# Prologue — Patti v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0254%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Prologue - **Published:** January 1, 2005 - **Citation:** 546 U.S. 1033 ## Text 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 pc UA UE ge, , ER ee ii CS CP Cairo i cecevccctntertencersicensssnusinniionn iii pe GF tc iv 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 — --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0254%3A0. Public record. Not legal advice.