# Reply Brief — Brown v. McCormick > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1798%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2001 - **Citation:** 534 U.S. 815 ## Text 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 Page - 3 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 Page - 4 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 Page - 5 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 Page - 6 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 Page - 7 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1798%3A3. Public record. Not legal advice.