Petition for Writ of Certiorari — Abrego v. United States

Supreme Court, U.S.

FILED

OZIZOAFEBS 2008

NO. OLaINK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 2002

-

JUAN GARCIA ABREGO,

Petitioner,—_——. ~

VS.

UNITED STATES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MICHAEL PANCER*

105 West "F" Street

San Diego, CA 92101

(619) 236-1826

ROBERT J. WATERS

2115 Main Street

Santa Monica, CA 90405

(310) 399-3259

Counsel for Petitioner

JUAN GARCIA ABREGO

*Counsel of Record —

QUESTION PRESENTED FOR REVIEW

Whether Petitioner was denied his right to due process

and equal protection of law, as guaranteed by the Fifth

Amendment to the United States Constitution, when his

timely appeal from the denial of his motion for new trial

based upon newly discovered evidence, pursuant to Rule 33

(b)(1), Federal Rules of Criminal Procedure, was terminated

because a certificate of appealability was not issued in a _

contemporaneous timely appeal from the denial of his motion

pursuant to 28 USC §2255?

i a a ee = . =

LIST OF PARTIES

1. United States of America

2. Juan Garcia Abrego

li

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ........... i

EAS GT PME Wiisieio bs oe.nd nels bd wine cavene’s il

I xis dys cecedesses sc chasberen ]

AMIS OP SURISDICTION «nn... ccc cece cesecceces 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

ME re ae Es 580 8 9-0b 4 sob os bo buh ees 2

STATEMENT OF THE CASE AND FACTS ......... 2

REASONS FOR GRANTING THE WRIT ........... 6

Certiorari Should Be Granted and this Case Remanded

for a Briefing Schedule to Be Ordered for Petitioner's

Appeal from the Denial of His Motion for New Trial

for Newiy Discovered Evidence .................. 6

PE ee Rave vise vcscneasvsvancss 17

ili

TABLE OF AUTHORITIES

CASES Page

Barefoot v. Estelle, 463 U.S. 880 (1983)... eee 13

Bolling v. Sharpe, 347 U.S. 497 (1954)... ee ee eee 15

Coppedge v. United States, 369 U.S. 438 (1962) 10, 12, 13

Douglas v. California, 372 U.S. 353 (1963) ...... 15, 16

Evitts v. Lucey, 469 U.S. 387 (1985)... ee ee 15, 16

Griffin v. Illinois, 351 U.S. 12 (1956) ..... 6. eee eee 15

Hardy v. United States, 375 U.S. 277 (1964) ..... 11,15

McKane v. Durston, 153 U.S. 684 (1894)... ....... 15

Rinaldi v. Yeager, 384 U.S. 305 (1966) .........--- 16

Ross v. Moffitt, 417 U.S. 600 (1974) .. 1... eee eee 15

Slack v. McDaniel, 529 U.S. 473 (2000) ........ 13, 14

United States v. Alvarado, 898 F.2d 987 (5th Cir. 1991) 9

United States v. Burnes, 668 F.2d 855 (Sth Cir. 1982) ..9

United States v. Garcia Abrego, 141 F.3d 142 (Sth Cir.

5 PIE ere me enr- ere Mere Woon nny eens OV Say abr g sy. 3

United States v. Prescott, 221 F. 3d 686 (4th Cir. 2000).....9

United States v. Torres, 163 F.3d 909 (Sth Cir. 1999) ..9

United States v. Willis, 273 F.3d 592 (Sth Cir. 2001) ...9

iV

STATUTES & CONSTITUTION

U.S. Const. Amendment V ............. 2, 15, 16, 17

U.S. Const. Amendment XIV .................... 15

PRE ETE ena Nay eA eb oi habeas ba be 2

Pre ENO 465i pie PAWNS Kd BOSE accind y a He

MRAP NE. whee SESS Fk8 0 6h cc BLbK 8, 13

PR TENE CEE need bbs POLK ax oe bak passim

Rule 4(eX{1), Fed. R. App. Pro. o.oo ccc cccoccee 8

Rule 4 (b)(1), Fed. RR. App. Pro. ................. 43

A a os aia Sh RE hc ek 7

Rule 27, Fed. R. App. Pro. Reiner eae Rees 8

bos es che AE OR I eee 9

ale D Pk Re isos g

Rule 33 (b), Fed. R. Crim. Pro. ................ bya

v

OPINIONS BELOW

On June 7, 2002, Judge Ewing Werlein, Jr., in a

Memorandum and Order, which appears in Appendix A to

this Petition, denied Juan Garcia Abrego’s timely motion for

new trial based on newly discovered evidence and request for

discovery (hereinafter motion for new trial) pursuant to Rule

33 (b)(1), Federal Rules of Criminal Procedure, and further

denied his motion pursuant to 28 USC §2255. Judge Werlein

additionally refused to issue a certificate of appealability with

respect to the 2255 motion. On June 17, 2002, Mr. Abrego

filed a Notice of Appeal from the District Court's Order and

Final Judgment, which denied Mr. Abrego's 28 U.S.C. § 2255

motion and denied a certificate of appealability as to that

decision. On July 29, 2002, Judge Werlein granted leave to

file an amended notice of appeal, which appears in Appendix

B to this Petition, clarifying that Juan Garcia Abrego was

appealing both the denial of the motion for new trial and the

denial of his motion pursuant to 28 USC §2255. By letter

-from the Clerk of the Court, dated August 5, 2002, which

appears in Appendix C to this Petition, Mr. Abrego was

notified that the various appeals filed in this matter were to

proceed under Fifth Circuit Case Number 02-20723.

On October 7, 2002, Circuit Judge Harold R. DeMoss, Jr.,

denied a certificate of appealability regarding Petitioner’s

appeal from the denial of the 28 USC §2255 motion. Judge

DeMoss’ Order appears in Appendix D to this Petition.

Subsequently, counsel for Petitioner was orally informed by

Clerk Sutton of the United States Court of Appeals for the

Fifth Circuit that the denial of the certificate of appealability

terminated all of Petitioner’s appeals, including his appeal of

right from the denial of the motion for new trial. Thereafter,

l

on November 11, 2002, a panel of the United States Court of

Appeals for the Fifth Circuit denied Petitioner’s motion for

reconsideration of the denial of a certificate of appealability.

The panel’s decision appears in Appendix E to this Petition.

Petitioner then moved for a briefing schedule for his

appeals on his motion for new trial based on newly discovered

evidence and Clerk Sutton responded in a letter to Petitioner's

counsel, stating that the Fifth Circuit had issued its final

ruling and no briefing schedule would issue. The January 30,

2003 letter from Clerk Sutton appears in Appendix C to this

Petition.

BASIS OF JURISDICTION

Because the United States Court of Appeals for thy Fifth

Circuit erroneously refused to hear Petitioner’s appeal of right

from the district court’s denial of his motion for new trial, this

Court's jurisdiction is invoked under 28 USC §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Fifth Amendment; 28 USC

§1291; Rule 33 (b)(1), Federal Rules of Criminal Procedure;

and Rule 4 (b)(1)(A)(i), Federal Rules of Appellate Procedure

are set forth in Appendix F to this Petition.

STATEMENT OF THE CASE AND FACTS

Petitioner, Juan Garcia Abrego, respectfully prays that a

Writ of Certiorari issue to review the decision of the United

2

States Court of Appeals for the Fifth Circuit that the denial of

a certificate of appealability with respect to a petition

pursuant to 28 USC §2255 has the effect of precluding the

separate appeal from a final judgment denying a motion for a

new trial, even though said judgment is appealable as a matter

of right. Fed. R. App. P. 4 (b)(1A)(D); 28 USC §1291.

Petitioner was convicted of various marijuana, cocaine,

and money laundering offenses and sentenced to multiple

concurrent terms of life imprisonment on February 3, 1997.

His convictions were affirmed on appeal in United States v.

Garcia Abrego, 141 F.3d 142 (Sth Cir. 1998) His petition for

writ of certiorari from that decision was denied on October 5,

1998. 525 U.S. 878, 119 S.Ct. 182 (1998). His petition for

rehearing was denied on November 30, 1998. 525 U.S. 1035,

119 S.Ct. 582 (1998) .

On September 17, 1999, Petitioner filed timely motions

for a new trial under Rule 33 (b)(1), Federal Rules of

~ Criminal Procedure, and for collateral relief under 28 USC

§2255. In support of these motions he alleged that he had

learned that a primary prosecution witness, Carlos Resendez,

had committed perjury during his trial. In addition, when

Resendez falsely testified that he was not seeking the

$2,000,000 reward for having arranged Petitioner’s arrest, his

perjury was known to the prosecution. In fact, the

government had not only agreed to pay Resendez the

$2,000,000 reward, if had also agreed to purchase all of

Resendez’s Mexican real estate holdings, provide Resendez

and his family with U.S. citizenship, and secure employment

for Resendez and his family and other financial incentives in

return for Resendez’s testimony against Petitioner.

In addition to alleging that Resendez had been instructed

to untruthfully deny he had discussed the reward money with

government agents, Petitioner also alleged that the

government sought to conceal that Resendez’s former

mistress, Noema Quintanilla, had actually provided the

information leading to Petitioner’s arrest, and instructed

Resendez to falsely testify that it was he who had provided

the information. As a result of this misconduct, the jury was

materially misled by perjured testimony that was known to,

but not corrected by, the prosecution.

Petitioner initially submitted two declarations from

investigator Manny Lopez in support of his petition. In his

declarations, Mr. Lopez detailed a conversation that he had

Carlos Resendez and provided information gained from six

conversations with Resendez’s Mexican attorney, Raquenel

Villanueve-Fraustro. On June 7, 2002, after supplemental

briefing by both sides and after additional declarations had

been filed by Lopez and Villanueve-Fraustro, the District

Court struck Lopez’s declarations as hearsay, but accepted as

true the allegations in Villanueve-Fraustro’s declaration that

prior to Petitioner’s trial, the government entered an

agreement with Resendez to: (1) purchase Resendez’s

properties in Mexico; (2) provide Resendez and his family

with U.S. citizenship; (3) change Resendez’s identity and

provide him with personal protection; (4) purchase a house

for Resendez in the United States; and (5) obtain ee

for Resendez in the United States.

Although the District Court concluded that the suppressed

information would have had impeachment value, it held that

it was not “material” and refused to find that government had

permitted Resendez to commit perjury. On this basis, the

4

District Court denied Petitioner’s motions for new trial and

for relief under 28 USC §2255. In that same Memorandum

and Order, the District Court denied Petitioner a certificate of

appealability regarding his 28 USC §2255 motion.

Petitioner filed a timely notice of appeal on June 17, 2002

[02-20723], azid was ultimately granted leave to enlarge the

time (until July 12, 2002) to file his Amended Notice of

Appeal [02-20820] to clarify that he was appealing from both

the denial of his motion for new trial” and from the denial of

his motion pursuant to 28 USC §2255.

In the United States Court of Appeals for the Fifth Circuit,

the three case numbers assigned to Petitioner’s appeals of the

denial of both motions were combined into one case number,

02-20723. On October 7, 2002 his application for certificate

of appealability was denied by a single judge. Having learned

from Clerk Sutton that the appellate court’s denial of his

request for a certificate of appealability would be treated as

terminating all the appeals combined under case number, 02-

20723, Petitioner filed a motion for reconsideration, seeking

to reinstate his appeal as of right from the motion for a new

trial. Petitioner sought to clarify that the denial of the

certificate of appealability only applied to the appeal of his

petition pursuant to 28 USC §2255 and that a briefing

schedule would have to be established for the appeal of the

denial of his motion for a new trial.

Y In his request to extend time to file an amended notice of appeal,

Petitioner also submitted a Proposed Second Notice of Appeal,

which was given Fifth Circuit No. 02-20823.

5

This motion for reconsideration was opposed by the

government, which argued that the denial of the certificate of

appealability precluded Petitioner from appealing the denial

of his motion for a new trial. On November 11, 2002, a panel

of the United States Court of Appeals for the Fifth Circuit

summarily denied the motion for reconsideration. The order

never mentioned that Petitioner was appealing the denial of a

motion for new trial. See Appendix E. ee

Petitioner then moved for a briefing schedule with respect

to his appeals from the denial of his motion for new trial, but

his counsel was informed by letter from Clerk Sutton on

January 30, 2003 that the Fifth Circuit had already issued its

final ruling and that no briefing schedule would be ordered.

See Appendix C. ;

REASONS FOR GRANTING THE WRIT

Certiorari Should Be Granted and this Case Remanded

for a Briefing Schedule to Be Ordered for Petitioner’s

Appeal from the Denial of His Motion for New Trial for

Newly Discovered Evidence.

The issues presented in this petition are of far-reaching

and national importance. This petition’s essential question

asks this Court to give definition to the expression,

“meaningful appellate review.” The answer to be given

affects not only the appellate practice of an entire federal

Circuit, it also has a significant impact on every federal

criminal appeal in this country. By rejecting appeliant’s

appeal of right along with his discretionary appeal, the Fifth

Circuit Court of Appeals essentially truncated the procedural

avenues available to Petitioner following the district court’s

denial of his motion for a new trial.

Review and jurisdiction in this Court are appropriate

because the practice of the Fifth Circuit Court of Appeals

departs from Federal Rules of Criminal Procedure and

conflicts with the applicable decisions of this Court. Sup. Ct.

R. 10(a),(c). The specific issue raised is an important

question of federal law that this Court has not settled or

addressed. Sup. Ct. R. 10(c).

Petitioner’s motion for new trial was part of his

underlying criminal case (H-CR-167-8) and was authorized

by Rule 33 (b)(1), Federal Rules of Criminal Procedure. The

denial of that motion, a final order, is made appealable as a

matter of right by Rules 3 and 4 (b)(1)(A)(i), Federal Rules of

Appellate Procedure. See also 28 USC §1291. That appeal

must generally be filed within 10 days of the entry of

judgment, and it was clearly with the intent of perfecting the

appeal of this issue that Petitioner filed his initial Notice of

Appeal in this case on the tenth day after the couit’s

judgment. As is further provided by the Rules, that time was

extended an additional 30 days in order to clarify the extent of

the matters that Petitioner was challenging on appeal.

Had Petitioner only appealed from the motion for new

trial, there is no question that his case would have been

assigned a briefing schedule and that he would have been

entitled to have the circuit consider the case on the basis of an

opening (either of 30 pages or 14,000 words) and reply

brief(15 pages or 7,000 words). See Rules 28 (a) and (c) and

32 (a)(7) (A) and (B), Federal Rules of Appellate Procedure.

In addition, Petitioner should have had the right to request

7

DSeeaaeee Free r ee ee ee

oral argument with the presumption that oral argument would

be granted. Rule 34, (a)(1) and (2), Federal Rules of

Appellate Procedure. An appeal as a matter of right is

decided by a three judge panel of the Circuit.

There was no legal basis by which this nondiscretionary

appeal from a final judgment in a criminal case should have

been affected by the incidental and separate appeal from

Petitioner’s distinct motion pursuant to 28 USC §2255, which

was a civil filing that was docketed under a different civil

case number (H-CV-3110). Asa civil matter, the time to seek

an appeal from this judgment was 60 days after entry of

judgment or the order appealed from.” See Rule 4 (a)(1)(B),

Federal Rules of Appellate Procedure (when the United States

is a party). Rather than wait 60 days, however, Petitioner

sought to appeal all of the court’s orders, which had been

combined in a single judgment, within the 10-day filing

period for a criminal appeal. In contrast to a motion for new

trial for newly discovered evidence, an appeal from the denial

of a motion under 28 USC §2255 is not as a matter of right;

instead, it can be entertained only with permission of a Judge

of the District Court, Court of Appeal, or this Court. See 28

USC §2253 (b). A request for a certificate of appealability in

the Circuit is a motion limited to 20 pages (Rule 27 (d)(2),

2 There was no need for the District Court to allow leave to file

an amended notice of appeal if the District Court felt that the

: appeal was only from the denial of the motion pursuant to 28 USC

§2255, and that motion was dispositive of everything, as the

amended notice of appeal was lodged (on the 35th day, July 12,

2002) with the District Court well within the 60 days to file a

notice of appeal from the denial of a 28 USC §2255 motion.

8

Federal Rules of Appellate Procedure), contains no provision

for oral argument and may be decided by a single Circuit

Judge.” See Fifth Circuit Rule 27.2.3.

. In this petition, Mr. Abrego contends that due process

demands that an appeal of right be afforded a full briefing and

full consideration in the way of oral argument and diligent

and conscientious review by three circuit judges. Whatever

procedures are sufficient for a second attempt to secure a

certificate of appealability for a separate matter calling for

discretionary review, these lesser standards cannot be

bootstrapped into obviating a meaningful appeal of right

when one is guaranteed to petitioner by statute. By entering

what amounted to a summary rejection of Petitioner’s

contentions, the Fifth Circuit essentially treated the merits of

Petitioner’s motion for new trial and its appeal as an exercise

in futility. At least as troubling is the fact that the procedures

relied on, which permit a clerk to reject a nondiscretionary

appeal on the basis of the denial of a certificate of

appealability from a separate order, are nowhere described in

the Federal Rules or the rules of the circuit. As presently

2 For the substantive differences between the motionssee United

States v. Prescott, 221 F. 3d 686, 688-689 (4 Cir. 2000). Further,

the motions are reviewed-on appeal by different standards in the

Fifth Circuit. Cf United States v. Burnes, 668 F.2d 855 (5th Cir.

1982)(Rule 33 denial reviewed for abuse of discretion) and United

States v. Alvarado, 898 F.2d 987, 994 (5" Cir. 1991)(same), with

United States v. Willis, 273 F.3d 592, 595 (5™ Cir. 2001)(district

court’s findings of fact in denying a 2255 motion are reviewed for

~ clear error and questions of law are reviewed de novo).

= 9

construed, an appellant can only guess what course of action

will preserve the merits of an appeal for meaningful review.

Mr. Abrego was entitled to have his appeal as of right

reviewed in a manner that was neither arbitrary nor capricious

and reflected the principles of fundamental fairness that are

embodied in the Due Process Clause of the Constitution. He

can hardly perceive that this right was protected in light of the

manner in which the Court disposed of his contentions.

This Court has iong eschewed arbitrary procedures that

have had the effect of cutting off a defendant’s right to have

a judgment reviewed on appeal. Coppedge v. United States,

369 U.S. 438 (1962). Analogous to the action taken on

Petitioner’s request for a certificate of appealablity, a petition

to proceed in forma pauperis may be denied if the trial court

certifies in writing that it is not taken in good faith. 28 USC

§1915. While an appeal of right as to which there has no

assertion of indigence and no request to waive fees is not

subject to such “pre-screening,” the granting of a certificate

of appealability in a habeas case is a matter of pre-screening

the merits of the issues raised by an appeal. Inasmuch as the

Fifth Circuit has apparently used Petitioner’s request for a

certificate of appealability for the §2255 issues as a means to

pre-screen his appeal of right, its action must, at a minimum,

comport with previous authority of this Court, which has held

that a determination as to the good faith of an appeal, which

is sought to be taken in forma pauperis, cannot be used as a

substitute for a determination of the appeal on its merits. Id.

This Court held that only the most frivolous appeals

would be found to not meet the test of good faith. “[UJnless

the issues raised (by the indigent seeking leave to appeal in

10

forma pauperis) are so frivolous that the appeal would be

dismissed in the case of a nonindigent litigant, Fed. Rules

Crim. Proc. 39(a), 18 U.S.C.A., the request of an indigent for

leave to appeal in forma pauperis must be allowed.” Id. at

447, 82 S.Ct. at 922 (quoting Ellis v. United States, 356 U.S.

674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060 (1958)). Sucha

determination could only be made by an appellate court if,

after appointing counsel and providing counsel with a record

of sufficient completeness to enable counsel to attempt to

make a showing, the appellate court was satisfied that the |

district court’s finding of a lack of “good faith” was not in

error. Id. at 445-446, 82 S.Ct. at 921-22; see also Hardy v.

United States, 375 U.S. 277 (1964), Justice Goldberg

concurring, at pp. 284-286.

However, the pleadings submitted to overcome a finding

of lack of “good faith” and the ruling thereon was specifically

determined by this Court as not being the equivalent of

receiving a determination on the merits of the appeal.

“Contrary to the Government’s assertion here that

petitioner has already received what amounts to

plenary review of the conviction following his second

trial, we hold petitioner has not yet received the

benefits of presenting either oral argument or full

briefs on the merits of his claims to the court first

charged with the supervision of the trial court. n.18

The memoranda prepared by counsel in support of

petitioner’s application for leave to appeal in forma

pauperis were not intended to be, nor are they rightly

considered as, full appellate briefs. But they do serve

to demonstrate that petitioner sought consideration of

issues that it would be difficuit for an appellate court

11

to consider so patently frivolous as to require a

dismissal of petitioner’s case without full briefing or

argument.” (Footnote omitted.)

Coppedge v. United States, supra, 369 U.S. at pp. 452-453.

See also the concurring opinion of Justice Stewart, joined by

Justice Brennan, Jbid. 369 U.S. at 456-4574 Certainly, it

cannot be said that there is anything patently frivolous about

Petitioner’s having newly discovered the perjury and bias of

the lead witness against him and alleging that the government

was a party to that perjury. The procedure by which an

4’ “The result is that a Court of A $ may come to

think of these preliminary proceedings as tantamount

to appeals on the merits, and may tend to decide

whether or not to grant leave to appeal by appraising

the entire case in terms of whether or not reversible

error appent By the same token, when leave to _

appeal has been denied, and the case has come here,

the Government has argued in the past, as it argues in

this case, that the preliminary screening procedure was

itself the equivalent of an affirmance on the merits.

See Lurk v. United States, 366 U.S. 712. 4 This

attempted conversion of the proceedings to determine

good faith into a truncated substitute for appeal

istorts the purpose of § 1915, and, if acc would

raise serious questions of due process. filing of

memoranda in support of an application for leave to

appeal is not an appeal. The merits of the ultimate

issues are not logically involved at this point, but only

the weight of those issues. Appellate briefs are not

written or submitted. There is no oral argument. The

court’s mode of considering such memoranda, as a

deemed to constitute the appeal to which a person

convicted of crime in the federal courts is entitled.”

12

indigent defendant overcomes a finding of lack of “good

faith” is similar to that is necessary to obtain a certificate of

appealability when there has been no decision on the merits

of the petition. In such a case, the certificate should issue as

to the merits so long as the petition states a valid claim of the

denial of a constitutional right. Cf. Slack v. McDaniel, 529

U.S. 473, 484, 120 S.Ct. 1595, 1604 (2000); 28 USC §2253.

As pointed out in Coppedge v. United States, supra, 369

U.S. at p. 440, fn.1, this Court had good reason for insisting .

on plenary review for cases that were to be appealed as a

matter of right. In the previous five Terms, it had already

found it necessary in 14 cases to vacate and remand because

the Court of Appeals had applied erroneous standards in

passing on an indigent’s application for leave to appeal. This

Court cited a number of instances in which appeals had

resulted in reversals of convictions after leave to appeal in

forma pauperis had initially been denied by the district court.

Ibid. at p. 459 n.16 (citing Jones v. United States, 105

U.S.App.D.C. 326, 328, 266 F.2d 924, 926 (1959) (reversal

ordered in 11 of 24 cases in which leave to proceed in forma

pauperis was initially denied)).

In Slack v. McDaniel, supra, this Court concluded the pre-

1996 standard, set forth in Barefoot v. Estelle, 463 U.S. 880

(1983), for issuing a certificate of probable cause was the

same standard to be applied for issuing a certificate of

appealability and that to obtain a certificate of appealability,

the moving party need only demonstrate that “reasonable

jurists could debate (or for that matter agree that) the petition

should have been resolved in a different manner or that the

issues presented were ‘adequate to deserve encouragement to

proceed further.”” (Slack v. McDaniel, supra, 529 U.S. at p.

13

Se

484.) This Court rejected the conclusion by the Court of

Appeals that a higher standard was necessary to obtain a

certificate of appealability. Further. this Court required a

certificate of appealability to issue, even though one had

previously been denied by the District Court and the Court of

Appeals. McDaniel again demonstrates the weakness of

“pre-screening” review. In this case, it has denied Petitioner

the full briefing and oral argument to which he is entitled, as

a matter of right, not discretion. Coppedge and McDaniel

_ clearly refute the contention made by government’s argument

below that a ruling on whether to issue a certificate of

appealability suffices to constitute a decision on the merits of

an appeal.

Nonetheless, Coppedge and McDaniel address only the

issue of how a court should exercise its discretion to grant or

deny review. Petitioner, however, is not challenging the Fifth

Circuit’s decision to reject his discretionary appeal of his 28

USC §2255 motion. As set forth above, the absence of a

certificate of appealability has nothing to do with Petitioner’s

right to an appeal from the denial of his motion for a new

trial. Unlike his petition for §2255 relief, Petitioner had a due

process and equal protection right to receive a full briefing on

the merits and the opportunity for oral argument. It cannot be

that the mere fact that Petitioner also had pending a

discretionary appeal under 28 USC §2255 could defeat what

was otherwise his appeal as of right from the denial of his

motion for new trial.

This is made clear under cases dealing with the

requirements imposed on States when the States elect to allow

appeals as a matter of right. While States are not required to

provide for appeals as a matter of right (see McKane v.

14

Durston, 153 U.S. 684, 687 (1894), concluding States not

required to allow an appeal as a matter of due process), once

States allow such appeals, the States are restricted by the “due

process” and “equal protection” clauses of the Fourteenth

Amendment as to what they can and cannot do. See Evitts v.

Lucey, 469 U.S. 387 (1985); Douglas v. California, 372 U.S.

353 (1963); Griffin v. Illinois, 351 U.S. 12 (1956).

The federal criminal appellate system allows an appeal as

a matter of right. Hardy v. United States, supra, 375 U.S. at

p. 278. Therefore, as with States, this right can not be

arbitrarily denied. While the Fourteenth Amendment does not

by its terms apply to the Federal Government, the Fifth

Amendment contains a “Due Process” clause, as does the

Fourteenth Amendment, and the concept of equal protection

of the laws is incorporated into the “Due Process” clause of

the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497

(1954). Therefore, cases requiring nondiscriminatory action

with regards to State appeals are also applicable to appeals as

a matter of right in the federal system. These cases

demonstrate that Petitioner has been denied due process and

equal protection of the law when his appeal as a matter of

right was denied because he did not obtain a certificate of

probable cause to obtain discretionary leave to appeal the

denial of his motion under 28 USC §2255 appeal. ©

» For a discussion of the constitutional difference between appeals

as a matter of right and appeals as a matter of discretion, see Ross

v. Moffitt, 417 U.S. 600 (1974), discussing whether states needed

to appoint counsel to represent an indigent in preparing a petition

for certiorari.

15

When an appellant’s right to obtain the appointment of

counsel in an appeal as a matter of right requires him to “run

a gauntlet of a preliminary showing of merit, the right to

appeal does not comport with fair procedure.” (Douglas v.

California, 372 U.S. 353, 357 (1963).) Likewise, the right to

a have such an appeal heard cannot be restricted because of

the mere coincidence of having combined it with a

discretionary appeal. Such arbitrary procedures do not

“comport with fair procedure” and amount to a denial of due

process of law and equal protection of the laws. Surely the

federal appellate system, like the state appellate system, must

be “free of unreasoned distinctions.” (See Rinaldi v. Yeager,

384 U.S. 305, 310 (1966).) To prohibit this Petitioner from

proceeding with his appeal as a matter of right, merely

because he could not pursue another separate appeal, clearly

constitutes such an “unreasoned distinction.” See also Evitts

v. Lucey, 469 U.S. 387, 399-404" (1985).

Based upon the foregoing, certiorari should be granted

and this matter remanded to the United States Court of

Appeals for the Fifth Circuit for a briefing schedule to be set

for Petitioner’s appeal from the denial of his motion for new

trial.

¥ “A system of appeal as of right is established precisely to assure

that only those who are validly convicted have their freedom

drastically curtailed. A State may not extinguish this right because

another right of the appeliant -- the right to effective assistance of

counsel -- has been violated.”

16

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CONCLUSION

For the reasons set forth above, a Writ of Certiorari should

issue to review the decision of the United States Court of

Appeals for the Fifth Circuit, effectively denying Petitioner

his appeal as a matter of right from the denial of his motion

for new trial for newly discovered evidence, because a

certificate of appealability did not issue in a related

discretionary appeal from the denia! of a motion pursuant to

28 USC §2255. It is submitted that under these facts

Petitioner was denied his right to due process of law and

equal protection of the law, as guaranteed by the Fifth

Amendment to the United States Constitution, when he was

treated differently than any other individual seeking relief

from the denial of a motion of new trial for newly discovery

evidence and subjected to a “pre-screening” procedure that

did not allow for a full brief on the merits of his claim, or an

opportunity for oral argument.

Respectfully submitted,

Michael Pancer*

105 West "F" Street

San Diego, CA 92101

(619) 236-1826

Robert J. Waters

2115 Main Street

Santa Monica,CA 90405

(310) 399-3259

Counsel for Petitioner

Juan Garcia Abrego

*Counsel of Record