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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1144

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1032%3A1. Public record. Not legal advice.