Petition for Writ of Certiorari — Luis Ramos, Petitioner v. Steven Johnson, Administrator, New Jersey State Prison, et al.

.-

No.

In The

Supreme Court of the United States

LUIS RAMOS,

Petitioner;

V.

ADMINISTRATOR NEW JERSEY STATE PRISON, ET AL.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Third Circuit

PETITION FOR A WRIT OF CERTIORARI

LI

Luis Ramos #597052/347785D

New Jersey State Prison

P.O. Box 861

Trenton, New Jersey 08625

RECEIVED

DEC -52017

OFFICE OF TH!

SUPREME COUR

S

-

QUESTIONS PRESENTED

1.) Whether the district court and the third circuit erred in

refusing to issue a certificate of appealability.

11

TABLE OF CONTENTS

Page No.

QUESTIONS PRESENTED .....................................ii

TABLE OF AUTHORITIES ....................................iv

OPINION BELOW .......................................... ..v

JURISDICTION ............................................1

CONSTITUTIONAL PROVISION INVOLVED .......................2

STATEMENT OF FACTS ......................................3

REASONS FOR GRANTING THE PETITION:

POINT I: The District Court Erred in Dismissing

Petitioner's Petition for a Writ of Habeas

Corpus as Untimely and the Third Circuit's

Decision to Affirm is Likewise Erroneous .......15

CONCLUSION..............................................

It

18

TABLE OF AUTHORITIES

Page No.

CASES

Holland v. Florida, 130 S.Ct 2549 (2010) ........15

Luis Ramos v. New Jersey State 'Prison, No. 16-9139 (RKB)

Slack v. McDaniel, 529 U.S. 478, 120 S.Ct. 1595, 146

L.Ed.2d 542 (2000) .................

State v. Ramos,

N.J.

-

(20)

.

14

15

...........15

STATUTES

28 U.S.C. §1254(1) ...................1

28 U.S.C. 2253(c) (2) ..................15

lv

OPINIONS BELOW

The United States District Court of New Jersey dismissed

petitioner's petition for a writ of habeas corpus as untimely in

an Order on March 20, 2017.

(See Appendix

-

Ex

-

1)

The United States District Court of New Jersey dismissed

petitioner's petition for a writ of habeas corpus as untimely in

an Opinion on March 20, 2017.

(See Appendix

-

Ex

-

2 to 8)

The United States Court Of Appeals for the Third Circuit

filed an order on July 19, 2017, denying the Petitioner's notice

of appeal and did not consider the petition for a Certificate of

Appealability. (See Appendix

-

Ex

-

9 to 10)

The United States Court Of Appeals for the Third Circuit

filed an order on August 28, 2017, denying petitioner's petition

for a rehearing En Banc. (See Appendix

LIPA

-

Ex 10 to 11)

JURISDICTION

The Third Circuit entered its order denying the Petitioner's

notice of appeal and did not consider the petition for a

Certificate of Appealability, which served as the court's

judgment, on July 19, 2017. Thereafter, on August 28, 2017, the

Third Circuit denied a timely petition for rehearing and

rehearing en banc. This Court has jurisdiction under 28 U.S.C.

§1254(1) to review the Circuit Court's decision on a writ of

certiorari.

CONSTITUTIONAL PROVISION INVOLVED

Amendment 6

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law, and

to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

2

PI

STATEME NT OF FACTS

Petitioner Luis Ramos was indicted in Camden County under

Indictment No. 07-09-3165.

He was charged with knowing or

purposeful murder in Count One; attempted murder in Count Two; (2

Counts) of aggravated assault in Counts Three and Four;

possession of weapon for an unlawful purpose in Count Five;

unlawful possession of a weapon in Count Six; and certain person

not to have a weapon in Count Seven.

The evidence at

petitioner's jury trial included the following.

On the early-

morning shooting of David Perez and Jose Maldonado on September

3, 2006, as the men sat in a car outside a fast food chicken

restaurant on Federal Street in Camden. The State alleged that

the shooter was the Petitioner, who, the State claims, had an

argument with Perez only a few minutes before the shooting. The

State presented Natasha McCormick who initially claimed on the

stand that she could not remember the incident, but also

testified that what she said to police in a statement to them on

September 4, 2006, was true. Thus, the taped statement was

played for the jury. In that statement, McCormick said that she

went to Crown Fried Chicken at about 1 a.m. and "two drunk girls

came in," whereupon one man began to converse with one of them

and then another, by the name of Pete or Petey, got into an

argument with that man.

During that argument, McCormick told

police, she heard the man named Pete say to the other man, "I'm

hood. I'm from the same place where you're from."

McCormick testified at trial that during the conversation,

when Pete approached the one woman and asked, "Hey, what's going

3

on?" He seemed to be referring to the fact that she was talking

to another man. McCormick also told police in her statement that

she heard that woman say that Pete was not her boyfriend. Pete

was 5'8" or 5'9", wearing a black hoody, and the other man wore a

black jacket, white T-shirt and jeans, according to McCormick.

"A couple of minutes" after both of those men and the two women

left, McCormick was still inside the restaurant when she heard

three gunshots from outside.

Inside the restaurant, McCormick

had never heard either man threaten the other and both men had a

"calm" and "low" tone to their voices, although Pete was "a

little bit more agitated" than the other man. She had also seen

one of the women "hold

.

.

.

back" and push apart the two men

from one another. When the men and woman left, McCormick never

heard any argument or fighting outside before the gunshots.

Later, after the shots, McCormick looked outside and saw a man

who "didn't look too good" sitting in the passenger side of a car

outside the restaurant, and she "kind of had a feeling" it was

the man with the black jacket and white shirt from earlier.

Jose Maldonado testified that he and David Perez went to

Crown Fried Chicken that night after a night of drinking that had

begun at 6 p.m.

During that time, Maldonado drank six beers.

Perez was "pretty tipsy" and he could "get [] a little feisty"

when he was drunk, according to Maldonado, but Perez was not

"feisty" that night. Maldonado drove to the restaurant at about

1 a.m., parked right outside and went inside with Perez, but then

waited outside the car while Perez remained inside the restaurant

for five to seven more minutes.

4

According to Maldonado when

Perez came outside he was arguing with Petitioner "over a girl"

that Perez knew.

Perez and Petitioner then "started talking"

until another woman pulled Petitioner away "toward 24th Street,"

Maldonado testified.

He does not recall Petitioner and Perez

"peacing up" (i.e., reaching an accord) before the incident left

with that woman. Maldonado also admitted that Petitioner then

headed with a "group" into a house where a party was being held

and that this entire area was a "busy" one that night with people

hanging out in front of the party house as well as people coming

in and out of a nearby Chinese restaurant and the chicken place.

After Maldonado and Perez walked to the corner of 24th and

Federal to watch Petitioner leave the scene, he testified, he and

Perez got back into the car, with Perez in the driver's seat this

time, and they waited, with the window down, for their food to be

ready.

At the time, Perez was explaining a little about the

argument he had with Petitioner while Maldonado was "messing with

the radio," and then Maldonado heard multiple gunshots from the

passenger side of the vehicle.

Maldonado did not identify the shooter, but he claimed that

it seemed like the gunshots were close, "like [a] couple inches

away from my face." Maldonado was hit in the left arm and blood

was "gushing like sprinklers" out of the wound.

He testified

that he does not have full control of movement in that arm below

the elbow. Maldonado also was wounded in the leg and still had a

bullet fragment lodged there.

When he looked over at Perez,

Maldonado testified, he saw a hole in Perez's neck and "blood

coming out of his neck" as Perez gasped for air.

Maldonado first spoke to Investigator Fawn Ackerman, from

the Camden County Prosecutor's Office, on September 7, 2006, and,

while he gave her some information, he testified, he cut the

conversation short because it was "too much pressure" reliving

the incident, but he called her up later and told her the man

Perez had an argument with was named Pete. Then, on September 9,

2006, Maldonado identified Petitioner from a photo array as that

same man.

David Perez died and suffered multiple gunshots wounds,

according to the medical examiner, who listed them as follows: a

grazing wound to the chin which exposed bone; a wound to the

lower rib cage that passed through the abdominal wall but missed

vital organs; a wound to the "right flank" that hit the iliac

artery and lodged the bullet in the pelvis; a "through and

through" wound to each forearm; a superficial graze to the left

arm; and a "through and through" wound to the left thigh. The

medical examiner testified that the official cause death was

"multiple gunshots wounds" and that the "wound that would have

been most rapidly fatal" was the one that hit the iliac artery.

Dr. David Fuller, an orthopedic surgeon, testified that Jose

Maldonado has damage to the radial nerve from the gunshot wound,

and that the loss of that nerve, one of three that run to the

hand, prevents Maldonado from fully using his hand and wrist.

Zulma "Jati" Rivera testified that on the night in question

she was hanging out drinking brandy and Pepsi with her friend

Nitza an they both decided to get dressed up and "go dancing."

However, they eventually decided to go to a "house party" at 24th

101

and Federal Streets and took a cab there, but they never made it

to the party because as soon as they exited the 'cab, they ran

into Petitioner, whom Rivera knew as "Pete," and some of his

friends. Rivera had previously "socialized" with Petitioner for

"like two months straight" before she had gone to live in Florida

for a few months, but she denied that their relationship was

romantic. She noticed that Petitioner had a gun inside his black

hoody because she saw him showing it to a friend as she got out

of the cab. She also noted that Petitioner was wearing a long

white T-shirt at the time.

According to Rivera, she and Petitioner conversed outside

the party house and then she walked down to the Crown Fried

Chicken to use the bathroom. Nitza followed her there only a few

moment later. Rivera asked to use the bathroom, but was told she

could not, and then, she testified, "all this commotion started."

Rivera claimed that David Perez had begun talking to Nitza and

that Perez and Rivera also conversed because they had dated in

high school a few years earlier. According to Rivera, Petitioner

then approached her and said, "I'm watching you," and then he

stood there while the others 'talked, eventually taking offense at

something he thought Perez had said to him.

Rivera testified

that Petitioner "kind of like pushed himself toward" Perez as if

"to see if he would flinch," and the two argued briefly while

Rivera stepped between them and held back Petitioner.

Rivera testified that she talked to Petitioner and told him

to calm down, an Petitioner then stood in a corner of the store

while Rivera continued her conversation with Nitza and Perez.

7

She had herself positioned so she could step between them if

anything else happened, and she testified that she did so when

Petitioner said that this was "his hood" and "he could do what he

wants," to which Perez had responded that it was "hood" as well,

and then the two men came closer to one another. When it looked

as if Petitioner was going to hit Perez, Rivera grabbed both men

by their shirts and separated them, and grabbed Petitioner by his

hoody and escorted him out of the restaurant, telling him to calm

down because he looked angry.

Perez followed them outside, Rivera testified, and there the

men hugged each other and apologized, but Rivera was unsure

whether to believe that they were really "peacing it up" or "just

doing it for the moment." She was also concerned because of the

gun she had seen in Petitioner's possession earlier. Thereafter,

Rivera testified, she watched Perez get into his car, and she

encouraged Petitioner to return to the party with her, and

Petitioner seemed momentarily calm to her, looking "way better

than he did when he was inside the store."

But then, Rivera

claimed, one of Petitioner's friends to whom he had been speaking

"asked him where the other gun [was] at and he said his brother

had it," and Petitioner did not seem calm anymore.

Rivera

testified that Petitioner would not answer her when she "kept

asking him" what reason that other gun would be needed, and she

became concerned because she "knew something was going to

happen."

-

Specifically, Rivera testified that her concern was that

Petitioner had gotten his friends in the area "all hyped up"

8

after the encounter with Perez, and that even if Petitioner did

not do anything to Perez, the "hyped" state of his friends might

cause one of them to do something.

And, according to Rivera,

there were a lot of Petitioner's friends in the area, going back

and forth in the block between the party house and the chicken

restaurant. Rivera testified that Petitioner was "pacing" back

and forth at this point with his hands in hoody, and that a crowd

had gathered in front of Perez's car where "a whole bunch of

people [were] arguing," whereupon "all you heard was the

gunshots." Rivera claimed that she was eight to twelve feet from

Petitioner as he fired shots into Perez's car, appearing to aim

at Perez as he did so.

Petitioner backed away as he fired,

according to Rivera, and then "ran off" when he was done firing.

On September 8, 2006, Rivera spoke to Investigator Fawn Ackerman

from the Prosecutor's Office and idehtified Petitioner to

Ackerman from a single photo that was shown to her.

Jason Nettles was arrested on September 8, 2006, on drug

charges, and he was questioned by Investigator Ackerman, who

asked him if he was in the area of 24th and Federal at the time

of the instant shooting, and he told her that he was at a party

there. Nettles testified that, because of the style at the time,

eight out of ten people that night wore a hoody with a long Tshirt, and that of the 30 to 40 people on the street that night,

"about 20 of us had black hoodies, white T-shirts," including

Petitioner. Nettles testified that he saw many people he knows

at that party and that one of them was Petitioner.

9

Nettles also claimed that much of his statement to police

was not true, and was, a product of a promise by Ackerman to "take

care of" his then pending drug charges, for which he was facing

as much as 22 years in prison. He claimed he was told by police

what to say in the statement. They had told him that if he could

"help them out" with the Perez shooting, "they could work

something out." Nettles testified that the videotape of his

statement, which appears, from the transcript, to begin after

Nettles was already talking to police, has portions excised from

the conversation that he had with Ackerman, specifically when she

promised to help him out of his predicament in the drug case.

His "main priority" was reducing his own sentence and, therefore,

he told police what he felt they wanted to hear after they showed

him a surveillance-camera video of the scene that night.

Specifically, he testified, although he never told police that

Petitioner was the shooter, he fabricated a story that he saw

Petitioner walk down to the chicken place, stay there for 20

minutes and run back form the scene after the gunshot. In fact,

Nettles testified, it seemed to him that the State's theory was

wrong and that Petitioner could not be the shooter because

Nettles was not near the shooting when it happened and Petitioner

was in Nettles' peripheral vision at that time, so he could not

have been down the street firing the gun at the same time. He

also noted that "everybody" was running when the shots rang out.

Nettles noted that he added other untrue details to the

statement to police to "ma[k]e it sound good," like a claim that

he saw Petitioner the day after the shooting or that Petitioner

10

told him after the shooting that he had enough money to hire a

lawyer to "beat the charge." Nettles also testified that he had

eventually tried to come clean and correct his statement to

police by writing a letter to the "head prosecutor" to that

effect while Nettles were serving time at Southern State Prison.

In that letter Nettles offered to "come in and give a real

statement on behalf of the situation." He claimed that he mailed

that letter to the prosecutor in August or September 2007, and

that he had the "postal remit slip" back in his prison cell, but

he had not brought it to court on the day of his testimony

because he was not told by guards why he was going to court that

day. He denied any pressure by anyone to write that letter and

said he has no contact with Petitioner and is not afraid of him.

Nettles noted that he is "not getting nothing out of me telling

the truth."

Investigator Ackerman denied promising Nettles anything in

exchange for his statement, but eventually admitted that Nettles

was correct that she showed him a surveillance video of the scene

when getting information from him--a fat she had first denied.

Ackerman attempted to explain the reason the tape of Nettles'

statement appears not to start at the beginning, but, rather,

after it was already taking place. She claimed she had spoken to

Nettles for about 30 minutes "to see if what he had to say made

any sense," and that only then did another officer turn the tape

on from another room.

Miguel Mendez testified that he saw Petitioner, whom he

recognized from high school but whose name he did not know,

involved in an argument in Crown Fried Chicken on the night in

question, and he told police in his statement that the argument

was about "the girl." On September 8, 2006, he identified a

photo of Petitioner to Investigator Ackerman.

Investigator William Rumell of the Prosecutor's Office,

testified that when he arrived at the scene on the morning of the

shooting, David Perez's car was parked ten feet from Crown Fried

Chicken.

The car was still running and Perez had obviously

suffered a wound to his face. There was a bullet exit hole in

the driver's door and a blood trail on the sidewalk that went 60

feet. Beer bottles were inside the car in the center console and

the passenger side. Four bullet holes were found in total, all

with trajectories from the passenger's side to the driver's side

and "slightly front to back

--

traveling downward." Two bullets

were lodged in the door, one in the "pillar" of the door and one

appeared to have gone "through and through" the vehicle.

No

shells casing were found, and two pieces of metal jacketing were

discovered in the vehicle in addition to the bullets.

That same night, Investigator Ackerman viewed a videotape

from the Crown Fried Chicken that showed David Perez speaking to

a female. She also testified that Miguel Mendez had identified

Petitioner from a photo and that she had taken two separate

statements from Jose Maldonado, one on September 7 and one on

September 9, 2006.

Investigator John Denmark testified that as part of his

investigation, he downloaded surveillance camera video from the

chicken restaurant and two other local businesses. These videos

12

were shown to the jury but none conclusively identified the

shooter except as a likely male wearing clothing similar to that

identified as having been worn by Petitioner and many others that

night. It was, thus, left to the parties to argue the matter of

identification.

Deputy U.S. Marshall Scott McConnell testified that

Petitioner was arrested on February 3, 2007, after McConnell saw

him and others slouching down in a cab in an area of Camden that

authorities has staked out in search of Petitioner, and that

Petitioner initially gave a false name when arrested. According

to State Trooper Joseph McNally, a records search revealed no gun

permit for Petitioner. But no gun was ever recovered.

The Petitioner was acquitted of Count Two, and convicted of

all remaining counts. Thereafter on August 22, 2008, Petitioner

was sentenced to life with an 85% parole ineligibility.

In September 2016, Petitioner tried to file his petition for

a writ a habeas corpus without the necessary paperwork, but was

unsuccessful. After receiving his paperwork back from the prison,

he filed another petition for a writ of habeas corpus on November

22, 2016. This petition raised four grounds: GROUND ONE: A Jury

Introduction Should have been Given on Two Different ClearlyIndicated Theories of Aggravated Manslaughter; GROUND TWO: A Far

Greater Justification for a Particular Murder Sentence must be

Given than was Given here, When that Sentence, under the No Early

Release Act Violates the Petitioner's Due Process; GROUND THREE:

The Petitioner Asserts that the Testimony by Jason Nettles,

Showed a Motive to Fabricate, was Suggestive, and Inadmissible

13

Resulting that Petitioner's Right to Due Process and Equal

Protection of the Laws as Guaranteed by the Fourteenth Amendment;

GROUND FOUR: The Petitioner was Exposed to Ineffective Assistance

of Trial Counsel.

On March 20, 2017, the district court dismissed the petition

for a writ of habeas corpus as untimely.

Luis Ramos v. New

Jersey State Prison, No. 16-9139 (RBK), slip opinion (March 20,

2017)

.

Petitioner filed a timely notice of appeal and a petition

for a certificate of appealability (COA)

.

On July 19, 2017, the

Third Circuit denied the petition for a COA. On August 28, 2017,

the Third Circuit denied a petition for rehearing and rehearing

en banc.

14

REASONS FOR GRANTING THE WRIT

In the interest of justice this Court should vacate the

Third Circuit's denial of a Certificate Appealability for the

following reason.

1.) The District Court Erred in Dismissing Petitioner's Petition

for a Writ of Habeas Corpus as Untimely and the Third Circuit's

Decision to Affirm is Likewise Erroneous.

In order to obtain a certificate of appealability (COA), a

petitioner need only demonstrate "a substantial showing of the

denial of a constitutional right."

28 U.S.C. 2253(c) (2).

A

petitioner satisfies this standard by demonstrating that jurists

of reason could disagree with the district court's resolution of

his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed

further.

Slack v. McDaniel, 529 U.S. 478, 120 S.Ct 1595, 146

L.Ed.2d 542 (2000)

Reasonable jurists could therefore disagree with the

district court's decision that petitioner's petition was

untimely. Holland v. Florida, 130 S.Ct 2549 (2010)

In the present case the Petitioner direct appeal were denied

by the Superior Court of New Jersey

-

Appellate Division on

August 2, 2010, and the New Jersey Supreme Court affirmed the

denial of the Superior Court of New Jersey

-

Appellate Division

and filed an order of their decision on April 14, 2011.

State v. Ramos,

N.J.

-

See

(20)

According to the Anti-Terrorism Effective Death Penalty At

("AEDPA") standard, the conviction would have became final 90

15

days after April 14, 2011, and his one-year period of limitation

would have been triggered on July 14, 2011, and without any

tolling that limitation would have expired on July 14, 2012.

The Petitioner placed in prison officials hands for mailing

his Petition for Post Conviction Relief on December 16, 2011,

which should have statutory tolled his 1-year period of

limitation.

The following proceedings are associated with Petitioner's

case from the conclusion of his direct appeal up until the filing

of his petition for a writ of habeas corpus are as follows: On

August 2, 2010, the Superior Court of New Jersey Appellate

Division affirmed the Petitioner's sentence and conviction. On

April 12, 2011, the Supreme Court of New Jersey denied

Petitioner's petition for Certification.

On December 16, 2011,

the Petitioner handed prison officials for mailing his petition

for post conviction relief.

On January 11, 2012, the Superior

Court of New Jersey Law Division-Criminal Action filed the

Petitioner's petition for post conviction relief.

On March 1,

2013, the Superior Court of New Jersey Law Division-Criminal

Action denied the Petitioner's petitioner for post conviction

relief.

On March 24, 2016, the Supreme Court of New Jersey

denied Petitioner's petition for Certification as to his petition

for post conviction relief and the Petitioner's AEDPA period of

limitation was re-triggered on the same day.

Now, being that 245 days had elapsed since the Petitioner

handed his petition for post conviction relief to prison official

on December 16, 2011, which means the Petitioner's used 155 days

IL

of the 1-year limitation. During which time all the Petitioner's

property was seized and the Petitioner was placed in

administrative segregation without any access to the prison's law

library.

The Petitioner was not released

.

from administrative

segregation until September 12, 2016, at which time he file his

petition for a writ of habeas corpus without any of the necessary

exhibits, due to the prison officials still had all his property

and when he finally received his property he filed an amended

petition.

Which shows that his petition for a writ of habeas

corpus would have been timely filed, because the 1-year period

limitation would not have expired until on or about October 14,

2016, and the. Petitioner handed to prison officials for mailing

on September 13, 2016, one month before the expiration of his 1year limitation period.

It should also be noted that the district court offered no

analysis to support equitable tolling its ultimate conclusion

that petitioner petition for a writ of habeas corpus was

untimely.

The district court simply noted and went with the

statutory tolling reasoning.

121

MA

CONCLUSION

For all of the foregoing reasons, this Honorable Court

should grant the petition for a writ of certiorari to determine

whether Petitioner's petition for a writ of habeas corpus was

filed timely.

Respctf4y submitted,

DATE: November 24, 2017

'

/\

Luis Ramo

18