28 U.S. Code 2255 Appeal 5th Circuit

 

 

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5 th Circuit court of Appeals Case: 20-60293

U.S. District Court, District of Southern Mississippi  Doc Entries 195-211 

 

 

Case: 20-60293 Document: 00515401171 Page: 1 Date Filed: 04/30/2020

 

Letter to Davison,   April 30, 2020

United States Court of Appeals 

FIFTH CIRCUIT 
OFFICE OF THE CLERK LYLE W. CAYCE
 
Dear Mr. Davison,
 
We have docketed the appeal as shown above and ask you to use the case number above in future inquiries. Before this appeal can proceed you must apply for a certificate of appealability (COA) to comply with 28 U.S.C. § 2253. If you wish to proceed, address your motion for COA to this court. Also send a separate brief supporting the motion. In the brief set forth the issues, clearly give supporting arguments. Your "motion for COA" and "brief in support" together may not exceed a total of 30 pages. You must file 2 legible copies within 40 days from the date of this letter. If you do not do so we will dismiss the appeal, see 5TH CIR. R. 42. Note that 5TH CIR. R. 31.4 and the Internal Operating Procedures following rules 27 and 31 provides the general sense of the court on the disposition of a variety of matters, which includes that except in the most extraordinary circumstances, the maximum extension for filing briefs is 30 days in criminal cases and 40 days in civil cases."

 

 

Letter to Dee May 01, 2020

 

Case: 20-60293 Document: 00515402283 Page: 1 Date Filed: 04/30/2020

 

"Because you are not a licensed attorney, nor a party within the case, we cannot accept the Motion for Suspension of Rules submitted by you for Steven Davison. Accordingly, we take no action on your filing. We direct your attention to the decision of this court which held that a non-attorney cannot sign nor file court documents on behalf of another. See Weber v. Garza, 570 F.2d 511 (5th Cir. 1978)."

 

This response conflict with 28 U.S.C. 2255(e)  An application for a writ of habeas 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.

 

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

UNITED STATES OF AMERICA,                             )

                Plaintiff – Appellee                                    )
                                                                                  )         Case No. 20-60293
                                     v.                                          )         USDC No. 3:20-CV-149
                                                                                  )         USDC No. 3:17-CR-149-3
                                                                                  )
STEVEN DAVISON,                                                  )
               Defendant – Appellant                                )

 

AUTHORIZED FILING OF MOTION FOR SUSPENSION OF RULES

IN BEHALF OF STEVEN DAVISON

I, Michael J. Dee, is now authorized to file this and future documents in behalf of Mr. Davison because I started Mr. Davison in this due process.  I certify that I provide him the Documents he submitted to the court were prepared by me including the Notice of Appeal for him to sign.

I believe I have demonstrated that Davison, who is “authorized,” has “authorized” me to file this Motion for Suspension of Rules with Rule 2(b)(5) of the Rules Governing Section 2255 Proceedings for the United States District Courts.

28 U.S.C. 2255(e)  An application for a writ of habeas 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.


Dated April 27, 2020

Michael J. Dee
29 Hillcrest St.
Augusta, ME 04330
mjdeeour4th@outlook.com
207.894.0319

 

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

UNITED STATES OF AMERICA,                          )
                Plaintiff – Appellee                                 )
                                                                              )         Case No. 20-60293
                                     v.                                       )           USDC No. 3:20-CV-149
                                                                              )             USDC No. 3:17-CR-149-3
STEVEN DAVISON,                                              )
               Defendant – Appellant                            )

MOTION FOR SUSPENSION OF RULES
IN BEHALF OF STEVEN DAVISON
FED. R. APP. P.Rule 2. Suspension of Rules

To expedite the court’s decision, it is requested the court suspend any provision of these rules in this case and order proceedings as it directs based on the facts of the case.

I

The District Court’s Order of March 18th, 2020 explains the situation about the second filing by Davison and dismissing Davison’s § 2255 Motion to Vacate. (Docket entry 207)

              But “because the motion [wa]s due to be denied for other reasons,” the Court                bypassed the authorization issue and denied the [first] motion on the merits.

 

In hindsight, the Court should have denied the first motion without prejudice under Rule 2(b)(5).  But the Court was giving Davison the benefit of the doubt on the missing signature and concluded that it would not change the result because the motion lacked merit. 

Regardless, the second motion would have failed on the merits for the same reasons as the first.  See Mar. 3, 2020 Order [196].

                                                                            II
            By incarceration, Mr. Davison is being substantially deprived of his constitutional right of liberty without due process of law by the United States of America and deprived of equal protection of his constitutional right of liberty by the U.S. District Court of Southern Mississippi.
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The District Court did not address the allegation of Ground One of the § 2255 motion filed by Mr. Davison.

Ground One: Mr. Davison is in custody in violation of Amendments IV and V of the Constitution of the United States; He is being deprived of his liberty by incarceration without compelling government reasons for congress to proscribe marijuana therefore without due process of law. (Doc. Entry 201, p.3)

The District Court claims Ground One of Davison’s § 2255 Motion to Vacate is about a “[d]ue-process challenge to marijuana prosecutions.”

Due-process challenges to marijuana prosecutions “have been brought in various jurisdictions throughout the United States and have been uniformly rejected.”  United States v. Zachariah, No. 16-CR-694-XR, 2018 WL 3017362, at *1 (W.D. Tex. June 15, 2018) (collecting cases).  Had Davison’s counsel raised such a challenge here, the Court would have rejected it as frivolous. (Doc. Entry 196, p.3)

The District court substituted its own allegation of Ground One and declared it meritless. This violated Rule 5 (b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. “The answer must address the allegations in the motion.” Not only the U.S. Attorney but the court should respond to the allegations in § 2255 Motion to Vacate. The court did not.

The court believes Ground One, the allegation in the case, is about arbitrary enforcement violating Davison’s right of due process of law. This is a willful misrepresentation of Ground One  by the lower court.

Mr. Davison’s incarceration for violating the marijuana laws, is a substantial denial of his constitutional rights of liberty (as well as property, and protected privacy) without compelling
reasons for U. S. Congress to proscribe marijuana therefore without due process of law. These rights are secured by Amendments IV and V of the Constitution of the United States. Rights   
                                                                       2 of 4                                                                                                                            

secured  against deprivation by unreasonable laws that authorize the use of government police power. Due process of law requires strict scrutiny standard of review of the marijuana laws to determine if they are reasonable and necessary use of government police power. Police power is to protect the rights of others, public health and safety. Who is the victim of his crime? Criminal laws are NOT subjected to rational standard of review. Political police power is repugnant to the rule of law. Amendment IV limits police power to be reasonable not rational.

The § 2255 motions’ Ground One.” (Doc. Entry 201 p. 3).  is about the deprivation of the constitutional right of liberty by incarceration.  Davison is seeking habeas relief from physical restraint, deprivation of liberty. What are the compelling reasons to proscribe marijuana? There are none. That is why the willful misrepresentation of Ground One, not the first court to do so.

The U.S. District Court of Southern Mississippi did not respond to the allegation of Ground One in Davison’s § 2255 motion and denied Certificate of Appealability because “the applicant has failed to make a substantial showing of the denial of a constitutional right.” (Doc. Entry 204). This is a denial of justice, the guardian of liberty, the true colors of the “drug war”.

RELIEF

            The court is requested to do one of the following:

  1. This court can send § 2255 Motion to Vacate back to the District Court because Davison’s incarceration is a substantial denial of a constitutional right of liberty, freedom from physical restraint and comply with Rules 4 and 5 of the Rules Governing Section 2255 Proceedings for the United States District Courts.
  2.  The 5th Circuit Court could order the United States Attorney for Mississippi to
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respond to Ground One of Davison’s § 2255 Motion to Vacate as required by Rule 5 (b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. “The answer must address the allegations in the motion.” Ground One.

  1. The Circuit Court could declare Davison has NOT made a substantial showing of the denial of a constitutional right thus declaring liberty, freedom from physical restraint, is not a constitutional right and dismiss the Appeal.
  2. Grant relief requested in Davison’s § 2255 Motion to Vacate, that liberty still means freedom from physical restraint. (Doc. Entry 201 p. 6). 

CONCLUSION

Therefore, the justiciable controversy can be decided very quickly by this Article III  Court by granting  MOTION FOR SUSPENSION OF RULES and get on with it.

Filed in behalf of

Steven Davison
39251-479
FCI Beaumont Medium
P.O. Box 26040
Beaumont, TX  77720

Dated: April 27, 2020

 

Michael J. Dee
29 Hillcrest St.
Augusta, ME 04330
mjdeeour4th@outlook.com
207.894.0319

 

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