Petition for Writ of Certiorari — Smith v. United States (No. 09-562)

Supreme Court, U.S.

| FILED

nL) () 09-562 HOY 4-~ 2009

No. ____§_ OFFICE OF THE CLERK

Wikiam &C Suter, Ctork

IN THE

Supreme Court. of the Gnited States

DAVID L. SMITH,

PETITIONER, |

V.

UNITED STATES OF AMERICA, COMMISSIONER OF

INTERNAL REVENUE, HARRY T. MANAKA, DIANE M.

PHILLIPS, AND GARY T. EASLEY,

RESPONDENTS.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth

Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID L. SMITH

1860 Washington Street, Suite 414

Denver, Colorado 80203

(303) 863-8120

PRO SE ATTORNEY PETITIONER

November 4, 2009

————————————————————————————————————————

QUESTIONS PRESENTED

Whether in dismissing Smith’s appeal as a

sanction for his alleged failure to pay a monetary

sanction of $6,000 imposed against him by the Tenth

Circuit in a prior appeal, Smith v. Commissioner of

Internal Revenue, 10 F. App’x 666 (10 Cir. 2005),

the Tenth Circuit has again grossly abused its

inherent power to impose attorney discipline and

other sanctions against Smith, and has so far

departed from the accepted and usual course of

judicial proceedings as to call for an exercise of this

Court’s supervisory power; whether the Tenth

Circuit has also arbitrarily deprived Smith of his

constitutional and statutory rights to appeal and

receive meaningful appellate review.

Whether the Judges of the Tenth Circuit were

required to disqualify themselves from Smith’s

appeals in accordance with 28 U.S.C. § 455(a) and

(b); whether their conduct constituted a denial of

Fifth Amendment due process of law under this

Court’s decision in Caperton v. A.T. Massey Coal Co.,

129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009).

TABLE OF CONTENTS

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Statement of the Case.................-..--00- 1

Reasons for Granting the Writ................. 8

A. REVIEW [IS WARRANTED BECAUSE IN

DISMISSING SMITH’S APPEAL AS A SANCTION

‘FOR HIS ALLEGED FAILURE TO PAY A .

MONETARY SANCTION OF $6,000 IMPOSED

AGAINST HIM BY THE TENTH CIRCUIT IN A

PRIOR APPEAL, SMITH V. COMMISSIONER OF

INTERNAL REVENUE, 10 F. APP’X 666 (10TH CIR.

2005), THE TENTH CIRCUIT HAS AGAIN

GROSSLY ABUSED ITS INHERENT POWER TO

IMPOSE ATTORNEY DISCIPLINE AND OTHER

SANCTIONS AGAINST SMITH, AND HAS SO FAR

DEPARTED FROM THE ACCEPTED AND USUAL

COURSE OF JUDICIAL PROCEEDINGS AS TO

CALL FOR AN EXERCISE OF THIS COURT'S

SUPERVISORY POWER; THE TENTH CIRCUIT

HAS ALSO ARBITRARILY DEPRIVED SMITH OF

HIS CONSTITUTIONAL AND STATUTORY

RIGHTS TO APPEAL AND RECEIVE

MEANINGFUL APPELLATE REVIEW......... 10

B. REVIEW IS WARRANTED BECAUSE THE

JUDGES OF THE TENTH CIRCUIT WERE

REQUIRED TO DISQUALIFY THEMSELVES

FROM SMITH’S APPEALS IN ACCORDANCE

WITH 28 U.S.C. § 455(A) AND (B); THEIR

CONDUCT CONSTITUTED A DENIAL OF FIFTH

AMENDMENT DUE PROCESS OF LAW UNDER

THIS COURT'S DECISION IN CAPERTON V. A.T.

MASSEY COAL CO., 129 S.Ct. 2252, 173 L.Ed.2d

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APPENDIX:

Smith v. United States of America,

No. 08-1418 (10% Cir. July 6, 2009)............ la

Smith v. United-States of America,

No. 08-1418 (10* Cir. August 6, 2009).......... 5a

Smith v. Commissioner of Internal Revenue,

10 F. App’x 666 (10* Cir. 2005) ............... 6a

TABLE OF AUTHORITIES

Cases

Caperton v. A.T. Massey Coal Co.,

129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009)..... 20, 21

Casillan v. Regional Transportation District,

986 F.2d 1426 (10th Cir. 1993), cert. denied,

114 S.Ct. 2710 (1994) ....... 0c cee cee cece eee 8-9

Chambers v. NASCO, 501 U.S. 32,

111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). ... 10, 11, 20

DeHerrera v. City and County of Denver,

Nos. 93-1070, 93-1139 (10* Cir. September

ie | ae Se hc: hy eg eng ee 9

DeHerrera v. City and County of Denver,

89 F.3d 849 (10° Cir. 1996)

Dunkin v. Louisiana-Pacific Corp.,

89 F.3d 849 (10 Cir. 1996), cert. denied,

eye fee lg a ear rarer

Dunkin v. Louisiana-Pacific Corp.,

120 F.3d 270 (10* Cir. 1997), cert. denied,

eee i ere eee eee |

Frazier v. Heebe, 482 U.S. 641,

107 S.Ct. 2607, 96 L.Ed.2d 557 (1987)........

Howard v. Mail-Well Envelope Co.,

150 F.3d 1227 (10th Cir. 1998)

Cg

In re Smith, 10 F.3d 723 (10th Cir. 1993),

cert. denied, 513 U.S. 807 (1994)............

In re Smith, 76 F.3d 335 (10 Cir. 1996) (per

curiam), cert. denied, 519 U.S. 871(1996). ....

In re Smith, No. 08-822

(10¢ Cir. September 16, 2008)..............

In re Smith, No. 08-1323 (10* Cir.

May 12, 2009), cert. pending, sub nom

Smith v. United States Court of Appeals

for the Tenth Circuit, No. 09-303 (filed

FE Ts I svc eae ac hee an secre aes

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Qualls v. Regional Transportation District,

No. 05-1385 (10 Cir. July 23, 1996)............ 9

Roadway Express v. Piper, 447 U.S. 752,

100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). ... 10, 11, 20

Smith v. Colorado Supreme Court,

No. 08-1030 (10% Cir. July 24, 2008)........... 9

Smith v. Commissioner of Internal Revenue,

10 F. App’x 666 (10 Cir. 2005)..... 8, 9, 10, 11, 14,

15, 16, 17, 18

Smith v. Seymour,

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OPINIONS BELOW

On July 6, 2009, a three-judge Panel of the

United States Court of Appeals for the Tenth Circuit

entered its Order and Judgment dismissing Smith’s

appeal as a sanction for his alleged failure to pay a

monetary sanction of $6,000 imposed against him by

the Tenth Circuit in a prior appeal, Smith v.

Commissioner of Internal Revenue, 10 F. App’x 666

(10t» Cir. 2005). The Tenth Circuit Panel’s Order

denying Smith’s Joint Petition for Panel Rehearing

and Petition for Rehearing En Banc was entered on

August 6, 2009. These orders or opinions are

included in the Appendix attached to this Petition, at

la-14a.

JURISDICTION

Jurisdiction in the Tenth Circuit was based on 28

U.S.C. § 1291. The statutory provision believed to

confer on this Court jurisdiction to review on a writ

of certiorari the Tenth Circuit’s decision is 28 U.S.C.

§ 1254(1), providing that “[c]ases in the courts of

appeals may be reviewed by the Supreme Court by

the following methods: (1) [b]ly writ of certiorari

granted upon the petition of any party to any civil or

criminal case, before or after rendition of judgment

or decree... .”

Jurisdiction in this Court is also based on 28

U.S.C. § 2072, providing that “[t}he Supreme Court

shall have the power to prescribe by general rules,

the forms of process, writs, pleadings, and motions,

and the practice and procedure of the district courts

Vill

and courts of appeals of the United States in civil

actions....“ In dismissing Smith’s appeal as a

sanction for his alleged failure to pay a monetary

sanction of $6,000 imposed against him by the Tenth

Circuit in a prior appeal, Smith v. Commissioner of

Internal Revenue, 10 F. App’x 666 (10 Cir. 2005),

the Tenth Circuit has again grossly abused its

inherent power to impose attorney discipline and

other sanctions against Smith,.and has so far

departed from the accepted and usual course of

judicial proceedings as to call for an exercise of this

Court’s supervisory power. See Chambers v.

NASCO, 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27

(1991), citing Roadway Express v. Piper, 447 U.S.

752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980); 28

U.S.C. § 2072; Frazier v. Heebe, 482 U.S..641, 107

S.Ct. 2607, 96 L.Ed.2d 557 (1987). The Tenth

Circuit has also deprived Smith of his constitutional

and statutory rights to appeal and receive

meaningful appellate review. U.S. CONST. amend.

I; U.S. CONST. amend. V; 28 U.S.C. §§ 1291, 1654

and 2072. The Judges of the Tenth Circuit were

required to disqualify themselves from Smith’s

appeals in accordance with 28 U.S.C. § 455(a) and

(b). Their conduct constituted a denial of Fifth

Amendment due process of law under this Court’s

decision in Caperton v. A.T. Massey Coal Co., 129

S.Ct. 2252, 173 L.Ed.2d 1208 (2009).

CONSTITUTIONAL PROVISIONS,

STATUTES, AND RULES INVOLVED

The First Amendment to the Constitution of the

United States provides, in pertinent part, that

“Congress shall make no law ... abridging the...

Ix

right of the people . . . to petition the government for

a redress of grievances.” U.S. CONST. amend. I.

The Fifth Amendment to the Constitution of the

United States provides, in pertinent part, that “no

person shall be... . deprived of life, liberty, or

property, without due process of law... .” U.S.

CONST. amend V.

28 U.S.C. § 455 provides, in pertinent part, that

“(a) [a]ny justice, judge, or magistrate judge of the

United States shall disqualify himself in any

proceeding in which his impartiality might

reasonably be questioned,” and “(b) [hJe shall also

disqualify himself in the following circumstances:

(1) [w]here he has a personal bias or prejudice

concerning a party....”

28 U.S.C. § 1291 provides, in pertinent part, that

“(t]he courts of appeals... shall have jurisdiction of

appeals from all final decisions of the district courts

of the United States... .”

28 U.S.C. § 1654 provides that “[iJn all courts of

the United States the parties may plead and conduct

their own cases personally or by counsel as, by the

rules of such courts, respectively, are permitted to

manage and conduct causes therein.”

28 U.S.C. § 2072 provides, in pertinent part, that

“t]he Supreme Court shall have the power to

prescribe by general rules, the forms of process,

writs, pleadings, and motions, and the practice and

procedure of the district courts and courts of appeals

of the United States in civil actions... . “

x

Pursuant to this Court’s Rule 10, 12, 13 and 14,

Pro Se Attorney Petitioner David L. Smith (“Smith”)

respectfully submits his Petition for a Writ of

Certiorari. In support thereof, Smith alleges as

follows:

STATEMENT OF THE CASE

This case was originally filed (on August 31,

2006) as an Adversary Proceeding in the United

States Bankruptcy Court for the District of Colorado.

In his Complaint and Jury Demand, Smith alleged

claims for relief under 26 U.S.C. § 7433 and the Fifth

Amendment to the Constitution of the United States:

COME NOW the plaintiffs, M. Julia Hook

and David L. Smith, and file their Complaint

and Jury Demand against the above-named

defendants, and allege as follows:

1. This is a suit for damages and other

legal and equitable relief under 26 U.S.C. §

7433 and the Fifth Amendment to the

Constitution of the United States.

Jurisdiction is based on 26 U.S.C. § 7433 and

28 U.S.C. §§ 1331, 1340, and 1346(a). Venue

is proper under 28 U.S.C. § 1391(e).

Reference is made to the above case caption

for the name, number and chapter of the case

under the Bankruptcy Code to which the

adversary proceeding relates and to the

district where the case is pending. This is a

non-core proceeding under the Bankruptcy

Code and 28 U.S.C. § 157. Plaintiffs do not

consent to the entry of a final order or

judgment by the Bankruptcy Judge.

2. On March 10, 2006, plaintiffs served a

Request for a Collection Due Process

Hearing on the Commissioner of Internal

Revenue alleging as follows:

This is the third time the taxpayers

have requested a Collection Due

Process Hearing to protest the filing of

liens and/or levies on their property.

(Copies of the previous requests are

attached to this attachment.) While

no Collection Due Process Hearing has

been held by the Internal Revenue

Service Office of Appeals, Internal

Revenue Service Officer Diane M.

Phillips and Western Area Director

Harry T. Manaka have caused

numerous liens and levies to be placed

on the property or the right to

property of the taxpayers, in violation

of 26 U.S.C. §§ 6320(b) and 6330(b),

and the Due Process Clause of the

Fifth Amendment to the Constitution

of the United States. These lien and

levy actions were effected during the

period of suspension of lien and levy

actions under 26 U.S.C. § 6330(e). As

the proximate result of these reckless,

intentional, and/or negligent statutory

and/or constitutional violations by the

Internal Revenue Officer and the

2

Western Area Director, the taxpayers

have sustained continuing actual,

direct economic damages, for which

they seek full compensation from the

United States. See 26 U.S.C. § 7433.

The taxpayers request a Collection

Due Process Hearing with the Internal

Revenue Service Office of Appeals on

the foregoing issues, as well as those

enumerated in 26 U.S.C. § 6330(c)(2),

including challenges to the

appropriateness of collection actions;

offers of collection alternatives, which

may include the posting of a bond, the

substitution of other assets, an

installment agreement, or an offer-in-

compromise; and/or challenges to the

existence or amount of the underlying

tax liability for any tax year period if

the taxpayers did not have an

opportunity to dispute such tax

liability.

In a cover letter, plaintiff Smith alleged that

the Internal Revenue Officer is still refusing

to comply with the February 6, 2006

collection decision by the Team Manager of

the Internal Revenue Service Office of

Appeals, Gary T. Easley, requiring release of

the levy which attaches to approximately

$16,964.00 in a Merrill Lynch Account, and

requesting a release of this levy without

further delay.

3. On March 28, 2006, no response

having been made to plaintiffs’ requests,

plaintiff Smith wrote the following letter to

the Internal Revenue Officer and the Team

Manager Appeals:

On March 10, 2006, I served (via

hand delivery and certified mail) on

each of you a Request for a Collection

Due Process Hearing, as well as a

letter requesting that all lien and levy

actions which are the subject of the

requested hearing be suspended for

the period during which such hearing,

and appeals therein, are pending, as

required by 26 U.S.C. § 6330(e). You

have not yet notified me whether you

intend to comply with my requests.

Unless I hear from you on these

requests by Friday, March 31, 2006, at

5:00 p.m., I will have no choice but to

pursue my remedies in the United

States Tax Court and/or the United

States District Court. Please respond,

in writing, at the letterhead address

or fax number ASAP.

I am attaching a copy of an appeal

recently filed in the Office of

Collections, Internal Revenue Service

in connection with IRS Agent Diane

Phillip’s role in the payment to the

IRS by a law firm with which

4

Taxpayer Mary Julia Hook has a

relationship (Fognani & Faught,

PLLC) of an amount in excess of

$36,500.00 that was Ms. Hook’s share

of her own client’s payment for her

legal work done over a ten-month

period as an independent contractor

(not an employee) of the law firm. The

payment to the IRS was made by the

law firm pursuant to a continuing levy

that was served on the firm on or

about August 16, 2005, and the

payment was made only after the

office manager was told by IRS Agent

Phillips that the firm was required to

make the payment despite Ms. Hook’s

independent contractor status.

4. In addition to the amounts mentioned

in paragraphs 2 and 3 above, approximately

$39,000 was wrongfully turned over to the

IRS by Interactive Brokers LLC under

Notice of Levy dated 08/12/2005;

approximately $200 was wrongfully turned

over to the IRS by Fognani & Faught, PLLC

under Notice of Levy on Wages, Salary, and

Other Income dated 08/12/2005 and

08/16/2005; and approximately $65,000 was

wrongfully turned over to the IRS under

letter dated 09/2005. No notice was given

before levy, as required by 26 U.S.C. §

6331(d). Levy was made during the period of

suspension of levy actions under 26 U.S.C. §

6330(e).

5. Plaintiffs have not had a full and fair

opportunity, or any opportunity, to challenge

or litigate the existence or amount (in excess

of $500,000) of the underlying tax liability

upon which defendants’ unlawful liens and

levies were based, The United States Tax

Court entered a default judgment against

plaintiffs as a sanction for their alleged

failure to properly prosecute their tax cases

without holding a due process hearing. This

default judgment was based on false and

defamatory charges made by the

Commissioner of Internal Revenue and its

attorneys, who thus committed a fraud on

the Tax Court and the plaintiffs.

6. On March 29, 2006, plaintiff Hook

filed her offer-in-compromise with the

Commissioner of Internal Revenue under 26

U.S.C. § 7122. Therefore, under 26 U.S.C. §

6331(h), no levy may be made on the

property or rights to property of plaintiff

Hook during the period that her offer-in-

compromise is pending, including her

currently pending appeal of the

determination by the IRS that she had filed

her offer-in-compromise solely for the

purpose of delay. Despite this stay, the IRS

has made numerous threats to seize or sell

Hook’s property in violation of the stay.

7. As the result of defendants’ unlawful

actions, plaintiffs have been deprived of the

cash and capital from which to fund their

6

law practices, plaintiff Hook’s rental

properties, and plaintiff Smith’s securities

trading activities, and from which to pay

bills and expenses, including significant

monthly mortgage amounts. Because of the

cash flow problem, the bank has instituted

foreclosure proceedings on plaintiff Hook’s

home and rental properties. Plaintiff Hook

has been unable to secure re-financing of her

mortgages because of defendants’ unlawful

liens and levies and the resulting damage to

her credit. Plaintiffs have been forced to file

for Chapter 11 bankruptcy.

WHEREFORE, plaintiffs request all

actual, direct economic damages sustained as

the proximate result of defendants’ violation

of plaintiffs’ statutory and constitutional

rights, in an amount to be proved to the jury

at trial; mental or emotional distress

damages; exemplary or punitive damages

against defendants Harry T. Manaka, Diane

M. Phillips, and Gary T. Easley in their

individual capacities; an order declaring null

and void ab initio the default judgment

entered by the United States Tax Court

against the plaintiffs; an order requiring the

Commissioner of Internal Revenue to return

to plaintiffs all money and other property (or

right to property) subjected to levy or lien

actions during the time the suspension under

26 U.S.C. § 6330(e)(1) was in force; pre- and

post-judgment interest, costs and attorney

fees (including expert witness fees); and such

7

other and further legal and equitable relief

as may be just under the circumstances,

including preliminary and permanent

injunctive relief.

JURY DEMAND

Plaintiffs hereby demand a trial by jury of

all issues so triable.

On April 19, 2007, the Bankruptcy Judge dismissed

Smith’s Complaint for “lack of subject matter

jurisdiction,” and appeal was taken to the United

States District Court for the District of Colorado,

which affirmed the Bankruptcy Judge’s dismissal of

Smith’s Complaint “in all respects.” Appeal was

then taken to the United States Court of Appeals for

the Tenth Circuit, which dismissed (on July 6, 2009)

the appeal as a sanction for Smith’s alleged failure to

pay a monetary sanction of $6,000 imposed against

him by the Tenth Circuit in a prior appeal, Smith v.

Commissioner of Internal Revenue, 10 F. App’x 666

(10th Cir. 2005). The Tenth Circuit Panel’s Order

denying Smith’s Joint Petition for Panel Rehearing

and Petition for Rehearing En Banc was entered on

August 6, 2009.

REASONS FOR GRANTING THE WRIT

The Tenth Circuit has a long history of imposing

harsh and unjustified attorney discipline and other

sanctions against Smith without due process of law.

See, e.g., Casillan v. Regional Transportation

District, 986 F.2d 1426 (10th Cir. 1993) (monetary

sanctions after case dismissal), cert. denied,

114 S.Ct. 2710 (1994); DeHerrera v. City and County

of Denver, Nos. 93-1070, 93-1139 (10 Cir.

September 3, 1993) (monetary sanctions and referral

to the Tenth Circuit’s attorney disciplinary panel for

further proceedings); In re Smith, 10 F.3d 723 (10th

Cir. 1993) (indefinite suspension from practice), cert.

denied, 513 U.S. 807 (1994); In re Smith, 76 F.3d 335

(10th Cir. 1996) (per curiam) (disbarment), cert.

denied, 519 U.S. 871 (1996); DeHerrera v. City and

County of Denver, 89 F.3d 849 (10t Cir. 1996)

(monetary sanctions and refusal to vacate same after

case settlement); Dunkin v. Louisiana-Pacific Corp.,

89 F.3d 849 (10th Cir. 1996) (monetary sanctions),

cert. denied, 117 S.Ct. 435 (1996); Qualls v. Regional

Transportation District, No. 05-1385 (10 Cir. July

23, 1996) (monetary sanctions); Dunkin v. Louisiana-

Pacific Corp., 120 F.3d 270 (10* Cir. 1997) (refusal to

vacate monetary sanctions after case settlement),

cert. denied, 118 S.Ct. 884 (1998); Howard v. Mail-

Well Envelope Co., 150 F.3d 1227 (10th Cir. 1998) (en

banc) (per curiam) (prospective filing restrictions

after case dismissal). More recently, see Smith uv.

Commissioner of Internal Revenue, 10 F.App’x 666

(10t Cir. 2005) (monetary sanctions after case

dismissal); Smith v. Seymour, 229 F.App'x 811 (10th

Cir. 2007) (case dismissal); Smith v. Colorado

Supreme Court, No. 08-1030 (10' Cir. July 24, 2008)

(case dismissal); In re Smith, No. 08-822 (10 Cir.

September 16, 2008) (admonition); In re Smith, No.

08-1323 (10t Cir. May 12, 2009) (refusal to readmit

or reinstate Smith to the Bar of the United States

District Court for the District of Colorado), cert.

9

pending, sub nom Smith v. United States Court of

Appeals for the Tenth Circuit, No. 09-303 (filed

August 26, 2009). In these cases, the Tenth Circuit

grossly abused its inherent power to impose attorney

discipline and other sanctions against Smith. See

Chambers v. NASCO, 501 U.S. 32, 111 S.Ct. 2123,

115 L.Ed.2d 27 (1991), citing Roadway Express v.

Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488

(1980).

A. REVIEW IS WARRANTED BECAUSE IN

DISMISSING SMITH’S APPEAL AS A SANCTION

FOR HIS ALLEGED FAILURE TO PAYA

MONETARY SANCTION OF $6,000 IMPOSED

AGAINST HIM BY THE TENTH CIRCUIT INA

PRIOR APPEAL, SMITH V. COMMISSIONER OF

INTERNAL REVENUE, 10 F. APP’X 666 (107TH

CIR. 2005), THE TENTH CIRCUIT HAS AGAIN

GROSSLY ABUSED ITS INHERENT POWER TO

IMPOSE ATTORNEY DISCIPLINE AND OTHER

SANCTIONS AGAINST SMITH, AND HAS SO

FAR DEPARTED FROM THE ACCEPTED AND

‘USUAL COURSE OF JUDICIAL PROCEEDINGS

AS TO CALL FOR AN EXERCISE OF THIS

COURT'S SUPERVISORY POWER; THE TENTH

CIRCUIT HAS ALSO ARBITRARILY DEPRIVED

SMITH OF HIS CONSTITUTIONAL AND

STATUTORY RIGHT TO APPEAL AND RECEIVE

MEANINGFUL APPELLATE REVIEW.

In the absence of a finding that Smit:: acted in

bad faith, the Tenth Circuit has again grossly

abused its inherent power to impose the sanction of

case dismissal against Smith for his alleged failure

10

to pay a monetary sanction of $6,000 imposed

against him by the Tenth Circuit in a prior appeal,

Smith v. Commissioner of Internal Revenue, 10 F.

App’x 666 (10 Cir. 2005). See Chambers v.

NASCO, 501 U.S. 32, 111 S.Ct. 2123,

115 L.Ed.2d 27 (1991), citing Roadway Express uv.

Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488

(1980).

On March 9, 2009, Smith filed his Response in

Opposition to Motion to Dismiss This Appeal and

Request for Oral Argument. Smith stated that in

addition to their failure to comply with 10* Cir. R.

27.2(A)(3)(a), providing that “[a] motion [to dismiss]

under (A)(1)(a) .. . should be filed within 15 days

after the notice of appeal is filed, unless good cause

is shown,” the Commissioner of Internal Revenue

and other Defendants-Appellees failed to

demonstrate that Smith failed to pay or otherwise

satisfy the referenced monetary sanction. In their

Motion to Dismiss, Defendants-Appellees’ attorneys

asserted that “[t]his office [Tax Division, Department

of Justice] has no record that any portion of this

previously-imposed sanction has been paid.”

However, this previously-imposed sanction was

listed on the schedules filed in Smith’s and his wife’s

Chapter 11 bankruptcy cases (Nos. 06-15511 and 08-

11271) as disputed claims against the estates.

Defendants-Appellees failed to file proofs of claim or

otherwise pursue their claims against Smith and/or

his wife in the Bankruptcy Court. Furthermore,

Defendants-Appellees’ unlawful liens and levies on

Smith’s property have prevented Smith from being

able to pay this previously-imposed sanction. These

L|

unlawful liens and levies are described in Smith’s

Complaint and Jury Demand filed in the Bankruptcy

Court in Adversary Proceeding No. 06-01762.

Finally, Defendants-Appellees continue to levy on

100% of. Smith’s only income of $500+ per month in

Social Security benefits, despite repeated promises

by Internal Revenue Service Attorney Joan E. Steele

that Defendants-Appellees’ unlawful levy on

amounts beyond the statutory limit would be lifted.

These promises were made by IRS Attorney Steele

during hearings in Smith’s wife’s Chapter 11

bankruptcy case (No. 08-11271).

In its July 6, 2009 Order and Judgment, the

Tenth Circuit Panel found and concluded that based

on the assertion made by Defendants-Appellees’

attorneys, Smith failed to pay the previously

imposed sanction, and dismissed his appeal as a

sanction for his failure to pay. No finding was made

as to whether Smith acted in bad faith.

On July 17, 2009, Smith filed his Joint Petition

for Panel Rehearing and Petition for Rehearing En

Banc. In support thereof, Smith submitted M. Julia

Hook’s Declaration Under Penalty of Perjury:

1. My name is M. Julia Hook, also known

as Julia Hook and Mary Julia Hook. Iam

over the age of eighteen years, and am

otherwise competent to make this

Declaration.

2. I have been an attorney for nearly 37

years, and am licensed to practice law in the

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States of Colorado and Texas as well as ina

number of federal courts, including the

United States Court of Appeals for the Tenth

Circuit.

3. I have been married to David L.

Smith, also know as David Lee Smith, since

December of 1972; and although we have

been separated and living apart for

approximately 10 years, I am generally

familiar with his financial situation and I

have personal knowledge of all of the facts

contained within this Declaration.

4. David L. Smith’s sole independent

source of income is his monthly social

security check in the amount of

approximately $500. The Commissioner of

Internal Revenue/Internal Revenue Service

has levied on Mr. Smith’s social security and

has been taking 100% of this amount since at

least December of 2007. Mr. Smith owns no

assets other than his clothes, books, a 40-

year old car and similar personal effects of

limited economic value. Mr. Smith and I

have never divorced; and I am aware that if

we were to do so, under Colorado law he

would more likely than not be entitled to a

significant portion of my assets and income

in the form of spousal support. In addition,

although we are separated, I am aware that

under Colorado law I have obligations for his

financial support. In fulfillment of that

obligation, I currently provide him a place to

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live in a condominium unit that I own, and

cover the expense of his other basic

necessities of life.

5. In 2005, this Court imposed a

monetary sanction of $6,000 against Mr.

Smith and me in Smith v. Commissioner of

Internal Revenue, 10 F. App’x 666 (10% Cir.

2005). This case was an appeal from default

judgments entered by the Tax Court against

Mr. Smith and me for taxes, penalties and

interest relating to five tax years in the

1990s. I represented Mr. Smith in his

appeal. The sanction was payable to the

United States Department of Justice and/or

the Commissioner of Internal

Revenue/Internal Revenue Service.

6. When the $6000 sanction against Mr.

Smith and me. was imposed by this Court in

2005, Mr. Smith was without assets or funds

of any sort to pay it. Before I was able to pay

the sanction out of my assets and income, the

Commissioner of Internal Revenue/Internal

Revenue Service levied on my bank and

brokerage accounts and garnished the funds

I had earned in the hands of the law firm

with which I am affiliated (as well as all

funds I would earn by virtue of the affiliation

in the future), leaving me without funds with

which to pay the sanction. The levies and

garnishments, which were filed for the five

tax years in the 1990s that were the subject

of Mr. Smith’s appeal, also meant I could not

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make mortgage payments on three real

properties that I own; and as a result,

foreclosure proceedings were started with

respect to those properties.

7. As a result of the levies and

garnishments filed by the Commissioner of

Internal Revenue/Internal Revenue Service

against me and their impact on my assets

(including real properties) and income, Mr.

Smith and I were forced to file for Chapter

11 bankruptcy in August of 2006 (Case No.

06-15511).

8. The $6000 sanction imposed by this

Court in Smith v. Commissioner of Internal

Revenue, supra was listed as a disputed

claim in Case No. 06-15511. Neither the

Commissioner of Internal Revenue/Internal

Revenue Service nor the United States

Department of Justice filed a proof of claim

or otherwise pursued their claim for the

$6000 sanction against Mr. Smith and/or me

in Case No 06-15511, although they were

given appropriate notice of the bankruptcy

filing.

9. Bankruptcy Case No. 06°15511 was

dismissed in September of 2007 on the

motion of the Commissioner of Internal

Revenue/Internal Revenue Service.

10. In February of 2008, | filed a Chapter

11 bankruptcy case on my own behalf (Case

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No. 08-11271), listing the entire $6000

sanction imposed in Smith v. Commissioner

of Internal Revenue, supra as a disputed

claim against me in my sole and separate

capacity. Once again the Commissioner of

Internal Revenue/Internal Revenue Service

and the United States Department of Justice

failed to file a proof of claim or otherwise

pursue their claim for the $6000 sanction

against me, although they were given

appropriate notice of the bankruptcy filing.

11. The Commissioner of Internal

Revenue/Internal Revenue Service,

represented by Internal Revenue Service

Attorney Joan E. Steele (who also identified

herself in pleadings as a special attorney in

the United States Department of

Justice/United States Attorney’s Office) did

file a proof of claim in ‘Case No. 08-11271 for

amounts resulting from the default

judgments imposed against Mr. Smith and

me by the Tax Court for taxes, penalties and

interest relating to the five years in the

1990s that were the subject of Mr. Smith’s

appeal in Smith v. Commissioner of Internal

Revenue, supra.

12. Although a separate proof of claim

was not filed in my bankruptcy case for the

$6000 sanction imposed by this Court

against Mr. Smith and me in Smith v.

Commissioner of Internal Revenue, supra, |

believe it is likely that the amount claimed

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by Attorney Steele on her clients’ behalf

includes that sanction. Despite Attorney

Steele’s repeated representations to my

bankruptcy attorney and me that she would

go over the total amount in her clients’ proof

of claim with us and articulate the basis for

each amount listed, to date she has failed to

do so.

13. A plan of reorganization and

disclosure statement in my bankruptcy case

was approved by Judge Sidney B. Brooks in

December of 2008, with the consent of

Attorney Steele on behalf of her clients.

‘Under my plan of reorganization, I have

assumed responsibility for paying 100% of

the amount relating to the five years in the

1990s claimed by Attorney Steele on her

clients’ behalf -- an amount that I believe

may well include the $6000 sanction imposed

by this Court in Smuth v. Commissioner of

Internal Revenue, supra (Mr. Smith’s appeal

of the default judgments éntered by the Tax

Court against us for those years).

14. Despite the fact that the

Commissioner of Internal Revenue/Internal

Revenue Service has levied on Mr. Smith’s

sole independent source of income and has

been taking 100% of his monthly social

security in the amount of approximately

$500 since at least December of 2007, I do

not believe any of that money has been

applied to reduce the debt relating to the five

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tax years in the 1990s that I am paying to

the Commissioner of Internal

Revenue/Internal Revenue Service under my

approved plan of reorganization. I can only

assume that the $10,000 taken from Mr.

Smith has been applied to the $6000

sanction imposed in Smith v. Commissioner

of Internal Revenue, supra; although it is

also likely that I am paying the same $6000

sanction under my plan of reorganization.

15. In approximately March of 2008,

during a hearing in my bankruptcy case,

Attorney Steele -- on her clients’ behalf --

acknowledged that it would be improper for

her clients to levy on and take 100% of Mr.

Smith’s social security payments; and she

represented to the bankruptcy court that she

would ensure that the situation was

promptly rectified. To date, however, she

has failed te do so despite repeated inquiries

by my bankruptcy attorney; and the -

Commissioner of Internal Revenue/Internal

Revenue Service continues to take 100% of

Mr. Smith’s only independent source of

income.

16. If the approximately $10,000 taken

from Mr. Smith by the Commissioner of

Internal Revenue/Internal Revenue Service

since December of 2007 has not been applied

to the $6000 sanction and it remains unpaid

by Mr. Smith, I know that he cannot pay the

sanction as he is without any resources with

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which to pay it. My income is committed to

being expended (and is being expended) in

accordance with the approved plan of

reorganization in my Chapter 11 bankruptcy

case — a plan that includes monthly and

quarterly payments that may also cover the

$6000 sanction.

I declare under penalty of perjury that

the foregoing is true and correct.

Executed this 20 day of July, 2009.

Ms. Hook’s Declaration Under Penalty of Perjury

further demonstrated that Smith did not fail to pay

or otherwise satisfy the monetary sanction of $6,000

imposed against him by the Tenth Circuit in the

prior appeal, and that he did not act in bad faith.

In its August 6, 2009 Order, the Tenth Circuit

Panel said: *

Appellant’s petition for rehearing is

denied.

The petition for rehearing en banc was

transmitted to all of the judges of the court

who are in regular active service. As no

member of the panel.and no judge in regular

active service on the court requested that the

court be polled, that petition is also denied.

By completely ignoring Ms. Hook’s Declaration

Under Penalty of Perjury, and failing or refusing to

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make a finding as to whether Smith acted in bad

faith, the Tenth Circuit has again grossly abused its

inherent power to impose attorney discipline and

other sanctions against Smith, and has so far

departed from the accepted and usual course of

judicial proceedings as to call for an exercise of this

Court’s supervisory power. See Chambers v.

NASCO, 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27

(1991), citing Roadway Express v. Piper, 447 U.S.

752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980); 28

U.S.C. § 2072; Frazier v. Heebe, 482 U.S. 641, 107

S.Ct. 2607, 96 L.Ed.2d 557 (1987). The Tenth

Circuit has also deprived Smith of his constitutional

and statutory rights to appeal and receive

meaningful appellate review. U.S. CONST. amend.

I; U.S. CONST. amend. V; 28 U.S.C. §§ 1291, 1654

and 2072.

B. REVIEW IS WARRANTED BECAUSE THE

JUDGES OF THE TENTH CIRCUIT WERE

REQUIRED TO DISQUALIFY THEMSELVES

FROM SMITH’S APPEALS IN ACCORDANCE

WITH 28 U.S.C. § 455(A) AND (B); THEIR

CONDUCT CONSTITUTED A DENIAL OF

FIFTH AMENDMENT DUE PROCESS OF LAW

UNDER THIS COURT’S DECISION IN

CAPERTON V. A.T. MASSEY COAL CoO., 129

S.Ct. 2252, 173 L.Ed.2d 1208 (2009).

Under 28 U.S.C. § 455(a), “[a]ny justice, judge, or

magistrate judge of the United States shall

disqualify himself in any proceeding in which his

impartiality might reasonably be questioned,” and,

under § 455(b), “[h]e shall also disqualify himself. . .

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(1) [w]here he has a personal bias or prejudice

concerning a party ....” The impartiality of the

Judges of the Tenth Circuit might reasonably be

questioned based on their long history of imposing

harsh and unjustified attorney discipline and other

sanctions against Smith without due process of law.

Obviously, the Judges of the Tenth Circuit have a

personal bias or prejudice against Smith. For these’

reasons, the Judges of the Tenth Circuit were

required to disqualify themselves from Smith’s

appeals in accordance with 28 U.S.C. § 455(a) and

(b). Their conduct constituted a denial of Fifth

Amendment due process of law under this Court’s

decision in Caperton v. A.T. Massey Coal Co., 129

S.Ct. 2252, 173 L.Ed.2d 1208 (2009) (the probability

of actual bias on the part of the judge or

decisionmaker is too high to be constitutionally

tolerable where a judge had no pecuniary interest in

the case but had determined in an earlier proceeding

whether criminal charges should be brought and

then proceeded to try and convict the petitioner).

Respectfully submitted,

/sfDavid L. Smith

DAVID L. SMITH

1860 Washington St., Ste. 414

Denver, CO 80203

(303) 863-8120

PRO SE ATTORNEY PETITIONER

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