No. 18-7115

Richard Clark v. D. J. Harmon, Warden

Lower Court: Fifth Circuit
Docketed: 2018-12-19
Status: Denied
Type: IFP
Response RequestedResponse WaivedRelisted (2)IFP
Tags: 28-usc-2241 28-usc-2255 appointments-clause article-iii constitutional-delegation due-process habeas-corpus habeas-corpus-2255-2241 ineffective-assistance-of-counsel judicial-conference separation-of-powers standing statutory-interpretation subject-matter-jurisdiction
Key Terms:
ERISA HabeasCorpus CriminalProcedure
Latest Conference: 2019-05-30 (distributed 2 times)
Question Presented (AI Summary)

Whether the fact that the § 2255 remedy failed to test and determine one of two Ineffective Assistance of Trial Counsel issues satisfies the phrase 'inadequate or ineffective' in 28 U.S.C. § 2255(e), providing a district court under 28 U.S.C. § 2241 the subject matter jurisdiction to test and determine the issue and preventing suspension of the writ

Question Presented (from Petition)

QUESTIONS PRESENTED y 1. This Court's Article III inferiors are in turmoil over the meaning of 28 U.S.C. § 2255(e)'s phrase "inadequate or ineffective." Congress has not defined the phrase. The Fifth Circuit held that showing the § 2255 ; Court failed to test and determine one of two Ineffective Assistance of ‘ Trial Counsel issues, even after shown Rule 60(b) of the Federal Rules of Civil Procedures failed to correct the defect in the integrity of § 2255 , proceedings, did not satisfy its judicial meaning of the phrase. Other Circuits hold’ such a defect satisfies the phrase. Does the fact the § 2255 . we remedy failed to:test-and determine the one issue satisfy the phrase pro-~ i: viding. a district court‘under .28 U.S.C. § 2241 the subject. matter jurisdict~ oy . ion to, test and detérmine the ‘issue and preventing suspension of the writ?’ . : . 2. The Office of United States Magistrate Judge is not established unless, ' ; : in the discretion of the: Judicial Conference, the Conference determines a ; number of such offices, their: judicial location, and salary. Article II, § 2, Cl. 2 provides that Congress establish by Law all offices of the United States. Currently there is more than 500 such offices across the Nation. One of those judges is involved in the district court habeas proceedings. : The Fifth Circuit held there was no legal authority requiring Congress to ; fix the number of such judges and that what the Judicial Conference has done is Constitutional. Does Congress' delegating to the Judicial Confer: ence the legislative duty to determine the number of offices, their locations, and salary for such judges, violate Article I, § 1 and Article II, § 2, Cl. 2, rendering the actions takén.-by such magistrate judge in this case : void and i Py .

Docket Entries

2019-06-03
Petition DENIED.
2019-05-15
DISTRIBUTED for Conference of 5/30/2019.
2019-05-02
Reply of petitioner Richard Clark filed.
2019-04-25
Brief of respondent Harmon, Warden, D. J. in opposition filed.
2019-03-08
Motion to extend the time to file a response is granted and the time is further extended to and including April 26, 2019.
2019-03-07
Motion to extend the time to file a response from March 29, 2019 to April 26, 2019, submitted to The Clerk.
2019-02-25
Motion to extend the time to file a response is granted and the time is extended to and including March 29, 2019.
2019-02-22
Motion to extend the time to file a response from February 27, 2019 to March 29, 2019, submitted to The Clerk.
2019-01-28
Response Requested. (Due February 27, 2019)
2019-01-17
DISTRIBUTED for Conference of 2/15/2019.
2019-01-09
Waiver of right of respondent Harmon, Warden, D. J. to respond filed.
2018-12-13
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due January 18, 2019)

Attorneys

Harmon, Warden, D. J.
Noel J. FranciscoSolicitor General, Respondent
Noel J. FranciscoSolicitor General, Respondent
Richard Clark
Richard Clark — Petitioner
Richard Clark — Petitioner