Petition for Writ of Certiorari — Cole v. United States

Supreme Court, 0.8.

PILED

&

00 648 OCT 2 32000

OFFICE OF THe Cree.

No.

In The

Supreme Court of the United States

In re RICHARD A. COLE, M.D.,

Petitioner.

On Petition For Writ Of Ceritiorari

To The United States Court Of Appeals

For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

RicHarp A. Core, M.D-

Pro Se

14 Charles Street

Newburyport, MA 01950

Telephone: 978.462.8470

QUESTIONS PRESENTED FOR REVIEW

The petition presents the following questions:

Petitioner while incarcerated relied on his sister-in-

law to correspond with the courts since he was penni-

less. Petitioner’s appeal of his habeas corpus petition

under 28 U.S.C. § 2255 was dismissed for failure to

file a brief. Petitioner through his sister-in-law sent in

a motion to reinstate the appeal. Despite this the

appeal was never reinstated. Petitioner’s sister-in-law

swore under oath in numerous affidavits that she sent

both the original brief and the motion to reinstate via

Federal Express and paid for same via Discover Card

and that the Clerk was at fault. Petitioner discovered

conclusive evidence from Federal Express and Dis-

cover Card that his sister-in-law lied and the material

was never sent to the appeals court. Thus Petitioner

was denied his right to present his case and his sister-

in-law had committed fraud on the court. Despite this

conclusive evidence, the appeals court denied the

motion to reopen the appeal without an opinion.

Based on the authority of this Court and customary

federal procedure does this refusal to grant relief in

the face of undisputed fraud on the court mandate

this Court use its supervisory powers and compel the

appeals court to docket the appeal brief nunc pro

tunc?

Petitioner was denied his habeas petition in the dis-

trict court without an evidentiary hearing, without a

request for an answer from the Government, and

without an explanation. Was the failure of the district

court to allow an evidentiary hearing a violation of

the Fifth Amendment?

Petitioner was denied appellate review through the

malice of his sister-in-law who repeatedly swore

QUESTIONS PRESENTED FOR REVIEW - Continued

under oath that she sent in the appeal brief and later

the motion to reinstate the appeal. Were petitioner’s

rights under the First and Fifth Amendment violated

by this act of malice?

iil

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES. .............0-0+0000005 vi

OPINIONS BELOW............---2-eeeeeeeeeeeeeee 1

STATEMENT OF JURISDICTION.........----+-+++- 1

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED ..........----ee eee eeeeeecees 1

STATEMENT OF THE CASE...........---++0+++0+5 3

REASONS FOR GRANTING THE WRIT ........--- 7

CONCLUSION 2. cccccsccccccccccccccnsccss besnnns 30

APPENDIX TABLE OF CONTENTS

APPENDIX A

Order of the United States District Court for the

Western District of Pennsylvania denying habeas

corpus petition...........--- 2s eee e eee cree e ness la

APPENDIX B

Order of the United States Court of Appeals for the

Third Circuit dismissing appeal of habeas petition

for failure to prosecute.........--..+-+-eeeeeeeee 3a

APPENDIX C

Order of the United States Court of Appeals for the

Third Circuit denying motion to reopen appeal and

file appeal brief nunc pro tunc because of fraud on

the court or in the alternative to hold hearings on a

scheme to commit fraud on the court..........-- 4a

iv

TABLE OF CONTENTS - Continued

Page

APPENDIX D

Order of the United States Court of Appeals for the

Third Circuit denying rehearing or reconsideration

of the motion to reopen the appeal and file appeal

brief nunc pro tunc or in the alternative to hold

hearings on a scheme to commit fraud on the court

cdma eneeddesesedeeesssrccensdecneendee éunasabebaa 5a

APPENDIX E

Be Sa Rs 66h ncndccaess deanksadaoveeckhund 6a

APPENDIX F

Miscellaneous Local Appellate Rules for United

States Court of Appeals for the Third Circuit.... 8a

APPENDIX G

Affidavit of Sylvia Cole dated July 19, 1999...... 10a

APPENDIX H

Affidavit of Sylvia Cole dated July 19, 1999...... 12a

APPENDIX I

Affidavit of Steven P. Cole dated July 11, 1999... 16a

APPENDIX J

Affidavit of Steven P. Cole dated July 11, 1999... 18a

APPENDIX K

Subpoena for documents to Federal Express ..... 20a

APPENDIX L

Response from Federal Express to subpoena ..... 25a

Vv

TABLE OF CONTENTS - Continued

Page

APPENDIX M

Subpoena for documents to Discover Card....... 26a

APPENDIX N

Response from Discover Card to subpoena....... 31a

APPENDIX O

Response from Discover Card to subpoena....... 32a

APPENDIX P

Response from Discover Card to subpoena....... 33a

APPENDIX Q

49 Pa. Code § 16.96 (deleted as of March 14,

SOT ak vc tccxetcxnpatads 6acdeees on be aeeseueeee 34a

APPENDIX R

28 Pennsylvania Bulletin 1316, March 14, 1998 ... 38a

vi

TABLE OF AUTHORITIES

Page

Cases

Adams v. United States ex rel. McCann, 317 U.S. 269

(IGE . on cccccsccodsvddectotucennesesseuneaueees 26, 27

Bill Johnson‘s Restaurants, Inc. v. National Labor

Relations Board, 461 U.S. 731, 103 S.Ct. 2161

CRGGED .. 0. 00006e0evesed004ee0n0seaseneensenelaeneee 24

Board of Education v. York, 429 F.2d 66 (CA10 1970),

cast Geom, 454 UE SSG Glee Uh ca vecenveccenuceseuas 27

Bodie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780

CIGFED . ccccccccccnccccesacnunagechsdsnnsaueuneaeen 24

Brown v. Allen, 344 U.S. 443 (1953).............2045. 20

California Motor Transport Co. v. Trucking Unlimited,

406 US. SUB, $2 SAL: GD Cie ac ncaccccccscssccss 24

DeLouis et al. v. Meek et al., 2 lowa 55 .............. 13

Evitts v. Lucey, 469 U.S. 387, 83 L.Ed.2d 821, 105

SES. BIO CIOG oc ccccccccdéccnectanectlunsecveae 22

Field v. United States, 193 F.2d 92 (CA2), cert den,

SER UD. G6 COGGED oc ncscevcsctsveadiatienseonees 28

Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct.

BAPE CAGED ooo ccnccccvecuenéscdacnsatonseneuenanel 16

Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22

L.Ed.2d 281 (1969).............. 20, 21, 25, 26, 28, 29

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322

U.S. 575, 90 L.Ed. 1250, 64 S.Ct. 997 (1944)

PTT TTTTTTTTTTT TTT 10, 11, 12, 13

Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985) .... 14

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507

CAGED oo. 66 a0008806secccsenssucceeuascssndsneneee 18

vii

TABLE OF AUTHORITIES - Continued

Page

Kent v. Ricards, 3 Md.Ch. 392 ........-----++eeeee08: 13

Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct.

Ly, 20.) See 15, 17, 18

Martina Theatre Corp. v. Shine Chain Theaters, Inc.,

278 F.2d 798 (CA2) (1960) ........--- cence eeeeees 11

Mississippi Valley Barge Line Co. v. United States,

273 FSupp 1 (ED Mo. 1967), summarily aff'd,

389 U.S. 579 (1968) .... 2.0... eee eee eee e ee ewe eeeee 27

Pearce v. Olney, 20 Conn. 544 (1850)......-------++-- 13

Price v. Johnston, 334 U.S. 266 (1948) .....---. 20, 26, 28 a

Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556

(1DGT) . occ cccccccccccnccccccccccccccccccccsccccess 18

Schacht v. United States, 398 U.S. 58, 26 L.Ed.2d 44,

90 S.Ct. 1555 (1970) ........ ccc ceeccceenccccecees 22

Smith v. Lowry, 1 Johns. (N.Y.) Ch. 320.......------- 13

Sprague v. Ticonic National Bank, 307 U.S. 161, 83

L.Ed. 1184, 59 S.Ct. 777 (1939). .....----02 ee 2eeee 10

Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976) .... 15

Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

QOS2 (19BE) oo ac ccccccccccccccccccesccccsccccccces 14

Stutson v. United States, 516 U.S. 193 (1996) ......... 21

Townsend v. Sain, 372 U.S. 293 (1963)...........-- 20, 29

United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405

Viii

TABLE OF AUTHORITIES - Continued

Page

United States v. New York Telephone, 434 U.S. 159, 98

es SE CUED a cece ektdnanes saeaeesiaaks 26, 27, 28

United States v. Throckmorton, 98 U.S. (8 Otto) 61,

FRR Fre rer ry ar Ur 10, 12

Universal Oil Products Co. v. Root Refining Co., 328

U.S. 575, 90 L.Ed. 1447, 66 S.Ct. 1176 (1946) ...10, 11

Wierich v. DeZoya, 7 Ill. 385 (1845) .............2205. 13

Wood v. Georgia, 450 U.S. 261, 67 L.Ed.2d 220,101 -

es ee CH san sd cancedacnnashacnsdendsiecsas 22

a CONSTITUTION, STATUTES AND RULES

U.S. CONSTITUTION, Article I, Section 9, Clause

> POPE PTOTTT ITT CETTE ECE TT ee Pe OTT eT Peer 1, 21

U.S. CONSTITUTION, Amendment I........... 2, 8, 24

U.S. CONSTITUTION, Amendment IV ..2, 3, 15, 16, 23

U.S. CONSTITUTION, Amendment V........... passim

U.S. CONSTITUTION, Amendment VI ...2, 3, 8, 15, 23

U.S. CONSTITUTION, Amendment XIV, Section 1

PRA ED, S TBS DR A eR PO ED 3, 16, 23

gt Ce SESE epee pinen ree erg np mar Py 22, 23

i acter ai cyuneces eee 22, 25

ST i i thio ne vcddie huis iaausesene: 15, 18

I a hs caso nse es nae edsetnauebesias 4

Be iin cd cepcuusdccedavekcss eo: 1

Be Wa De Beeb eres chert kncnivcsenéussscees 1, 26, 27

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TABLE OF AUTHORITIES - Continued

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, Bik Yoat & :.. . OPPTETET TT Tere Tre recee tee passim

Bee tt A orrr eer errerrr rrr ret rt rrr Te 22, 24

BP PA. Ce BGG vnc ccs ceveusnteds ia cerevinns 15, 16

Sup. Ct. R. 10(a) and (C).......... cs eeeecseceseccceee 1

TREATISES

Federal Practice and Procedure, Wright, Miller,

Mime CGE), 199, 6 FEF ccc ncsnasccsncsisssnces 10

Moore’s Federal Practice, volume 7 § 60.33 (1971

5 FS as rer eer err Pre PE eer ey rrr. ee eee 9

ee Federal Practice, volume 12 § 60.81 (1999 :

Oe Be pyre Pye PP ey irre POTTY ETT Ee eT.

Wells, Res Adjudicata, section 499 ................+5. 13

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1

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays for a writ of certiorari to

review the judgment without opinion of the United States

Court of Appeals for the Third Circuit, Docket No.

94-3613, rendered August 1, 2000. In the alternative, peti-

tioner prays for this Court to order the United States

Court of Appeals for the Third Circuit to docket Peti-

tioner’s appeal brief nunc pro tunc at Docket No. 94-3613.

OPINIONS BELOW

There are no opinions below. The order of the United

States Court of Appeals for the Third Circuit denying the

motion to reopen the appeal for fraud on the court is

reproduced in the Appendix to this petition (A. 3a). The

order of dismissal for failure to file an appeal brief

entered by the Clerk of the United States Court of

Appeals for the Third Circuit is reproduced here at A. 2a.

The order of the United States District Court for the

Western District of Pennsylvania dismissing the habeas

corpus petition under 28 U.S.C. § 2255 without an opin-

ion is reproduced at A. la.

STATEMENT OF JURISDICTION

The judgment which this Court is asked to review

was rendered without opinion on August 1, 2000 by the

United States Court of Appeals for the Third Circuit. This

Court’s jurisdiction is invoked pursuant to 28 U.S.C.

§§ 1254 and 1651 and Supreme Court Rule 10(a) and (c).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Article I, Section 9, Clause 2

The Privilege of the Writ of Habeas Corpus shall not

be suspended, unless when in Cases of Rebellion or Inva-

sion the public Safety may require it.

3

United States Constitution, Amendment I

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

United States Constitution, Amendment IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no War-

rants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

United States Constitution, Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

United States Constitution, Amendment VI

In all criminal prosecutions, the accused shall enjoy

the right to a. speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously

a eee rere NT NCEA ony) Nrerneern

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al can tt

3

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assis-

tance of Counsel for his defence.

United States Constitution, Amendment XIV

Section. 1. All persons born or naturalized in the

United States and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State 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.

STATEMENT OF THE CASE

Nature of the case

This is a habeas corpus petition pursuant to 28 U.S.C.

Ҥ 2255 challenging the constitutional validity of a crimi-

nal conviction of Petitioner Richard A. Cole, MD at 91-28

Erie, in the United States District Court for the Western

District of Pennsylvania in which Cole’s constitutional

rights pursuant to the Fourth, Fifth, Sixth, and Fourteenth

Amendments were violated.

Facts

A habeas corpus petition was filed to address the

egregious conduct of Petitioner’s defense counsel espe-

cially the failure to plead the perjury, bias and prejudice

of the three law enforcement agents who swore to affi-

davits underlying the search and seizure warrants. Each

+

of the three agents had overwhelming bias against Peti-

tioner Dr. Richard Cole, and should have been disqual-

ified from the investigation pursuant to 28 U.S.C. § 528.

Specifically, Drug Enforcement Administration agent Wil-

liam Dombrowski’s ex-wife and daughter were patients

of Dr. Cole. Dombrowski testified under oath at a Drug

Enforcement Administration hearing in Washington, Dis-

trict of Columbia, in a related matter that he did not

approve of his family seeing Dr. Cole and disapproved of

Cole’s prescription of dextroamphetamine for them.

Dombrowski’s lover, Janet O’Donnell (aka Janet Ryan), a

Pennsylvania State Trooper on assignment with the Drug

Enforcement Administration, posed as a patient in Cole’s

office. Because of O’Donnell’s perjury in the above Drug

Enforcement Administration hearing, her entire testi-

mony was stricken from the record. She testified there on

the same matters sworn to in her affidavits for the search

warrants. Federal Bureau of Investigation Agent Thomas

Langer knew Cole personally since his son Matthew was

referred to Cole for the evaluation of numerous broken

bones. Langer became enraged when Cole suggested that

the fractures were likely caused by child abuse.

These three agents of the Government sought search

and seizure warrants from United States Magistrate

Judge Gabriel Bifulco who likewise knew Dr. Cole per-

sonally since Bifulco’s wife Margaret had been referred to

Cole for evaluation of an abnormally high blood calcium

level. Cole hospitalized Margaret and performed an

extensive diagnostic evaluation. Eventually Cole sent her

for major surgery of her neck to remove a parathyroid

tumor. Gabriel Bifulco met Cole on many occasions dur-

ing the course of his wife’s diagnosis and therapy. He

openly expressed dislike of Cole who was not an “Erie

boy” and was particularly dismayed that Cole refused to

5

have the surgery done locally. Bifulco resented the fact

that Cole was the only endocrinologist practicing in Erie,

Pennsylvania.

Finally, the Chief Judge of the United States District

Court for the Western District of Pennsylvania, the Hon-

orable Maurice B. Cohill, Jr. had Cole’s case specifically

transferred to him, after it had been assigned to U.S.

District Court Judge Glenn Mencer. Cole was told by his

former defense counsel, Leonard Ambrose, that Cohill’s

grandson was prescribed dextroamphetamine for an

attention deficit disorder. Ambrose stated that Cohill dis-

liked such therapy and generally disliked doctors who

prescribed it. Ambrose’s son also had been prescribed

dextroamphetamine for similar reasons.

Cole told his new defense counsel, Bailey, Fishman

and Leonard, about all of these conflicts of interest, but

defense counsel did no investigation, and made no

attempt to suppress the search and seizure warrants on

this basis.

Upon learning of how badly his defense counsel had

represented him, Cole, while incarcerated, filed a habeas

corpus petition, specifically a motion to vacate his sen-

tence pursuant to 28 U.S.C. § 2255 which was denied on

July 8, 1994 by Judge Cohill.

The denial came without a request for an answer

from the Government, without an evidentiary hearing,

and without any explanation as to why Cole’s allegations

of bias, prejudice, perjury and ineffective assistance of

counsel were without merit.

Cole filed an appeal in the United States Court of

Appeals for the Third Circuit. Because Cole was incarcer-

ated and penniless, he relied upon his family members to

help him with making copies and sending pleadings to

6

the Appeals Court. Specifically, Richard Cole would com-

pose the pleadings and send them to his brother and

sister-in-law, Steven Cole and Sylvia Cole, who would

then make copies and send them via Federal Express to

the Appeals Court (A. 10a-19a).

Thus Richard Cole was shocked when he received

notice in early January, 1995, that his appeal had been

dismissed for failure to file a brief (A. 3a, 8a). Cole

immediately called Sylvia Cole who insisted that the brief

had been sent by Federal Express. Sylvia later called the

Appeals Court at Richard’s behest and reported that a

spokeswoman at the Clerk’s office Stated that the appeal

“was accidentally dismissed” and that a motion to reins-

tate the appeal should be filed. Richard composed same

and sent it to Sylvia who allegedly made copies and sent

them to the Appeals Court via Federal Express. Sylvia

Swore under oath that she confirmed delivery with both

Federal Express and the Clerk’s office (A. 10a-15a). How-

ever, Richard never heard any more from the Clerk’s

office and ultimately, after inquiry, was informed by the

Clerk’s office that it had never received the brief nor the

motion to reinstate the appeal.

Richard was not sure what to do since the Clerk

insisted that the material was not received, yet his sister-

in-law insisted that she sent it and this was confirmed by

both Federal Express and the Clerk’s office (A. 10a-15a).

Richard filed a second habeas petition that was denied as

being a successive petition. Richard attempted to have

the Appeals Court docket the petition nunc pro tunc

because of clerical error based on the affidavits of Sylvia

Cole who swore on repeated occasions that she had sent

in the material via Federal Express and paid for it with

Discover Card (A. 10a-15a). She produced copies of the

7

relevant Federal Express airbills. The Appeals Court

refused to docket the appeal nunc pro tunc.

Ultimately Richard Cole discovered that by using a

federal subpoena, he could obtain records going back to

1994. With subpoenas directed to Federal Express and

Discover Card, Richard Cole obtained the billing records

for Steven Cole and Sylvia Cole and discovered that the

airbili numbers for the alleged packages sent had never

been sent by the Coles, nor billed by Discover Card (A.

20a-33a). Furthermore, Federal Express had no record for

any delivery to the United States Court of Appeals for the

Third Circuit for the time period in question (A. 25a).

Armed with this new information, Richard Cole filed

a motion to reopen the appeal for fraud on the court since

Richard had been totally prevented from presenting his

case to the appeals court by the malice of Steven Cole and

Sylvia Cole. This was not a simple matter of negligence in

missing one shipment. Sylvia Cole swore that two ship-

ments had been made to the Appeals Court and had been

paid for using Discover Card. In fact, neither shipment

had been made, nor billed, nor paid.

The Appeals Court refused to grant Richard Cole

relief and dismissed the motion to reinstate the appeal

without opinion. Cole requested a rehearing which was

construed as a motion to reconsider and denied without

opinion on August 14, 2000. Thereafter this petition for

certiorari was filed.

REASONS FOR GRANTING THE WRIT

Richard Cole has been stripped of his constitutional

rights by the events described above. Cole was not repre-

sented by effective defense counsel who failed to perform

any investigation of the perjury, bias, and prejudice of the

law enforcement and judicial officers involved in his case,

8

a violation of the Sixth Amendment. When Cole

attempted to use his right to a habeas corpus petition, he

was summarily denied without an evidentiary hearing,

without a request for an answer from the Government

and without an explanation (by a judge who should have

been recused from the original trial had defense counsel

been competent), a violation of the Fifth Amendment.

Worst of all, when Cole sought to have appellate review

of these matters, Cole was blocked from his day in court

by the malicious acts of his family members, violations of

the First and Fifth Amendments.

The justice system was designed to protect Cole from

all of the above. In fact, Cole has had no benefits of any

constitutional guarantees and seeks justice from this

Court. Specifically Cole’s right to habeas corpus has been

abrogated as has his right to redress under the Petition

Clause of the First Amendment and the Due Process

Clause of the Fifth Amendment. Likewise Cole was

denied his right to competent counsel pursuant to the

Sixth Amendment.

Fraud on the court

Richard Cole was totally blocked from presenting his

case to the appeals court through no fault of his own.

Cole was imprisoned and penniless and at the mercy of

anyone who wanted to take advantage of him. Thus his

brother and sister-in-law helped seal Cole’s contested

conviction by swearing that they were helping Richard

Cole while in fact they were plotting to destroy him.

4

Definition of fraud on the court

Professor Moore at 7 Moore’s Federal Practice (1971

ed.) § 60.33 at 60-361 has characterized fraud on the court

as,

“that species of fraud which does or attempts to,

defile the court itself, or is a fraud perpetrated

by officers of the court so that the judicial

machinery cannot perform in the usual manner

its impartial task of adjudging cases presented

for adjudication.”

Clearly Richard Cole’s case was never impartially and

properly adjudicated by the Appeals Court since the

appeal brief has never been filed.

Relief is always granted for fraud on the court

The most recent edition of Moore’s Federal Practice

(1999) at volume 12 § 60.81 elaborates on this concept,

and sets the stage for this petition, at page 60-225.

“Although ‘fraud on the court’ will always sup-

port relief from a judgment (see § 60.21[4][a]),

regardless of whether it is raised by motion, in

an independent action, or sua sponte, it is a

separate concept from the idea of an indepen-

dent action in equity for relief from a judg-

ment. . . . If fraud reaches the level of fraud on

the court, relief is always merited, and no dis-

tinction between ‘intrinsic’ or ‘extrinsic’ fraud

needs to be made. In the ordinary independent

suit, only justice between the parties is at issue,

in fraud on the court cases, the integrity of the

courts is at issue.

Confusing fraud on the court with the stan-

dards for ordinary actions in equity blurs sev-

eral important distinctions between the two

concepts: (1) since it is the integrity of judicial

institutions that is paramount in fraud on the

10

court claims, there is no real time limit on relief

for fraud on the court (see § 60.22[4][g]) while a

simple independent action in equity is always

subject to the doctrine of laches (see § 60.83); (2)

because the credibility of institutions is pro-

tected by the concept of fraud on the court,

relief may be had even if the parties who will

benefit from relief have ‘unclean hands’ (see

§ 60.22[4)][I]), while a total lack of fault, includ-

ing clean hands, is a prerequisite or an essential

element for relief by way of an independent

action in equity (see § 60.82{2]).”

Cole’s appeal was dismissed for failure to file an

appeal brief. Not only was this brief not filed, but this

failure was part of a scheme to deprive Richard Cole of

his right to petition the court, and the Appeals Court of

its right to do justice in this matter. The Appeals Court of

the Third Circuit has inherent authority to investigate the

question of fraud on the court in the procurement of this

judgment of dismissal. Universal Oil Products Co. v. Root

Refining Co., 328 U.S. 575, 90 L.Ed. 1447, 66 S.Ct. 1176

(1946). If such fraud cannot be ascertained from the

pleadings, the Appeals Court had an obligation to order

an adversary proceeding to adjudicate Cole’s allegation

of fraud on the court. See Hazel-Atlas Glass Co. v. Hartford-

Empire Co., 322 U.S. 238, 88 L.Ed. 1250, 64 S.Ct. 997 (1944);

Sprague v. Ticonic National Bank, 307 U.S. 161, 83 L.Ed.

1184, 59 S.Ct. 777 (1939); and United States v. Throckmor-

ton, 98 U.S. (8 Otto) 61, 25 L.Ed. 93 (1878).

Fraud on the court can be investigated sua sponte

Courts do not have to wait for a party to raise a

motion. According to Federal Practice and Procedure,

1995, Eds. Wright, Miller, Kane, at § 2870, Fraud on the

Court,

11

“Almost all of the principles that govern a claim

of fraud on the court are derivable from the

Hazel-Atlas case. The power exists in every

court. If the fraud was on an appellate court,

that court rather than the trial court, should

consider the matter. Although a party may bring

the matter to the attention of the court, this is

not essential, and the court may proceed on its

own motion.13

n. 13. Defrauded district court may take action

sua sponte to expunge a judgment constituting

fraud on the court and anyone, whether his

hands are clean or dirty, may suggest that it do

so. Martina Theatre Corp. v. Shine Chain Theaters,

Inc., C.A.2d, 1960, 278 F.2d 798.”

However, even after Richard Cole brought these matters

to the attention of the Appeals Court in a motion to

reopen the appeal and docket the appeal brief nunc pro

tunc, said motion was dismissed without opinion.

The seminal case for having an appeals court investi-

gate fraud in the procurement of a judgment before it

came from the Third Circuit in Universal, supra, where

this Court stated,

“A Federal Circuit Court of Appeals has inher-

ent power to investigate whether its affirmance

of a judgment was obtained by fraud, and may

bring before it by appropriate means all those

who may be affected by the outcome.” Ibid. at

575.

In Universal, the Appeals Court investigated the question

of fraudulent evidence in a scheme to reach a certain

judgment. In the instant case, the fraud comes not from a

party, but from someone who schemed to not only dam-

age a party, but to defraud the Appeals Court of the

ability and obligation to do justice.

12

Laches does not apply to fraud on the court

The holdings of this Court with regard to fraud on

the court dismiss the concept of laches since any act

which has defiled the system comes into the ambit of the

reviewing court as a matter of course, regardless of the

time involved. As stated by this Court in Hazel-Atlas,

supra, ;

“Furthermore, tampering with the administra-

tion of justice in the manner indisputably shown

here involves far more than an injury to a single

litigant. It is a wrong against the institutions set

up to protect and safeguard the public, institu-

tions in which fraud cannot complacently be

tolerated consistently with the good order of

society. Surely it cannot be the preservation of.

the integrity of the judicial process must always

await upon the diligence of litigants. The public

welfare demands that the agencies of public jus-

tice be not so impotent that they must always be

mute and helpless victims of deception and

fraud.” Ibid. at 246.

The dismissal of Cole’s appeal should be vacated

In Throckmorton, supra, this Court discussed the long

standing tradition of leaving judgments alone, and cited

the exception relevant here,

“But there is an admitted exception to this gen-

eral rule in cases where, by reason of something

done by the successful party to a suit, there was

in fact no adversary trial or decision of the issue

in the case. Where the unsuccessful party has

been prevented from exhibiting fully his case,

by fraud or. deception practised on him by his

opponent, as by keeping him away from court, a

false promise of compromise; or where the

defendant never had knowledge of the suit,

13

being kept in ignorance by the acts of the plain-

tiff; or where an attorney fraudulently or with-

out authority assumes to represent a party and

connives at his defeat; or where the attorney

regularly employed corruptly sells out his cli-

ent’s interest to the other side, - these, and

similar cases show that there has never been a

real contest in the trial or hearing of the case,

are reasons for which a new suit may be sus-

tained to set aside and annul the former judg-

ment or decree, and open the case for a new and

fair hearing. See Wells, Res Adjudicata, sect. 499;

Pearce v. Olney, 20 Conn. 544; Wierich v. DeZoya,

7 Ill. 385; Kent v. Ricards, 3 Md.Ch. 392; Smith v.

Lowry, 1 Johns. (N.Y.) Ch. 320; DeLouis et al. v.

Meek et al., 2 Iowa, 55.

In all these cases, and many others which have

been examined, relief has been granted, on the

ground that, by some fraud practised directly

upon the party seeking relief against the judg-

ment or decree, that party has been prevented

from presenting all of his case to the court.” Ibid.

at 65.

Sylvia Cole was to have acted on behalf of incarcerated

and impoverished Richard Cole, and had promised to do

so. In fact she followed her own agenda, and to date has

been successful at keeping Richard Cole’s appeal from

the Appeals Court. Richard Cole has been prevented from

presenting his case to the Appeals Court. This Court

should not allow her to damage an incarcerated party.

Cole has a meritorious appeal

According to this Court, the determination of

whether fraud on the court has been committed does not

reach to the merits of the appeal since the judicial process

itself has been defiled. Hazel-Atlas, supra. Nonetheless, in

14

the instant case, a real contest of the issues was never

developed since defense counsel allowed perjured testi-

mony to procure search and seizure warrants from a

biased magistrate. Had Cole been protected from per-

jured testimony, and protected from illegal search and

seizure, he would never have pleaded guilty. Cole did so

because his defense counsel insisted it was hopeless for

Cole to prevail. In fact, Cole is not guilty of any crimes.

A guilty plea is not valid if provoked by ineffective

assistance of counsel

In Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366 at

367, this Court held:

“(a) Where a defendant enters a guilty plea

upon counsel’s advice, the voluntariness of the

plea depends on whether the advice was within

the range of competence demanded of attorneys

in criminal cases. The two-part standard

adopted in Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, for evaluating claims of ineffec-

tive assistance of counsel — requiring that the

defendant show that counsel’s representation

fell below an objective standard of reasonable-

ness, and that there is a reasonable probability

that, but for counsel’s unprofessional errors, the

result of the proceeding would have been differ-

ent — applies to guilty plea challenges based on

the ineffective assistance of counsel. In order to

satisfy the second, or “prejudice,” requirement,

the defendant must show that there is a reason-

able probability that, but for counsel’s errors, he

would not have pleaded guilty and would have

insisted on going to trial... . ”

Sg ae ee ee ee

15

The failure of Cole’s defense counsel to plead the per-

jury, bias and prejudice of those procuring the search

and seizure warrants eviscerated Cole’s Fourth Amend-

ment rights and may be addressed by habeas corpus

petition citing violation of Cole’s Sixth Amendment

right to the effective assistance of counsel

This Court in Kimmelman v. Morrison (1986), 477 U.S.

365, 106 S.Ct. 2574, held:

“1. The restriction on federal habeas corpus

review of Fourth Amendment claims announced

in Stone v. Powell, supra, [428 U.S. 465 (1976)]

does not extend to Sixth Amendment ineffec-

tive-assistance-of-counsel claims which are

founded primarily on incompetent representa-

tion with respect to a Fourth Amendment issue.

Federal courts may grant habeas corpus relief in

appropriate cases, regardless of the nature of the

underlying attorney error... . ”

Cole argues that he would never have pleaded guilty

if defense counsel had done its job competently, and

demanded the statutory disqualification of the Hon. Gab-

riel Bifulco, who must be removed from this case under

authority of 28 U.S.C. § 455(a)(b)(1)(4)(5). Once Bifulco

was disqualified, all orders made by him against Cole

would be voided, since Cole was not tried in a fair and

unbiased tribunal, as is guaranteed by the Constitution.

To wit, looking at the search warrant, scant mention is

made of the alleged crime of Cole, the violation of 49 Pa.

Code § 16.96, because there is no penalty for violating

this regulation (A. 34a). Thus, the Hon. Gabriel Bifulco

issued a search and seizure warrant against the doctor of

his wife, Margaret, alleging that Doctor Cole violated a

Pennsylvania Board of Medicine regulation with no pen-

alty. Cole argues that such a warrant was issued by a

16

biased and prejudiced man. Cole has a basic constitu-

tional right under the Fourth Amendment, that any

search warrant issued against him, be issued by a neutral

and detached magistrate, not the irate husband of a

patient.

The medical regulation that Cole allegedly violated,

and was the basis for this Government action against

him, 49 Pa. Code § 16.96, was void for vagueness; it

expired on January 17, 1992 under its own provisions,

and was deleted by the Pennsylvania Board of Medicine

on March 14, 1998

In his habeas petition, Cole called attention to the

fact that he could not be found in violation of a medical

regulation, 49 Pa. Code § 16.96 (A. 34a), which had no

penalty since this was itself a violation of Due Process

guaranteed by the Fifth and Fourteenth Amendments.

Grayned v. City of Rockford, 408 U.S. 104 (1972). This

alleged violation of a medical regulation with no penalty

should not be the basis of an action that charged Cole

with criminal penalties and seized all of his assets.

Indeed, in Volume 28, Number 11, of the Pennsylvania

Bulletin, page 1316, March 14, 1998 (A. 38a), the State

Medical Board deleted § 16.96 which Cole allegedly vio-

lated. The Board commented that by its own sunset provi-

sions, § 16.96 had been deleted on January 17, 1992, and

the March 14, 1998 pronouncement simply confirmed

same by amendment. The search and seizure warrant if

sought today, could not be granted since a violation of

§ 16.96 cannot exist. As the Board stated, Ibid., “The

Board has determined not to take any action to revise or

reestablish this regulation.” Cole avers this regulation

was constitutionally void for vagueness since it did not

cite the penalty for its violation. Cole contends it was

17

used to promote an illegal action against him. Cole is the

only person in Pennsylvania history to be prosecuted

under this statute and now it has been wisely deleted.

Since the regulation which Cole allegedly violated is no

longer valid, Cole’s conviction is no longer valid

The basis of the conviction was Cole’s alleged viola-

tion of a Pennsylvania medical regulation that had no

penalty. This mushroomed into a major drug case result-

ing in Cole’s conviction. Now that the medical regulation

has been deleted, Cole’s conviction should be likewise

vacated.

The failure of Cole’s counsel to investigate the constitu-

tional validity of a search and seizure warrant-is tanta-

mount to ineffective assistance of counsel

In its holding in the case of Kimmelman v. Morrison,

supra, 477 U.S. at 367, 106 S.Ct. at 2578, this Court dis-

cussed the failure to file a timely motion to suppress

evidence:

“(a) While the failure to file a suppression

motion does not constitute per se ineffective

assistance of counsel, the record clearly reveals

that respondent’s attorney failed to file a timely

suppression motion, not due to trial Strategy

considerations, but because he was unaware of

the search, and of the State’s intention to intro-

duce the bedsheet into evidence, due to his fail-

ure to conduct any pretrial discovery. Such

failure here was not, as required under Strick-

land, reasonable and in accord with prevailing

professional norms.”

In ordering the search warrant, Bifulco brought

Cole’s practice to a standstill, since virtually everything

18

in the office was seized, including patient records, equip-

ment, patient specimens, and financial statements. The

search and seizure occurred on May 14 through 17, 1990,

and the indictment did not occur until November 1991,

giving the Government nearly eighteen months to put

together a case based on the evidence seized. A major

portion of the case was allegedly demonstrating that

Cole’s records did not show that the medication, dex-

troamphetamine, was appropriately given for idiopathic

edema, but rather for obesity. Without the evidence

seized, this would have been impossible. Furthermore,

the Government seized patient samples and lab records,

and alleged that tests were not done, yet billed for, and

thus constituted mail fraud. Without the search, there

would be no evidence to support this. Finally, the search

yielded income statements from Cole’s practice, which

allegedly showed different amounts than those reported

on Cole’s tax returns, supporting a charge of tax evasion.

Again, without the search, such evidence would not have

been available.

This Court, in Kimmelman v. Morrison, supra, 477 U.S.

at 374, 106 S.Ct. at 2582, stated:

“The gravamen of a Fourth Amendment claim is

that the complainant’s legitimate expectation of

privacy has been violated by an illegal search or

seizure. See, e.g., Katz v. United States, 389 U.S.

347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In order

to prevail, the complainant need prove only that

the search was illegal and that it violated his

reasonable expectation of privacy in the item or

place at issue. See, e.g. Rawlings v. Kentucky, 448

U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633

(1980).”

Cole had a reasonable expectation that Bifulco would

follow the authority of 28 U.S.C. § 455(a)(b)(1)(4)(5) and

19

disqualify himself from any proceedings against Cole and

not be the issuer of a search warrant against the doctor of

his wife. Cole had a right to expect that a medical regula-

tion with no penalty would not be used as an excuse to

search and seize his property. Cole had a right to expect

that law enforcement would not lie to get a search war-

rant.

The search and seizure warrants should have been sup-

pressed

The remedy for a biased and prejudiced magistrate

has been stated by the United States Supreme Court in

U.S. v. Leon (1984), 468 U.S. 897 at 898, 104 S.Ct. 3405 at

3408 where it held:

“Suppression remains an appropriate remedy if

the magistrate or judge in issuing a warrant was

misled by information in an affidavit that the

affiant knew was false or would have known

was false except for his reckless disregard of the

truth, or if the issuing magistrate wholly aban-

doned his detached and neutral judicial role.”

Cole argues that all the evidence gathered from the

search warrant issued by Bifulco should have been sup-

pressed, leaving little or no case for the Government.

Cole would not have pleaded guilty in this setting, and

would have insisted on a trial. 7

This is a habeas petition which should be accorded

deference

The basis of this action is that Petitioner Cole’s con-

stitutional rights in his criminal conviction were violated

thus rendering the trial a farce in that there was no true

adversarial confrontation. Defense counsel either rolled

over for the Government or fell asleep on Cole’s rights.

The very purpose of the habeas petition is to allow a

20

collateral attack. A direct appeal was never prosecuted in

this action to challenge the conviction since defense coun-

sel insisted there were no matters for appeal. Thus Cole

was left only with potential habeas relief.

Cole was entitled to an evidentiary hearing as part of

due process under the Fifth Amendment

By the law of 28 U.S.C. § 2255, Cole is guaranteed an

evidentiary hearing upon appropriate showing (A. 6a).

He never got one despite the fact that none of his allega-

tions had been developed in the record of the case. As

stated in Harris v. Nelson, supra, at 291,

“It is now established beyond the reach of rea-

sonable dispute that the federal courts not only

may grant evidentiary hearings to applicants,

but must do so upon an appropriate showing.

Townsend v. Sain, 372 U.S. 293, 313 (1963); Brown

v. Allen, 344 U.S. 443, 464, n.19 (1953). And this

Court has emphasized, taking into account the

office of the writ and the fact that the petitioner,

being in custody, is usually handicapped in

developing the evidence needed to support in

necessary detail the facts alleged in his petition,

that a habeas corpus proceeding must not be

allowed to founder in a ‘procedural morass.’

Price v. Johnston, 334 U.S. 266, 269 (1948).”

Cole’s allegations of perjury, bias and prejudice have

never been addressed by any court.

The writ of habeas corpus is to be administered with

initiative and flexibility

This Court has repeatedly stated that the writ of

habeas corpus must be administered with initiative and

flexibility to insure that miscarriages of justice within its

reach are surfaced and corrected.

ee ey ee re

21

“The writ of habeas corpus is the fundamental

instrument for safeguarding individual freedom

- against arbitrary and lawless state action. Its

pre-eminent role is recognized by the admoni-

tion in the Constitution that: ‘The Privilege of

the Writ of Habeas Corpus shall not be sus-

pended * * * .” U.S. Const., Art. I, s9, cl.2. The

scope and flexibility of the writ - its capacity to

reach all manner of illegal detention — its ability

to cut through barriers of form and procedural

mazes — have always been emphasized and jeal-

ously guarded by courts and lawmakers. The

very nature of the writ demands that it be

administered with the initiative and flexibility

essential to insure that miscarriages of justice

within its reach are surfaced and corrected.”

Harris v. Nelson, 394 U.S. 286 at 291, 89 S.Ct. 1082

at 1086, 22 L.Ed.2d 281 (1969).

There can be no doubt that Sylvia and Steven Cole

effectively denied Richard Cole access to the Appeals

Court. Dismissing Richard’s appeal because of their mal-

ice was a gross miscarriage of justice that should be

remedied.

Richard Cole was prejudiced by attempting to corre-

spond with the courts while incarcerated

This Court has been solicitous of such predicaments

and has recognized that filing limits should be made

flexible for those in similar circumstances.

In Stutson v. United States, 516 U.S. 193 (1996) at 196,

this Court stated, ;

“Finally, it is not insignificant that this is a crim-

inal case. When a litigant is subject to the con-

tinuing coercive power of the Government in

the form of imprisonment, our legal traditions

reflect a certain solicitude for his rights, to

22

which the important public interests in judicial

efficiency and finality must occasionally be

accommodated. We have previously refused to

allow technicalities that caused no prejudice to

the prosecution to preclude a remand under 28

U.S.C. § 2106 (1988 ed.) ‘in the interests of jus-

tice.” Wood v. Georgia, 450 U.S. 261, 265, n.5. 67

L.Ed 2d 220, 101 S.Ct. 1097 (1981). And pro-

cedural accommodations to prisoners are a

familiar aspect of our jurisprudence. See, e.g. 28

U.S.C. § 2255 (1988 ed.) (habeas review in spite

of an adverse final appellate decision); Evitts v.

Lucey, 469 U.S. 387, 83 L.Ed.2d 821, 105 S.Ct. 830

(1985) (relief for ineffective assistance of

retained counsel on appeal); Schacht v. United

States, 398 U.S. 58, 63-64, 26 L.Ed.2d 44, 90 S.Ct.

1555 (1970) (unlike in civil cases, time limits for

petitions for certiorari in criminal cases are not

jurisdictional).”

Richard Cole has a legal right to have his appeal pursuant

to 28 U.S.C. § 2255. Cole is petitioning this Court to

protect his rights and give him the appeal to which he is

entitled by the law of 28 U.S.C. § 2255 (A. 6a) which

states,

“An appeal may be taken to the court of appeals

from the order entered on the motion as from a

final judgment on application for a writ of

habeas corpus.”

Richard Cole was illegally blocked from the Appeals

Court by Sylvia Cole, in collusion with Steven Cole, a

prima facie violation of 42 U.S.C. § 1985, 18 U.S.C. § 1512,

and 18 U.S.C. § 1621.

The gross miscarriage of justice

This case involves a conviction made possible by

defense counsel who insisted to Petitioner Cole that he

Ee ee OS eee eee

23

plead guilty since there was no viable defense. In reality,

there was no viable defense because defense counsel

failed to perform competently. This was not an adver-

sarial trial but rather, a capitulation to the Government

engineered by incompetent defense counsel. In his habeas

corpus petition, Cole raised five major issues of constitu-

tional dimension: 1. ineffective assistance of counsel, 2.

bias and prejudice of the magistrate who issued the

search and seizure warrants as well as the three officers

who swore to the affidavits underlying the warrants, 3.

documented perjury of one of the officers swearing to the

above warrant who lied about her activity with Cole in a

related Drug Enforcement Administration hearing, 4. bias

and prejudice of the trial court judge, and 5. vagueness of

a medical regulation with no penalty which was trans-

formed without notice into a criminal statute. None of

these issues have ever been heard by any court, nor has

any evidentiary hearing ever been held on these matters

despite the fact that they had not been fully developed in

the record of this case. Thus Cole’s rights under the

Fourth, Fifth, Sixth, and Fourteenth Amendments have

been violated.

On top of these problems there are the obstruction of

justice, civil rights violations, and perjury which have

gone unnoticed and unpunished.

Obstruction of justice

Title 18, Chapter 73, Obstruction of Justice § 1512,

Tampering with a witness, victim, or an informant, states

in relevant part,

Ml

(b) Whoever knowingly uses intimida-

tion . . . or engages in misleading conduct

toward another person, with intent to -

24

(1) influence, delay or prevent the testimony

of any person in an official proceeding;

(2) cause or induce any person to -

(A) withhold testimony, or withhold a record,

document, or other object, from an official

proceeding;

(B) alter, destroy, mutilate, or conceal an object

with intent to impair the object’s integrity

or availability for use in an official pro-

ceeding; ...

shall be fined under this title or imprisoned not

more than ten years, or both.”

Clearly Sylvia Cole and Steven Cole have succeeded in

keeping Richard Cole’s appeal brief from the Appeals

Court and in so doing have changed the course of justice

in this case.

Civil rights violations: denial of Cole’s right to access

the courts under the First and Fifth Amendments

There is no doubt that access to the courts of the

United States is guaranteed by the Petition Clause of the

First Amendment. Bill Johnson's Restaurants, Inc. v.

National Labor Relations Board, 461 U.S. 731, 103 S.Ct. 2161

(1983); California Motor Transport Co. v. Trucking Unlimited,

404 U.S. 508, 92 S.Ct. 609 (1972).

The right to Due Process of law pursuant to the Fifth

Amendment is fundamental to the American constitu-

tional system. Bodie v. Connecticut, 401 U.S. 371, 91 S.Ct.

780 (1971). Cole was never given a meaningful oppor-

tunity to be heard in his appeal.

Willful blockage of access to the courts of the United

States by two or more persons constitutes a violation of

42 U.S.C. § 1985, which states in relevant part,

7 . if two or more persons conspire for the

purpose of impeding, hindering, obstructing, or

25

defeating, in any manner, the due course of

justice in any State or Territory, with intent to

deny any citizen the equal protection of the

laws, or to injure him or his property for law-

fully enforcing, or attempting to enforce, the

right of any person, or class of persons, to the

equal protection of the laws; . . . the party so

injured or deprived may have an action for the

recovery of damages occasioned by such injury

or deprivation, against any one or more of the

conspirators.”

Cole could well sue his brother and sister-in-law for these

acts but that will not get his appeal docketed.

Perjury

Sylvia Cole is guilty of perjury as defined by Title 18,

Chapter 79, Perjury § 1621, Perjury generally, where it

states,

“Whoever -

(2) in any declaration, certificate, verification,

or statement under penalty of perjury as

permitted under section 1746 of title 28,

United States Code, willfully subscribes as

true any material matter which he does not

believe to be true; is guilty of perjury, . . . ”

All of her sworn statements (A. 10a-15a) have been dis-

proven by clear and convincing evidence.

A special duty exists with regard to habeas corpus peti-

tions

The Appeals Court has a special duty in adjudicating

Cole’s habeas corpus petitions as stated by this Court in

Harris v. Nelson, 394 U.S. 286 at 299,

“Clearly, in these circumstances, the habeas ~

corpus jurisdiction and the duty to exercise it

26

being present, the courts may fashion appropri-

ate modes of procedure, by analogy to existing

rules or otherwise in conformity with judicial

usage. Where their duties require it, this is the

inescapable obligation of the courts. Their

authority is expressly confirmed in the All Writs

Act, 28 U.S.C. § 1651.”

Thus this Court mandates that federal courts, including

appeals courts, fashion appropriate remedies to do jus-

tice.

Most importantly, this Court in United States v. New

York Telephone Co., 434 U.S. 159 at 172 stated,

“The All Writs Act provides: ‘The Supreme

Court and all courts established by Act of Con-

gress may issue all writs necessary or appropri-

ate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.’

28 U.S.C. § 1651(a)...

This Court has repeatedly recognized the power

of a federal court to issue such commands under

the All Writs Act as may be necessary or appro-

priate to effectuate and prevent the frustration

of orders it had previously issued in its exercise

of jurisdiction otherwise obtained: ‘This statute

has served since its inclusion, in substance, in

the original Judiciary Act as a “legislatively

approved source of procedural instruments

designed to achieve ‘the rational ends of law.’ ” ’

Harris v. Nelson, 394 U.S. 286, 299 (1969), quoting

Price v. Johnston, 334 U.S. 266, 282 (1948). Indeed,

‘[uJnless appropriately confined by Congress, a

federal court may avail itself of all auxiliary

writs as aids in the performance of its duties,

when the use of such historic aids is calculated

in its sound judgment to achieve the ends of

justice entrusted to it.’ Adams v. United States ex

rel. McCann, 317 U.S. 269, 273 (1942).”

i li ee oe) ei ee alll

27

In the original appeal of Cole’s denied 2255 motion, Cole

was ordered to file his brief on time or face dismissal. The

dismissal occurred because Sylvia and Steven Cole effec-

tively frustrated Richard Cole’s attempt to follow the

orders of the Appeals Court. The malice of Sylvia and

Steven Cole defrauded the Appeals Court of the oppor-

tunity to do justice in this case. This Court went on in

New York Telephone, supra, p. 173,

“The Court has consistently applied the Act

flexibly in conformity with these principles.

Although § 262 of the Judicial Code, the prede-

cessor to § 1651, did not expressly authorize

courts, as does § 1651 to issue writs ‘appropri-

ate’ to the proper exercise of their jurisdiction

but only ‘necessary’ writs, Adams held that these

supplemental powers are not limited to those

Situations where it is ‘necessary’ to issue the

writ or order ‘in the sense that the court could

not otherwise physically discharge its appellate

duties.’ 317 U.S., at 273.”

This Court’s holding demands that the Third Circuit exer-

cise its jurisdiction and powers to protect Richard Cole.

In New York Telephone, supra, p. 174 this Court continued,

“The power conferred by the Act extends, under

appropriate circumstances, to persons who,

though not parties to the original action or

engaged in wrongdoing, are in a position to

frustrate the implementation of a court order or

the proper administration of justice, Mississippi

Valley Barge Line Co. v. United States, 273 F.Supp.

1, 6 (ED Mo. 1967) summarily aff’d, 389 U.S. 579

(1968); Board of Education v. York, 429 F.2d 66

(CA10 1970), cert. denied, 401 U.S. 954 (1971),

and encompasses even those who have not

taken any affirmative action to hinder justice.

United States v. McHie, 196 F. 586 (ND 11].1912);

28

Field v. United States, 193 F.2d 92, 95096 (CA2),

cert.denied, 342 U.S. 894 (1951).”

Cole agrees that the Clerk of the Appeals Court is with-

out fault here. However, the Clerk as part of his minis-

terial duties dismissed Cole’s appeal since he did not

receive Cole’s brief. The failure to file the brief was not

Cole’s fault and should be corrected. Otherwise, Sylvia’s

treachery has irrevocably damaged Cole from which he

has no source of relief. This Court in New York Telephone,

supra, at 374 stated,

“The dissent’s attempt to draw a distinction

between orders in aid of a court’s own duties

and jurisdiction and orders designed to better

enable a party to effectuate his rights and

duties, post, at 189-190 is specious. Courts nor-

mally exercise their jurisdiction only in order to

protect the legal rights of parties. In Price v.

Johnston, 334 U.S. 266 (1948), for example, the

production of a federal prisoner in court was

required in order to enable him to effectively

present his appeal which the court had jurisdic-

tion to hear. Similarly, in Harris v. Nelson, 394

U.S. 286 (1969), discovery was ordered in con-

nection with a habeas corpus proceeding for the

purpose of enabling a prisoner adequately to

protect his rights.”

Cole is petitioning this Court to protect his rights and

give him the appeal to which he is entitled by the law of -

28 U.S.C. § 2255.

A remedy should be fashioned to do justice

This Court mandates that federal courts, including

appeals courts, fashion appropriate remedies to do jus-

tice. It is within the enumerated powers of the Appeals

Court and this Court to docket the appeal brief in this

SEE TEES A SRR RRP ERM NES RIE AN NT ta a

29

matter nunc pro tunc. As stated in Harris v. Nelson, supra,

at 292,

“There is no higher duty of a court, under our

Constitutional system, than the careful process-

ing and adjudication of petitions for writs of

habeas corpus, for it is in such proceedings that

a person in custody charges that error, neglect,

or evil purpose has resulted in his unlawful

confinement and that he is deprived of his free-

dom contrary to law. This Court has insistently

said that the power of the federal courts to

conduct inquiry in habeas corpus is equal to the

responsibility which the writ involves: ‘The lan-

guage of Congress, the history of the writ, the

decisions of this Court, all make clear that the

power of inquiry on federal habeas corpus is

plenary.’ Townsend v. Sain, supra, at 312.”

The necessity of an appeal is even more pressing in

this matter since the District Court summarily dismissed

the motion under 28 U.S.C. § 2255 without explanation,

without an evidentiary hearing, and without an answer

from the Government. Cole’s defense counsel insisted

that there were no matters for appeal, and therefore,

raised none except the amount of the fine and/or restitu-

tion. It would be a most unusual case if defense counsel

in the record laid out a cause for ineffective assistance of

counsel so that a reviewing court could sua sponte

declare ineffective assistance of counsel and vacate the

judgment. Neither the District Court, nor the Appeals

Court have ever addressed the issues raised in the § 2255

motion, especially the allegations of ineffective assistance

of counsel who failed to provide Cole with a competent

defense.

Cole has a meritorious appeal which needs to be

heard. According to the authority of this Court, Cole

deserves relief from fraud on the court. Even if this Court

30

does not accept Cole’s allegations, it owes Cole and the

integrity of the Courts of the United States the duty to

investigate fraud on the court. Therefore, Cole should be

granted certiorari in this matter, or in the alternative, this

Court could simply order that Cole’s appeal brief in his

habeas corpus petition be filed in the United States Court

of Appeals for the Third Circuit nunc pro tunc.

CONCLUSION

Cole respectfully requests this Court to grant cer-

tiorari in this matter, or in the alternative, to simply order

the United States Court of Appeals for the Third Circuit

to docket Cole’s appeal brief nunc pro tunc at Docket No.

94-3613. Further, that Appeals Court should investigate

Cole’s allegations of fraud on the court so that justice

may be done. :

I declare under the penalty of perjury that the forego-

ing is true and correct.

Respectfully submitted,

Dated October 20, 2000

RicHarp A. Core, M.D.

Pro Se Petitioner

14 Charles Street

Newburyport, MA 01950

-Tel.978.462.8470

la

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RICHARD A. COLE,

M.D.

Plaintiff,

V.

UNITED STATES OF

AMERICA,

Defendant

)

)

) CIVIL ACTION NO.

) 94-164E

) CRIMINAL NO. 91-28E

)

)

)

ORDER

AND NOW, to-wit, this 8th day of July, 1994, it is

hereby ORDERED, ADJUDGED and DECREED that:

1. Motion to Amend habeas Corpus Petition (Doc.

141) be and the same hereby is DENIED;

2. Motion to Vacate (Doc. 138) be and the same

hereby is DENIED;

3. Motion for Recusal of Judge Cohill under 28

U.S.C. sections 144 and 455 (Doc. 141) be and the same

hereby is DENIED;

4. Motion for Recusal of Judge Cohill from All Pro-

ceedings (Doc. 141) be and the same hereby is DENIED.

5. Motion to Vacate All Judgments, Orders and

Decrees Against Plaintiffs (Doc. 141) be and the same

hereby is DENIED.

/s/ Maurice B. Cohill, Jr.

MAURICE B. COHILL, JR.

JUDGE

2a

cc: Richard A. Cole, M.D.

Reg. No. 10509-068

BHM-H FPC Maxwell AFB

Montgomery, AL 36112

Asst. United States Attorney

CR CREAM IA I8IP NR LL ENR TOD NEA AE Aa

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 94-3613

USA

VS.

Cole

Richard A. Cole, Appellant

(Western District of Pennsylvania Civil No. 91-cr-00028E)

ORDER

Pursuant to Rule 3(a) of the Federal Rules of Appel-

late Procedure and Third Circuit LAR Misc. 107.2,

It is ORDERED that the above-entitled case is hereby

dismissed for failure to timely prosecute;

It is FURTHER ORDERED that a certified copy of this

order be issued forthwith as the mandate.

For the Court,

/s/ [Illegible]

Acting Clerk

Date: December 30, 1994

cc: Mr. Richard A. Cole

Bonnie R. Schlueter, Esq.

4a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

June 23, 2000

#A-84

No. 94-3613

Richard A. Cole,

Appellant

v.

United States

(WD of PA D.C. Crim No. 91-28E)

Present: MCKEE, BARRY and FUENTES, Circuit Judges

(Corrected Version of) Motion by Appellant to

Reopen this Appeal, to Docket Petitioner’s

Habeas Corpus Appeal Brief Nunc Pro Tunc

Because of Fraud on the Court, or in the Alter-

native, to Order Hearings on the Matter of a

Scheme to Commit Fraud on this Court by Syl-

via Cole and Steven Cole which this Court may

wish to construe as a Motion to Reopen Appeal

and for Leave to File Brief Out of Time.

/s/ Lynn M. Caswell

Lynn M. Caswell

Case Manager (267)299-4922

Response was due 6/21/00

ORDER

The foregoing motion is denied.

By the Court ,

/s/ Maryanne Trump Barry

Maryanne Trump Barry

Circuit Judge

Dated: August 1, 2000

PMT GY FID ett

;

5a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

August 16, 2000

#E-8

No. 94-3613

United States

v.

Richard A. Cole,

Appellant

(WD of PA D.C. Crim No. 91-28E)

Present: MCKEE, BARRY and FUENTES, Circuit Judges

Petition for Rehearing En Banc by Appellant,

Richard A. Cole, which the Court may wish to

construe as a Motion to Reconsider Court Order

of August 1, 2000 denying Motion to Reopen

Appeal. This will not be filed as a Petition for

Rehearing or distributed to the Court en banc

unless so directed.

/s/ Lynn M. Caswell

Lynn M. Caswell

Case Manager (267)299-4922

#A-84 order of 8/1/00

attached for your information

ORDER

The foregoing motion is denied.

By the Court

/s/ Maryanne Trump Barry

Maryanne Trump Barry

Circuit Judge

Dated: August 24, 2000

6a

APPENDIX E

Title 28. Section 2255. Federal custody; remedies on

motion attacking sentence.

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to be

released upon the ground that the sentence was imposed

in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to

impose such sentence, or that the sentence was in excess

of the maximum authorized by law, or is otherwise sub-

ject to collateral attack, may move the court which

imposed the sentence to vacate, set aside or correct the

sentence.

A motion for such relief may be made at any time.

Unless the motion and the files and records-of the

case conclusively show that the prisoner is entitled to no

relief, the court shall cause notice thereof to be served

upon the United States attorney, grant a prompt hearing

thereon, determine the issues and make findings of fact

and conclusions of law with respect thereto. If the court

finds that the judgment was rendered without jurisdic-

tion, or that the sentence imposed was not authorized by

law or otherwise open to collateral attack, or that there

has been such a denial or infringement of the constitu-

tional rights of the prisoner as to render the judgment

vulnerable to collateral attack, the court shall vacate and

_ set the judgment aside and shall discharge the prisoner or

resentence him or grant a new trial or correct the sen-

tence as may appear appropriate.

7a

A court may entertain and determine such motion

without requiring the production of the prisoner at the

hearing. :

The sentencing court shall not be required to enter-

tain a second or successive motion for similar relief on

behalf of the same prisoner.

An appeal may be taken to the court of appeals from

the order entered on the motion as from a final judgment

on application for a writ of habeas corpus.

An application for a writ of habeas corpus in behalf

of a prisoner who is authorized to apply for relief by

motion pursuant to this section, shall not be entertained if

it appears that the applicant has failed to apply for relief,

by motion, to the court which sentenced him, or that such

court has denied him relief, unless it also appears that the

remedy by motion is inadequate or ineffective to test the

legality of his detention.

8a

APPENDIX F

MISCELLANEOUS LOCAL APPELLATE RULES FOR

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

LAR MISC. 107.0 SANCTIONS

107.2 Dismissal for Failure to Prosecute.

(a) When an appellant fails to comply with the

Federal Rules of Appellate Procedure or the

Local Appellate Rules of this Court, the Clerk

shall issue written notice to counsel or to the

appellant who appears pro se that upon the

expiration of fourteen (14) days from the date

of the notice, the appeal may be dismissed for

want of prosecution unless appellant remedies

the deficiency within that time. If the defi-

ciency is not remedied within this period, the

Clerk is authorized to dismiss the appeal for

want of prosecution and issue a certified copy

thereof to the Clerk of the district court as the

mandate. The appellant shall not be entitled to

remedy the deficiency after the appeal is dis-

missed except by the order of the Court. A

motion to set aside such an order must be

justified by the showing of good cause and may

not be filed after ten (10) days of the date of

dismissal. If the appeal is one taken from the

District Court of the Virgin Islands, an addi-

tional ten (10) days shall be added to the time

limits specified in this paragraph.

(b) Notwithstanding subsection (a), if an appellant

fails to comply with the Federal Rules of

Appellate Procedure and the Local Appellate

Rules with respect to the timely filing of a brief

and appendix, at any time after the seventh day

. following the due date, the Clerk is authorized

ee et ee es eee nee

9a ;

to dismiss the anneal) for want of timely pros-

ecution. The procedure to be followed in

requesting an order to set aside dismissal of the

appeal is the same as that set forth in subsec-

tion (a).

10a

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RICHARD A. COLE, ) MANDAMUS ACTION

M.D., ) Civil Action No. 98-3612

Appellant/Petitioner ) Based on Docket No.

VS. ) 94-3613 from Crim. No. |

UNITED STATES OF ) 91-28 Erie |

AMERICA, )

Appellee/Respondent ) ae ee

1, Sylvia Cole, solemnly swear that I am a resident of

the Commonwealth of Massachusetts, over the age of

eighteen years, have personal knowledge of the facts

stated herein, and can testify competently under oath in

court to their truth if necessary. I swear under oath that

the following facts are true:

1... I signed the attached affidavit in this case before

a notary public on or about July 19, 1999 after a copy had

been given to me for my review and for my records prior

to signing.

I swear under oath and under the penalties of perjury

that the foregoing is true and correct.

Dated July 19, 1999

/s/ Sylvia Cole

Sylvia Cole

Commonwealth of July 19, 1999

Massachusetts 35.

County of Essex

PAROS, ONAL OS EE PTGS We RAT .

i aashord rh ccs + let 3 + tere he Vet

(eh dete Sige, Koki ition es. Nii cts parse : s

shih sak sean Aish oi

=

Bi

&

34

x

&

=

.

=

is

¢

¥

lla

Then personally appeared Sylvia Cole, the above

named affiant, who known to me, signed or acknowl-

edged the foregoing affidavit as her free act and deed,

before me.

/s/ John J. Quinn, Jr.

John J. Quinn, Jr.

Notary Public

My Commission Expires

July 5, 2002

12a

APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RICHARD A. COLE, ) MANDAMUS ACTION

M.D., ) Civil Action No. 98-3612

Appellant/Petitioner ) Based on Docket No.

vs. ) 94-3613 from Crim. No.

UNITED STATES OF ) 91-28 Erie

AMEE.A, ) AFFIDAVIT OF

Appellee/Respondent ) SYLVIA COLE

I, Sylvia Cole, solemnly swear that I am a resident of

the Commonwealth of Massachusetts residing at 8 Hal-

lisey Drive, Newburyport, Massachusetts 01950, over the

age of eighteen years, have personal knowledge of the

facts stated herein, and can testify competently under

oath in court to their truth if necessary. I swear under

oath that the following facts are true:

1...I served as the mailing agent for my brother-in-

law, Richard A. Cole, M.D., during the period of April 20,

1993, to October 5, 1995, while Doctor Cole was incarcer-

ated at Federal Prison Camp, Maxwell Air Force Base,

Montgomery, AL. I did so because, while incarcerated,

Doctor Cole did not have the necessary funds to make

copies, or afford postage to be able to communicate with

the Courts of the United States.

2... Thus Doctor Cole would send me material from

Maxwell addressed to Mr. & Mrs. Steven P. Cole, 8 Hal-

lisey Drive, Newburyport, MA 01950 to be copied with

instructions as to where and how to send it. Steven P.

asin WPL tol BSP OLGA RE CET EDO RE PRAM REE So

yin

se ai tinea tN

13a

Cole is my husband and the brother of Richard A. Cole,

MD. -

3... .On or about November 22, 1994, I received a

packet of material from Doctor Cole containing, but not

limited to, an appellant’s brief for his appeal in the

United States Court of Appeals for the Third Circuit,

Docket No. 94-3613, a motion for an expedited appeal,

and a motion for release to his own recognizance. I sent

all this material plus my declaration: proof of service by

mail to the Clerk of Court, United States Court of

Appeals for the Third Circuit, Philadelphia, PA on

Wednesday, November 23, 1994, via Federal Express for

arrival on Friday, November 25, 1994, since Thursday was

Thanksgiving Day. I called Federal Express on Friday,

and they assured me that the package was delivered. I

have attached a copy of the Federal Express receipt with

tracking number of 2318346074. This was billed to my

Federal Express Account No. 173808992 which in turn

was billed to my Discover Card No. 6011 0013 3151 6320

expiration 04/99.

4...In early January 1995, Doctor Cole called me to

tell me that his appeal, Docket No. 94-3613, had been

dismissed on December 30, 1994, because of “failure to

timely prosecute”, and that none of the material I sent

had been received. I called the Clerk’s Office, and the

spokeswoman said that it may have been “the one that

was dismissed by accident”. I was told that Doctor Cole

could simply file a motion to have the dismissal set aside

for good cause. This call was made from my home tele-

phone (508)462-8805 now (978)462-8805. I thereupon cop-

ied all the material sent earlier. Doctor Cole sent me the

motion to set aside this dismissal, and I sent this along

l4a

with the appellant’s brief, motion for an expedited

appeal, and my declaration: proof of service by mail to

the Clerk of Court, U.S. Court of Appeals for the Third

Circuit in Philadelphia, PA, via Federal Express on Fri-

day, January 6, 1995, for delivery on Monday, January 9,

1995. Attached is the Federal Express Receipt with track-

ing number 2318346332 which was likewise billed to my

account listed above and then billed to my Discover Card

account.

5...I called the Clerk’s Office on Monday, January 9,

1995, to see if the material had been delivered, and was

assured by the spokeswoman that all was in order.

Despite the fact that I sent a request for a date stamped

copy of the cover sheet of each of the documents when I

sent the material, I never received any date stamped

copies. I have attached the Federal Express receipt and

tracking number.

I swear under oath and under the penalties of perjury

that the foregoing is true and correct.

Dated July 19, 1999

/s/ Sylvia Cole

Sylvia Cole

Commonwealth of July 19, 1999

Massachusetts SS.

County of Essex

é

;

:

Ee a ee en ee

15a

Then personally appeared Sylvia Cole, the above

named affiant, who known to me, signed or acknowl-

edged the foregoing affidavit as her free act and deed,

before me.

/s/ John J. Quinn, Jr.

John J. Quinn, Jr.

Notary Public

My Commission Expires

July 5, 2002

l6a

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RICHARD A. COLE, ) MANDAMUS ACTION

M.D., ) Civil Action No. 98-3612

Appellant/Petitioner ) Based on Docket No.

vs. ) 94-3613 from Crim. No.

UNITED STATES OF ) 91-28 Erie

AMERICA, )

Appellee/Respondent ) ee

STEVEN P. COLE

I, Steven P. Cole, solemnly swear that I am a resident

of the Commonwealth of Massachusetts, over the age of

eighteen years, have personal knowledge of the facts

stated herein, and can testify competently under oath in

court to their truth if necessary. I swear under oath that

the following facts are true:

1... 1 signed the attached affidavit in this case before

a notary public on or about July 28, 1999 after a copy had

been given to me for my review and for my records prior

to signing.

I swear under oath and under the penalties of perjury

that the foregoing is true and correct.

Dated July 11, 1999

/s/ Steven P. Cole

Steven P. Cole

Commonwealth of July 11, 1999

Massachusetts SS.

County of Essex ;

ABA BAB I Rit I BO el thu

Si I C4 DE I aa ee td

AP ren PER Or aa

iter ieed Nigel Mae 8 bg aN

17a

Then personally appeared Steven P. Cole, the above

named affiant, who known to me, signed or acknowl-

edged the foregoing affidavit as his free act and deed,

before me.

/s/ John J. Quinn, Jr.

John J. Quinn, Jr.

Notary Public

My Commission Expires

July 5, 2002

18a

APPENDIX J

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RICHARD A. COLE, ) MANDAMUS ACTION

M.D., ) Civil Action No. 98-3612

Appellant/Petitioner ) Based on Docket No.

vs. ) 94-3613 from Crim. No.

UNITED STATES OF ) 91-28 Erie

AMERICA, )

Appellee/Respondent ) apne sone Migr

STEVEN P. COLE

I, Steven P. Cole, solemnly swear that I am a resident

of the Commonwealth of Massachusetts residing at 8

Hallisey Drive, Newburyport, Massachusetts 01950, over

the age of eighteen years, have personal knowledge of the

facts stated herein, and can testify competently under

oath in court to their truth if necessary. I swear under

oath that the following facts are true:

1 ...I served as the mailing agent for my brother,

Richard A. Cole, M.D., during the period of April 20,

1993, to October 5, 1995, while Doctor Cole was incarcer-

ated at Federal Prison Camp, Maxwell Air Force Base,

Montgomery, AL. I did so because, while incarcerated,

Doctor Cole did not have the necessary funds to make

copies, or afford postage to be able to communicate with

the Courts of the United States.

2... Thus Doctor Cole would send me material from

Maxwell addressed to Mr. & Mrs. Steven P. Cole, 8 Hal-

lisey Drive, Newburyport, MA 01950 to be copied with

instructions as to where, and how to send it.

19a

3... I sent many packages via Federal Express on

behalf of Richard A. Cole, MD. Each of these was billed to

the Federal Express account of Steven P. Cole, 8 Hallisey

Drive, Newburyport, MA 01950, account no. 173808992

which in turn was billed to the Discover Card of Steven P.

Cole, account no. 6011 0013 3151 6320 expiration 04/99. I

personally reviewed the Discover Account monthly state-

ments to make sure each Federal Express package sent for

delivery had been billed and thereafter was paid through

this Discover Card account. All Federal Express packages

sent for Richard A. Cole, MD were billed as above; there

were no exceptions.

I swear under oath and under the penalties of perjury

that the foregoing is true and correct.

Dated July 11, 1999

= /s/ Steven P. Cole

Steven P. Cole

Commonwealth of July 11, 1999

Massachusetts ss.

County of Essex

Then personally appeared Steven P. Cole, the above

named affiant, who known to me, signed or acknowl-

edged the foregoing affidavit as his free act and deed,

before me.

/s/ John J. Quinn, Jr.

John J. Quinn, Jr.

Notary Public

My Commission Expires

July 5, 2002

20a

APPENDIX K

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA

Richard A. Cole, MD, )

Plaintiff, ) C.A. No. 98-92 Erie

Vs. )

Pennsylvania Blue )

Shield, Hammermill )

Paper Co., Lakeview Forge, )

Warren State Hospital, and )

employee benefit programs )

to be identified and

named later,

Defendants

— ee ee

SUBPOENA TO PRODUCE DOCUMENTS OR

THINGS FOR DISCOVERY PURSUANT TO

FEDERAL RULE OF CIVIL PROCEDURE 45

To: Lance McGlothin, Records Custodian

Federal Express Legal Dept.

1980 Nonconnah Blvd.

Memphis, TN 38132

Within twenty (20) days after the service of this sub-

poena, you are ordered by the court to produce the

following documents or things: proof of service of the

following two packages allegedly billed to account no.

173808992, Steven P. Cole, 8 Hallisey Drive, New-

buryport, MA 01950, airbill no. 2318346074 sent on or

about November 23, 1994 to U.S. Court of Appeals,

Philadephia, PA and airbill no. 2318346332 billed to the

same account and sent to the same place on or about

January 6, 1995. Copies of these two airbills are

attached. Kindly confirm that you will research both the

2

2la

airbill number and dates of shipment from November

15, 1994 through January 15, 1995. Please provide a copy

of the “Customer Detail Screen” for this account.

Please send to Richard A. Cole, 14 Charles Street,

Newburyport, MA 01950 within twenty (20) days of ser-

vice of this subpoena.

You may deliver or mail legible copies of the docu-

ments or produce things requested by this subpoena,

together with the certificate of compliance, to the party

making this request at the address listed above. You have

the right to seek in advance the reasonable cost of prepar-

ing the copies or producing the things sought.

If you fail to produce the documents or things

required by this subpoena within twenty (20) days after

its service, the party serving this subpoena may seek a

court order compelling you to comply with it.

This subpoena was issued at the request of the fol-

lowing person: Richard A. Cole, 14 Charles Street, New-

buryport, MA 01950, Tel.978.462.8470, Plaintiff pro se.

(c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the

issuance and service of a subpoena shall take reasonable

steps to avoid imposing undue burden or expense on a

person subject to that subpoena. The court on behalf of

which the subpoena was issued shall enforce this duty

and impose upon the party or attorney in breach of this

duty an appropriate sanction which may include, but is

not limited to, lost earnings and a reasonable attorney’s

fee.

22a

(2)(A) A person commanded to produce and

permit inspection and copying of designated books,

papers, documents or tangible things, or inspection of

premises need not appear in person at the place of pro-

duction or inspection unless commanded to appear for a

deposition, hearing or trial.

(B) Subject to paragraph d(2) of this rule, a

person commanded to produce and permit inspection

and copying may, within 14 days after service of the

subpoena or before the time specified for compliance if

such time is less than 14 days after service, serve upon

the party or attorney designated in the subpoena written

objection to inspection or copying of any or all of the

designated materials or of the premises. If objection is

made, the party serving the subpoena shall not be enti-

tled to inspect and copy the materials or inspect the

premises except pursuant to an order of the court by

which the subpoena was issued. If objection has been

made, the party serving the subpoena may, upon notice

to the person commanded to produce, move at any time

for an order to compel production. Such an order to

compel production shall protect any person who is not a

party or an officer of a party from significant expense

resulting from the inspection and copying commanded.

(3)(A) On timely motion, the court by which a

subpoena was issued shall quash or modify the subpoena

if it

(i) fails to allow reasonable time for

compliance;

(ii) requires a person who is not a

party or an officer of a party to travel to

23a

a place more than 100 miles from the

place where that person resides, is

employed or regularly transacts busi-

ness in person, except that, subject to

the provisions of clause (c)(3)(B)(iii) of

this rule, such a person may in order to

attend trial be commanded to travel

from any such place within the state in

which the trial is held, or

(iii) requires disclosure of privileged

or other protected matter and no excep-

tion or waiver applies, or

(iv) subjects a person to an undue bur-

den.

(B) If a subpoena

(i) requires disclosure of a trade

secret or other confidential

research, development, or com-

mercial information, or

(ii) requires disclosure of an unre-

tained expert’s opinion or infor-

mation not describing specific

events or occurrences in dispute

and resulting from the expert's

study made not at the request of

any party, or

(iii) requires a person who is not a

party or an officer of a party to

incur substantial expense to travel

more than 100 miles to attend

trial,

the court may, to protect a person subject to or affected by

the subpoena, quash or modify the subpoena or, if the

party in whose behalf the subpoena is issued shows a

24a

substantial need for the testimony or material that cannot

be otherwise met without undue hardship and assures

that the person to whom the subpoena is addressed will

be reasonably compensated, the court may order appear-

ance or production only upon specified conditions.

(d) Duties in Responding to Subpoena

(1) A person responding to a subpoena to pro-

duce documents shall produce them as

they are kept in the usual course of busi-

ness or shall organize and label them to

correspond with the categories in the

demand.

(2) When information subject to a subpoena is

withheld on a claim that is privileged or

subject to protection as trial preparation

materials, the claim shall be made

expressly and shall be supported by a

description of the nature of the documents,

communications, or things not produced

that is sufficient to enable the demanding

party to contest the claim.

By the Court: -

/s/ James A. Drash

- James A. Drash

Clerk, Civil Divison

Date: July 16, 1999

Seal of the Court

25a

APPENDIX L

Federal Express Corporation

1980 Nonconnah Boulevard

Memphis, TN 38132

U.S. Mail: PO Box 727

Memphis, TN 38194-1842

Telephone 901-395-3382

FedEx

Federal Express

VIA OVERNIGHT LETTER

July 28, 1999

Mr. Richard Cole

14 Charles Street

Newburyport, MA 01950

RE: Subpoena Response — #98 92 Erie — FEC File # 16892

Dear Mr. Cole:

Our research department found no documents of deliv-

eries to the address listed on the above referenced sub-

poena during the time period of 11/15/94 thru 01/15/95.

Sincerely,

FEDERAL EXPRESS CORPORATION

/s/ Lance McGlothin

Lance McGlothin

Records Custodian

901-395-3320

Fax # 901-395-5861

26a

APPENDIX M

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA

Richard A. Cole, MD,

Plaintiff,

VS.

Pennsylvania Blue

Shield, Hammermill

Paper Co., Lakeview

Forge, Warren State

Hospital, and employee

benefit programs to be

identified and named

later,

Defendants

C.A. No. 98-92 Erie

ee

SUBPOENA TO PRODUCE DOCUMENTS OR

THINGS FOR DISCOVERY PURSUANT TO

FEDERAL RULE OF CIVIL PROCEDURE 45

To: Discover Financial Services, Inc.

Attn: Kevin Mason

2500 Lake Cook Road, One North

Riverwoods, IL 60015

Within twenty (20) days after the service of this sub-

poena, you are ordered by the court to produce the

following documents or things: copies of any charges

made to the following account number 6011 0013 3151

6320 expiration 04-99 held by Steven P. Cole in the time

period of June 1994 through October 1995 by Federal

Express and fhe dates of those charges. Steven P. Cole’s

address is 8 Hallisey Drive, Newburyport, MA 01950,

soc.sec.#023-38-3566, DOB 05-22-58.

27a

Please send to Richard A. Cole, 14 Charles Street,

Newburyport, MA 01950 within twenty (20) days of ser-

vice of this subpoena.

You may deliver or mail legible copies of the docu-

ments or produce things requested by this subpoena,

together with the certificate of compliance, to the party

making this request at the address listed above. You have

the right to seek in advance the reasonable cost of prepar-

ing the copies or producing the things sought.

If you fail to produce the documents or things

required by this subpoena within twenty (20) days after

its service, the party serving this subpoena may seek a

court order compelling you to comply with it.

This subpoena was issued at the request of the fol-

lowing person: Richard A. Cole, 14 Charles Street, New-

buryport, MA 01950, Tel.978.462.8470, Plaintiff pro se.

(c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the

issuance and service of a subpoena shall take reasonable

steps to avoid imposing undue burden or expense on a

person subject to that subpoena. The court on behalf of

which the subpoena was issued shall enforce this duty

and impose upon the party or attorney in breach of this

duty an appropriate sanction which may include, but is

not limited to, lost earnings and a reasonable attorney's

fee.

(2)(A) A person commanded to produce and

permit inspection and copying of designated books,

papers, documents or tangible things, or inspection of

28a

premises need not appear in person at the place of pro-

duction or inspection unless commanded to appear for a

deposition, hearing or trial.

(B) Subject to paragraph d(2) of this rule, a

person commanded to produce and permit inspection

and copying may, within 14 days after service of the

subpoena or before the time specified for compliance if

such time is less than 14 days after service, serve upon

the party or attorney designated in the subpoena written

objection to inspection or copying of any or all of the

designated materials or of the premises. If objection is

made, the party serving the subpoena shall not be enti-

tled to inspect and copy the materials or inspect the

premises except pursuant to an order of the court by

which the subpoena was issued. If objection has been

made, the party serving the subpoena may, upon notice

to the person commanded to produce, move at any time

for an order to compel production. Such an order to

compel production shall protect any person who is not a

party or an officer of a party from significant expense

resulting from the inspection and copying commanded.

(3)(A) On timely motion, the court by which a

subpoena was issued shall quash or modify the subpoena

if it

(i) fails to allow reasonable time for

compliance;

(ii) requires a person who is not a

party or an officer of a party to

travel to a place more than 100

miles from the place where that

person resides, is employed or

regularly transacts business in

29a

person, except that, subject to the

provisions of clause (c)(3)(B)(iii) of

this rule, such a person may in

order to attend trial be com-

manded to travel from any such

place within the state in which the

trial is held, or

(iii) requires disclosure of privileged

or other protected matter and no

exception or waiver applies, or

(iv) subjects a person to an undue bur-

den.

(B) If a subpoena

(i) requires disclosure of a trade

secret or other confidential

research, development, or com-

mercial information, or

(ii) requires disclosure of an unre-

tained expert’s opinion or infor-

mation not describing specific

events or occurrences in dispute

and resulting from the expert’s

study made not at the request of

any party, or

(iii) requires a person who is not a

party or an officer of a party to

incur substantial expense to travel

more than 100 miles to attend

trial,

the court may, to protect a person subject to or affected by

the subpoena, quash or modify the subpoena or, if the

party in whose behalf the subpoena is issued shows a

substantial need for the testimony or material that cannot

30a

be otherwise met without undue hardship and assures

that the person to whom the subpoena is addressed will

be reasonably compensated, the court may order appear-

ance or production only upon specified conditions.

(d) Duties in Responding to Subpoena

(1) A person responding to a subpoena to produce

documents shall produce them as they are kept

in the usual course of business or shall organize

and label them to correspond with the categories

in the demand. 7

(2) When information subject to a subpoena is with-

held on a claim that is privileged or subject to

protection as trial preparation materials, the

claim shall be made expressly and shall be sup-

ported by a description of the nature of the

documents, communications, or things not pro-

duced that is sufficient to enable the demanding

party to contest the claim.

By the Court:

/s/ James A. Drash

James A. Drash

Clerk, Civil Division

Date: July 16, 1999

Seal of the Court

:

3la

APPENDIX N

NOVUS CREDIT SERVICES INC.

A Subsidiary of Morgan Stanley Dean Witter & Co.

Kevin B. Mason

Senior Legal Assistant

July 22, 1999

Richard A. Cole

14 Charles Street

Newburyport, MA 01950

In re: Cole, Steven P.

Dear Mr. Cole:

Enclosed are the documents provided at your request.

Since Discover Financial Services, Inc., f/k/a NOVUS

Services, Inc. is a subsidiary of NOVUS Credit Services,

Inc., we are furnishing the information you requested.

Sincerely, ‘

/s/ Kevin Mason/Srb

Kevin B. Mason

KBM/srb

Enclosure

2500 Lake Cook Road, Riverwoods, Illinois 60015

Tel[847]405-2885 Fax[847]405-3555

32a

APPENDIX O

6011 0013 3151 6320 CARDMEMBER STATEMENT

12:42:08 07/21/99

COLE, STEVEN P CLOSING DATE: 12/06/94

VIEW DATE: 12 / 94

MERCHANDISE/RETAIL —

11/01 FED. EXP. 02318346844 NEWBURYPORT MA 15.50

11/01 FED. EXP. 02266326602 NEWBURYPORT MA 15.50

11/03 SAMS CLUB 006337 SEABROOK NH 170.27

11/03 FED. EXP. 02318346461 NEWBURYPORT MA 15.50

11/03 FED. EXP. 02318346483 NEWBURYPORT MA 15.50

11/03 FED. EXP. 02318346726 NEWBURYPORT MA 15.50

11/14 FED. EXP. 02014929641 NEWBURYPORT MA 15.50

11/15 FED. EXP. 02318346446 NEWBURYPORT MA 15.50

11/15 FED. EXP. 02014929626 NEWBURYPORT MA 15.50

11/15 FED. EXP. 02014929663 NEWBURYPORT MA 15.50

11/15 FED. EXP. 03768410391 NEWBURYPORT MA 15.50

11/16 FED. EXP. 02318346450 NEWBURYPORT MA 15.50

11/16 FED. EXP. 03768410380 NEWBURYPORT MA 15.50

11/17 SAMS CLUB 006337 SEABROOK NH 110.65

11/19 FED. EXP. 03768410365 NEWBURYPORT MA 15.50

11/28 SAMS CLUB 006337 SEABROOK NH 124.39

11/28 SAMS CLUB 006337 SEABROOK NH 220.99

11/30 SAMS CLUB 006337 SEABROOK NH 88.47

12/02 SAMS CLUB 006337 SEABROOK NH 48.78

33a

APPENDIX P

6011 0013 3151 6320 CARDMEMBER STATEMENT

12:42:18 07/21/99

COLE, STEVEN P CLOSING DATE: 02/06/95

VIEW DATE: 02 / 95

MERCHANDISE/RETAIL

01/05 FED. EXP. 03768410343 NEWBURYPORT MA 15.50

01/11 FED. EXP. 03768410332 NEWBURYPORT MA 15.50

01/15 PETITE SOPH 2611 BURLINGTON MA 29.00

01/15 MARSHALLS 475 HAVERHILL MA 43.94

01/15 CHILDREN’S PALACE BURLINGTON MA 45.64

01/17 STEAMSHIP AUTHORITY WOODS HOLE MA

140.00

01/18 FED. EXP. 03768409013 NEWBURYPORT MA 15.50

01/18 FED. EXP. 03768409024 NEWBURYPORT MA 15.50

01/19 FED. EXP. 03768409046 NEWBURYPORT MA 15.50

34a

APPENDIX Q

49 Pennsylvania Code § 16.96

Prescribing, administering and dispensing controlled

sympathomimetic amines

(a)

(b)

(c)

(1)

(2)

(3)

(4)

(5)

(6)

A medical doctor may not prescribe, administer

or dispense, or cause the prescription, adminis-

tration or dispensation of a controlled sub-

stance which is an amphetamine or other

sympathomimetic amine, or a compound,

derivative, congener of analog thereof, except

as set forth in this section.

A medical doctor may not prescribe, administer

or dispense, or issue an order to administer or

dispense, for weight reduction or control, a

drug described in subsection (a) which is or

includes a Schedule II controlled substance.

A medical doctor may personally administer or

dispense drugs described in subsection (a) for

the tollowing:

The treatment of narcolepsy.

The treatmen: of attention deficit disorder with

hyperkinesis.

The treatment of intractable seizure disorders.

A study approved by the United States Food

and Drug Administration under an approved

Investigational New Drug Application.

Inpatient use in a hospital.

For the treatment of exogenous obesity, other

than by use of a drug described in subsection

(a) which is or includes a Schedule II controlled

substance, in a regimen of weight reduction

(i) ~

(ii)

(7)

(d)

35a

based upon caloric restriction, if the following

conditions are met:

Before initiating the drug treatment, the medi-

cal doctor determines through review of the

records or information concerning prior treat-

ment which another treating doctor has pro-

vided to the medical doctor, that the patient has

made a substantial good-faith effort to lose

weight under a doctor-directed treatment pro-

gram not utilizing drugs described in subsec-

tion (a), and that the treatment has not been

effective. A determination made by a review of

records or information provided by another

doctor shall be documented in the patient's

medical record.

Before initiating the drug treatment, the medi-

cal doctor obtains a thorough history, performs

a thorough physical examination of the patient

and rules out the existence of a recognized

contraindication to the use of the drug. See

§ 16.92 (relating to prescribing, administering

and dispensing controlled substances).

To diagnose or treat a condition of a patient

other than as provided for in this subsection,

and other than for fatigue that is not a symp-

tom of chronic illness or an effect of the treat-

ment of a chronic illness, or for weight

reduction or control.

A medical doctor shall assign a different five-

digit patient identification number to each

patient to or for whom he prescribes, orders,

administers or dispenses a controlled sym-

pathomimetic amine. Once assigned, the

number may not be changed. In a group prac-

tice, each medical doctor treating the patient

with controlled sympathomimetic amine shall

(e)

(f)

36a

use the same numiber. The medical doctor shall

keep, as part of his medical records, a complete

list, by patient identification number, of

patients treated with a controlled sym-

pathomimetic amine. For each identification

number, the list shall include the patient's

name, social security number and address.

A medical doctor who prescribes, administers

or dispenses, or causes the prescription, admin-

istration or dispensation of a drug described in

subsection (a) shall file a quarterly report with

the Board identifying, by the five-digit identi-

fication number assigned to the patient in com-

pliance with subsection (d), each drug used, the

quantity and dosage prescribed, administered

or dispensed, the treatment or diagnostic pur-

pose for which it was employed and the dates

the drug was prescribed, administered or dis-

pensed. Quarterly reports shall be filed by day

20 of the month following the quarter, that is,

April 20, July 20, October 20, and January 20.

The requirements of subsection (e) do not apply

for a calendar quarter during which a medical

doctor distributes or causes the distribution of

less than 1,500 dosage units of controlled sym-

pathomimetic amines. A medical doctor who

files less than four quarterly reports in a calen-

dar year will be required to file an annual

report, due by January 20, which shall contain

the same information required in the quarterly

report. The first annual report shall be due

January 20, 1989, and shall include the final

quarter of 1987, as well as all quarters of 1998.

37a

(gz) This section will be deleted by January 17, 1992,

by the Board, unless it is revised or rees-

tablished by the Board within that 5-year

period.

(h) This section is effective October 1, 1987.

38a

APPENDIX R

28 Pa. Bull. 1316

PENNSYLVANIA BULLETIN

ISSUE: Volume 28, Number 11

ISSUE DATE: Saturday, March 14, 1998

SUBJECT: RULES AND REGULATIONS

AGENCY: STATE BOARD OF MEDICINE -

28 Pa. Bull. 1316

PENNSYLVANIA CODE CITATION:

[49 PA. CODE CH. 16]

Title 48- PROFESSIONAL AND VOCATIONAL

STANDARDS

STATE BOARD OF MEDICINE

Sympathomimetic amines

The State Board of Medicine (Board) amends § 16.96, as

set forth in Annex A. The objective of this amendment is

to effectuate the sunset provision at § 16.96.

Notice of proposed rulemaking has been omitted under

section 204(3) of the act of July 31, 1968 (P.LO. 769, No.

240) (45 P.S. § 1204(3)) (CDL) because notice of proposed

rulemaking is unnecessary.

This regulation sunsetted by its own terms on January 17,

1992. The Board has determined not to take any action to

revise or reestablish the regulation.

Accordingly, in this amendment, the Board deletes

§ 16.96.

Compliance with Executive Order 1996-1

The Board reviewed this rulemaking and considered the

purpose and likely impact upon the public and the regu-

lated population under the directives of Executive Order

39a

1996-1, Regulatory Review and Promulgation. The final

omitted regulation addresses a compelling public interest

as described in this Preamble and otherwise complies

with Executive Order 1996-1.

Statutory Authority

This amendment is adopted under section 8 of the Medi-

cal Practice Act (63 P.S. § 422.8).

Fiscal Impact and Paperwork Requirements

This amendment will have no fiscal impact on the Com-

monwealth or its political subdivisions.

Regulatory Review

Under section 5.1(c) of the Regulatory Review Act (71 P.S.

§ 745.5.1(c)), a copy of the final-form regulation was

submitted on January 14, 1998, to the Independent Regu-

latory Review Commission (IRRC) and the Chairpersons

of the Senate Committee on Consumer Protection and

Professional Licensure and the House Committee on Pro-

fessional Licensure. In addition, at the same time, the

final-form regulation was submitted to the Attorney Gen-

eral for review and comment under the Commonwealth

Attorneys Act (71 P.S. §§ 732-101-732-506).

Under section 5(c) of the Regulatory Review Act, the

regulation was deemed approved by the House and Sen-

ate Committees on February 3, 1998, and by the IRRC on

February 13, 1998.

Additional information

Individuals who desire information are invited to submit

inquiries to Cindy L. Warner, Board Administrator, State

40a

Board of Medicine, Post Office Box 2649, Harrisburg, PA

17105-2649, (717)783-1400.

Findings:

The Board finds that: ;

(1) Public notice of intention to amend its regula-

tions as adopted by this orcer under the pro-

cedures specified in sections 201 and 202 of the

CDL (45 P.S. §§ 1201 and 1202) has been omit-

ted under the authority contained in section

204(3) of the CDL because the Board has, for

good cause, found that the procedures speci-

fied in sections 201 and 202 of the CDL are, in -

this circumstance, unnecessary because the

provisions deleted are ineffective by the sunset

provision in § 16.96(7)(g).

(2) The amendment of the regulations of the Board

in the manner provided in this order is neces-

sary and appropriate for the administration of

its authorizing statute.

Order

The Board, acting under its authorizing statute, orders:

(a) The regulations of the Board, 49 Pa. Code

Chapter 16, are amended by deleting § 16.96, to

read as set forth in Annex A.

(b) The Chairperson of the Board shall submit this

order and Annex A to the Office of the General

Counsel and the Office of Attorney General for

approval as to legality as required by law.

(c) The Chairperson of the Board shall certify this

order and Annex A and deposit them with the

Legislative Reference Bureau as required by

law.

4la

(d) This order shall become effective immediately

upon publication in the Pennsylvania Bulletin.

DANIEL B. KIMBALL, Jr., M.D.,

Chairperson

(Editor’s Note: For the text of the order of the Indepen-

dent Regulatory Review Commission relating to this doc-

ument, see 28 Pa.B. 1185 (February 28, 1998).)

Fiscal Note: 16A-496. No fiscal impact; (8) recommends

adoption. -

Annex A

TITLE 49. PROFESSIONAL AND VOCATIONAL STAN-

DARDS

PART I. DEPARTMENT OF STATE

Subpart A. PROFESSIONAL AND OCCUPATIONAL

AFFAIRS

CHAPTER 16. STATE BOARD OF MEDICINE - GEN-

ERAL PROVISIONS

Subchapter F. MINIMUM STANDARDS OF PRACTICE

§ 16.96 (Reserved).

HISTORY Pa.B. Doc- No. 98-412. Filed for public inspec-

tion March 13, 1998.