Petition for Writ of Certiorari — Cole v. United States

Supreme Court, u.s,

FILED

a 992057 JUN 2 2009

vs THE CLERK

In The

Supreme Court of the United States

RICHARD A. COLE, M.D.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

RicHarp A. Core, M.D.

Pro se

14 Charles Street

Newburyport, MA 01950

Telephone: 978.462.8470

}

QUESTIONS PRESENTED FOR REVIEW

Whether mandamus should have been granted to

compel the Clerk of the Appeals Court to docket an

appeal brief in a habeas corpus case which was dis-

missed for failure to file a brief because of fraud on

the court.

Whether the Appeals Court should have granted

relief because of fraud on the court sua sponte. Or in

the alternative, whether the Appeals Court should

have investigated the allegations of fraud on the

court rather than simply denying mandamus.

ii

TABLE OF CONTENTS

- Page

QUESTIONS PRESENTED FOR REVIEW....... eae

TARR OF MIME .c a iii

OPINIONG GIGI 55 a ee 1

JURISDICTIONAL STATEMENT................00-- 1

CONSTITUTIONAL AND STATUTORY PROVI-

SENS NNN 2... eee 2

STATEMENT OF THE CAGE... ...cc oc Cue 3

REASONS WHY CERTIORARI SHOULD BE

CRANTED «5 OS eee 9

CONCKUMGN «close ee -,

APPR... eee la

i

lil

TABLE OF AUTHORITIES

Page

Cases

Adams v. United States ex rel. McCann, 317 U.S. 269

ES rr reer ere re rey ere eee 16

Board of Education v. York, 429 F.2d 66 (CA10 1970),

Ss SE BE: DOE ARUP ED bcos cccsndedvereveds 17

Brown v. Allen, 344 U.S. 443 (1953).................. 19

DeLouis et al. v. Meek et al., 2 lowa 55 .............. 24

Evitts v. Lucey, 469 U.S. 387, 83 L.Ed.2d 821, 105

RD EPEC eer Te ee eT Tyee eee 13

Field v. United States, 193 F.2d 92 (CA2), cert. den.,

cs ko bat cab aedadnescannv ethene 17

Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22

Te 8 8 eres ee 10, 14, 15, 18, 19

Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

322 U.S. 575, 90 L.Ed. 1250, 64 S.Ct. 997

PL GUR GEL bd he eedn FAS v6 64550500588 21, 22, 25, 26

SE US MOE ME. DPE occ c ew cnacdianssennse 24

Martina Theatre Corp. v. Shine Chain Theaters, Inc.,

oS ge Boe Sey eee eee ee 23

Mississippi Valley Barge Line Co. v. United States,

273 F.Supp 1 (ED Mo. 1967), summarily aff'd,

PEE, Cis See acdeectah¥succaseeaseces 17

Pearce v. Olney, 20 Conn. 544 (1850)...............-. 24

Price v. Johnston, 334 U.S. 266 (1948) ......... is, iz, 19

Schacht v. United States, 398 U.S. 58, 26 L.Ed.2d 44,

ee ee ee eee 14

iv

TABLE OF AUTHORITIES - Continued

Page

Slack v. McDaniel, US Supreme Court, Docket No.

Se SE 65 5 dee ands shan dnbae cd sane cueendiees 20

Smith v. Lowry, 1 Johns. (N.Y.) Ch. 320.............. 24

Sprague v. Ticonic National Bank, 307 U.S. 161, 83

ee a ae er ree ee rrr 21

Stutson v. United States, 516 U.S. 193 (1996) ...... re

Townsend v. Sain, 372 U.S. 293 (1963)............. 18, 19

United States v. Haldeman, 181 U.S. App. D.C. 254,

559 F.2d 31, 1 Fed. Rules Evid. Serv. 1203, cert.

den., 431 U.S. 933, 53 L.Ed.2d 250, 97 S.Ct. 2641,

reh. den., 433 U.S. 916, 53 L.Ed.2d 1103, 97 S.Ct.

5 te re re ret ls Tre ye ery og ee 12

United States v. McHie, 196 F. 586 (ND I11.1912)...... 17

United States v. New York Telephone, 434 U.S. 159, 98

DRA. Fe ANOTER 4 xeii paves kandseatas cuaeae 15, 16, 17

United States v. Throckmorton, 98 U.S. (8 Otto) 61,

re Pree ro err rere. veer a 21, 23

Universal Oil Products Co. v. Root Refining Co., Ps

U.S. 575, 90 L.Ed. 1447, 66 S.Ct. 1176 (1946) . —_

Wiertcn ©. DeZoya, 7 TH. SES (16465) ...... 0... ececenss 24

Wood v. Georgia, 450 U.S. 261, 67 L.Ed.2d 220, 101

te: rrr Pisckh on bith «eee anaes 13

CONSTITUTION, STATUTES AND RULES

U.S. Const., Article I, Section 9, Clause 2......... 9, 10

og? ee Ss ee rer eeer eee are ..10, 12, 14

Vv

TABLE OF AUTHORITIES - Continued

Page

ee ae ina ts ae cunddsdatives biaeeete 12, 14

ee SEA 0 ida va wan seivae Che peuNseeeeeeeeunne 2

pe ere err ee rere ee 2, 14, 15, 16

BB USK: & AE oe ce ccevecsccsccbevcsvecccousees passim

Oe Deas Oe Ba oo oes iv bwineasessVinasseaeeient 11, 14

ee Rs Wee Oe Be ein kks neeayecewswcaan cana 2

TREATISES

Federal Practice and Procedure, Wright, Miller,

8 ee NS rere errr re ere ree 22

Moore’s Federal Practice, volume 7 § 60.33 (1971

BRDU eget Vs PE MeN ER RMT pony Aen NY SaeEF 21

Moore’s Federal Practice, volume 12 § 60.81 (1999

NES kg ene kal ihre ah es RE A eo 21

Wells, Res Adjudicata, section 499 .................. 24

OPINIONS BELOW

Cole v. U.S.A., USDC WD Pa. Civil Action No. 94-164E

(part of Crim. No. 91-28E), July 8, 1994

Cole v. U.S.A., USCA 3rd Docket No. 94-3613, CLERK

ORDER, Dec. 30, 1994

Cole v. U.S.A., USCA 3rd Docket No. 94-3613, March 26,

1997

Cole v. U.S.A., USCA 3rd Docket No. 94-3613, May 6, 1997

In Re: Richard A. Cole, USCA 3rd Docket No. 99-4058, May

9, 2000

In Re: Richard A. Cole, USCA 3rd Docket No. 99-4058, June

1, 2000

JURISDICTIONAL STATEMENT

Based on newly discovered evidence of fraud on the

court, a petition for a writ of mandamus was filed in the

United States Court of Appeals for the Third Circuit at

Docket No. 99-4058 seeking to reinstate an appeal which

had been dismissed for failure to file an appeal brief. The

underlying case was filed in the United States District

Court for the Western District of Pennsylvania based on

the court’s jurisdiction pursuant to 28 U.S.C. § 2255 since

it had heard the underlying criminal case, U.S.A. v. Cole,

USDC WD Pa. Crim. No. 91-28E. The United States Court

of Appeals for the Third Circuit rendered its decision by a

Clerk Order on December 30, 1994. A motion to recall the

mandate was filed on October 18, 1996 which was denied

on March 26, 1997. A petition for rehearing was filed on

April 9, 1997 which was denied on May 6, 1997.

The mandamus petition at Docket No. 99-4058 was

filed on December 27, 1999 and denied on May 9, 2000. A

petition for rehearing and rehearing in banc was denied

on June 1, 2000. This Court’s jurisdiction is invoked pur-

suant to 28 U.S.C. §§ 1254 and 1651 and Supreme Court

Rule 10.1(a) and (c).

¢

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This petition concerns the dismissal of an appeal of a

habeas corpus petition, guaranteed by the United States

Constitution, Article I, Section 9, Clause 2, because of

fraud on the court. Further, petitioner is entitled to an

evidentiary hearing in the District Court pursuant to 28

U.S.C. § 2255 which was never granted in this case. After

Petitioner discovered proof of fraud on the court, he

sought to have his appeal brief docketed nunc pro tunc

by a writ of mandamus pursuant to 28 U.S.C. § 1651, and

this was denied by the Third Circuit. The failure to grant

relief in the face of fraud on the court is contrary to

federal practice as stated in the treatises of Moore’s Fed-

eral Practice (1999 Edition) and Federal Practice and Pro-

cedure (1995 Edition), Wright, Miller, and Kane, Editors.

Finally, the Third Circuit refusd to investigate petitioner’s

allegations of fraud on the court setting a precedent that

one may defile the judicial integrity of the Third Circuit

with impunity.

—

STATEMENT OF THE CASE

Richard A. Cole, M.D. petitions this Court for a writ

of certiorari in this case on the issue of obtaining a writ of

mandamus to compel the Clerk of Court of the United

States Court of Appeals for the Third Circuit to docket his

appeal brief nunc pro tunc since it was not filed because

of fraud on the court. In this manner, Cole will finally

have a hearing cn the merits of his habeas corpus petition

(motion under 28 U.S.C. § 2255, A. 13a) to which he is

entitled by law. Cole originally filed his habeas corpus

petition on April 22, 1994 in the United States District

Court for the Western District of Pennsylvania. It was

dismissed without a request for an answer from the gov-

ernment, without an evidentiary hearing, and without an

explanation on July 8, 1994. Cole appealed to the United

States Court of Appeals for the Third Circuit in Phila-

delphia on July 25, 1994, but his appeal was not docketed

until November 9, 1994. Cole was ordered to file a brief

by December 16, 1994. Cole, who was in prison at the

time, and did not have the funds to make copies, sent his

brief to his sister-in-law, Sylvia Cole, to make copies and

send them to the Appeals Court. She has sworn in

repeated declarations and affidavits that she did this and

filed the necessary brief and copies via Federal Express

courier on November 25, 1994. Further, she swore that

she called Federal Express to make sure the documents

had been delivered. (A. 18a). Inexplicably on January 3,

1995, Cole received notice via Clerk Order (A. 7a) that his

appeal had been dismissed for failure to timely prosecute

based on Local Rule 107.2 (A. 15a) because Cole had not

filed his brief. Cole filed a motion to reinstate the appeal

which he sent to Sylvia Cole who swore that she made

the appropriate number of copies and again sent them to

the Clerk’s Office via Federal Express. She swore that she

checked with Federal Express and the Clerk’s Office to

insure delivery, and both confirmed that the papers had

arrived at the Clerk’s Office (Affidavit of Sylvia Cole, A.

18a). Nevertheless, the motion to reinstate the appeal was

not received.

Cole, a pro se litigant, had no idea what to do next,

and so filed a second habeas corpus petition in an

attempt to have the merits of his petition heard. This

second petition was dismissed because Cole could not

bring up the same arguments on a second petition after

the first petition had, been dismissed. The District Court

criticized Cole for failing to prosecute his first appeal.

Thereupon Cole filed a motion under Federal Rule of

Civil Procedure 60(b) in the United States Court of

Appeals for the Third Circuit asking to set aside the

judgment dismissing the appeal of the habeas corpus

petition, since Cole had shown by declaration of his

sister-in-law that she had served the brief and the motion

to reinstate the appeal via Federal Express, and that she

had spoken to Federal Express and the Clerk’s Office, and

they both had assured her that all was in order (A. 18a).

Richard Cole had relied on his sister-in-law, Sylvia

Cole, and his brother, Steven P. Cole, to act as his mailing

agents while Richard Cole was incarcerated (Affidavit of

Sylvia Cole, A. 18a, and Affidavit of Steven P. Cole, A.

21a). Richard Cole was unjustly imprisoned and penniless

by the time of incarceration. Cole had spent all his money

on lawyers. Cole had no money to make copies of plead-

ings to the Appeals Court. Thus, Cole was forced to seek

Fiemme’

help from his family. Sylvia has insisted in many declara-

tions and affidavits, one of which is seen at A. 18a, that

she did send in the appeal brief on time, and further that

she sent in a motion to reinstate the appeal in a timely

manner. Sylvia swore under oath that she sent both pack-

ages via Federal Express, and that she called both Federal

Express and the Clerk of this Court to insure that each

had arrived. Sylvia swore that she confirmed both had

arrived, and that she had paid Federal Express via her

Discover Card for each service. Richard Cole has relied in

good faith upon the word of Sylvia Cole, the wife of his

brother and mother of four children, one of whom is

Richard’s Godchild.

In July of 1999, based on a series of improbable lies,

Richard Cole discovered that Sylvia lied about a variety

of matters as well as forged a number of documents and

withdrawn funds without authorization from a series of

bank accounts and brokerage houses. Because of these

actions and the fact that the Appeals Court did not accept

Cole’s explanation of why he did not file a brief, Richard

Cole began a more in depth investigation of the facts of

this case with regard to the alleged filing of the appeal

brief.

When Cole first sought to open this case in 1997 on

the advice of a new lawyer, Cole called Federal Express

and Discover Card to try to document the shipments and

their receipt by the Appeals Court. Each company told

Cole that they only had records going back one year.

Sylvia insisted that she had no records, but would swear

to any document necessary to support her version of the

story. Thus Richard Cole has filed many declarations and

affidavits in the Appeals Court in which Sylvia repeat-

edly testified to the facts as above.

Nonetheless, after the Appeals Court denied Cole’s

motion to reopen the appeal at Docket No. 94-3613 based

on what Cole perceived as a clerical error, and later

denied Cole’s petition for a writ of mandamus at Docket

No. 98-3612, Cole sought to investigate more fully. By

chance, in a conversation with the office of the Custodian

of Records at Federal Express, Cole learned that if he was

a member of a government agency, or if he had a federal

subpoena, records could be obtained going back to 1994

and earlier. Sylvia Cole had made other unsubstantiated

claims about her activity in 1994 and 1995 which were the

subject of a federal lawsuit in Pennsylvania. Here too,

Sylvia alleged that she sent material via Federal Express

and paid for it with Discover Card. Using the power of

these federal subpoenas, Richard Cole found from both

Federal Express and Discover Card that Sylvia lied.

Cole subpoenaed Federal Express to confirm the dis-

puted delivery of the two packages to the United States

Court of Appeals for the Third Circuit in Philadelphia,

Pennsylvania (A. 23a). Not only was there no record of

delivery of these two packages, but Federal Express had

no record of any delivery to said court in the period of

November 15, 1994 through January 15, 1995 (A. 28a).

Further, the two airbill numbers in question were used by

other companies with no relationship to Cole. Sylvia

wrote out an airbill with the address of the Appeals ©

Court, but failed to send it. She didn’t do it just once, she

did it twice. Then she insisted that not only had they been

sent, but that she confirmed this with Federal Express,

and paid for each service with Discover Card. Finally, she

7

stated that she confirmed the second delivery with the

Clerk of this Court in January 1995. All this is seen in her

affidavit at A. 18a.

Richard Cole thought it possible that perhaps the

airbill numbers had been lost to the Federal Express

system, or misfiled, so he crossed checked this informa-

tion with Discover Card through a subpoena. The billing

statements showed numerous packages sent via Federal

Express, but notably, none of these were sent on the dates

in question, November 23, 1994 and January 6, 1995, nor

did any of the airbill numbers match. Specifically, the two

airbills, nos. 2318346074 and 2318346332, were never bil-

led to Discover Card. Thus in addition to the fact that the

Clerk of the Appeals Court denied receiving either of

these two packages, there is evidence that Federal

Express never delivered them, nor charged for them.

Thus we must assume that they were never sent, and that

Sylvia Cole is lying. Richard Cole is not sure of why she

did this, but this and more recent behavior suggests a

serious psychological problem for which she is now being

treated.

Cole also sent a subpoena to Bell Atlantic hoping to

establish whether or not Sylvia ever called the Clerk of

the Appeals Court. However, Bell Atlantic did not keep

records going back to 1994-1995. In a recent Opinion

supporting a denial of Cole’s petition for a writ of man-

damus at Docket No. 99-4058, A. 1a, the Appeals Court

stated that it could find no telephone records related to a

missed filing. Indeed, we now have evidence from Fed-

eral Express, Discover Card, and the Appeals Court that

Sylvia is lying.

Cole assembled all this material and drafted a peti-

tion for a writ of mandamus to compel the Clerk of the

Appeals Court to docket the appeal brief since it had not

been sent through fraud on the court. Sylvia Cole had

acted to “defile the integrity of the court.” Richard Cole

was totally prevented from presenting his appeal due to

the malice of Sylvia Cole.

The appeals court felt that mandamus could only be

used to authorize a lower court to do its duty and denied

Cole’s petition (A. la). Cole requested a rehearing and a

rehearing en banc which was likewise denied (A. 12a).

In his habeas corpus petition, Cole raised four major

issues of constitutional dimension: 1. ineffective assis-

tance of counsel, 2. bias and prejudice of the magistrate

who issued the search and seizure warrant as well as the

two officers who swore to the affidavit underlying the

warrant, 3. documented perjury of one of the officers

swearing to the above warrant who lied about her activ-

ity with Cole in a related Drug Enforcement Agency

hearing, and 4. bias and prejudice of the trial court judge.

None of these issues have ever been heard by any court,

nor has any evidentiary hearing ever been held on these

matters despite the fact that they had not been fully

developed in the record of this case.

¢

REASONS WHY CERTIORARI

SHOULD BE GRANTED

I. Petitioner has been foreclosed from an appeal of his

denied habeas corpus petition by fraud on the Third

Circuit. The jurisprudence of this Court authorizes

mandamus to protect the rights of parties.

A habeas corpus petition is a sacred right that the

founders of this country sought to insure by providing in

the Constitution that the right to habeas corpus would

not be suspended except in times of insurrection. U.S.

Const., Article 1, Section 9, Clause 2. The habeas corpus

petition is the last resort available to Cole to challenge the

constitutional validity of his conviction. Rather than hav-

ing an appeal of his denied 2255 motion, to which he is

entitled by law, Cole has been totally foreclosed from an

appeal by the malice of Sylvia Cole. The Clerk dismissed

Cole since the brief was not filed. However, Richard Cole

did everything in his power to insure that the appeal

brief would be filed. Both Richard Cole and the Appeals

Court have been defrauded of the right to an appeal in

this matter.

Richard Cole has made a prima facie case of obstruc-

tion of justice, violation of civil rights, and perjury

against Sylvia Cole. Mandamus is an appropriate remedy

to docket the appeal brief nunc pro tunc. This Court has

repeatedly stated that the writ of habeas corpus must be

administered with initiative and flexibility to insure that

miscarriages of justice within its reach are surfaced and

corrected.

“The writ of habeas corpus is the fundamental

instrument for safeguarding individual freedom

against arbitrary and lawless state action. Its

10

pre-eminent role is recognized by the admoni-

tion in the Constitution that: ‘The Privilege of

the Writ of Habeas Corpus shall not be sus-

pended * * * .’ U.S. Const., Art. I, s9, cl.2. The

- scope and flexibility of the writ - its capacity to

reach all manner of illegal detention — its ability

to cut through barriers of form and procedural

mazes — have always been emphasized and jeal-

ously guarded by courts and lawmakers. The

very nature of the writ demands that it be

administered with the initiative and flexibility

essential to insure that miscarriages of justice

within its reach are surfaced and corrected.”

Harris v. Nelson, 394 U.S. 286 at 291, 89 S.Ct. 1082

at 1086, 22 L.Ed.2d 281 (1969).

There can be no doubt that Sylvia and Steven Cole effec-

tively denied Richard Cole access to the Appeals Court.

Besides committing a breach of their fiduciary duties,

they obstructed justice, denied Cole his civil rights, and

Sylvia committed perjury in the affidavit at A. 18a along

with many other declarations attesting to the same facts

filed in the Appeals Court.

Blocking the transmittal of documents to a federal

court constitutes a violation of Title 18, Chapter 73,

Obstruction of Justice § 1512, Tampering with a witness,

victim, or an informant, where it states,

“

(b) Whoever knowingly uses intimida-

tion . . . or engages in misleading conduct

toward another person, with intent to -

(1) influence, delay or prevent the testi-

mony of any person in an official pro-

ceeding;

11

(2) cause or induce any person to -

(A) withhold testimony, or withhold

a record, document, or other

object, from an official proceed-

ing;

(B) alter, destroy, mutilate, or con-

ceal an object with intent to

impair the object’s integrity or

availability for use in an official

proceeding; ... ”

Clearly Sylvia and Steven Cole have succeeded in keep-

ing Richard Cole’s appeal brief from the Appeals Court

and in so doing have changed the course of justice in this

case. Richard Cole lost through default, through no fault

of his own, but rather due to the scheming of his family

members.

Willful blockage of access to the courts of the United

States by two or more persons constitutes a violation of

42 U.S.C. § 1985, which states in relevant part,

a“

. if two or more persons conspire for the

purpose of impeding, hindering, obstructing, or

defeating, in any manner, the due course of

justice in any State or Territory, with intent to

deny any citizen the equal protection of the

laws, or to injure him or his property for law-

fully enforcing, or attempting to enforce, the

right of any person, or class of persons, to the

equal protection of the laws; . . . the party so

injured or deprived may have an action for the

recovery of damages occasioned by such injury

or deprivation, against any one or more of the

conspirators.”

12

Cole could well sue his brother and sister-in-law for a

denial of his civil right to the Appeals Court. This is of

little consequence since Cole wants to have his appeal

brief docketed rather than seeking money.

Sylvia Cole is guilty of perjury as defined by Title 18,

Chapter 79, Perjury § 1621, Perjury generally, where it

states,

“Whoever —-

(2) in any declaration, certificate, verification,

or statement under penalty of perjury as

permitted under section 1746 of title 28,

United States Code, willfully subscribes as

true any material matter which he does not

believe to be true;

is guilty of perjury,... ”

All of her allegations have been disproven by facts in the

record of this matter before the Appeals Court. Federal

Express disproved her version. Discover Card disproved

her version. The Clerk of the Appeals Court disproved

her version.

While it may be too late to indict Sylvia for obstruc-

tion of justice under 18 U.S.C. § 1512, it is not too late to

indict her for perjury under 18 U.S.C. § 1621. There is

enough evidence presented thus far for a prima facie case

of perjury. Under the two witness rule, the testimony of

Lance McGlothin from Federal Express and the testimony

of Kevin Mason from Discover Card will more than suf-

fice to support the evidence presented to the Appeals

Court. United States v. Haldeman (1976), 181 U.S. App. DC

254, 559 F.2d 31, 1 Fed. Rules Evid. Serv. 1203, cert. den.,

13

(1977) 431 U.S. 933, 53 L.Ed.2d 250, 97 S.Ct. 2641, reh.

den., (1977) 433 U.S. 916, 53 L.Ed.2d 1103, 97 S.Ct. 2992.

In addition, the Clerk of the Appeals Court could testify

that the material was never received.

While incarcerated and without money, Richard Cole

had no alternative but to turn to someone for he!p. Had

Richard the luxury of time, money, and freedom, he could

have hired a competent attorney, or perhaps done the

mailing himself. Unfortunately, he was under the thumb

of the Government, incarcerated in Alabama. This Court

has been solicitous of such predicaments and has recog-

nized that filing limits should be made flexible for those

in similar circumstances.

In Stutson v. United States, 516 U.S. 193 (1996) at 196,

~ this Court stated,

“Finally, it is not insignificant that this is a crim-

inal case. When a litigant is subject to the con-

tinuing coercive power of the Government in

the form of imprisonment, our legal traditions

reflect a certain solicitude for his rights, to

which the important public interests in judicial

efficiency and finality must occasionally be

accommodated. We have previously refused to

allow technicalities that caused no prejudice to

the prosecution to preclude a remand under 28

U.S.C. § 2106 (1988 ed.) ‘in the interests of jus-

tice.’ Wood v. Georgia, 450 U.S. 261, 265, n.5. 67

L.Ed.2d 220, 101 S.Ct. 1097 (1981). And pro-

cedural accommodations to prisoners are a

familiar aspect of our jurisprudence. See, e.g.,

287 U.S.C. § 2255 (1988 ed.) (habeas review in

spite of an adverse final appellate decision);

Evitts v. Lucey, 469 U.S. 387, 83 L.Ed.2d 821, 105

S.Ct. 830 (1985) (relief for ineffective assistance

14

of retained counsel on appeal); Schacht v. United

States, 398 U.S. 58, 63-64, 26 L.Ed.2d 44, 90 S.Ct.

1555 (1970) (unlike in civil cases, time limits for

petitions for certiorari in criminal cases are not

jurisdictional).

Richard Cole has a legal right to have his appeal pursuant

to 28 U.S.C. § 2255. Cole is petitioning this Court to

protect his rights and give him the appeal to which he is

entitled by the law of 28 U.S.C. § 2255 which states,

”An appeal may be taken to the court of appeals

from the order entered on the motion as from a

final judgment on application for a writ of

habeas corpus.” 2

Richard Cole was illegally blocked from the Appeals

Court by Sylvia Cole, apparently in collusion with Steven

Cole, a prima facie violation of 42 U.S.C. § 1985, 18 U.S.C.

§ 1512, and 18 U.S.C. § 1621. Respectfully, it is hard to

understand how the Appeals Court can simply brush

Cole off, and hold that Cole’s only remedy is from Sylvia

Cole (Opinion at Appendix page 1a). Further, the Appeals

Court has a special duty in adjudicating Cole’s habeas

corpus petition as stated by this Court in Harris v. Nelson,

394 US. 286 at 299,

“Clearly, in these circumstances, the habeas

corpus jurisdiction and the duty to exercise it

being present, the courts may fashion appropri-

ate modes of procedure, by analogy to existing

rules or otherwise in conformity with judicial

usage. Where their duties require it, this is the

inescapable obligation of the courts. Their

authority is expressly confirmed in the All Writs

Act, 28 U.S.C. § 1651.”

15

Thus this Court mandates that federal courts, including

appeals courts, fashion appropriate remedies to do jus-

tice.

In the instant matter, Cole petitioned for a writ of

mandamus to compel the Clerk of the Appeals Court to

docket his appeal nunc pro tunc since this Court and

Richard Cole have been defrauded of the right to due

process by the malicious acts of Sylvia Cole. Had Sylvia

Cole filed the appeal brief on time, on or about Novem-

ber 23, 1994, this matter would have been fully adjudi-

cated. As it now stands, Richard Cole has never had a

hearing on his habeas corpus petition in open court.

Most importantly, this Court in United States v. New

York Telephone Co., 434 U.S. 159 at 172 stated,

“The All Writs Act provides: ‘The Supreme

Court and all courts established by Act of Con-

gress may issue all writs necessary or appropri-

ate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.’

28 U.S.C. § 1651(a) .. .

This Court has repeatedly recognized the power

of a federal court to issue such commands under

the All Writs Act as may be necessary or appro-

priate to effectuate and prevent the frustration

of orders it had previously issued in its exercise

of jurisdiction otherwise obtained: ‘This statute

_ has served since its inclusion, in substance, in

the original Judiciary Act as a ‘legislatively

approved source of procedural instruments

designed to achieve ‘the rational ends of law.”

Harris v. Nelson, 394 U.S. 286, 299 (1969), quoting

Price v. Johnston, 334 U.S. 266, 282 (1948). Indeed,

‘{uJnless appropriately confined by Congress, a

16

' federal court may avail itself of all auxiliary

writs as aids in the performance of its duties,

when the use of such historic aids is calculated

in its sound judgment to achieve the ends of

justice entrusted to it.’ Adams v. United States ex

rel. McCann, 317 U.S. 269, 273 (1942).”

In the original appeal of Cole’s denied 2255 motion, Cole

was ordered to file his brief on time or face dismissal.

Cole thought he complied with the order of the Appeals

Court, but in fact, Sylvia maliciously lied about sending

the brief. Later she lied about sending the motion to

reopen the appeal. Cole has provided subpoenaed docu-

ments which support his charges that Sylvia lied, and

they have not been challenged. Clearly Sylvia has inter-

fered with and frustrated the orders of the Appeals

Court, and has damaged the rights of Richard Cole, a

party before the Appeals Court. Moreover, her malice has

defrauded the Appeals Court of the opportunity to do

justice in this case. This Court went on in New York

Telephone, supra, p. 173,

“The Court has consistently applied the Act

flexibly in conformity with these principles.

Although § 262 of the Judicial Code, the prede-

cessor to § 1651, did not expressly authorize

courts, as does § 1651 to issue writs ‘appropri-

ate’ to the proper exercise of their jurisdiction

but only ‘necessary’ writs, Adams held that these

supplemental powers are not limited to those

situations where it is ‘necessary’ to issue the

writ or order ‘in the sense that the court could

not otherwise physically discharge its appellate

duties.’ 317 U.S., at 273.”

17

This Court’s holding demands mandamus be used to

exercise jurisdiction to protect Richard Cole. In New York

Telephone, supra, p. 174 this Court continued,

“The power conferred by the Act extends, under

appropriate circumstances, to persons who,

though not parties to the original action or

engaged in wrongdoing, are in a position to

frustrate the implementation of a court order or

the proper administration of justice, Mississippi

Valley Barge Line Co. v. United States, 273 F.Supp.

1, 6 (ED Mo. 1967) summarily aff’d, 389 U.S. 579

(1968); Board of Education v. York, 429 F.2d 66

(CA10 1970), cert. denied; 401 U.S. 954 (1971),

and encompasses even those who have not

taken any affirmative action to hinder justice.

United States v. McHie, 196 F. 586 (ND III.1912);

Field v. United States, 193 F.2d 92, 95096 (CA2),

cert. denied, 342 U.S. 894 (1951).”

Cole agrees that the Clerk of the Appeals Court is with-

out fault here. However, the Clerk as part of his minis-

terial duties dismissed Cole’s appeal since he did not

receive Cole’s brief. The failure to file the brief was not

Cole’s fault and should be corrected. Otherwise, Sylvia’s

treachery has irrevocably damaged Cole from which he

has no source of relief. This Court in New York Telephone,

supra, at 374 stated,

“The dissent’s attempt to draw a distinction

between orders in aid of a court’s own duties

and jurisdiction and orders designed to better

enable a party to effectuate his rights and

duties, post, at 189-190 is specious. Courts nor-

mally exercise their jurisdiction only in order to

protect the legal rights of parties. In Price v.

Johnston, 334 U.S. 266 (1948), for example, the

18

production of a federal prisoner in court was

required in order to enable him to effectively

present his appeal which the court had jurisdic-

tion to hear. Similarly, in Harris v. Nelson, 394

U.S. 286 (1969), discovery was ordered in con-

nection with a habeas corpus proceeding for the

purpose of enabling a prisoner adequately to

protect his rights.”

Cole is petitioning this Court to protect his rights and

give him the appeal to which he is entitled by the law of

28 U.S.C. § 2255.

This Court mandates that federal courts, including

appeals courts, fashion appropriate remedies to do jus-

tice. Cole prosecuting Sylvia Cole will not help Cole get a

hearing on his habeas corpus appeal. Rather, it is within

the enumerated powers of the Appeals Court to docket

the appeal brief in this matter nunc pro tunc. As stated in

Harris v. Nelson, supra, at 292,

“There is no higher duty of a court, under our

Constitutional system, than the careful process-

ing and adjudication of petitions for writs of

habeas corpus, for it is in such proceedings that

a person in custody charges that error, neglect,

or evil purpose has resulted in his unlawful

confinement and that he is deprived of his free-

dom contrary to law. This Court has insistently

said that the power of the federal courts to

conduct inquiry in habeas corpus is equal to the

responsibility which the writ involves: ‘The lan-

guage of Congress, the history of the writ, the

decisions of this Court, all make clear that the

power of inquiry on federal habeas corpus is

plenary.’ Townsend v. Sain, supra, at 312.”

19

The necessity of an appeal is even more pressing in ~

this matter since the District Court summarily dismissed

the motion under 28 U.S.C. § 2255 without explanation,

without an evidentiary hearing, and without an answer

from the government. Most of the issues in the 2255

motion concern ineffective assistance of counsel, and are

not in the record. No where in the record does it discuss

the bias, prejudice, and perjury of the FBI, DEA, and

Pennsylvania State Police, all of which should have been

raised by defense counsel. No where is the issue of bias

on the part of Magistrate Judge Bifulco and trial Judge

Cohill addressed, both of which should have been argued

by defense counsel. By the law of 28 U.S.C. § 2255, Cole is

guaranteed an evidentiary hearing. He never got one. As

stated in Harris v. Nelson, supra, at 291,

“It is now established beyond the reach of rea-

sonable dispute that the federal courts not only

may grant evidentiary hearings to applicants,

but must do so upon an appropriate showing.

Townsend v. Sain, 372 U.S. 293, 313 (1963); Brown

v. Allen, 344 U.S. 443, 464, n.19 (1953). And this

Court has emphasized, taking into account the

office of the writ and the fact that the petitioner,

being in custody, is usually handicapped in

developing the evidence needed to support in

necessary detail the facts alleged in his petition,

that a habeas corpus proceeding must not be

allowed to founder in a ‘procedural morass.’

Price v. Johnston, 334 U.S. 266, 269 (1948).”

Granted that the Appeals Court may have affirmed Cole’s

conviction on direct appeal. However, Cole’s counsel

insisted that there were no matters for appeal, and there-

fore, raised none except the amount of the fine and/or

20

restitution. It would be a most unusual case if defense

counsel laid out a cause in the record for ineffective

assistance of counsel so that a reviewing court could sua

sponte declare ineffective assistance of counsel and

vacate the judgment. Neither the District Court, nor the

Appeals Court have ever addressed the issues raised in

the 2255 motion, especially the allegations of ineffective

assistance of counsel who failed to provide Cole with a

competent defense. Most recently this Court held that

habeas petitions dismissed on procedural grounds with-

out looking at the merits should be reinstated, Slack v.

McDaniel, Docket No. 98-6322 (2000). This Court again

condemned the notion that these pleadings filed by pris-

oners are simply of nuisance value. Remarkably, Cole’s

lawyer failed him, and Cole’s family failed him. Thus far,

the justice system has failed him since it is convinced that

Cole’s conviction should stand regardless of the constitu-

tional and legal violations that made it possible. Cole

implores this Court to grant certiorari in this matter.

II. Relief from a judgment procured by fraud on the

court is always granted under the jurisprudence of

this Court. If the Third Circuit did not believe

petitioner’s allegations of fraud on their face, it had

a duty to petitioner and to the integrity of the court

to investigate.

The Appeals Court has inherent authority to investi-

gate the question of fraud on the court in the procure-

ment of this judgment of dismissal. Universal Oil Products

Co. v. Root Refining Co., 328 U.S. 575, 90 L.Ed. 1447, 66

S.Ct. 1176 (1946). If such fraud cannot be ascertained

from the pleadings, the Appeals Court had an obligation

eT

21

to order an adversary proceeding to adjudicate Cole’s

allegation of fraud on the court. See Hazel-Atlas Glass Co.

v. Hartford-Empire Co., 322 U.S. 238, 88 L.Ed. 1250, 64 S.Ct.

997 (1944); Sprague v. Ticonic National Bank, 307 U.S. 161,

83 L.Ed. 1184, 59 S.Ct. 777 (1939); and United States v.

Throckmorton, 98 U.S. (8 Otto) 61, 25 L.Ed. 93 (1878).

Professor Moore at 7 Moore’s Federal Practice (1971 ed.)

P. 60.33 at 60-361 has characterized fraud on the court as,

“that species of fraud which does or attempts to,

defile the court itself, or is a fraud perpetrated

by officers of the court so that the judicial

machinery cannot perform in the usual manner

its impartial task of adjudging cases presented

for adjudication.”

The most recent edition of Moore’s Federal Practice

(1999) at volume 12 § 60.81 elaborates on this concept,

and sets the stage for this petition, at page 60-225.

“Although ‘fraud on the court’ will always sup-

port relief from a judgment (see § 60.21[4][a]),

regardless of whether it is raised by motion, in

an independent action, or sua sponte, it is a

separate concept from the idea of an indepen-

dent action in equity for relief from a judg-

ment. . . . If fraud reaches the level of fraud on

the court, relief is always merited, and no dis-

tinction between ‘intrinsic’ or ‘extrinsic’ fraud

needs to be made. In the ordinary independent

suit, only justice between the parties is at issue,

in fraud on the court cases, the integrity of the

courts is at issue.

Confusing fraud on the court with the stan-

dards for ordinary actions in equity blurs sev-

eral important distinctions between the two

concepts: (1) since it is the integrity of judicial

22

institutions that is paramount in fraud on the

court claims, there is no real time limit on relief

for fraud on the court (see § 60.22[4][g]) while a

simple independent action in equity is always

subject to the doctrine of laches (see § 60.83); (2)

because the credibility of institutions is pro-

tected by the concept of fraud on the court,

relief may be had even if the parties who will

benefit from relief have ‘unclean hands’ (see

§ 60.22[4][I]), while a total lack of fault, includ-

ing clean hands, is a prerequisite or an essential

element for relief by way of an independent

action in equity (see § 60.82([2]).”

Cole’s appeal was dismissed for failure to file an appeal

brief. Not only was this brief not filed, but this failure

was part of a scheme by Sylvia and Steven Cole to

defraud Richard Cole of his right to an appeal of his

denied motion under 28 U.S.C. § 2255. In so doing, Sylvia

and Steven also defrauded the Appeals Court of its right

and obligation to do justice.

Courts do not have to wait for a party to raise a

motion. According to Federal Practice and Procedure,

1995, Eds. Wright, Miller, Kane, at § 2870, Fraud on the

Court,

“Almost all of the principles that govern a claim

of fraud on the court are derivable from the

Hazel-Atlas case. The power exists in every

court. If the fraud was on an appellate court,

that court rather than the trial court, should

consider the matter. Although a party may bring

the matter to the attention of the court, this is

not essential, and the court may proceed on its

own motion.}$

23

n. 13. Defrauded district court may take action

sua sponte to expunge a judgment constituting

fraud on the court and anyone, whether his

hands are clean or dirty, may suggest that it do

so. Martina Theatre Corp. v. Shine Chain Theaters,

Inc., C.A.2d, 1960, 278 F.2d 798.”

Earlier Cole had petitioned the Appeals Court to

docket the appeal based on what he thought was clerical

error. Later Cole petitioned for mandamus. for the same

reason followed by another mandamus petition for fraud

on the court. The Appeals Court has denied Cole’s man-

damus petitions because it felt that mandamus was an

inappropriate remedy and offered Cole nothing, not even

an investigation into his allegations. The seminal case for

having an appeals court investigate fraud in the procure-

ment of a judgment before it came from the Third Circuit

in Universal, supra, where this Court stated,

“A Federal Circuit Court of Appeals has inher-

ent power to investigate whether its affirmance

of a judgment was obtained by fraud, and may

bring before it by appropriate means all those

who may be affected by the outcome.” Ibid. at

575.

In Universal, the Appeals Court investigated the question

of fraudulent evidence in a scheme to reach a certain

judgment. In the instant case, the fraud comes not from a

party, but someone who schemed to not only damage a

party, but to defraud the Appeals Court of the ability and

obligation to do justice.

In Throckmorton, supra, this Court discussed the long

standing tradition of leaving judgments alone, and cited

the exception relevant here,

24

“But there is an admitted exception to this gen-

eral rule in cases where, by reason of something

done by the successful party to a suit, there was

in fact no adversary trial or decision of the issue

in the case. Where the unsuccessful party has

been prevented from exhibiting fully his case,

by fraud or deception practised on him by his

opponent, as by keeping him away from court, a

false promise of compromise; or where the

defendant never had knowledge of the suit,

being kept in ignorance by the acts of the plain-

tiff; or where an attorney fraudulently or with-

out authority assumes to represent a party and

connives at his defeat; or where the attorney

regularly employed corruptly sells out his cli-

ent’s interest to the other side, — these, and

similar cases show that there has never been a

real contest in the trial or hearing of the case,

are reasons for which a new suit may be sus-

tained to set aside and annul the former judg-

ment or decree, and open the case for a new and

fair hearing. See Wells, Res Adjudicata, sect. 499;

Pearce v. Olney, 20 Conn. 544; Wierich v. DeZoya,

7 Ill. 385; Kent v. Ricards, 3 Md.Ch. 392; Smith v.

Lowry, 1 Johns. (N.Y.) Ch. 320; DeLouis et al. v.

Meek et al., 2 Iowa, 55.

In all these cases, and many others which have

been examined, relief has been granted, on the

ground that, by some fraud practised directly

upon the party seeking relief against the judg-

ment or decree, that party has been prevented

from presenting all of his case to the court.” Ibid.

at 65.

Sylvia Cole was to have acted on behalf of Richard Cole,

and had promised to do so. Sylvia Cole acted in a way

analogous to an attorney representing Richard Cole’s

25

interest. In fact she followed her own agenda, and to date

has been successful at keeping Richard Cole’s appeal

from the Appeals Court.

The Appeals Court has commented earlier (Opinion,

A. la) that perhaps it took too long for Richard Cole to

conclude that he had been deceived by Sylvia Cole.

Respectfully, the Appeals Court has never been unjustly

convicted of crimes it never committed, nor been

imprisoned. As a consequence, it has never faced the loss

of friends, family, profession, reputation, money, etc.

From personal experience, Cole can tell this Court that it

has been a lonely journey for the last ten years. Cole

found it hard to believe that someone he had helped as a

physician and as a friend and family member would

betray him. Furthermore, if not for the fortuitous discov-

ery of the power of a federal subpoena, Cole would not

have gotten this far. Cole has done as much as a pro se

litigant could be expected to do. Furthermore, Sylvia is

still within the statute of limitations for perjury which she

committed most recently in the affidavit at A. 18a in July

1999.

The holdings of this Court with regard to fraud on

the court dismiss the concept of laches since any act

which has defiled the system comes into the ambit of the

reviewing court as a matter of course, regardless of the

time involved. As stated by this Court in Hazel-Atlas,

supra,

“Furthermore, tampering with the administra-

tion of justice in the manner indisputably shown

here involves far more than an injury to a single

litigant. It is a wrong against the institutions set

26

up to protect and safeguard the public, institu-

tions in which fraud cannot complacently be

tolerated consistently with the good order of

society. Surely it cannot be the preservation of

the integrity of the judicial process must always

await upon the diligence of litigants. The public

welfare demands that the agencies of public jus-

tice be not so impotent that they must always be

mute and helpless victims of deception and

fraud.” Ibid. at 246.

According to this Court, the determination of

whether fraud on the court has been committed does not

reach to the merits of the appeal since the judicial process

itself has been defiled. Hazel-Atlas, supra. Nonetheless,

the courts thus far have repeatedly considered Cole to be

the doctor who prescribed methamphetamine and repeti-

tion of such falsehoods can be dangerous for the judicial

process since we are all only human. Cole therefore

reminds this Court, as stated repeatedly in his pleadings,

that he has never prescribed methamphetamine, although

he was indicted and convicted of same. The rest of the

indictment is filled with a similar disregard for the truth.

Cole has a meritorious appeal which needs to be

heard.

According to the authority of this Court, Cole

deserves relief from fraud on the court. Even if this Court

does not accept Cole’s allegations, it owes Cole and the

integrity of the Courts of the United States the duty to

investigate fraud on the court. Therefore, Cole should be

granted certiorari in this matter.

¢

27

CONCLUSION

Cole respectfully requests this Court to grant cer-

tiorari in this matter so that he might be granted a writ of

mandamus to compel the Clerk of Court of the United

States Court of Appeals to docket Cole’s appeal brief

nunc pro tunc at Docket No. 94-3613. Further, that Court

should ‘nvestigate Cole’s allegations of fraud on the court

so that justice may be done.

I declare under the penalty of perjury that the forego-

ing is true and correct.

Respectfully submitted,

RicHarD A. Cote, M.D.

Pro se

Petitioner

14 Charles Street

Newburyport, MA 01950

Tel.978.462.8470

Dated June 13, 2000

APPENDIX TABLE OF CONTENTS

APPENDIX A

Opinion of the United States Court of Appeals for

the Third Circuit denying writ of mandamus...

APPENDIX B

Order of the United States District Court for the

Western District of Pennsylvania denying

ORE COUN DOI ns os ccc oes cdusewnarennn

APPENDIX C

Order of the United States Court of Appeals for

the Third Circuit dismissing appeal for failure

OD PEOROCUTD . 0c cence reseeceerecsveneseasvess

APPENDIX D

Order of the United States Court of Appeals for

the Third Circuit denying motions..............

APPENDIX E

Denial of Petition for Rehearing from the United

States Court of Appeals for the Third Circuit....

APPENDIX F

Order of the United States Court of Appeals for

the Third Circuit denying writ of mandamus ....

APPENDIX G

Denial of Petition for Rehearing from the United

States Court of Appeals for the Third Circuit...

10a

lla

.12a

il

APPENDIX TABLE OF CONTENTS - Continued

APPENDIX H

ee 13a

APPENDIX I

Miscellaneous Local Appellate Rules for United

States Court of Appeals for the Third Circuit .... 15a

APPENDIX J

Docket 99-4058 In Re: Richard A. Cole............. 17a

APPENDIX K

eS Be er ee errr er 18a

APPENDIX L

a BE ee errr eT Ter Ter eee 21a

APPENDIX M

Subpoena for documents to Federal Express........ 23a

APPENDIX N

Response from Federal Express to subpoena ....... 28a

la

APPENDIX A

UNREPORTED - NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-4058

IN RE:. RICHARD A. COLE,

Petitioner

On Petition for a Writ of Mandamus

(Related to W.D.Pa.Crim. No.91-cr-00028E

and C.A.No. 94-3613)

April 27, 2000

Before: SLOVITER, MANSMANN and GREENBERG, Cir-

cuit Judges

(Filed May 9, 2000)

OPINION

PER CURIAM

Richard A. Cole has filed a mandamus petition seek-

ing an order requiring the Clerk of this Court to treat

Cole’s brief in his appeal from the denial of his first

section 255 motion timely filed. For the following reasons

we shall deny his petition.

I.

Cole pled guilty to five counts each of drug distribu-

tion and mail fraud, and one count of tax evasion. We

affirmed Cole’s conviction on appeal, but vacated a resti-

tution award and remanded for partial resentencing.

After Cole was resentenced to a new restitution award, he

filed a motion pursuant to 28 U.S.C. § 2255. The motion

2a

was denied in July 1994. Cole’s appeal was dismissed for

failure to file a brief. United States of America v. Cole,

94-3613 (3d Cir. December 30, 1994). By now released

from prison, in November 1995 Cole filed a second sec-

tion 255 motion in which he raised the same claims he

raised in his first section 2255 motion. Accordingly, the

District Court dismissed Cole’s motion as successive and

we denied his request for a certificate of appealability.

United States of America v. Cole, C.A.No. 96-3243 (3d

Cir.June 27, 1996).

Meanwhile, on October 18, 1996, Cole filed a motion

in this Court which was construed as a motion to reopen

C.A.No. 94-3613. Cole argued that the dismissal was

incorrect. He stated that because he was in prison at the

time, his sister-in-law, Sylvia Cole, sent this Court copies

of his briefs by Federal Express on November 23, 1994,

and that when he received notice that his appeal had

been terminated, he called Sylvia and asked her to con-

tact the Court. According to Cole, when she did so “a

spokeswoman in the Clerk’s office [stated] that the

appeal was probably ‘accidentally dismissed’” and

encouraged Sylvia to file a motion to reopen the appeal.

Cole states that he drafted a motion to reopen and gave it

to Sylvia who filed it on January 9, 1995. Cole states that

the clerk’s office informed Sylvia over the telephone that

it received the motion to reopen on January 9, 1995.

However, the Court’s records contain no reference to any

documents which could be construed either as his briefs

or as a motion to reopen. We denied Cole’s motion to

reopen as untimely. United States of America v. Cole,

C.A.No. 94-3613 (February 6, 1997).

3a

In November 23, 1998, Cole filed a mandamus peti-

tion in this Court seeking an order requiring the Clerk to

file his brief in 94-3613, again arguing that he is entitled

to pursue that appeal because he timely filed both his

brief and subsequent motion to reopen. Having previ-

ously found no merit to these arguments, we denied the

petition. In re: Richard A. Cole, C.A.No. 98-3612 (3d

Cir.March 16, 1999), reh’g denied (June 9, 1999), motion to

recall the mandate denied (August 12, 1999), reconsid.

denied (February 24, 2000).

Undeterred, on December 27, 1999, Cole filed a sec-

ond mandamus petition seeking an order requiring the

filing of his brief in 94-3613, this time presenting a new

twist to his previous arguments. He now argues that on

further investigation he has learned that Sylvia lied to

him “about a variety of matters as well as forged a

number of documents and withdr[ew] fund without

authorization from a variety of bank accounts and broker-

age houses.” One of the matters about which she

allegedly lied was that she sent his briefs and motion to

reopen to the Court. He argues that appeal 94-3613

should be reinstated because both he and the Court were

defrauded by Sylvia. He also repeats the arguments from

his initial section 2255 motion. Among Cole’s attachments

are affidavits from Sylvia and documents purporting to

show that the brief and motion to reopen were not sent

by Federal Express.

IT.

Even if it were true that Sylvia deceived Cole, and

even if it were plausible that it required almost six years

4a

for Cole to discover this fact, we could not grant Cole’s

petition. Issuance of a writ of mandamus is an appropri-

ate remedy only when it is necessary “to confine an

inferior court to a lawful exercise of its prescribed juris-

diction or to compel it to exercise its authority when it is

its duty to do so.” Roche v. Evaporated Milk Ass'n, 319 U.S.

21, 26 (1943). Cole does not now allege that a court within

our jurisdiction has failed to act in accordance with its

jurisdiction; the alleged wrongdoing here is Sylvia’s, not

that of any court or court officer. Accordingly, we shall

deny his petition.

5a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RICHARD A. COLE, )

M.D. )

anccisis ) CIVIL ACTION NO.

v. ) 94-164E

UNITED STATES OF ) CRIMINAL NO. 91-28E

AMERICA,

Defendant )

ORDER

AND NOW, to-wit, this 8th day of July, 1994, it is

hereby ORDERED, ADJUDGED and DECREED that:

1. Motion to Amend Habeus Corpus Petition (Doc.

141) be and the same hereby is DENIED;

2. Motion to Vacate (Doc. 138) be and the same

hereby is DENIED;

3. Motion for Recusal of Judge Cohill under 28

U.S.C. sections 144 and 455 (Doc. 141) be and the same

hereby is DENIED;

4. Motion for Recusal of Judge Cohill from All Pro-

ceedings (Doc. 141) be and the same hereby is DENIED.

6a

5. Motion to Vacate All Judgments, Orders and

Decrees Against Plaintiffs (Doc. 141) be and the same

hereby is DENIED.

/s/ Maurice B. Cohill, Jr.

MAURICE B. COHILL, JR.

JUDGE

cc: Richard A. Cole, M.D.

Reg. No. 10509-068

BHM-H FPC Maxwell AFB

Montgomery, AL 36112

Asst. United States Attorney

7a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 94-3613

USA

vs.

Cole

Richard A. Cole, Appellant

(Western District of Pennsylvania Civil No. 91-cr-00028E)

- ORDER

Pursuant to Rule 3(a) of the Federal Rules of Appel-

late Procedure and Third Circuit LAR Misc. 107.2,

It is ORDERED that the above-entitled case is hereby

dismissed for failure to timely prosecute;

It is FURTHER ORDERED that a certified copy of this

order be issued forthwith as the mandate. _

For the Court,

/s/ Mllegible

Acting Clerk

Date: December 30, 1994

cc: Mr. Richard A. Cole

Bonnie R. Schlueter, Esq.

8a

APPENDIX D

February 6, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

C.A. No. 94-3613

UNITED STATES OF AMERICA

VS.

RICHARD A. COLE, ET AL.

(W.D. PA. CRIM. NO. 91-CR-00028)

(CRIMINAL TREATED AS CIVIL)

Present: GREENBERG, NYGAARD and ROTH, CIR-

CUIT JUDGES

Submitted are:

(1) Appellant’s motion to reopen the above-cap-

tioned appeal; and

(2) Appellee’s “Motion to Expedite Proceedings

and Motion for Summary Action”

in the above captioned case.

Respectfully,

/s/ P. Douglas Sisk/ WMH

P. DOUGLAS SISK

CLERK

Ee clem STrnD

Ga

ORDER

The foregoing motion to reopen the above captioned

appeal is denied as it was filed untimely. LAR Misc.

107.2(a). The government’s motion to expedite and to

affirm summarily are denied as moot.

By the Court,

/s/ M.A. Greenberg

M.A. GREENBERG

CIRCUIT JUDGE

Dated March 26, 1997

10a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 94-3613

UNITED STATES OF AMERICA

vs.

RICHARD A. COLE, ET AL.,

Appellant

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Crim. No. 91-00028)

SUR PETITION FOR REHEARING

BEFORE: SLOVITER, Chief Judge, and BECKER,

STAPLETON, MANSMANN, GREENBERG,

SCIRICA, COWEN, NYGAARD, ALITO,

ROTH, LEWIS, and MCKEE, Circuit Judges

The petition for rehearing filed by the appellant,

Richard A. Cole, in the above captioned matter having

been submitted to the judges who participated in the

decision of this court and to all the other available circuit

judges of the court in regular active service, and no judge

who concurred in the decision having asked for a rehear-

ing, and a majority of the circuit judges of the circuit in

regular active service not having voted for rehearing by

the court en banc, the petition for rehearing .is denied.

BY THE COURT:

/s/ M.A. Greenberg

M.A. GREENBERG

CIRCUIT JUDGE

Dated May 6, 1997

lla

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-4058

IN RE: RICHARD A. COLE,

Petitioner

On Petition for a Writ of Mandamus

Related to W.D.Pa.Crim. No.91-cr-00028E

and C.A.No.94-3613)

April 27, 2000

Before: SLOVITER, MANSMANN and GREENBERG,

Circuit Judges

(Filed May 9, 2000)

JUDGMENT

This cause came to be heard on a petition for a writ of

mandamus and was submitted for decision under Rule

21, Fed.R.App.Pro. On consideration whereof, it is now

hereby ORDERED AND ADJUDGED by this Court that

the petition for a writ of mandamus is denied. All of the

above in accordance with the opinion of this Court.

ATTEST:

/s/ Marcia M. Waldron

Marcia M. Waldron

Acting Clerk

DATED: May 9, 2000

12a

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE THIRD GIRCUIT

C.A. No. 99-4058

IN RE: RICHARD A. COLE,

Petitioner

SUR PETITION FOR REHEARING

Present: BECKER, Chief Judge, SLOVITER,

MANSMANN, GREENBERG, SIRICA,

NYGAARD, ALITO, ROTH, McKEE,

RENDELL, BARRY, and FUENTES, Circuit

Judges

The petition for rehearing filed by

Petitioner Richard A. Cole

in the above-entitled case having been submitted to the

judges who participated in the decision of this court and

to all the other available circuit judges of the circuit in

regular active service; and no judge who concurred in the

decision having asked for a rehearing, and a majority of

the circuit judges of the circuit in regular active service

not having voted for rehearing by the court en banc, the

petition for rehearing is denied.

By the Court,

/s/ Sloviter

Sloviter

CIRCUIT JUDGE

Dated June 1, 2000

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APPENDIX H

Title 28. Section 2255. Federal custody; remedies on

motion attacking sentence.

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to be

released upon the ground that the sentence was imposed

in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to

impose such sentence, or that the sentence was in excess

of the maximum authorized by law, or is otherwise sub-

ject to collateral attack, may move the court which

imposed the sentence to vacate, set aside or correct the

sentence.

A motion for such relief may be made at any time.

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 jurisdic-

tion, 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 constitu-

tional 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 sen-

tence as may appear appropriate.

l4a

A court may entertain and determine such motion

without requiring the production of the prisoner at the

hearing.

The sentencing court shall not be required to enter-

tain a second or successive motion for similar relief on

behalf of the same prisoner.

An appeal may be taken to the court of appeals from

the order entered on the motion as from a final judgment

on application for a writ of habeas corpus.

An application for a writ of habeus corpus in behalf

of a prisoner who is authorized to apply for relief by

motion pursuant to this section, shall not be entertained if

it appears that the applicant has failed to apply for relief,

by motion, to the court which sentenced him, or that such

court has denied him relief, unless it also appears that the

remedy by motion is inadequate or ineffective to test the

legality of his detention.

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APPENDIX I

MISCELLANEOUS LOCAL APPELLATE RULES FOR

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

LAR MISC. 107.0 SANCTIONS

107.2 Dismissal for Failure to Prosecute.

(a)

(b)

When an appellant fails to comply with the Fed-

eral Rules of Appellate Procedure or the Local

Appellate Rules of this- Court, the Clerk shall

issue written notice to counsel or to the appel-

lant who appears pro se that upon the expiration

of fourteen (14) days from the date of the notice,

the appeal may be dismissed for want of pros-

ecution unless appellant remedies the deficiency

within that time. If the deficiency is not

remedied within this period, the Clerk is autho-

rized to dismiss the appeal for want of prosecu-

tion and issue a certified copy thereof to the

Clerk of the district court as the mandate. The

appellant shall not be entitled to remedy the

deficiency after the appeal is dismissed except

by the order of the Court. A motion to set aside

such an order must be justified by the showing

of good cause and may not be filed after ten (10)

days of the date of dismissal. If the appeal is one

taken from the District Court of the Virgin

Islands, an additional ten (10) days shall be

added to the time limits specified in this para-

graph.

Nothwithstanding subsection (a), if an appellant

fails to comply with the Federal Rules of Appel-

late Procedure and the Local Appellate Rules

with respect to the timely filing of a brief and

appendix, at any time after the seventh day fol-

lowing the due date, the Clerk is authorized to

l6a

dismiss the appeal for want of timely prosecu-

tion. The procedure to be followed in requesting

an order to set aside dismissal of the appeal is

the same as that set forth in subsection (a).

17a

APPENDIX J

Proceedings includes all events.

99-4058 In Re: Richard A. Cole

12/28/99 Original Proceeding Docketed. Notice filed by

1/3/00

4/27/00

5/9/00

5/9/00

5/9/00

5/16/00

6/1/00

Richard A. Cole. USCA Receipt No. 41499 and

Receipt Date 12/28/99 (nmb)

APPEARANCE from Attorney Bonnie R.

Schlueter on behalf of Respondent, USA,

filed. (nmb)

Submitted on PETITION FOR WRIT OF

MANDAMUS. Coram: Sloviter, Mansmann

and Greenberg, Circuit Judges. (nmb)

NOT-FOR-PUBLICATION PER CURIAM

OPINION (Sloviter, Mansmann and Green-

berg, Circuit Judges), filed. Total pages: 4.

BPS-12 (nmb)

JUDGMENT, Denied, filed. (nmb)

Certified copy of Judgment sent to Clerk of

District Court. (nmb)

PETITION by Petitioner for rehearing en

banc, filed. Certificate of service dated

5/15/00. (nmb)

ORDER (Becker, Chief Judge, Sloviter,

Authoring Judge, Mansmann, Greenberg,

Scirica, Nygaard, Alito, Roth, McKee, Rendell,

Barry and Fuentes, Circuit Judges) denying

petition for en banc rehearing by Petitioner

Richard A. Cole, filed. (nmb)

18a

APPENDIX K

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RICHARD A. COLE, MANDAMUS ACTION

)

M.D., ) Civil Action No. 98-3612

a ) Based on Docket No.

Appellant/Petitioner 94.3613 from Crim. No.

vs. ) 91-28 Erie

UNITED STATES OF ) AFFIDAVIT OF SYLVIA

AMERICA, COLE

Appellee/Respondent _)

I, Sylvia Cole, solemnly swear that I am a resident of

the Commonwealth of Massachusetts, over the age of

eighteen years, have personal knowledge of the facts the

facts stated herein, and can testify competently under

oath in court to their truth if necessary. I swear under

oath that the following facts are true:

1...I served as the mailing agent for my brother-in-

law, Richard A. Cole, M.D., during the period of April 20,

1993, to October 5, 1995, while Doctor Cole was incarcer-

ated at Federal Prison Camp, Maxwell Air Force Base,

Montgomery, AL. I did so because, while incarcerated,

Doctor Cole did not have the necessary funds to make

copies, or afford postage to be able to communicate with

the Courts of the United States.

2... Thus Doctor Cole would send me material from

Maxwell to be copied with instructions as to where, and

how to send it.

3... On or about November 22, 1994, I received a

packet of material from Doctor Cole containing, but not

ieee ateliaaees

19a

limited to, an appellant’s brief for his appeal in the

United States Court of Appeals for the Third Circuit,

Docket No. 94-3613, a motion for an expedited appeal,

and a motion for release to his own recognizance. I sent

all this material plus my declaration: proof of service by

mail to the Clerk of Court, United States Court of

Appeals for the Third Circuit, Philadelphia, PA on

Wednesday, November 23, 1994, via Federal Express for

arrival on Friday, November 25, 1994, since Thursday was

Thanksgiving Day. I called Federal Express on Friday,

and they assured me that the package was delivered. I

have attached a copy of the Federal Express receipt with

tracking number of 2318346074. This was billed to my

Federal Express Account No. 173808992 which in turn

was billed to my Discover Card No. 6011 0013 3151 6320

expiration 04/99.

4...In early January 1995, Doctor Cole called me to

tell me that his appeal, Docket No. 94-3613, had been

dismissed on December 30, 1994, because of “failure to

timely prosecute”, and that none of the material I sent

had been received. I called the Clerk’s Office, and the

spokeswoman said that it may have been “the one that

was dismissed by accident”. I was told that Doctor Cole

could simply file a motion to have the dismissal set aside

for good cause. I thereupon copied all the material sent

earlier. Doctor Cole sent me the motion to set aside this

dismissal, and I sent this along with the appellant’s brief,

- motion for an expedited appeal, motion for an expedited

appeal, and my declaration: proof of service by mail to

the Clerk of Court, U.S. Court of Appeals for the Third

Circuit in Philadelphia, PA, via Federal Express on Fri-

day, January 6, 1995, for delivery on Monday, January 9,

20a

1995. Attached is the Federal Express Receipt with track-

ing number 2318346332 which was likewise billed to my

account listed above and then billed to my Discover Card

account.

5...I called the Clerk’s Office on Monday, January 9,

1995, to see if the material had been delivered, and was

assured by the spokeswoman that all was in order.

Despite the fact that I sent a request for a date stamped

copy of the cover sheet of each of the documents when I

sent the material, I never received any date stamped

copies. I have attached the Federal Express receipt and

tracking number.

I swear under oath and under the penalties of perjury

that the foregoing is true and correct.

Dated June 29, 1999 /s/ Sylvia Cole

Sylvia Cole

Commonwealth of June 29, 1999

Massachusetts SS.

County of Essex

Then personally appeared Sylvia Cole, the above

named affiant, who known to me, signed or acknowl-

edged the foregoing affidavit as her free act and deed,

before me.

/s/ John F. Moak

John F. Moak

Notary Public

My Commission Expires

October 12, 2001

2la

APPENDIX L

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RICHARD A. COLE, ) MANDAMUS ACTION

M.D., ) Civil Aciton No. 98-3612

en ) Based on Docket No.

Appeliant/Petitioner ) 94-3613 from Crim. No.

vs. ) 91-28 Erie

UNITED STATES OF ) AFFIDAVIT OF STEVEN

AMERICA, ‘ P. COLE

Appellee/Respondent )

I, Steven P. Cole, solemnly swear that I am a resident

of the Commonwealth of Massachusetts residing at 8

Hallisey Drive, Newburyport, Massachusetts 01950, over

the age of eighteen years, have personal knowledge of the

facts the facts stated herein, and can testify competently

under oath in court to their truth if necessary. I swear

under oath that the following facts are true:

1 ...I served as the mailing agent for my brother,

Richard A. Cole, M.D., during the period of April 20,

1993, to October 5, 1995, while Doctor Cole was incarcer-

ated at Federal Prison Camp, Maxwell Air Force Base,

Montgomery, AL. I did so because, while incarcerated,

Doctor Cole did not have the necessary funds to make

copies, or afford postage to be able to communicate with

the Courts of the United States.

2... Thus Doctor Cole would send me material from

Maxwell addressed to Mr. & Mrs. Steven P. Cole, 8 Hal-

lisey Drive, Newburyport, MA 01950 to be copied with

instructions as to where, and how to send it.

22a

3... 1 sent many packages via Federal Express on

behalf of Richard A. Cole, MD. Each of these was billed to

the Federal Express account of Steven P. Cole, 8 Hallisey

Drive, Newburyport, MA 01950, account no. 173808992

which in turn was billed to the Discover Card of Steven P.

Cole, account no. 6011 0013 3151 6320 expiration 04/99. I

personally reviewed the Discover Account monthly state-

ments to make sure each Federal Express package sent for

delivery had been billed and thereafter was paid through

this Discover Card account. All Federal-Express packages

sent for Richard A. Cole, MD were billed as above; there

were no exceptions.

I swear under oath and under the penalties of perjury

that the foregoing is true and correct.

Dated July 11, 1999

/s/ Steven P. Cole

Steven P. Cole

Commonwealth of July 11, 1999

Massachusetts SS.

County of Essex

Then personally appeared Steven P. Cole, the above

named affiant, who known to me, signed or acknowl-

edged the foregoing affidavit as his free act and deed,

before me.

/s/ John J. Quinn, Jr.

John J. Quinn, Jr.

Notary Public

My Commission Expires

July 5, 2000

sa ncemaasiatiaas aia iniiieiiiidiaiiieiaiaaidiiiaiaa ial

23a

APPENDIX M

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNS¥LVANIA

Richard A. Cole, MD,

Plaintiff,

Vs.

Pennsylvania Blue

Shield, Hammermill

Paper Co., Lakeview

Forge, Warren State

Hospital, and employee

benefit programs to be

identified and named

later,

C.A. No. 98-92 Erie

i

Defendants

SUBPOENA TO PRODUCE DOCUMENTS OR

THINGS FOR DISCOVERY PURSUANT TO

FEDERAL RULE OF CIVIL PROCEDURE 45

To: Lance McGlothin, Records Custodian

Federal Express Legal Dept.

1980 Nonconnah Blvd.

Memphis, TN 38132

Within twenty (20) days after the service of this sub-

poena, you are ordered by the court to produce the

following documents or things: proof of service of the

following two packages allegedly billed to account no.

173808992, Steven P. Cole, 8 Hallisey Drive, New-

buryport, MA 01950, airbill no. 2318346074 sent on or

about November 23, 1994 to U.S. Court of Appeals,

Philadephia, PA and airbill no. 2318346332 billed to the

Same account and sent to the same place on or about

January 6, 1995. Copies of these two airbills are

24a

attached. Kindly confirm that you will research both the

airbill number and dates of shipment from November

15, 1994 through January 15, 1995. Please provide a copy

of the “Customer Detail Screen” for this account.

Please send to Richard A. Cole, 14 Charles Street,

Newburyport, MA 01950 within twenty (20) days of ser-

vice of this subpoena.

You may deliver or mail legible copies of the docu-

ments or produce things requested by this subpoena,

together with the certificate of compliance, to the party

making this request at the address listed above. You have

the right to seek in advance the reasonable cost of prepar-

ing the copies or producing the things sought.

If you fail to produce the documents or things

required by this subpoena within twenty (20) days after

its service, the party serving this subpoena may seek a

court order compelling you to comply with it.

This subpoena was issued at the request of the fol-

lowing person: Richard A. Cole, 14 Charles Street, New-

buryport, MA 01950, Tel.978.462.8470, Plaintiff pro se.

- (c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the issu-

ance and service of a subpoena shall take reasonable

steps to avoid imposing undue burden or expense on a

person subject to that subpoena. The court on behalf of

which the subpoena was issued shall enforce this duty

and impose upon the party or attorney in breach of this

duty an appropriate sanction which may include, but is '

not limited to, lost earnings and a reasonable attorney’s

fee.

25a

(2)(A) A person commanded to produce and permit

inspection and copying of designated books, papers, duc-

uments or tangible things, or inspection of premises need

not appear in person at the place of production or inspec-

tion unless commanded to appear for a deposition, hear-

ing or trial.

(B) Subject to paragraph d(2) of this rule, a person

commanded to produce and permit inspection and copy-

ing may, within 14 days after service of the subpoena or

before the time specified for compliance if such time is

less than 14 days after service, serve upon the party or

attorney designated in the subpoena written objection to

inspection or copying of any or all of the designated

materials or of the premises. If objection is made, the

party serving the subpoena shall not be entitled to

inspect and copy the materials or inspect the premises

except pursuant to an order of the court by which the

subpoena was issued. If objection has been made, the

party serving the subpoena may, upon notice to the per-

son commanded to produce, move at any time for an

order to compel production. Such an order to compel

production shall protect any person who is not a party or

an officer of a party from significant expense resulting

from the inspection and copying commanded.

(3)(A) On timely motion, the court by which a sub-

poena was issued shall quash or modify the subpoena if it

(i) fails to allow reasonable time for compliance;

(ii) requires a person who is not a party or an officer

of a party to travel to a place more than 100 miles

from the place where that person resides, is

employed or regularly transacts business in person,

except that, subject to the provisions of clause

26a

(c)(3)(B)(iii) of this rule, such a person may in order

to attend trial be commanded to travel from any such

place within the state in which the trial is held, or

(iii) requires disclosure of privileged or other pro-

tected matter and no exception or waiver applies, or

(iv) subjects a person to an undue burden.

(B) If a subpoena

(i) requires disclosure of a trade secret or other

confidential research, development, or commercial

information, or

(ii) requires disclosure of an unretained expert's

opinion or information not describing specific events

or occurrences in dispute and resulting from the

expert’s study made not at the request of any party,

or

(iii) requires a person who is not a party or an

officer of a party to incur substantial expense to

travel more than 100 miles to attend trial,

the court may, to protect a person subject to or affected by

the subpoena, quash or modify the subpoena or, if the

party in whose behalf the subpoena is issued shows a

substantial need for the testimony or material that cannot

be otherwise met without undue hardship and assures

that the person to whom the subpoena is addressed will

be reasonably compensated, the court may order appear-

ance or production only upon specified conditions.

(d) Duties in Responding to Subpoena

(1) A person responding to a subpoena to produce

documents shall produce them as they are kept

in the usual course of business or shall organize

and label them to correspond with the categories

in the demand.

27a

(2) When information subject to a subpoena is with-

held on a claim that is privileged or subject to

protection as trial preparation materials, the

claim shall be made expressly and shall be sup-

ported by a description of the nature of the

documents, communications, or things not pro-

duced that is sufficient to enable the demanding

party to contest the claim.

By the Court:

/s/ James A. Drash

James A. Drash

Clerk, Civil Division

Date: July 16, 1999

Seal of the Court

28a

APPENDIX N

Federal Express Corporation

1980 Nonconnah Boulevard

Memphis, TN 3812

U.S. Mail: PO Box 727 ‘

Memphis, TN 38194-1842

Telephone 901-395-3382

FexEx

Federal Express

VIA OVERNIGHT LETTER

July 28, 1999

Mr. Richard Cole

14 Charles Street

Newburyport, MA 01950

RE: Subpoena Response - #98 92 Erie - FEC File #

16892

Dear Mr. Cole:

Our research department found no documents of deliv-

eries to the address listed on the above referenced sub-

poena during the time period of 11/15/94 thru 01/15/95.

Sincerely,

FEDERAL EXPRESS CORPORATION

/s/ Lance McGlothin

Lance McGlothin

Records Custodian

901-395-3320

Fax # 901-395-5861