Petition for Writ of Certiorari — Ryan v. United States

Supreme Court, U.S.

FILED

10-764 Uke 1- 2010

Case No. 10° OFFICE OF THE CLERK

IN TH)

SUPREME COURT OF THE UNITED STATES

October Term 2OLO

MICHAEL W. RYAN

Petitioner

UNTTED STATES OF AMERICA

Re spond nt

ON PETITION FOR WRIT OF CERTIORARE TO THI

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUTI

PITTPION FOR WREE OF CERTIORARI

Michael W. Ryan, Pro Se

#02920 046

Federal Prison Camp

PORB SOOO

Klorence, CO &1226

QUESTIONS PRESENTED

1. Should the Court act to resolve a spht among

second, fifth, Seventh,

and sometimes Eighth Circuits hold that Cuyler 4

Sullivan, 446 U.S. 3385 (1980), apphes to attorney

conflict cases irrespective of multiple representation,

the Circuits when the First

’

while the Fourth, Sixth, Eleventh, and sometimes

Ninth Circuits restrict the holding to multiple

representation instances of attorney conflict?

2 Should this Court follow the dictates of M7//ler

Yl v Cockrell, and 28 U.S.C. § 2253 and certify the

)

issues presented below for appellate review’

3. When prosecutors knowingly suborn perjury

and the false testimony is not corrected by the court

and/or the prosecutor and the perjury involves the

materiality of guilt or innocence, ought the lower

courts to ignore it and/or excuse it because appellate

counsel didn’t argue it on direct appeal when it 1s

brought under ineffective assistance of appellate

counse!|?

TABLE OF CONTENTS

Table of Contents..... ee Petre 1]

Table of Cases and Authorities.. Bee ee cool

Citation of Reports... | 7

Basis for Jurisdiction..... »

Constitutional and Statutory Provisions 2

Statement of the Case..................... A

Why the Writ Should Issue (Argument).... 10

Issues Petitioner seeks to be Certified ...26

Appendix

Order Denying COA......... pyasncapetexssevavensosdl

Order Denying § 2255 and COA (D.C.Mt.).B-l to B-17

Order Denying Reheariny..... oe

Letter from Counsel at tral jesenteesse- ...D

TABLE OF CASES AND AUTHORITIES

Byrd, Jr. v Collins, 2000 U.S. App. LEXIS 6266 (2™

Ee 27

1)

California v Trombetta, 467 U.S. 479 (1984)..........27

Chambers v Mississippi, 410 U.S. 284 (1973)...22, 27

Crane v Kentucky, 476 U.S. 683, 690 (1986).....22, 28

Cuyler v Sullivan, 446 U.S. 3835 (1980)..........Passim

Dean v Oklahoma Dept. of Corrections, 222 ed

PN a sav euek econ iets eect ee 12

Deiterman v State of Kansas, 291 Fed. Appx. 157

(10th Cir. 2008)

Karp v Ornoski, 45% i.3d 1158, 1184-1185 (9'" Cir

Hdwards v Arizona, 451 U.S. 477, 482 (1982)...14. 21

Hall v United States, 371 F.3d 969 (7'® Cir. 2004)....

ae eres! Oe

Holloway v Arkansas, 435 U.S. 475, 490 (1978).....21

Massaro v United States, 588 U.S. 500. 509 (20083)....

Vay v Henderson, 13 F.3d 528, 5388 (2°4 Cir. 1994).28

Mickens v Taylor, 535 U.S. 162 (2002)................ 14

Miller-tel v Cockrell, 5387 U.S. 3822. 327 (2008)...18. 20

Moreno Morales \ lU/nited States, B34 3d 140, 148

a ae i ne re een 27

Schwab v Crosby, 451 F.3d 13808, 13827 C11 Cir.

ences uv ts saan area Para w ee gies 12

Slack v McDaniel, 529 U.S. 473, 484 (2000)..... eet .

Stewart v Wolfenbagger, 468 F.3d 338, 351 (6 Cir.

rR PO RE en Re PRD APA AED MPN EUE NS retest 12

Strickland v Washington, 466 U.S. 668, 688, 694

| SEPT E Oe REED Po OND Tar MRE Tae Passim

Tuernos Vv Greiner, 348 F.3d 587. 5938-594 (24 Cir.

asia einen ee eae ee LO

United States v Bagley, 473 U.S. 667, 680 (1985)......

cower ee eeee eee tee eerste HFGeoe FF Ses eeeeeseseeeeveeseeseseeeeeeesevpes hab

United States v Culverhouse, 507 F.3d 888. 892 (5th

Aas 5 ERR ene nN gra OS OER IE TerT ETE 26

U/nited States v Infante, 404 F.3d 3876. 398 (5) Cir.

ee ee se en rere 11, 26

U/nited States v Nicholson, 475 3d 241. 249 (4th Cir.

TR re eae ee eer ec we

RUAEEL CN SE AEE AES a eee EOE ENROL ELE CEENL Od Se a eei ae weer LO

Constitutional Authority:

Fifth Amendment....... Fae Een eee . 43. 31

Sixth Amendment............. Ls

POUPLTCENTR AMCROMICN... ...<..0<ccncccccccscouccscsty By 20

Statutory Authority:

fame Fie ke ae 33

ee a en Oe Fh th nc ume ead eek ames a,

Be ee a os oka kxrvcnnndacveesdaneseuesveren 20, 25

CITATIONS OF REPORTS

The Order denying a Certificate of appealability

by the Ninth Circuit was made on August 31, 2010,

and is attached as Appendix Page “A-1” hereto.

The Order denying Petitioner's § 2255 and

denying a Certificate of appealability was entered on

kebruary 5, 2010, and is attached as Appendix Pages

“B-l? through “B-17” hereto.

The Order denying a agen for Rehearing was

entered on September 27, 2010, and is appended

hereto as Appendix Page “C-1”

BASIS FOR JURISDICTION

The date the Ninth Circuit's Order denying the

Certificate of Appealability was entered on August

31, 2010. The Ninth Circuit had jurisdiction pursu

ant to 28 U.S.C. §§ 1291 and 2253.

The district court had jurisdiction pursuant to 28

U.S.C. § 2255. Its decision was filed on February 5,

2010. The court also denied a Certificate of Appeal

ability the same date.

The Ninth Circuit denied Petitioner's Petition for

Rehearing on September 27, 2010.

This Court ~ jurisdiction pursuant to 28 U

S§ 1254 and 2253. This Petition is filed well within

the 90-day 2. and pursuant to Supreme

Court Rule 12(1).

=

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Fifth Amendment: No person shali...be deprived

hfe, hberty, or property without due process of law.

Sixth Amendment: In all criminal prosecutions, the

accused shall have the right...to have the Assistance

of Counsel for his defense.

Fourteenth Amendment: Section 1. All persons born

or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside....[All

citizens shall enjoyl the equal protection of the laws.

28 U.S.C. § 2253: (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 proceeding is held....(c)(1) Unless a circuit

justice or judge issues a certificate of appealability,

and appeal may not be taken from—. (B) the final

order 1n a proceeding under section 295 . (2) A cer-

tificate of appealability may issue shoe enwal

(1) only if the applicant has made a_ substantial

showing of the denial of a constitutional right.

28 U.S.C.§2255(a)-(b): (a) A prisoner in custody un-

der sentence of a court established by Act of Con-

gress claiming the right to be released upon the

sround that the sentence was imposed in violation of

the Constitution or laws of the United States, or that

the court was without jurisdiction 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.

(b) 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

respect 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 denial or infringement of the

constitutional rights of the prisoner as to render the

judgment vulnerable to collateral 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 sentence as may appear

appropriate.

STATEMENT OF THE CASE

[In order to grasp the import of resolving the

conflict which exists among the circuits, Petitioner

presents the facts underlying his conviction, which

prove that he is actually and legally innocent and he

ought never have gone to trial.

Petitioner owned and operated several Thrifty

Car Rental franchises in Montana, Idaho and

Wyoming. After the business was firmly established

and profitable, Petitioner left the day-to-day

operations to his wife, Dolly Ryan, and later hired a

man by the name of Jeffrey Loney to handle the

maintenance, insurance, and compliance aspects of

the business.

Loney approached Petitioner during one of his

infrequent meetings at their headquarters in

Billings, Montana—by that time Petitioner was more

involved in his Quarter Horse business than in the

Auto Rental business——and introduced him to a man

by the name of Kevin Massick, suggesting that it

would ease their burdens if they would contract with

Massick and his glass company, Fas-Break Auto

Glass, to care for all the insurance claims, replace

the windows damaged by customers and care for

that aspect of the business. Petitioner said hello and

said that he had no objection, as long as the windows

were replaced according to Chrysler’s standards and

that they caused no problems with customers.

Massick began handling replacements and Loney

w)

was the centact through whom they worked. Part of

the agreement was that if there was a deductible on

a customer’s insurance for glass damage, Loney

would contact the customer and advise him/her to

pay that amount. This usually was accomplished by

the customer’s instructing them to just charge it to

their credit card.

Chrysler had a zero-tolerance policy as to window

damage. When cars were returned at the end of the

lease from franchise-holders, if there was any

window damage, it had to be repaired or they would

charge the franchise-holder for replacement.

Petitioner always insisted that his employees

have a customer sign a form showing any existing

windshield damage or that there was none and agree

to pay for any damage which occurred during their

rental. They could take a waiver of any lability for a

charge of $4.95, in which case, Petitioner's business

would cover the costs of replacement.

Unbeknown to Petitioner at the time was the fact

that Loney and Massick would bill the customer's

insurance company for the full retail price of the

windshield as set by "NAGS," and then when Fas-

Break received the money from the insurance

company, they would split the profit over costs.

Massick would credit $50 on each windshield repair

to help cover the costs of windshields Petitioner had

to pay for when customers opted for the waiver.

The Government became involved when some

‘>

customers complained about the costs’. being

excessive. They sent several FBI SAs to rent cars,

purposely damaged the windshields and then paid

for the costs of repair on their credit cards. This led

to an investigation by the grand jury in which both

Petitioner and his wife were named as persons of

interest. Petitioners'/Thrifty's counsel, Mark D.

Parker, primarily a civil attorney, represented them.

Ultimately, the grand jury indicted Petitioner on

conspiracy, mail and wire fraud, in violation of 18

U.S.C. §§ 371, 1341, and 1343. This occurred on May

22, 2006. Petitioner entered a plea of not guilty and

Mr. Parker continued to represent him, involving

also Petitioner's wife, Dolly Ryan so that she was not

drawn into the case. Parker did not obtain a waiver

of conflict from either party and Petitioner did not

know the extent of Parker's efforts to protect Dolly

Ryan, which continued throughout the trial.

The trial began on December 4, 2006, and on

December 11, the petit jury convicted Petitioner on

all charges. On August 15, 2007, Petitioner was

sentenced to 71 months in prison with three years of

supervised release to follow.

Due to Parker's concern that one of 13 witnesses

who were prepared to testify might implicate Dolly

Ryan, Parker decided without the approval of

Petitioner ahead of time to rest at the end of the

Government's case-in-chief. Petitioner learned only

later that the reason Parker rested without

presenting a defense was for that reason. In

Petitioner's § 2255, prepared by Attorney Robert

Levitt in Denver, he stated that in his conversation

with Parker, Parker admitted that he was

"ineffective in this case as a result of his divided

loyalties." Motion at 33)

Levitt raised the fact that on direct appeal,

Parker and his co-counsel, James H. Goetz, raised

the issue of the failure of the court to use the best

evidence of what the Chrysler policy manual-

contract provided as to glass replacement, and

instead accepted the word of executives of

Chrysler/Thrifty, that the policy had been modified

so that they no longer required damage _ to

windshields to be repaired. (Although they testified

to this, when the alleged change was faxed to the

prosecutor, it did not contain any change and they

still required windshields damaged to be replaced:

however, the prosecutor refused to correct the

perjury of their witnesses and the court allowed the

jury to accept as a correct statement of the matter

what they executives alleged, constituting the

subornation of perjury on the part of the prosecutor.

The Ninth Circuit affirmed the conviction and

sentence on June 19, 2008. (283 Fed. Appx. 478)

Petition for certiorari to this Court was denied on

November 9, 2008 (Case No. 08-508) and on

For his perjurous testimony, Massick received

only a 30-day sentence, and for his, Loney only got

probation. If there was a conspiracy, that is, if it was

illegal to charge retail for a replacement according to

the Auto-Glass Jnsurance price allowance, then they

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WHY THE WRIT SHOULD ISSUE (ARGUMENT)

A. There is a conflict among the circuits as to

whether the lesser standard for adjudicating a Sixth

Amendment conflict of interests claim is to be

determined pursuant to Cuy/er v Sullivan, 446 U.S

335 (1980) or whether the stricter standard set

under Strickland v Washington, 466 U.S. 668 (1984)

is proper for cases where counsel only represented

one defendant at trial

In Dean v Oklahoma Dept. of Corrections, 222

Fed. Appx. 790 and Deiterman v State of Kansas,

291 Fed. Appx. 153, Tenth Circuit, 2007 and 2008

respectively, that court appears to apply Cuyler |

Sullivan in cases where there was no multiple

concurrent representation

an tn the Ter of the ledger, there are a

imber of circuits which closely adhere to the

principle that Su//rvan governs attorney-conflict

cases only when there is multiple-representation of

defendant by an attorney during the ame en

pth 007), that irt apphed the test in Su//is

use tne ittorne repre ental not N hol )

ind Butt C? ted an actual conflict of interest

' nte. t n tl hand, and Butt

mote re | ! re tne? VTE in tal Opp mion

eact ther du r Itt multaneou

( ? entat t hye

oe 4 [ VA f ; ' | i] ‘ '

WO) that ( rt rel ed L¢ app! SulllVa

i tn not a Cast f mult pl concurrent

csuaioaiead the St 1 standard applic

in SchAw bl F.3S O& ,

( } ()¢5) f iT rt ! ee a | { "

Petitio

“13

that the statements of this Court in Mickens

were just dicta, that court said that they

“disagree with the Second Circuit's statements in

Tueros [and perhaps also the Fourth Circuit's]

decision in United States v Stitt,...lthey said that

they! do agree with the Sixth Circuit's reasoning

in Smith v Hofbauer,...land] also...with the Ninth

Circuit's similar reasoning and holding in Harp v

Ornoski,...even though Ninth Circuit precedent

'

has extended the Su//ivan rule to other contexts. '

‘Taking somewhat a middle ground, in addition to

the Fifth Circuit's application of Sullivan to

successive representation (/nfante, 404 F.3d at

footnote 12), both the Eighth and Ninth Circuit

have straddled the fence, sometimes restricting

application to attorney-conflict cases in) multiple

representation cases and in other cases to single or

successive representation cases.

In #arp v Ornoski, 451 F.3d 1158, 1184-1185 (9th

Cir. 2005), that court refused to apply Su/livan

except in multiple-representation cases of conflicts,

but then admitted that "our circuit's precedent has

expanded the scope of Su//ivan to apply to other

contexts."

In United States v Poe, Ill, 428 F.3d 1119, 1124

(Rh Cir. 2005) that court drew attention to the

limited holding in Sullivan, because Poe was

represented by a single attorney, but then went on to

say that in order to "overcome the District Court's

no-conflict finding, Poe must show that his counsel

-14-

‘actively represented conflicting interests' that

‘actually affected the adequacy of the

representation.’ Cuyler v Sullivan."

But, in a case the following year, Wrnftie/d v

Roper, 460 F.3d 1026, 1039 (8th Cir.2006), they said

that their "court has never determined whether the

Cuyler rule extends to cases beyond those involving

joint representation.

The long and short is that there is no uniform

standard among the lower courts as to how to

adjudicate attorney-conflict cases when there is

either a single attorney or when there are issues

which compromise the attorney's loyalty when

counsel's conflict involves a prior client or a chent in

another case. This Court needs to clarify its holdings

and set a proper standard for all the courts to follow.

In the instant case, Attorney Levitt raised the

"actual conflict" issue in the § 2255 (Motion at 29-34,

urging the court to recognize that although

Petitioner's wife was not a defendant, trial and

appeal co-counsel Parker had a duty to protect her

interests and then if that conflict affected the

attorney's conduct, "prejudice must be presumed."

(Motion at 32, quoting from HKdwards v Arizona, 451

U.S. 477, 482, which in turn quoted Su//ivan.)

The district court addressed this serious ground

on Appendix pages "B-12" through "B-14". Judge

Cebull spoke of both Mickens and Su//ivan, but then

failed to apply their standards 1n assessing the facts

15:

raised in the motion which showed that Attorney

Parker's admission to § 2255 counsel Levitt that "he

was ineffective in this case as a result of his divided

loyalties." (Motion at 33)

‘The question begs an answer as to whether Judge

Cebull was insistent on a showing of prejudice under

the Strickland standard or simply unwilling to

beheve that the judge's good friend, Mark D. Parker

would allow a conflict to alter his representation.

(Judge Cebull stated unequivocally that he "is 100%

certain that Parker knows what he is doing when he

interviews witnesses in preparation for a criminal

trial,” (footnote 3 on Appendix page "B-6”.)

As for the Ninth Circuit's denial of a COA, it is

completely absent any reason whatsoever as to why

it denied the COA. Neither the initial denial nor the

denial of rehearing give a solitary reason.

Yet, under either the Su//ivan standard or the

Strickland standard, Petitioner was adversely affect

ed and prejudiced by Parker's divided loyalties and

the lower courts ought to have certified the issue for

appellate review and a complete airing of the facts.

B. The divided loyalties of Parker caused him to

rest without calling any witnesses out of a fear that

one of the 13 witnesses might implicate Petitioner’s

wife, Dolly Ryan; thirteen witnesses were prepared

to testify and their testimony would have shown a

far more than “reasonable probability...of a different

outcome.”

oh:

Counsel who prepared Petitioner's § 2255 listed

by name and as to their prospective testimony

thirteen witnesses whom Petitioner had available

and who would have testified directly to the Govern

ment's detriment. Their names and testimony they

were prepared to offer both during trial and during

an evidentiary hearing were set forth on pages 17

through 20 of the § 2255.

Ironically, due to Parker's concern that one or

more of them might implicate Petitioner's wife, he

not only did not call a single one, he failed to

investigate Petitioner's claims that they had tes-

timony which would have disproved the Govern

ment's allegations. Such a failure is a clear violation

of Strickland in that a failure to investigate is only

proper where there was a reasonable decision that

the prospective testimony was unnecessary. (d., 466

U.S. at 688)

One of these witnesses was an expert Petitioner

had paid to do a forensic examination of the costs

Petitioner’s business experienced in order to replace

a windshield. This witness would have shown that

Petitioner neither profited from the conspiracy

perpetrated by Massick and Loney, nor received any

of the funds split by them.

Several of the 13 witnesses ready to testify (some

already in court when Parker rested without calling

anyone) would have testified that the Government's

witnesses lied when they said that Chrysler didn't

accept autos to be returned with any damage, no

17

matter how minute, to the windshields. This was

the heart and soul of the Government's case. Their

witnesses’ testimony was contrary to Chrysler's

written policy, and they were persuaded to perjure

themselves to state that Chrysler had changed that

policy, when the current policy manual _ the

Government had Chrysler fax in confirmed

Petitioner's claims and showed Chrysler's witnesses

lied under oath.

Yet, in spite of the very material facts at issue

raised in the § 2255 Motion, Judge Cebull denied it

without any evidentiary hearing to determine where

the truth lay. Cases abound where jurists of reason

not only would have found Judge Cebull's decision

debatable, but outright contrary to law and due

process. Yet, due to Judge Cebull's bias toward his

good friend Mark D. Parker, he refused to allow any

thing to impugn his good character.

The divided loyalties of Attorney Parker altered

and affected his decisions and resulted in his

decision to prevent any testimony which he knew

was hkely to implicate Petitioner's wife and

exonerate Petitioner. Of this there can be no

reasonable dispute. Hence, whether examined from

the position of Strickland or the less onerous

standard in Sullivan, the conflict rendered Parker's

representation of Petitioner ineffective and violative

of the Sixth Amendment.

It is no mystery why Judge Cebull refused to

grant an evidentiary hearing out of his close friend-

-18-

ship with Parker, but it is a mystery why the Ninth

Cercuit refused to follow the dictates of this Court in

Miller--EI v Cockrel], 537 U.S. 322, 327 and

327(2003): also Slack v Mc-Daniel, 529 U.S. 473,

484(2000).

C. Appellate counsel provided ineffective

assistance of counsel on direct appeal by failing to

preserve the issue of the Government’s suborning of

perjury in the case of witnesses Schemm and

Hambrecht.

Judge Cebull denied Petitioner's Vost-'lrial

Motion regarding the Government's knowing failure

to correct the perjured testimony of Chrysler's two

witnesses subpoenaed by them. Counsel for the §

2255 Motion raised this as an example of ineffective

assistance, but Judge Cebull said the question of

suborned testimony was already denied by him

(Order at Appendix Page "B-14") In the direct appeal

the perjury was not raised, only a "best-evidence"

defense as to the conflict between what the

witnesses said and what the Chrysler manual stated

in black and white. Clearly, appellate counsel was

ineffective for a failure to preserve the issue by

raising on appeal.

Consistent with this Court's decision in Massaro

v United States, 538 U.S. 500, 509 (2003), the in

effectiveness of counsel is something that is rarely

appropriate on direct appeal and, hence, Petitioner

was correct to raise the issue of ineffectiveness of

appellate counsel for the first time on collateral

L9

attack. Whether or not Judge Cebull had denied that

ground earlier is irrelevant to the inquiry.

[Instead of focusing on the fact that Petitioner was

justified in requiring the Thrifty customer to pay

when he or she returned a car with a damaged

windshield, whether or not the repair was done

immediately—how much leverage would Petitioner

have had to get the customer to pay later when the

damage was repaired?—Judge Cebull drew attention

to his belief that “immediate” payment was evidence

of petitioner's intent to defraud his customers

(Appendix Page "B-3”) Due to this bias caused by his

own misperception, Judge Cebull could not see how

the clear misrepresentation of what Chrysler re

quired in its written policy by witnesses Schamm

and Hambrect prejudiced Petitioner

Petitioner’s attorney, Mark D. Parker, wrote a

letter to the new U.S. Attorney in Montana, whom

Judge Cebull recused because he knew the case

against Petitioner was fraudulently prosecuted. He

ascribes the guilty verdict to suborned perjury. (See

Appendix Page “D”)

At the very least, the facts demonstrate a genuine

fact at issue which was material to Petitioner's guilt

or innocence. An evidentiary hearing was justified

and a COA was appropriate from both the lower

courts, but was denied without comment.

Knowing perjured testimony without correction

by the prosecutor is a clear violation of Petitioner's

"ZU"

Fifth Amendment rights. When there is a

"reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding

would have been different," Strickland, 466 U.S. at

688), it behooves the courts to examine the claims in

detail and appellate co-counsel failed to preserve this

issue and it could not be raised in this Court during

Petitioner's first petition for a writ of certiorari, and

to examine the facts in an evidentiary hearing.

Jurists of reason are countless Jurists of reason who

would find the way Judge Cebull decided this issue

debatable. A COA ought to have issued, but did not.

D. The ineffectiveness of counsel, whether due to

a conflict which altered the course of his

representation, or due to serious errors which

prejudiced Petitioner and for which the "reasonable

probability that, but for counsel's serious errors, the

result of the proceeding would have been different,"

existed, in both cases, the errors/conflict is a serious

violation of Petitioner's Sixth Amendment rights.

In order to obtain a COA, the petitioner needs to

make a "substantial showing of the denial of a

constitutional right." (28 U.S.C. § 2253(c)(2)) Un-

questionably such a showing has been made and was

made in the lower courts.

In Miller-El v Cockrell, 537 U.S. 322, 327 (2003),

this Court said that "[a"] petitioner satisfies this

standard by demonstrating that jurists of reason

could disagree with the district court's resolution of

his constitutional claims or that jurists of reason

2]

could conclude the issues presented are adequate to

deserve encouragement to proceed further."

As to each issue Petitioner seeks to have certified

for appellate review, he will cite caselaw from jurists

of reason who have, in like situations, granted relief.

Mach issue presents a substantial showing of the

denial of either Fifth or Sixth Amendment

protections, in some cases both Amendments.

If the standard for adjudicating a claim of an

"actual conflict" which resulted in an "adversel]

effect," (Adwards v Arizona, 451 U.S. 477, 482

(1982)) is pursuant to Su//ivan, then jurists of reason

cannot but find Judge Cebull's decision debatable.

Petitioner's § 2255 attorney, Levitt, spoke with

Parker and Parker admitted that it was due to his

"divided loyalties" that he rendered what he ad

mitted was “ineffective assistance.” In Holloway v

Arkansas, 435 U.S. 475, 490 (1978), this Court said

that the “question is what the advocate found

himself compelled to refrain from doing." What trial

counsel felt he was refrained from doing was to call

any witness who might implicate Dolly Ryan, who he

still represented, though not a defendant in the

instant case. Among the thirteen witnesses ready

and prepped by Petitioner to testify were several

who knew enough about the business’ and

Petitioner's involvement in it that it foreclosed any

suggestion that he was guilty of using this alleged

fraud scheme to his advantage or even that he was

aware of it until the charges were brought. By

declining to call these witnesses, Parker took an

“adverse action” by deciding not to call any wit-

nesses, even though those 13 witnesses had agreed

to testify and some of whom were already waiting to

be called.

If the standard was pursuant to Strickland, then

prejudice is determined by examining the testimony

these witnesses were prepared to offer and seeing

whether there "is a reasonable probability that, but

for counsel's unprofessional errors, the result of the

proceeding would have been different." (/d., 466 U.S.

at 694)

In Chambers v Mississippi, 410 U.S. 284 (1984)

this Court said that "[flew rights are more fund-

amental than that of an accused to present witnesses

in his own defense." In Crane v Kentucky, 476 U.S.

683, 690 (1986), this court said that "the Con

stitution guarantees criminal defendants a mean-

ingful opportunity to present a complete defense.

ao) a

Petitioner had a right to have his witnesses

called. Parker did not ask Petitioner if he wanted to

waive that nght before he announced to the court

that he was resting. This type of Sixth Amendment

error could be harmless if the prospective witnesses

could offer no _ facts which would” exonerate

Petitioner.

The district court denied the § 2255 ground of

failure to call witnesses. (Appendix Page "B-7”

through “B-10”) It did so on the sole ground that the

decision of that court as to an in limine motion to ex-

to

clude prior conviction was subject to presenting no

character witnesses.

Among the 13 witnesses, indeed, were six

potential character witnesses. Yet, there were also

seven whose testimony disproved intent to defraud,

which is an essential element of fraud under 18

U.S.C. §§ 1341 and 1343. But of even more sig

nificance is the fact that Parker knew nothing of the

prospective testimony as, contrary to Petitioner's

request, he had done no investigation and had not

spoken to these witnesses.

The other substantial showing of the denial of a

constitutional right pertains to the prosecutor's

knowing use of perjured testimony for two witnesses,

one from Chrysler, the other from Thrifty. Petitioner

is guaranteed a due process right under the Fifth

and Fourteenth Amendments to a fair trial. Both

witnesses testified that Chrysler did not have a

policy during the period in question of requiring

windshields to be replaced, even with minor damage.

Their support was in an alleged change to the

manual, which they said they forgot to bring with

them. The prosecutor asked to have it faxed in and

when it came, he found that it was the identical one

Petitioner had and it did require replacement So, the

prosecutor did not present it as an exhibit and Judge

Cebull allowed the testimony to be heard by the jury

on the ground that they were experts and could

testify as to their knowledge.

That suborned perjury contaminated the entire

24

trial. If, in fact, Chrysler did not require windshields

to be replaced, then the practice of Thrifty to require

reimbursement of costs for replacement would

strongly suggest that Petitioner (or whoever

conspired to so represent) was guilty. If Chrysler d7d

require damaged windshields to be replaced, there is

a substantial probability of an entirely different

verdict.

By withholding the faxed manual which proved

his witnesses were lying, the prosecutor committed

prosecutorial misconduct. This Court discussed such

conduct in United States v Bagley, 473 U.S. 667, 680

(1985):

"Although this rule is stated in terms that

treat the knowing use of perjured testimony as

error subject to harmless-error review, it may as

easily be stated as a materiality standard under

which the fact that testimony is perjured is

considered material unless failure to disclose it

would be harmless beyond a reasonable doubt.

This Court in Agurs justified this standard of

materiality on the ground that the knowing use

of perjured testimony involves prosecutorial

misconduct and, more importantly, involves ‘a

corruption of the truth-seeking function of the

trial process.’ /d., at 104...

The point is evident: If the perjured testimony is

"material" as to guilt or innocence, and _ the

prosecutor not only persuades the court and jury to

rely upon it, and it is likely that absent the perjured

testimony the result of the proceeding would have

been different, then the error is not harmless, rather

a violation of the Fifth and Fourteenth Amendments.

The point of all of this is that unquestionably the

errors, ifthe conflict of counsel caused him to alter

his course of defending Petitioner, and which

prejudiced him under the Su//ivan and Strickland

tests, and sfthe prosecutor's use of suborned perjury

violated Petitioner's fundamental rights under the

Constitution, then he has made a "substantial

showing of the denial of a constitutional right." (28

.3.C. § 2253)

At the very least, to develop these facts, an

evidentiary hearing should have been convened. A

COA on the grounds set forth below ought to have

been granted, but was not. Was it because the lower

courts were so busy that they didn't have the time to

adequately determine the issues and the grounds for

issuance of a COA? Or, was it because Judge Cebull

was biased in favor of his good friend, Attorney Mark

D. Parker and did not want to see him exposed as

ineftective? Or was it because the lower courts didn't

know which standard—Sullivan or Strickland—to

apply?

KE. The lower courts erred in failing to grant a

COA to enable Petitioner to fully develop the issues

urging reversal of Judge Cebull’s denial of the §

2255.

The issues which Petitioner seeks certified for ap-

“a0

pellate review are as follows, together with the

opinions of jurists of reason who have decided

differently on the same issues:

A. Whether Ryan’s counsel had an “actual

conflict which caused him to alter his course of

defending him under the standard set in Cuyler v

Sullivan, 446 U.S. 335 (1980), caused by “his

divided loyalties,” and fear of implicating Ryan’s

wife, and whether under the circumstances of the

case, the representation of a non-defendant

(Ryan’s wife), whose interests were different than

Ryan’s ought to be subject to the test in Sullivan,

or subject to the prejudice standard in Strickland

v Washington, 466 U.S. 668, 687 (1984)?

(See Hall v United States, 371 F.3d 969, 973 (7th

Cir. 2004) (district court was ordered to provide an

evidentiary hearing to determine whether there was

a conflict of interest which adversely affected the

adequacy of the defendant's representation, citing

both Su/livan and Strickland: "two ways to assert a

claim based on counsel's conflict of interest. One

under Strickland...or two, the Petitioner may

proceed under Cuyler v Sullivan’); United States v

Culverhouse, 507 F.3d 888, 882 (5 Cir. 2007)

(remanded to district court for evidentiary hearing if

there was an actual conflict of interest in multiple

representation case); and United States v Infante,

404 F.3d 376, 393 (5% Cir. 2005) GSud/ivan applies in

cases of successive representation and case re

manded to district court to see if there was an actual

conflict.)

-27-

B. Whether the prosecutor committed

misconduct by suborning perjury which had a

material effect on the guilt or innocence of Ryan?

(See Byrd, Jr. v Collins, 2000 U.S. App. LEXIS

6266, 2000 FED App. 0121P (6t» Cir. 2000) at 48-49)

("to establish a claim of prosecutorial misconduct or

denial of due process, the defendant must show that

the statement in question was false, that the

prosecutor knew it was false, and that it was

material," all of which Petitioner demonstrated in

his § 2255); Moreno-Morales v United States, 334

K.3d 140, 148 (1st Cir. 2003) ("Prosecutorial mis-

conduct is only a ground for § 2255 relief if it violates

petitioner's due process rights...that is, if the

conduct so infected the trial with unfairness as to

make the resulting conviction a demial of due

process," which Petitioner has amply demonstrated);

and United States v Bagley, 473 U.S. 667, 680

("materiality standard [appropriate] lif] perjured

testimony involves prosecutorial misconduct and,

more importantly involves a corruption of the truth-

seeking function of the trial process," which

Petitioner amply demonstrated in his § 2255 and

which should have justified a COA from the lower

courts.)

C. Whether Ryan _ received ineffective

assistance of counsel under the Strickland'’s two-

prong standard for both his trial and appeal?

(See Chambers v Mrssissippi, 410 U.S. 284

(1973); California v Trombetta, 467 U.S. 479 (1984);

28

Crane v Kentucky, 476 U.S. 683 (1986) (all con

firmed the right to a defense and to examine wit-

nesses, which Petitioner used to demonstrate that he

received ineffective assistance of trial counsel; to

wit, the prosecution claimed that Chrysler had no

policy concerning unwillingness to accept damaged

windshields on returns and at least four of the 13

witnesses listed in the § 2255 would have shown this

perjured testimony was false); May v Henderson, 13

F.3d 528, 533 (24 Cir. 1994) Gf petitioner demon-

strated that appellate counsel "omitted significant

and obvious issues while pursuing issues that were

clearly significantly weaker..."ineffectiveness shown;

Petitioner alleged appellate counsel argued a "best

evidence" claim in direct appeal and failed to argue

prosecutorial misconduct by suborning perjury on

the part of two Chrysler/Thrifty employee-witnesses

for the government.)

D. Whether Ryan ought to have been

granted an evidentiary hearing when material

facts were at issue; and whether Judge Cebull’s

obvious bias toward Parker influenced his

decision?

More than ample cases have been cited in the

petition to demonstrate that jurists of reason would

undoubtedly find the way Judge Cebull resolved the

issues was debatable, and a COA certifying this

issue ought to have been granted in the lower courts,

and/or Judge Cebull ought to have recused himself

due to his bias consistent with 28 U.S.C. § 455(a)-

(b) (1).

9Q-

WHEREFORE, Petitioner respectfully prays the

Court will resolve the conflict among the circuits on

the question as to whether Su//ivan apples to

successive-representation cases as well as multiple-

representation cases and grant him a COA on the

issues above; and such other and further relief as

the Court deems just, lawful and equitable.

By executing this Petition this 30‘ day of

November, 2010, Petitioner declares the statements

herein are true on penalty of perjury pursuant to 28

U.S.C. § 1746.

/S/ Michael W. Ryan

Petitioner

Appendix Page “A”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF | No. 10-35133

AMERICA |

| D.C. Nos.

Plaintiff — Appellee, | 1:09-cv-00149-RFC

| 1:06-cr-00073-WEN

v. | District of Montana.

| Billings

MICHAEL W. RYAN,

| ORDER

Defendant —Appellant |

Before: O'SCANNLAIN and HAWKINS, Circuit

Judges.

Appellant’s request for a certificate of appealabilty is

denied. See 28 U.S.C. § 2253(c)(2). All other out

standing motions are denied as moot.

Filed August 31, 2010.

Appendix Page “B-1”

N THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

UNITED STATES OF | Cause No.

AMERICA, | CR 06-073-BLG-RFC

CV 09-149-BLG-RFC

Plaintiff/Respondent

vs | ORDER DENYING § ) 2255

MOTION AND DENYIN¢

MICHAEL W. RYAN, | CERTIFICATE OF

| APPEALABILITY

Defer dant ‘Movant

On November 5, 2009, Defendant/Movant Michael Ryan

(“Ryan”) filed a motion to vacate, set aside, or correct his

sentence, pursuant to 28 U.S.C. § 2255 (“Mot. § 2255’’).

Ryan is a federal prisoner proceeding with counsel

I. Preliminary Screening

Pursuant to 28 U.S.C. § 2255(b), the Court must conduct a

preliminary review of the motion to determine whcther “the

motion and the files and records of the case conclusively

show that the prisoner ts entitled to no relief.” See a/so Rule

4(b), Rules Governing Section 2255 Proceedings for the

United States District Courts.

ll. Background

Appendix Page “B-2”

Ryan owned Thrifty car rental franchises in Billings and

Belgrade, Montana, Cody and Jackson Hole, Wyoming, and

Idaho Falls, Idaho. He leased vehicles from Daimler

Chrysler Corporation. At the end of the lease period, the cars

were sold at auction. Ryan, his employee Jeffrey Loney, and

Kevin Massick of Fas-Break Auto Glass Center in Billings

entered into a scheme to fraudulently charge Thrifty

customers for windshield replacements. They shared the

proceeds. The scheme was carried Out 1n six steps:

1. Ifa Thrifty customer did not purchase extra insurance

coverage for windshield damage, Thrifty employecs

were urged to find damage to the windshield,

however slight, when the vehicle was returned.

2. Thrifty customers and their insurers received letters

or faxes purported to be invoices for work already

performed by Fas-Break to support charges of around

$1000 for replacing the windshield. When Thrifty

customers complained about the cost they were told

that Chrysler, not Thrifty, required replacement of the

windshield.

ty)

Some Thrifty customers paid the entire invoice cost

One witness described a replacement-qualifying chip as “a little bigger than a

grain of rice...right behind the mirror where you couldn’t see it from the interior

from either side.” Trial Tr. 2 at 317:10-12. Another described the windshield

damage as a “sand pit that was maybe, you know, a quarter of the size of the end

of my little fingernail,” /d. At 333:14-15, “below and to the left of my normal linc

of sight,” id. At 334:8-9. Another said, “I didn’t see any chip.” /d. 367:10

Another happened to have a ruler and measured the chip on her windshield. It

was, at most, 5 millimeters. /d. At 378:7-8. Another couldn't see a chip but could

feel it with his fingernail. /d. At 509:8-11

Appendix Page “B-3"

themselves. Thrifty billed the credit cards of the other

customers for the amount of their insurance policy

deductibles, and the insurers sent the remainder of the

payment to Fas-Break

4. Most of the windshields were not replaced, and the

vehicles were re-rented, “as 1s,”’ to other customers. If

a windshield was replaced or repaired, the cost was

significantly less than was shown on the purported

Invoice.

5. Ryan and Massick shared the difference between the

actual cost of repair or replacement of the windshield,

if any, and the proceeds received from Thrifty

customers and their insurers.

6. When a vehicle was prepared for auction, the

windshield was replaced, if necessary, tor around

$300

lo be clear, the windshield damage was real, if minimal. The

need for repair or replacement before the vehicle was put up

for auction was real. The scheme consisted of claiming that

replacement was required immediately and cost around

$1000 when it was neither required nor performed

immediately nor cost anywhere near $1000.

In the pre-indictment investigation of the case, Ryan and

his wife Dolly were both represented by counsel Mark

Parker. Mot. § 2255 (doc. 281) at 30

In at least one instance, multiple customers were billed for multiple windshield

replac ements on onc vehi le, none of which occurte¢ d

Appendix Page “B-4"

On May 22, 2006, Ryan was. indicted on one count of

conspiracy to commit fraud by use of the mail or wires, a

violation of 18 U.S.C. §§ 371, 1341, 1343 (Count 1);

fourteen counts of mail fraud, violations of 18 U.S.C. § 1341

(Counts 2, 3, 5, 6, and 8-17): and two counts of wire fraud,

violations of 18 U.S.C. § 1343 (Counts 4, and 7). Dolly Ryan

was not indicted. Indictment (doc. 1) at 20. Ryan retained

Mark Parker to represent him

On August 1, 2006, the United States charged Kevin

Massey, owner of Fas-Break, and Jeffrey Loney, a Thrifty

employee, by separate Informations. Each was charged with

conspiracy to commit mail and wire fraud, the same

conspiracy charged against Ryan in Count | of the

Indictment. Fully executed plea agreements were filed the

same day. Massey and Loney pled guilty on August 11, 2006

Information (docs. 31, 33); Plea Agreements (docs. 32, 34)

Minutes (docs. 44, 45)

lrial commenced on December 4. 2006. After five days

of trial, the jury heard closing arguments on December 11

2006. It deliberated for about four hours before returning a

guilty verdict on all counts

Van 1 CC WO MOTIONS TOT JUaYyMeENE OT acquittal and One

Ri filed t tions f I; t of acquittal and

\ppendix Page

for a new trial. One of his principal arguments concerned a

discrepancy between Chrysler’s written policy at the time of

the indictment, requiring replacement all damaged

windshields, and the testimony of Hambrecht and Schemm,

| +

who both asserted that some damage was permissible in

practice. Ryan’s motions were denied

On August 15, 2007, Ryan was sentenced to serve 7]

months in prison, to be followed by a three-year term of

supervised release. Restitution and a fine were also :mposed

Minutes (doc. 251); Judgment (dor

Ryan appealed, represented by Parker and ne\

ounsel James Goctz. On June 19, 2008, Ryan’s con

and sentence were alfirmed. United States v Ryan. No. O

30319 (9" Cir. June 19, 2008)(unpublished mem. disp.). He

filed a petition for writ of certiorari. It was denied on

November | 7. 2008. Ryan ile lal L298

Ct. 609 (2008)

an timely filed his

November 5. 2009. 28 U.S.(

lil. Ryan’s Allegations

erts that Parker pro

Appendix Page “B-6"

because he failed to call thirteen witnesses’ and because he

had a conflict of interest. He claims Goetz was ineflective

because he failed to raise perjury by prosecution witnesses or

Parker’s conflict of interest on direct appeal. Finally, Ryan

claims that the prosecution suborned perjury

IV. Analysis

A. Ineffective Assistance of Counsel

Strickland v. Washington, 466 U.S. 668 (1984), sets the

standards with respect to claims alleging ineffective

assistance of counsel. First, Ryan must show that counsel's

performance fell below an_ objective’ standard’ of

reasonableness. /d. at 687-88. Second, he must show that he

was prejudiced by counsel’s errors. /d. at 693. Under the first

prong, counsel’s performance need not be perfect. It must,

however, fall “within the range of competence demanded of

attorneys in criminal cases.” McMann v. Richardson, 397

U.S. 759, 771 (1970). Under the prejudice prong, Ryan must

show “a reasonable probability that, but for counsel’

unprofessional errors, the result of the proceeding would

Ryan speculates that Parker must have personally performed any

pretrial investigation, “which would have created difficulty had a witne

changed his testimony from earlier interviews.” Mot. § 2255 (doc. 281)

at 16. The Court 1s 100% certain that Parker knows what he 1s doing

when he interviews witnesses 1n prep wration tora crimin iltria

Appendix Page “

have been different.” Strickland, 466 U.S. at 694. “A

reasonable probavility 1s a_ probability sufficient to

undermine confidence in the outcome.” /d. “[T]here ts no

reason for a court deciding an ineffective assistance

claim...even to address both components of the inquiry 1f the

defendant makes an insufficient showing on one.” /d. at 697.

Failure to Call Witnesses

Ryan says Parker should have called witnesses to testify

about various matters

(a) Character and Lack of Wrongful Intent. Ryan was

convicted in 1990 of possession of cocaine with intent to

distribute it. The vehicle for Ryan’s trafficking was his

Thrifty car rental franchise. Parker filed a motion 1n limine to

exclude any evidence of the conviction. It was denied.

“tE]vidence of Defendant’s prior conviction could be

admissible for a limited purpose in limited circumstance

Order Denying Det. Mot. To Exclude (doc. 62) at 3 (under

seal), for instance, if Ryan put his character at issue or 1f a

witness were to testify that Ryan “has always’ been

scrupulously law-abiding and would never use his business

as a front for criminal activity,” /d. at 2. Parker’s failure to

call witnesses to testify to Ryan’s vood character or his lack

Appendix Page “

if intent to commit a crime was more than reasonable

tyan’s claims that Parker should have called witnesses

Kerrylyn Miller, Debbit Witt, Terry Sheets, David Phillips,

Mark Michaelson, and Carol Brown, Mot. § 2255 at 18-20,

are denied

(hb) Chrysler Policy re Replacement of Damaved

Windshields. Ryan and his co-conspirators told Thrifty

customers the windshield had to be replaced immediately

and that 1t would cost around $1000, knowing, all the while,

that the windshields would not be replaced until the vehicle

was prepared for auction, at which time the windshield

would be replaced or repaired, if necessary, for around $300.

Whether Chrysler would occasionally allow a vehicle to be

sold with slight damage or repair rather than windshield

replacement was a minor issue in the prosecution’s theory of

the case. The point was that Ryan and his co-conspirators

charged Thrifty customers for work that was not done when,

why, how, and at the price they said it was. Ryan does not

sugpest that witnesses Alana Coronato, Frank Kroll, Bruce

Knudsen, Larry Griffin, or Jamie Alexander, Mot. § 2255 at

18-19, could have provided testimony to negate the

prosecution’s theory of the case. Ryan’s claims that Parke

}

should have called them are denied

Appendix Page “B-9

(c) Jeff Loney’s Credibility. Ryan identifies — three

witnesses who would have testified that Loney lacked

credibility and could not be trusted. Loney’s admission that

he committed a criminal fraud probably established those

points as well as the opinion testimony of third parties could

have. In addition, his testimony was corroborated by other

witnesses and documentary evidence; his credibility was not

the key to Ryan’s conviction. Finally, Parker’s strategy was

to persuade the jury that the scheme might have been sharp

business practice, but 1t was not unlawful or an intentional

fraud. Emphasizing Loney’s’ character could have

undermined that strategy, given Ryan’s relationship with

him. At the same time, it would not have negated the

evidence showing that Ryan was profiting from Fas-Break’s

work. Ryan does not claim that Parker’s strategy was

unreasonable—-on the contrary, he continues to insist on it

b.g., Mot. § 2255 at 21 (thrifty operated a zero tolerance

policy regarding any damage to the automobile’s windshields

consistent with Chrysler’s policy.”). Nor has he shown a

reasonable probability that presentation of two or three

witnesses denigrating Loney’s truthfulness would have

resulted in an acquittal. Ryan claims that Parker should have

Appendix Page “B-10”

called Kroll, Keith Christman, and Lindsay Ryan‘ are denied.

(d) Unprofitability of Replacing Undamaged

Windshields. Ryan asserts that he “has steadfastly maintained

his innocence in that it would be unprofitable for him to

replace undamaged windshields consistent with the

testimony that would have been provided by Bruce

Knudsen.” Mot. § 2255 at 20; see also id. at 22-23. This

argument ignores Step 4 of the scheme as set forth above

Ryan received monetary benefit from vot replacing

windshields. Parker’s decision not to call a witness who

would have established that Thrifty could not afford to do

what it told customers it was doing was not only reasonable

but necessary. This claim 1s denied.

2. Appellate Argument re: Best Evidence Rule

Ryan contends that appellate counsel Goctz was

ineffective because he failed to argue before the Ninth

Circuit Court of Appeals that the United States suborned

perjury. Claims of ineffective assistance of appellate counsel

are governed by the Strickland standards. Smith v. Robbins,

4 &<

Ryan says Lindsay Ryan “was employed by the Movant and provided

all damage reports to Loney who was in charge of damages and repairs

She also would have served as a character witness for the Movant.” Mot

§ 2255 at 20. It is not clear what that means she would have said about

I

oney or damage reports, if anything. If she had important testimony, no

doubt Ryan would have said what it was

Appendix Page “B-11”

$28 U.S. 259, 285 (2000). At the circuit, Goetz argued the

best-evidence rule, Fed. R. Evid. 1002, 1.e., that the jury

should have been given the written policy, which stated that

damaged or repaired windshields were unacceptable, rather

than the testimony of Hambrecht and Schemm. If the written

policy was not the best evidence of the policy, there was no

evidence to support the perjury claim. In the petition for writ

of certiorari, Ryan says, Goetz reframed the claim as a

subornation of perjury claim, relying on the written policy to

establish the truth and implicating the testimony as false.

This claim 1s denied. First, there is frequently a

discrepancy between written policy and actual practice. That

does not make liars of either the practitioners or the policy-

writers. Second, and more importantly, no one but Ryan and

his co-conspirators ever claimed that Chrysler required

immediate, on-the-Thrifty-lot replacement of damaged

windshields. And that claim was refuted not by the written

policy and not by Hambrecht and Schemm, but by the fact

that Ryan and his co-conspirators did not immediately

replace the windshields. £.g., ‘Trial Tr. 2 at 420:23-451:5

(Jackson). They waited until the vehicle was prepared for

auction. This claim 1s denied.

3. Appellate Argument re: Conflict of Intcrest

Appendix Page “B-12”

Ryan also asserts that Goetz could have obtained reversal

by asserting Parker’s conflict of interest. Issues outside the

record cannot be fairly presented on appeal, and appellate

counsel cannot be ineffective for failing to include them. Cf

Massaro v. United States, 538 U.S. SOO, SO9 (2003)

(“[FJailure to raise an ineffective assistance of counsel claim

on direct appeal does not bar the claim from being brought in

+

a later, appropriate proceeding under § 2255.”). This claim 1s

denied.

4. Parker’s Conflict of Interest

Ryan contends that he was prejudiced at trial by the fact

that his wife was also a client of Parker’s He asserts that

“counsel was...facing divided loyalties by not presenting a

defense which could have included the testimony of Dolly

Ryan. Dolly Ryan’s testimony may have swayed the jury to

find that she, and not the Movant, was responsible for any

allegations of fraud.” Mot. § 2255 at 34. He also asserts,

“upon information and beliefs as well as a recent telephone

conversation with former counsel Parker, Mr. Parker

admitted to undersigned counsel that he was ineffective in

this case as a result of his divided loyalties.” /@. at 33.

It is true, as a hypothetical matter, that au attorney other

Appendix Page “B-13”

than Parker could have called Dolly Ryan as a defense

witness in order to inculpate her. It is also true that Ryan

does not have to show a reasonable probability that he would

have been acquitted if only Dolly Ryan had been called as a

witness. But Ryan does have to show that Parker’s conflict of

interest “actually affected the adequacy of [Ryan’s]

representation.” Mickens v.Taylor, 535 U.S. 162, 168 (2002)

(describing the holding of Cuyler v. Sullivan, 446 U.S. 335

(1980)).

If there was some indication in Ryan’s motion or 1n the

record of the case that Dolly Ryan was involved in the

scheme in some way that contradicted or even mitigated

Ryan’s own involvement, then this allegation would warrant

further proceedings. While there is evidence that Dolly might

have been involved, there is no indication that her

involvement somehow contradicted or mitigated Ryan’s E.g.,

Trial Tr. 2 at 407:23-408:4, 410:1-15 (Roscoe); Trial Tr. 3 at

688:20-689:18 (Massick); id. at 764:1-766:9 (Loney). Ryan’s

mere assertion of the conflict of interest alleges nothing that

is “more than a sheer possibility” of error. Ashcroft v Igbal,

i . ; , 129 S. Ct. 1937, 1949 (2009). It does not

warrant an evidentiary hearing because, even tf all the factual

assertions in Ryan’s motion are truc, they are not sufficient to

Appendix Page “B-1%”"

support relief. United States v. McMullen, 98 F.3d 1155,

th

1159 (9° Cir. 1996) (citing Baumann v. United States, 692

F.2d 565, 571 Ch Cir. 1982)). This claim 1s denied

B Subornation of Perjury

This Court has already decided this issue. Order Denying

Det. Post-Trial Mots. (doc. 207) at 2-6. Ryan presents no

reason to depart from the law of the case. United States v

Alexander, 106 F.3d 874, 876 (9" Cir. 1997). This claim is

denied.

V. Certificate of Appealability

“The district court must issue or deny a certificate of

appealability when it enters a final order adverse to the

applicant.” Rule 11(a), Rules Governing § 2255 Proceedings.

A Governing Law

“A Certificate of appealability may issuc...only if the

applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c); Hohn v. United

States, 524 U.S. 236 (1998); Lambright v Stewart, 220 F.3d

1022, 1024 (9" Cir. 2000). To obtain a certificate, Ryan must

demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or

~%

wrong.” Slack v M Daniel. 529 U.S. 473, 484 (2000). Any

doubt as to whether a petitioner has met the standard is

resolved in his favor. Lambright, 220 F.3d at 1025

B. Discussion

Ryan has not made a showing with substance to it that he

was deprived of a constitutional nght. He continues to insist

that he did not do what he was neither accused nor convicted

of doing

As to what he was convicted of doing—charging Thrifty

customers for work that was not done when, why, how, and

at the price Thrifty and Fas-Break said it was—Ryan

identifies no witness testimony that, to a reasonable

probability, could have made a difference in the jury’s

verdict. While he does identify a conflict of imterest that

Parker had as attorney for both Ryan and his unindicted wife,

he offers no reason to believe that calling Dolly Ryan as a

witness, as he suggests, might have negated Ryan’s guilt.

Consequently, he has nothing to support an inference that

Parker’s erstwhile dual representation actually affected the

adequacy of his performance at Ryan’s trial. And, of course,

appellate counsel was not obligated to present the conflict of

interest issue On appeal because it lacked a factual basis in

Appendix Page “R 16”

the trial record

Finally, Ryan’s claim that the prosecution suborned

perjury is built on an unremarkable contradiction between

written policy and actual practice as testified to by two

witnesses. This Court concluded in the original proceedings

that there was no perjury, and Ryan offers no reason to revisit

that conclusion. Appellate counsel’s manner of presenting

the issue under the best-evidence rule in the appellate court

was not unreasonable, because his only means of

establishing the falsity of the witnesses’ testimony was to

compel a conclusion that the written policy was true.

There is no reason to emcourage further proceedings

certificate of appealability is not warranted

Accordingly, [IT IS HEREBY ORDERED as follows

Ryan’s motion to vacate, set aside, or correct the

sentence under 28 U.S.C. § 2255 (doc. 281) is DENIED;

A certificate of appealability is DENIED. The Clerk

of Court shall immediately pirocess the appeal if Ryan files a

Notice of Appeal;

The Clerk of Court shall ensure that all pending

motions in this case and in CV 09-149-BLG-RFC are

Appendix Page “B-17

terminated and shall close the civil file by entering judgment

in favor of the United States and against Ryan

DATED this 5" day of February. 2010

S/ Richard F. Cebull, Chief Judg

United States District Court

A] pe nd . Pa r¢

UNITED STATES COURT OF

APPEAI

FOR THE NINTH CIRCUIT

UNITED STATES O] NI

AMERICA.

»

Plaintiff Appelle 1:09-ev-( i

| t r-OOU

) 1? | t VJ

Billing

MICHAEL W. RY

Defendant Appella

Case No. 10-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 2010

MICHAEL W. RYAN,

Petitioner,

UNITED STATES OF AMERICA.

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THI

UNITED STATES COURT OF APPEALS OR THE NINTH

CIRCUTT

This is to certify that this Petition complies with the

requirements set forth in Supreme Court Rule 33 and that the

total words in the numbered pages (exclusive of the

Appendix) ts 6175

/S/ Michael W. Ryan

Michael W. Ryan, Pro Se

#20920-046

Federal Prison Camp

POB 5000

Florence. CO 81226-5000

C’ase No. 10

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 2010

MICHAEL W. RYAN,

Petitioner.

\

UNITED STATES OF AMERICA.

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS OR THE NINTH

CIRCUIT

CERTIFICATE OF SERVICE

[his is to certify that 2 true copies of the Petition for

Certiorar! in this case were served upon the United States

Solicitor, Department of Justice, Room 5614, Washington

DC 20530, and that no other party is interested in this case,

cer ‘e | » G 1 ye hy i ct { lac ) 4 | tl Tavce re ¢ r

sCTVICE DEINE gone Dy irst Class matl, with postage prepaid,

day of November, 2010

S/ Michael W. Ryan

Michael W. Ryan, Pro Se

t2?0920-046

Federal Prison Camp

POB SOOO

Florence, CO 81226-5000