Petition for Writ of Certiorari — Bishop v. United States (No. 07-911)

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Supreme

2 G3 p F | Cautt U.S.

No. 07-

07-911 JAN 4 - 2008

OFFICE OF THE CLERK

Sn Whe

Supreme Court of the United States

WINFORD KENT BISHOP,

Petitioner,

Vv.

UNITED STATES COuRT OF APPEALS

FOR THE FIFTH CIRCUIT,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

WINFORD KENT BISHOP

Counsel of Record

1080 Old Roswell Road

Roswell, Georgia 30076

(770) 587-2857

December 31, 2007

QUESTIONS PRESENTED FOR REVIEW '

By conclusively presuming intentional ignoring of

unidentified mail slips in a shared post office box,

contrary to its own administrative factfinding, and

not requiring use of regular mail, did the GA

Supreme Court deny 14 Amdt. Due Process

under Jones v. Flowers, 547 U.S. 220 (2006), and

Luessenhop v. Clinton Co., N.Y., 466 F.3d 259 (2nd

Cir. 2006) 2 .

In relying on a state conclusive presumption in

reciprocal atiorney disciplinary proceedings, did

the Fifth Circuit deny 5'n Amdt. Due Process under

Selling v. Radford, 243 U.S. 46 (1917); Tu v. National

Transp. Safety Bd., 470 F.3d 941 (9! Cir. 2006), or

violate “principles of right and justice” under

Theard v. United States, 354 U.S. 278 (1957)2

Did the Fifth Circuit abuse its discretion under

Rule 46(a), Fed.R.App.P., and principles of right

and justice applied in Frazier v. Heebe, 482 U.S. 641

(1988), in not readmitting Petitioner to its Bar by

interposing “this court’s practice” (unpublished) of

requiring readmission to original, out-of-circuit

state court? But cf. Surick v. Killion, 449 F.3d 520

(3° Cir. 2006), and In re Fallin, 255 F.3d 195 (4'» Cir.

2001).

' Petitioner has at all material times been a member in

uninterrupted good standing of the Bar of the Supreme

Court of the United States (1978) and other courts which

were informed of GA action. Aff. to Jt.Pets., 152 & Ex.1.

“li-

LIST OF DEEMED PARTIES TO CASE

IN COURT OF APPEALS

Fifth Circuit judges: Edith H. Jones, Chief Judge;?

Carolyn Dineen King, Thomas M. Reaviey,? Will

Garwood, E. Grady Jolly, Patrick E. Higginbotham,

W. Eugene Davis, Jerry E. Smith,4 John M. Duhé Jr.,

Jacques L. Wiener, Jr., Rhesa H. Barksdale, Emilio

M. Garza,> Harold R. DeMoss, Jr., Fortunato P.

Benavides, Carl E. Stewart, James L. Dennis, Edith

Brown Clement,é Edward Charles Prado, Priscilla

Richman Owen, Circuit Judges. Fifth Circuit clerk:

Charles R. Fulbruge Ill.

eee eee eer ——

? Acting as sole judge. November 9, 2006, and panel

member, August 10, 2007, to reconsider own decision.

> Panel member, August 10, 2007.

4 Panel member, August 8, 2006, and Aucust 10, 2007.

> Panel member, August 8. 2006.

6 Panel member, August 8, 2006.

- ill -

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

LIST OF DEEMED PARTIES TO CASE IN COURT OF

APPEALS

INTRODUCTION

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL & STATUTORY PROVISIONS

STATEMENT OF THE CASE

GA PROCEEDINGS

GA Bar's Informal Notice of Grievance

GA Bar's Insufficient Formal Notice of Action

GA Discipline

FIFTH CIRCUIT PROCEEDINGS

1994 Disposition by Chief Judge

2006 Jones v. Flowers

2006 Disposition by First Panel

2006 Ruling by Chief Judge

2007 Disposition by Second Panel 15

REASONS WHY CERTIORARI SHOULD BE GRANTED

1. THERE IS CONFLICT WHETHER THE GA SUPREME

COURT DENIED 14™ AMDT. DUE PROCESS UNDER

SELLING FACTOR ONE. 17

Supreme Court 18

Second Circuit 18

Third Circuit 20

Seventh Circuit 20

Ninth Circuit 20, 21

Eleventh Circuit 21

Application to Pre-Formal Complaint Stage ys

Application of Telephone Cases 22

Application to Bar's “Test Case” 23

Application to Lawyers 24

Application to Collateral Proceeding Because

Jones Expresses Old Rule With “New Wrinkle” 25

2. THERE IS CONFLICT ON THE NATURE AND

SIGNIFICANCE OF STATE DISCIPLINE UPON

RECIPROCAL FEDERAL ACTION UNDER

SELLING FACTOR TWO 26

3. THERE IS CONFLICT WHETHER INADEQUATE

STATE NOTICE SHOULD PREVENT RECIPROCAL

DISCIPLINE UNDER SELLING FACTOR THREE,

“GRAVE REASON” UNDER “PRINCIPLES OF

RIGHT AND JUSTICE,” ASIDE FROM

CONSTITUTIONAL CONSIDERATIONS. 27

4. THERE IS CONFLICT AS TO THE SCOPE OF

RULE 46(a), FED.R.APP.P. 28

Fourth Circuit 28

Third Circuit 29?

5. THERE IS CONFLICT WHETHER FEDERAL COURTS

CAN APPLY CONCLUSIVE PRESUMPTIONS

UTILIZED IN STATE PROCEEDINGS. 32

6. THERE IS CONFLICT WHETHER “THIS COURT'S

PRACTICE” IS DISGUISED RESIDENCY TEST

INVALID UNDER FRAZIER PRINCIPLES OF

RIGHT AND JUSTICE. 34

7. THERE IS CONFLICT REGARDING PROCEDURE

FOR CONDUCTING RECIPROCAL ATTORNEY

DISCIPLINARY PROCEEDINGS. 34

CONCLUSION 34

o Wi -

APPENDIX

Decision of Three-Judge Panel, Fifth Circuit,

August 10, 2007 la

Order of Chief Judge, Fifth Circuit, Nov.9, 2006 5a

Decision of Three-Judge Panel, Fifth Circuit,

August 8, 2006 7a

Order of Chief Judge, Fifth Circuit,

July 15, 1994 10a

Order on Petitions for Rehearing,

October 12, 2007 lla

Order on Petitions for Rehearing,

October 4, 2006 13a

Letter of Clerk of Fifth Circuit on Rehearing,

August 4, 1994 15a

Email from Fifth Circuit Clerk, June 13, 2006 17a

Email from Fifth Circuit Clerk,

October 6, 2006 18a

Constitutional and Statutory Provisions 19a

Art. |, Sec. 8, Cl. 3 (“Commerce Clause”) 19a

Art. IV, Sec. | (“Full Faith and Credit

Clause") 19a

- Vil -

Art. IV, Sec. 2 (“Privileges and Immunities

Clause”)

Art. Vi, Par. 2 (“Supremacy Clause”)

Fifth Amat. (“Due Process Clause”)

Fourteenth Amat. (“Due Process Clause”)

28 U.S.C. §46(c)

28 U.S.C. §1738

28 U.S.C. §2077 (a)

Rules 27(c), Fed.R.App.P.

Rule 46(a), Fed.R.App.P.

Rule 47(b), Fed.R.App.P.

19a

20a

21a

2la

Vili

TABLE OF AUTHORITIES

Cases

Abba Gana v. Abba Gana, 251 Ga. 340,

304 S.E.2d 909 (1983) 12

Barnard v. Thorsten, 489 U.S. 546,

109 S.Ct. 1294, (1989) 34

Bishop v. United States Court of Appeals, Fifth

Circuit, Case No. 06-738, cert denied

127 S.Ct. 1357 (2007) 15, 34

Bishop v. United States District Court, NDGA,

Case No. 02-1598, cert. denied, 539 U.S. 943,

123 S.Ct. 2620 (2003) 2 %3

Castillo v. U.S. Atty. Gen., 181 Fed.Appx. 885

(11 Cir. 2006) 21

Chaidez v. Gonzales, 486 F.3d 1079

(9°" Cir. 2007) 20, 33

Chambers v. NASCO, Inc. 501 U.S. 32,

111 S.Ct. 2123 (1991) 30

Chambers v. Navarre, 231 Ga.App. 318,

498 S.E.2d 173 (1998) 33

Tu v. National Transp. Safety Bd.,

470 F.3d 941 (9'» Cir. 2006) i, 21-22

Christianson v. Colt Indus. Operating Corp..,

486 U.S. 800, 108 S.Ct. 2166 (1988) 1, 34

Dominguez v. Unifed States Aft'y Gen.,

284 F.3d 1258 (1 1" Cir. 2002) 21

Dusenbery v. United States, 534 U.S. 161,

122 §.Ct. 694 (2002) 25

Ex parte Burr, 9 Wiheat. 529, 22 U.S. 168 (1824) 24

Ex parte Tillinghast, 4 Pet. 108, 29 U.S. 21 (1830) 26

Fidelity Fed. Sav. & Loan Ass'n v. De la Cuesta.

458 U.S. 141, 102 S.Ct. 3014 (1982) 30

Foehl v. United States, 238 F.3d 474

(3°9 Cir. 2001) 22

Frazier v. Heebe, 482 U.S. 64},

107 S.Ct. 2607 (1987) i, 25-26, 30, 32-34

Goldfarb v. Virginia State Bar, 421 U.S. 773.

95 S.Ct. 2004 (1975) 32

Hamilton v. Renewed Hope, Inc., 277 Ga. 465,

589 S.E.2d 81 (2003); 281 Ga. 393,

637 S.E.2d 412 (2006) 22

Hanna v. Plumer, 380 U.S. 460

85 S.Ct. 1136 (1965) 32

Hess v. Pawloski, 274 U.S. 352,

47 S.Ct. 632 (1927) 25

In re Bishop, 264 Ga. 241, 442 S.E.2d 734

(1994), cert. denied 513 US. 987,

115 S.Ct. 483 (1994) i, 1. 9-10, 12-17, 22, 33

in re Bishop (5% Cir. July 14, 1994) 15

In re Bishop (1 1" Cir. Jan. 5, 1995), cert.

denied 516 US. 880, 116 S.Ct. 215 (1995) 15

In re Bishop (NDGA Feb. 26, 2002), aff'd

52 Fed.Appx. 493 (11'» Cir. 2002), cert.

denied, 539 U.S. 943, 123 S.Ct. 2620 (2003) 15

In re Calvo, 88 F.3d 962 (11 Cir. 1996) 24

in re Desilets, 291 F.3d 925 (6 Cir. 2002) 30

In re Ellison, 280 Ga. 303, 627 S.E.2d 25 (2006) 33

In re Fallin, 255 F.3d 195 (4 Cir. 1995) i, 28-29

In re Kandekore, 460 F.3d 276 (2° Cir. 2006) 24

In re Kandekore. 140 Fed.Appx. 848

(11% Cir. 2005) 24

Inre Morse, Ga., 265 Ga. 353.

456 S.E.2d 52 (1995) 33

In re Mosher, 25 F.3d 397(6'" Cir.) 27

In re Palmisano, 70 F.3d 483 (7 Cir. 1995) 27

in re Perry, 280 Ga. 119, 622 S.E.2d 334 (2005) 33

In re Poole, 222 F.3d 618 (9'* Cir. 2000) 30

In re Ruffalo, 390 U.S. 544,

88 S.Ct. 1222 (1968) 24, 27-28

In re Smith, 100 FSupp.2d 412 (N.D.TX 2000) 27

In re Snyder, 472 U.S. 634, 105 S.Ct. 2874 (1985) 24

In re Surrick, 2001 WL 1823945 (EDPA 2001), aff'd

338 F.3d 224 (3 Cir. 2003) 29

Jones v. Flowers, 547 U.S. 220,

126 S.Ct. 1708 (2006) i, 14-15, 18-25

King v. Bishop (Ga. 1992) 8

Laborers’ Pension Fund v. Blackmore Sewer

Constr., Inc., 298 F.3d 600 (7 Cir. 2002) 22

Londoner v. City of Denver, 210 U.S. 373,

28 S. Ct. 708 (1908) 13

Luessenhop v. Clinton Co. N.Y., 466 F.3d 259

(2°¢ Cir. 2006) i, 18-20

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 70 S$.Ct. 652 (1950) 23-25

Office of Disciplinary Counsel v. Marcone,

579 Pa. 1, 855 A.2d 654 (2004) 29

Office of Disciplinary Counsel v. Surick,

561 Pa. 167, 749 A.2d 441 (2000) 29

Xli

Peralta-Cabrera v. Gonzales, 501 F.3d 837

(7'» Cir. 2007) 20

Perez-Alevante v. Gonzales, 197 Fed.Appx. 191

(3°49 Cir. 2006) 20

Plemons v. Gale, 396 F.3d 569 (4th Cir. 2005) 22

RR Village Assoc. v. Denver Sewer Corp.,

826 F.2d 1197 (2°4 Cir. 1987) 13

Roland v. Shelton, 106 Ga.App. 581,

127 S.E.2d 497 (1962) 12

Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518 (1999) 34

Sanders v. Bishop (Family Ct. Greenville

Co., SC 1992} 8

Sandstrom v. Montana, 442 U.S. 510,

99 S.Ct. 2450 (1979) on. ao

Schware v. Board of Bar Examiners of NM,

353 U.S. 232, 77 S.Ct. 752 (1957) ae

Selling v. Radford, 243 U.S. 46,

of S.Ct. 377 (1917) i, 16-17, 26-28, 30

Sperry v. Florida ex rel. Florida Bar,

373 U.S. 379, 83 S.Ct. 1322 (1963) 30

Spevack v. Klein, 385 U.S. 511,

87 S.Ct. 625 (1967) 24

Xili

Strickland v. Willingham, 49 Ga.App. 355,

175 S.E. 605 (1934) 12

Supreme Ct. of NH v. Piper, 470 U.S. 274,

105 $.Ct. 1272 (1985) 34

Supreme Ct. of VA v. Friedman, 487 US. 59,

108 S.Ct. 2260 (1988) 34

Surrick v. Killion, 449 F.3d 520 (3'¢ Cir. 2006) i, 29-32

Theard v. United States, 354 U.S. 278,

77 S.Ct. 1274 (1957) 25, 27-28, 30, 32

United States v. Hvass, 355 U.S. 570,

78 S.Ct. 501(1968) 3]

United States v. One Star Class Sloop Sailboat,

458 F.3d 16 (15 Cir. 2006) 25

Whorton v. Bockting, 127 S.Ct. 1173 (2007) ya

Willner v. Committee on Character & Fitness,

373 U.S. 96, 83 S.Ct. 1175 (1963) 24

Wuchter v. Pizzutti, 276 U.S. 13,

48 S.Ct. 259 (1928) y a"

United States Constitution

Art. |, Sec. 8, Cl. 3 (“Commerce Clause") 2, 32

Art. IV, Sec. 1 (“Full Faith and Credit Clause”) 1,2, 16

X1V

Art. IV, Sec. 2, Cl. 1 (“Privileges and Immunities

Clause) 2, 34

Art. Vi, Par. 2 (“Supremacy Clause”) 2, 30-31

5 Amendment (“Due Process

Clause”) I, 1, 2, 20-22, 24, 34

14th Amendment (“Due Process

Clause”) i, 2, 10, 12-14, 16-17, 23-24, 33

Federal Statutes

28 U.S.C. § 46(c} 2,14, 34

28 U.S.C. § 1254(1) 2

28 U.S.C. § 1654 30

28 U.S.C. § 1738 1,16

28 U.S.C. § 2071(a) 30

28 U.S.C. § 2077(a) 2.15, 34

42 U.S.C. § 1983 29

Federal Rules

Fed.R.App.P.

Rule 27(c) 2, 14, 34

Rule 46 i, 2, 28, 34

Rule 47(b)

Fed.R.Civ.P.

Rule 83

Local Rule 83.6.VII(I}, EDPA

Supreme Court Rules 11, 12.4

Georgia Constitution

Art. |, Sec. |, Par. | (“Due Process”)

Georgia Bar Rules

Old Bar Rules

Old Bar Rule 4-208. 1

Old Bar Rule 4-208.2

Old Bar Rule 4-208.3

New/Amended Bar Rules

New Bar Rule 1-207

New Bar Rule 4-208. 1 (b)

29, 32

1,14

10-12

PETITION FOR WRIT OF CERTIORARI

Petitioner, a member in uninterrupted good

standing of the Bar of the Supreme Court of the

United States (since 1978), and other courts,!

petitions for Writ of Certiorari to review judgments

that deny Petition for Readmission to Fifth Circuit

Bar. The court admits that Petitioner is a member

of the Bar of “some other courts,” but denies them

Full Faith and Credit. Instead, it relies on “this

court's practice,” an unpublished circuit rule, to

deny readmission notwithstanding an underlying

state disciplinary decision that is unworthy of

federal reciprocal recognition under 5 Amdt.

Due Process or principles of right and justice.

OPINIONS BELOW

Opinions are dated Aug. 10, 2007 (la), Nov. 9,

2006 (5a}, Aug. 8, 2006 (7a), and July 15, 1994

(10a), and are so far unreporied. Material

communications from the clerk's office are dated

Aug. 4, 1994 (15a), June 13, 2006 (17a), and Oct.

6, 2006 (18a).

JURISDICTION

To the Aug. 10, 2007 (la) opinion Petitioner filed

petitions for panel and en banc rehearing that

were denied Oct. 12, 2007 (lla). This Court has

jurisdiction under 28 U.S.C. §1254(1). Petitioner

invokes this Court's jurisdiction over previous Fifth

Circuit decisions pursuant to Sup.Ct.R.12.4 and

Christianson v. Colt Indus. Op. Corp., 486 U.S. 800,

818 (1988).

’ Aff.Jt.Pets. 752; ex.1, July 13, 2006.

CONSTITUTIONAL & STATUTORY PROVISIONS

Art. |, IV, VE 5th, 14? Amadts., U.S. Const.; 28 U.S.C.

§§46(c), 2077(a); FRAP 27(c), 46(a), 47(b) in App.

STATEMENT OF THE CASE

Petitioner is actually innocent of any misconduct

(Aff.,J.E.Spence,Jr., former Assistant General Coun-

sel (“AGC”) of State Bar of GA (“Bar”)}. He wona

fee arbitration and reconsideration on the same

facts as later alleged in Bar complaints (T-95).2, No

complaint was sworn. And there is not in any

record any sworn evidence against Petitioner on

the merits of the grievances whatsoever.

GEORGIA PROCEEDINGS

GA Bar's Informal Notice of Grievance

Petitioner was admitted to the Bar in 1971, and

as required, furnished his address and telephone

number fo the Bar.

An ex-client filed an unsworn petition for fee

arbitration with the Bar in Jan. 1991, which

scheduled arbitration on July 12, 1991, and

notified Petitioner by regular mail. Petitioner filed

a response.?

May 1991, the ex-client hired a lawyer who filed

with the Bar an unsworn grievance against

Petitioner on the same subject matter as her

2 Transcript, Special Master's Hearing, May 20, 1993 (“T-"), at

331 (5-9) (“Special Master: *** Mr. Bishop came in and

vigorously opposed - well, defended himself in the fee

arbitration, won, won, won, won. | mean he certainly wasn't

running from a fight he couldn’t win because he won it.").

Victory caused Petitioner to think grievance maiter was

“dead, gone and over with.” T-98, T-331 (7-9).

3 Underlying facts are sketched in Cert. Petition (p.2-4), filed

May 5, 2003, in Case No. 02-1598, Bishop v. U.S. District Court,

NDGA.

client's arbitration petition. Petitioner was notified

by regular mail of the grievance on June 5, 1991,

and he filed a response with the Bar.

The day prior to the fee arbitration, July 11, 1991,

Bar employee Martha Winstead telephoned

Petitioner on his Bar-listed number to remind him of

fee arbitration being held the following day, July

12, 1991, at Bar headquarters (T-322).

From July 9, 1991 to Dec. 1993, Petitioner resided

in Dawson Co., GA. Throughout that period, the

Dawson Co. sheriff and postmaster knew that

Petitioner lived in Dawson Co., knew that

Petitioner lived with his parents in Dawson Co., and

knew where Petitioner and his parents lived in

Dawson Co. (1-347; 348; 349) (Affid. Padgett

(1994); Affid. Cofield (1994)).

July 12, 1991, prior to fee arbitration held that

day, Petitioner told AGC Paul Cohen in person at

Bar headquarters in Atlanta, GA, that he lived in

Dawson Co. (1-258; 264; 308; 322-323). Petitioner

extracted a promise from AGC Cohen to

telephone him before anything substantive

happened in the case, on which Petitioner relied

(T-98; 223; 308; Affid. Petitioner at 3 (Jan. 22, 1993);

Petitioner's Motion, Mar. 18, 1993, p.6).

Shortly after losing the fee arbitration and in July

1991, the ex-client filed with the Bar his own

grievance against Petitioner raising the same

issues. The Bar notified Petitioner by regular mail,

and Petitioner filed in July and Oct. 1991, with

Cohen or his secretary responses to the two

grievances.

AGC Cohen knew no later than Nov. 18, 1991,

that Petitioner was using a local mailing address,

Posi Office Box 11813, Atlanta, GA 30355 (“the

post office box address”) (T-7 (stipulation); D-1; D-

2) because on that date the AGC addressed a

letter to Petitioner at the post office box address,

mailed by regular mail, which Petitioner received.

Indeed there were telephone calls between AGC

Cohen & Petitioner during this period (1-259, 264).

At all relevant times, Gayle Baker was

Membership Coordinator for the Bar and kept the

Official membership list on computer (T-49; 271).

Prior to July 9, 1991, Petitioner's address on the

Official membership list was 305 Buckhead

Avenue, Atlanta, GA 30305 (“Buckhead, Fulton

Co. address”) (T-90). Petitioner moved from the

Buckhead, Fulton Co. address on July 9, 1991 (T-

30). Petitioner told Membership Coordinator Baker

on Oct. 4, 1991, that he lived in Dawson Co. (T-29;

218: 280; 309; 354). He did so in answer to her

question whether there should be a change of

address in the course of his paying his delinquent

1991 Bar dues. He procured from Ms. Baker in her

own handwriting a receipt for 1991 Bar dues

suggesting remission of a $50 penalty for late

payment, which she signed as “Office Manager”

(1-218; 280 (19-25)4; D-19). As Membership

Coordinator for the Bar, as a part of her normal

duties, Ms. Baker would take changes of address

verbally or by telephone (T-221; 282: 285). Ms.

Baker neglected to make any change to the Bar's

4 1-280 (19-25) (“Q [Petitioner] And why was [the receipt]

less? Why was it $50 less than what it should have been? A

{Gayle Baker] | don't remember. Q@ Was it because | would

have told you that ! was no longer at 305 Buckhead Avenue

and iived in Dawson County? A Yes. sir.").

record address on file for Petitioner (1-283; 351). At

all material times a GA lawyer could use an office

address, a residence address, or a post office box

address as his or her official address (T-276).

At a subsequent hearing, the Special Master

found as fact that Petitioner took reasonable steps

after July 9, 1991, to change his address with the

Bar and thought the Bar had his correct adaress.

July 11, 1991, Petitioner filed change of address

with the Postal Service from the Buckhead, Fulton

Co. address to the post office box address (T-102;

SB-C). Commencing on that date Petitioner

began sharing the post office box with his parents

with whom he resided in Dawson Co. His parenis

did business out of the post office box. Neither he

nor his parents ever saw any notice or slip for

Petitioner in the post office box in the relevant

months of Jan., Apr., July 1992 (T-332-335).

From July 1985 to Aug. 17, 1992, Petitioner's

telephone number was (404) 262-1110 (T-303; 344;

Affid. Petitioner Jan. 1993). As late as Mar. 9, 1993,

the Bar listed on its official membership _ list

Petitioner's said telephone number (T-286; D-20).

From July 15, 1991, to Aug. 17, 1992, at Petitioner's

request, Southern Bell Telephone forwarded

telephone calls on that telephone line to

Petitioner’s residence in Dawson Co. by “remote

call-forwarding" (1-310; 323). At no fime was

Petitioner's telephone out of service or

disconnected (T-303; 304; D-22; D-23; Affid. Pet-

itioner Jan. 1993). Petitioner “was never tele-

phoned by anybody with the State Bar or

anybody else that there was a pending notice of

investigation against [him] or a pending notice of

discipline against [him].” (1-323). At least one of

Petitioner's parents was at the Dawson Co.

residence where calls to Petitioner's telephone

number would ring who could answer the phone

(T-323; 349).

GA Bar’s Insufficient Formal Notice of Action

Jan. 3, 1992, his last day of employment, AGC

Cohen signed and directed his secretary Estelle

Jackson to mail a “notice of investigation” as to

each grievance to Petitioner without telephoning

Petitioner as Cohen had promised Petitioner five

months earlier. The Bar attempted certified-mail

service of the notices of investigation on Petitioner

at the Buckhead, Fulton Co. address. The certified

mail packages indicated that notices or slips had

been left for Petitioner. The post office returned

the notices of investigation to the Bar marked

“unclaimed” (T-54; SB-G & SB-H)}.

The slips or notices that the USPS was using in

Jan. to July 1992 to alert an addressee of certified

or registered mail did not have a blank for the

name of the sender of the mail piece, only a blank

for the zip code of origin (1-121; 123; 151; affid.

Giles (1993)).

At no point did the Bar send the notices of

investigation by regular mail.

Jan. 30, 1992, the Bar allegedly sent an

investigator to the Buckhead, Fulton Co. address.

AGC Jeffrey R. Davis (who had taken over the file

from Cohen) did not inform the investigator that

Petitioner was using a post office box address (T-

291). The investigator did not check with the

Postal Service, the Bar's Membership Coordinator

(Gayle Baker); nor did he check with the Fulton

Co. or Dawson Co. sheriffs (1-296; 297). By

hearsay, the investigator verbally informed Mr.

Davis that Petitioner had been evicted from the

Buckhead, Fulton Co. office (T-70).

At the Special Master's hearing, May 20, 1993,

the Bar stipulated that from and after Jan. 30, 1992,

it knew that Petitioner could not be found at the

Buckhead, Fulton Co. address (1-28-29; 80).

Nevertheless, the Bar continued to seek to serve

Petitioner at the Buckhead, Fulton Co. address but

did not post notices of investigation or discipline

on Petitioner's former premises. Thus, all actions by

the Bar after Jan. 30, 1992, were not steps that a

person would take who actually wanted to notiify

Petitioner of the disciplinary proceedings against

him. Rather the Bar chose to blindly follow boar

rules knowing that doing so was substantially

certain not to lead to actual knowledge by

Petitioner of bar proceedings.

Thereafter, the Bar's Investigative Panel directed

issuance of a “notice of discipline” against

Petitioner stating that the appropriate punishment

was disbarment which, if not rejected within 23

days, would become an automatic disbarment

under Bar rules. Petitioner had no prior disciplinary

record. There was no disciplinary rule establishing

“default.” Then Bar Rule 4-208.1 merely provided

that failure to respond to a notice of discipline

authorized disbarment, without any finding on the

merits.>

5 Rule 4-208.1. Notice of Discipline. In any case where the

Investigative Panel or a subcommittee of the Panel finds

probable cause. the Panel mcy issue G Notice of Discipline

imposing any leve! of public disciplinary sanctions authorized

June 3, 1992, the clerk of the GA Supreme Court

sent to Petitioner at his post office box address -

by regular mail that Petitioner received -- notice of

the docketing of an unrelated case entitled, King

v. Bishop, Case No. $92A1089 (Ga. 1992) (T-315; D-

25).

June 26, 1992, Petitioner received service of

process in Dawson Co. in an unrelated case filed

in the Family Court of Greenville Co., South

Carolina, entitled Sanders v. Bishop, Case No. 92-

DR-2662. Process was personally served on

Petitioner's father. Writ of Coram Nobis, June 27,

1994, exhibit.

July 1, 1992, the Bar mailed the notice of

discipline to Petitioner by registered mail to the

Buckhead, Fulton Co. address. Shortly after

mailing, AGC Davis telephoned the U.S. Post Office

(575 Pharr Road, Atlanta) where Petitioner was

sharing a post office box with his parents, for an

explanation why the AGC had not received the

by these rules. The Notice of Discipline shall be a final order

of disciplinary sanctions unless affirmatively rejected by the

respondent as provided in Rule 4-208.3. (emphasis added).

¢ Other contacts: Oct. 18, 1992, the Bar sent by regular mail

notice of delinquent reporting of continuing legal education

(“CLE”) to Petitioner at the post office box address that he

received (1-320: D-24). Nov. 26, 1992. the GA Supreme Court

sent by regular mail to Petitioner's post office box that

Petitioner ‘eceived an order notifying him that he would be

suspended if ne did not complete his CLE requirements by

year end 1992 (T-318). Dec. 17. 1992. Petitioner appeared

before o Bar employee and executed an affidavit that he

had completed CLE requirements. Because of Cohen's

promise, Petitioner had no contac? at this time with him or

the Office of General Counsel.

“unclaimed” envelope in which the notice of

discipline had been mailed to Petitioner by

registered mail (1-64). AGC Davis could have

simply telephoned Petitioner, or asked the

postmaster for the identity of the person(s) in

whose name the post office box was rented and

thereby would have received the particulars of

Petitioner and his parents’ address in Dawson Co.

Bar did not send notice/discipline by regular mail.

From Jan. 3, 1992 onward, the Bar took the

position that it was not required to telephone or

attempt to telephone Petitioner on the telephone

number required of a member and recorded on

its official membership list in order to facilitate

service of disciplinary notices (T-306; 309; 343-344;

SBG's Exceptions to Special Master's Report, June

16, 1993, p.2 (“Rule 4-208.2 does not require phone

calls.")).

Petitioner did not have actual knowledge of Bar

proceedings from Jan. 1, 1992 until Jan. 20, 1993.

Petitioner never saw any notices or slips for

certified mail or registered mail in the post office

box in Jan., Apr., or July 1992 (1-94; 96; 213; 302:

307-308). The Special Master stated at the May 20,

1993 hearing that he believed Petitioner when

Petitioner stated that he did not see any notices in

the post office box that he shared with his parents

(T-330).

However, | will also say that when Mr. Bishop tells

me he did not have any knowledge of this

proceeding, and that he didn't ever see any

slips in those boxes, I'll be totally candid with

you, | believe him. [T-330 (19-23)]

ott.

In his Report, the Special Master found as fact

that Petitioner did not know about the notices of

investigation, the notice of discipline, or his

disbarment until he read about same in a local

newspaper, Jan. 20, 1993. The Bar stipulated in

Exceptions to Special Master's Recommend-

ations, June 16, 1993, p.5: “As the Special Master

found, Respondent did not have actual notice of

the Notice of Discipline pending against him.”

GA Discipline

Jan. 8, 1993, the GA Supreme Court entered

perfunctory disbarment. Jan. 20, 1993, Petitioner

read about his disbarment in the Fulton Co. Daily

Report (1-94), while waiting to go to lunch with an

aitorney friend. The Special Master pointed out

that this was outside the ten-day period to seek

reconsideration under court rules (T-331}.

Jan. 22, 1993, Petitioner filed motion to vacate

with affidavits which was supplemented several

times. Initially, Petitioner offered two grounds for

relief: denial of Due Process of Law guaranteed by

the GA Const. {Art. |, Sec. |, Par. |) and the 14th

Amdt. to the U.S. Const. The Bar opposed vacatur.

Feb. 18, 1993, the GA Supreme Court entered an

order that stated in part:

The motion for reconsideration in the above

matter having been considered, it is ordered

that it be remanded to the Review Panel, and

that [a named person who later disqualified

herself] be appointed as Special Master to hear

evidence on the sole issue of whether

Respondent was properly served. (emphasis

added).

At a conference in the spring of 1993, with a

special prosecutor appointed by the president of

the Bar to represent the Bar in the proceedings

against Petitioner, Special Prosecutor Robert

Goldstucker told Petitioner that the Bar was willing

that his case be a “test case” in order fo “test” the

constitutionality of the Bar service rules (T-332, 336).

The Special Master held a hearing on May 20,

1993, and limited the scope of the hearing to the

sole issue of whether Petitioner was properly

served with the notices of investigation and the

notice of discipline under the Bar rules. The

Special Master explicitly refused to expand the

scope of the hearing to include the issue of

whether Petitioner was denied Due Process (1-3;

31; 39; 42; 77-78; 202; 252; 262-263; 300; 330; 341;

358).

In his Report dated June 4, 1993, the Special

Master found that the Bar had complied with Bar

rules on service of notices of investigation and

notice of discipline, but held that the Bar had

denied to Petitioner Due Process of Law and

recommended that the disbarment be set aside

and Petitioner be allowed an opportunity to

respond to the charges against him. His report

was the first time that the Special Master indicated

that he was considering the issue of Due Process of

Law, although Petitioner had raised the issue and

had tried, but had been rebuffed, in an effort to

persuade him to consider evidence thereon.

Aug. 25, 1993, the 20 plus members of the

Review Panel entered an unanimous Report

agreeing in all respects with the Special Master

holding that the Bar had denied Due Process of

~ ?

Law to Petitioner and recommended that the

disbarment be set aside and Petitioner be allowed

an opportunity to respond to the charges against

him.

Apr. 18, 1994, the GA Supreme Court entered

disbarment with three dissents among seven

justices. In re Bishop, 443 S.E.2d 734 (Ga. 1994).

The court employed a Conclusive Presumption

that Petitioner saw but did not present unidentified

mail slips for certified and registered mail, despite

the Special Master's and the Review Panel's

findings of fact to the contrary. The only stated

basis for the disbarment was failure to respond to

slips or notices addressed to the Buckhead, Fulton

Co. address and forwarded to the post office

address buf returned “unclaimed.” The court

disagreed with the Special Master and Review

Panel that the Bar denied Due Process to

Petitioner, but the court did not clarify whether it

was determining Due Process under state or

federal constitutions and did not cite to a single

case from GA although there were several

supporting Petitioner's claim of Due Process

denial.’? Tne cour did not acknowledge that the

remand to the Review Panel and Special Master

was limited to “the sole issue of whether

Respondent was properly served” under the bar

rules, nor that both the Special Master and Review

Panel had limited consideration of Petitioner's

evidence _ thereto. Simultaneously — with

? Stnickland v. Willingham, 175 S.E. 605 (Ga.App. 1934) (invalid

purported substituted service on attorney, raised seven years

later}; Roland v. Shelton, 127 S.£.2d 497 (Ga.App. 1962]; see

Abba Gana v. Abba Gana, 304 S.£.2d 909 (Ga. 1983).

w-43-

disbarment, the court announced amendment of

Bar rules without prior notice to the Bar or Petitioner

and applied them to Petitioner sub silentio.®

June 27, 1994, Petitioner filed Motion for Writ of

Coram Nobis which included envelopes mailed by

regular and certified mail to “W. Kent Bishop, Daw-

son County, GA 30534” that had been received

by Petitioner at his residence in Dawson Co.

Sept. 16, 1994, the GA Supreme Court denied all

motions. Cert. denied.

FIFTH CIRCUIT PROCEEDINGS’?

8 According to internal court memoranda (discovered in

court file, June 30, 1994, submitted in July 1994 to Fifth

Circuit), the GA Supreme Court delayed its decision in

Petitioner's case until it could publish amended bar rules —

bypassing the Bar’s Board of Governors contrary to bar rules

(T-337) — in which the court changed the law to state (i) that

violation of just-amended Rule 1-207 {Change of Address}

could result in discipline, (ii) use of post-office box address

with the Bar forfeits any right to personal service of

disciplinary nolices, {ili} notice to any Bar employee other

than the Membership Department is not notice to the Bar.

Amended Rule 4-208.1(b) provided for default - for the first

time — by stating that default eliminates any right to an

evidentiary hearing. April 14, 1994, these rules were first

made known to the general membership of the Bar in the

advance sheets of GA Supreme Court opinions, which

Petitioner did not receive in the mail as part of his

subscription until April 23, 1994, or a week after disbarment.

The new rules “fixed” the problems that Petitioner's case

illustrated. It was a 14 Amat. Due Process violation to apply

new amended rules to disbar Petitioner and not to notify him

of their existence until after he was disbarred under them.

Cf. Londoner v. Denver, 210 U.S. 373 (1908): RR Village Assoc.

v. Denver Sewer Corp., 826 F.2d 1197 (2"¢ Cir. 1987).

9 See Cert. Petition 4-9, Bishop v. Fifth Circuit.

1994 Disposition by Chief Judge. Petitioner was

disbarred by Politz,CJ., July 15, 1994 (10a), who

prevented further review (15a).'° The order was

perfunctory and void. 28 U.S.C. §46(c) (20a); Rule

27(c) (21a), Fed.R.App.P. Id.n.9 at 10-15.

2006 Jones v. Flowers, 547 U.S. 220 (2006), suggests

GA violated 14 Amdt. Due Process. Fifth Circuit

records contain proof that each court had denied

full and fair opportunity to litigate federal due

process. Accordingly, Petitioner filed July 14, 2006,

Petition for Readmission to Fiftn Circuit Bar, Motion

to Incorporate Fifth Circuit Record from Previous

Proceedings, Affidavit, and Memorandum citing

to Jones, and other petitions.

2006 Disposition By First Panel of Smith, Garza,

Clement, JJ. was to deny petitions and motion,

Aug. 8, 2006 (7a), stating: “This court has no

‘appellate’ jurisdiction over proceedings

concerning admission to practice law before us.”

In his 2006 Cert. Petition, ultimately “prior to judg-

ment,” Petitioner acknowledged that the court

did not rule on his Jones Due Process claim (p.15).

2006 Ruling By Chief Judge was unexpected,

again denied readmission by certified Order

received Nov. 14, 2006 (5a), and held:

However, we have received no information that

Mr. Bishop has sought readmission to the

Georgia bar. Absent unusual circumstances, it

0 In 1966-1967, after graduation from Duke University (with

Distinction in Economics) in 1961 and Harvard Law School in

1966 with LL.B. degree (transformed in 1969 to J.D. degree).

Petitioner served as assistant law clerk to Honorable Griffin B.

Bell, Fifth Circuit Judge, at his chambers in Atlanta. Jt.Pets.

18: Aff. 950.

» 15<

is this court's practice to condition readmission

on the resumption of active status in good

standing with the bar of the original disciplining

court. Mr. Bishop's submissions do not make out

sufficient reasons for a departure from this

practice.... [emphasis added; 6a].

“This court's practice” had never been previously

published and thus violated 28 U.S.C. § 2077(a) &

Rule 47(b), Fed.R.App. P. (21a). Jones was

ignored. Weeks after Cert. Pet. was filed re Aug. 8,

2006 order, futile reconsideration was sought.!!

2007 Disposition By Second Panel of Jones,C.J.,

Reaviey, Smith.JJ. - while trivializing Petitioner's

several bar memberships — acknowledged the GA

Special Master's finding that “Bishop did not have

actual knowledge of the disciplinary proceedings”

(2a,n.1) and again denied readmission, stating:

'' Chief Judge's Order relied upon Eleventh Circuit (1995)

and NDGA (2002) reciprocal discipline entered pre-Jones

(2006}. Eleventh Circuit's discipline was perfunctory, and

NDGA's was purely derivative, as its committee observed: "It

stands to reason that if there was some injustice or wrong

visited upon [Petitioner] in the state proceedings, if would

have been picked up by one of the three other [federal]

courts.” To prove no moral fault, Petitioner submitted as

exhibits: NDGA 2001 transcript, Eleventh Circuit orders (1995),

and 2003 Cert. Petition (Case No. 02-1598) appending

decisions showing that conduct was never at issue.

Petitioner was deprived of full and far opportunity to litigate

moral fault. In NDGA he was not allowed to contest Final

Report of Disciplinary Committee (Oct. 31, 2001 letter from

Evans.DJ.), despite Vining.CDJ’s Jan. 7, 1999 ruling that GA

had not disbared for misconduct, which was slated to be

the subject of future evidentiary hearing (Aff.Ex.2) -- which

the NDGA and Eleventh Circuit eventually prevented.

» $60

The notices were nevertheless returned

unclaimed. The Georgia court determined that

the facts before it formed the basis for a

reasonable inference that Bishop did not

receive the notices because he deliberately

ignored the mail slips placed in the post office

box. *** We see no impediment under Selling v.

Radford to the Georgia court’s choosing to

disbar an attorney who failed to respond to such

notices. *** [Hjaving concluded that that

proceeding satisfied the tests required by

Selling, we do not find sufficient reason to

exercise our discretion to readmit Bishop when

he has not been readmitted by Georgia.

[emphasis added]

The 14% Amdt. Due Process issue re GA discipline is

examined de novo. There is no mention of laches

or res judicata -- probably because Petitioner

demonstrated that both GA and Fifth Circuit had

previously deprived him of full and fair opportunity

to litigate this issue. The panel ignores Jones. The

Court's reliance on state use of Conclusive Pre-

sumption produces 5° Amdt. Due Process enor

and violates principles of right and justice. While it

drops use of “this court’s practice,”!? the panel's

'2 The 2007 decision presents ironies: Besides the court's

attempt to recast “this court’s practice.” there are: (1) the

court’s deference to out-of-circuit GA and denigration of

out-of-circuit NY, to whose bar Petitioner has been a

member since 1968, thus implicating Full Faith and Credit

Clause of Art. IV, Sec. 1 (19a) and 28 U.S.C. § 1738 (20a), and

(2) the court’s ignoring of the fact that Petitioner has

diligently kept abreast of cevelopments in law since the GA

order was entered, has compieted all NY-required CLE

courses, and the NDGA Disciplinary Committee remarked:

a. PS

unreasonable reading of Selling permits the

inference that — despite appearances -- its ratio

decidendi was “this court’s practice.”

REASONS WHY CERTIORARI SHOULD BE GRANTED

1. THERE iS CONFLICT WHETHER THE GA SUPREME

COURT DENIED 14™ AMDT. DUE PROCESS UNDER

SELLING FACTOR ONE, namely, “the — state

procedure for want of notice or opportunity to be

heard was wanting in due process.” 243 U.S. at

51.15 There is conflict among the circuits on two

“Some of this testimony regarding [Petitioner's] legal talents

was particularly compelling.”

3 selling v. Radford, 243 U.S. 46 (1917) states 14h Amdt. Due

Process factors for the Supreme Court to apply to state

disciplinary order to determine if reciprocal federal discipline

should be administered to member of federal court bar, as

“conditions”: “[A federal court should recognize a state

court disbarment to disbar an attorney from practicing

before it - ]

unless, from an intrinsic consideration of the state record,

one or all of the following conditions should appear: 1.

That the state procedure for want of notice or opportunity

to be heard was wanting in due process; 2, that there was

such an infirmity of proof as to facts found to have

established the want of fair private and professional

character as to give rise to a clear conviction on [the

court's} part that [it] could not consistently with [its] duty

accept as final the conclusion on that subject; or 3, that

some other grave reason existed which should convince

[the court] that to allow the natural consequences of the

judgment to have their effect would conflict with the duty

which rests upon [the federal court] not to disbar except

upon the conviction that, under the principles of right and

justice, [the court] were constrained so to do.” [243 U.S.

at 51; emphasis added. ]

The GA disbarment satisfies these three conditions, and the

Fifth Circuit snould not have relied upon the GA judgment to

disbar him from federal court or to deny him readmission.

_ 2

different levels: treatment of lawyers versus lay

persons; and treatment of lawyers versus aliens. In

both cases lawyers are treated worse. Cert. would

permit equal justice to lawyers — long overdue.

The Supreme Court in Jones v. Flowers held:

We hold that when mailed notice of a tax sale is

returned unclaimed, the State must take

additional reasonable steps to atiempt to

provide notice to the property owner before

selling his property, if it is practicable to do so.

Under the circumstances presented here,

additional reasonable steps were available to

the State. [547 U.S. 220, 225.]

This holding focuses on state action to effect

service of process after having initially attempted,

but failed, to consummate service. Of application

to the instant case, Jones requires gov't to

consider unique facts and circumstances

obtained by gov't prior to its initiation of formal

proceedings to determine constitutional service.

Id. 230. Recent cases in the Second Circuit and

Ninth Circuit emphasize facts known prior to formal

proceedings. These cases show that the Fifth

Circuit, Eleventh Circuit, NDGA are out of step.

Second Circuit. Luessenhop v. Clinton Co., N.Y.,

466 F.3d 259, 270-272 (2°¢ Cir. 2006), analyzes

unique facts and circumstances in 4 consolidated

cases. In Luessenhop, property was located in

Clinton County. its owner resided in DC and

occasionally London; certified mail to the county

address went unclaimed; and the court observed:

In Luessenhop's case, if would not have been

a terrible burden for the County to take at least

one of the steps suggested in Jones: viz..

sending a first-class letter to Luessenhop's

Washington, D.C. address. Accordingly, the

County’s effort to provide notice to Luessenhop

was insufficient to satisfy due process. [Ild. 270;

emphasis added.]

in Baechle, the Second Circuit elaborated:

On remand, the district court should consider

the following matters. First, the precise

mechanism Mendon [Vermont] employed to

contact [Baechie] initially. Second, the record

says nothing about what steps, if any, Mendon

took to notify Baechie of the impending tax sale

after Mendon was notified that Baechle did not

receive the letters. On remand, the district

court should determine what, if anything,

Mendon did to ascertain Baechle’s correct

address. *** If the court is satisfied that Mendon

did make further attempts to find Baechle, it

should assess the adequacy of those measures.

Finally, the court should determine whether it

was practicable for the government to have

taken any additional step to inform Baechle of

the impending sale of his property. *** When

considering the availability of reasonable

additional steps, the court should consider

whether Baechle’s suggestions of consultation

with the Rutland Department of Public Works or

the condominium owners’ association are

reasonable under Jones. [id. 271; emphasized.]

In Tupaze, the Second Circuit observed:

[The question that Jones tells us to ask is

whether the County fhought that the Tupazes

had received notice. *** But the court never

made a specific finding regarding whether the

—.

County thought the Tupazes received the letter.

This is a subtle but important distinction. ***

Accordingly, the ... decision ... is vacated and

... remanded...."'4 [Ild. 272; emphasis added.]

14 ALIENS. Fifth Amdt. Due Process (19a) notice to aliens

faced with deportation has received substantial, recent,

circuit attention. In each of the following cases, aliens

received more due process protection than did a lawyer in

the Fifth Circuit, Eleventh Circuit, NDGA, and GA. Cert. in

Bishop would place lawyers on equal plane with aliens.

Third Circuit. Perez-Alevante v. Gonzales, 197 Fed.Appx. 191

(3° Cir. 2006) (judgment denying motion to reopen removal

proceedings was reversed on appeal) (permanent resident

had signed nofice that he could be removed if he did not

kept INS informed of his address; attomey made

appearance for movant: thereafter movant failed to

appear at hearing after notice sent to old address. The

court stated (p.195): “Similarly, the fact that Perez-Alevante

did not comply with his statutory responsibility to provide a

current address did not necessarily mean that the

immigration court was entirely relieved of its obligation to

provide him with notice that met the requirements of the Due

Process Clause [of the 5° Amdt.].”

The court stated (p.196): “This additional step [notice to his

counsel] requires de minimus effort by the government, and

is balanced against the significant interest an alien facing

removal has in being able to continue his professional and

familial life in this country. *** Although Jones found a due

process violation in the fact that the State took no additional

steps to give notice after becoming aware that its initial

attempt had been unsuccessful, the immigration court here

had the contact information for Perez-Alevante'’s counsel

from the outset.”

Seventh Circuit. Peralfta-Cabrera v. Gonzales, 501 F.3d 837,

843 (7 Cir. 2007) (“in most instances, it is the government's

responsibility to ensure that notice by mail is successfully

delivered, see, e.g., Jones v. Flowers...."’).

Ninth Cir. Chaidez v. Gonzales, 486 F.3d 1079 (9 Cir. 2007).

- 21.

Ninth Circuit. Tu v. NTSB, 470 F.3d 941 (9 Cir.

2006), framed the 5'* Amdt. Due Process issue as:

We today decide whether [a federal] agency

can effect notice of its ruling, so to start the

running of time in which to appeal, by certified

mail, when it has reason to know certified mail

would not reach petitioner, whereas first-class

mail would. [id. 942; emphasis added.]

After describing the facts in Jones v. Flowers,'> the

court suggests that Jones should be read broadly:

A fortiori, the FAA provided constitutionally

defective notice in this case. The March 28 and

April 8, 2003 suspension orders the FAA sent by

certified mail were not “reasonably calculated

to reach the intended recipient when sent. Id.

The FAA knew certified mail sent to Tu had

previously been returned on two separate

occasions as “refused” or “unclaimed.” What is

more, knowing that certified mail was

ineffective to reach Tu, the FAA had sent

correspondence leading up to the suspension

order by first class mail. First class mail worked.

Tu responded to [it] in a timely manner.

Nevertheless, tne FAA sent the orders

suspending Tu's license — triggering the 20-day

appeal deadline - by certified mail alone.

Unsurprisingly, these orders sent by certified mail

Eleventh Circuit. Coming to the opposite result (judgment

for the gov't) are Dominguez v. U.S. Atty. Gen'l, 284 F.3d

1258 (11 Cir. 2002) (alien's failure to submit second affidavit

doomed him to deportation). and Castillo v. U.S. Atty. Gen..

18] Fed.Appx. 885 {11 Cir. 2006).

IS In Tu, Ninth Circuit noted that Jones was decided after

case was briefed on appeal. but the court would apply

Jones anyway. Id. 942-43.

o 22 «

were returned to the FAA as unclaimed. [id. 946;

fn.om.; emphasis added.]

Held: purported notice of suspension of pilot's

license violated the 5't Amdt. Due Process Clause.

Application to Pre-Formal Complaint Stage.

In Bishop, while the GA court mentioned some

unique facts preceding the bar's initiation of

formal proceedings, the GA opinion omits those

facts concerning pre-formal proceedings that

pertain to the Bar's numerous successful contacts

with Petitioner by regular mail to his post office box

address and by telephone at the number

Petitioner was required to list, and did list, with the

bar. The GA court equated compliance with Bar

service rules to compliance with due process

standards. Parochial? Yes; but error just the same:

“In prior cases, we have required the government

to consider unique information about an intended

recipient regardless of whether a statutory scheme

is reasonably calculated to provide notice in the

ordinary case." Jones, 547 U.S. at 230 (emphasis

added).

Application of Telephone Cases. Numerous cases

require gov't to utilize the telephone to notify of

gov't action when initial efforts to serve a party

are unsuccessful. These cases are from the Third

Circuit (Foeh! v. United States, 238 F.3d 474 (3 Cir.

2001)): Fourth Circuit (Plemons v. Gale, 396 F.3d

569 (4 Cir. 2005)); Seventh Circuit (Laborers’

Pension Fund v. Blackmore Sewer Constr., Inc.. 298

F.3d 600 (7 Cir. 2002)); and GA (Hamilton v.

Renewed Hope, Inc., 589 $.E.2d 81 (Ga. 2003), 637

$.E.2d 412 (Ga. 2006).

The Jones court does not require AR to use the

telephone directory to seek Jones among

numerous people bearing the very common

surname, “Jones.” 547 US. at 235-36. Buf

Petitioner's case is very different because the Bar

required Petitioner to register his telephone

number with the Bar; he did so; and it was readily

available to the Bar and GA court. Cerf. would

clarify that in such cases a process server must use

the telephone as a last resort to effect service.

Application to Bar's “Test Case”. At the May 1993

hearing, the Special Master questioned Bar

counse! about testimony that the Bar was pursuing

Petitioner as a test of the constitutionality of the

bar rules. Bar counsel admitted the charge was

correct.'6 Unvarnished, the Bar was willing to

disbar Petitioner — without a prior record -- to test

its notion that it did not need to send notice by

regular mail or post notice on the door of his

former law office or telephone him with notice.

This admission by the Bar betrays a fundamental

misunderstanding of 14 Amdt. Due Process as

developed in Jones: “The Courts of Appeal and

State Supreme Courts have addressed this

question on frequent occasions, and most have

decided that when the government learns its

attempt at notice nas failed, due process requires

the government to do something more before real

property may be sold in a tax sale.” Id. 227

(fn.om). “In Mullane, we stated that ‘when notice

is Q person's due ... [t]he means employed must

be such as one desirous of actually informing tne

16 T-332, 336; Aff.Jt.Pet. 133.

. 24 -

absentee might reasonably adopt to accomplish

R, aa Wa, AR OS... 70 SAN. O52... i BaF:

emphasis added. In other words, to pursue a “test

case” where the stakes are significant, individual

property loss or professional license termination is

to turn Due Process on its head. GA, Fifth Circuit,

Eleventh Circuit badly need direction on this issue.

Application to Lawyers. Black letter law teaches

that lawyers are not second class citizens.

Spevack v. Klein, 385 U.S. 511, 516 (1967). A

license to practice law in a State is a property

interest protected by the 14th Amdt. Due Frocess

Clause. Willner v. Committee on Charecter &

Fitness, 373 US. 96, 102 (1963). A licesse to

practice law in federal court is protected by the

5 Amdt., In re Ruffalo, 390 U.S. 544 (1968), and by

principles of right and justice, In re Snyder, 472 U.S.

634 (1985). A law license is as valuable to an

attorney as a house is to a lay person. Cf. Ex parte

Burr, 9 Wheat. 529 (1824). Nevertheless, lawyers

involved in “adversary proceedings of a quasi-

criminal nature” (Ruffalo, 390 U.S. at 551) lack full

constitutional protections. In re Calvo, 88 F.3d 962,

967 (11'* Cir. 1996) (“due process is limited to

‘want of notice or opportunity to be heard.”

(emphasis added)).'7 This crimped reading of

Selling should be rejected!

17 In re Kankekore, 140 Fed.Appx. 848 (11! Cir. 2005), and In

re Kankekore, 460 F.3d 276 (2"4 Cir. 2006), are distinguishable

because Kandekore did not contend that his NY Bar

disbarment was void due to absence of Due Process. To

repeat, Petitioner's case is different because he proves that

GA denied 14 Amdt. Due Process and prominent

jurisdictions support this position by retaining him as a

member of their Bar.

+. oe

Application To Collateral Proceeding Because

Jones Expresses Old Rule With “New Wrinkle”.

Consistently with Whorton v. Bockting, 127 S.Ct.

1173 (2007), Jones makes clear that it reflects an

old rule:

But we have never addressed whether due

process entails further responsibility when the

government becomes aware prior to the taking

that its attempt at notice has failed. That is a

new wrinkle, and we have explained that the

“notice required will vary with circumstances

and conditions.” [ld. 227.]

The dissent forcefully articulates some basic

principles about constitutionally required notice,

principles from which we have no intention to

depart. In particular, we disclaim any “new

rule” that is “contrary to Dusenbery and a

significant departure from Mullane.” {id. 238;

emphasis added.]

Cf. United States v. One Star Class Sloop

Sailboat, 458 F.3d 16 (1% Cir. 2006); Hess v.

Pawloski, 274 U.S. 352, 356 (1927) (dictum):

Wuchtfer v. Pizzufti, 276 U.S. 13, 19 (1928).

Certiorari snould be granted because the Fifth

Circuit and Eleventh Circuit are not robustly

examining the constitutionality of underlying state

attorney disciplinary proceedings during federal

reciprocal proceedings. Both circuits share a

history of harsh treatment of lawyers:'8 and there

has been no appellate review in the instant case.

'8 Theard v. United States, 228 F.2d 617 (5 Cir. 1956), rev'd

354 US. 278 (1957): Frazier v. Heebe, 788 F.2d 1049 (S'" Cir.

1986) (Politz.J.), rev'd 482 U.S. 641 (1987).

e..

A Frazier type of supervisory certioran is imperative.

See 482 U.S. at 647, n.7.'9

2. THERE IS CONFLICT ON THE NATURE AND

SIGNIFICANCE OF STATE DISCIPLINE UPON

RECIPROCAL FEDERAL ACTION UNDER SELLING.

FACTOR TWO (proof of misconduct), to wit:

[A]lthough [membership in a state bar], after

admission here, might be lost by change of

domicil from one state to another, if so

provided by the state law or rule of court, or by

any other cause not involving unworthiness,

such loss would be wholly negligible upon the

right to continue to be a member of the Bar of

this court. [243 U.S. at 49.]

[We] do not in the slightest degree call in

question the ruling in Ex parte Tillinghast, 4 Pet.

108, 7 L. ed. 798, that a mere punishment for

contempt by an inferior Federal court was not a

sufficient ground for preventing admission to the

'? “Rules that discriminate against nonresident attorneys are

even more difficult to justify in the context of federal-court

practice than they are in the area of state-coun practice,

where laws and procedures may differ substantially from

State to State. There is a growing body of specialized

federal iaw and a more mobile federal bar, accompanied

by an increased demand for specialized legal services

regardiess of state boundaries. The Court's supervisory

powe! over federal courts allows the Court to intervene to

protect the integrity of the federal system, while its authority

over stafe-court boars is limited to enforcing federal

constitutional requirements. Because of these differences,

the Court has repeatedly emphasized, for example, that

disqualification from membership from a state bar does not

necessarily iead to disqualification from a federal bar.” [482

U.S. at 647-48; emphasis added; cits.om.]

Bar of this court, there being nothing to indicate

that the action of the inferior court was based

upon the doing of acts which inherently and

necessarily deprived the applicant of the fair

private and professional character essential to

admission. [ld 51; emphasis added.)

The only abscribed reasons for not readmitting

Petitioner to Fifth Circuit Bar are (a) conclusively

presumed past failure to present unidentified slips

for certified/registered mail in a shared post office

box and (b) lack of membership in GA Bar. The

Fifth Circuit did not describe or imply that these

reasons are evidence of misconduct. Excluding a

lawyer from a federal bar for reasons not

connected with misconduct is contrary to Selling

Factor Two, In re Ruffalo, 390 US. 544 (1968);

Schware v. Board of Exam., 353 U.S. 232 (1957); In

re Mosher, 25 F.3d 397 (6 Cir. 1994); In re

Palmisano, 70 F.3d 483, 487 (7? Cir. 1995) (dictum):

In re Smith, 100 F.Supp.2d 412 n.1 (N.D.TX 2000)

(dictum).

Cert. would afford opportunity to clarify Selling

and harmonize bar (re)admissions and disciplinary

standards throughout the country.

3. THERE IS CONFLICT WHETHER INADEQUATE STATE

NOTICE SHOULD PREVENT RECIPROCAL DISCIPLINE

UNDER SELLING FACTOR THREE, “GRAVE REASON”

UNDER “PRINCIPLES OF RIGHT AND JUSTICE,” ASIDE

FROM CONSTITUTIONAL CONSIDERATIONS.

Drawing upon principles of right and justice cited

in Theard, Harlan,J., In re Ruffalo, 390 U.S. 544, 552

(1968), preferred them over Due Process as a basis

for decision:

9%.

| see no need to decide whether the notice

given [Ruffalo] of the charge that formed the

basis of his subsequent federal disbarment [a

13" charge was added after Ruffalo and his

railroad investigator Orlando had testified at the

former's state disciplinary hearing] was

adequate to afford him constitutional due

process in the state proceedings. For | think that

Theard v. United States, 354 U.S. 278, leaves us

free to hold, as | would, that such notice should

not be accepted as adequate for the purposes

of disbarment from a federal court. On that

basis, | concur in the judgment of the Court.

Procedural irregularity in state notice would consti-

tute a “grave reason" under Theard (and Selling)

not to disbar, but to readmit, even if constitutional.

4. THERE IS CONFLICT AS TO THE SCOPE OF RULE

46(a), FED.R.APP.P. (21a). Fifth Circuit would

require Petitioner to be readmitted in GA before

being readmitted there. Other circuits would

disagree.

Fourth Circuit. In re Fallin, 255 F.3d 195, 197 (4th Cir.

2001), concerned disbarment proceedings in the

Fourth Circuit against an attorney who had been

indefinitely suspended from the practice of law by

MD. The court observed: “Mr. Fallin’'s admission to

practice law before this Court is predicated in part

on his status as a member of the Maryland Bar.

See Fed.R.App.P 46(a)(1).". The Fourth Circuit

suspended Fallin from federal practice in imposing

reciprocal discipline, but stated in connection with

future reinstatement (p.198):

We note, however, that our suspension order

does not preclude Mr. Fallin from applying for

readmission to practice in this Court if his

membership in the Maryland Bar is reinstated, or

if he otherwise complies with the provisions of

Fed.R.App.P. 46(a)(1). (emphasis added)

As Petitioner is member of USSC Bar, he would be

readmitted to Fourth Circuit Bar under Fallin (if not

already member).

Third Circuit: Surrick was suspended from the

practice of law for five years by the PA Supreme

Court. Office of Discip. Co. v. Surick, 749 A.2d 441

(Pa. 2000). In reciprocal proceedings, EDPA

imposed a lesser suspension of 30 months. In re

Sumick, 2001 WL 1823945 (EDPA 2001), aff'd 338

F.3d 224 (3 Cir. 2003). Under Local Rule 83.6 VI

(1), Surrick could maintain a law office in PA to

practice in federal court.” But in the meantime,

the state court ruled in Office of Discip. Co. v.

Marcone, 855 A.2d 654 (Pa. 2004), that while

suspended from state law practice, Marcone

could not open a law office in PA to practice law

in the EDPA. Fearing similar treatment, Surrick filed

suit against PA Bar under 42 U.S.C. § 1983 in EDPA.

The district court permitted Surrick to open a law

office in the district to practice in the district. The

ruling was affirmed. Surrick v. Killion, 449 F.3d 520

(3° Cir. 2006).

20 Local Rule Rule 83.6.VIi(I} of EDPA Rules of Civ.P. stated:

Any attorney who is reinstated may practice before the

coun notwitnstanding the refusal or failure of any state

court to reinstate scid attorney to practice. However,

reinstatement to practice before this court does not

authorize an attorney to practice in any other jurisdiction,

and an attorney shall not hold out himself or herself as

authorized to practice law in any jurisdiction in which the

attorney is not admitted. [449 F.3d at 531.]

. 30.

The Third Circuit relied on Frazier v. Heebe, 482

U.S. 641, 647 n.7 (1987) (“disqualification from

membership from a state bar does not necessarily

lead to disqualification from a federal bar.”);

Theard v. United States, 354 U.S. 278, 282 (1957);

Selling v. Radford, 243 U.S. 46, 49 (1917); Chambers

v. NASCO, Inc. 501 U.S. 32, 43 (1991); In re Poole,

222 F.3d 618, 622 (9! Cir. 2000) (“[A]s nearly a

century of Supreme Court precedent makes clear,

practice before federal courts is not governed by

state court rules."). “This power is rooted in both

statute, see 28 U.S.C. § 2071(a} ...; 28 U.S.C. § 1654

Rule 83 [Fed.R.Civ.P.], and the inherent

authority of the federal courts [citing Chambers].”

449 F.3d at 531.

The Third Circuit (p.530) held that the case

indisputably involved “conflict preemption” [under

the Supremacy Clause, 19a] “which arises when

‘state law stands as an obstacle to the

accomplishment and execution of the _ full

purposes and objectives of Congress.’ Fid. Fed.

Sav. & Loan Ass’n v. De la Cuesta, 458 U.S. 141,

152, 153 ... {1982)”" (cit. om.). The court cited

Sperry v. Flonda ex rel. Florida Bar, 373 U.S. 379

(1963), and In re Desilets, 291 F.3d 925, 930 (6'» Cir.

2002) (“When state licensing laws purport to

prohibit lawyers from doing that which federal law

entitles them to do, the state law must give

way.”).2!

2! Court added this note:

See In re Desilets, 291 F.3d at 329 (observing that although

the enabling Congressional statute in Sperry expressly

authorized federal authorities to determine who may

practice law and 28 U.S.C. §§ 1654 & 2071 do not, this is a

94s

More broadly, the Surrick court stated (p.532):

Federal law preempts not only state laws that

expressly prohibit the very act the federal law

allows, but those that “stand as an obstacle to

the accomplishment of the full purposes and

objective” of federal law. Thus, federal and

state law need not be contradictory on their

faces for preemption to apply. It is sufficient

that the state law “impose[s] ... additional

conditions” not contemplated by Congress.

[cits.om.]

The reasons for the broad construction of the

Supremacy Clause are plain. If preemption only

applied to state laws that directly contradict

federal laws, federal laws could be effectively

nullified by state laws prohibiting those acts that

are incident to, but not specifically authorized

by, federal law. Under such a regime, state

officials would have a “virtual power of review”

over federal laws.

The Sumick court wisely observed § (p.534):

“{[P]reemption analysis does not involve a

balancing of state and federal! interests.” The

court continued (p.535):

Although consistency between state and

federal courts is desirable in that it promotes

respect for the law and prevents litigants from

‘distinction without a difference’); cf. United States v.

Hvass, 355 U.S. 570, 575 (1968) (holding that rules and

regulations promulgated by a district court that have

been lawfully authorized and have a clear legislative

base qualify as 'a law of the United States’ ....). [449 F.3d

at 532.]

forum-shopping, there is nothing inherently

offensive about two sovereigns reaching

different legal conclusions. Indeed, such results

were contemplated by our federal system, and

neither sovereign is required to, nor expected

to, yield to the other.

The Third Circuit noted (p.535): “While this case

was pending, the [EDPA] adopted [a new local

rule] which requires federal reinstatement to be

held in abeyance until reinstatement to state

practice has been decided.” In a domain where

federal interest should be high (membership in its

own bar), a federal court bowed to state pressure.

Cf. Hanna v. Plumer, 380 U.S. 460 (1965). It did not

act like a representative of an independent

sovereign. Cf. Theard v. United States, 354 U.S. 278

(1957).

The Fifth Circuit did essentially the same thing

below. “This court's practice"22 is nothing but a

repudiation of Theard and Frazier, both of which

reversed the Fifth Circuit; and they demand

supervisory certiorari to condemn creeping

federal homogenization of federal and state

attorney disciplinary proceedings.

5. THERE IS CONFLICT WHETHER FEDERAL COURTS

CAN APPLY CONCLUSIVE PRESUMPTIONS UTILIZED

IN STATE PROCEEDINGS. In Sandstrom v. Montana,

22 “This court's practice,” as identified in the Order and

implicit in the 2007 opinion, constitutes the regulation of

commerce among the several states. But this responsibility is

confined to Congress, not to the federal courts, and the Fifth

Circuit's “practice” violates the Commerce Clause of Art. |,

Sec. 8, Cl. 3 (19a). Cf. Goldfarb v. Virginia State Bar, 421 U.S.

773, 785-86 (1975).

atone

442 U.S. 510 (1979), the Court held unconstitutional

this Conclusive Presumption: the law presumes a

person intends the ordinary consequences of his

voluntary acts. Recently, in Chaidez v. Gonzales,

486 F.3d 1079, 1085 (9'F Cir. 2007}, the court voided

another conclusive presumption: the U.S. Postal

Service properly discharges its duties in serving

process on aliens. In Frazier v. Heebe, this Court

held that a conclusive presumption that MS-

resident lawyers are not qualified to be members

of EDLA bar infringed principles of right and justice.

Applying these cases, GA factfinders were the

Special Master and Review Panel, not the GA

Supreme Court. Recognizing itself as a

constitutional court only, the GA court has

repeatedly held that factfinding is concluded

once the Review Panel determines the facts based

on the Special Master's report. in re Morse, 456

S.E.2d 52 (Ga. 1995); In re Perry, 622 S.E.2d 334 (Ga.

2005); In re Ellison, 627 S.E.2d 25 (Ga. 2006); cf.

Chambers v. Navarre, 498 S.E.2d 173 (Ga.App.

1998) (appellate factual inference contrary to

uncontradicted record evidence is outside court's

junsdiction under GA Const.). The GA Supreme

Court employed a Conclusive Presumption (of

deliberate ignoring of unidentified mail slips in a

shared post office box) to overwhelm the contrary

unanimous findings of fact of the Special Master

and Review Panel. This violated Sandstrom's

notion of 14 Amdt. Due Process. In federal court

this would abridge principles of right and justice

under Frazier v. Heebe. Certiorari would disabuse

federal courts that federal law is defined by a

state's notion of 14'? Amat. Due Process.

6. THERE IS CONFLICT WHETHER “THIS COURT'S

PRACTICE” IS DISGUISED RESIDENCY TEST INVALID

UNDER FRAZIER PRINCIPLES OF RIGHT AND JUSTICE.

A citizen has an Art. IV, Sec. 2 (19a) “privilege and

immunity” to travel from one state to another.

Saenz v. Roe, 526 U.S. 489 (1999). Petitioner's son’s

recent hospitalization in CA (Aff.March 30, 2007)

means that Petitioner must be free to travel to

another state to earn sufficient income to support

his son. An obvious target state would be NY

where Petitioner is licensed to practice law.

Requiring Petitioner to become readmitted in GA

and pay dues while resuming the practice of law

in NY would unduly burden Petitioner from

relocating to NY. “This court’s practice”

impermissibly dilutes the privilege and immunity to

travel freely from one state to another. In

essence, the Fifth Circuit is imposing a Bar

residency requirement on Petitioner -- which

device was struck down under principles of right

and justice in Frazier v. Heebe, 482 U.S. 641(1987).

Cf. Barnard v. Thorsten, 489 US. 546 (1989):

Supreme Ct. of NH v. Piper, 470 U.S. 274 (1985);

Supreme Ct. of VA v. Friedman, 487 U.S. 59 (1988).

7. THERE IS CONFLICT REGARDING PROCEDURE FOR

CONDUCTING RECIPROCAL PROCEEDINGS under

5h Amadt., 28 U.S.C. §§46(c}, 2077(a), Rules 27(c},

46, Fed.R.App.P. (20a-21la). See cases cited in

cert. petition, 10-15, 17-25, No. 06-738 (Sup.Ct.U.S.

Nov. 22, 2006). Christianson, 486 U.S. at 818.

CONCLUSION: Please grant certiorari.

Respectfully submitted,

Winford Kent Bishop

Filed: August 10, 2007

Charles R. Fulbruge, Ill, Clerk

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-29

IN RE WINFORD KENT BISHOP

August 9, 2007

Before JONES, Chief Judge, and REAVLEY and

SMITH, Circuit Judges.

Per Curiam:

In 1994, after being disbarred by the Supreme

Court of Georgia, Winford Kent Bishop was

removed from the roll of attorneys licensed to

practice in this court by an order of the Chief

Judge imposing reciprocal discipline.

In 2006, Bishop filed a petition for readmission. This

petition, which had been incorporated in a

petition for writs of mandamus and prohibition,

and for other relief, was denied by an order of the

Chief Judge dated November 9, 2006. Bishop

now asks the court to reconsider the denial of his

petition for readmission.

Bishop asserts that he shouid never have been

reciprocally disciplined in the first place, and that

he should be readmitted now, because he was

not provided notice of the Georgia state

proceedings in G@ manner consistent with due

process. Bishop was disbared by the Supreme

Court of Georgia after failing to respond to notices

of investigation sent by certified mail, and failing

to respond to a notice of discipline sent by

registered mail, to his office address of record.!

The Supreme Court of Georgia concluded that

while the address to which the notices had been

sent was no longer Bishop's correct mailing

address, the notices had been forwarded to a

post office box actually used by Bishop for the

receipt of mail. The notices were nevertheless

retuned unclaimed. The Georgia court

determined that the facts before it formed the

' Bishop learned about the disbarment from the newspaper,

and objected arguing lock of notice. The court vacated the

disoarment order ond refered the motter to a special

master to investigate the adequacy of notice. The special

master conducted a hearing, at which post office

employees testified regarding mail slips being placed in

Bishop's post office box. The special master found that the

bar complied with notice requirements, but recommended

that the disbarment be set aside and that Bishop be allowed

to address the underlying charges against him because

Bishop did not have actual knowledge of the disciplinary

proceedings. The review panel agreed. but the Supreme

Court of Georgia rejected this recommendation. Matter of

Bishop, 264 Ga. 241, 242, 442 S.E.2d 734. 735 (Ga. 1994), cert.

denied, 513 U.S. 987, 115 S.Ct. 483 (1994).

basis for a reasonabie inference that Bishop did

not receive the notices because he deliberately

ignored the mail slips placed in the post office

box. Matter of Bishop, 264 Ga. at 242, 442 $.E.2d

at 735. We see no impediment under Selling v.

Radford to the Georgia court's choosing to disbar

an attorney who failed to respond to such

notices.?

Our conclusion that Bishop's disbarment by

Georgia allowed us, consistently with Selling, to

impose reciprocal! discipline, is supported by

Bishop's history in the federal courts in Georgia.

He was reciprocally disbarred by the Eleventh

Circuit, and certiorari was denied by the Supreme

Court. In re Bishop, 11 Cir. No. 94-1133, January

5, 1995 (unpublished), cert. denied, 516 U.S. 880,

116 S.Ct. 215 (1995).

In 1998 the Eleventh Circuit remanded to the

Northern District of Georgia the district court's

reciproca! disbarment proceeding because it had

not engaged in a Selling analysis. After a

disciplinary committee investigation and an

evidentiary hearing. the Northern _ District

2 When considering reciprocal discipline based on a state

court discipline order, the Supreme Court has held that a

federal court should recognize. and give effect to. the

“condition created by the judgment of the state cour

unless, from an intrinsic consideration of the state record.” it

appears that the state proceedings was wanting in due

process, that the evidence of misconduct was insufficient, or

that other grave reason exists not to impose reciprocal

discipline. Selling v. Radford, 243 U.S. 46, 51, 37 S.Ct. 377

(1917).

considered, pursuant to Selling, the same due

process issues raised by Bishop before this court,

and imposed reciprocal discipline. The Eleventh

Circuit affirmed. In re Bishop, 11 Cir. No. Q2-

12061, October 2, 2002 (unpublished), cert.

denied, 539 U.S. 943, 123 S.Ct. 2620 (2003).

Bishop also argues that the fact that he remained

a member in good standing of some other courts

(i.e., that these other cours did not impose

reciprocal discipline) supports his position that he is

eligible for readmission now. Membership in good

standing in the bars of other jurisdictions does not

prevent the imposition of reciprocal discipline nor

require readmission after reciprocal discipline has

been imposed. Bishop's arguments are directed

principally at the propriety of his original

disbarment by the Supreme Court of Georgia,

and, having concluded that that proceeding

satisfied the tests required by Selling, we do not

find sufficient reason to exercise our discretion to

readmit Bishop when he has not been readmitted

by Georgia.

The petition is DENIED.

Filed: November 9, 2006

Received: Nov. 14, 2006

Charles R. Fulbruge, Ill, Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ORDER

On April 18, 1994 the Supreme Court of Georgia

entered an order disbarring Winford Kent Bishop. !

The Fifth Circuit issued Mr. Bishop an order to show

cause why reciprocal discipline should not be

imposed, and after considering Mr. Bishop's

response, entered an order disbarring him. Mr.

Bishop’s subsequent petition to vacate the

disbarment and to assign the proceeding to a

three-judge panel for rehearing was denied.2

Mr. Bishop now moves for readmission to the bar

of this court.3 However, we have received no

‘in re: W. Kent Bishop, 264 Ga. 241, 442 $.£.2d 734 (Ga. 1994),

cert. denied, 513 U.S. 987, 115 S.Ct. 483 (1994), reh'g denied,

513 U.S. 1105, 115 S.Ct. 786 (1995).

2 The Eleventh Circuit imposed reciprocal! discipline, and Mr.

Bishop's petition for certiorari was denied. Bishop v. State Bar

of Georgia, 516 U.S. 880, 116 S.Ct. 215 (1995), reh'g denied,

516 U.S. 1003, 116 S.Ct. 554 (1995). The Eleventh Circuit also

affirmed reciprocal discipline imposed by the district court

for the Northem District of Georgia. In re Bishop, 52

Fed.Appx. 493 (11' Cir. 2002) (unpublished), cert. denied,

§39 U.S. 943, 123 S.Ct. 2620 (2003).

3 Mr. Bishop's Petition for Readmission was joined with

Petitions for Writ of Mandamus and for Writ of Prohibition,

which were denied by the court in a per curiam opinion. In

information that Mr. Bishop has sought readmission

to the Georgia bar. Absent — unusual

circumstances, it is this court's practice to

condition readmission on the resumption of active

status in good standing with the bar of the original

disciplining court. Mr. Bishop’s submissions do not

make out sufficient reasons for a departure from

this practice, and therefore

IT IS ORDERED that Winford Kent Bishop's Petition

for Readmission is DENIED.

Done this 4" day of November, 2006.

s/ Edith H. Jones

EDITH H. JONES

CHIEFJUDGE

Re: Winford Kent Bishop, 5'* Cir. No. 06-00029 (August 8,

2006). In this document, Mr. Bishop asked that the court

“schedule oral argument on this petition.” To the extent that

Mr. Bishop sought oral argument on his petition for

readmission, this request is denied.

Filed: August 8, 2006

Charles R. Fulbruge, Ill, Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-00029

IN RE: WINFORD KENT BISHOP,

Petitioner.

Petition for Writs of Mandamus and Prohibition

to the United States Court of Appeals

for the Fifth Judicial Circuit

and Petition for Readmission to the Fifth Circuit Bar

Before SMITH, GARZA, and CLEMENT, Circuit

Judges.

PER CURIAM:

Winford Kent Bishop has filed in this court a pro

se petition for a writ of mandamus, a writ of

prohibition, and a petition for readmission to the

Fifth Circuit Bar. Bishop, an attorney, argues that

his 1994 disbarment in Georgia was

unconstitutionally contrived and that this court

also unconstitutionally disbarred him from practice

before us in 1994. He argues that then-Chief

Judge Henry A. Politz could not act unilaterally in

disbarring him from the Fifth Circuit, that he was

entitled to an explanation, and that his disbarment

was impermissibly based on the flawed Georgia

disbarment.

As relief, Bishop asks that we direct the Clerk of

the Fifth Circuit Court of Appeals to assign Bishop’s

disbarment proceeding to a regular three-judge

pane! and to send Bishop a copy of our non-

public court policies. He asks that we direct the

Fifth Circuit Court of Appeals to vacate his July 15,

1994, disbarment, [page 2] prohibit the chief

judge from adjudicating the proceeding as a one-

judge matter, readmit him to the Bar of the Fifth

Circuit, and schedule oral argument on. this

mandamus petition.

The All Writs Act, 28 U.S.C. § 1651(a), sets out the

limits of our mandamus authority: “The Supreme

Court and ail courts established by Act of

Congress may issue all writs necessary or

appropriate in aid of their respective jurisdictions

and agreeable to the usages and principles of

law." The writ of mandamus “has traditionally

been used in the federal courts only to confine an

inferior court to a lawful exercise of its prescribed

jurisdiction or to compel it to exercise its authonty

when it is its duty to do so." Allied Chemical Corp.

v. Daiflon, Inc., 449 U.S. 33, 35 (1980) (citations and

internal quotation marks omitted). “As the

jurisdiction of the circuit court of appeals is

exclusively appellate, its authority to issue writs of

mandamus is restricted by statute to those cases

in which the writ is in aid of that jurisdiction.”

Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25

(1943).

This court has no “appellate” jurisdiction over

proceedings concerning admission to practice

law before us. Accordingly, we lack jurisdiction to

entertain Bishop's requested relief. Bishop's

motion to incorporate the record’ from

proceedings in 1993 and 1994 is denied as moot.

PETITIONS DENIED; MOTION DENIED AS MOOT.

10a

Filed: July 15, 1994

Charles R. Fulbruge, Ill, Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ORDER

W. Kent Bishop has filed a pleading entitled

“Respondent's Showing of Good Cause Why

Disbarment Should Not Be Ordered; Request For

Oral Argument, Evidentiary Hearing, and

Expedited Treatment”, in answer to this Court's

May 25, 1994 Show Cause Order. After review of

the response and extensive supporting materials,

the Requests for Oral Argument and an Evidentiary

Hearing are DENIED; the Request for Expedited

Treatment is DENIED as moot, and it is HEREBY

ORDERED that W. Kent Bishop be disbarred from

practice before this court, effective this 11th day of

July, 1994.

s/ Henry A. Politz

Henry A. Politz

Chief Judge

United States Coun of

Appeals for the Fifth

Circuit

lla

Filed: October 12, 2007

Charles R. Fulbruge, Ill, Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-00029

In Re: WINFORD KENT BISHOP

Petitioner

ON PETITION FOR REHEARING AND REHEARING EN

BANC

Before JONES, Chief Judge, and REAVLEY and

SMITH, Circuit Judges.

PER CURIAM:

(X) Tne Petition for Rehearing is DENIED and no

member of this panel nor judge in regular active

service on the court having requested that the

court be polled on Rehearing En Banc,

(Fed.R.App.P. and 5' Cir. R. 35) the Petition for

Rehearing En Banc is also DENIED.

12a

( ) The Petition for Rehearing is DENIED and the

court having been polled at the request of one of

the members of the court and a majority of the

judges who are in regular active service and not

disqualified not having voted in favor, (Fed.R.

App.P. and 5' Cir. R. 35) the Petition for Rehearing

En Banc is also DENIED.

( ) Amember of the court in active service

having requested a poll on the reconsideration of

this cause en banc, and a majority of the judges in

active service and not disqualified not having

voted in favor, Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

s/ Edith H. Jones

United States Circuit Judge

REHG-4A

13a

Filed: October 4, 2006

Charles R. Fulbruge, Ill, Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-00029

WINFORD KENT BISHOP

Petitioner

--<-e8f ewe weeenwaneneenenener ee ee we ewww nn ne ei ee ewww wenn er ew ew oe

Petition for Writs of Mandamus and Prohibition

to the United States Court of Appeals

for the Fifth Judicial Circuit

and Petition for Readmission to the Fifth Circuit Bar

--—-— — @— wwe www wn Wnnn nn wn ew ww wnnnnwn nnn ewe eww er =

ON PETITION FOR REHEARING AND REHEARING EN

BANC

(Opinion 08/08/06, 5 Cir.. , F.3d

—

Before SMITH, GARZA, and CLEMENT, Circuit

Judges.

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no

member of this pane! nor judge in regular active

14a

service on the court having requested that the

court be polled on Rehearing En Banc,

(Fed.R.App.P. and 5'F Cir. R. 35) the Petition for

Rehearing En Banc is also DENIED.

( ) The Petition for Rehearing is DENIED and the

court having been polled at the request of one of

the members of the court and a majority of the

judges who are in regular active service and not

disqualified not having voted in favor, (Fed.R.

App.P. and 5 Cir. R. 35) the Petition for Rehearing

En Banc is also DENIED.

( ) Amember of the court in active service

having requested a poll on the reconsideration of

this cause en banc, and a majority of the judges in

active service and not disqualified not having

voted in favor, Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

s/ Jerry Smith

United States Circuit Judge

REHG-4A

l5a

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

CHARLES R. FULBRUGE III TEL. 504-589-6514

CLERK 600 CAMP STREET

NEW ORLEANS, LA. 70130

August 4, 1994

Mr. W. Kent Bishop

Attorney at Law

P.O. Box 11813

Atlanta, Georgia 30355

Dear Mr. Bishop:

| forwarded your “Petition to Vacate Void,

Single-Judge Order Coram Non _ Judice, To

Appeal/Assign Proceedings to Established Three-

Judge Panel, for (Re)nearing, and Suggestion for

(Re)hearing en banc" to the Cour.

| have been directed to advise you that this

matter will not be referred to a three-judge panel,

nor heard en banc, nor will a special master be

appointed.

When the Eleventh Circuit concludes its action

on your case, piease advise us of the results. Until

that time, your name will remain removed from

the rolls of attorneys permitted to practice before

this Court, and the Order entered July 15, 1994

remains intact.

16a

Sincerely,

s/ Charles R. Fulbruge ili

Charles R. Fulbruge Ill

17a

Email dated June 13, 2006, from Fifth Circuit

Deputy Clerk Saltzman

(Shelley_Saltzman@ca5.uscourts.gov) to Petitioner

(wkentbishop@hotmail.com):

Dear Mr. Bishop:

Further to your telephone inquiry this morning,

please be advised that this court follows the

procedures set out in FRAP 46 governing

attorney admissions and attorney discipline.

With regard to your question about the

delegation of such matters to the chief judge

(rather than a three-judge panel as happens

in other circuits), please be advised further

that this court's internal policies provide that

the chief judge, or a designee, shall handle all

suspensions, removals from the court's roll, and

other disciplinary matters. These policies were

most recently affirmed in January 2006.

The court's internal policies are not for public

distribution and | am, therefore, unable to

provide you with a copy.

Yours sincerely,

Shelley E. Saltzman

Deputy Clerk

Court of Appeals for the Fifth Circuit

600 S. Maestri Place

New Orleans, LA 70130

Tel: 504-310-7700

18a

Email dated October 6, 2006, from Fifth Circuit

Deputy Clerk Lopez

{Allison_Lopez@ca5.uscourts.gov) to Petitioner

(wkentbishop@hotmail.com):

You may serve the Clerk of Court with a courtesy

copy of your petition filed with the Supreme

Court.

Email dated October 6, 2006, from Petitioner to

Ms. Lopez:

October 6, 2006

Ms. Lopez:

| have a present intention to seek in the Supreme

Court of the United States a writ of certiorari to

the Fifth Circuit.

| presume that this email will fulfill any duty to

give notice.

Whom should | list in the Proof of Service of the

Petition — the Court itself, the Clerk of Court, or

the individual judges?

Thank you, Kent Bishop

19a

CONSTITUTIONAL & STATUTORY PROVISIONS

INVOLVED IN THIS PETITION

Art. |, Sec. 8, Ci. 3 (“The Commerce Clause”):

“The Congress shall have Power ... To regulate

Commerce with foreign Nations, and among the

several States, and with the Indian Tribes....”

Art. IV, Sec. 1 (“The Full Faith and Credit

Clause”): “Full Faith and Credit shall be given in

each State to the public Acts, Records, and

judicial Proceedings of every other State. And the

Congress may by general Laws prescribe the

Manner in which such Acts, Records and

Proceedings shall be proved, and the Effect

thereof.

Art. IV, Sec. 2, Cl. 1 (“The Privileges and

Immunities Clause"): “The Citizens of each State

shall be entitled to all Privileges and Immunities of

Citizens in the several States.”

Ari. Vi Par. Il (“The Supremacy Clause”): “This

Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and alll

Treaties made, or which shall be made, under the

Authority of the United States, shall be the

supreme Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in the

Constitution or Laws cf any State to the Contrary

notwithstanding.”

The Fifth Amendment to the United States

Constitution states, in relevant part: “No person

Shall ... be deprived of life, liberty, or property,

without due process of law ....”

20a

The Fourteenth Amendment states, in relevant

part: “No State shall ... deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.”

Section 46(c) of Title 28 U.S.C. provides in part

that:

"Cases and controversies shall be heard and

determined by a court or panel of not more than

three judges ..., unless a hearing or rehearing

before the court in banc is ordered by a majority

of the circuit judges of the circuit who are in

regular active service. ***" (emphasis added).

Section 1738 of Title 28 U.S.C. (“State and

Territorial statutes and judicial proceedings; full

faith and credit”): The Acts of the legislature of

any State, Territory, or Possession of the United

States, or copies thereof, shall be authenticated

by affixing the seal of such State, Territory or

Possession thereto.

The records and judicial proceedings of any

court of any such State, Territory or Possession, or

copies thereof, shall be proved or admitted in

other cours within the United States and its

Territories and Possessions by the attestation of the

clerk and seal of the court annexed, if a seal exists,

together with a certificate of a judge of the court

that the said attestation Is in proper form.

Such Acts, records and judicial proceedings or

copies therof, so authenticated, shall have the

same full faith and credit in every court within the

United States and ifs Territories and Possessions as

they have by law or usage in the courts of such

2la

State, Territory or Possession from which they are

taken.

Section 2077(a) of Title 28 U.S.C. provides that:

“The rules for the conduct of the business of each

court of appeals, including the operating

procedures of such court, shall be published.”

(emphasis added).

Rule 27(c) of Fed.R.App.P. provides that: “(c)

Power of Single Judge to Entertain Motions. In

addition to the authority expressly conferred by

these rules or by law, a single judge of a court of

appeals may entertain and may grant or deny

any request for relief which under these rules may

properly be sought by motion, except that a

single judge may not dismiss or otherwise

determine an appeal or other proceeding, and

except that a court of appeals may provide by

order or rule that any motion or class of motions

must be acted upon by the cour. The action of a

single judge may be reviewed by the court.”

(emphasis added).

Rule 46(a) of Fed.R.App.P. provides that: “(a) An

attorney is eligible for admission to the bar of a

[federal] court of appeals if that attorney is of

good moral and professional character and is

admitted to practice before ... the highest court

of a state [.]”

Rule 47(b) of Fed.R.App.P. provides that: “(b) No

sanction or other disadvantage may be imposed

for noncompliance with any requirement not in

federal law, federal rules, or the local circuit rules

unless the alleged violator has been furnished in

the particular case with actual notice of the

requrement."

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.