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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 930

## Text

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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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

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

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ye eee OR ph ki beck cae he een 3

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

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~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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1418%3A1. Public record. Not legal advice.