Petition for Writ of Certiorari — Cole v. United States (No. 06-1013)

Supreme Court. U.S

061013 JAN 2 2 2007

OPFICE OF THE CLERK

No.

IN THE SUPREME COURT

OF THE UNITED STATES

WILLIE RAY COLE, JR., Petitioner,

V.

UNITED STATES OF AMERICA, Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Stephen M. Orr

Orr and Olavson

804 Rio Grande

Austin, Texas 78701

(512) 472-8392

FAX (512) 473-8417

Counsel of Record for Petitioner

QUESTIONS PRESENTED FOR REVIEW

I. Whether a certificate of appealability should have

been issued because it can be reasonably debated whether

Booker sets forth a logical continuation of the rights for

defendants who were sentenced after Apprendi, and therefore

should be applied retroactively, as it is not a new procedural

rule?

Il. | Whether a certificate of appealability should have

been issued because it can be reasonably debated that the

right of confrontation as defined by Crawford should be

applied retroactively?

LIST OF PARTIES

Pursuant to Supreme Court Rule 14.1(b), the parties

to the proceedings below were Petitioner Willie Ray Cole,

Jr., and the United States of America. The United States is

the Respondent before this Court.

TABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF PARTIES ii

TABLE OF CONTENTS iii

TABLE OF AUTHORITIES v

OPINIONS BELOW 1

JURISDICTION 1

CONSTITUTIONAL PROVISIONS INVOLVED 1-2

STATEMENT OF THE CASE 2

REASONS FOR GRATING THE WRIT 4

I.

IT.

A United States court of appeals has decided an

important federal question in a way that conflicts

with a relevant decision of this court; namely the

determination of whether it is reasonably debatable

that the decision in United States v. Booker is a

logical continuation of the rights granted in Apprendi,

and that a certificate of appealability should issue for

the case to be decided on its merits.

A United States court of appeals has decided an

important federal question in a way that conflicts

with the decision of another United States couri of

appeals on the same important matter; namely the

determination of whether it is reasonably debatable t

that decision in Crawford v. Washington should

apply retroactively, and that a certificate of

appealability should issue for the case to be decided

on its merits.

iii

CONCLUSION 7

APPENDIX 8

iV

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey,

530 U.S. 466 (2000)

Ashley v. United States,

266 F.3d 671 (7th Cir. 2001)

Blakely v. Washington,

542 U.S. 296 (2004)

Bockting v. Bayer,

399 F.3d 1010 (9th Cir. 2005)

United States v. Booker,

543 U.S. 220 (2005)

Crawford v. Washington,

541 U.S. 36 (2004)

United States v. Gentry,

432 F.3d 600 (Sth Cir. 2005)

Hohn v. United States,

524 U.S. 236 (1998)

Schriro v. Summerlin,

542 U.S. 348 (2004)

Slack v. McDaniel,

529 U.S. 473 (2000)

OPINION BELOW

The unpus, ied opinion of the Court of Appeals for

the Fifth Circuit styled United States v. Willie Ray Cole, Jr.,

No. 05-51573, issued on October 24, 2006, is attached hereto

as Appendix A.

JURISDICTION

The United States District Court was granted

exclusive original jurisdiction over this case by 18 U.S.C. §

3231.

Appeal was made from the final judgment of the

District Court to the Fifth Circuit Court of Appeals under 28

U.S.C. § 1291.

The Court of Appeals affirmed in an order entered

October 24, 2006. There was no petition for rehearing. This

petition follows within 90 days of the judgment of the Court

of Appeals. :

The jurisdiction of this Court to grant certiorari is

invoked pursuant to 28 U.S.C. § 1254(1).

The United States is a party to be served, and the

undersigned states that service has been made on the

Solicitor General of the United States, Room 5614, Dept. of

Justice, 950 Pennsylvania Ave NW, Washington DC 20530-

0001, pursuant to Supreme Court Rules 14.1(e)(v) and

29.4(a).

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in the land

or naval forces, or in the militia, when in actual service in

time of war or public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy of life or

l

limb; nor shall be compelled in any criminal case to be a

- witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel

for his defence.

STATEMENT OF THE CASE

Petitioner Cole was indicted on May 7, 2002, on the

charges of conspiracy to distribute and possess with intent to

distribute a controlled substance, distribution of a controlled

substance, aiding and abetting, possession of a firearm by a

felon, and carrying a firearm during a drug trafficking crime.

Cole pled guilty pursuant to a plea agreement filed on July 1,

2002, to the offenses of possession with intent to distribute

cocaine and felon in possession of a firearm. Cole was

sentenced to a term of imprisonment of three hundred and

sixty months, to be followed by a term of supervised release

for five years. At the time, Cole waived his general right to

attack his sentence pursuant to § 2255.

Following the decisions in Crawford and Booker,

Cole subsequently filed a § 2255 motion to correct his

sentence on August 19, 2005. The District Court denied the

§ 2255 motion. Cole then filed a Notice of Appeal and

Motion for Certificate of Appealability on November 15,

2005. The district court denied the request for certificate of

appealability. Cole then appealed this decision to the Fifth

2

Circuit Court of Appeals, requesting certificate of

appealability. On October 24, 2006, the Fifth Circuit Court

of Appeals denied Cole's request for a certificate of

appealability.

REASONS FOR GRATING THE WRIT

A United States court of appeals has decided an

important federal question in a way that conflicts

with a relevant decision of this court; namely the

determination of whether it is reasonably

debatable that the decision in United States v.

Booker is a logical continuation of the rights

granted in Apprendi, and that a certificate of

appealability should issue for the case to be

decided on its merits.

The Fifth Amendment provides in part that "no

person shall be held to answer for a capital; or otherwise

infamous crime, unless on a presentment or indictmerit of a

Grand Jury." U.S. Const. Amend. V. Likewise, the Sixth

Amendment provides in part that "the accused shall enjoy the

right to a speedy and public trial, by an impartial jury." U.S.

Const. Amend. VI. Recent jurisprudence in this court have

provided more clarifications of these constitutional rights.

This court decided in Apprendi v. United States, 530

U.S. 466 (2000), that a jury, and not a judge, must provide

the assessment of facts that increased the prescribed range of

punishment for an offense. The decision in Apprendi was

further clarified by the decisions in 2004 of Blakely v.

Washington, 542 U.S. 296 (2004), and United States v.

Booker, 543 U.S. 220 (2005).

Essentially, in Blakely and Booker, the Supreme

Court delivered a knockout blow to binding sentencing

guidelines. However, there remains the unresolved question

of whether the thousands of federal prisoners sentenced

before Blakely and Booker are entitled to any relief. Since

most of their convictions are "final" (that is, the deadlines for

filing appeals or petitions for certiorari have expired), these

prisoners must resort to the federal habeas statute at 28

U.S.C. 2255 to attack their sentences under Blakely or

Booker. This is the exact position that Cole finds himself in,

4

and that the lower courts have denied a certificate of

appealability to determine.

This court has the authority to review a denial of

certificate of appealability, as established in Hohn v. United

States, 524 U.S. 236 (1998). Hohn considered a case where

this court had, following a direct review of the petitioner's

case, altered the definition of the statute under which he was

convicted. This court found that this change was a

constitutional one, and remanded the case to the lower court

to reconsider the case. Importantly, Hohn established that

this court has the jurisdiction to reconsider a lower court's

denial of a certificate of appealability.

To be eligible for a certificate of appealability, a

petitioner must demonstrate that the point of appeal is at

least reasonably debatable, as indicated in Slack v.

McDaniel, 529 U.S. 473 (2000). While the Fifth Circuit has

decided the issue of the retroactive applicability of Booker in

United States v. Gentry, 432 F.3d 600 (Sth Cir. 2005), Cole

believes that this case is wrongly decided, and desires an

opportunity to argue that point.

In brief, the argument that Cole would present, given

the opportunity is as follows. Before the decisions in Blakely

and Booker, the federal guidelines required federal judges to

lengthen many sentences for conduct neither found by a jury

nor proved beyond a reasonable doubt. Through the

collateral vehicle provided by a 2255 motion, federal

prisoners could attack these types of sentences on two

distinct constitutional theories: (1) the sentence violated the

Sixth Amendment because a jury did not find facts legally

essential to the punishment; and (2) the sentence violated the

Due Process Clause of the Fifth Amendment because those

same facts were not proved beyond a reasonable doubt.

Collateral challengers may not, however, claim relief under a

newly announced Court decision absent a_ threshold

determination by a federal court that the decision applies

retroactively to cases on collateral review. As such, the

possibility remains that these prisoners will lack a forum in

which to remedy any Blakely-Booker constitutional -

5

violations. This court has already declared nonretroactive the

jury-trial prong of Apprendi (and a fortiori Blakely and

Booker) in Schriro v. Summerlin, 542 U.S. 348 (2004).

.The only potential challenge that remains is the Fifth

Amendment due process violation as the only Blakely-

Booker claim still cognizable in a 2255 motion. In the

absence of a Supreme Court ruling to the contrary, -lower

courts are free to decide whether the Blakely-Booker due

process requirement applies retroactively, as determined in

Ashley v. United States, 266 F.3d 671 (7th Cir. 2001). The

Fifth Circuit has decided against the retroactive application

of Booker, as have all other circuits to date. However, as this

issue has not been decided by this court as of yet, it remains

a reasonably debatable question, and therefore should be

granted a certificate of appealability.

il. A United States court of appeals has decided an

important federal question in a way that conflicts

with the decision of another United States court of

appeals on the same important matter; namely the

determination of whether it is reasonably

debatable that decision in Crawford v. Washington

should apply retroactively, and that a certificate

of appealability should issue for the case to be

decided on its merits.

The Sixth Amendment provides, in part, that "the

accused shall enjoy the right . . . to be confronted with the

witnesses against him." In Crawford v. Washington, 541 -

U.S. 36 (2004), this court declared that an accused has the

right to cross-examine any testimonial witnesses to be used

against him or her, regardless of prior exceptions in the

Rules of Evidence. At least one circuit, the Ninth, has

declared that the rights in Crawford apply retroactively, in

Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005).

In Cole's sentencing, the sentence was increased due

to testimony regarding an incident of mental illness not

6

related to the original offense. While the sentencing court

found that there was no right to confrontation at sentencing,

Crawford provides that the only indicium of reliability

sufficient to satisfy constitutional demands is confrontation.

As the question of both the retroactivity of Crawford

and its application at sentencing have not yet been decided

by this court, it is a reasonably debatable question that

should be decided on its merits, as indicated in Slack v.

McDaniel, 529 U.S. 473 (2000). While the lower courts

declined to approve a certificate of appealability, this court

has the jurisdiction to do so, as was decided in Hohn.

Therefore, a certificate of appealability should be granted to

decide this question.

CONCLUSION

For the foregoing reasons, I respectfully urge that the

writ of certiorari be granted, and the case considered on its

merits.

Respectfully submitted,

Stephen M. Orr

Orr and Olavson

804 Rio Grande

Austin, Texas 78701

(512) 472-8392

FAX (512) 473-8417

Counsel for Petitioner

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-51573

USDC No. 1:05-CV-665

USDC No. 1 1:02-CR-118-ALL

UNITED STATES OF AMERICA, Plaintiff-Appellee

V.

WILLIE RAY COLE, JR., Defendant-Appellant

October 24, 2006, Filed

PRIOR HISTORY: Appeal from the United States District

Court for the Western District of Texas

ORDER: Willie Ray Cole, Jr., federal prisoner #28648-

180, has applied for a certificate of appealability (COA) for

an appeal from the district court's order denying as time-

barred his 28 U.S.C. § 2255 motion challenging his 2002

conviction of possession of a controlled substance with

intent to distribute and of being a felon in possession of a

firearm. Cole contends that his motion is not time-barred

because it relies on a new rule of constitutional law

announced in United States v. Booker, 543 U.S. 220 (2005).

Cole has not shown that the district court's determination is

reasonably debatable. See Slack v. McDaniel, 529 U.S. 473,

484 (2000). COA is DENIED.

CARL E. STEWART

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

Case No. A-05-CA-665-JN

[No. A-02-CR-118-JN] A

WILLIE RAY COLE, Movant

VS.

UNITED STATES OF AMERICA, Respondent

Nveibee 16, 2005, Filed

ORDER: BE IT REMEMBERED on this the 16th day

of November 2005, the Court reviewed the file in the above-

styled cause and specifically the "Notice of Appeal" [#44]

filed November 15, 2005, whereby the movant is attempting

to appeal this Court's order of November 8, 2005, dismissing

the movant's motion to vacate, set aside, or correct sentence

under 28 U.S.C. § 2255. The Court construes the notice as a

request for certificate of appealability. Pursuant to the

Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA") § 102, codified at 28 U.S.C. § 2253(c)(2), the

Court may issue a certificate of appealability "only if the

applicant has made a substantial showing of the denial of-a

constitutional right." Where the court has dismissed a §

2255 petition on a procedural ground without reaching the

prisoner's underlying constitutional claims, a certificate of

appealability may not issue unless the prisoner shows both

(1) "that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional

right” and (2) that jurists of reason would find it debatable

whether the district court's procedural holding was correct.

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

The movant failed to identify any particular issues for

appeal. Furthermore, for the reasons stated in the Court's

order dated November 8, 2005, dismissing the movant's

motion to vacate, set aside, or correct sentence under 28

U.S.C. § 2255, which are incorporated by reference herein,

the Court concludes no issues presented in this case merit the

issuance of a certificate of appealability. Accordingly,

IT IS ORDERED that the movant's request for certificate of

appealability is DENIED.

SIGNED this the 16th day of November 2005.

JAMES R. NOWLIN

UNITED STATES DISTRICT JUDGE