Petition for Writ of Certiorari — John Star, Petitioner v. United States

V

No,

IN THE

SUPREME COURT OF THE UNITED STATES

JOHN STAR

PETITIONER

-

(Your Name)

vs.

UNITED.-STATES OF AMERICA

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

m

UNITED STATES COURT OF APPEAL FOR THE SECOND CIRCUIT

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

JOHN STAR 78102-053

(Your Name)

UNIT C4

30L

(Address)

555 GEO DRIVE

PHILIPSBURG, PA 16866

(City, State, Zip Code)

N/A (NO PHONE)

(Phone Number)

RECIV 1

SEP 2 6201?

QUESTIONS

PRESENTED

This petition presents the following question to be

answered by this Honorable Court:

Whether or not a mentally incompetent defendant can make a plea

or participate in a plea allocation hearing.

Whether or not a mentally incompent defendant is actually

innocent.

Whether or not the •sentence was procedurally flawed due to the

District Court failure to properly calculate the Sentencing

Guideline range.

Whether or not the appellate waiver provision, of a plea agreement

that was entered into unknowingly and involuntarily is enforeable.

2

No

IN THE

SUPREME COURT OF THE UNITED STATES

November term, 2017

JOHN STAR

(Petitioner)

V.

UNITED STATES OF AMERICA

(Respondent)

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

3

TABLE OF CONTENTS

OPINION BELOW...............................................

.. . . .

8

JURISDICTION.....................................................

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED..................9

STATEMENT OF THE CASE ............................................ 10

REASONS FOR GRANTING THE WRIT .................................... 14

CONCLUSION ....................... .. .................................29

INDEX OF APPENDICES

hUd

States Court of Appeals for the Second Circuit.

Appendix B: Motion for reconsideration and request for panal rehearing

for dismissal of appeal by the Court of Appeals.

Appendix-.C: Dismissal of petitioner's appeal by the Court of Appeals.

Appendix D: Docket sheet of entries of petitioner case at the Court

of Appeals for the Second Circuit.

4

Appendix E: Noticeof Appeal

Appendix Ft Request of medical record of mental illness from lutheran

medical center Brooklyn, New York.

Appendix G: Request of medical record of mental illness from Intefaith

medical center Brooklyn, New York.

Appendix H: Request of medical record of mental illness from Brooklyn

hospital Brooklyn, New York.

Appendix I: Request of medical record of mental and physical illnesses

from Metropolitan Detention Center BrookLyn,New York.

Appendix J: Request of medical record of mental and physical illnesses

from Toronto East Detention Toronto, Ontario. Canada.

TABLE OF AUTHORITY CITED

CASE

PAGE

Cara v. Calderon, 165 F.3d 1225 (9th Cir. 1999) ..................16

Deutsher v. Whitley, 884 F.2d 1152 (9th Cir. 1989) ...............16

Bean v. Calderon, 163 F.3d 1075 (9th Cir. 1998) ..................16

Hull v. Freeman, 932 F.3d 159 (3rd Cir. 1991) ....................17

Moore v. Demsey, 261 U.S. 86, 87-94 (1929) .......................18

Schrino v. Summerlin 124 S.Ct 2519 (2004) ........................18

Dretke v. Haley 541 U.S. 386, 399-400 (2004) .....................19

Harrara v. Collins 506 U.S. 390 (1993) ...........................19, 22

McQuiggin v. Perkins .............................................19

61

4

Strickland v. Washington 466 U.S. 668. 104 S.Ct 2052, 801.L.Ed 2d..21

United States v. Cavera 550 F.3d 180 (2nd Cir. 2008) (en bane) .... 23, 24

United States v. Dorves 616 F.3d 174 (2nd Cir. 2010) ..............23

United States v. Corsey 723 F.3d 366, 368 (2nd Cir.2003) ..........23

Gall v. United States 553U.S.38(2007) .........................23

Gall, 552 U.S. at 49-51 ...........................................24

Gall? a552 U.S. at 51 ..............................................24,225

Gall Supra........................................................244

Cavera 550 F.3d at 190 ............................................24

Rita v. United States 551 U.S. 338 (2007) .........................25

Gall 5553U.5.at50 (Citation omitted) .............................25

United States v. wallace 597 F.3d 794 2 803 (6th Cir. 2010) ........25

United States v. Carty 520 F.3d 984, 992-93(9th Cir. 2008) ......25

United States v. Echeverri 460 Fed.Appx. 54 (2nd Cir. 2002)

i 26

United States v. Richardson 521 F.3d 149, 158 (2nd Cir. 2008) .....26

United States v. Ready 82 F.3d 5512 556 (2nd Cir. 1996) ...........27, 28

United States v. Yemiltan 70 F.3d 746 (2nd Cir. 1995) .............27

United States v. Riggi 649 F.3d 14371477(2nd Cir. 2011) ...........27, 28

United States v. Grank 386 F.3d 404,411 (2nd Cir. 2004) ...........27

United States v. Morgan 386 F.3d 376 (2nd Cir. 2004) ..............27

United States v. Gomez-Perez 215 F.3d 315 (2nd Cir. 2000) .........27

SENTENCING GUIDELINE

United States Sentencing Guideline................................. 23,26

RULES

28

1254(1) ..................................................8, 9

28 U.S.C. i1291 ....................................................9

18 U.S.C.S4241 ..................................................15. 16 2 28

-

18 U.S.C.S. §4241(a)

.15, 17

U.5.C.03553(a) factors

.

239 25

18 U.S.C. §3553(c)—o— ...... --o ..... o—o ........ o .... oo.o..25

18 U.S.C. §3553(c)(1) .............................................25

18 U.S.C. §3553 ...................................................26

OTHER AUTHORITIES CITED

S. Rep. No1526.8OCong.2dSese.2(1984) .........................18

Federal Habeas court 185.LL d.iO31 ..............................19

7

IM

IN THE

SUPREME COURT OF THE UNITED STATES

November term, 2017

JOHN STAR

(Petitioner)

V.

UNITED STATES OF AMERICA

(Respondent)

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT f OF APPEAESFORRTHE

SECOND CIRCUIT

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

COME NOW Petitioner JOHN STAR respectfully prays that a

Writ of Certiorari issued to the judgement below.

OPINION BELOW

The judgement of the United States District Court of the

Eastern District of New York imposing a 120 months sentence and a

3years supervised release on petitioner on Appendix D, the dismissal

of petitioner's Appeal while affirming the judgement of the District

Court on Appendix C, The denial of petitioner's motion for

reconsideration and request for panel rehearing by the United States

8

Court of Appeals for the Second Circuit on Appendix A.

JURISDICTION

Petitioner was sentenced to 120 months and 3 years

supervised release by the United States District Court of the Eastern

District of New York on Jenuary 31, 2016 following a guilty plea that

was accepted by Justice Leo Glasser of the District Court on July 1,

2015. Then Petitioner filed a timely notice of appeal on February 13,

2016. Petitioner's ppeal was dismissed by the United States Court of

Appeals fór;the. Second Circuit

n .Apr ilT21, 2017 without publication.

Petitioner's motion for reconsideration and panel rehearing

was subsequently denied by the United States Court of Appeals fOr::the

Second Circuit on June 22, 2017 also without publication.

This Court has jurisdiction to review the decision made by

the United States Court of Appeals of the Second Circuit pursuant to

Rule 28. U.S.C. 1254(1) and to determine whether the decision made by

the United States Court of Appeals for the Second Circuit deny

petitioner's motion for reconsideration and panel re-hearing as well

the decision made by the Second Circuit to dismiss petitioner's Appeal

and Affirmed the District Court Judgement g r anting the government

motion requesting the Appellate waiver on the plea to be enforeable.

Jurisdiction in the District Court was pursuant to 18 U.S.0

§3231. Jurisdiction in the Court of Appeal was pursuant to 28 U.S.0

§1291. The Jurisdiction to entertain petitioner John Star petition in

this Court is conferred pursuant to 28 U.S.C. 1252(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Petitioner assert that his 6th amendment rights to due

process and his right to counsel was violated.

STATEMENT OF THE CASE

Petitioner, John Star (Pro se) respectfully states the

following:

Petitioner, John Star was arrested with nine other defendant on

April 6, 2010 in Uniondale, New York. He was charged with one count

of conspiracy to commit bank and mail fraud among other charges.

On the same day indicted with nine other defendant on an

indictment #10-cr-258(ILG)[A-19].

The very same day, petitioner was released on bond of $250,000

which was secured by his house in Mt Vernor, New York after appearing

infront of magistrate Judge Roanne Mann.

4)Fw:daysIiàter

date.

on April 28, 2010, a bond revocation hearing was held upon Star's

failure to appear in court and abench warrant was issued. [A-5,

Docket Entry #60].

It was later learnt that petitioner Star had fled the jurisdiction

and was in Canada.

Petitioner was arrested in Canada on may 14, 2014.

Petitioner was indicted for bail jumping charge [A-36, indictment

# 14-cr-314(ILG).

Petitioner was extradicted to the United States after he surrendered

to the extradiction on march 27, 2015. Getting to the United States,

he was arraigned on a bail jumping indictment before Magistrate

Judge

das ordered detained [A-15, docket Entry #71.

There were negociations for a plea agreement which may have

produced the plea Exhibit P on Appendix H which petitioner refused

to sign.

10

Petitioner filed a official request to withdraw his guilty plea

and to request for his then attorney Micheal Hueston to be replaced

for ineffectiveness and conflict of interest. See Exhibit 4 on

Appendix 0 line 293 on September 29, 2015.

Petitioner appeared in a sentencing hearing of which petitioner

was sentenced to 120 months in prison and a 3 years supervised

release by Justice Leo Glasser on Jenuary 29, 2016.

petitioner, through his sentencing attorney filed a timely Notice

of Appeal on February 13, 2016. See Exhibit 5 on Appendix 0 line 324.

The Appeal was later dismissed by the United States Court of

Appeals for the second Circuit on April 27, 2017. See Exibit 6 on

Appendix B.

Petitioner filed a motion for recosideration of the dismissal of

his appeal and requested a Panel Re-rehearin but his motion was

denied by the United States Court of Appeals for the Second Circuit

on June 22, 2017. See Exhibit 6 on Appendix A.

CHARACTERISTIC OF PETITIONER

Petitioner (John Star) is a mentally ill individual that have

been suffering from a mental illness of Anxiety attacks (a paranoia

mental condition that causes a complete nervous braekdown) for over

two decade despite he had always tried to hide his illness manage it

by using natural and organic treatment.

Born to the late

political and civil right activist. His father was the founder of

Midwest Democratic Front (MWDF) and Midwest People Congress (MWPC), a

gorilla successionist group that fought for the formation of the

Midwest region in Nigeria. He was a polygamist, married several wives

and had 42 children including petitioner. He was a former minister

11

I

of trade and industries as well as a former minister of commerce in

Nigeria. He helped to cave out the former Bendel State which later

slipted into Edo, Delta and Bayelsa States of Nigeria. He later became

*

a successful real estate developer that owned and managed several

commercial and residential properties. He also owned several schools

which included Edokpolo nursery school, Edokpolor primary school and

Edokpolo grammer school in Benin City, Edo State, Nigeria.

Petitioner's dad (john Edokpolo) was killed by the Nigerian

police officer when he was shot to death in the presence of his

children including petitioner (John Star) during one of their family

metings because of his defiancy in his political and civil rights

activism, advocating for equality for all Nigerian regardless of

language, sex, age and religion.

Petitioner's mother (Mercy) was a devoted jew born to a

jewish parents. She helped petitioner's late father in the foundation

and the management of his group of schools. She was a religious

activist that promoted judiasm in Nigeria and advocated for freedom

of religion and freedom of worship. She was killed few year after

petitioner's late father's death. She die after sustaining severaal gun

shot wounds from Nigerian police office and member of the Nigerian army

who broke into her residence while she was conducting a Jewish Shabath

service with petitioner John Star been in attentance.

John have relived the grossome events that lead to his mother

and father's death over and over again, giving him post traumatic

stress disorder (PTSD) and anxiety attacks (AA) because he is always

paranoid, nervous and afraid expecting something bad to happen to him

at any given moment. This mental illness messes with his mind and

sometimes causes him to have a nervous breakdown anytime he is affected

12

by the illness. He get dioriented, confused and lightheaded, starts

to whine, cry, shake, jerk, bite his fingers or black out, faint,

collapse and become unresponsive.

Petitioner have had several set backs in his life due to

his mental illness. They includes inability to practice law despite

he holds a law degree because he had several nervous breakdowns in

Nigeria while he was in court. He lost his music recording deal with

Ranshorm/MMS/Intercord Music lable because of his mental illness of

anxiety attacks which made him have several nervous breakdowns,

fainting and pass out episodes while he was performing on stage or

while he was inside the recording studio when he was using the artist

name known as Mr. John in the mid 1990's. He was medically discharged

from the United States National Gaurd Reserve after serving for few

months because of his mental illness of anxiety attack that he

exhibited while on duty.

Point to note, Petitioner attempted suicide by trying to

hang himself in 1998 while he was in Brooklyn Detention Center in

Brookyn New York. He was later treated of mental illness at a

psychiatric ward at interfaith medical center formerly known as St

John's medical center located at Atlantic avenue in Brooklyn

,

New

York. Medical record have been requested. See Exhibit 7..

During the early stages of this proceedings, Petitioner

contempulated suicide after he had a mental illness of anxiety attack

that caused him. to have a nervous braekdown and passed out and became

unresponsive inside Paterson New Jersey court house elevator and was

rushed to St Joseph Medical center in Paterson new Jersey in April

2010. Medical record have been requested. See Exhibit 8. Petitioner

then ran to seek asylum in Canada because he was afraid he was going

13

to be deported to Nigeria a land that he feared if his Id deported

he might meet the same faith as his parent and be killed.

After petitioner was arrested in Canada and through the

period he was incarcerated both in Canada and the United States,

Petitioner experienced several health issues consequence of poor

health care

in breathing, seizures,

blackouts, fainting and several nervous breakdown episode that

rendered him uresponsive on near to death situations 6 'times (3 times

in Toronto Canada and 3 times inside Brooklyn Metropolitan Detention

Center (MDC).

Petitioner appeared in the District Court of the Eastern

District of New York on July 1, 2015 with a plea agreement he had

refused signing See Exhibit 9 on Appendix K despite he has mental

illness and had other dissease which included seizure, Tinnitus, sleep

apmere and was hevily medicated after taken' LEVETIRACETAM, LISONOPRIL,

ASPIRIN AND PROVENTIL F. which side effect affected him during the

plea allocation hearing. The court accepted hi incomplete plea with

several questions left unanswered, See Exhibit 10 on AppendiX G.

REASONS FOR GRANTING THE PETITION

The following reason will show why this Honorable Court

should grant Certiorari to Petitioner. John Star assert that his

constitutional rights to due process and his sixth amendment rights

to effective assistance of counsel was violated and that his claims

of violations are not frivolous, that petitioner has a meritorious

defense to his calims which is supported by evidence. Therefore,

the United States Court of Appeal for the Second Circuit erred in

denying his motion for reconsideration and request for panel

re-hearing for the dismissal of his Appeal.

14

Question I. Whether or not a mentally incompetent defendant can make

a p1éaior participate in a plea allocation hearing:

It is well established that the Due Process Clause prohibits

the criminal prosecution of a defendant who is not competent to stand

trail. The Due Process right spans the duration of a criminal proceeding,

including sentencing 18 U.S.C.S §4241 requires a District Court, on its

own motion, to conduct a competency hearing if there is reasonable

cause to believe that the defendant may presently be suffering from

a mental dissease or defect rendering him mentally incompetent to the

extent that he is unable to understand the nature and consequences of

'the proceeding against him or to assist properly in his defense 18

U.S.C.S. §4241(a). The appellate court reviews for abuse of discretion

the district court determination that such "reasonable cause"

warranting a compency hearing is absent. The district court has abuse

its discretion if it based it ruling in an erroneous view of the law

or on a clearly erroneous assessment of the evidence. Or rendered a

decision that can not be located within the range of permissible

decision. "Abuse of discretion" is a no pejorative "term of art".

At any time after the commencement of an offense and prior

to the sentencing of the defendant, the defendant may file a motion

of hearing to determine the mental competency of the defendant 18

U.S.C.S. §4241(a). The district court shall grant the motion if there

is reasonable cause to believe that the defendant may presently be

suffering from a mental dissease or defect rendering him mentally

incompetent to the extent that he is unable to undersatnd the nature

and consequences of the proceeding against him or to assist properly

in his defense 18 U.S.C.S §4241(a).

Neither the federal statute governing compentency determination

15

18 U.S.C.S. §4241 nor the Due Process Clause requires a hearing in

every instance. A hearing is required only if the court has reasonable

cause to believe that the defendant has a mental defect rendering him

-

incompetent. In deciding that an evidentiary hearing is necessary, a

court may rely on many factors including reports from psychologist

and the court observations.

IPetittoner.!scasewe can see that petitioner was mentally

incompetent during the plea allocation through the sentencing phase

of his criminal proceeding. That his mental health even detonated

consequence of medication he was taken for seizure, COPD, Asthma,

sleep apmere, hyperthesion, high blood pressure and tinnitus. See

Cara v.CC1, dei,on 165 F. 3d 1223 (9th Cir. 1999) "defense counsel

failure to investigate defendant' organic brain damage or other mental

impairment and failure to seek expert opinion on defendant

extraordinary exposure to neurotoxicants, neurological impairment

and personal background required evidentiary hearing to resolve claim

of ineffectiveness of counsel. See Also Deutsher v. Whitley, 884 F.2d

1152 (9th Cir. 1989), Bean v. Calderon _ , 163 F.3d 1073 (9th Cir.

1998). "Counsel failure to investigate, present mitigating evidence,

and prepare for their testimony during penalty phase of trail

constitute ineffective assistance".

First, petitioner assert that he has mental illness of

anxiety attacks a:

- mèn€ai±tilñess*that make one have a nervous break

down due to fear that something negative will happen to him) coupled

with other physical illnesses which includes Tinnitus (a hearing

difficuty, temporary het-ing loose or buzzing sounds in ears or

external noise that distract and make one loose attention), Sleep

apmere (difficulties in breathing), Seizure (a neurological dissease

16

q

that paralizes an individaul and make them become unresponsive),

Hypetension, and high blood fever. That he was mentally incompetent

during the plea allocation hearing and as well as the sentencing

hearing and that he did not understood the nature and consequence of

the proceedings against him or was unable to assist properly in his

defense 18 U.S.C.S. §4241(a).

Second, Petitioner assert that he was medically impaired

by the side effect of medication during the plea haering See plea

colloque and that he was mentally defecient during the plea hearing

due to the influence of the medications and it rendered him to become

incomprehensive, unattentive and uncontrollable due to the sedative

effects of the medication taken and their '. S

- ide effects. That if not

but the medication consumed by petitioner and or the side effect of

the medications, Petitioner would have not underwent the plea allocation

hearing; Hence the medications and the side effects affected the plea

allocation hearing. See:.HuiI.v;eth932F;2d 159 (3d Cir. 1991).

."An -- evidentiary hearing is required to detrmine whether defendant was

prejudiced because of counsel's failure to contest defendant's

competence.

Third, Petitioner assert that he court made a procedural

errol for not filing a motion for competency as required by 18 U.S-C-S

§4241(a). That the district court was aware of evidence of incompetency

in petitioner and that he informed the court of his mental and physical

ilinesse several times See petitioner's letters to the district court

judge and that the district court had independent evidency of his

incompetency through the medical report from the hospital and petitioner's

detention center (Metropolitan Detention'Center and Toronto East Detent

ion

Center Canada),-. But the court did not make a good faith effort

to get

a competency test to assertain petitioner's competency. Hence petitioner

17

is of the beieve that the court procedural error was projudice to him

and that he was incompetent to make a plea, undergo the plea hearing

colloque and the sentencing hearing. And is asking this Honorable

Court to order for an evidentiary hearing as regard to his competency.

Question 2. Whether or not a mentally incompetent defendant is actually

innocent:

Is innocent irrelevant?. There are prosecutors and jurists

who have and continue to argue Yes. To a man in prison, that argument

is rediculous. But, the history of the courts has established a

boundary around the finality of a decision that determines

,

whetever

else it is, habeas corpus is not a means of curing erroneous convictions.

See. e.g ... S.pRep. No 1526. 80th Cong.2d sese.22d sese.22(1984) (as

coidified in current status, "hebeas corpus .....is not a determination

of guilt or innocence of the charge upon which petition was sentenced.

Where a prisoner sustain his rights to discharge in habeas corpus. It

is usually because, some rights.., has been denied which reflects no

dtermination of his guilty or innocence but affects solely the fairness

of his earlier criminal trail"). According to Supreme Court Justice

Holme in his opinion. "What we have to deal with is not the petitioner's

innocence or guilt but solely the question whether their constitutional

rights have been preserved". Moore v. Dempsey, 261 U.S. 86, 87-88 (1929).

But, still the correct answer to the question (Is innocence

irrelevant) is: NO. The fear that a innocent person's liberty or, worse,

his life may be forfeited becuase of unfair proceedings make issuaces

of the Writ most felicitous. See e.g...., Schriro v. Summerlin, 124

S.ct 2519,(2004) ("great writ's basic objective") include "protecting

the innocent against erroneous convictions". This is not an argument

18

that the court should find constititional violation in cases involving

more obviously innocent defendants, when no violation would be found

where the defendants were more obviously guilty. The court properly

ought to take the fact that a innocent person has been convicted of

an offense other than the one for which he is blamed as one, among

other, indicators that an unconstitutional breakdown in the process

has occured, See e.g ....Dretke v. Haley, 541 U.S. 386,,399-400 (2004)

("the law must serve the cause of justice.... Perhaps would miss the

point. In a society devoted to the rule of law, the different between

violating or not violating a criminal statute can not be shrugged

aside as a minor detail.") Accordingly, as a matter of fact and law,

the defendant- petitioner's possible innocence is clearly relevant

and as in a case such as this where a colarable claim as regards the

accurate ascertainment of guilt the Pro-se defendant is obligated to

make these facts plain to the hebeas corpus court.

Whereas, by itself, actual innocence is not a constitutional

claim, Herrar v. Collins, 506 U.S. 390 (1993). But, the Herrara court

expressly left open the possibility that a truly persussive demostration

of !'actual innocent" made after the trail would render the conviction

unconstitutional and warrant hebeas corpus relief. The court has

restricted its concern for "actual innocence" primarily in situations

in which a petitioner seel relief on a potentially meritorious

constitutional claim faces an otherwise dispositive procedural bar to

review or relief and the petitioner proffers a colorable claim of

innocence in order to defeat the bar:

This is not to say that our habeas jurisprudence cast

a blind eye toward innocence.....[wie have held that a

petitioner otherwise subject to defense of abUsive or

successive use of the writ may have his federal

constitutional claim considered on the merits if he

s•:

19

'

makes a proper showing of actual innocence. This rule,

or fundamental miscarraige of justice exception, is

ground in the "equitable discretion" of habeas court to

see that federal constitutional errors do-not result in

the incarceration of innocent persons... But this body

of our hbeas jurisprudence makes clear that a claim of

"actual innocence" is not itself a constitutional claim

[of the sort neede to establish habeas corpus jurisdiction],

but instead a gateway through which a habeas petitioner

must pass to have his otherwise barred constitutional

claim considered on the merits. Harrera Supra, 506 U.S.

at 404.

Therein, the court recognizes "Actual innocence" as a gateway

through defense to the right to habeas corpus review and relief.

Also note that actual innocent if proven serves as a gateway

through what a petition may pass whether the impediment is procedurally bar

as it was in Schiup v. Delo, 513 U.S. 208 115 S.Ct 851 130 L.Ed. 2d 808

also See Mc Quiggin v. Perkin citing Murray v. Corner, 477 U.S. 478.

496, 106 S.ct 2639. 91L. Ed. 2d 397 (1986) where the court said "We

think that in an extraordinary case, where a constitutional violation

has probably resulted in the conviction of one who is actually innocent,

afàl:beas:,urt(185 L.Ed. 2d 1031) may grant the writ in the

absence of a showing of cause for the procedural default. In otherword,

a credible violation showing of actual innocence may allow a petitioner

to pursue his constitutional claims (here ineffective assisatnce of

counsel) on the merit not withstanding the existence of a procedural

bar of relief. The rule, or fundamental miscarriage of justice

exception, is ground in the "equitable discretion" of habeas court to

see that federal constitutional error do not result in the incarceration

of innocent person. Hanera, 506 U.S. at 404, 113 S.Ct 853 122L.Ed. 2d

203.

In petitioner's case, there is several evidence that tend to

indicate innocence in the side of the petitioner and that was convicted

wrongly because he was an innocent person and should have not be

20

p

convicted if not but the procedural errors of the court. See Herrara

SUpra, 506 U.S. at 404. And because of the ineefcetive assistance

of his plea attorney and his sentencing attorney. See Strickland v.

-

Washington, 466 U.S. 668, 104 S.Ct 2052, 80L Ed. 2d 644 (1984). Where

the Supreme Court held that "Counsel's assistance can be deemed so

defective as to require reversal of conviction".

First, petitioner assert that he is innocent, that he is

and have maintained that he is innocent from the begining of the case

till today. At his proffer with the United States attorney and at the

meeting with the FBI agent Morriati and FDIC agent Demicco at his

residence in Uniondale New York just before he was arrested. He plead

NOT GUILTY at his arraignment and maintained his innocence all through

the incomplete plea hearing, the sentencing and till date. See the

sentencing colloque of Jenuary 31, 2016 and look at the remarks made

by Judge Leo Glasser when he said that defendant/ petitioner have

always maintained his innocence till that point he was sentencing

the defendant/petitioner. Also See letter from petitioner to the court

where he indicated that he did not commit the offense he was charged

with KNOWINGLY AND VOLUNTARILLY, but that he was mislead by his then

attorney, mtOr: find ffiiancil.andthegodfáther. of his children.

Second, That petitioner was himself A VICTIM OF THE CRIME in

that he was used as a straw buyer to buy several properties on his

individual name and social security number. That his corporations was

tra:côrporations that was use by Akin Ayorinde who was the head of

the indictment, the actual owner who indeed controlled all his compariés.

NOTE that AKin Ayorinde was a licensed attaorney called to bar in New

York and that petitioner relied on his advice and trusted his judgement

during the time he participated in those illegal transactions. It should

21

also be noted that records indicate that Akin Ayorinde and his

a

colleage Anthony Onua stole all the proceeds of the transactions. See

the indictment and PSI report.

Third, That petitioner can not recall ever signing the plea

agreement because he rufused signing the plea agreement. $Seeiletterifrm

his plèa•'counsel Michael Hueston, also See the Plea agreement and the

pro se motion for withdrawal of plea the court docket sheet where

petitioner request his plea to be withdrawned and that his plea attorney

be excused because of ineffectiveness.

Fou t-tb,'-Thd petitioner was incompetent beacuse he is mentally

ill. That he was mentally and physically unfit to undergo the plea

allocation hearing, coupled with the fact that he was medically impaired

consequence of the sedative effect of the medication he took before

the plea colloque hearing. See plea collogue as per medications taken

beforthp1ea and the medical condition as well as illness of defendant.

And that his -, mental and physical condition worsen consequence of the

side effect of the medications taken befor the plea colloque hearing.

See side effect of medications.

Fifth, That petitioner did not completely answer all the

questions that was asked of him during the Plea allocation hearing, in

that he did NOT RESPOND OR GIVE A YES OR NO RESPOND to several questions

as expected of a complete plea colloque hearing. See the entire plea

tiônhearing colloque. There were several questions unanswered.

Hence, Petitioner believe he has been able to established his

innocence as it was in Herrara v.cjd111in 506 U.S. 390 (1993). And is

asking this Honorable Court to reverse conviction and remand the matter

back to the Court of Appeals for further delebrations or to the District

Court for evidentiary hearing to that regards.

22

Question 3. Whether or not the sentence was procedurally flawed due to

the District Court failure to properly calculate the

Sentencing Guideline Range:

-

Appellate Court begin analysis with review of sentence

procedural reasonaleness. A District Court should normally begin all

sentencing proceeding by calculating, with the assisatnce of the

presentence report, the applicable U.S. Sentencing Guideline Range."

United States v. Cavera, 550 F.3d 180 (2d Cir, 2008) (en bane). After

correctly calculating the applicable Guideline range, the District

Court will then consider the factors listed in 18 U.S.C. §3553(a)

before imposing a final sentence. United States v. Dorves, 616 F.3d

174 (2d Cir 2010; United States v. 0orsey, 723 F.3d 366, 368(2d Cir'I )

2003).

First, The District Court failed to calculate the Guideline in

that the District Court did not articulate a calculation of the

Guideline as required. The record is devoid of a guideline calculation

by the District Court, except for the perfunctory comment that the

parties has agreed to an offense level, as noted above [A-100]. See

Sentencing hearing colloque. The Court did not explain how it had

arrived at the guideline offense level. The presentence report did

calculate the guidelines, which the government and the defense

counsel accepted without challenge, but the Court did nor perform an

independent analysis. This failure to calculate the guideline is

procedural error. See Gall v.United States, 553 U.S. 38 (2007).

Similarly, the District Court failed to analyze the application of

the 3553(a) factors to the defendant, other than in the most cursory

fashion. While the judge said that he "Considered all the factors"

[A-86], he did not articulate them, except to note that was

sentencing Star for the seriousness of his offense. The District Court

23

failed to articulate the factual finding made to support the conclusion

that Star was deserving of a ten year seentence. Each of these failure

-

constitute procedural error. See Gall §upra and this court should

remand the case and remit the matter to the District Court.

Only after he imposed sentence did the District Judge find

that the sentence imposed was "Sufficient, but not greater than

necessary" to reflect the objective of sentencing as set forthe in the

statute, [A-87] of sentencing hearing colloque. His reasonaing should

have been spread upon the record prior to the imposition of sentence.

He did not explain his reasoning in detail, but simply noted the words

of the statute. He did not give the parties the opportunity to be heard

with::regards thereto if they so desired to make an argument or any

recomendat ions.

Second, The District court failed to explain its sentence.

Appellate Court review of the District Court's sentence" encompasses

two components: procedural review and substantive review. "United

St a L

Staf-es v. Cavera, 550 F.3d 1802 189 (2d Cir, 2008) (en bane).

Appellate

Court Will review for procedural issues first, typically engagi

ng in

substantive review only if the sentence is found to be procedurally

reasonable. Gall, 552 U.S. at 49-51. A District Court "Commits

procedural error where it fails to calculate the Guideline range .....

make a mistake in the Guideline calculation. [] treats the Guidel

ines

as mandatory[].... does not consider the 3553(a) factors .....r

ests it

sentence on a clearly errorneous finding of fact[,

].... [or] fails

adequately to explain it chosen sentence ....."Cavera, 550 F.3d at 190

(internal citations omitted); See also Gall, 552 U.S.iat 51.

In petitioner's case, The District Court offered absolutely

no explanation for its Guideline calculation or conclusion that a

sentence of 120 months was appropraite. As such, the sentence is

24

procedurally unreasonable and must be vacated.

Title 18, United States Code, section 3553(c) provides, in

relevant part, that:

[t]he court, at the time of sentence, shall state in open

court the reasons for its imposition of the particular

sentence, and, if the sentence -(1) is of the kind, and

within the range, described in subsection (a)(4) and that

range exceeds 24 months, the reason for imposinga sentence

at a particular point within the range[.].

18 U.S.C. §3553(c)(1). Those reasons given by the District Court

"Must adequately explain the chosen sentence to allow for meaningful

appellate review and to promote the preception of fair sentencing"

Gall, 552 U.S. at 50 (citation omitted). In general, "Sentencing

judge should set forth enough to satisfy the appellate court that he

has considered the parties' argument and has a reasoned basis for

exercising his own legal decision making authority." Rita v. United

States, 551 U.S. 338 (2007).

While sentencing court is not required to specifically

mention every argument presented,

rc

"[W]here the defendantor prosecutor present nonfrivolous

reason for imposing a DIFFERNT SENTENCE.... THE JUDGE will

normally go further and explain why he has rejected those

arguments. Sometimes the circumstance will call for.abrief

explanation; .... by articulating reasons, even if brief, the

sentencing Judge not only assures reviewing court (and the

public) that the sentencing process ía reasoned process but

also help that process elvove" Rita v. United States, supra;

See also United States v. Wallace, 597 F.3d 7949 803(6th Cir, 2010)

("When a defendant raises nonfrivolous argument for a lower sentence,

the record must reflect both that the District judge considered the

def endant's argument and explained the basis of rejecting it"),

(citations omitted); United States v. Carty, 520 F.3d 984, 992-93

(9th Cir, 2008) (en banc) ('[W]hen a party raise a specific nonfrivolous

argument tethered to a relevant §3553(a) factor in support of a

requested sentence, then the Judge should normally explain why he

25

accept or rejects the party's position.").

Third, The District Court did not address the defense

argument. The District Court judge failed to address Star's well

reasoned argument concerning proprtionality of sentence between

defendants, except to note that he had considered it. No further

discussion was entertained, and this de minimis discussion itself

came after sentence had been imposed;

"Mr. SOROKA; first, I ask whether or not the Court considered

the argument of proportionality as between defendants.

THE COURT: I have .... I indicted I have considered all of

the 3553 factors and that is one of them." [A-116-117] of

the sentencing hearing colloque.

Recently, the United States Court of Appeals of the Second

Circuit held that it was inadequate for a district court to state

merely it had "looked ar §3553(a), [and] taken into consideration

[that] argument and submission of counsel" before pronouncing sentence,

United States v. Echeverri, '460 Fed. Appx. 54 (2d Cir, 2012) (Summary

order); See also United States v. Richardson, 521 F.3d 149, 158 (2d

Cir, 2008) (Insufficient explanation where court stated only that it

considered "all the pertinent information including but not limited

to the presentence investigation report, submission by counsel, the

factors outlined in 18 U.S.C. §3553 and the Sentencing Guideline.").

Hence, petitioner believe that he has proven that the District

Court erred in the judgement and that the procedural errors made by

the District Court of not calculating the Sentencing Guideline or

explaining it

and by not addressing defendant/

petitioner is a significant procedural error that requires a reversal

of conviction to resolve for the4. Whether orrnot the appellate waiver provision of an

-inter6fQuestion

s'juc

involutary plea agreement is enforceable:

TH

III1t i dft§ttu 6d narrowly and in accordance

26

with applicable contract law principle. United States v. Ready, 82

F.3d 551,556 (2d, 1996); See also United States v. Yemiltan, 70 F.3d

746 (2d Cir, 1995). Because the government is the party who draft the

agreement and it has "certain awesome advantages in bargaining power."

Ready, 82 F.3d at 558-59. Further, "Because pie agreement are unique

contracts, [this court will[ temper the application or ordinary

contract principles with special due process concern for fairness and

the adequacy of procedural safeguards." United States v. Riggi, 649 F.3d

143,147 (2d Cir, 2011).

Waiver of appellate rights contained within a plea agreement

is generally enforceable as long as the record clearly shows that the

defendant knowingly and voluntarily waived his right to appeal. See

United States v. Granik, 386 F.3d 404,411 (2d Cir, 2004) (holding that

although defendant had reservations regarding calculation of his

sentence, he willfully and knowingly waived his right to appeal);

See also United States v. Morgan, 386F.3d 376 (2d Cir, 2004).

However, Appeal Court and this Supreme Court has declined to hold that

a "waiver of appellate rights forecloses appeal in every circumstance"

or that [a] defendant who waives his rights to appeal... subject[s]

himself to being sentenced entirely at the whim of the District Court.

United States v. Yemitan, Supra at 748.

The key, of course, is konowingly and voluntary waiver of

rights. In Petitioner (Star) case, petitioner assert that:

First. he can not recall ever signing the said plea because

records indicate that he refused signing the plea agreement even up to

a day before the plea allocation hearing.. See Letter from his plea

attorney where Mr. Michael Hueston indicated petitioner's refussal

to sign the plea agreement. See also the plea agreement and the

modifications. NOTE that it does not bear pertitioner's signature!

27

initials as expected of a legal and binding plea agreement(contract) in

accordance to contract law. See United States v. Ready, 82 F.3d 551,

556 (2d, 1996)iSee also United States v. Riggi, 649 F.3d 143, 147

(2d Cir, 2011) as regard contract principle with special due process

concern for fairness and the adequacy of precedural safegaurds.

Second, petitioner was mentally incompetent and unfit to

make a plea. He was suffering from mental illness of anxiety attacks,

physical illness of seizure, sleep apmere, tinnitus and high blood

pressure. He was also medically impaired by the medications he took

before and during the pti atit

htig: So petitioner lacked

the requisite for a competency as require by 18 U.S.C.S. §4241

Third, During petitioner's plea allocation, when the court

reached the discussion of the waiver of the rights to appeal, petitioner

Star) was equivocal. He and his counsel the sought a break for a

private consultation after Star told the court he did not understand

the waiver:

"THE COURT: One of the things I want to make sure that you

understand is that you waived your right to appeal the

sentence, if the sentence is not going to be higher than

210 months. Did you understand that you waived that right

to appeal a sentence if it's not higher than 120 months?.

Do you understand that?.

THE DEFENDANT: I don't---MR. HUESTON(defense Counsel): Excuse me, your Honor.

(Pause)

Mr. HUESTON: Your Honor, could we just take a quick break

just for Mr. Star and I just to talk?" [A-63-641 See the

Plea allocation hearing colloque.

•

-

Immediatelely after the break, record indicates that Star

said he understood the waiver, but there is still a lingering question,

especially given Star's constant whining during the plea allocation,

virtually begging the court for mercy and at times responding to the

Court with irrelevant or tangential statements couple with the fact

record indicate that Star expressed that he have a mental illeness

of anxiety attacks along with physical illness of seizure, sleep apmere,

high blood pressure and that he was of several medication that have

sedative effects. So, while it may be true that Star spoke the words,

there is doubt as to his comprehension of the concept.

To Compound the problem, during the sentencing hearing, The

District Court completely eviscerated the waiver by unequivocally

advising Star that he indeed retained the right to appeal.

THE COURT: At the time Mr. Star pled guilty, I asked him

whether he understood what it means that he waived his

rights to appeal. He said he did. In any event, Mr. Star,

I am advising you that you have the right to appeal your

sentence. I am sure Mr. Soroka will advise you of all that

as well. If you cannot afford to pay for the cost of an

appeal, you can make an application to have the cost

waived." [A-116].

Therefore, since the Appellate waiver was not the product of knowing,

intelligent and voluntary decision by petitioner (Star), and because

the District Court in effect told Star he still retained his right to

appeal, the appallate waiver is not enforceable. See United State v.

Gomez-Perez, 215 F.3d 315 (2d Cir, 2000) ("[appellate] waivers must always

be knowingly, voluntarily and competently provided by the defendant.

CONCLUS S ION

Wherefore, For the above stated reasons, and evidence attached,

petitioner prays that this Honorable Court grant his writ of Certiorari

and remand his matter back to the United States Court of Appeals for

the second Circuit for futher delebrations.

,

,

m

s

ohn Sta

submitted,

ro se petitioner).

Sworn to and sub65(ibed before

;i1

COM

29

NIA

ARIALSEAL

ens. Notary Public

Boro, CentreCounty

on Expires Nov.2. 2020

E::

MEMBER PENNSVLVANIAASSOCIATION OF NOTARIES