Appellate Attorney Gray R. Proctor
From Small Claims Court to the Supreme Court
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My Briefs and Articles

Briefs, Filings, and Published Articles

There's a popular misconception that the law is boring.  It can't be.  The law is about our lives and our problems.  Your life isn't boring. Your business isn't boring.  Your relationships aren't boring. Your problems aren't boring.  Your CASE is not boring.

 If your brief is boring, the problem is not the law.  The problem is not your case.  The problem is your lawyer.

REPRESENTATIVE CRIMINAL CASES

Initial Brief in Sexual Battery case - the state conceded error on appeal in this case, and the client walked free, with no possibility of retrial.  He is one of about twenty defendants in Florida's Fifth District Court of Appeal to enjoy that outcome on appeal in 2016.  A more typical successful outcome is a new trial.

Petition for Writ of Certiorari - The Petition is the first step in review by the Supreme Court of the United States.  This petition involves federal habeas review under 28 U.S.C. § 2254 of a life sentence.

Motion for executive clemency - the governor's office appointed me to file this petition requesting a pardon and commutation for death row inmate George Trepal, a convicted poisoner.

Appeal of a Rule 3.850 postconviction motion - the defendant here had just been convicted of a crime.  He was sentenced as a prison releasee reoffender to a fifteen-year mandatory sentence based on earlier juvenile cases, where he was tried and convicted as an adult.  I was able to convince Florida Association of Criminal Defense Lawyers, and Southern Juvenile Defender Center) to appear in support of his case.  INITIAL BRIEF     REPLY BRIEF     AMICUS BRIEF

Another juvenile case, this one an attempt to get the defendant back before the judge for resentencing.

Section 2255 motion - the federal Armed Career Criminal Act ("ACCA") was ruled unconstitutional in Johnson v. United States, opening the doorway for a new motion for this client.  

Rule 9.141 petition - ineffective assistance of appellate counsel on a serious error that resulted in a 15-year mandatory minimum.  

The basis for this Rule 3.850 postconviction motion was a new Supreme Court case.

In Jones v. United States, I was able to help the defendant bring an entirely new set of claims on his second or successive 2255.  OPENING BRIEF       REPLY BRIEF

This particularly bizarre Section 2254 was heavily litigated and went all the way to the Supreme Court.  2254 MOTION     REPLY         OPENING BRIEF     REPLY BRIEF      PETITION FOR WRIT OF CERTIORARI

Motion for certificate of appealability - this is a request for permission to appeal, and based primarily on the lower court filing for Mr. Lenz. 

Ghostwritten Motion to Dismiss Indictment - Conspiracy, Wire Fraud, Mail Fraud, Money Laundering (U.S. District Court, Middle District of Florida) - 

Clemency application for a nonviolent offender.  Volunteer work as part of the Obama-era initiatives.  

Not many inmates are eligible for parole but I was happy to have the opportunity to represent Mr. Johnson after his parole examiner's recommendation for release.

 
Most legal writing is bad writing, so to encounter a superbly written brief makes the judge nearly overflow with gratitude.
— Hon. Raymond M. Kethledge, U.S. Court of Appeals for the Sixth Circuit
Overall, the judges’ relative emphasis on written argument contrasts with surveys of practicing lawyers, who see legal writing to be of minor importance.
— Hon. Richard A. Posner, Judge, United States Court Of Appeals for the Seventh Circuit
Precision is the main concern of good writing. Many legal writers lack the ability to write simple, straightforward prose. In order to write with clarity and precision, the writer must know precisely what he or she wants to say and must say that and nothing else.
— Hon. Joel Dubina, Judge, United States Court of Appeals for the Eleventh Circuit
Lawyers somehow can’t give up the extra space, so they fill the brief unnecessarily, not realizing that eye-fatigue and even annoyance will be the response they get for writing an overlong brief.
— Hon. Ruth Bader Ginsburg, Justice, Supreme Court of the United States

REPRESENTATIVE CIVIL CASES

I was appointed by the 11th Circuit to represent Mr. Ealy, a blind Florida inmate, in his law suit against the private prison that left him to fall repeatedly.  I won for himINITIAL BRIEF       REPLY BRIEF

In Thomas v. Biggers, a custody dispute led to a motion for a protective order.  INITIAL BRIEF   REPLY BRIEF

Francis v. Tower Hill -   In this case, the insurance company tried to use a loophole to keep Ms. Francis from using her funds to fix her roof before she fixed her interior.  Yes, you read that right:  Tower Hill argued that Ms. Francis had to take whatever they paid, because she used the insurance that covered the interior to fix the exterior leak before she fixed the interior damage from the leak.  I did the initial brief and reply briefMs. Francis got the big win.

Wooten v. Baker County Property Appraiser - This was a federal civil rights case charging Baker County with discrimination in applying its greenbelt tax exemption for agricultural lands.  The opposition to the motion to dismiss is here.

Restoration 1 a/a/o Marilyn Sidney v. Tower Hill - the insurance company tried to use an unqualified 'expert' who performed a substandard inspection to show that a roof leak was the homeowner's fault.  INITIAL BRIEF   

In 911 Restoration a/a/o Coleman v. St. Johns Insurance Company, the insurance company argued that its policy did not create coverage for water back up because the policy did not mean what it said.  INITIAL BRIEF    REPLY BRIEF

I have also had to defend wins at trial from appeals by insurance companies.

FLORIDA ASSIGNMENT OF BENEFITS ("AOB") CASES:

Insurance companies in Florida are currently executing a full court press against assignments of benefits, trying to accomplish in the courts what they cannot get done in the legislature. I am proud to have handed them a long series of defeats.

In Restoration 1 a/a/o Alex Tchekmeian vs. ASI Preferred Insurance Corporation, I successfully argued that ASI included illegal clauses in its insurance policy, and that Mr. Tchekmeian had the right to use his insurance benefits to pay for emergency repairs to his home.  As counsel for the appellant (Restoration 1, who lost below), I was responsible for the initial brief and reply brief.  Former Florida Supreme Court justice Kenneth Bell filed the answer brief, but I beat him.

I also represented the Florida Justice Association as amicus curiae in Security First Insurance Company v. Florida Office of Insurance Regulation.  It was great to help give Security First a big loss.

AllStar Animal Removal was a nice win in what appears to be the next frontier of AOB fights:  whether another person can sign an AOB when the emergency repair company arrives while the homeowner is absent.  Insurance companies are really trying to make their customers take the strangest positions.  INITIAL BRIEF         REPLY BRIEF

Similarly, in Restoration 1 v. State Farm, the insurance company made a just plain bizarre argument that the homeowner wanted to do an AOB that was not really an AOB.  They lost.  INITIAL BRIEF      

And in JD Restoration v. Universal Property and Casualty Company, the insurance company tried to undo the AOB by arguing that the homeowners should have brought a notary when they executed the AOB.  Universal "won," but the unreasoned PCA opinion is not precedential in any other case.  It's just a matter of time until they lose, and I hope I get another chance to beat them.  You be the judge - is it my fault or the judges'?  INITIAL BRIEF      REPLY BRIEF

Certified Priority, Inc. v. State Farm - interlocutory appeal to the Fourth District Court of Appeal of an order compelling appraisal.  This was a win too.

In Nicon Construction, Inc. v. Homeowners Choice Property and Casualty Insurance Company, I kept Homeowners Choice from stealing the asbestos company's money.  INITIAL BRIEF        OPINION

KP Enterprises Inc. v. Frontline Homeowners Insurance - initial brief and reply brief of an appeal wherein the insurance company paid the wrong party.  This was a win, and the opinion is here.

In United Reconstruction Group v. Citizens, the insurance company is arguing that it's not responsible for theft of benefits when it paid the wrong person, who cashed the check.    INITIAL BRIEF        REPLY BRIEF

PUBLICATIONS

Gray Proctor, “Old Rule, Partially Retroactive, and No Remedy:  Why Hurst Won’t Help Many on Florida’s Death Row.” 28 FED. SENT. R. 5 (2016).

Gray Proctor and Nancy King, “Post-PadillaPadilla’s Puzzles for Review in State and Federal Courts,” 23 FED. SENT. R. 239 (2010).

Gray Proctor, Ngo Excuses: Proving, Rebutting, and Excusing Exhaustion in Prisoner Suits after Woodford v. Ngo and Jones v. Bock,” 31 HAMLINE L. REV. 471 (2008).

Gray Proctor, “The New Role of Federal Habeas Courts in Guaranteeing the Right to Effective Assistance of Counsel,” Florida Bar Journal June 2015.

Gray Proctor, “What State Criminal Practitioners Should Know About Federal Habeas Corpus,” The Record (Journal of the Appellate Practice Section Summer 2014).

Gray Proctor, “Hurst v. Florida:  Retroactivity Doctrine Allows Florida to Ignore the Constiutiton,” Bloomberg BNA Criminal Law Reporter (February 10, 2016)

Margaret Love and Gray Proctor, Report on Deferred Adjudication Programs in the States, January 2011 (Pew Research Center).

Gray Proctor, Retroactivity and the Uncertain Application of Johnson v. United States:  Is the Rule ‘Constitutional’ on Post-Conviction Review?” Bloomberg BNA Criminal Law Reporter (July 1, 2015).

Gray Proctor, Whiteside v. United States:  Using 28 U.S.C. § 2255 to Correct Serious Guidelines Errors Based on New Law,” BNA Bloomberg Criminal Law Reporter (April 30, 2014).

Gray Proctor, “Christmas Comes Early in the Eleventh Circuit:  Using Bryant and 28 U.S.C. § 2241 When Section 2255 is Inadequate to Challenge Illegally Enhanced Sentences,” BNA Bloomberg Criminal Law Reporter (January 22, 2014).

Gray Proctor, “Attacking Aggravating Prior Convictions in Federal Habeas: Using Lackawanna and Daniels for . . . Practically Anything?,” BNA Bloomberg Criminal Law Reporter (December 4, 2013).

Gray Proctor, “The Supreme Court’s Ruling in Chaidez v. United States”: Averting a Flood of Padilla Litigation by Former Prisoners, BNA Bloomberg Criminal Law Reporter (May 22, 2013).

Gray Proctor, Habeas Review under 28 U.S.C. § 2254 after Martinez v. Ryan,”: Federalization and Forum Shopping for Ineffective Assistance of Counsel Claims BNA Bloomberg Criminal Law Reporter (December 5, 2012).

Speaker and Panelist, “The ‘Solo Practitioner:’ Pro Se Litigants and Their Obstacles to Justice,” Fordham Law School, January 25, 2011.

 
If you see someone who has written a sloppy brief, I’m inclined to think that person is a sloppy thinker. It is rare that a person thinks clearly, precisely, carefully, and does not write that way. And contrariwise, it’s rare that someone who is careful and precise in his thought is sloppy in his writing. So it hurts you … to have ungrammatical, sloppy briefs.
— Hon. Antonin Scalia, Justice, United States Supreme Court
In my twelve years on the bench, I have seen much written work by lawyers that is quite appalling. Many lawyers appear not to understand even the most elementary matters pertaining to style of presentation in legal writing, i.e., things that serve to facilitate communications between lawyers and clients, lawyers and opposing counsel, and lawyers and governmental decisionmakers or policymakers.
— Hon. Harry T Edwards, Judge, United States Court of Appeals for the District of Columbia
Most cases present only one, two, or three significant questions . . . . Usually, . . . if you cannot win on a few major points, the others are not likely to help, and to attempt to deal with a great many in the limited number of pages allowed for briefs will mean that none may receive adequate attention. The effect of adding weak arguments will be to dilute the force of the stronger ones.
— R. Stern, Appellate Practice in the United States
As Professor Kingsfield of The Paper Chase was so fond of telling his students, law students learn how to “think like lawyers.” Thinking like a lawyer, however, is an elusive concept. Even those who can define it have trouble explaining why it’s a skill worth $ 150 an hour and up.

[I]f lawyers stopped writing like lawyers, they might have trouble charging as much for their work. Every time lawyers confound their clients with a case citation, a “heretofore,” or an “in the instant case,” they are letting everyone know that they possess something the nonlegal world does not.
That parlance — acquired by lawyers as part of their professional training — has become the way the outside world distinguishes genuine practitioners from charlatans.
— Steven Stark
If your attorney posts to his blog and puts it on his resume as a ‘publication’ - look out.
— Gray R. Proctor, Esq.