposed against counsel for filing

appeals warranted by existing law or

by a good faith argument for the

extension, modification or reversal

of existing law."

A-2

iii i ven

Petition for certiorari, attached to

appellant's motion to recall and stay the

mandate filed July 12, 1993, in Dunkin v.

Louisiana~Pacific Corp., Nos. 92-1230 &

92-1381 (10th Cir. February 11, 1993).

Certiorari was denied without comment.

Dunkin and Smith v. Louisiana-Pacific

Corp., U.S. ; Bae SCE. er

(October 4, 1993) (No. 92-1994).

At oral argument, respondent

admitted that he has not paid any of the

sanctions that have been imposed on him

by this court or the district court.

David L. Smith is suspended from the

practice of law before this court until

all sanctions are paid. He may apply for

reinstatement to our bar when he can

demonstrate that each sanction order of

this court or the district court has been

satisfied.

The clerk shall provide a copy of

this order to all courts before which Mr.

Smith has been admitted to practice.

Entered for the court

PER CURIAM

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Disciplinary Action No. 93-DP-28

IN THE MATTER OF DAVID L. SMITH

DISCIPLINARY ORDER

Filed February 10, 1995

On February 2, 1995, this matter was

heard before the Disciplinary Panel of

this Court. After hearing arguments and

statements of counsel, reviewing all

transcripts, exhibits and other documents

in this matter, and considering carefully

the issues, it is

ORDERED that identical discipline

will be imposed by the United States

District Court as was imposed by the

United States Court of Appeals for the

Tenth Circuit. It is

FURTHER ORDERED that David L. Smith

is suspended as a member of the Bar of

this Court. It is

FURTHER ORDERED that when the United

States Court of Appeals for the Tenth

Circuit lifts its suspension of Mr.

Smith, he shall be required to apply for

reinstatement in accordance with

D.C.COLO.LR 83.6N. of the Local Rules of

Practice of this court. It is

A-4

FURTHER ORDERED that David L. Smith

shall forward his certificate of

admission to the Clerk of the Court

within ten days from the date of this

Order and that he shall in no way hold

himself out as an attorney admitted to

practice in this court be it by use of

letterhead, business cards, advertisement

or any other manner.

Dated at Denver, Colorado this 10™

day of February, 1995.

BY THE DISCIPLINARY PANEL OF

THE COURT:

ZITA L. WEINSHIENK, Judge

Edward W. Nottingham, Judge

Daniel B. Sparr, Judge

;

Ed

4

;

‘

United States Court of Appeals

for the Tenth Circuit

al

In re:

No. 93-631

David L. Smith

ee ee

Order

Filed February 13, 1996

Before Seymour, Chief Judge, Baldock and

Brorby, Circuit Judges

On December 14, 1995, this panel

entered an order requiring respondent

David L. Smith to show cause why he

should not be disbarred for violating

this court’s November 1993 suspension

order and for practicing in this court

without authorization. On December 20,

Mr. Smith filed his response. In ruling

in this matter, the court has carefully

reviewed that response, as well as the

other pleadings filed to date in this

disciplinary action. The court has

determined that Mr. Smith’s

transgressions warrant disbarment.

Mr. Smith’s name was referred for

attorney discipline after more than one

panel of this court determined he was

A-6

filing frivolous appeals and failing to

pay court ordered sanctions. Following

briefing and oral argument, this panel

suspended Mr. Smith from practicing in

the Tenth Circuit. In re Smith, 10 F.3d

723 (10™ Cir. 1993) (per curiam), cert.

denied, 115 S.Ct. 53 (1994).

Approximately one year later, Mr. Smith

filed a request for reinstatement. This

panel denied that request. See Order

Denying Reinstatement, No. 93-631, (10™

Cir. July 18, 1995).

During the course of his suspension,

Mr. Smith continued to file briefs in

this court. In particular, the court has

identified four appeals in which Mr.

Smith appears to have drafted briefs on

behalf of the allegedly pro se

appellants. Those appeals are 94-1127,

Qualls v. Regional Transportation

District, 94-1130, Dunkin v. Louisiana-

Pacific Corporation, 94-1317, Howard v.

Mail-Well Envelope Company, and 95-1198,

Seales v. Jefferson County School

District R-1. The December 14 show cause

order was the culmination of this court’s

efforts to have Mr. Smith explain his

involvement in these appeals.

In his response, Mr. Smith readily

admits, as he has before, that he wrote

and submitted the briefs in this court

following the issuance of our suspension

order. He maintains, however, that those

submissions are not in violation of this

A-7

See Te A i ee RE Bg yen ne ED oe mele Meee 6,

es

court’s order because he signed two of

the briefs in question and included

footnotes admitting his involvement in

the other two. He suggests that these

admissions absolve him of any allegations

of “ghost-writing.” See Johnson v. Board

of County Commrs., 868 F. Supp. 1226,

1231-32 (D. Colo. 1994) (discussing

elements of ghost-writing). The argument

follows that because he admits his

assistance, he cannot be subject to

discipline. Mr. Smith’s arguments

misperceive the nature of the problem.

Mr. Smith was advised, in very clear

terms, that he no longer had permission

to practice law in this court. He was

told he could not act as an attorney for

his clients or former clients. In

writing and filing briefs on behalf of

otherwise pro se litigants, he violated

that order. This breach existed

regardless of whether he signed the

briefs or inserted footnotes. Following

the suspension order, Mr. Smith was

prohibited from helping his clients with

their briefs.

Contrary to assertions made in the

response, the court has been very careful

to distinguish between efforts made on

behalf of clients and Mr. Smith’s right

to appeal sanctions issues on his own

behalf. The briefs in the four cases

identified asked for relief which went

far beyond Mr. Smith as an individual.

In 94-1127, for example, the alleged “pro

se” brief requests relief in the form of

reversing the district court’s dismissal

of certain claims and remand for an

expedited jury trial on the merits. The

front cover of that brief asserts it is

being submitted by Mr. Qualls, not David

Smith. We find it disingenuous for Mr.

Smith to urge that these briefs only

contained arguments personal to him.

Despite repeated warnings, Mr. Smith

has chosen not to heed the orders of this

court. He is, therefore, disbarred. His

name will be stricken from the list of

attorneys allowed to practice in this

court. In addition, in accordance with

Fed. R. App. P. 35(b), Mr. Smith’s

suggestion for hearing en banc was

circulated to all judges of the

court in regular active service. No

member of the panel or the court has

requested a poll. Therefore, the

suggestion for en banc hearing is denied.

The request for evidentiary hearing is

likewise denied. Mr. Smith is referred

to the office of the Circuit Executive to

file any desired judicial misconduct

complaint.

Entered for the Court

Per Curiam

A-9

EE

Jee iis

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Sh nen Fe Sa

Disciplinary Action No. 96-DP-4

IN THE MATTER OF THE DISBARMENT OF

DAVID L. SMITH

ORDER OF DISBARMENT

Filed April 26, 1996

It appears that on February 13,

1996, the United States Court of Appeals

for the Tenth Circuit disbarred DAVID L.

SMITH from the practice of law in that

Court effective February 13, 1996; it

further appears that DAVID L. SMITH was

admitted as a member of the Bar of the

United States District Court for the

District of Colorado on February 11, 1977

and that a Disciplinary Order entered in

this Court on February 10, 1995

suspending DAVID L. SMITH. It further

appears that on March 18, 1996, DAVID L.

SMITH was notified by the Committee on

Conduct by certified mail, return

receipt, at his most current address on

file with the Clerk of the Court of these

proceedings. Pursuant to D.C.COLO.LR

83.6)., simultaneous and identical

discipline will be imposed by the United

States District Court for the District of

Colorado nunc pro tunc from the date of

judgment of the United States Court of

A-10

Appeals for the Tenth Circuit. DAVID L.

SMITH was given ten (10) days to file an

answer should he desire to oppose or

contest said recommendation. It further

appears that on March 20, 1996 DAVID L.

SMITH filed an opposition to simultaneous

and identical discipline. The Committee

on Conduct has considered the response

and recommends disbarment. The Court

accepts the recommendation and it is

therefore

ORDERED that pursuant to the Local

Rules of Practice of this Court, DAVID L.

SMITH is disbarred from the practice of

law in this Court and his name shall be

stricken from the roll of attorneys

licensed to practice law in this Court.

It is further

ORDERED that DAVID L. SMITH shall

forward his certificate of admission to

the Clerk of the Court within ten days

from the date of this Order and that he

shall in no way hold himself out as an

attorney admitted to practice in this

Court be it by use of letterhead,

business cards, advertisement or in any

other manner.

Dated at Denver, Colorado, this 26™

day of April, 1996.

A-11

BY THE DISCIPLINARY PANEL OF

THE COURT

ZITA L. WEINSHIENK, Judge

EDWARD W. NOTTINGHAM, Judge

DANIEL B. SPARR, Judge

A-12

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Wiley Y. Daniel

Civil Action No. 97-D-2498

DAVID L. SMITH,

Petitioner,

Vv.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLORADO and UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT,

Respondents.

ORDER OF DISMISSAL

Filed January 21, 1998

Petitioner David L. Smith has filed

a “Petition for a Writ of Habeas Corpus,

and Motion to Vacate, Set Aside or

Correct Sentence.” The petition and

motion is asserted pursuant to 28 U.S.C.

§ 2241 (1994), and 28 U.S.C. § 2255 (1994

& Supp. 1997). For the reasons stated

below, the petition and motion will be

dismissed pursuant to Rule 12(h) (3) of

the Federal Rules of Civil Procedure for

lack of subject matter jurisdiction.

A-13

a | ate

Ps IIE: A. TT INS RRS bial RET Ae > io TAS SE iN 1 A MBA ci re Bs hae ae

—— ee eee

Mr. Smith has been disbarred from

the practice of law in the United States

Court of Appeals for the Tenth Circuit.

See In re Smith, 76 F.3d 335 (10™ Cir.),

cert. denied, 117 S.Ct. 186 (1996). He

also has been barred from the practice of

law in this court. See In re Disbarment

of David L. Smith, No. 96-DP-4 (D. Colo.

Apr. 26, 1996), aff’d, No. 96-1254 (10%

Cir. May 16, 1997). Mr. Smith contends

that he was denied due process both in

this court and in the Tenth Circuit

throughout the disciplinary proceedings

that resulted in his disbarments. As

relief he asks this court to grant his

petition and motion and to issue “an

order reversing and declaring void ab

initio the Tenth Circuit disciplinary

panel’s (November 29, 1993) suspension

order, its (February 13, 1996) order of

disbarment, the District Court

disciplinary panel’s (February 10, 1995)

Suspension order, its (April 26, 1996)

order of disbarment, and its (May 2,

1996) order admonishing Mr. Smith and

threatening to cite him for contempt of

court ‘if he continues to practice law in

this District.’” Petition and Motion at

23.

Pursuant to Fed. R. Civ. P.

12(h) (3), the court must dismiss the

action if the court lacks subject matter

jurisdiction. Subject matter

jurisdiction may be raised sua sponte by

the court at any time during the course

A-14

of the proceedings. See McAlester v.

United Airlines, Inc., 851 F.2d 1249,

1252 (10 Cir. 1988). “The party seeking

to invoke the jurisdiction of the court

must demonstrate that the case is within

the court’s jurisdiction.” United States

v. Bustillos, 31 F.2d 931, 933 (10™ Cir.

1994). For the reasons stated below, I

find that Mr. Smith is not in custody.

Therefore, the court lacks subject matter

jurisdiction and this action must be

dismissed.

The fundamental purpose of a writ of

habeas corpus pursuant to 28 U.S.C. §

2241 and a motion to vacate pursuant to

28 U.S.C. § 2255 is the same: “they are

‘an attack by a person in custody upon

the legality of that custody, and.

the traditional function of the writ is

to secure release from illegal custody.’ ”

McIntosh v. United States Parole Comm’n,

115 F.3d 809, 811 (10™ Cir. 1997) (quoting

Preiser v. Rodriguez, 411 U.S. 475, 484

(1973)). The “in custody” requirement is

designed to limit review “to cases of

special urgency, leaving more

conventional remedies for cases in which

the restraints on liberty are neither

severe nor immediate.” Hensley v.

Municipal Court, 411 U.S. 345, 351

(1973).

Mr. Smith is not in custody. He is

challenging the validity of court orders

A-15

eae gle he

ae EL

Petition and Motion at 22. These

conclusory allegations do not establish

that Mr. Smith is in custody. Even the

most liberal definition of custody does

not include an attorney who has been

that initially suspended and ultimately

disbarred him from the practice of law

in this court and in the Tenth Circuit.

He alleges that:

Under these circumstances, it

is clear that Mr. Smith is “in

custody” under or by color of the

authority of the United States, for

an act done or omitted in pursuance

of an order, process, judgment or

decree of a court or judge of the

United States, and in violation of

the Constitution or laws of the

United States. See 28 U.S.C. §

2241. It is also clear that Mr.

Smith is “in custody” under sentence

of a court established by Act of

Congress claiming the right to be

released upon the ground that the

sentence was imposed in violation of

the Constitution or laws of the

United States, or that the court was

without jurisdiction to impose such

sentence, or that the sentence was

in excess of the maximum authorized

by law, or is otherwise subject to

collateral attack. See 28 U.S.C. §

2255.

A-16

disbarred from the practice of law

because a disbarred attorney has not been

subjected to a restraint on his liberty.

Accordingly, it is

ORDERED that the “Petition for a

Writ of Habeas Corpus, and Motion to

Vacate, Set Aside or Correct Sentence”

and the action are dismissed pursuant to

Fed. R. Civ. P. 12(h) (3) for lack of

subject matter jurisdiction.

DATED at Denver, Colorado, this 21**

day of January, 1998.

BY THE COURT:

WILEY Y. DANIEL

United States District Judge

— one eaten « PS pat,

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DAVID L. SMITH,

Petitioner-Appellant,

Vv. No. 98-1030

U.S. DISTRICT COURT FOR THE

DISTRICT OF COLORADO; UNITED

STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT,

Respondents-Appellees.

ORDER

Filed April 9, 1998

Before EBEL, KELLY and LUCERO, Circuit

Judges

This matter is before the court on

David L. Smith’s response to this court’s

order to show cause as to why the

district court order dismissing his

habeas petition and 28 U.S.C. § 2255

motion should not be summarily affirmed.

See 10™ Cir. R. 27.2.2.

Mr. Smith was suspended from

practice in this court in 1993, suspended

from the United States District Court for

the District of Colorado in 1995, and

disbarred from this court and the

district court in 1996. Mr. Smith’s

disciplinary problems in this court have

a long history. See In re David L.

Smith, 10 F.3d 723 (10™ Cir. 1993), cert.

denied, 513 U.S. 807 (1994); In re David

L. Smith, 76 F.3d 335 (10™ Cir.), cert.

denied, 117 S.Ct. 186 (1996); In re David

L. Smith, No. 97-1121 (10™ Cir. May 8,

1997) (unpublished order); In re David L.

Smith, No. 95-1119 (10™ Cir. Feb. 16,

1996) (unpublished order and judgment); In

re David L. Smith, Nos. 96-1254/-1256

(10 Cir. May 16, 1997) (order and

judgment filed under seal).

In addition to the matters disposed

of by the orders and orders and judgments

enumerated above, Mr. Smith filed in this

court a motion for reinstatement and a

petition for writ of habeas corpus and

motion to set aside or correct sentence

challenging his disbarment. Both of

these motions were denied.

The subject of this appeal is the

denial by the district court of Mr.

Smith’s “Petition for Writ of Habeas

Corpus, and Motion to Vacate, Set Aside

or Correct Sentence.” In that motion,

Mr. Smith again challenged his

suspensions and subsequent disbarments.

A-19

The district court dismissed the

petition, concluding that it lacked

subject matter jurisdiction because Mr.

Smith is not in custody. We affirm.

As a jurisdictional prerequisite the

petitioner must be in custody when the

application for habeas or § 2255 relief

is filed. Carafas v. LaVallee, 391 U.S.

234, 238 (1968); United States v.

Bustillos, 31 F.3d 931, 933 (10™ cir.

1994). To support jurisdiction, Mr.

Smith argues that his disbarment is the

equivalent of being in custody. However,

Mr. Smith does not cite to any cases,

and, indeed there are none, which

determine that disbarment alone is

sufficient to meet the “in custody”

requirement.

Mike oe ad onl

Aan ab

: Although disbarment is considered

“quasi-criminal,” In re Ruffalo, 390 U.S.

544, 551 (1968), and is costly for an _

. attorney, In re Palmisano, 70 F.3d 483,

486 (7™ Cir. 1995), it does not follow

that one who has been disbarred is in

custody for purposes of habeas or § 2255

proceedings. As noted by the district

court, the fundamental purpose of bsth §§

2241 and 2255 is to allow an “attack by a

person in custody upon the legality of

that custody, and... the traditional

function of the writ is to secure release

from illegal custody.” Moreover, § 2255

1s inapplicable where there has been no

! criminal conviction. “The purpose of

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DN a POEM A Bhai be het tte 8G

section 2255 is to provide a method of

determining the validity of a judgment by

the court which imposed the sentence

. .“ Bradshaw v. Story, 86 F.3d 164, 166

(10™ Cir. 1996). Contrary to Mr. Smith’s

argument, his disbarment does not

constitute a criminal conviction.

In light of Mr. Smith’s contumacious

insistence on “attempts .. . to further

litigate matters already determined by

this court or foreclosed by previous

determinations” sanctions are

appropriate. In re David L. Smith, No.

95-1119 (10 Cir. Feb. 16, 1996), supra.

His repetitive filings have strained the

resources of this court, and this abuse

of the judicial process must cease. See

Winslow v. Hunter (In re Winslow), 17

F.3d°314, 316-17 (10™ Cir. 1994). Mr.

Smith has been warned in a previous order

that his continued abuse could result in

the imposition of sanctions.” In re

David L. Smith, No. 95-1119 (10% Ciz.

Feb. 16, 1996), supra.

Accordingly, the following sanctions

may be imposed against Mr. Smith: (1)

the clerk of this court will be ordered

to refuse to accept for filing any

submissions from Mr. Smith which pertain

to his disbarment from this court or from

the district court; and (2) Mr. Smith

will be ordered to pay to the Clerk of

the United States Court of Appeals for

the Tenth Circuit five hundred dollars

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($500.00). Mr. Smith shall have twenty

days from the date of this order to file

written objections to these proposed

sanctions. The response shall be limited

to fifteen pages. These proposed

sanctions will not be imposed until after

the court has considered and ruled upon

any objections filed by Mr. Smith within

the time limit provided.

AFFIRMED. The mandate shall issue

forthwith.

Entered for the Court

PATRICK FISHER, Clerk of Court

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DAVID L. SMITH,

Petitioner-Appellant,

Vv. No. 98-1030

U.S. DISTRICT COURT FOR THE

DISTRICT OF COLORADO; UNITED

STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT,

Respondents~-Appellees.

ORDER

Filed May 13, 1998

Before EBEL, KELLY and LUCERO, Circuit

Judges =

This matter comes on for

consideration of David L. Smith’s

response to this court’s order of April

9, 1998.

Upon consideration thereof, it is

ordered that:

(1) the clerk of this court shall

refuse to accept for filing any

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submissions from Mr. Smith which

further contest his disbarment from

this court entered on February 13,

1996 or from the district court

entered on April 26, 1996; and

(2) Mr. Smith shall pay to the Clerk

of the United States Court of

Appeals for the Tenth Circuit five

hundred dollars ($500.00) within 10

days of the date of this order.

Mr. Smith’s request for rehearing is

denied by the panel that rendered the

decision. The suggestion for rehearing

en banc was transmitted to all of the

judges of the court who are in regular

active service as required by Fed. R.

App. P. 35. As no member of the panel

and no judge in regular active service on

the court requested that the court be

polled, the suggestion is also denied.

All other motions are denied.

Entered for the Court

PATRICK FISHER, Clerk of Court

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DAVID L. SMITH,

Petitioner-Appellant,

vw. No. 98-1030

U.S. DISTRICT COURT FOR THE

DISTRICT OF COLORADO; UNITED

STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT,

Respondents~-Appellees.

ORDER

Filed May 13, 1998

Before EBEL, KELLY and LUCERO, Circuit

Judges

The Petition for Rehearing and

Request for Transfer of This Matter to

the United States Court of Appeals for

the Federal Circuit is DENIED.

Entered for the Court

PATRICK FISHER, Clerk of Court

Amendment I of the Constitution of

the United States provides as follows:

Congress shall make no law

abridging . . . the right of the

people to petition the Government

for a redress of grievances.

Amendment V of the Constitution of

the United States provides as follows:

No person shall .. . be

deprived of life, liberty, or

property, without due process of law

28 U.S.C. § 2241 provides as

follows:

(a) Writs of habeas corpus may

be granted by the Supreme Court, any

justice thereof, the district courts

and any circuit judge within their

respective jurisdictions. The order

of a circuit judge shall be entered

in the records of the district court

of the district wherein the

restraint complained of is had.

(b) The Supreme Court, any

justice thereof, and any circuit

judge may decline to entertain an

application for a writ of habeas

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corpus and may transfer the

application for hearing and

determination to the district court

having jurisdiction to entertain it.

(c) The writ of habeas corpus

shall not extend to a prisoner

unless--

(1) He is in custody under

or by color of the authority of

the United States or is

committed for trial before some

court thereof; or

(2) He is in custody for

an act done or omitted in

pursuance of an Act of

Congress, or an order, process,

judgment or decree of a court

or judge of the United States;

or

(3) He is in custody in

violation of the Constitution

or laws or treaties of the

United States; or

(4) He, being a citizen of

a foreign state and domiciled

therein is in custody for an

act done or omitted under any

alleged right, title,

authority, privilege,

protection, or exemption

claimed under the commission,

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order or sanction of any

foreign state, or under color

thereof, the validity and

effect of which depend upon the

law of nations; or

(5S) It is necessary to

bring him into court to testify

or for trial.

(d) Where an application for a

writ of habeas corpus is made by a

person in custody under the judgment

and sentence of a State court of a

State which contains two or more

Federal judicial districts, the

application may be filed in the

district court for the district

wherein such person is in custody or

in the district court for the

district within which the State

court was held which convicted and

sentenced him and each of such

district courts shall have

concurrent jurisdiction to entertain

the application. The district court

for the district wherein such an

application is filed in the exercise

of its discretion and in furtherance

of justice may transfer the

application to the other district

court for hearing and determination.

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28 U.S.C. § 2253 provides as

follows:

(a) In a habeas corpus

proceeding or a proceeding under

section 2255 before a district

judge, the final order shall be

subject to review, by the court of

appeals for the circuit in which the

proceeding is held.

(b)

(c) (1) Unless a circuit justice

or judge issues a certificate of

appealability, an appeal may not be

taken to the court of appeals from--

(A)

(B) the final order ina

proceeding under section

2255.

(2) A certificate of

appealability may issue under

paragraph (1) only if the

applicant has made a

substantial showing of the

denial of a constitutional

right.

(3) The certificate of

appealability under paragraph

(1) shall indicate which

specific issue or issues

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Satisfy the showing required by

paragraph (2).

28 U.S.C. § 2255 provides as

follows:

A prisoner in custody under

sentence of a court established by

Act of Congress claiming the right

to be released upon the ground that

the sentence was imposed in

violation of the Constitution or

laws of the United States, or that

the court was without jurisdiction

to impose 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

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the issues and make findings of fact

and conclusions of law with respect

thereto. If the court finds that

the judgment 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 infringement 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 appropriate.

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 appeals from the order

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Ee ee ee ee a ee

entered on the motion as froma

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 motion, to the court

which sentenced him, or that such

court has denied him relief, unless

it also appears that the remedy by

motion is inadequate or ineffective

to test the legality of his

detention.

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