Motion to Proceed In Forma Pauperis — Robert Antwain Stanback, Petitioner v. Faye Daniels

Supreme Court briefDec 20, 2017

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IN THE

SUPREME COURT OF THE UNITED STATES

f7 U7' ,4N7WMt/ 5119-N60_

PETITIONER

(Your Name)

VS.

1i9)'é PANit5, Li 4/

RESPONDENT(S)

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner asks leave to file the attached petition for a writ of certiorari

without prepayment of costs and to proceed in forma pauperis.

Please check the appropriate boxes:

D Petitioner has previously been granted leave to proceed in forma pauperis in

the following court(s):

Petitioner has not previously been granted leave to proceed in forma

pauperis in any other court.

Petitioner's affidavit or declaration in support of this motion is attached hereto.

LII Petitioner's affidavit or declaration is not attached because the court below

appointed counsel in the current proceeding, and:

LI The appointment was made under the following provision of law:

El a copy of the order of appointment is appended.

}JI[

ULL

(Signature)

----

---

----

AFFIDAVIT OR DECLARATION

IN SUPPORT OF MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

, am the petitioner in the above-entitled case. In support of

&Nhc)(

my motion to proceed in forma pauperis, I state that because of my poverty I am unable to pay

the costs of this case or to give security therefor; and I believe I am entitled to redress.

1. For both you and your spouse estimate the average amount of money received from each of

the following sources during the past 12 months. Adjust any amount that was received

weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross

amounts, that is, amounts before any deductions for taxes or otherwise.

Income source

Average monthly amount during

the past 12 months

You

Spouse

You

Spouse

sC)

Employment

Self-employment

Amount expected

next month

$c2

Income from real property

(such as rental income)

$c)

$_c_

$_c)

$_C)

Interest and dividends

Gifts

$_________

Alimony

$_c

$_C)

Child Support

$_C)

$_c

$_C

Retirement (such as social

security, pensions,

annuities, insurance)

$_________

Disability (such as social

security, insurance payments)

Unemployment payments

Public-assistance

(such as welfare)

Other (specify):

$_________

(1-"

Total monthly income: $

$ ()

'ii2

$ c)

ciE

$__________

$_________

C-)

$__________

$_ 1"

2. List your employment history for the past two years, most recent first. (Gross monthly pay

is before taxes or other deductions.)

Address

Employer

Dates of

Employment

Gross monthly pay

List your spouse's employment history for the past two years, most recent employer first.

(Gross monthly pay is before taxes or other deductions.)

Address

Employer

ivIq

Dates of

Employmen

Gross monthly pay

How much cash do you and your spouse have? $

Below, state any money you or your spouse have in bank accounts or in any other financial

institution.

Type of account (e.g., checking or savings)

Amount

u have Amount your spouse has

List the assets, and their values, which you own or your spouse owns. Do not list clothing

and ordinary household furnishings.

El Home

Value

LI Other real estate

Value

El Motor Vehicle #1

Year, make & model

Value

LI Other assets

Description

Value

_____

LI Motor Vehicle #2

Year, make & model

Value

State every person, business, or organization owing you or your spouse money, and the

amount owed.

Person owing you or

your spouse money

A/L

Amount owed to your spouse

Amount owed to you

$___

State the persons who rely on you or your spouse for support. For minor children, list initials

instead of names (e.g. "J.S." instead of "John Smith").

Name

Age

Relationship

Estimate the average monthly expenses of you and your family. Show separately the amounts

paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, or

annually to show the monthly rate.

You

Your spouse

Rent or home-mortgage payment

(include lot rented for mobile home)

Are real estate taxes included? LI Yes LI No

Is property insurance included? LI Yes LI No

Utilities (electricity, heating fuel,

water, sewer, and telephone)

Home maintenance (repairs and upkeep)

$_____________

Food

$__________

Clothing

$___________

Laundry and dry-cleaning

$___________

Medical and dental expenses

$___________

--c -

--.-

You

Your spouse

Transportation (not including motor vehicle payments)

Recreation, entertainment, newspapers, magazines, etc.

$__________

Insurance (not deducted from wages or included in mortgage payments)

Homeowner's or renter's

$______________

Life

Health

Motor Vehicle

$clJ

Other:

()

Taxes (not deducted from wages or included in mortgage payments)

(specify):

___

$_________

Installment payments

Motor Vehicle

Credit card(s)

(T)

Department store(s)

$____

Other:

Alimony, maintenance, and support paid to others

Regular expenses for operation of business, profession,

or farm (attach detailed statement)

$_____________

Other (specify):

Total monthly expenses:

$____________

$_____________

$__________

[T:

Do you expect any major changes to your monthly income or expenses or in your assets or

liabilities during the next 12 months?

If yes, describe on an attached sheet.

LI Yes

in connection

Have you paid or will you be paying an attorney any money for seyices

-No

with this case, including the completion of this form? LI Yes

If yes, how much?

If yes, state the attorney's name, address, and telephone number:

Have you paid—or will you be paying—anyone other than an attorney (such as a paralegal or

a typist) any money for services in connection with this case, including the completion of this

form?

LI Yes

If yes, how much?

If yes, state the person's name, address, and telephone number:

Provide any other information that will help explain why you cannot pay the costs of this case.

f( b

/7715' X

,NC69ei

I declare under penalty of perjury that the foregoing is true and correct.

Executed on:

I23

20±

e~~

(Signature)

IN THE

SUPREME COURT OF THE UNITED STATES

ROBERT ANTWAIN STANBACK PETITIONER

VS.

FAYE DANIELS; et al

RESPONDENT(S)

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITIONFOR WRIT OF CERTIORARI

Robert A. Stanback

Pro Se,

RECEIVED

#0386901

601 N. Third St.

Bayboro, NC 28515

FEB

92018

OFFICE OF THE CLERK

SUPREME COURT, U.S.

Dated:

QUESTIONS PRESENTED

IN ASSESSING THE PREJUDICIAL EFFECT OF THE TRIAL

ATTORNEY'S ERROR IS THE FED. R. CRIM. P 23(b) VIOLATION?

IN ASSESSING THE PREJUDICIAL EFFECT OF THE TRIAL

ATTORNEY'S ERROR IS THE TRIAL JUDGE WITHHOLDING LEGAL

JUDGMENT?

IN ASSESSING THE PREJUDICIAL EFFECT OF THE TRIAL

ATTORNEY'S ERROR IS THE TRIAL JUDGE RE-INSTRUCTION WAS

IMPROPERLY COERCIVE AND FAILED TO INClUDE CAUTIONS

REQUIRED UNDER ALLEN?

-V

II.

TABLE OF CONTENTS

PAGES

QUESTIONS PRESENTED............................................................................I

TABLEOF CONTENTS................................................................................II

TABLE OF AUTHORITIES ................ ........................................................... III

OPINIONS AND ORDERS BELOW.................................................................1

BASIS FOR JURISDICTION..........................................................................1

CONSTITUTIONAL AMENDMENT INVOLVED..............................................2

STATEMENT OF THE CASE.........................................................................3

PROCEDURAL HISTORY..................................................................3-4

FACTSOF THE CASE.........................................................................5

REASON FOR GRANTING THE WRIT...........................................................7

1. IN ASSESSING THE PREJUDICIAL EFFECT OF THE TRIAL

ATTORNEY'S ERROR THE REVIEWING COURT ERRED IN

DISMISSING PETITION WHEN TRIAL JUDGE WITHHELD LEGAL

JUDGEMENT...........................................................................8-11

CONCLUSION.......................................................................................... 11

APPENDIX:

UNPUBLISHED OPINION AND JUDGMENT OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

ENTERED AUGEST 1,2017 ................................... ................... la

JUDGEMENT OF THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF NORTH CAROLINA

ENTERED MAY 17, 2017...........................................................2a

JUDGEMENT OF REHEARING THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

ENTERED SEPTEMBER 1, 2017................................................4a

-d

III.

TABLE OF AUTHORITIES

CASES

PAGES

Price vs. Georgia, 398 US. 323, 26 L.Ed 2d 300.90 S.Ct. 1757 (1970).....................6

Greene vs. United States, 355 US. 184, 187, 2L.Ed 2d 199, 78 S.Ct. 221, 77 (1957). .6

Williams vs. Florida, 399 US. 78,90 S.Ct. 1893, 26 L.Ed 2d 446 (1970)..................7

Justices Of Boston Municipal Court vs. Lydon, 466 US. 294, 320-2180 L.Ed 2d 311,

104 S.Ct. 1805..............................................................................................8

State vs. Godwin, 138 N.C. 582; 50 277; (1905)..................................................8

Burks vs. United States, 437 US. I, II, 57L.Ed 2d 1, 98 S.Ct. 2141 (1978)................9

State vs. Roberts, 270 N.C. 449, 154 S.E. 2d 536 (1967).....................................10

State vs. Speckman, 326 N.C. 576, 579, 391 S.E. 2d 165, 167 (1990)......................10

CONSTITUTIONAL PROVISIONS

U.S. CONST. AMEND. V...............................................................................2

U.S. CONST. AMEND. VI..............................................................................2

U.S. CONST. AMEND. XIV............................................................................ 2

STATUTES

N.C.CONST. Art. 1 24.................................................................................7

N.C. GEN. Stat. 15A 1237 (a,b,e)................................................................7

.C.

GEN.

Stat.

West's N.C.G.S.A.

1238.........................................................................6

15A -

iSA 1235 (b,c)................................................................7

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

28 U.S.C. 2254.............................................................................................1

RULES

FED.R.CRIM.P. 23(b).....................................................................................

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

Petitioner Robert Antwain Stanback respectfully requests the Honorable Court to

issue its writ of certiorari to review the opinion and judgment of the United States

Court of Appeals for the Fourth Circuit entered 1 August 2017.

OPINIONS AND ORDERS BELOW

The opinion seeks review of the decision of the Fourth Circuit Court of Appeals

reported at Stanback vs. Daniels, No. 17

6517, 2017 (4th Cir. 1 August 2017)

(unpublished opinion).

The Court of Appeals decision affirmed a decision of the District Court for the

Middle District of North Carolina to deny Stanback's petition for habeas corpus

relief. Stanback vs. Daniels, No. 1:16 cv 1304 (M.D.N.C., 17 May 2017)

(unpublished order).

BASIS FOR JURISDICTION

On 1 August 2017 the court of appeals below entered an opinion and judgment

affirming the district court's denial of habeas corpus relief pursuant to 28 U.S.C.

2254. This petition is therefore timely under U.S. Supreme Court Rule 13 and the

Supreme Court has jurisdiction pursuant to 28 U.S.C. 1254(1).

CONSTITUTIONAL AMENDMENTS INVOLED

U.S. Const. Am. V: "No person shall be subject for the same offence to be twice put

in jeopardy of life or limb".

U.S. Const. Am. 'TI: "In all criminal prosecutions, the accused shall enjoy the

right.., to have the assistance of counsel for his defense".

U.S. Const. Am. XIV: "No state shall.., deprive any person of life, liberty... without

due process of law...

STATEMENT OF THE CASE

PROCEDURAL HISTORY

On 19 April 2001, a jury found Petitioner guilty of attempt Robb

ery with a

dangerous weapon. The trial court then suspended petitioner

2001. On 23 April 2001 the same jury found petitioner guilty

on the basis of murder committed during the perpetration of

trial until 23 April

of first-degree murder

attempted robbery

with a dangerous weapon on the basis of Aiding and Abetting.

The trial court

sentenced Petitioner to life without parole for first degree murd

er and five years for

attempt robbery. (Tpp. 1391 94)

On appeal, Petitioner argued that the trial court erred- by admit

ting out of court

statements by petitioner's co-conspirators into evidence. And

the trial court coerced

a verdict from the jury. (NCCOA)

The North Carolina Court of Appeals found no error. State vs.

Stanback, 2003 N.C.

App. LEXIS 516 (2003) (unpublished opinion). On 8 December

2015, Petitioner

filed a Motion for Appropriate Relief alleging that he received

ineffective assistance

of counsel when his trial attorney failed to object to (1) Fed.R

.Crim.P. 23(b)

violation, (2) Double Jeopardy violation, and (3) re-instructions

include cautions required under Allen.

that failed to

On 16 January 2016, Petitioner's motion was denied. Petitioner then filed

petition for Writ of Certiorari with the North Carolina Supreme Court asking

review of the trial court's denial of his motion (MAR). Petitioner also filed

for a

a petition

for Writ of Habeas Corpus in the federal district court in the Middle Distric

t of

North Carolina.

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-5.

On 9 June 2016, Petitioner's Petition for Writ of Certiorari was dismissed by North

Carolina Supreme Court. On 4 November 2016, Petitioner notified the federal

district court that State remedies had been exhausted. Respondent filed an answer

and a motion for summary judgment. Petitioner filed a response.

On 17 May 2017, the District Court dismissed the petition, denied a certificate of

appealability. Petitioner timely filed notice of appeal 19 April 2017. The Court of

appeals dismissed petition.

FACTS OF THE CASE

Petitioner's case involved the death of Angela Nicole Smith who was pregnant. The

morning of 15 October 1997, Petitioner drove codefendants Percy Patterson and

Jeff Tirniiri to Ignacio Gracia's mobile home near Julian in Randolph County

Petitioner let co-defendants out of the car and Petitioner drove around the -block to

let co-defendants break into the home. Garcia got his pistol and began to fire shots

at the door. Patterson fired shots back at Garcia's home. Tinnin was shot as was

Angela Smith. Angela Smith ultimately died as a result of the gunshot wound

Petitioner offered no evidence at trial.

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At trial the jury was instructed that they could find Petitioner guilty of first

degree murder, attempt robbery with a dangerous weapon and conspiracy.

Defense

counsel did not object to these instructions. (Tp.. 1302-1303)

Thursday 19 April 2001 while deliberating, a juror had to be rushed to the

hospital from chest pains.(Tp. 1323)

Trial judge received and accepted the verdict sheet. (Tp. 1325)

Without no objection from trial counsel, the trial was suspended until the

following Monday 23 April 2001. With all twelve jurors back, trial judge instru

cted

the jurors to continue deliberating. (Tpp. 1342-1343)

The jury found Petitioner guilty of attempt robbery with a dangerous weapo

and guilty of first degree murder on the basis of murder committed during

perpetration of attempt robbery with a dangerous weapon on the basis of

the

aiding and

abetting. It was discovered the jurors found Petitioner guilty of attempt robber

with a dangerous weapon on Thursday 19 April 2001, before trial was suspen

ded.

(Tp. 1353)

While polling the jurors Monday 23 April 2001, the foreman informed the

court. (Tp. 1353)

The trial court dismissed the conspiracy. (Tp. 1391)

Petitioner was sentenced to life imprisonment without parole and five years.

REASON FOR GRANTING THE WRIT

Certiorari is appropriate because the court of appeals below reject

ed Petitioner's

claim of ineffective assistance of counsel in a way that conflicts with

the relevant

decisions of the Court in the following ways. See U.S. Supreme Court

Rule 10(c).

1. IN ASSESSING THE PREJUDICIAL EFFECT OF THE TRIA

ATTORNEYS ERROR THE REVIEWING COURT ERRED IN

DISMISSING PETITION WHEN FED.R.CRIM.P. 23(b) VIOLATIO

It is undisputed that Petitioner was not called upon to elect betwe

en a mistrial or a

Rule 23(b) eleven juror trial. Instead, Petitioner was told that trial

until the following week. In short, Petitioner was forced to delay

was suspended

trial without being

given an opportunity to consider on avenue expressly made availa

ble by the Rules.

FED.R.CRIM.P 23(b). There is no constitutional bar to a jury verdic

t of less than

12. Williams vs. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L.EcI. 2d

446 (1970).

(Tpp. 1323-1326)

April 19, 2001 while deliberating, juror William Routh had to be

rushed to the

hospital from chest pains. Trial counsel failed to object when trial

and received verdict sheet and suspended trial until Monday 23

judge accepted

April 2001.

FED.R.CRIM.P. 23(b) was not considered while trial judge withh

eld legal judgment.

II. IN ASSESSING THE PREJUDICIAL EFFECT OF THE

TRIAL ATTORNEY'S

ERROR THE REVIEWING COURT ERRED IN DISMISSIN

G PETITION WHEN

TRIAL JUDGE WITHHELD LEGAL JUDGMENT.

It is undisputed that before the trial court was suspended

Thursday 19 April

2001, The trial judge explicitly "accepted" and "received" the

attempt robbery with a dangerous weapon withholding that

and there by subjecting Petitioner to "continuing jeopardy".

guilty verdict on

legal judgment

(Tpp. 1332-1325).

A" 'legal judgment' undoubtedly entails the kind of circumsta

nces under

which we may easily conclude that jeopardy has terminated

, it seems obvious

that a state may not evade the strictures of the Clause simp

ly by withholding

a legal judgment and thereby subjecting a defendant to retria

l on the theory

of 'continuing jeopardy"'. Justices of Boston Municipal Court

U.S. 294, 320-21,80 Ed. 2d 311, 104 S. Ct. 1805 (Brennan,

Withholding legal judgment and sending the jurors home

vs. Lydon., 466

J., concurring).

until the following

Monday, the members of the jury were exposed to influences

extraneous to

the deliberations of the entire jury as a body. Hence the jury

had been

"dispersed" within the meaning of N.C.G.S.S. 15A-1238. It

is the duty of the

judge to look after the form and substance of a verdict so as

doubtful or insufficient finding from passing into the recor

to prevent a

ds of the court.

"State vs. Godwin., 138 N.C. 582; 50 S.E. 277 (1905).

--.

.--

The Double Jeopardy Clause is "to protect an individual from being subjected

to the hazards of trial and possible conviction more than once for and alleged

offense". Burks vs. United States 437 USJ, 11, 57 L.ECI 2d 1, 98 S.Ct. 2141

(1978); Quoting Green vs. United States, 355, 323, 26 L.Ed 2d 300, 90 S.Ct.

1757 (1970).

10.

III. IN ASSESSING THE PREDUDICJAL EFFECT OF THE TRIAL ATTORNEYS

ERROR THE REVIEWING COURT ERRED IN DISMISSING PETITION WHEN

RE-INSTRUCTION FAILED TO INCLUDE CAUTIONS REQUIRED UNDER

ALLEN.

On Monday 23 April 2001, the jury in the Petitioners case received erroneous

re-instructions. The aiding and abetting "element of Petitioner's first-degree

murder offense was based on the same as the attempt armed robbery. When

a person is charged with mutually exclusive offenses the jury must be

instructed that it can find a defendant guilty of one or the other but not both.

State vs. Speckman, 326 N.C. 576, 574, 391 S.E. 2d 165, 167 (1990).

The re-instructions did not include a caution that jurors need not give up

their conscientiously-held views. Petitioner unable to distinguish the reinstructions given by the trial judge in the present case from those found to

be prejudicial error warranting a new trial in State vs. Roberts, 270 N.C. 449.,

154 S.E. 2d 536 (1967).

In addition, this re-instruction came after the judge already received the

guilty verdict of attempt robbery on Thursday 19 April 2001, withholding

that legal judgment until Monday 23 April 2001.

11.

Without Petitioner cooperating with authorities there is nothing to put him

in the car. There is no evidence that Petitioner ever getting out of the car

or having

a weapon. On the other hand, there was much stronger evidence that Petitio

ner

was an accessory after the fact. Mr. Tinnin and Mr. Patterson each was

originally

charged with first-degree murder. Unlike Petitioner, they took a plea deal

Second-degree murder. If the Petitioner had the option to use a 11-man jury

or a

mistrial that's expressly stated by Fed.R.Crim.P. 23 (b), there is a reason

able

probability that the Petitioner would have had a mistrial had trial judge

not

withheld legal judgment.

CONCLUSION

The decision below finding no Strickland prejudice is in conflict with the

decisions of this Court. The flawed analysis of the court below resulted in

the

erroneous conclusion that Petitioner failed to show a reasonable probability

of a

different result.

Petitioner therefore respectfully requests that this Honorable Court issues

its

writ of certiorari to review the decisions of the U.S. Court of Appeal for the

Fourth

Circuit in order to do justice and ensure that the prejudice standard of Strickl

and

and its progeny is applied correctly and consistently.

12.

Respectfully submitted, this the 1 December 2017.

Robert A. Stanback

Robert A. Stanback, Petitioner

Pro Se

#0386901

601 N. Third St.

Bayboro, NC 28515

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.