Petition for Writ of Certiorari — Glenn Sunkett, Petitioner v. Martin Biter, Warden

NO. 17A782

IN THE SUPREME COURT OF THE UNITED STATES

FEBRUARY 3, 2018

Mr. Glenn Sunkett-Petitioner

V.

United States of America -Respondent

PETITION FOR WRIT OF CERTIORARI

Mr. Glenn Sunkett

In Pro Per

K.V. S. P.

P. 0. Box 5102

Delano Ca. 93216

QUESTION PRESENTED

In Petitioner's case, does the judgement from the District Court for the

Northern District of California, conflict with the U.S. Supreme Court decision

rendered in Buck v. Davis, 580 U.S.

(2017); when the District court denied

-

Petitioner's federal Writ of Habeas Corpus and application for Certificate Of

Appealability at the same time, in the same proceeding, without Petitioner

ever filing a COA in the District Court?

if this court finds that this is in fact a due process violation, as deemed so

in Buck v. Davis, did the District Court's violation then divest the Ninth Circuit of

jurisdiction to hear Petitioner's appeal, and apply the proper standard set forth

in Buck v. Davis?

C) If this court finds that the Ninth Circuit did indeed have jurisdiction to act

upon Petitioner's appeal, then, did the Ninth Circuit Court deny Petitioner's

application for a COA in a manner that conflicts with the U.S. Supreme Court

decision rendered in Buck v. Davis, when it failed to resolve the question, at the

COA stage and before issuing its denial, whether jurist of reason could disagree

with the District Court's resolution of Petitioner's constitutional claims, or that

jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further?

TABLE OF CONTENTS

QUESTION PRESENTED ...............................................................................2

TABLE OF AUTHORITIES ............................................................................4

OPINIONBELOW ...........................................................................................5

JURISDICTION...............................................................................................6

STATUTORY PROVISIONS INVOLVED .....................................................6

LIBERAL CONSTRUCTION OF PRO SE PLEADINGS ...............................7

APPLICATION OF FEDERAL RULES OF CIVIL PROCEDURE ................7

STATEMENT OF THE CASE .........................................................................8

STATEMENT OF FACTS ................................................................................10

ARGUMENT....................................................................................................11

REASON FOR GRANTING WRIT .................................................................12

CONCLUSION................................................................................................14

APPENDIXA-F ..............................................................................................

VERIFICATION/PROOF OF SERVICE ..........................................................

TABLE OF AUTHORITIES

Cases

Miller-El, 537 U.S. at 336-337).

Marshall v. .Jerrico, Inc., 100 S.Ct. 1610,1613 (1980).

Buck v. Davis, 580 U.S. _(2017) (slip opinion)

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Woodford v. Garceau, 538 U.S. 202,208 (2003)

Mayle v. Felix, 125 S.Ct. 2562, 2566 (2005)

Cullen v. Pin holster, 131 S.Ct. 13 88,1402, fn. 12 (2011)

Taylor v. Maddox, 366 f. 3d 992, 999 (9th Cir. 2004)

Gonzales v. Thaler, 132 S.Ct. 641 (2012)

Rios v. Garcia, 390 f.3d 1082, 1086 (9th Cir. 2004)

Ross v. Blake, 578 U.S.

(2016)

Earp v. Stokes, 423 f.3d 1024, 1032 (Ninth Cir. 2005)

Phelps v. Alameida, 569 f.3d 1120, 1124 (9th Cir. 2009)

Mayle v. Felix, 125 S.Ct. 2562, 2569 (2005)

Cooks v. So/is, 606 f.3d 1206, 1212 (9th Cir. 2010).

Puckett v. US., 556 U.S. 129 (2009)

Statutes and Rules

28 U.S.C. § 1254

28 U.S.C. § 2243

28 U.S.C. § 2253

28 U.S.C. § 2254

5th Amendment

Federal Rules of Civil Procedure

4

IN THE SUPREME COURT OF THE UNITED STATES

FEBRUARY 3,2018

Mr. Glenn Sunkett-Petitioner

V.

The United States of America-Respondent

On Petition for a Writ of Certiorari to the

United Sates Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner, Mr. Glenn Sunkett, respectfully prays that a writ of certiorari issue to review

the judgement(s) of the United States Court of Appeal for the Ninth Circuit, in case no. 1617320, entered August 18, 2017 (Certificate Of Appealability), and November 8, 2016

(Motion for Reconsideration).

OPINION BELOW

On August 18, 2017, a panel of the Circuit Court of Appeals entered its opinion affirming

the judgement of the United States District Court for the Northern District of California. The

court ruling is attached herein.

JURISDICTION

The Court of Appeals entered its judgement denying a COA on August 18, 2017, and a

Motion for Reconsideration on November 8, 2017. Jurisdiction of this court is invoked under

28 U.S.0 § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 2243.

"Federal courts are authorized under 28 U.S.0 § 2243, to dispose of habeas corpus

matters "as [law] and [justice] require'." Id.

28U.S.C2253

This United States Supreme Court has interpreted the congressional intent of 28 U.S.0 §

2253 to mean that "A COA determination should be made in a 'separate proceeding' [distinct]

from a decision on the merits of a Petitioner's claim." (see Miller-El, 537 U.S. at 336-337).

28 U.S.0 § 2254

Under this section, a Petitioner must show that he is in state custody, and his continued

detention violates his Fifth Amendment right to due process to a fair and just court

proceeding. Petitioner must also show that the state court of appeal decision is "contrary to,"

or an unreasonable application of "clearly established" "Supreme Court precedent."

5th AMENDMENT

The due process clause in our constitution entitles a person to an impartial and

disinterested tribunal in both civil and criminal cases. This requirement of neutrality in

adjudication proceedings safeguards the two central concerns of procedural due process, the

prevention of unjustified or mistaken deprivations and the promotion of participation and

dialogue by affected individuals in the decision making process. (Marshall v. Jerrico, Inc.,

100 S.Ct. 1610,1613 (1980).

BUCK v. DAVIS, 580 U.S. (2017); REITERATING MILLER-EL v.

COCKRELL,

537 U.S. 322(2003).

On February 22, 2017, in the case Buck v. Davis, 580 U.S.

(2017), the United States

Supreme Court, reiterated and instructed the correct and proper standard for a federal court of

appeals and/or District Court to examine a state prisoner's Certificate of Appealability. In

Buck, the high court held:

A state prisoner who's petitionfor a writ of habeas corpus is denied by 4

federal district court does not enjoy an absolute right to appeal. Federal law

require that he first obtain a COA from a circuit justice or judge.

Buck v. Davis, 580 U.S.

(2017) (slip op., at p. 12) (citing 28 U.S.C. § 2253 (c)

(1)). (Emphasis added).

A COA may issue "only if the applicant has made a substantial showing of the denial of a

constitutional right." Id. (citing 28 U.S.C. § 2253 (c) (2). Until the prisoner secures a COA,

the court of appeals [may not] rule on the merits of his case. Id. (citing Miller-El v. Cockrell,

537 U.S. 322, 336 (2003)). The COA inquiry, we have emphasized, is [not coextensive] with

a merits analysis. (See Buck v. Davis, slip op. at p. 13).

At the COA stage,the paly question is whether the applicant has shown that "jurist of

reason could disagree with the court's resolution of his constitutional claims or that jurists

could conclude the issues presented are adequate to deserve encouragement to proceed

further." Id (quoting Miller-El v. Cockrell, 537 U.S. at 327). (Emphasis added).

This threshold question should be decided without "full consideration of the factual or

legal bases adduced in support of the claims." Id. "When a court of appeals sidesteps [the

COA] process by first deciding the merits of an appeal, and then justifying its denial of a

COA based on its adjudication of the actual merits, it is in essence deciding an appeal without

jurisdiction." Id. (quoting Miller-El, 537 U.S. at pp. 336-337).

LIBERAL CONSTRUCTION OF PRO SE PLEADINGS

It's been long established that federal courts hold pro se pleadings to less stringent

standards than formal pleadings drafted by a licensed attorney, and liberally construe such

pleadings when determining whether they state a cause of action. (e.g. see Erickson v. Pardus,

551 U.S. 89, 94(2007).

APPLICATION OF FEDERAL RULES OF CIVIL PROCEDURE

Federal rules of civil procedure apply to all habeas corpus proceedings. The civil rules

"govern the procedure in the United States District Courts in all suits of civil nature." Rule 1.

This includes "proceedings for.., habeas corpus," Rule 81 (2) (2), but only "to the extent that

the practice in such proceedings is not set forth in statutes of the United States [or] the rules

governing section 2254 cases [habeas rules]," civil rule (2) (2); see also habeas rule H. Thus,

"[t]he federal rules of civil procedure apply in the context of habeas suits to the extent that

they are not inconsistent with habeas corpus rules." (Woodford v. Garceau, 538 U.S. 202,208

(2003); Mayle v. Felix, 125 S.Ct. 2562, 2566 (2005) (In ordinary civil proceedings, the

governing rule, rule 8 of the federal rules of civil procedure, requires only "a short and plain

statement of the claim showing that the pleaded is entitled to relief." [Omitted] Rule 2 (c) of

the rules governing habeas corpus requires a more detailed statement. The habeas rule

instructs the petitioner to "specify all the grounds for relief available to [him] "and to "state

the facts supporting each ground." By statute, congress provided that a habeas petition "may

be amended... as provided in the rules of procedure applicable to civil actions." 28 U.S.C. §

2242.).

STATEMENT OF THE CASE

Petitioner was tried on multiple charges stemming from a robbery that occurred in

Mendocino County, California. (Case no. SCUK-CRCR-09-0089877-002). The central issue

of the People's case was eyewitness identification, made by two Caucasian witnesses. The

Petitioner is African-American. The Petitioner's defense against the identifications at trial was

a scientifically based one, necessary to show the jury commonality in mistaken identification,

and the significant impact the erroneous, tainted, and suggestive identification process

employed on both witnesses by law enforcement, combined with complicating factors

experienced by both witnesses such as cross-race issues, fear, stress, weapons focus, and poor

lighting at the time, as well as their prior conflicting descriptions of the perpetrator, and their

own racially biased testimony, has in evaluating the 'certainty' of the eyewitness

identifications.

The Defense requested, by way of a 402 hearing, to introduce expert evidence on crossrace eyewitness identification to explain to the jury how these specific psychological factors,

all on the record in this case, have a significant impact on a witness's memory, perception, and

certainty in what they've experienced before and after the incident. (SRT 1084-1089).

The trial court denied the Defense request to introduce expert testimony due to the public

defender making the request 'late' in trial (SRT 1090). On June 30, 2009, Petitioner was found

guilty of all charges and allegations. After the trial concluded, the trial court acknowledged

that the identification procedure employed by law enforcement was "highly suggestive." (7RT

1756).

Petitioner filed several Marsden Motions which were heard on September 30, 2009,

October 23, 2009, January 8, 2010, January 22, 2010, and February 24, 2010 claiming

ineffective assistance of counsel; that counsel failed to investigate and retain a eyewitness

expert for trial, failed to investigate and call critical alibi witnesses, failed to investigate and

introduce exculpatory evidence indicating Petitioner's innocence, and a variety of other IAC

questions. All motions were denied.

8

Petitioner then raised these same IAC claims, and several due process issues at his

Motion for New Trial hearing. Public Defender, Ms. Lynda Thompson provided testimony at

this hearing and admitted to many of the claims made against her which were pertinent to

Petitioner's IAC claims. (7RT 1639, 1640, 1644-46, 1649-50, 1662,-66, 1671-74). Lead

investigator for the defense, Mr. William Kidd, also testified at this hearing and stated that he

recommended the Public Defender investigate an eyewitness identification expert for trial

evidence six months Drior to the trial date. (7RT 1612-13). The trial court denied this motion

on October 15, 2010 and sentenced Petitioner to 63 years in California state prison.

Petitioner filed a timely state habeas petition and Opening brief in the First Appellate

District Court of Appeals. (Case no. A130086) Petitioner raised these same IAC and due

process issues (as well as several others) to this state appellate court as well. Most significant

to this current federal writ, Petitioner claimed three things:

The Public Defender failed to investigate and retain an eyewitness

identification expert at trial for evidence against the central issue of the

People's case, and to properly educate the jury, and give credibility to

the Defense's scientifically based facts and studies.

The Trial Court denied the Petitioner the right to present a complete

defense against the central issue of the People's case, when it denied

Petitioner his constitutional right to present expert testimony in his

defense at trial due to the Public Defender's "late" request/error.

The Public Defender's cumulative errors and/or deficiencies such as

a) failing to investigate and retain expert witness, (b) failing to investigate

alibi witnesses provided her before trial, (c) failing to competently

establish an alibi, (d) failing to present readily available exculpatory

evidence; and (e) failing to meet and confer with Petitioner in a manner

necessary to elicit all matters of defense, significantly impacted the

outcome of Petitioner's trial.

The Appeals court denied the direct appeal and the habeas corpus inside the same Opinion on

October 25 2012.

,

On October 25, 2012, Petitioner promptly filed a Petition for Review in the California

Supreme Court. On January 3, 2013, the court summarily denied the petition.

Petitioner filed a writ of habeas corpus in pro-per in the U.S. District Court Northern

District of California on June 2, 2015. (Case no. 3: 14-cv-00069-RS). Petitioner raised the

same IAC and due process claims he'd exhausted in the state court. In this petition, Petitioner

also claimed that the State Appellate court's decision was concluded on its own errors in trial

facts, and the court made several "unreasonable determinations of facts, which it relied on

significantly in its resolve (and ultimate denial) of whether the trial court's denial of

eyewitness expert testimony at trial was just, and not prejudicial to the defense. On December

6, 2016 the District Court--without ever resolving the errors and unreasonable determination

of facts shown to be made by the lower court--denied the petition and entered a judgment

against the petitioner. (See Appendix A; District Court Judgement). Jr the

order, the

District Court denied a certificate of appealability on all constitutional claims; without a COA

ever being filed in the court. (See Appendix B; page. 29 of the District Court's Order

denying petition for writ of habeas corpus an COA).

On December 16, 2016, Petitioner filed a timely notice of appeal. On December 30,

2016, Petitioner filed a timely motion for reconsideration requesting that the court review

petitioner's constitutional claims, and to consider and correct the errors the State Appellate

Court made in the facts that held significant influence in its Opinion, as well as in the federal

District Court Opinion. (Dist. Ct. Doc. No. 30). On May 3, 2017, the District Court issued an

order denying Petitioner's motion for reconsideration (Dist. Cf. Doc. No. 31).

On February 10, 2017, Petitioner filed his Application for a Certificate of Appealability

in the Ninth Circuit Court. (Case no. 16-17320) (9th Cir. Doc. No. 4). Petitioner brought only

the 3 issues listed above to the court, which specifically and competently details violation(s)

of Petitioner's constitutional right to due process and a fair court proceeding. Petitioner also

claimed and showed that the lower courts rulings were made in error, and decided, on an

unreasonable determination of the facts directly related to its resolve of whether the exclusion

of expert testimony was just and non-prejudicial to the Petitioner at trial.

On August 18, 2017, the court denied Petitioner's Application for a COA without review

of the merits, or resolving any of the errors in the facts-Petitioner proved by the trial recordmade by the lower courts. (See Appendix C; Ninth Circuit Order). On September 14,

2017, Petitioner filed a motion for reconsideration (9th Cir. Doe. No. 7); reiterating the

constitutional violations and prejudicial errors that occurred and still exist and stand

uncorrected inside the lower courts opinions. On November 8, 2017, the court denied the

motion for reconsideration without review of the merits. (See Appendix D; Ninth Circuit

Order). For that reason, no mandate was issued.

STATEMENT OF FACTS

In support of this instant motion to vacate the Ninth Circuit Court's judgement, and in

order to prevent an erroneous ruling from working an injustice, Petitioner respectfully adopts,

incorporates, reaffirms, and realleges all facts and information set forth in Petitioner's

application for Certificate Of Appealability, and Motion For Reconsideration, as though fully

set forth herein. (See Appendix E; Petition for COA in the Ninth Circuit; see also

Appendix F; Motion for Reconsideration in the Ninth Circuit.).

ARGUMENT

The District Court Opinion was obviously adopted in large part from the State Appellate

Courts Opinion because its decision also used the same errors in the facts first introduced by

the State Appellate Court, to deny Petitioner relief, despite Petitioner's clear presentation of a

prima facie case for relief, and substantial showing of error, and the denial of constitutional

rights under 28 U.S.0 § 2253 (c) (2). In its Order, the District court denied Petitioner's

federal writ of habeas corpus on the merits and an issuance of a certificate of appealability at

the same time,in the same proceeding. (See Appendix B). The court's error constituted an

"unreasonable determination of facts" under the provisions of 18 U.S.C. § 2254(d) (2), and

undoubtedly violated the Supreme Court decision rendered in Buck v. Davis.

Then, the Ninth Circuit clearly violated Buck v. Davis when it reviewed, then denied,

Petitioner's COA erroneously and prejudicially by failing to first resolve the question of

whether jurists of reason could disagree with the District Court's resolution of Petitioner's

constitutional claims or that jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further. (See Appendix Q.

To show error, and the denial of constitutional rights, Petitioner supported all arguments

and constitutional claims with reliable material, Reporter's transcripts, trial evidence, and case

records that were all generated and presented in the state court proceedings. (See Cullen v. Pin

holster, 131 S.Ct. 1388,1402, fn. 12(2011); see also Taylor v. Maddox, 366 f. 3d 992, 999

(9th Cir. 2004) (A federal court may not "second-guess" the state court's fact-finding process

unless, on "review of the state court record," it determines that the state court was not merely

wrong, but actually unreasonable.).

Buck v. Davis, reiterated and instructed the correct and proper standard for a federal court

of appeals and/or a district court to examine a state prisoner's Certificate of Appealability.

This high court held:

"A state prisoner who's petition for a writ of habeas corpus is denied by a federal

district court does not enjoy an absolute right to appeal. Federal law requires that

he first obtain a COA from a circuit justice or judge." Buck v. Davis, 580 U.S.

(2017) (slip op., at p. 12) (citing 28 U.S.C. § 2253 (c) (1)).

"A COA determination should be made in a 'separate proceeding,' [distinct] from

a decision on the merits of a petitioner's claim." (Miller-El v. Cockrell, 537 U.S.

11

322, 336-337 (2003).

A COA may issue "only if the applicant has made a substantial showing of the denial of a

constitutional right." Id. (citing 28 U.S.C. § 2253 (c) (2). Until the prisoner secures a COA,

the court of appeals [may not] rule on the merits of his case. Id. (citing Miller-El v. Cockrell,

537 U.S. 322, 336 (2003)). The COA inquiry, we have emphasized, is [not coextensive] with

a merits analysis. (See Buck v. Davis, slip op. at p. 13).

At the COA stage, the only question is whether the applicant has shown that "jurist of

reason could disagree with the court's resolution of his constitutional claims or that jurists

could conclude the issues presented are adequate to deserve encouragement to proceed

further." Id. (quoting Miller v. Cockrell, 537 U.S. at 327).

This threshold question should be decided without "full consideration of the factual or

legal bases adduced in support of the claims." Id. "When a court of appeals sidesteps [the

COA] process by first deciding the merits of an appeal, and then justifying its denial of a

COA based on its adjudication of the actual merits, it is in essence deciding an appeal without

jurisdiction." Id. (quoting Miller-El, 537 U.S. at pp. 336-337).

Even defects in the COA itself do not deprive a court of appeal of jurisdiction over the

appeal. (See Gonzales v. Thaler, 132 S.Ct. 641 (2012).

The District Court is enforcing a local rule, where it is deciding federal habeas corpus

petitions on the merits, and automatically denying a COA, without a COA actually being filed

in its court. Thereby,the District Court deprived Petitioner of the ability to make a

preliminary showing that his claims are debatable. Buck and Miller-El flatly prohibit such a

departure from the procedure prescribed by 28 U.S.C. § 2253. (Buck, slip op. at p. 14; MillerEl, at pp. 336-337; see also Rios v. Garcia, 390 f.3d 1082, 1086 (9th Cir. 2004) (reversing

judgment granting relief and declining, for "lack of COA," to address ground raised by

prisoner to save judgment).

The Ninth Circuit Court is simply not abiding by the provisions set forth by this Supreme

Court in Buck v. Davis, in regard to what the proper standard is when reviewing a petitioner's

application for a COA. The court has not given any indication in its order that it followed the

proper standard according to Buck v. Davis or Miller-El, in its review of Petitioner's COA, or

his Motion for Reconsideration. (See Appendix C & D).

This prejudicial error, justifies the grant for this court to vacate one or both of the

California Northern District Court, and The Ninth Circuit Courts' final judgements.

REASONS FOR GRANTING THE WRIT

12

Both the District Court and the Ninth Circuit Court violated Petitioner's Fifth Amendment

right to due process when both courts judgements conflict with this Supreme Court's decision

rendered in Buck v. Davis 580 U.S.

(2017), regarding the proper standard for

considering COA relief. Simply put, this United States Supreme Court has interpreted the

congressional intent of 28 U.S.C. § 2253, to mean:

"A COA determination should be made in a 'separate proceeding' [distinct] from a

decision on the merits of a petitioner's claim." (Miller-El, 537 U.S. at 336-337;

Buck, 580 U.S.

(slip op., at p. 13).

Notably, the U.S. Supreme Court also provided this standard for lower courts to follow

when evaluating whether to grant a request for a COA as well.

It is a undisputable fact that the District Court's December 6, 2016 order is evidence that

the lower court denied federal habeas relief on the merits and a COA (without petitioner filing

an actual COA in its court), in one and the same proceeding, which clearly conflicts with 28

U.S.C. § 2243, 2253, 2254, Miller-El v. Cockrell, and Buck v. Davis. The court's ruling

caused Petitioner to suffer too heavy a burden and prejudice. (e.g. see Buck, slip op. at p. 14)

(When a reviewing court... inverts the statutory order of operations and "first decid[es] the

merits of an appeal, then justiflies] its denial of a COA based on its adjudication of the

actual merits," it has placed too heavy a burden on the petitioner at the COA stage) (citing

Miller-El, 537 U.S. at 336-337). Miller-El [flatly] prohibits such a departure from the

procedure prescribed by 28 U.S.C. § 2253. Id. (e.g. see also Ross v. Blake, 578 U.S.

(20 16) ("We are interpreting and applying" not a judge-made doctrine but a "statutory

requirement," and therefore must honor congress's choice.) (Citation).

...

Next, the Ninth Circuit Order rendered on August 18, 2017, indisputably shows that the

Ninth Circuit did not consider and apply the standard for granting COA; a standard of which

this Supreme Court established in Miller-El, and re-enforced in Buck v. Davis. (See Appendix

C).

In order to prevent the District Court's December 6, 2016, and Ninth Circuit Court's

August 18, 2017 erroneous rulings from working an injustice, a grant for recall of the court(s)

final order and a scheduled evidentiary hearing is necessary and justified. (e.g. see Earp v.

Stokes, 423 f.3d 1024, 1032 (Ninth Cir. 2005) ([W]here the petitioner establishes a colorable

claim for relief and has never been afforded a state or federal hearing on this claim, we must

remand to the District Court for an evidentiary hearing.); Phelps v. Alameida, 569 f.3d 1120,

1124 (9th Cir. 2009) (Here, because the District Court incorrectly applied a per se rule to

reject Phelps' motion for reconsideration rather than evaluating the specific circumstances of

Phelps' case, and because we conclude that the extraordinary circumstances of this case merit

relief under fed.r.civ.p. 60(b) (6), we reverse the denial of Phelps' motion for reconsideration

and remand for an evaluation of the merits of his habeas petition.).

13

Petitioner humbly asserts, that he set forth in his habeas Corpus, COA, and Motion for

Reconsideration (9th Cir. Doc. No. 7), he provided plain and detailed claims for relief, which

cogently "made a substantial showing of a denial of constitutional rights," under 28 U.S.C. §

2253 (c) (2), and strongly argued that "jurist of reason could conclude the issues presented are

adequate to deserve encouragement to proceed further." Petitioner now request for this

Supreme court, or instruct either lower court to, conduct a de novo determination with respect

to all legal claims presented in Petitioner's COA and/or Motion for Reconsideration,

according to the standards established in Buck, and Miller-El (e.g. see Buck, 580 U.S.

2017 (slip op. at p. 14) (that a prisoner has failed to make the ultimate showing that his claim

is meritorious does not logically mean he failed to make a preliminary showing that his claim

was debatable). Id., at slip op., p. 15 ("[A] claim can be debatable even though every jurist of

reason might agree, after the COA has been granted and the case has received full

consideration, that the petitioner will not prevail.").

Petitioner also asserts that the state appellate court's decision in determining whether the

Petitioner had a constitutional right to present a complete defense, and introduce expert

testimony at trial against the central issue of the People's case, was concluded on its own error

in trial facts and unreasonable determinations of fact. The Federal District then failed to

address and correct the lower court errors, and proceeded to use the same errors and

unreasonable determinations of facts in their own Opinion in deciding the denial of the

eyewitness expert issue and the IAC issue. The Ninth Circuit had an opportunity to correct

these errors but failed to even address the error, and failed to recognize and award relief for a

legitimate violation of Petitioner's due process rights.

As a direct result of the District Court's December 16, 2016, and Ninth Circuit's August

18 2017, prejudicial judgements denying a COA in a manner that conflicts with 28 U.S.C. §

2253, 2254, Buck v. Davis, and Miller-El, petitioner is entitled to an evidentiary hearing and

this court should remand this case back to the Ninth Circuit to hold such a hearing. In the

alternative, at least, petitioner should be granted leave to file an amended motion for

reconsideration in the Ninth Circuit, in order to detail all errors and unreasonable

determination of facts made by the State Appellate Court and the federal district court, and

detail a substantial denial of several constitutional rights, that entitle Petitioner to federal

habeas relief. (See Mayle v. Felix, 125 S.Ct. 2562, 2569 (2005) (The petitioner seeks to

amend his habeas corpus petition... under rule 15 of the federal rules of civil procedure, which

applies to habeas corpus petitions, as well as other pleadings.).

CONCLUSION

In light of the inconsistency with the Northern District Court and Ninth Circuit Courts'

approach to issuing a COA, compared to other District's and Circuit's around the United

States, Petitioner's petition for certiorari should be granted to secure and maintain uniformity.

Further, certiorari should be granted to correct the inconsistencies of the lower courts

14

judgement compared with the United States Supreme Court analysis and decision rendered in

Buck

Wherefore, Petitioner respectfully request for this Supreme court to grant the following

relief:

Grant this instant motion in full, under 28 U.S.C. § 2243, in the interest ofjustice.

Determine whether the District Court and/or Ninth Circuit Judgements conflict with 28

U.S.C. § 2253, Buck, ant/Miller-El, and violated Petitioner's constitutional right to due

process and a fair proceeding.

Correct all issues of procedural and prejudicial error made by the state courts, the federal

District Court, and the Ninth Circuit Court.

Conduct a De novo determination in this court, or instruct the lower court to do so, with

respect to Petitioner's COA and motion for reconsideration; and ultimately issue a COA sua

sponte, according to Cooks v. Solis, 606 f.3d 1206, 1212 (9th Cir. 2010). Alternatively, grant

leave to file an amended motion for reconsideration, under fed.r.civ.p., rule 15, to be heard by

an en banc court or the merit panel.

Grant an evidentiary hearing, with respect to all constitutional claims presented in

Petitioner's COA and motion for reconsideration (9th Cir. Doc. No. 7).

Consider 'plain error review' under Puckett v. Us., 556 U.S. 129 (2009). Petitioner has

already shown herein that the District Court's error(s), discussed above, was forfeited in the

District Court, the error(s) is clear and obvious, and the error(s) affects Petitioner's substantial

rights. This Supreme Court has the jurisdiction to exercise its discretion if it is found that the

'error' seriously effects the fairness, integrity or public reputation ofjudicial proceedings.

Any other, and further relief, or decision making process, I pray this Supreme court deem

fair and just.

I declare under penalty of perjury that the foregoing is true and correct, except as for those

matters stated upon information and belief, and as for those matters I believe them to be true.

Respectfully submitted,

February 3, 2018.

Mr. Glenn S. Sunkett

AF-1727

Petitioner

44#15