Prologue — Allen v. United States

Y

wo. 95 243 aug 19 2005

be

IN THE

SUPREME COURT OF THE UNITED STATES

TERRY ALLEN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

—>

\

4

PETITION FOR WRIT OF CERTIORARI

Michael B. Cohen

Attorney At Law

35 BE. Wacker Drive

Suite 595

Chicago, IL., 60601

(312) 726-0739

QUESTIONS PRESENTED

1. Whether the Eleventh Circuit Court

of Appeals and the district court have

unconstitutionally denied Petitioner his

constitutional rights to due process of

law and equal protection of the law by

failing to grant appellate review and

collateral review of Petitioner's claim

that his conviction had been obtained in

violation of his Sixth Amendment right

to have ceunsel of his choice to present

his defense?

2. Whether the district court's rul-

ing and the appeal court's ruling the

Petitioner had failed to make a substan-

tial showing of the denial of a constitu-

tional right are inconsistant with the

standards to be applied in reviewing an

application for a certificate of appeal-

ability pronounced by this Court in Slack

v. McDaniel, 523 U.S. 423, 146 L.Ed.2d

542, (2002), and Miller-El v. Cockrell,

537 U.S. 322, 154 L.Ed.2d 931 (2003)?

ii

INTERESTED PARTIES

There are no other parties than

those named in the caption on the cover

page of this petition who have any type

of interest in the outcome of this case.

iii

TABLE OF CONTENTS

Page

Questions Presented... .seseceeceseseceed

Interested PartieS.......-ceeeeeeeseecii

Table Of ContentsS.....ceecceeseceveeciili

Judgment Below....cccccccccccccsccoseeVs

Table of Authorities..........e+022.2eVii

aE. Se SEONG waincvecucVewcecere nell

Judgment and Opinion Below.............1

Jurisdictional Statement.......2eee002-2

Constitutional and Statutory

Provisions Involved... cece ccecesceeeed

Statement of the Case. ......cccceeeeese4

Reasons For Granting Certiorari.......11

1. The Eleventh Circuit Court of

Appeals and the district court have

denied Allen his constitutional rights

to due process and equal protection of

the law by failing to grant appellate

and collateral review of Allen's clain

that his conviction was obtained in

violation of his Sixth Amendment right

to choice of counsel to present his

ae nn a a ee

IV

Page

2. The district's court's ruling

and appeal court's ruling that Allen

had failed to make a substantial

showing of the denial of a constitu-

tional right are inconsistant with

the standards to be applied in re-

viewing applications for certificates

of appealability pronounced by this

Court in Slack v. McDaniel, 529 U.S.

523, (2002) and Miller-El v. Cockrell,

537 U.S. 322, (2003)....... eccccecceos -23

CONCLUSION. coccccccesccscocces wrrrrrey ..

Appendices:

A. Unpublished Opinion of the

United States Court of Appeals for

the Eleventh Circuit rendered and

entered on November 26, 2002..... Appx. 1

B. Order of dismissal entered

by the United States District Court

for the Middle District of Florida

on October 20, 2004.....++.4+..2+-Appx. 15

C. Order of the United States

District Court for the Middle Dis-

trict of Florida denying COA dated

January 12, 2005S. cccccccccccccccAPMPX. 29

Page

D. Order entered by Circuit

Court Judge Joel F. Dubina of the

United States Court of Appeals

for the Eleventh Circuit denying

a Cértificate of Appealabilty on

March 11, 2005....cccseecceesee Appx. 26

E. Order entered by Circuit

Court Judges Dubina and Tjoflat

of the United States Court of

Appeals for the Eleventh Circuit

denying a Certificate of Appeal-

ability on April 21, 2005....... Appx. 27

vi

The judgment entered by the United

States Court of Appeal for the Eleventh

Circuit at Docket Number 05-10222-G, is

attached as Appendix E to this petition.

vii

TABLE OF AUTHORITIES

Cases cit... Page

Bonner v. City of Prichard, Alabama

661 F.2d 1206 411th Cir. 1981).......-17

Brown v. United States,

156 L.Ed.2d 847 (2003) (table)....16, 17

Dorman v. Wainwright,

798 F.2d 1358 (11th Cir. 1986)....20, 21

Ex Parte Royall, 117 U.S. 286,

22 4 BG. O66 (1GS6) co cccccevevceceseves 24

Faretta v. California, 422 U.S. 806

8 * 8 + bias eerrrrerreerCmCe 20

Flanagan v. United States, 565 U.S.

259, 79 L.Ed.2d 288 (1984)....14, 20, 22

Hardin v. Wainwright,

678 F.2d 5869 (Sth Cir. 1982) ccccccccecs 18

Hohn v. United States, 524 U.S. 236,

$44 Be. 26 242 CIOS9SP ccccsscecesoetece 2

Linton v. Perini,

656 F.24 207 (6th Cir. 1981) cccccce oot

Matthews v. DeCastro, 429 U.S. 286,

SS WeceRG. 2B1 (U9ED) co ccccvcctossccccesce 24

Miller-El v. Cockrell, 537 U.S. 322,

154 L.Ed.2d 931 (2003)...... vr rrr 23, 24

Neder v. United States, 527 U.S. 1,

144 L.Ed.2d 35 (1999).....cc0e rrr ey 22

Nettles v. Wainwright,

677 FV. GO6 CSG GSP. BM9SBlccecucseées 18

Powell v. Alabama, 287 U.S. 45,

77 LeBG. 156 (1932) ccccccces deecesctes 12

Rose v. Lundy, 455 U.S. 509,

sm FS By, Bel. +} Perrrerrrrrrrre rr. 24

viii

Page

Slack v. McDaniel, 529 U.S. 423,

146 L.Ed.2d 542 (2002)......+... secceces 23

Thomas v. Arn, 474 U.S. 140,

88 L.Ed.2d 435 (1985)..... 18, 19

United States v. Brown,

299 F.3d 1252 (11th Cir. 2002)....15, 17

United States v. Garcia,

en ee Cee Cee. TOIT). ccccecece 21

United States v. Koblitz,

803 F.3d 1525 (11th Cir. 1986)........ 12

United States v. Renfro, 620 F.2d

497 (5th Cir. 1980).10,14,15,16,17,18,19

United States v. Warren, 687 F.2d

ME oS a +} 10, 317, 16, 939

STATUTES AND RULES CITED

21 U.S.C. § BAl(ad(Tp ccc ccccccccces 4, 5

21 U.S.C. § B4lT(D)(1)(A).....22 eee ecveed

Zt U.B8.C. §& G4Gecccccccccccccccccccs 4, 5

28 U.S.C. § T254(T) ccccccccccccccccecs 2

26 U.8.C. | V2 ccccccces cocccdy 14,-16

2B U.S.C. § B28Secccccccccccccccccccecs 2

2B U.S.C. | 2258S cccccccccecs 2, 7, 8, 21

Federal Rule of Appellate

PFOCOGUTE AD cccccccccwcccceccccccceces 9

Federal Rule of Criminal

Derr SPU peocecccecceeeceeeeeeoese 16

Eleventh Circuit Local Rules 27-1(b),

-27-1(g), ANG 2-2. ccc cece eeceescceseces a

ix

Page

~- CONSTITUTIONAL AND STATUTORY

PROVISIONS

Due process clause of the Fifth

Amendment......+++-+3, 10, 11, 15, 19, 25

Equal protection of the Fourteenth

Amendment incorporated into the due

process clause of the Fifth Amendment

coccccccscccccccccoss WO, 191, 15, 19, 2S

Right to choice of counsel under the

Sixth Amendment..... eft ft © eeereeeeeeeeeeee

Lebecwbetvdecesosueed 7, 11, 12, 15, 20, 22

Statutory right to a criminal appeal,

WYTTTTTITITITITITTTT TTT 11, 22, 25

- PROOF OF SERVICE

The undersigned certifies that he

has complied with Supreme Court Rule

29(4) by causing an exact copy of this

petition for writ of certiorari to be

delivered to the Solicitor General of

the United States, Room 5614, Department

of Justice, 950 Pennsylvania Ave., N.W.,

Washington, DC 20530-0001, by depositing

a copy of same into a U.S. Postal Mail

Box located inside of the United States

Postal Office at Lake and LaSalle Streets

Chicago, Illinois on August 19, 2005, to

be delivered as first-class mail.

ove \Sullel 6 Cllr

Michael B. Cohen

35 E. Wacker Drive

Suite 595

Chicago, IL., 60601

PETITION FOR WRIT OF CERTIORARI

Terry Allen, hereinafter referred to

herein as "Allen," petitions the Supreme

Court of the United States to review the

decision of the United States Court of

Appeals for the Eleventh Circuit decided

on April 21, 2005, in Case No. 95-10222,

that is directly related to a decision

entered by the Eleventh Circuit Court of

Appeals on November 26. 2002, in Case No.

02-11918, entitled United States v. Terry

Wayne Allen.

JUDGMENT AND OPINION BELOW

The order of the United States Court

of Appeals for the Eleventh Circuit -s set

out in the Appendix at E. This order has

a relationship to a prior unpublished de-

cision by the Eleventh Circuit Court of

Appeals that is set out in the Appendix at

A.