Petition for Writ of Certiorari — Mason v. United States

/ Sopremsé Court, U.S.

2 (\) PiL& DPD

9B1LOODDMNOV 4 19%

@pr tee OF THE CLERK

No. 97-

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1997

JERRY HOMER MASON

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Hon. Andrew M. Stephens

271 West Short Street

308 Security Trust Building

Lexington, Kentucky 40507

(606) 233-2232

Attorney for Petitioner

ae aT area aren

Nag

asedanileiinas tttinliteadaed hill taba Aol i heen emia

QUESTION PRESENTED FOR REVIEW

Does the Doctrine of Federal Abstention mandate

federal deferral of a criminal case when a state criminal

action pre-exists?

PARTIES TO THIS ACTION

The parties to this Petition are Jerry Homer

Mason, an incarcerated inmate who is serving a 135

month sentence.

The Respondent is the United States of America.

TABLE OF CONTENTS

i Question presenteu for review

ii Parties to the action

ili Table of Contents

iv Table of Authorities

1 Statement of Jurisdiction

2-5 Statement of the Case

6 Statement of Issue

7-12 Argument

13-27 Appendix - 6th Circuit Order of April 11, 1996

6th Circuit Order of August 5, 1996

Movant’s Motion for en banc review

TABLE OF AUTHORITIES

Younger vs. Harris, 401 U.S. 37 (1971), 91 S.Ct.

746

Litteral vs. Bach, 869 F. 2d sll (6th Cir. 1989)

Middlesex Co Co Vs.

Gardenstate Bar Associatio “ 457 USC 423, 102

S.Ct.

Abney vs. United States, 431 USC 651, 97 S.Ct.

2034 (1977)

Gillixm vs. Foster, 63 F.3d 287 (4th Cir. 1995)

Fe Co i i

Service Commission, 925 F.2d. 962 (6th Cir.

1991)

Kelm vs. Hyatt, 44 F.3d. 415 (6th Cir. 1995)

Parker vs. Commonwealth of Kentucky Board of

Dentistry, 818 F.2d. 504 (6th Cir. 1987)

Brecht v. Abrahamson, 113 S. Ct. 1710, 1722

(1993)

United States v. Ross, 40 F.3d 144, 146 (7th Cir.

1994)

United States v. Frady, 456 U.S. 152, 167-68

(1982)

Heath v. Alabama, 474 U.S. 82, 89 (1985)

Westfall _v. United States, 274 U.S. 256, 258

(1927)

United States v. Lanza, 260 U.S. 377, 382 (1922)

Strickland _v. Washington, 466 U.S. 668, 687

(1984)

Hill v. Lockhart, 474 U.S. 52, 59 (1985)

iv

STATEMENT OF JURISDICTION

This Court had a jurisdiction for a Petition for Writ

of Certiurari, in that Jerry H. Mason was convicted in the

United States District Court for the Western District of

Kentucky at Bowling Green in Criminal Action No. 1 :93-

CR-25-H. An appeal to the Sixth Circuit Court of Appeals

of a 28 USC § 2255 collateral petition was denied on

April 11, 1996 by the Sixth Circuit Court of Appeals in

Action No. 95-6122. A Petition for Re-hearing En Banc

was filed timely on June 10, 1996, which Petition was

denied by Order entered August 5, 1996, a copy of which

is attached. The Supreme Court now has statutory

authority to review this matter.

STATEMENT OF THE CASE

On August 12, 1993 the Movant was indicted by

the Clinton Circuit Court, a state Circuit Court of trial

jurisdiction, in indictment No. 93-CR-00016, for the

offense of cultivating marijuana, which is a Class D felony

under Kentucky law, allowing upon a plea or finding of

guilt a sentence from 1 to 5 years in the penitentiary.

That indictment charges certain conduct which occurred

on or about the 28th day of May, 1993 in Clinton

County, Kentucky, which is located in the western judicial

district of the United States District Court.

On October 20, 1993, the Defendant entered a

guilty plea to a felony charge before the Clinton Circuit

Court according to the terms of the original indictment.

On the exact day that the Movant’s plea of guilty was

entered in state court, a federal grand jury sitting at

Bowling Green, Kentucky in and for the western district

of the United States District Court indicted the Petitioner

for a violation of Title 21 USC § 841(a)(1) in a 2 count

indictment. Thereupon, on November 16, 1993 the

Movant's state Court counsel filed a Motion to withdraw

the Clinton Circuit Court guilty plea, the Court there

entering its Order on November 18, 1993, setting aside

the guilty plea in the Clinton Circuit Court, which then

allowed the federal indictment to proceed.

On March 14, 1994, the Movant plead guilty to

both counts of the federal indictment pursuant to the

terms of the written plea agreement. On July 16, 1994,

the Movant was sentenced to 135 months on both counts

of the federal indictment and this is the sentence under

which he now labors.

The Movant did not seek an appeal directly of

either his guilty plea or the sentence thereon to the

United States Sixth Circuit Court of Appeals. However,

on April 16, 1994, the Movant filed a Motion to vacate,

set aside or correct a sentence pursuant to 28 USC §

2255, alleging that his federal conviction was in violation

of the double jeopardy clause found in the Fifth

Amendment of the United States Constitution and that his

attorney's failure to raise that issue as a defense denied

him effective assistance of counsel.

On August 3, 1994, the Federal District Court,

which had taken his guilty plea, denied the Movant's

Motion for collateral relief.

The Movant then filed an appeal to the Sixth

Circuit Court of Appeals in action No. 95-6122, in an for

the Sixth Circuit Court of Appeals in a pro se fashion.

The Sixth Circuit Court of Appeals denied his Petition for

relief.

It is unfortunate, but necessary, to point out that

the original Petition to set aside his conviction for

ineffective assistance of counsel was done pro se, as was

his original appeal frorn the District Court’s denial of that

request for relief. Regrettably, Mr. Mason waited until

literally the last minute to retain counsel, who determined

after a brief review that the oniy relief was a suggestion

for Petition for review en banc to the Sixth Circuit Court

of Appeals.

As this Court is aware, once the Court of Appeals

makes a ruling on the merits for a Petition for collateral

relief under § 2255, he in effect has basically exhausted

his appeal, however, there is room for leave to file a

Motion for suggestion for rehearing en banc, which was

accomplished on June 10, 1996. For the first time in that

Petitioner, the Doctrine of Federal Abstention, as set forth

in Younger vs. Harris, was raised, albeit in a nearly

untimely fasnion. |

The Supreme Court is now asked to review an

issue that while raised at the very last moment was,

counsel believes, timely raised and relevant for review.

STATEMENT OF ISSUE

The Movant does not specifically challenge any

statue, treaty, rule or regulation, but does attack by lack

of review the Federal Abstention Doctrine as set forth in

Younger vs. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971).

ARGUMENT

While it must be candidly pointed out at the outset

that the Federal Abstention Doctrine as espoused in

Younger vs. Harris, 401 U.S. 37, 91 S.Ct. 746, was not

raised until a suggestion for a Petition for rehearing en

banc before the Sixth Circuit Court of Appeals by

undersigned counsel, it is urged that the Court may

conduct a de novo review of a District Court’s lack of an

abstention question, even though not raised below.

Litteral vs. Bach, 869 F.2d 297 (6th Cir. 1989). The

abstention required must as a threshold determined

whether or not there is an ongoing state judicial

proceeding and whether or not those proceedings

implicate an important state interest and then, thirdly,

whether or not there is an adequate opportunity in the

state proceeding to raise constitution challenges to a state

interest. Middlesex County Ethics Commission vs.

Gardenstate Bar Association, 457 US 423, 102 S.Ct. 2515

(1982).

It is clear that the state Court by indicting the

Movant for the same offense for which he was charged in

the federal indictment did consider a valid a state interest

at hand. Obviously, a violation of the laws of the

Commonwealth of Kentucky is a valid state interest and

a prosecution was initiated, the Movant arraigned and

plead guilty, and presumably, but for the concurrent

federal indictment, would have been sentenced under

Kentucky law. The Doctrine of Federal Abstention as set

forth in Younger vs. Harris sets forth mandate to permit

State Courts to try state cases free from interference by

the Federal Courts. The Movant has a right to expect

that when prosecuted in a State Court that he is free from

federal prosecution for the same exact acts and that he

has a right to expect freedom from double prosecution as

raised by his double jeopardy argument in the Court

below that the Federal Court should be preempted and

abstain jurisdiction so as not to subject the Movant to the

same ordeals as a federal trial. See Abney vs. United

States, 431 US 651, 97 S.Ct. 2034 (1977). Indeed, if the

criteria as noted above are met, the District Court must

dismiss the action whether or not its jurisdiction to hear

the case is raised in trial or not.

Citing Younger and Gilliam vs. Foster, 63 F.3d 287

(4th Cir. 1995), the Court stated that while the

prohibition against Federal Court interference is not

absolute, it is nonetheless strongly suggested that when

an adequate State Court remedy is present that the

Federal Court should abstain from exercising its

jurisdiction.

The Courts in all the Circuits have recognized that

a claim of violation of the double jeopardy clause is a

preeminent example of one of the very few unusual

circumstances justifying Federal Court intervention in a

state proceeding. The State Court proceeding in this case

was taken in good faith based upon a reasonable

certainty that the Movant had in fact violated Federal law

and it indicted the Movant, offered the terms of a plea of

guilty, and indeed a plea of guilty was had.

Curiously therefore, the Movant’s interest in having

his peace in the State Court criminal procedure was taken

in good faith and the Federal Court should have declined

to exercise any jurisdiction over an existing criminal

matter which had resulted on the same day in a guilty

plea to the original indictment in State Court. The

District Court should have therefore declined to exercise

jurisdiction in a federal indictment and allowed the State

Court action to proceed to sentencing consistent with the

strong federal policy of non-interference of pending state

judicial proceedings.

It is submitted that the facts of this case do not

maintain that level of "carefully circumscribed situations"

that the Federal Court should disrupt an ongoing state

judicial process. While the Movant herein would concede

that his counsel in fact did file a Motion to set aside the

State Court guilty plea, it is submitted that this Court

may review the appropriateness of the District Court’s

indictment at the outset and that by virtue of the double

jeopardy claim being made in the Movant’s collateral

Petition for relief, said claim is not waived.

There is no question that a state proceeding was

pending. In Federal Express Corporation vs. Tennessee

Public Service Commission, 925 F.2d. 962 (6th Cir.

1991). There is also no question that the State Court

proceeding was in place, which had resulted in a guilty

plea to conduct the very same that resulted from the

federal indictment the same day the guilty plea was

taken.

Secondly, it can not be argued under any

circumstances that there was not appropriate state

interest. See Kelm vs. Hyatt, 44 F.3d. 415 (6th Cir.

1]

1995). Since the application of the Younger doctrine is

absolute, a third prong of the Younger test has also been

satisfied, in that state procedures clearly allowed the

Plaintiff below, that is the Commonwealth of Kentucky,

the opportunity to litigate a violation of Kentucky’s penal

code which satisfies the third prong of the Younger test.

See Parker vs. Commonwealth of Kentucky Board of

Dentistry, 818 F.2d. 504 (6th Cir. 1987).

It is therefore respectfully submitted that the

Federal Court should have declined jurisdiction at the

very outset of the indictment and that the Movant herein

has not waived his right to a collateral attack of the

guilty plea in Federal Court by virtue of the abstention

doctrine.

ANDREW M. STEPHENS

ATTORNEY FOR THE PETITIONER

271 West Short Street

Security Trust Bldg., Suite 308

Lexington, Kentucky 40507

(606) 233-2232

12

APPENDIX

OPINIONS BELOW

NO. 6122

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JERRY H. MASON

Petitioner-Appellant,

ORDER

V.

UNITED STATES OF AMERICA,

Se

Respondent-Appellee.

BEFORE: MERRITT, Chief Judge, MILBURN, Circuit

Judge; and O’MALLEY, District Judge.

This pro se federal prisoner moves for pauper

status on appeal from a district court judgment denying

his motion to vacate sentence filed pursuant to 28 U.S.C.

§ 2255. This case has been referred to a panel of the

court pursuant to Rule 9(a), Rules of the Sixth Circuit.

Upon examination, this panel unanimously agrees that

oral argument is not needed. Fed. R. App. P. 34(a).

13

The Commonwealth of Kentucky charged Jerry

Homer Mason with cultivating marijuana. Mason pleaded

guilty to the state charge on the same day that a federal

grand jury returned an indictment charging him with

possession with intent to distribute over 3,000 marijuana

plans in violation of 21 U.S.C. § 841(a)(1) and

manufacturing over 3,000 marijuana plants in violation

of 21 U.S.C. § 841(a)(1). Mason pleaded guilty to both

counts contained in the federal indictment. The district

court sentenced Mason to 135 months in prison. Mason

did not appeal.

In his motion to vacate sentence, Mason claimed

that: 1) the district court convinced him in violation of

his rights under the Double Jeopardy Clause of the Fifth

Amendment; and 2) defense counsel rendered ineffective

assistance of counsel in violation of his rights under the

Sixth Amendment.

The district court concluded that Mason’s double

jeopardy claim lacked merit and that defense counsel’s

assistance was not constitutionally defective. Therefore,

the district court denied Mason’s motion to vacate

sentence. Mason appeals that judgment.

In his timely appeal, Mason reasserts the claims he

set forth in the district court.

In order to obtain relief under § 2255 on the basis

of a constitutional error, the record must reflect an error

of constitutional magnitude which had a substantial and

injurious effect or influence on the proceedings. See

Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 (1993); see

also United States v. Ross, 40 F.3d 144, 146 (7th Cir.

1994) (applying Brecht to § 2255 motion to vacate).

Mason is barred from seeking relief on his first

claim. This claim would have been but was not raised on

direct appeal. Under ihese circumstances, in order to

obtain review, Mason must demonstrate cause and

prejudice to excuse his failure to raise his claim on

appeal. See United States v. Frady, 456 U.S. 152, 167-68

(1982). Mason has not demonstrated cause and none is

otherwise apparent from the record. Furthermore, it is

clear that Mason can show no prejudice as his claim is

without merit for the following reason.

In support of his first claim, Mason contends that

because he pleased guilty in state court, the federal

conviction for the same conduct violates the Double

Jeopardy Clause of the Fifth Amendment. The state and

federal governments may punish the same conduct.

Heath v. Alabama, 474 U.S. 82, 89 (1985) (citing

Westfall v. United States, 274 U.S. 256, 258 (1927)).

Although the Double Jeopardy Clause forbids successive

prosecutions of a defendant for the same offense, no Fifth

Amendment violation occurs where a defendant is

prosecuted for the same act by both state and federal

authorities. See United States v. Lanza, 260 U.S. 377,

382 (1922). Because the Commonwealth of Kentucky

16

and the federal government are separate sovereigns,

Mason’s state and federal convictions for the same offense

do not violate his rights under the Double Jeopardy

Clause. See Heath, 474 U.S. at 89. Thus, Mason’s claim

is meritless and cannot provide the prejudice required by

the cause and prejudice analysis. See Frady, 456 U.S. at

167-68.

Mason’s claim that he received ineffective

assistance of counsel is without merit. To establish

ineffective assistance of counsel, it must be shown that

counsel’s performance was deficient and that the deficient

performance prejudiced the defense so as to render the

trial unfair and the result unreliable. Strickland _ v.

Washington, 466 U.S. 668, 687 (1984). In the guilty

plea context, Mason must show that a _ reasonable

probability exists that, but for counsel’s errors, he would

have not pleaded guilty and would have insisted on going

to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Mason

17

contends that he received ineffective assistance of counsel

because his attorney moved to withdraw the state court

guilty plea and thus deprived him of a double jeopardy

defense. As it has already been shown that Mason’s

double jeopardy claim is without merit, he was not

prejudiced by any allegedly deficient performance by

defense counsel.

Accordingly, we hereby grant Mason in forma

pauperis status for the limited purpose of review on

appeal and affirm the district court’s judgment. Rule

9(b)(3), Rules of the Sixth Circuit.

18

APPENDIX

NO. 95-6122

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JERRY H. MASON )

Petitioner-Appellant, .

V. . ORDER

UNITED STATES OF AMERICA,

Respondent-Appellee. .

BEFORE: MERRITT, Chief Judge, MILBURN, Circuit

Judge; and O’MALLEY, District Judge.

The Court having received a petition for rehearing

en banc, and the petition having been circulated not only

to the original panel members but also to all other active

judges of this court, and no judge of this court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the

original panei.

The panel has further reviewed the petition for

19

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. Accordingly the

petition is denied.

20

APPENDIX

ARGUMENT - MOTION FOR EN BANC REVIEW

The Younger vs. Harris Doctrine of Federal

Abstention should have been raised pre-plea and/or in a

direct Appeal and/or in a 2255 Petition and should not

be deemed waived. Younger vs. Harris, 401 U.S. 37, 91

S.Ct. 746.

At the outset, undersigned Counsel reminds himself

and the Court that the issue of Federal Abstention has not

been raised at any point prior to Counsel’s involvement,

although the Petitioner would urge the Court not to

ignore a matter that may bring the issue of Federal

jurisdiction into question, despite such issue not having

been raised to this point. See Thermice Corp. vs. Vistron,

832 F.2d 248 (3rd Cir. 1987). Assuming for the moment

that the issue of not having raised this matter previously

is one which may affect jurisdiction and therefore can not

be waived, Counsel would urge review of the Younger

21

Abstention Doctrine.

As the Court is aware, the Younger Abstention

Doctrine requires a Federal District Court to abstain from

exercising jurisdiction if the criteria set forth therein are

all met:

ai The State judicial proceeding must be

ongoing;

2. The State proceedings must implicate an

important State interest; and

3. The State proceeding must offer an

adequate opportunity to litigate the Federal constitutional

issues. See Kenneally vs. Bungreen, 967 F.2d 329 (9th

Cir. 1992).

It is submitted that even thought there are limited

exceptions to the Younger Abstention Doctrine, the facts

contained in this Petition do not fit within those

exceptions.

Hence, this Court is asked to review the facts of

22

this situation to determine that, in fact, all three Younger

elements are present and that the matter warrants review.

Was there a State judicial proceeding ongoing?

Obviously, there was. The Defendant/Petitioner had

originally been charged in the Clinton Circuit Court with

a violation of Kentucky State Law arising out of the very

same facts which resulted in the indictment and guilty

plea in Federal Court. The allegations contained in the

State Court indictment were that the Petitioner in Clinton

County, Kentucky manufactured marijuana in violation of

Kentucky law. It is obvious that the State Court

proceedings, and indeed the Trial Court, was aware of the

possibility of an ongoing Federal investigation, as the

Joint Appendix reflects two hearings where reference to

same was made on the record. Ultimately, the Defendant

entered a guilty plea to the State Court proceeding, which

is the centerpiece of any criminal case, which results in

the finding of guilt by a trier of fact or entry of a guilty

plea. Clearly, the element No. 1 of the Younger

Abstention Doctrine is in place, as noted by the record

herein.

Was the State proceeding indicative of an

important state interest? As the United States has stated

in its various Briefs in opposition to the pro se Petitions

filed by the Petitioner herein, the Kentucky State Police

acting in a conjunctive effort with other law enforcement

agencies to eradicate the growing of and sale of

marijuana, televised the Petitioner near a field containing

literally thousands of growing marijuana plants. Clearly,

the State has an interest in prohibiting its citizens from

manufacturing and trafficking in marijuana, and this is a

recognized State interest clearly.

Thirdly, did the State proceeding offer an adequate

opportunity to litigate Federal constitutional issues? The

only constitutional issue involving the State proceeding,

24

along with the Federal proceeding, was whether or not

the Defendant would be appropriately punished for his

conduct, as allegedly having violated the Kentucky

Revised Statutes. It is submitted that since the Defendant

was changed in State Court with a violation that could

wind up with his imprisonment of one to five years in a

State penitentiary, that the issues concerning his criminal

culpability were and, in fact, could be adequately

disposed of by a guilty plea to a felony in the Clinton

Circuit Court, which, of course, did occur. Taken as a

whole, the Younger Abstention Doctrine mandates a

dismissai of the Federal District Court indictment.

Since the Younger vs. Harris Doctrine was first

announced, the Supreme Court seems to have been firm

in requiring its holding to be followed. Ina related case

where criminal proceedings in the State Court had not

even been instituted against Plaintiffs in Federal District

Court who sought an injunction, the Court nevertheless

25

held that when the State complaint is filed after the

action in District Court has begun, but before any Federal

proceedings of substance have occurred, that the Younger

provisions apply in full force. Here the case is even

stronger for the Abstention Doctrine, as when the Federal

case was begun by indictment the State proceeding had

already resulted in an arraignment, a pre-trial conference

and a guilty plea, so that clearly the State action had

been initiated, pursued and maintained. See Hicks vs.

Miranda, 422 U.S. 332, 95 S.Ct. 2281 (1975). Since this

case does not involve a constitutional attack on a Federal

law or doctrine, the third prong of the Younger test really

does not have the normal significance attached with it.

A judicial proceeding was initiated, advanced and litigated

nearly to its conclusion, only without an actual

sentencing to the same conduct sought to be punished by

the Federal District Court indictment and prosecution.

There is no question that the Younger Abstention

26

Doctrine rests on strong Federal policy, noninterference

with State judicial proceedings which are ongoing. The

Federal Court should not disrupt ongoing State judicial

process, either by preempting the adjudication of same,

nor by direction by the Federal District Court to stay or

dismiss its proceedings. See In Re Grand Jury

proceedings, 654 F.2d 268 (3rd Cir. 1981).

Again, understanding the extraordinary nature of

the remedy which is now sought by retained Counsel

literally at the last instant by the Petitioner, the Court is

urged to review Simopoulous vs. Virgini ia State Board of

Medicine, 644 F.2d 321 (1981), Garden State Bar

Association vs. Middlesex City Ethics, 643 F.2d 119

(1981) and a Ninth Circuit case Ft. Belknap Indian

Community vs. Mazurek, 43 F.3d 428 (9th Cir. 1994).

27