Petition for Writ of Certiorari — Rogala v. United States (No. 06-1018)

061018 JAN22 2007

No.

OFFICE OF THE CLERK

IN THE SUPREME COURT

OF THE UNITED STATES

JOHN PATRICK ROGALA, 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

II.

QUESTIONS PRESENTED FOR REVIEW

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?

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 John Patrick

Rogala and the United States of America. The United States

is the Respondent before this Court.

ii

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

STATEMENT OF THE CASE 2

REASONS FOR GRATING THE WRIT 4

I.

If.

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 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.

ill

CONCLUSION 7

APPENDIX 8

iV

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey, 4

530 U.S. 466 (2000)

Ashley v. United States, 6

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

Blakely v. Washington, - 4-6

542 U.S. 296 (2004)

Bockting v. Bayer, 6

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

United States v. Booker, 4-6

543 U.S. 220 (2005)

Crawford v. Washington, 6-7

541 U.S. 36 (2004)

United States v. Gentry, 5

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

Hohn v. United States, 5.7

524 U.S. 236 (1998)

Schriro v. Summerlin, 6

542 U.S. 348 (2004)

Slack v. McDaniel, a

529 U.S. 473 (2000)

OPINION BELOW

The unpublished opinion of the Court of Appeals for

the Fifth Circuit styled United States v. John Patrick Rogala,

No. 05-50689, 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

wndersigned 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-

000i, 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; no. 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 Rogala pled guilty in Cause # W-90-CR-

121(4) pursuant to a plea agreement to a violation of 21

U.S.C. §841 (a)(1) and 18 U.S.C. § 1956 (A)(1)(a)(i). Rogala

was sentenced to 240 months imprisonment on one count,

and 60 months imprisonment on the second count, to be

served concurrently. Rogala objected to a "role of the

offense” enhancement during sentencing. Rogala filed a

notice of appeal to the Fifth Circuit on November 8, 1991.

Rogala filed his appeal to the Fifth Circuit in Cause #91-

8624. In his appeal, Rogala raised the issues that would later

be decided in Booker and Crawford. Rogala objected to the

use of offenses and evidence that were neither pled to nor

proven before a jury in his sentencing. Rogala also objected

to the lack of confrontation of witnessess during sentencing.

The sentence was affirmed by the Fifth Circuit Court of

Appeals in an opinion issued as mandate on October 13,

1992.

Rogala subsequently filed a motion to correct

sentence pursuant to 28 U.S.C. § 2255 on April 19, 2005.

2

The district court denied the motion, and construed the

motion as a request for a certificate of appealability, and also

denied that request.- Rogala appealed the denial of the

certificate of appealability to the Fifth Circuit, in Cause #05-

50689, and that appeal was denied on October 24, 2006.

REASONS FOR GRATING THE WRIT

I. 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 Se

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 indictment 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 yv.

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),

Rogala believes that this case is wrongly decided, and

desires an opportunity to argue that point.

In brief, the argument that Rogala 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 Rogala's sentencing, a single witness was present,

and while there was an opportunity to confront that witness,

6

the witness also introduced a number of hearsay statements

into evidence. The makers of those statements were not

present, so Rogala was not afforded his right to confront the

witnesses providing that testimony.

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. 05-50689

USDC No. 6:05-CV-155

USDC No. 6:90-CR-121-4

UNITED STATES OF AMERICA, Plaintiff-Appellee,

Vs.

JOHN PATRICK ROGALA, Defendant-Appellant

October 24, 2006, Filed

PRIOR HISTORY: Appeal from the United States District

Court for the Western District of Texas mn

ORDER: John Patrick Rogala, federal prisoner #20493-

077, seeks a certificate of appealability (COA) to appeal the

district court's denial of his 28 U.S.C. 2255 motion, which

challenged his sentences for aiding and abetting money

laundering. Rogala seeks relief on the basis of United States

v. Booker, 543 U.S. 220 (2005), and Crawford v.

Washington, 541 U.S. 36(2004). Rogala has not shown that

reasonable jurists would find the district court's

determinations debatable or wrong. See Slack v. McDaniel,

529 U.S. 473, 484 (2000). Accordingly, COA is DENIED.

E. GRADY JOLLY -

UNITED STATES CIRCUIT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

Civil Action No. W-05-CV-155

Criminal No. W-90-CR-121(4)

JOHN PATRICK ROGALA, Movant

Vs.

UNITED STATES OF AMERICA, Respondent

April 22, 2005, Filed

ORDER: Came on for consideration the Movant's

Motion to Correct Sentence Pursuant to 28 U.S.C. 2255.

The Court, having considered said motion, finds that

it should be denied as time-barred. Additionally, the Court,

finds that the motion lacks merit and should be denied as

Blakely and Booker are not retroactive. United States v.

Booker, 543 US. , No. 04-104 (Jan. 12, 2005).

Accordingly, it is

ORDERED that Movant Motion Under 28 U.S.C.

2255 to Vacate, Set Aside, or Correct Sentence by a Person

in Federal Custody is DENIED.

SIGNED this 22nd day of April, 2005.

WALTER S. SMITH, JR.

CHIEF UNITED STATES DISTRICT JUDGE