Petition for Writ of Certiorari — Smith v. Supreme Court of the United States

Supremé Court, U.S.

{y FILED

98100 9.NOV 101998

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

DAVID L. SMITH,

Petitioner,

Ve

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY - PETITIONER

QUESTIONS PRESENTED FOR REVIEW

Whether Mr. Smith was “in custody”

for purposes of filing his petition for a

writ of habeas corpus pursuant to 28

U.S.C. § 2241, and motion to vacate, set

aside or correct sentence pursuant to 28

U.S.C. § 2255 attacking on Fifth

Amendment due process grounds his

disbarment from the practice of law

before the Supreme Court of the United

States.

Whether by issuing his (March rb FF

1998) order dismissing Mr. Smith’s

petition for a writ of habeas corpus

pursuant to 28 U.S.C. §§ 2241, and motion

to vacate, set aside or correct sentence

pursuant to 28 U.S.C. § 2255 without

granting a hearing or addressiag the

issues raised and argued by him therein,

Judge Daniel deprived him of his liberty

and property interests in his good name,

reputation, honor and integrity, and in

his right to Practice law and make a

living, in violation of his Fifth

Amendment right to due process of law,

including his due process right to a fair

and impartial decision-maker.

Whether Judge Daniel also deprived

Mr. Smith of his First Amendment right to

access to the courts to petition the

government for a redress of grievances.

Whether by issuing its (June 19,

1998) order affirming Judge Daniel’s

dismissal of Mr. Smith’s petition for a

writ of habeas corpus pursuant to 28

U.S.C. § 2241, and motion to vacate, set

aside or correct sentence pursuant to 28

U.S.C. § 2255 without addressing the

issues raised and argued by him in his

verified response to order to show cause,

and motion for issuance of certificate of

appealability, the Tenth Circuit

committed a blatant and egregious

violation of his right to meaningful

appellate review under 28 U.S.C. § 2253.

Whether the United States Court of

Appeals for the Tenth Circuit has entered

a decision in conflict with the decision

of another United States Court of Appeals

on the same important matter; has so far

departed from the accepted and usual

course of judicial proceedings, or

sanctioned such a departure by a lower

court, as to call for an exercise of this

Court’s supervisory power; and has

decided an important question of federal

law that has not been, but should be,

settled by this Court, or has decided an

important federal question in a way that

conflicts with relevant decisions of this

Court.

-ii-

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......... i

TABLE OF CONTENTS ....-eeeeeeeeeeccees iii

TABLE OF AUTHORITIES .....-e2eeeeeeeees iv

CITATIONS OF OPINIONS AND ORDERS ...... xi

JURISDICTION ....ccccccccseessccsccces xii

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE ....... xiii

STATEMENT OF THE CASE .....eeeeeseeeereces 1

ARGUMENT ...ccccccceccccsccscvcsssccscens 7

CONCLUSION ...cccccccvccescsssecsecesccs 45

APPENDIX ....ccccccccveseseccese Attached

TABLE OF AUTHORITIES

CASES

Arnett v. Kennedy, 416 U.S. 134,

94 S.Ct. 1633, 40 L.Ed.2d 15

(1974) cncccccacvcrscsessessseceseessees 11

Bishop v. Wood, 426 U.S. 341,

96 S.Ct. 2074, 48 L.Ed.2d 684

L29TE) cocevetaewecectsvegeunesvecedosen 12

Board of Regents v. Roth, 408 U.S.

564, 96 S.Ct. 2701, 33 L.Ed.2d 548

ERSTE? oc kc eee eee heck weeks elke haeekes 11

Braley v. Campbell, 832 F.2d 1504

Se Cae ee a ek re ee eee ea 12

Brewen v. United States, 375 F.2d

See fe Ee Te oe ha ee eee eek Rea 14

Burkett v. Chandler, 505 F.2d 217

(10° Cir.), cert. denied, 423 U.S.

876, 96 S.Ct. 149, 46 L.Ed.2d 110

eh gs > Beep py Bae ge prcmtert Spm, by teks Se nae ye Re 12

Calif Lo n 7-

Trucking Unltd., 404 U.S. 508,

92 S.Ct. 609, 30 L.Ed.2d 642

CE oe oe a ae ee a ae ee a eee 13

Carafas v. LaVallee, 391 U.S. 234,

88 S.Ct. 1556, 20 L.Ed.2d 554

C29GS) wccccccesceerbsteevecdecssrceseees 8

Cleveland Board of Education v.

Loudermill, 470 U.S. 494, 105 S.ct.

1487, 84 L.Ed.2d 494 (1985) ........... 12

, 369 U.S.

438, 82 S.Ct. 917, 8 L.Ed.2da 21

SORRY. 6 Ck KKCIGUSEDSGAES bd one 14

V

Ltd., 843 F.2d 145 (3"° Cir. 1988)..... 14

Crumpacker v. Indiana Supreme Court

ission, 470 U.S.

OOVE NAMORE 5 £40 04s RES heen Cok 13

V j ’

141 F.3d 224 (5™ Cir. 1998)........... 12

Authority, 999 F.2d 138

en See: AMT rec 8

396 F.2d 422 (10 Cis. 3999)...2...... 12

Evans v. Moseley, 455 F.2d 1084

GRR WES. RUPEE b 5 055 0h 5k ee ee 13

Evitts v. Lucey, 469 U.S. 387,

105 S.Ct. 830, 83 L.Ed.2da 821

Fi eM EE EER TRE eer T et Tae hes 8

Goldberg v. Kelly, 397 U.S. 254,

90 S.Ct. 1011, 25 L.Ed.24a 287

caPEOS 9 be 06 0G 4 04560 ds caw ke 11

Harbolt v. Alldredge, 464 F.2d 1243

(10° Cir.), cert. denied, 409 U.S.

1025, 93 S.Ct. 473, 34 L.Ed.2d 319

tC > | ae mene ae pe Beaotiner ag oh ir OFS SE ie Sa et eg

Hensley v. Municipal Court, 411 U.S.

345, 93 S.Ct. 1571, 36 L.Ed.2d 294

CAO7S) ccc neve esessveensesscesenessese

Hohn v. United States, U.S.

, 118 S.Ct. 1969, L.Ed.2d

(1998) wee oodecesecroseeeeornsees

Honda Motor Co., Ltd. v. Oberg,

Si2 0.8. 228. 14234 B.6e« Bea.

129 L.Ed.2d 336 (1994) ........0e0. 12,

In re Ruffalo, 390 U.S. 544,

88 S.Ct. 1222, 20 L.Ed.2d 117

(19GB) wceccccccccscesevseesesecscccacer

Johnson v. Board of County

Commissioners, 85 F.3d 489

[a Cie. SOUGs ie eee ens 23.

Jones v. Cunningham, 371 U.S.

236, 83 S.Ct. 373, 9 L.Ed.2d 285

(19GS) wccrcnsvescdcccassseensevesecesene

Larche v. Simons, 53 F.3d 1068

Gre I a ee Se

Liteky v. United States, 510 U.S.

540, 114 S.Ct. 1147, 127 L.Bd.2d

474 (1994) wc ccccesesvescesccesessscece

Logan v. Zimmerman Brush Co.,

455 U.8. 422, 102 8.Ct. 1148,

Th Ma BO: ARS hoe OC o Ss ee Ck wee 12

Maleng v. Cook, 490 U.S. 488,

109 S.Ct. 1923, 104 L.Ed.2d 540

Cee) SU ae oes wiv week eas 9

Mathews v. Eldridge, 424 U.S. 319,

96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ....11

Matter of McLinn, 739 F.2d 1395

Ce a, Pe ha er be pe er ee 14

» 758 F.2d 1362

Mayberry v. Pennsylvania, 400 U.S.

455, 91 S.Ct. 499, 27 L.Ed.2d 532

GaP te Wee KEN OBER G 6 HORE CORK ceeb ek ents 11

Morrissey v. Brewer, 408 U.S. 471,

92 S.Ct. 2593, 33 L.Ed.2da 484

SWERE b.0 OE RE CEES AERA ON RSE RAY eee ee was 11

NAACP v. Button, 371 U.S. 415,

83 S.Ct. 328, 9 L.Ed.2d 405

CREE WAR aaa WKS EUW N SEES Rohs ed vhs tsiaic 43

North Carolina, 15 F.3d 319

(4° Cir.), cert. denied, 513

aa OO CRE iis Kas ah ook wo cok bb wees a

Offut v. United States, 348 U.S.

42, 78 B.08< -33. 38 3.x 33

‘fh: ©} BRP at pea emer ie ata Seta WG a wake 10

Olson v. Hart, 965 F.2d 940

C30 Chee TOO i cia Ke pelea eek keds 8

Oyler v. Allenbrand, 23 F.3d 292

(10™ Cis.), gest. denied, $13

Ris ORR PIE es ee rca Cs eee ee eh ee 8% 8

Paul v. Davis, 424 U.S. 693,

96 S.Ct. 1155, 47 L.Ed.2d 405

CRT kkk eos bok PEELS ge a ea 12

Perry v. Sindermann, 408 U.S. 593,

92 S.Ct. 2694, 33 L.Ed.2d 570

(1972) wccsecce Treerereer ye eee eee ee 11

Razatos v. Colorado Supreme Court,

746 F.2d 1429 (10™ Cir.), cert.

Genied, 471 U.S. 1026 (2965) ..ccccvees 12

Salve Regina College v. Russell,

499 0.8. 234, 143 8.66. 3327;

ee Te a ee ae eee ere 14

Santos v. Franklin, 493 F.Supp.

BAF 4 Oi re ss hb Ss ew os so ee 8

Silver v. Cormier, 529 F.2d 161

Re ea i a a 13

Stei - Jo] § Higa:

of California, 135 F.3d 684

PRO ke. BOs ae as hk Peay eee |

-viii-

Rae Wis ee ROOEE wh bbl neh oh ec: 13

ee 5

7.46 446 (30™ Civ. 32998) 556... >.. a2, 36

United States v. Jose, 519 U.S. 54,

117 S.Ct. 463, 136 L.Ed.2d 364

C2006). oc 0s ERIE G7 PR ee De rd RS ae ap 14

Waldon v. Cowley, 880 F.2d 291

ee eS ee ee eh oes 9

Wisconsin v. Constantineau, 400 U.S.

433, 91 S.Ct. 507, 27 L.Ed.2d 515

GURTMT RAAB Nb pee hows Oka x hake obs ooes 11

Wolff v. McDonnell, 418 U.S. 539,

94 S.Ct. 2963, 41 L.Ed.2d 935

Cee es vwioe seria: anak a ake oS wee wick |S 11

rel,

Vuitton, 481 U.S. 787, 107 s.ct.

2124, 95 L.Ed.2d 740 (1987) ......... 3, 9

Zal_v. Steppe, 968 F.2d 924

(9°" Cir.), cert. denied, 506 U.s.

rinse odd MELE CTE ORR TCT T Te ee een 8

-ix-

Amend. I,

Amend. V,

28 U.S.C.

28 waomales

28 U.S.C.

28 U.S.C.

C.R.C.P.

RR... Reese B.S Gl Ge (i) ase we cade dus

OTHER AUTHORITIES

U.S. ComBtd. .ccccccscccceces

U.8. Consts. wcsecs ae 9, 20,

BS 2106 .ccccccssccssecssseses

BS 2241 ccccsavves 4, 6, 7, 3,

13, 14,

G 2283S ..sccvssccee cncone aay

S 2255 .cscscs 4, 5, 6, 7, 9,

14, 15,

fe Serer eee ere Cee eee 2,

BELLI IG) cacccesevesasensseese

CITATIONS OF OPINIONS AND ORDERS

David L. Smit) 5 =

United States of America, Case No. 98-

1108 (10° Cir.) (unpublished order filed

June 19, 1998).

United States, Civil Action No. 98-D-539

(D. Colo.) (unpublished order of

dismissal filed March 11, 1998).

The People of the State of Colorado v.

David Lee Smith, Case No. GC 95B-124

(Colo.) (unpublished findings of fact and

recommendations of the hearing board

filed March 6, 1997).

bevid %. Setcs 5 : et)

j j , Case No. 98-

1108 (10 Cir.) (unpublished order filed

August 14, 1998).

JURISDICTION

The orders sought to be reviewed

were entered on March 11, 1998 and June

19, 1998. Rehearing of the Tenth

Circuit’s (June 19, 1998) order was

summarily denied by order dated August

14, 1998.

The statutory provision believed to

confer jurisdiction on this Court to

review on writ of certiorari the

foregoing orders is 28 U.S.C. § 1254.

-xii-

- = eaonculll

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE

Amend. I, U.S. Consti.

Amend. V, U.S. Consti.

28 U.S.C. § 2241

28 U.S.C. § 2253

28 U.S.C. § 2255

See the Appendix hereto for the full

text of the pertinent portions of the

constitutional provisions and statutes

involved in the case.

-xiii-

Pro se attorney-petitioner David L.

Smith (“Mr. Smith”) hereby files his

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Tenth Circuit:

I. STATEMENT OF THE CASE

Mr. Smith was an attorney entitled

to practice law before the Supreme Court

of the United States until November 27,

1995, when the Supreme Court issued its

order disbarring him from the practice of

law before the Supreme Court. This order

of disbarment was issued as the direct

and proximate result of the motion filed

by the Regional Transportation District

(“RTD”)* and its Deputy General Counsel,

Rolf G. Asphaug (“Mr. Asphaug”), on or

about July 31, 1995, requesting the

Supreme Court to issue an order to show

cause why Mr. Smith and his client, James

Edward Qualls (“Mr. Qualls”), should not

be held in contempt for failing to comply

with the Supreme Court’s (March 6, 1995)

order imposing sanctions of $500.00

against them for filing an alleged (by

the RTD and Mr. Asphaug) “frivolous”

petition for a writ of certiorari.’

‘The RTD is a political subdivision

of the State of Colorado.

*Mr. Smith and Mr. Qualls were

deprived of their Fifth Amendment due

process right to fair notice of the legal

and factual basis (if any) for the

allegation that they had filed a

On May 16, 1997, the Supreme Court

of the State of Colorado issued its order

affirming the findings and

recommendations issued by a three-member

hearing board of the grievance committee

of the Colorado Supreme Court on March 6,

1997. In its findings and

recommendations, the hearing board

declined to disbar or otherwise

reciprocally discipline Mr. Smith based

on the (November 27, 1995) order of

disbarment issued by the Supreme Court of

the United States.?

“frivolous” petition for a writ of

certiorari and of the Opportunity to file

a brief or otherwise be heard before

entry of a final judgment imposing

Sanctions of $500.00 against them.

‘The hearing board specifically

found and concluded that “the

respondent’ s inability to be heard in a

meaningful time and manner as required by

the United States Supreme Court’s Rule 8

amounts to a denial of due process,” that

“the proof upon which the disbarment was

founded was so infirm that the Colorado

Supreme Court cannot, consistent with its

duty, accept as final the United States

Supreme Court’s determination,” that “the

imposition by the Colorado Supreme Court

of the same discipline imposed by the

United States Supreme Court would result

in grave injustice to the respondent,”

2

The beneficiary of a court order is

prohibited from instituting contempt

proceedings against a person who is in

alleged violation of that court order, as

such action constitutes a violation of

that person’s due process right to an

independent prosecutor. See Young v.

United States ex rel. Vuitton, 481 U.S.

787, 107 8.Ct. 2124, 95 L.Ed.2d 740

(1987). In the present case, the RTD and

Mr. Asphaug were the beneficiaries of the

order issued by the Supreme Court of the

United States on March 6, 1995 imposing

sanctions of $500.00 against Mr. Smith

and Mr. Qualls for filing an alleged (by

the RTD and Mr. Asphaug) “frivolous”

petition for a writ of certiorari. The

RTD and Mr. Asphaug therefore

intentionally, willfully and maliciously

violated Mr. Smith’s and Mr. Qualls’ due

process right to an independent

prosecutor by requesting the Supreme

Court of the United States to issue an

order to show cause why they should not

that “the exceptions in Rule 241.17 (d)

have been satisfied so as to preclude a

recommendation that the Colorado Supreme

Court impose the same discipline as that

imposed by the United States Supreme

Court,” and that “the respondent’s

actions did not constitute a violation of

any of the Colorado Rules of Professional

Conduct set forth in the complaint

(R.P.C. Rules 8.4(a), 8.4(d) or 8.4(h)).”

3

be held in contempt for failing to comply

with the Supreme Court’s (March 6, 1995)

order imposing sanctions of $500.00

against them.

As the direct and proximate result

of the RTD’s and mr. Asphaug’ s

unconstitutional conduct, Mr. Smith was

disbarred by the Supreme Court of the

United States. mr. Smith was also

required to defend himself in the

reciprocal discipline proceedings

instituted against him by the

disciplinary Prosecutor of the grievance

committee of the Supreme Court of the

State of Colorado before being acquitted

in those proceedings.

On March 5, 1998, Mr. Smith filed in

the United States District Court for the

District of Colorado his petition for a

writ of habeas corpus pursuant to 28

U.S.C. § 2241, and motion to vacate, set

aside or correct sentence pursuant to 28

U.S.C. § 2255.‘ Simultaneous with the

“In his petition and motion, Mr.

Smith alleged that at the time of the

filing of his petition for a writ of

habeas corpus pursuant to 28 U.S.c. §

2241, he was “in custody” under or by

color of the authority of the United

States, for an act done or omitted in

pursuance of an order, process, judgment

Or decree of a court Or judge of the

4

filing of his petition and motion, Mr.

Smith filed a copy of the transcript of

the trial testimony given by Denver

lawyer M. Julia Hook on November 25 and

26, 1996, and a copy of the transcript of

the trial testimony given by Law

Professor Bennett J. Wasserman on

November 26, 1996.° When considered in

conjunction with the other evidentiary

materials submitted to the district

United States, and in violation of the

Constitution or laws of the United

States. Mr. Smith also alleged that at

the time of the filing of his motion to

vacate, set aside or correct sentence

pursuant to 28 U.S.C. § 2255, he was “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 subject to collateral

attack.

°Ms. Hook’s and Mr. Wasserman’s

trial testimony was given in People v.

Smith, Case No. GC 95B-124, which was

pending before a three-member hearing

board of the grievance committee of the

Supreme Court of the State of Colorado.

5

court, these transcripts establish the

factual basis for Mr. Smith’s petition

for a writ of habeas corpus pursuant to

28 U.S.C. § 2241, and motion to vacate,

set aside or correct sentence pursuant to

28 U.S.C. § 2255.

On March 11, 1998, United States

District Judge Wiley Y. Daniel issued his

order dismissing Mr. Smith’s petition for

a writ of habeas corpus pursuant to 28

U.S.C. § 2241, and motion to vacate, set

aside or correct sentence pursuant to 28

U.S.C. § 2255 without granting a hearing

or addressing the issues raised and

argued by him therein.

On March 25, 1998, mr. Smith filed

his notice of appeal of Judge Daniel’s

(March 12, 1998) order of dismissal.

On April 1, 1998, the United States

Court of Appeals for the Tenth Circuit

issued its order requiring Mr. Smith to

“show cause within 14 days of the date of

this order as to why the district court

order dismissing his petition for lack of

subject matter jurisdiction should not be

summarily affirmed.”

On June 19, 1998, the Tenth Circuit

issued its order affirming Judge Daniel’s

dismissal of Mr. Smith’s petition for a

writ of habeas corpus pursuant to 28

U.S.C. § 2241, and motion to vacate, set

6

aside or correct sentence pursuant to 28

U.S.C. § 2255 without granting a hearing

or addressing the issues raised and

argued by him in his verified response to

order to show cause, and motion for

issuance of certificate of appealability

(filed on April 15, 1998).

On August 14, 1998, the Tenth

Circuit issued its order summarily

denying Mr. Smith’s petition for

rehearing and suggestion for rehearing en

banc (filed on July 6, 1998).

II. ARGUMENT

In his (March 11, 1998) order of

dismissal, Judge Daniel found and

concluded that Mr. Smith wags not “in

custody” for purposes of filing his

petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241, and motion

to vacate, set aside or correct sentence

pursuant to 28 U.S.C. § 2255. However,

“in custody” means that the petitioner or

movant is subject to “restraints not

shared by the public generally.” See

Jones v. Cunningham, 371 U.S. 236, 240,

83 S.Ct. 373, 9 L.Ed.2d 285 (1963); gee

also Hensley v. Municipal Court, 411 U.S.

345, 351, 93 8.Ct. 1871, 36 L.Bad.2d 294

(1973) (continuing government supervision

is sufficient for this purpose); Olson v.

Hart, 965 F.2d 940, 942-943 (10™ Cir.

1992) (probation is sufficient); Zal v.

7

Steppe, 968 F.2d 924, 926 (9 cir.),

cert. denied, 506 U.S. 1021 (1992) (case

was not moot since attorney faced

possible disciplinary action) ; DePompei

j ity, 999 F.2d

138, 140 (6 Cir. 1993) (revocation of

medical license is sufficient); Nakell v.

. 25

F.3d 319, 323 (4 Cir.), cert. denied,

513 U.S. 866 (1994) (attorney released on

own recognizance following contempt

conviction was “in custody”); Oyler v.

Allenbrand, 23 F.3d 292, 294 (10° cir.),

cert. denied, 513 U.S. 908 (1994)

(possible use of conviction to enhance

future sentence was sufficient adverse

consequence); Santos v. Franklin, 493

F.Supp. 847 (D.C. Pa. 1980) (activation

of reservist from ready reserve to active

military satisfied jurisdictional

requirement of “in custody”).® In the

present case, Mr. Smith has been

‘Even adverse collateral

consequences of a conviction have been

found to satisfy the “in custody”

jurisdictional requirement. See Carafas

Vv. LaVallee, 391 U.S. 234, 238, 88 S.Ct.

1556, 20 L.Ed.2d 554 (1968); Evitts v.

Lucey, 469 U.S. 387, 391 n.4, 105 S.Ct.

830, 83 L.Ed.2d 821 (1985); Larche v.

Simons, 53 F.3d 1068 (9™ Cir. 1995)

(presumption of collateral consequences

is irrebuttable, even in misdemeanor

cases); but see Maleng v. Cook, 490 U.S.

§

disbarred by the Supreme Court of the

United States without being afforded the

evidentiary hearing required by Sup. Ct.

R. 8 or the independent prosecutor

required by Young v. United States ex

rel. Vuitton, 481 U.S. 787, 107 S.Ct.

2124, 95 L.Ed.2d 740 (1987), all in

violation of his Fifth Amendment right to

due process of law. Under these

circumstances, Mr. Smith was and is

subject to restraints not shared by the

public generally. It therefore follows

that Mr. Smith was “in custody” for

purposes of filing his petition for a

writ of habeas corpus pursuant to 28

U.S.C. § 2241, and motion to vacate, set

aside or correct sentence pursuant to 28

U.S.C. § 2255, and that Judge Daniel

committed reversible error by finding and

concluding otherwise.

By issuing his (March 11, 1998)

order dismissing Mr. Smith’s petition for

a writ of habeas corpus pursuant to 28

488, 492, 109 S.Ct. 1923, 104 L.Ed.2d 540

(1989) (per curiam) (“once the sentence

imposed for a conviction has completely

expired, the collateral consequences of

that conviction are not themselves

sufficient to render an individual ‘in

custody’ for the purposes of a habeas

attack upon it”); Waldon v. Cowley, 880

F.2d 291, 292 (10° Cir. 1989) (civil

collateral consequences not sufficient).

9

U.S.C. §§ 2241, and motion to vacate, set

aside or correct sentence pursuant to 28

U.S.C. § 2255 without granting a hearing

or addressing the issues raised and

argued by him therein, Judge Daniel

deprived him of his liberty and property

interests in his good name, reputation,

honor and integrity, and in his right to

practice law and make a living, in

violation of his Fifth Amendment right to

due process of law, including his due

process right to a fair and impartial

decision-maker.’ See Offut v. United

70n May 2, 1996, the three-judge

disciplinary panel of the United States

District Court for the District of

Colorado issued its order “strongly”

admonishing Mr. Smith for allegedly

practicing law in the District Court in

violation of its (February 10, 1995)

suspension order, and threatening to cite

him for contempt of court “if he

continues to practice law in this

District.” This order was based on a

complaint filed against Mr. Smith by

United States District Judge Wiley yY.

Daniel with the Committee on Conduct of

the United States District Court for the

District of Colorado. In his complaint,

Judge Daniel alleged that Mr. Smith

"apparently" represented his client in

the District Court “notwithstanding the

fact that he is unauthorized to practice

law before this Court.” On this basis,

10

Sratan, 348 U.8. 24, 73 8.00. 22+ 39

L.Ed. 11 (1954); In re Ruffalo, 390 U.S.

544, 88 S.Ct. 1222, 20 y.84.24 Liz

(1968) ;_Goldberg v. Kelly, 397 U.S. 254,

90 S.Ct. 1011, 25 L.Ed.2d 287 (1970);

Wisconsin v. Constantineau, 400 U.S. 433,

91 6.Ct. 807, 27 &.Bad.2d 815 (1971);

Mayberry v. Pennsylvania, 400 U.S. 455,

91 S.Ct. 499, 27 L.Ed.2d 532 (1971);

Morrissey v. Brewer, 408 U.S. 471, 92

S.Ct. 2593, 33 L.Ed.2d 484 (1972); Board

of Regents v. Roth, 408 U.S. 564, 96

S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry

v. Sindermann, 408 U.S. 593, 92 S.Ct.

2694, 33 L.Ed.2d 570 (1972); Arnett v.

Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40

L.Ed.2d 15 (1974); Wolff v. McDonnell,

418 U.S. 539, 94 S.Ct. 2963, 41 L.Bd.24

935 (1974); Mathews v. Eldridge, 424 U.S.

319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976);

Paul v. Davis, 424 U.S. 693, 96 S.Ct.

1155, 47 L.Ed.2d 405 (1976); Bishop v.

Wood, 426 U.S. 341, 96 S.Ct. 2074, 48

L.Ed.2d 684 (1976); Logan v. Zimmerman

Brush Co., 455 U.8. 422, 102 8.Ct. 1248,

71 L.Ed.2d 265 (1982); Cleveland Board of

Judge Daniel alleged that “David L. Smith

may have acted in an unprofessional

manner.” Judge Daniel could not be a

fair and impartial decision-maker in the

present case after filing his

unsubstantiated complaint against Mr.

Smith with the District Court Committee

on Conduct.

5 |

Education v. Loudermill, 470 U.S. 494,

105 S.Ct. 1487, 84 L.Ed.2d 494 (1985);

Liteky v. United States, 510 U.S. 540,

114 S.Ct. 1147, 127 L.Ed.2d 474 (1994);

Honda Motor Co... Ltd. v. Oberg, 512 U.S.

415, 114 &.Ct. 2331, 129 &.8a.24 336

(1994); Burkett v. Chandler, 505 F.2d 217

(10 Cir.), cert. denied, 423 U.S. 876,

96 S.Ct. 149, 46 L.Ed.2d 110 (1975);

, 596

Dietrich Corp. v. King Resources Co.

F.2d 422 (10° Cir. 1979); Razatos v,

Colorado Supreme Court, 746 F.2d 1429

(10™ Cir.), cert. denied, 471 U.S. 1016

(1985); Mattox v, Disciplinary Panel of

the United States District Court for the

, 758 F.2d 1362 (10°

Cir. 1985); Braley v. Campbell, 832 F.2d

1504 (10°° Cir. 1987); White v. General

Motors Corp., Inc., 908 F.2d 675 (10°

Cir. 1990); United States v. Dickstein,

971 F.2d 446 (10° Cir. 1992); Johnson v.

Board of County Commissioners, 85 F.3d

489 (10th Cir. 1996); Dailey v. Vought

Aircraft Co., 141 F.3d 224 (5™° cir. 1998)

(in order to comply with Fifth Amendment

due process of law, a court must, at

minimum, follow its own rules relating to

attorney discipline). Judge Daniel also

deprived Mr. Smith of his First Amendment

right to access to the courts to petition

the government for a redress of

grievances. See id.; see also NAACP v.

- Button, 371 U.S. 415, 83 S.Ct. 328, 9

L.Ed.2d 405 (1963) (“and under the

conditions of modern government,

12

litigation may well be the sole

practicable avenue open to a minority to

petition for redress of grievances”) ;

California Motor Transport Co. v.

Trucking Unitd., 404 U.S. 508, 92 S.Ct.

609, 30 L.Ed.2d 642 (1972); Talamini v.

Allstate Insurance Co., 470 U.S. 1067

(1985); Crumpacker v. Indiana Supreme

Court Disciplinary Commission, 470 U.S.

1074 (1985); Silver v. Cormier, 529 F.2d

161, 163 (10 Cir. 1976) (“a public

official’s threats to a citizen to

withhold monies due and owing, should

legal proceedings be instituted, burdens

or chills constitutional rights of access

to the courts”), citing Harbolt v.

Allredge, 464 F.2d 1243, 1244 (10™ Cir.),

cert. denied, 409 U.S. 1025, 93 S.Ct.

473, 34 L.Ed.2d 319 (1972) and Evans v.

Moseley, 455 F.2d 1084, 1087 (10™ Cir.

1972).

Under 28 U.S.C. § 2253, Mr. Smith

had the right to receive meaningful

appellate review of Judge Daniel’s (March

11, 1998) order dismissing his petition

for a writ of habeas corpus pursuant to

28 U.S.C. §§ 2241, and motion to vacate,

set aside or correct sentence pursuant to

28 U.S.C. § 2255. See Hohn v. United

States, U.S. » eae &.CE. 19639,

L.Ed.2d (1998); see also

Coppedge v. United States, 369 U.S. 438,

82 S.Ct. 917, 8 L.Bd.2d 21 (1962); Salve

Regina College v. Russell, 499 U.S. 231,

13

411 S.Ct. 1217, 113 L.Ed.2da 190 (1991)

(“the obligation of responsible appellate

jurisdiction implies the requisite

authority to review independently a lower

court’s determinations”); Honda Motor

Co., Ltd. v. Oberg, 512 U.S. 415, 114

S.Ct. 2331, 129 L.Ed.2d 336 (1994);

United States v. Jose, 519 U.S. 54, 117

S.Ct. 463, 136 L.Ed.2d 364 (1996)

(“finality, not ripeness, is the doctrine

governing appeals from District Court to

Circuit Court”); Brewen v. United States,

375 F.2d 285 (5 Cir. 1967); Matter of

McLinn, 739 F.2d 1395 (9 cir. 1984)

(“every party is entitled to a full,

considered, and impartial review of the

Gecision of the trial court”); Craig v.

, 843 F.2d

145 (3™° Cir. 1988);

Dickstein, 971 F.2d 446 (10 cir. 1992);

’

85 F.3d 489 (10 Cir. 1996); Steiner

; *. Jo) ; Hi : £ Calif ta.

135 F.3u *84 (10 Cir. 1997). Therefore,

by issuing its (June 19, 1998) order

affirming Judge Daniel’s dismissal of Mr.

Smith’s petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241, and

motion to vacate, set aside or correct

sentence pursuant to 28 U.S.C. § 2255

without addressing the issues raised and

argued by him in his verified response to

order to show cause, and motion for

issuance of certificate of appealability,

the Tenth Circuit committed a blatant and

14

egregious violation of his right to

meaningful appellate review under 28

U.S.C. § 2253. Sen id.

III. CONCLUSION

The United States Court of Appeals

for the Tenth Circuit has entered a

decision in conflict with the decision of

another United States Court of Appeals on

the same important matter; has so far

departed from the accepted and usual

course of judicial proceedings, or

sanctioned such a departure by a lower

court, as to call for an exercise of this

Court’s supervisory power; and has

decided an important question of federal

law that has not been, but should be,

settled by this Court, or has decided an

important federal question in a way that

conflicts with relevant decisions of this

Court. For these reasons, Mr. Smith

requests this Court to grant his Petition

for a Writ of Certiorari to the United

States Court of Appeals for the Tenth

Circuit, and such other and further

relief as may be just under the

circumstances, including an order under

28 U.S.C. § 2106 reversing and vacating

Judge Daniel’s (March 11, 1998) order

dismissing Mr. Smith’s petition for a

writ of habeas corpus pursuant to 28

U.S.C. § 2241, and motion to vacate, set

aside or correct sentence pursuant to 28

U.S.C. § 2255, and reversing and vacating

45

the Tenth Circuit’s (June 19, 1998) order

affirming Judge Daniel’s (March ll, 1998)

order.

Respectfully submitted,

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-PETITIONER

16