Petition for Writ of Certiorari — Stephen Maurice Burks, Petitioner v. United States

Supreme Court briefNov 29, 2017

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Text

No.

DEC a 5 201?

IN THE

SUPREME COURT OF THE UNITED STATES

STEPHEN MAURICE BURKS, PETITIONER

vs.

UNITED STATES OF AMERICA, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEPHEN MAURICE BURKS, PRO SE

REG. NO. 40380-050

FCC PETERSBURG CAMP

P0 BOX 1000

PETERSBURG, VA 23804

QUESTIONS PRESENTED

Does this Court's recent decision that the Certificate of Appealability

"inquiry

is not coextensive with a merits anaylsis" in Buck v.

Davis, 137 S.Ct. 759 (2017) implicate the Fourth Circuit Court of

Appeals' Local Rule 34(b)

which requires a full-merits briefing by

pro se petitioners before the application for a COA is reviewed?

...

Does this Court's recent holding in Lee v. United States, No. 16-327

(June 23, 2017), compel reversal in this case because evidence

supports

and the District Court admits

that Petitioner withdrew

his plea of not guilty and accepted a plea agreement solely because his

attorney had convinced him that the Government would dismiss the one

charge against him in favor of monetary reimbursement, but a separate,

identical charging instrument had been filed by the Government

one

which Petitioner's attorney never showed him or told him about, and one

which the District Court never explained at his Rule 11 Hearing

and

this hidden charging instrument was used to convict and sentence him,

mooting the only consideration offered by the Government in exchange for

Petitioner's plea?

TABLE OF CONTENTS

SECTION

PAGE

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

iii

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY AUTHORITIES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

THIS COURT'S HOLDING IN BUCK V. DAVIS IMPLICATES AND DEMANDS

REVISION OF THE FOURTH CIRCUIT'S REQUIRED BRIEFING ON THE MERITS WHEN A

PETITIONER SEEKS A CERTI1?ICATE OF APPEALABILITY (COA)

THIS COURT'S RECENT RULING IN LEE V. UNITED STATES COMPELS REVERSAL

BECAUSE EVIDENCE SUPPORTS

AND THE DISTRICT COURT ADMITS

THAT

PETITIONER WITHDREW HIS PLEA OF NOT GUILTY AND ACCEPTED A PLEA AGREEMENT

SOLELY BECAUSE HIS ATTORNEY HAD CONVINCED HIM THAT THE GOVERNMENT WOULD

DISMISS THE ONE CHARGE AGAINST HIM IN FAVOR OF MONETARY REIMBURSEMENT,

BUT A SEPARATE, IDENTICAL CHARGING INSTRUMENT HAD BEEN FILED BY THE

GOVERNMENT

ONE WHICH PETITIONER'S ATTORNEY NEVER SHOWED RIM OR TOLD

RIM ABOUT, AND ONE WHICH THE DISTRICT COURT NEVER EXPLAINED AT HIS RULE

11 BEARING

AND THIS RIDDEN CHARGING INSTRUMENT WAS USED TO CONVICT

AND SENTENCE HIM, HOOTING THE ONLY CONSIDERATION OFFERED BY THE

GOVERNMENT IN EXCHANGE FOR PETITIONER'S, PLEA

CONCLUSION

DECLARATION PURSUANT TO RULE 29.2 OF THE RULES OF THE SUPREME COURT

CERTIFICATE OF SERVICE

flnrTnrxr

THE JUDGMENT AND OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT DECLINING A CERTIFICATE OF APPEALABILITY AND DISMISSING

App Al

APPENDIX B

THE OPINIONS AND ORDERS OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF VIRGINIA DENYING RELIEF UNDER 28 U.S.C. § 2255

App.B1

TABLE OF CONTENTS (cont.)

SECTION

PAGE

APPENDIX C

THE ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

DENYING PETITION FOR REHEARING AND REHEARING EN BANC

App. Cl

THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND TITLE 28, UNITED

STATES CODE, SECTION 2253

App .Dl

FOURTH CIRCUIT COURT OF APPEALS LOCAL RULE 34(b)

App.E1

STANDARD INFORMAL PRELIMINARY BRIEFING ORDER PROVIDED BY THE FOURTH CIRCUIT

COURT OF APPEALS

App .Fl

TABLE OF AUTHORITIES

CASES

Buck v. Davis, 580 U.S.

PAGE

137 S.Ct. 759, 773, 774 (2017)

5,6

Hill v. Lockhart, 474 U.S. 52 (1985)

Lee v. United States, 198 L.Ed.2d 476, 484 (2017)

passi-m

Miller-El v. Cockrell, 537 U.S. 322, 336-337 (2003)

Puckett v. United States, 556 U.S.

173 L.Ed.2d 274, 282 (2009) 12,13

Roe v. Flores-Ortega, 528 U.S. 470, 482-83 (2000)

Slack v. McDaniel, 529 U.S. 473, 484 (2000)

Strickland v. Washington, 466 U.S. 668, 695 (2000)

United States v. Burks, 586 F. App'x 141, 142 (CA4 2014)

United States v. Burks, No. 17-6540 (CA4 2017)

United States v. Burks, No. 3:13-cr-00144-REP-DJN (E.D. Va.)

Williams v. Taylor, 529 U.S. 362, 391 (2000)

111

TABLE OF AUTHORITIES (cont..)

CONSTITUTIONAL, AUTHORITIES, AND STATUTES

PAGE

SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

passim

TITLE 18, UNITED STATES CODE, SECTIONS 1341 & 2

TITLE 28, UNITED STATES CODE, SECTION 2253

2,5-7

TITLE 28, UNITED STATES CODE, SECTION 2255

2,6,10

RULES

PAGE

FEDERAL RULES OF CIVIL PROCEDURE RULE 59(e)

4,8,11

FEDERAL RULES OF CRIMINAL PROCEDURE RULE 7

FEDERAL RULES OF CRIMINAL PROCEDURE RULE 11

FOURTH CIRCUIT LOCAL RULE 22(â)

FOURTH CIRCUIT LOCAL RULE 34(b)

6,7

No.

IN THE

SUPREME COURT OF THE UNITED STATES

STEPHEN MAURICE BURKS, PETITIONER

VS.

UNITED STATES OF AMERICA, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Petitioner,

Stephen Maurice Burks, pro Se, respectfully petitions

for a writ of certiorari to review the judgment of the United States Court of

Appeals for the Fourth Circuit in this case which affirmed the judgment of

sentence imposed in the District Court.

STEPHEN MAURICE BURKS, PRO SE

REG. NO. 40380-050

FCC PETERSBURG CAMP

P0 BOX 1000

PETERSBURG, VA 23804

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the Fourth Circuit

denying a Certificate of Appealability (COA) is unreported and attached

hereto as Appendix A. The judgment denying habeas relief entered by the

United States District Court for the Eastern District of Virginia is

unreported and attached hereto as Appendix B.

JURISDICTION

The judgement of the United States Court of Appeals for the Fourth

Circuit became final on September 25, 2017 upon denial of a Petition for

Panel Rehearing and Rehearing En Banc. See Appendix C. The jurisdiction of

this Honorable Court is invoked pursuant to Title 18, United States Code,

Section 1254(1).

CONSTITUTIONAL AND STATUTORY AUTHORITIES INVOLVED

The issues related herein concern the application and interpretation of

Title 28, United States Code, Section 2253(c), which permits an appeal from

the denial of a motion under 28 U.S.C. § 2255 only "if the applicant has made

a substantial showing of the denial of a constitutional right;" and the Sixth

Amendment to the United States Constitution, which provides, in part, "[in

all criminal prosecutions, the, accused shall enjoy the right ... to have the

Assistance of Counsel for his defence." See Appendix D.

STATEMENT OF THE CASE

On August 30, 2013, a federal grand jury returned a one-count indictment

charging Burks with mail fraud in violation of 18 U.S.C. H 1341 and 2. On

October 30, 2013, Burks plead not guilty at Arraignment and requested a jury

trial. [Docs. 1 and 13]1.

1All district court entries ("Doc.") in this matter are from United States

v. Burks, 3:13-cr-00144-REP-DJN (E.D. Va.).

At the arraignment, Magistrate Judge M. Hannah Lauck told Assistant US

Attorney Jessica Aber that there was something wrong with the indictment and

that she needed to correct it. Ms. Aber admitted she was aware of the error

and agreed to correct it. [Doc. 13].

Over the next few weeks, Burks's attorney visited him twice in jail. At

each of those meetings, she attempted to convince Burks to reconsider his

plea of not guilty. During these attorney visits, counsel told Burks that he

risked a 20-year sentence by pleading not guilty and going to trial. She

emphasized the "20-year" risk numerous times. [Doc. 64-1, it 41.

While Burks was afraid of the prospect of 20 years in prison, he was

still unwilling to plead guilty because he did not believe he had committed

the charged crime. [Doc. 64-1, 11 4].

Burks only became willing to enter a plea agreement when his counsel

told him that

if he plead guilty

the Government had agreed to dismiss

the pending indictment and pursue no further charges.

[Doe. 64-1, ¶ 51.

Burks was not aware of any other potential charges, so this statement further

supported his counsel's statement that the Government had agreed to dismiss

his indictment. Burks thought that this meant he would have monetary

penalties but not risk any prison time. For Burks, this did not seem

unreasonable because he had no reason to believe his attorney would give him

incorrect or inaccurate information, and he had no understanding of legal

proceedings beyond what he'd read in newspapers or seen on television. [Doe.

64-1, ¶ 61.

Unknown to Burks, on November 20, 2013, the Government copied the

indictment Magistrate Lauck had cautioned the Government to correct word-forword into a criminal information. [Docs. 1 and 151. Burks was not aware of

the existence of this separate charging instrument until much later, as

demonstrated by the lack of signature on the information and the Rule 11

Hearing on November 26, 2013, where Burks clearly did not know what a

criminal information was.

[Docs. 15; 16, P. 7; 64-1, ¶ 2,, 15].

Burks has maintained that

but for counsel's convincing him to

withdraw his plea of not guilty by telling him the Government would dismiss

the charge against him

Burks never would have changed his plea, and he

would have pursued his original path to trial. [Doc. 64-1, ¶ 16].

After Burks entered into the Plea Agreement, the Government did dismiss

the indictment, relying on the recently filed criminal information which

Burks did not even know existed to maintain the charge.

[Docs. 15 and 19].

As a result, Burks was convicted of one count of mail fraud

brought in the indictment/criminal information

the only count

and sentenced to 115 months

imprisonment on March 20, 2014. [Doc. 411.

On appeal, Burks challenged the significant upward departure from the

properly calculated US Sentencing Guidelines and challenged counsel's

ineffectiveness for failure to develop the record at sentencing. This Court

affirmed with the instruction to raise any ineffective assistance of counsel

claims through a motion to vacate, set aside, or correct a sentence under 28

U.S.C. § 2255.

See United States v. Burks, 586 F. App'x 141, 142 (4th Cir.

2014)

Burks filed such motion challenging that his counsel's failure to

challenge the defective language in the indictment/ information constituted

ineffectiveness assistance and challenging that the Plea Agreement lacked any

genuine consideration.

(Doc. 55).

The District Court denied that motion,

noting specifically that Burks "is mistaken in his belief that the Government

agreed to move for dismissal of the very charge to which he plead guilty."

[Doc. 62, P. 91.

Burks filed a timely motion to reconsider under Federal Rule of Civil

Procedure 59(e) [Doc. 64], but the District Court denied the motion, calling

it a "rehash" of the underlying § 2255 petition. [Doc. 661.

Burks applied for a Certificate of Appealabilty, which the Fourth

Circuit Court of Appeals denied onJuly 25, 2017 in an unpublished opinion.

See United States v. Burks, No. 17-6540 (4th Cir. July. 25, 2017).

Burks petitioned for rehearing and rehearing en banc to the Fourth

Circuit Court of Appeals contending that the Fourth Circuit's local rules

regarding the Certificate of Appealability inquiry were contrary to this

Court's holding in Buck v. Davis, 580 U. S.

137 S.Ct. 759 (2017),

especially the Circuit's application of its local rules in relation to pro se

applicants. The Circuit Court denied the petition on September 25, 2017.

This request for writ of certiorari follows.

REASONS FOR GRANTING THE WRIT:

I. TRIS COURT'S HOLDING IN BUCK V. DAVIS IMPLICATES AND DEMANDS REVISION OF

THE FOURTH CIRCUIT'S REQUIRED BRIEFING ON THE MERITS WHEN A PETITIONER SEEKS

A CERTIFICATE OF APPEALABILITY (COA)

Last term, this Court clarified the requirements for the issuance of a

Certificate of Appealability (COA) holding that the COA "inquiry

...

is not

coextensive with a merits analysis." Buck v. Davis, 580 U.S. -, 137 S.Ct.

759, 773 (2017). Chief Justice Roberts wrote the opinion for the Court,

especially instructing that "[a] 'court of appeals should limit its

examination [at the COA stage] to a threshold inquiry into the underlying

merits of [the] claims,' and ask 'only if the District Court's decision was

debatable.'" Id.

This comports with the long-standing application of Slack v. McDaniel,

529 U.S. 473, 484 (2000), describing that a COA applicant must make only a

substantial showing of the denial of a constitutional right

by 28 U.S.C. § 2253(c)(2)

as emphasized

and that the District Court's assessment of the

constitutional issue is debatable or wrong.

As the Chief Justice further explained:

That a prisoner has failed to make the ultimate showing that his claim

is meritorious does. not logically mean that he failed to make a

preliminary showing that his claim was debatable. Thus,.. when a

reviewing court ... inverts the statutory order of operations and 'first

decid[es] the merits of an appeal, ... then justif[ies] its denial of a

COA based on its adjudication of the actual merits,' it has placed too

heavy a burden on the prisoner at the COA stage. Miller-El v. Cockrell,

537 U.S. [322], 336-337 (2003). Miller-El flatly prohibits such a

departure from the procedure prescribed by § 2253.

The statute sets forth a two-step process: an initial determination

whether a claim Is reasonably debatable, and then

if it is

appeal in the normal course. We do not mean to specify what procedures

may be appropriate in every case. But whatever procedures are employed

at the COA stage should be consonant with the limited nature of the

inquiry.

Buck, 137 S.Ct., at 774 (emphasis and alterations added).

The. Fourth Circuit has yet to address its Local Rule 34(b) or standard

Informal Preliminary Briefing Order post-Buck, but the clear - and unambiguous

language In its published rule and issued orders demonstrate an apparent

contradiction to the Court's clear instruction in Buck.

The Fourth Circuit's . Local Rule 22(a) governs Certificates of

Appealability, and its Local Rule 34(b) go'&erns the filing of Informal

Briefs, including applications for COA under Rule 22(a). Fourth Circuit

Local Rule 34(b) expressly specifies:

Whenever the Court determines pursuant to Local Rule 22(a) that briefing

is appropriate on an appeal in a non-capital case from the denial of a

writ of habeas corpus or of a motion under 28 U.S.C. § 2255 ... the

clerk shall notify that appellant that [he or she] shall file, within 21

days after service of such notice, an informal brief, listing the

specific issues and supporting facts and arguments raised on appeal.

Fourth Circuit Local Rule 34(b) (emphasis added); see also Appendix E.

The Fourth Circuit's standard Informal Preliminary Briefing Order

especially betrays the too-heavy merits-briefing requirement:

The court will review the informal opening brief in determining whether

to grant a certificate of appealability. If a certificate of

appealability is granted, the informal opening brief will also serve as

appellant's opening brief on the merits of the appeal if the aellant

is proceeding pro Se.

Fourth Circuit's standard Informal Preliminary Briefing Order (emphasis

added); see also Appendix F.

Requiring a pro se appellant seeking •a COA to fully brief the merits of

the appeal before the Fourth Circuit Court of Appeals will even review the

Application for such COA is the very picture of what this Court rebuked last

term in Buck. Perhaps more disturbingly, the Fourth Circuit only requires

this of pro se applicants and only seeks to use the same informal brief

applying for a COA as the merits-brief when such petitioner is without

counsel.

As such, Petitioner Burks submits to this Honorable Supreme Court that

the Fourth Circuit's Local Rule 34(b) and standard practices of requiring pro

se appellants to brief more fully than schooled appellate attorneys not only

violates this Court's holding in Buck but also calls into question the

additional hurdle the Circuit Court adds to appellants without counsel.

These serious matters warrant the grant of certiorari and review by this

Court.

II.

THIS COURT'S RECENT RULING IN LEE V. UNITED STATES COMPELS REVERSAL

BECAUSE EVIDENCE SUPPORTS

AND THE DISTRICT COURT ADMITS

THAT PETITIONER

WITHDREW HIS PLEA OF NOT GUILTY AND ACCEPTED A PLEA AGREEMENT SOLELY BECAUSE

HIS ATTORNEY HAD CONVINCED HIM THAT THE GOVERNMENT WOULD DISMISS THE ONE

CHARGE AGAINST HIM IN FAVOR OF MONETARY REIMBURSEMENT, BUT A SEPARATE,

IDENTICAL CHARGING INSTRUMENT HAD BEEN PILED BY THE GOVERNMENT

ONE WHICH

PETITIONER'S ATTORNEY NEVER SHOWED HIM OR TOLD HIM ABOUT, AND ONE WHICH THE

DISTRICT COURT NEVER EXPLAINED AT HIS RULE Ii HEARING

AND THIS HIDDEN

CHARGING INSTRUMENT WAS USED TO CONVICT AND SENTENCE HIM, HOOTING THE ONLY

CONSIDERATION OFFERED BY THE- 'GOVERNMENT IN EXCHANGE FOR PETITIONER'S PLEA

Last term, this Court emphasized that

when reviewing a habeas

petitioner's claim that he would have gone to trial instead of accepting a

plea agreement but for bad advice from counsel, such petitioner does not have

to show what the result of that trial would have been, only that he would

have proceeded to trial but for the bad advice of counsel.

Chief Justice Roberts, writing for the Court in Lee, expressly

explained:

When a defendant alleges his counsel's deficient performance led him to

accept a guilty plea rather than go to trial, we do not ask whether, had

he gone to trial, the result of that trial "would have been different"

than the result of the plea bargain. That is because, while we

ordinarily "apply a strong presumption of reliability to judicial

proceedings," "we cannot accord" any such presumption "to judicial

proceedings that never took place." We instead consider whether the

defendant was prejudiced by the "denial of the entire judicial

proceeding ..i to which he had a right."

Lee, 198 L.Ed.2d 476, 484 (2017)(quoting Roe v. Flores-Ortega, 528 U.S. 470,

482-83 (2000)).

The Lee decision further instructed that this type of inquiry "demands a

'case-by-case examination' of the 'totality of the evidence.' Williams v.

Taylor, 529 U.S. 362, 391 (2000); Strickland [v. Washington], 466 U.S., at

695. And, more fundamentally,

...

the inquiry

prescribed in Hill v.

Lockhart, [474 U.S. 52 (1985)] focuses on a defendant's decisioninaking, which

may not turn solely on the likelihood of conviction after trial."

This case is about a defendant who plead not guilty, rejected a plea

agreement numerous times and said he wanted to proceed to trial, and who

ultimately plead guilty when his attorney convinced him the Government was

going to dismiss the only charge against him of which he was aware. It is

undisputed that Petitioner never saw .the criminal information to which he

ultimately

and unknowingly

plead guilty. It is also undisputed

and

even., admitted by the District Court in its Opinion in the underlying habeas

case

that Petitioner believed that the Government was going to dismiss the

only charge against him of which he was aware.

The question to be resolved by this Court is whether the undisputed and

specific statements Petitioner alleged throughout his habeas petition and

timely-filed motion under Federal Rules of Civil Procedure Rule 59(e) that

his counsel convinced him that the Government was going to dismiss the only

charge against him, pursuing only monetary reimbursement, in return for his

guilty plea constitutes a violation of his Sixth Amendment right to the

effective assistance of counsel for his criminal defense and requires

reversal so that a trial may ensue.

Though it had several opportunites to do so, the Government •never

presented any evidence or affidavit from Petitioner's Counsel contesting

that

after more than two failed attempts to convince Petitioner to accept

a plea agreement

she told Petitioner that the Government was dismissing

the charge against him in exchange for his guilty plea and only pursuing

monetary reimbursement. Similarly, the Government failed to present any

evidence to demonstrate that Petitioner was ever presented, shown, or made

aware of the actual charging instrument to which he plead guilty, but

rather

Petitioner presented the following evidence from the record that

supports his allegations.

On October 30, 2013, at Petitioner's Arraignment, Magistrate Judge M.

Hannah Lauck told Assistant US Attorney Jessica Aber that there was something

wrong with the indictment that she need to correct, and Ms. Aber told the

judge in open court that she was already aware of the error with the

indictment and that she would correct it. [Doc. 13].

This is important for two reasons: Petitioner did see this charging

instrument and heard in open court that there was an error with it that

needed to be corrected; and the indictment was actually defective because it

failed to list the statute Petitioner's alleged conduct was charged under,

requiring dismissal of such indictment. See [Docs. 1 and 13]; Federal Rule

of Criminal Procedure 7 ("For each count, the indictment

...

must give the

official or customary citation of the statute, rule, regulation, or other

provision of law that the defendant is alleged to have violated.").

In an attempt to correct the error, Ms. Aber then filed a subsequent

charging instrument in the form of a criminal information on November 20,

2013, just six (6) days before Petitioner's scheduled Rule 11 Plea Hearing on

November 26, 2013. It is undisputed that Petitioner's attorney did not meet

with him in between the November 20th filing and the November 26th hearing.

At the beginning of that hearing, the record shows that Petitioner's attorney

arrived late and

2013

by her own admission in the courtroom on November 26,

that she did not bring a copy of the criminal information because,

she stated as her reasoning,

not one of the signed documents." [Doc.

16, P. 71.

As such, the record clearly supports that

at a minimum

Petitioner's counsel never showed him the unsigned charging instrument which

she failed to bring with her when she arrived late at the courtroom for the

November 26th plea hearing.

Further evidence that Petitioner did not even know what a criminal

information was comes from that plea hearing:

THE COURT: Okay. And did you receive a copy of

information?

...

criminal

THE DEFENDANT: Yes. Is this it?

MS. AUSTIN [Petitioner's counsel]: We don't have it in front of us.

It's not one of the signed documents.

[Doc. 16, P. 71.

Obviously, Petitioner did not know what a criminal information was or

what a criminal information looks like, based on the record above. Later,

when. Petitioner filed his § 2255 petition, he called on the District Court to

enforce the Government's agreement to dismiss the indictment as it agreed.

The District Court answered this request first by recognizing that Petitioner

really did believe that the Government had agreed to dismiss the one count to

which he had plead guilty, then secondly correcting Petitioner's "erroneous

belief." [Doc. 62, pp. 8-91.

Petitioner's habeas arguments, relying on hisequest théE the District

Court enforce the Government's agreement to dismiss his indictment, support

that

even then

he did not yet know anything about the separate charging

instrument filed against him, just as Petitioner swore under penalty of

perjury in his Rule 59(e) Motion, filed to challenge that he never would have

accepted a plea agreement had his attorney made him aware of the separate

charging instrument and had she not convinced him that the Government would

dismiss the only charge against him and pursue only monetary reimbursement in

exchange for his guilty plea.

Although this argument was especially prper in light of the District

Court's habeas denial, the District Court dismissed Petitioner's timely Rule

59(e) Motion as though it were a "second or successive" request rather than a

part of the underlying habeas proceeding already before the Court.

During the habeas proceeding, the Government argued that there was no

prejudice because

it contended

there were other benefits that

Petitioner received in his plea agreement, namely that the Government agreed

not to further prosecute any other related charges. It also emphasized that

it did dismiss the indictment as promised, but it never even attempted to

show. that Petitioner's attorney made him aware of the separate charging

instrument which had been hidden from Petitioner.

These elements are critical because

if Petitioner had other

motivations on which he relied to withdraw his not guilty plea and move

against taking the case to trial

then the District Court would have

rightly concluded that no prejudice existed for Petitioner's claim. As it

turns out, the •record clearly states that no other such motivations existed

or were moot.

As far as the Government's agreement not to further prosecute in

relation to "other related conduct," it never specifies in the habeas

proceedings what conduct it was considering but decided to forego despite

Petitioner's allegations during the underlying habeas proceedings that

his knowledge

no other related conduct that could have been prosecuted

outside of the charge of conviction existed. Whether the Government actually

considered bringing any other charges or not, Petitioner has alleged

the Government did not attempt to rebut

and

that he is unaware of any other

such conduct, meaning that such possible consideration did not play any part

in Petitioner's decision to withdraw his guilty plea and accept a plea

agreement.

The Government offered no other possible reasons why Petitioner might

have chosen to withdraw his plea of not guilty and accept a plea agreement

after rejecting such a plea multiple times. Instead, it agrees that it had

promised to dismiss the indictment as the consideration it gave in exchange

for Petitioner's guilty plea. As noted earlier, the District Court and the

Government had both already admitted on the record that such indictment was

defective and needed to be corrected anyway. Regardless of such agreement by

the Government, the defective indictment would have had to be dismissed, just

as it was. As such, the Government has admitted that the consideration it

provided was set to deliberately break after the Petitioner entered the

guilty plea, in obvious violation of this Court's precedent of Puckett v.

United States, 556 U.S.

173 L.Ed.2d 274, 282 (2009)(Instructing against

the Government inducing admission of guilt by plea agreement by making an

agreement that "deliberately breaks" or is meaningless).

When the Government induces such a plea of guilt by agreeing to dismiss

the indictment but files an identically-worded charging instrument

which Petitioner's attorney and the District Court fail to inform Petitioner

before he enters the guilty plea

it raises concerns that, like the

defendant in Lee, Petitioner had no other reasons on which he relied except

this "deliberately breaking" one his attorney erroneously conveyed was the

only such charging instrument.

It also raises the concern that Petitioner was tricked into entering a

plea of guilt after rejecting a plea numerous times.

This Court has previously emphasized that, in situations where

deliberately self—breaking consideration is the only such consideration

offered to induce a guilty plea, a court should "[rledress

such

fundamentally unfair behavior by the Government, whether by vacating the plea

or enforcing the plea agreement.

...

If the Judiciary is worried about

gamesmanship and extra proceedings, all it needs to do is minimize their

likelihood by making it plain that it will require the Government to keep its

word or seek rescission of the plea agreement." Puckett, 173 L.Ed.2d, at 282.

In a case such as this, where no legitimate consideration was provided

by the Government to induce Petitioner's guilty plea, usually revisiting the

plea would be required to determine whether it could still stand, but in a

case where no consideration remains to induce Petitioner's guilty plea, a

finding that the plea must be withdrawn is appropriate.

Further, in accordance with this Court's recent holding of Lee, a

summary grant, vacate, and remand is warranted.

* * *

THIS SPACE INTENTIONALLY LEFT BLANK * * *

CONCLUSION

WHEREFORE, it is respectfully requested that a Writ of Certiorari be

granted.

RESPECTFULLY SUBMITTED,

STEPHEN MAURICEThURKS, PRO SE

REG. NO. 40380-050

FCC PETERSBURG CAMP

P0 BOX 1000

PETERSBURG, VA 23804

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