Prologue — Patti v. United States

Supreme Court, U.S.

FILED

No. __)§ -3 89 SEP 23 2005

mar OFFICE OF THE Git ix

In The

Supreme Court of the Anited States

+

FRANK M. PATTI, SR.,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

IAN M. COMISKY

Attorney for Frank M. Patti, Sr.

BLANK ROME LLP

One Logan Square

Philadelphia, PA 19103

Telephone No.: (215) 569-5646

Facsimile No.: (215) 832-5646

ee

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

1. Could a jurist of reason conclude that this Court’s

decision in United States v. Booker, 543 U.S. __, 125 S.Ct.

738 (2005), was retroactively applicable to cases on collat-

eral review under circumstances where the sentence

became final after Ring v. Arizona, 536 U.S. 584 (2002)?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...............csccccccscsssossecsereeseseres i

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Ra een nstnilnenshcedentionledinsciseatetinenssontdusgiciiingiakictpsdpdialediaias 1

OE ST ey een nee as ae oe 1

FEDERAL JURISDICTION ............ccccccsesesscccsesseceseees 2

RELEVANT CONSTITUTIONAL AND STATUTORY

ee TE crninistchinienicniiendiiticnclstiidanspieiiciniieadetaminbtiia 3

STATEMENT OF THE CASE .................:.ccccseeeceeeeeees 6

IES TEI «cc calcecmedebiccdtedbadieaoninmantn 6

I OE POD ccccniiccticentiiseciesasiodirsinnititiidiminaian 8

REASONS FOR GRANTING A _ WRIT OF

ee nak tinttetiniieetscccethditininicniadiaantehitadiidiilae 10

1. Petitioner made a substantial showing that he

has been denied a constitutional right as a

result of Booker and therefore, should have

been issued a certificate of appealability .......... 11

A. This Court Has Not Addressed the

Fundamentally Important Question of

Retroactive Application of Booker to Cases

on Collateral Review Which Became Final

After Apprendi and Ring .......... ...cccccccceeeeee 11

B. Booker Should Be Applied Retroactively to

Cases on Collateral Review Which Were

Not Final Until After Apprendi and Ring... 13

ili

TABLE OF CONTENTS - Continued

Page

1. Mr. Patti Does Not Invoke Any “New”

2. The Court’s Decision in Booker Should

Be Applied Re..vactively to Cases on

Collateral Review Because It Is a

Substantive, Not Procedural Rule ........

3. Alternatively, Booker and Blakely Impli-

cate Fundamental Fairness Under

Teague’s Second Exception for Water-

RE BR cctsiitnnsivendiarinctencsisnneniesinnssen

4. The Due Process Clause Requires Retro-

active Enforcement.................c0ceccccsessees

The court of appeais applied the wrong legal

standard to Petitioner’s request for a

certificate of appeaiability (“COA”) seeking

permission to appeal! the district court’s

summary denial of his motion to vacate, set

aside, or correct sentence pursuant to 28

U.S.C. § 2255. The court of appeals converted

the COA process into the appeal itself in clear

violation of the text and purpose of § 2253(c),

and applied the standard for granting a COA

in a way that conflicts with the relevant

precedent established by this Court..................

SING ciiachctcvecdinnbiechignitcebrinloienenonenecerigbuiiliaee

INDEX TO APPENDICES

Order of the United States Court of Appeals for the

Eleventh Circuit (filed May 23, 2005)....................4.

Order of the United States District Court for the

Northern District of Florida (filed April 12, 2005)...

18

20

23

25

28

A-1

A-2

iv

TABLE OF CONTENTS — Continued

Page

Judgment of the United States District Court for the

Northern District of Florida (filed February 25,

UT cccscnssnidédunvienvocbideasdicasiatinnianbisensiibemsn sadam A-3

Order of the United States District Court for the

Northern District of Florida (filed February 25,

DDD. scscoichinnthctedpvatcvicictosdnstmianseladaveiinaabeahtoniidicmerhidie A-4

Report and Recommendation of the United States

Magistrate Judge for the Northern District of Flor-

iia (EOE FPORSUATY BO, DOGO) covccccccssscceseveeseccescccocvesonses A-5

TABLE OF AUTHORITIES

Page

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000)............ passim

Barefoot v. Estelle, 463 U.S. 880 (1983) ...........ccccccecceeeeeees 26

Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504 (2004)....... 13

Bey v. United States, 399 F.3d 1266 (10th Cir. 2005) ....... 12

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531

EIU iidiepene-chinesigieainsibtioniainitelimnediasinttieabiabmieguihaipegntinaatiindeatie passim

Bousley v. United States, 523 U.S. 614 (1988).................. 18

Bunkley v. Florida, 538 U.S. 835 (2003) ...................cccce0e 27

Cage v. Louisiana, 498 U.S. 39 (1990) .............ccceeeeeceeees 22

Clay v. United States, 537 U.S. 522 (2003)...................668 10

Fiore v. White, 531 U.S. 225 (2001)................:cecceeeereee 23, 24

Gaines v. Kelly, 202 F.3d 598 (2d Cir. 2000).................000 19

Gonzalez v. Sec'y for- the Dep't of Corr., 366 F.3d

ae Se Se ee es Re eS 26

Green v. United States, 397 F.3d 101 (2nd Cir. 2005)....... ll

Hankerson v. North Carolina, 432 U.S. 233 (1977).......... 20

In re Winship, 397 U.S. 358 (1970) .................00008 20, 22, 24

Ivan V. v. City of New York, 407 U.S. 203 (1972).............. 20

Jackson v. Virginia, 443 U.S. 307 (1979).................2004. 22, 2

Lindsey v. Washington, 301 U.S. 397 (1937)................00 20

McCoy v. United States, 266 F.3d 1245 (11th Cir.

IIE wisstedidiatdlveciakdeiaraiienamnaldinntasinpanesiuniabaciiandetiiinmaaaidacaneiand 14

McReynolds v. United States, 397 F.3d 479 (7th Cir.

vi

TABLE OF AUTHORITIES -— Continued

Page

Miller-El v. Cockrell, 537 U.S. 322 (2003) .................. 26, 27

Mullaney v. Wilbur, 421 U.S. 684 (1975).................cccccceeee 20

Patti v. United States, 540 U.S. 1149 (2004)...............0.... 10

Ring v. Arizona, 536 U.S. 584 (2002).............ccccceeeeee passim

Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519

ES re ae PAS, SSRN 13, 20, 21

Slack v. McDaniel, 529 U.S. 473 (2000)................0000. 26, 27

Sullivan v. Louisiana, 508 U.S. 275 (1993)................ 22, 23

Teague v. Lane, 489 U.S. 288 (1989) ...0........cceceeeeeees passim

United States v. Booker, 543 U.S. __, 125 S.Ct. 738

Gna cnccntiavdnlinienerinigidsescsiipasiivasmeochachiciiteinantiagonidatamesaltl passim

United States v. Patti, 337 F.3d 1317 (11th Cir.

FERRET Beat EA REA ee a PSD SEE ah we SO 10

United States v. Siegelbaum, 359 F. Supp.2d 1104

REI EC SPR ERR IE We EE NM Mca es 12

United States v. Thomas, 274 F.3d 655 (2d Cir.

SIIDUND vicsictichtniaccssceiiabanbhisenrdaaliaiiaitsucalindinainimiiaiieessanaliiaia 24

Varela v. United States, 400 F.3d. 864 (11th Cir.

STEEN RN CSE FPN IE BOLE NA EES, 11

Williams v. Taylor, 529 U.S. 420 (2000).............:ccccccceeeeeeee 26

STATUTES

SI ne ee ee 17, 24

ff eb Fe Naar aren eben rr ee Be 2

i cthccinesicncecsncinsteestliasheeieciipaiiiliiiadibiadeibtacie -++.-passim

FF Es Oe Ie i ticotirtasedesiinntictidintinateninniinaita passim

1

PE1 ° ON FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Frank M. Patti, Sr. respectfully petitions this Court

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Eleventh Circuit.

The court of appeals denied Mr- Patti’s application for a

certificate of appealability to review the district court’s

denial of his motion to vacate, set aside, or correct sen-

tence pursuant to 28 U.S.C. § 2255.

s

vv

OPINIONS BELOW

This case originated in the United States District

Court for the Northern District of Florida. On January 19,

2005, Frank M. Patti, Sr. (“Petitioner” or “Mr. Patti”) filed

a timely motion to vacate, set aside, or correct sentence

pursuant to 28 U.S.C. § 2255 in which he sought to be

resentenced in light of United States v. Booker, 543 U.S.

_._, 125 S.Ct. 738 (2005). Petitioner’s conviction became

final after the decisions of this Court in Apprendi v. New

Jersey, 530 U.S. 466 (2000), and Fling v. Arizona, 536 U.S.

584 (2002), but before the decisions of this Court in

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004)

and Booker.

Mr. Patti’s § 2255 petition was referred to a United

States Magistrate Judge, who issued a Report and Rec-

ommendation recommending that the petition be denied on

the grounds that Booker was not to be applied retroactively

to cases on collateral review. See Appendix 5-10. On Febru-

ary 25, 2005, the district court entered an order (over Mr.

Patti’s objections) adopting the Report and Recommendation

2

and entered judgment denying Mr. Patti's § 2255 motion.

See Appendix 3-4.

Petitioner filed a notice of appeal, which the district

court construed as a motion for a certificate of appealabil-

ity. This motion was denied. See Appendix 2. On May 4,

2005, Mr. Patti filed an application for a certificate of

appealability in the United States Court of Appeals for the

Eleventh Circuit, which was denied on May 23, 2005. See

Appendix 1.

°

FEDERAL JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1) and Part III of the Rules of the Supreme Court of

the United States. The decision of the court of appeals was

eritered on May 23, 2005. On August 11, 2005, Petitioner

submitted an application to extend the time to file a

petition for a writ of certiorari. The Honorable Anthony M.

Kennedy granted Petitioner’s application (No. 05A149)

and extended the time to file until September 23, 2005. As

such, this petition is timely filed pursuant to Sup. Ct. R.

13.1, 13.3. The United States District Court for the North-

ern District of Florida had original subject matter jurisdic-

tion of this case pursuant to 28 U.S.C. § 2255, governing

motions to vacate, set aside, or correct sentence, and 18

U.S.C. § 3231 (federal criminal case). The court of appeals

had jurisdiction over this appeal pursuant to 28 U.S.C.

§ 2253(c).

3

RELEVANT CONSTITUTIONAL

AND STATUTORY PROVISIONS

28 U.S.C. $2255. Federal custody; remedies on motion

attacking sentence

A prisoner in custody under sentence of a court estab-

lished by Act of Congress claiming the right to be re- ~

leased 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 jurisdic-

tion to impose such sentence, or that the sentence was

in excess of the maximum authorized by law, or is

otherwise subject to collateral attack, may move the

court which imposed the sentence to vacate, set aside

or correct the sentence.

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 re-

spect thereto. If the court finds that the judgment was

rendered without jurisdiction, or that the sentence

imposed was not authorized by law or otherwise open

to collateral attack, or that there has been such a de-

nial or infringement of the constitutional rights of the

prisoner as to render the judgment vulnerable to col-

lateral 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.

A court may entertain and determine such motion

without requiring the production of the prisoner at

the hearing.

4

An appeal may be taken to the court of appeals from

the order entered on the motion as from a final judg-

ment 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 mo-

tion 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.

A 1-year period of limitation shall apply to a motion

under this section. The limitation period shall run

from the latest of —

(1) the date on which the judgment of convic-

tion becomes final;

(2) the date on which the impediment to mak-

ing a motion created by governmental action in

violation of the Constitution or laws of the

United States is removed, if the movant was pre-

vented from making a motion by such govern-

mental action;

(3) the date on which the right asserted was

initially recognized by the Supreme Court, if that

right has been newly recognized by the Supreme

Court and made retroactively applicable to cases

on collateral review; or

(4) the date on which the facts supporting the

claim or claims presented could have been dis-

covered through the exercise of due diligence.

Except as provided in section 408 of the Controlled

Substances Act, in all proceedings brought under this

section, and any subsequent proceedings on review,

5

the court may appoint counsel, except as provided by

a rule promulgated by the Supreme Court pursuant

to statutory authority. Appointment of counsel under

this section shall be governed by section 3006A of title

18.

A second or successive motion must be certified as

provided in section 2244 by a panel of the appropriate

court of appeals to contain —

(1) newly discovered evidence that, if proven

and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and con-

vincing evidence that no reasonable factfinder

would have found the movant guilty of the of-

fense; or

(2) a new rule of constitutional law, made ret-

roactive to cases on collaterai review by the Su-

preme Court, that was previously unavailable.

28 U.S.C. $ 2253. Appeal

(a) In a habeas corpus proceeding or a proceeding

under section 2255 before a district judge, the final

order shall be subject to review, on appeal, by the

court of appeals for the circuit in which the proceed-

ing is held.

(b) There shall be no right of appeal from a final or-

der in a proceeding to test the validity of a warrant to

remove to another district or place for commitment or

trial a person charged with a criminal! offense against

the United States, or to test the validity of such per- _

son’s detention pending removal proceedings.

(c)(1) Unless a circuit justice or judge issues a cer-

tificate of appealability, an appeal may not be taken

to the court of appeals from —