Petition for Writ of Certiorari — Tyaan Lamond Joye, Petitioner v. United States

No.

EE1VED

DEC 05 2017

_________________

.OFFIOE OF THE CLERK

jQURT, U

IN THE

SUPREME COURT OF THE UNITED STATES

Tyaan Joye

PETITIONER

-

(Your Name)

vs.

USA

RESPONDENT(S)

-

ON PETITION FOR A WRIT OF CERTIORARI TO

U.S. Court of Appeals, for the Fourth Cir.

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

PETITION FOR WRIT OF CERTIORARI

Tyaan Joye #58641-056

(Your Name)

LSCl/P.O. Box 999

(Address)

Butner, NC 27509

(City, State, Zip Code)

n/a

(Phone Number)

QUESTION(S) PRESENTED

U.S. Court of Appeals, Fourth Circuit, erred in not issuing

COA on Ineffective Assistance of Counsel claim.

LIST OF PARTIES

PKI All parties appear in the caption of the case on the cover page.

(

II] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

rA

TABLE OF CONTENTS

OPINIONSBELOW ......................................................................................................... I

.

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................

STATEMENTOF THE CASE ............................................................................................

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

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

INDEX TO APPENDICES

APPENDIX A

Opinion of USCA

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

(TA

.114

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Raines V. US, 423 F.2d 326 (CA4 1970)

5

US v. Dyess, 730 F.3d 354 (CA4 2013)

D

US v. Stitt, 552 F.3d 345 (CA4 2008)

US v. Poindexter, 492 F.3d 263 (CA4 2007)

6

Buck v. Davis, 137 S. Ct. 759 (2017)

6

Day v. McDonough, 547 Us 198 (2010)

4

Johnson v. US, 135 S. Ct. 2551 (2015)

Beckles' V. US, 137 S. Ct. 886 (2017)

STATUTES AND RULES

28 USC §2255

OTHER

4

-90

P.1-

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix —A to

the petition and is

; or,

[II reported at

{ I has been designated for publication but is not yet reported; or,

is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

to

; or,

{ ] reported at

II] has been designated for publication but is not yet reported; or,

Ellis unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

to the petition and is

Appendix

; or,

[ ] reported at

[] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the

appears at Appendix

______________________________________________

to the petition and is

; or,

[] reported at

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

court

.-

,

JURISDICTION

[

For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was

/LL) ,I.,4 •Zt Z-o('

No petition for rehearing was timely filed in my case.

[II A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

, and a copy of the

order denying rehearing appears at Appendix

[I An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on ___________________ (date)

in Application No.

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[ ] A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

[] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date) in

Application No. _A

.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

2.

.d.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Amendment 5, Due process of law and just compensation clauses.

Amendment 6, Rights of the accused.

28 Usc §2255(b)

28 Usc §2253(c)

3.

STATEMENT OF THE CASE

On June 15, 2016, now retired U.S. District Judge James Fox

issued a Standing Order, assigning the Federal Public Defender.

Office to represent Petitioner, in light of Supreme Court

decision in Johnson v. US, 135 S. Ct. 2551' (2015).

Sherri Alspaugh, AFPD, filed a Motion to Vacate under 28 USC

§2255 on March 21, 2017 and Judge Fox ordered a response from

the government that was Stayed pending the Supreme Court's ruling

inBeckles v. US, 137 S. Ct. 886 (2017).

During the Stay, Alspaugh recommended Petitioner withdraw the

Johnson claim and advised that the withdrawal would not prevent

him from filing additional claims under §2255, which he did

on March 29, 2017, asserting that his representation at

sentencing was ineffective.

Then, on April 17, 2017, the case was transferred to U.S.

District Court Judge Louise Flanagan.

Unfamiliar with the case, Flanagan issued a Show Cause Order

against Petitioner, to explain why his Ineffective Assistance

of Counsel (IAC) claim should be tolled and not dismissed as

untimely.

After a thorough explanation of the series of events leading

up to the amended !AC Claim, Flanagan did not find error in

Alspaugh's advice, but summarily dismissed the claim as untimely,

despite the 'fact that the AEDPA is not a jurisdictional bar

or inflexible rule requiring dismissal whenever its clock has

run. Day V. McDonough, 547 US 198 (2010).

4.

9.

Judge Flanagan denied relief against circuit precedent that

Summary Dismissal is only appropriate when the petition is

frivolous or patently absurd on its face. Raines v. US, 423

F.2d 526 (CA4 1970), US v. Dyess, 730 F.3d 354 (CA4 2013), US

v. Stitt, 552 F.3d 345 (CA4 2008).

The appropriate practice was to require a responsive pleading

so that the U.S. Attorney may be afforded the opportunity to

state the Government's position and admit the merit or veracity

of some or all of the Petitioner's assertions.

5.

REASONS FOR GRANTING THE PETITION

The Fourth Circuit did not evaluate Petitioner's pleading in

favor of the Petitioner, US v. Poindexter, 492 F.3d 263 (CA4

2007), and denied COA on the issue whether the district court

erred in ruling that Petitioner's counsel was not

constitutionally deficient at sentencing.

On February 22, 2017, the Supreme Court ruled against the

practice of deciding the merits of an appeal and then denying

COA, Buck v. Davis, 137 S. Ct. 759 (2017).

A COA issues when an applicant raise a colorable constitutional

claim. It is not until that COA is issued. The Appeals Court

may not rule on the merits of the case.

In this case, the Fourth Circuit erroneously sidestepped the

COA process, because it decided the merits of the IAC claim,

then denied COA based on its adjudication of the merits of the

claim.

The Court of Appeal's denial of COA should be reversed and remanded.

6.

rn

CONCLUSION•

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

L-1

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