In Re Michael Skillern

DOES THE ELEVENTH CIRCUIT’S RULE ENUNCIATED IN CRUTCHFIELD v WAINWRIGHT, 803 F3dl 103 (11th Cir. 1986) ABROGATE OR MODIFY THE SUPREME COURT DECISION AS STATED IN GEDERS v UNITED STATES, 425 U.S. 80 (1976), AND IF NOT IS PETITIONER ENTITLED TO HAVE THIS COURT ISSUE A WRIT OF MANDAMUS TO THE ELEVENTH CIRCUIT’S UNITED STATES CIRCUIT JUDGE BARBARA LAGOA, TO REVERSE HER DECISION DENYING PETITIONER’S APPLICATION FOR COA, AND GRANT PETITIONER’S APPLICATION COA FOR THE ISSUES REQUESTED. STATEMENT OF THE CASE

1. Petitioner was convicted, (four (4) counts , of mail fraud(18 USC Sec.1341), four (4) counts of wire ffaud(18 USC Sec. 1343), one (1) count of conspiracy to commit mail and wire fraud(18 USC Sec. 371), one (1) count of conspiracy of conspiracy to commit money laundering 18 USC Sec. 1956(h), and (acquitted of three substantive money laundering charges), after a (2-3 week duration) jury trial in the United States District Court for the Middle District of Florida, (Tampa Division), the Honorable Mary S. Scriven, United States District Judge, presiding. Petitioner, a first time offender, was sentenced to a term of imprisonment of 120 years, three (3) years supervised release, restitution in the amount of $6,862,579.16 and a 3.2 The District Court apparently realized the constitutional error and withdrew her sequestration order on day two of Petitioner’s testimony. (See finding by this Court’s Panel during oral argument of the direct appeal of Petitioner’s case). 3.3 Petitioner was denied access to counsel overnight between day one of his trial testimony and day two of his trial testimony. Atty. Schneider for fear of being perceived to have violated the District Court’s sequestration Order refused to dine with Petitioner or discuss any subject with Petitioner during the overnight recess. STANDARD OF REVIEW

2. To show that a Certificate of Appealability (COA) should issue under 28 USC Sec. 2253(c), a defendant need only to make a substantial showing that jurists of reason could disagree with the district court’s resolution of his constitutional claims. (See Miller-El v Cockrell, 537 U.S. 336 (2003). Courts of Appeals ask only if the district court’s decision was debatable. Id. see also Bradshaw v Estelle, 463 U.S. 880, 893 n.4 (1983). Further the inquiry for a COA is a threshold inquiry and a separate proceeding, one distinct from the underlying merits determination. (Miller-El citing Slack v McDaniel, 529 U.S. 472 (2000). Further, this Court holds: “In an appeal challenging a [Section] 2255 ruling, we review the legal issues de novo and the factual findings for clear error”. (See Murphy v United States, 634 F.3d 1303, 1306 (11th Cir. 2011).

3. Petitioner is a federal prisoner serving a sentence of 120 months imprisonment and is currently imprisoned at the Federal Prison Camp located in Beaumont, Texas. Petitioner’s Application for Certificate of Appealability (COA) was denied by United States Circuit Judge, Honorable Barbara Lagoa, conclusion holding : “As such, Skillern’s motions for a COA are DENIED because he has failed to make a substantial showing ofa constitutional right." 28 USC Section 2253(c)(2). The trial judge did not state factually the basis for her conclusion that Petitioner had failed to a constitutional issue. Pursuant to the Supreme Court of the United States (hereinafter referred to as Supreme Court) opinion in, Slack v McDaniel, 529 U.S. 472 (2000), which held the following: “Second, when the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue (and an appeal of the district court’s order may be taken) if the prisoner shows at least, that jurist of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district was correct in its procedural ruling.” Petitioner respectfully requests that this Court grant Petitioner’s request for reconsideration or alternatively review this case, en banc, because denial of access to counsel during an overnight recess is a violation of Petitioner’s fundamental Sixth Amendment rights to access of counsel. As demonstrated below, jurists of reason have found this issue debatable and the circuits have split in regard to the Eleventh Circuit’s analysis under their “common sense rule” (see Crutchfield), requiring a defendant or counsel to request in some, (still not succinctly defined), dialog for permission to confer over long recesses and overnight during a testifying defendant’s trial.

4. Petitioner’s Application for Certificate of Appealability (COA) sought review of two issues as set out above on pages 3 and 4 of this petition.