# Petition for Writ of Certiorari — Bishop v. United States (No. 07-911) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0494%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text an 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 ' 1. 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 . 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 KA 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Frazier v. Heebe, 482 U.S. 641 (1988), in not readmitting Petitioner to its Bar by interposing “this court’s practice” (unpublished) of requiring readmission to original, out-of-circuit state court?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 19a 19a 20a 20a 20a 21a 2la 2la 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 1X 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 x1 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 XV 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) 1S 30 29, 32 1,14 10-12 13 ie 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. iv 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, me 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."). A 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 i 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 x 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 x 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. x “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). a 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. 7 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). 2. 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.] Re 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 oe 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 HP ie 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. a 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 la 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 2a 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). 3a 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). 4a 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. Sa 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 6a 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. 7a 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 8a 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 9a 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." --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0494%3A1. Public record. Not legal advice.