Reply Brief — Brown v. McCormick

ORIGINAL —

No. 00-01704 — — cuarK

IN THE UNITED STATES SUPREME COURT

OCTOBER 2000 TERM

I ceninatiiidamemsimnen

Rodney Earl Cohen Petitioner

VS.

Don Grant, et al. Respondents

Reply Brief

AOA SNES POLE EOL RE NY TINE IS ANE NEOLES ERLE LOST EIEN AERA NA ALARA AEE ME LLL AT ASP ELODIE,

Rodney Earl Cohen,

Petitioner

Delta Correctional Facility

D-A-Pod

3800 County Rd. 540

Greenwood, MS 38930

RECEIVED |

wee ‘SEP 1 8 2001 Z

OFFICE OF THE CLERY ‘Z

SUPREME CQURT, U.§, ut ed

New Points Raised

Questions Presented

L

Whether Cohen should be held to the same standards of trained

counsel wherein he failed to file an additional Certificate of Appealibility

after this Honorable Court vacated the judgment in the instant case and

remanded to the Fifth Circuit in light of Artuz V. Bennett

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Table of Authoriti

Cases

Artuz V. Bennett, 531 U.S.—, 121 S.CT. 361(2000)......... ee eee 1,3

Bounds V. Smith, 430 U.S. 817.............. in sbascieclpsimsasiccipeialadinba tenance 2

Homes V. Rommor, 404. U.S. S19 (1D I2G win sesicsccsasssoscsessesoiaccaiacsadeqanecncion 2

Faretta V. California, 95 S.Ct. 2525 (1975)............:::csssccsssecsscecesseceees 2

Slack V. MeDaniel, $29 U.S. 473 ZO00)...ccecicccccsvescisecascossascssencstéstansan 3

United States V. Cronic, 80 L.Ed. 2d 657, (1984) uu... cecssseeeeseees 3

United States ex rel. Williams V. Twomey, 510 F.2d. 634, 640 (CA7), Cert.

denied, 423 U.S. 876, 46 L.Ed. 2d 109, 96 S.Ct. 148 (1975)............... 3

Argument

I. Petitioner's postion is that he should not be held accountable fo

failing to file an additional application for a

after this court granted Certiorari and vacated the judgment and

remanded in light of Artuz V. Bennett, 531 US. -(2000), Wherein thi

Petitioner received no notice of same from the Fifth Circuit.

On November 13, 2000, this Court vacated the judgment of the United

States Court of Appeals for the Fifth Circuit and remanded the case to that

court for further consideration in light of Artuz V. Bennett, 53] US.—,

(2000). While said case was pending before the Fifth Circuit, Cohen was

unaware that he was required to file a new and additional Application for a

COA, as it was his understanding that his first and only Application stood as

submitted.

Cohen would further state to the Court that while the case was

pending, he did not receive any process and/or notice from the Fifth Circuit

that in fact he was allowed to file anew, wherein it would have been very

beneficial and in his best interest to do so. As a matter of fact, this Petitioner

has been and still is most eager to pursue this instant case and has further

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attempted to navigate through these complex proceedings following strictly

by the rules and other applicable laws, in his present pro se capacity.

The record in the instant case clearly supports Cohen's contention that

he has been prudent in the preparation and prosecution of his appeal

process.

Legal Analysis

It is well settled that an accused has a right to effective assistance of

counsel, although this right only extends through trial and terminates at the

conclusion of the direct appeal process. See generally Strickland V.

Washington, 466 U.S. 668 (U.S. 1984) After the conclusion of the direct

appeal process within the highest court of any individual state, counsel is no

longer obligated to pursue any further remedies of a convicted defendant

seeking redress from an unlawful conviction and sentence. Therefore, it is

the burden of the incarcerated defendant to secure alternate counsel, and if

unsuccessful, his only recourse is to proceed in a pro se capacity, in which

proceeding in such capacity is also a right which is guaranteed to an

incarcerated litigant seeking relief from an unlawful conviction and sentence.

_ Bounds V__Smith, 430 U.S. 8]7. This Honorable Court has further

determined that pleadings filed by prisoners who are proceeding pro se

should be liberally construed and that a limited amount of leeway will be

allowed thereof. See Haines V. Kenner, 404 U.S. 519 (1972) and Faretta

V. California, 95 S.Ct 2525 (1975). It is clear from the General Docket

listed as Appendix C to the Respondents Brief in Opposition that no order

was filed and/or any other notice directing Cohen to file a new application

for a Certificate of Appealability, As far as known and understood by

petitioner, his case was to be reviewed by the Fifth Circuit Court of Appeals

to determine if Artuz V. Bennett was applicable thereto. Hence the reason

that Cohen remained silent in regards to filing an additional application for a

COA.

Furthermore, Cohen would state to this Honorable Court that it is his

position that he could adequately avercome the two-pronged hurdle as set

out in this court's ruling in Slack V. McDaniel, 529 U.S. 473 (2000) and

had been aware that he was allowed to plead anew, his pleadings would

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have conformed to such in order to demonstrate that his initial petition states

valid claims therein, which jurists of reason would in fact find it debatable

whether he was denied constitutional rights, in addition to whether the

district court was correct in its procedural ruling. Finally, Cohen would ask

that this Honorable Court take judicial notice of the fact that he is an

incarcerated litigant with limited knowledge as well as limited access to

appellate jurisprudence, wherein Respondents are trained and licensed

attorneys with unlimited access to a full aresenal of legal tools and weapons

within their reach and at their disposal. As Judge Wyzanski was quoted in

this Honorable Courts ruling in United States V. Cronic, 80 LEd 2d 657,

666-667 (1984), “While a criminal trial is not a game in which the

participants are expected to enter the ring with a near match in skills, neither

is it a sacrifice of unarmed prisoners to gladiators." United States ex rel.

Williams V. Twomey, 510 F. 2D 634, 640 (CA7), cert. denied, 423 US.

876, 46L Ed 2d 109, 96 S. Ct. 148 (1975).

Petitioner's position is that the same could be said of and dealing with

the appellate process, and from all indications Cohen is of the opinion he is

the unarmed prisoner pited against the State of Mississippi being the

gladiators with swords drawn. Considering the facts as set out herein, if this

Honorable Court deems it just and appropriate, Cohen would have no

objections to filing any pleading to further demonstrate that he can show

both prongs of the Slack v. McDaniel test.

CONCLUSION

Petitioners position is that he has properly demonstrated that his

failure to file anew regarding his application for a Certificate of

Appelability while this case was pending in the Firth Circuit on remand was

through no fault of his own. Petitioner would further contend that after

scouring through all legal resources available to him, he is still unable to find

any rule or directive instructing that he was allowed and/or required to file

same. Finally, there can be little doubt that Cohen has vigorously attempted

to seek relief from his unlawful conviction and sentence throughout his

pleadings. Therefore Petitioner respectfully asks this Honorable Court to

take judicial notice and consideration of that fact, and if he was in error for

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failing to submit a new application for a COA while this instant case was on

remand to the Fifth Circuit for further consideration in light of 4rtuz, then

construe it as harmless.

Respectfully Submitted,

By: ocd Ean! [od on

Rodney Earl Cohen, Pro Se

MDOC #65407 D.C.F.

3800 County Rd. 540

Greenwood, MS 38930

C tifl { f S -

This is to certify that I, Rodney Earl Cohen, Pro Se petitioner herein,

have caused to be mailed via United States Postal Service, first-class postage

prepaid, a true and correct copy of the foregoing Reply Brief to the

following:

Jo Anne M. McLeod

Special Assistant Attorney General

P.O. Box 220

Jackson, MS 39205

This, the "]*” day of September, 2001

Padney Baal Mls

Rodney Earl Cohen

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