Petition for Writ of Certiorari — Yasith Chhun, Petitioner v. United States

No.

IN THE

SUPREME COURT OF THE UNITED STATES

CHHUN YASITH

PETITIONER

(Your Name)

VS.

UNITED STATES OF AMERICA

RESPONDENT(S)

-

ON PETITION FOR A WRIT -OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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

PETITION FOR WRIT OF CERTIORARI

CFIHUN YASITH

(Your Name) #31900-112

UNITED STATES PENITENTIARY CANAAN

(Address)

P.O.BOX 300 WAYMART, PA 18472.

(City, State, Zip Code)

NONE

(Phone Number)

PAGE 1

QUESTION(S) PRESENTED

WHETHER the "COA" ought to issue-and an appeal of the District

Court's Order to deny COA and §2255 MOTION (not made a substantial

showing of the denial of a constitutional right, not procedural ground)

might properly be taken-when District Court ignored and repeatedly

denied without giving full consideration to the substantial evidences

(Appendices G,H& I) which Petitioner put forth in support of his valid

"jurisdictional defects" and"constitutional"claims? See Appendix-B.

WHETHER the "COA" and §2255 MOTION should be granted where this

case presented the "jurisdictional issues" which cannot be waived, or

forfeited under"COTTON"decision of this Court. The jurisdictional defect

cannot be"procedurally defaulted',' must be corrected, and Petitioner need...

not show"cause and prejudice"to collaterally.attack? See AppendixE & F.

WHETHER the "COA" and §2255 petitions should be granted wher'e

this case presented the "prosecutorial misconduct" before indictment

and before the grand jury when Prosecutor undermined the 2005 grand

jury's independence and integrity. He acted outside his role conducting

his own investigation, during his face-to-face interviews, then his

personal outrage meter tipped before indictment? See Appendix-G p.22-23..

WHETHER the "COA" and §2255 petitions should be granted where

this case presented, with intent and personal outrage meter tipping

sought for"Yasith Chhun deserved to go to prison for a very long time",

prosecutor premeditatedly planned and used improper methods calculated

to obtain indictment to produce wrongful conviction toward cruel punishment? See ADDendix-H and I attached.

PAGE 2

WHETHER the "COA" and §2255 petitions should be granted where

this case presented, under the political obligation and influence, the

prosecutor used

as a sacrificial lamb and expendable pawn

offered up in exchange with the Cambodia's cooperation to fight thewar

on terror in Southeast Asia region? See Appendix-G page 25 attached.

WHETHER the"COA" and §2255 petitions should be granted where this

case presented the diplomatic fruits from using petitioner as a political

expendable pawn and sacrificial lamb followed by a new opening of FBI

office in Phnom Penh, Cambodia. The FBI agent Donald Shannon affirmed

and made his adequate statement in Appendix-G Page 25 that':'Ifitweren't

for Chhun..." to support the above claim?

WHETHER the"COA" and §2255 petitions should be granted where this

case presented the'1prosecutorial misconduct" before indictment and before

the 2005 grand jury led into the fatal material variance between GEX 68

and Overt Act # 2, improper jury instructions created structural error,

and deprivation of the U.S District Court's jurisdiction to sentence by

leaving it incapable of determining if a"properly constituted grand jury"

would have indicted Chhun Yasith?

WHETHER the"COA" and §2255 petitions should be granted where this

case presented the"jurisdictional"defects and"cons titutional"violations

warranting dismissal .ofr.indictment under a court's inherent supervisory

power? Also, the ineffective counsel's deficient performance fell below

an objective standard of reasonableness and professional norm demanded

competent attorney, as a result, Petitioner suffers fundamentally unfair?

PAGE 3

TABLE OF CONTENTS

Page

OPINION BELOW .....................................................6

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

7

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

8

STATEMENT OF THE-CASE...

. ..........................................

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

25

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

33

INDEX OF APPENDICES

Appendix-A:

Copy of 9th Circuit Court's Denial of COA Rehearing

and Rehearing En bancVconstrued"to be reconsideration,

petition dated on 12/15/2017;

Appendix-B:

Copy of U.S District Court's denial of §2255 motion

dated on 9/14/2016;

Appendix-C:

Copy of U.S District Court's Denial of "COA" petition

dated on 09/01/2017;

Appendix-D:

Copy of Petitioner's"COA" Rehearing and Rehearing

en banc petition filed on 11/20/2017;

Appendix-E:

Copy of Petitioner's"COA" petition filed with 9th

Circuit Court on 09/25/2017;

Appendix-F:

Copy of Petitioner's"COA" petition filed with U.S

District Court on 09/24/2016;

Appendix-G:

Copy of Atavist's article written by Adam piore published

in April 2012 reported about prosecutorial misconduct

and political influence;

Appendix-H:

Copy of first supersed indictment filed on 11/06/2005;

Appendix-I:

GEX 68's Evidence has discrepancies from Overt Act

PAGE 4

2.

INDEX OF APPENDICES (CONTINUED...)

APPENDIX-J: Copies of Statutory Provisions §956, §1111, U.S.S.G.

§2A2.1's first degree murder & its definition of first

degree murder under §11.11;

APPENDIX-K: Copies of Jury Instructions Final Judgment, Jury Verdict,

and H.Res.533 passed on 10/10/1998.

'I

PAGE 4-1

TABLE OF AUTHORITIES CITED

CASES:

Butz v. Economou, 438 U.S at 511 (1978)

Miller-El v. Cockréll, 537 U.S.322,327 (2003)

Joseph v.Patterson, 795 F.2d 549,556 (6th Cir.1986)

U.S v. )Cotton, 535 U.S 625,630 (2002)

Genzler v. Longanbach, 410 F.3d 630 (9th Cir.2005)

Kalina v. Fletcher, 522 U.S.118,502 (1997)

Bergerv. United States., 295 U.S.782 88 (1935)

United States V. Lopez-Avila, 768 F.3d 955 (9th Cir.2012)

United States v. Hogan, 712 F.2d 757 (2nd Cir.1983)

United States v. Sears,719 F.2d 1386 2 1391 (9th Cir.1983)

Bank of Nova Scottia v. United States, 487 U.S.250,256(1986)

United States v. Ciambrone, 601 F.2d 616,623. (2nd Cir.1979)

United States v. Serubo,. 604 F.2d 807,818 (3rd Cir.1979)

,

United States v. Williams, 504 U.S.36,45-7 (1992)

United States v. Isgro, 974 F.2d 1091 2 1094 (9th Cir.1992)

United States v. Hogan, 712 F.2d 757,761 (2nd Cir.1983)

U.S v. Cotton, 535 U.S.625,634 (2002)

ri

PAGE -5

Page No.

19 & 28

27

28

28

28

28

29

29

30

30

30

31

31

32

32

32

33

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

•

[x] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

; or,

[x] reported at Not reported,

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

[1 is unpublished.

A

The opinion of the United States district court appears at Appendix

the petitionand is

; or,

do not know.,

[)q reported at •

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

[ ] is unpublished,

B to C

[I 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,

[1 reported at

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

Ii is unpublished.

0

;

court

The opinion of the

to the petition and is

appears at Appendix

; or,

[I reported at

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

[ ] is unpublished.

0

1.

PACE 1

0

to

JURISDICTI ON

[> Far cases from federal courts:

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

was Novmh07017

I

[] No petition for rehearing was timely filed in my ease.

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

7.

Appeals on the following date: December 15,201

A

order denying rehearing appears at Appendix

,and a copy of the.

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

(date) on ____________________ (date)

to and including

in Application No. _A______

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

Ii ] 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

II I A timely petition for rehearing was thereafter denied 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

(date) in

(date) on

to and including

Application No. _A______

.

.

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

PAGE 7

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

18 u.S.C.956 Conspiracy to kill, kidnap, maim., injure ... see Appendix-J.

18 U.S.C.2332a(b) Conspiracy to use a weapon of Mass... See Appendix-J.

18 U.S.C.SS960 Neutrality Act, United States at Peace.... See Appendix-J.

18 U.S.C.1111 first degree murder definition...

See Appendix-J.

U.S.S.G.2A2.1's first degree murder guideline....

See Appendix-J.

28 U.S.C.2255

See Appendix-B

28 U.S.C.2253

See Appendix-C

Fifth Amendment of U.S Constitution

Sixth Amendment of U.S Constitution

Eighth Amendment of U.S Constitution

H.R 533 (House resolution to condemn Hun Sen)

See Appendix-K.

.

.

.

.

PAGE 8

STATEMENT OF THE CASE

Prosecutor "Brian D.Hershman,AUSA"'s prosecutorial misconduct

before indictment during the charging process began when Petitioner's

CFF file landed on his desk in the Winter of 2005. As stated in

Appendix-G page page 21 at 7th & 8th paragraphs that:

"We want you to look at this," the deputy chief of fraud

division told \him one day as he dropped off Chhun's file.

"What were the appropriate charges, and could the case be

indicted? the deputy chief asked Hershman. The case was

"important", and the office was committed to providing

whatever resources Hershman needed"to make sure it's done

appropriately." Hershman never heard of the Yasith Chhun before.

Being •assigned as a judicial advocate by his boss, the deputy

chief directed, authorized, and assigned Hçrshman,AUSA to perform his

function or duty to intimately associate with the judicial phase of the

criminal process to appropriately Indict Petitioner Chhun.

PROSECUTORIAL MISCONDUCT BEFORE INDICTMENT:

However, Hershman stepped over the boundaries of proper conduct

into unethical territory by conducting his own investigation, walking

in the FBI's shoes opposing to quasi-judicial activity. Hershman breached

his assigned duty began as stated in Appendix-G page 22 at 4th para.

"A few week later, Hershman began to interview witnesses,

and his opinion started to change. Early on, he traveled East

with a new FBI case agent, Miguel Luna, to visit Chhun's military

adviser, the one who had warned him so vehemently that operation

volcano would be calamitous."

PAGE 9

HERSHMAN'S PERSONAL OUTRAGE BEGAN TO QUIVER:

"They sat in Heng Tek's cramped apartment in Alexandria,

the pungent smell of fish oil wafting through the air, and

listened as the slight, aging former soldier recounted his

warnings to Chhun. And that's when Hershman's internal outrage

meter first began to quiver."

"Later, Hershman would fly to Cambodia, where he met with

people who had been maimed in the attack, as well as the

relatives of some of those killed."

See Appendix-G page 22 at 10th para.

"He sat through deposition with Chhun's lieutenants, who

had been sentenced to life in prison. Sitting in a dingy

room in Phnom Penh, Hershman and his team provided them with

bottled water, and it seemed to him that they were behaving

as if he had just given them a"lobster dinner." "This water

is so clean," one of them told him." "It's been a long time

since I've had water that tastes this good."

See Appendix-G page 22 at 10th para.and page 23.

PROSECUTOR'S PERSONAL OUTRAGE METER TIPPED AT SECOND. TIME:

"When he heard them extolling the water, Hershman's personal

outrage meter tipped. He had already made his decision:

Yasith Chhun deserved to go to prison for a very long time..

As the statute of limitation approached its final days,

Hershman entered the office of his division chief and rendered

PAGE 10

his opinion: They should move to indict Yasith Chhun."

See Appendix-G at page 23 attached herewith.

PROSECUTORIAL MISCONDUCT DURING THE CHARGING PROCESS:

Breaching his assigned duty, acting outside his role, his personal

outrage meter tipped during the face-to-face interviews with suspects,

witnesses, and the relatives of those got killed in the attack at

Cambodia on 11/24/2000, then prosecutor sought for Yasith Chhun deserved

to go to prison for a very long time, and then he premeditated his plan

to use improper methods calculated to obtain an indictment to produce

wrongful convictions toward cruel punishments.

As see in Appendix-H and Apendix-I attached herewith, with intent

and bad faith, prosecutor materially alleged the Overt Act # 2 in Count

One,and realleged to all other Counts in indictment,the"bodily injury"

element to effect the object of conspiracy to kill 'clause under 18 U.S.C.

§956a to earn its jurisdiction, but presented the fact proven by GEX 68

evidence which is the first degree murder element. Also these Overt Act

# 2 and GEX 68 had discrepancies and irrelevancy tosupport each other.

Prosecutor successfully blinded the 2005 grand jury. It failed

to scrutinize and carefully examine the GEX 68's first degree murder

evidence presented to support the Overt Act # 2 alleged in indictment

to effect the object of conspiracy to kill clause under §956a.

Both GEX 68 and Overt Act # 2 had discrepancies and irrelevancy

as compared in the following comparison:

PAGE 11

OVERT ACT # 2 materially alleged that:

"In or about February 1999, Defendant YASITH CHHUN while residing

in the United States, ordered a small-scale violent attack - or

"popcorn" on a Karaoke bar in Chamcar, Cambodia that was frequented

by Vietnamese citizens. Three co-conspirators threw a grenade at

the bar resulting in injuries to several bar patrons."

GEX 68 (see Appendix-I attached) First degree murder evidence was

presented to support the above Overt Act # 2 in Count One showed and

clearly reported that:

"TWO KILLED IN BLAST OUTSIDE KARAOKE PARLOR", the CambodiàDaily .

News reported on July 12, 2000. "Two people died and 15 other

were injured, two seriously, when two men on motocycle dropped

an explosive device on Street 70 in the Tuol Kork district of

Phnom Penh Monday night.

12.

As reported in GEX 68, the incident occurred on July 12, 2000,

not February 1999 as Overt Act # 2 alleged. Two people died, not injuries

to several bar patrons. Two men on motocycle dropped an explosive device

on Street 70 in the Tuol Kork district, not three co-conspirators threw

a grenade at the bar in Chamcar district. Two killed in blast outside

Karaoke parlor, not inside Karaoke resulting in injuries to several bar

patrons, and there is no damage to the Karaoke parlor's property, but

prosecutor alleged such charged offense under §956b in Count Two.

PAGE 12

CURIOUS QUESTION ABOUT THE 2005 GRAND JURY'S INDEPENDENCE - AND INTEGRITY

WAS SO COMPROMISED BY PROSECUTOR'S PROSECUTORIAL MISCONDUCT:

Why did prosecutor chose materially to allege the"B6dily injury"

element in the Overt Act # 2 to effect the object of conspiracy to kill

clause under §956a, but he presented the GEX68's first degree murder

evidence to support it before the 2005 grand jury during its determination of the probable cause while both Overt Act # 2 and GEX 68 having

their clearly shown discrepancies and total differences?

SIMPLY ANSWER:

Because with bad faith and premeditated plan triggered by his

personal outrage meter tipped,arose out of his breaching his assigned

duty, before indictment acted outside his role, conducted his own

investigation walking the FBI's shoes, and sought for"Yasith Chhun

deserved to go to prison for a very long time", Prosecutor Hershman,AUSA

had to use improper methods calculated to deceitfully obtain indictment

in order to produce wrongful convictions toward cruel punishments.

Prosecutor's unlawful action,before indictment and during the

charging process ,proximately constituted"prosecutorial misconduct",and

undermined the 2005 grand jury's independent role and integrity to

independently evaluate the probable cause which was unlawfully obtained

or collected by his violation of the Due Process-Grand Jury Clause

imposed by Fifth and prohibited by Eighth Amendment of U.S Constitution.

PAGE 13

SUBJECT MATTER OF JURISDICTION:

In order to earn a jurisdiction to indict which does not require

"an act would constitute the offense of "murder, kidnapping, or maiming"

if committed within a special maritime and territorial jurisdiction of

the United. States','as prescribed in §956a statutory language which the

U.S Congress intended to separate the clauses of conspiracy to kill,

to kidnap, and to maim from to injure a person and to damage a property

in a foreign country, prosecutor Hershman,AUSA smartly chose to allege

the"bodily injury" elements, but charged the conspiracy to kill-murder

offense sought for "to go to prison for a very long time".

Prosecutor planned and expected that after Petitioner was convicted

as charged in the indictment-conspiracy - to kill clause, then at the

sentencing day, the Court would apply the first degree murder guidelines

which ismore severe, cruel, and harsh than the bodily injury guideline,

to comply with "to go to prison for a very long time" as he planned for.

Prosecutor's deceitfull scheme and misconduct left the U.S District

Court incapable to appropriately rule in Petitioner's §2255 motion as

see in Appendix-B page 10 line 20-23 that: "Here, in any event, although

Petitioner was not charged with murder, the jury found that Petitioner

had the specific intent to kill and convicted him of conspiracy to kill.

The Court's reliance on U.S.S.G.SS 2A2.1(a)(1)'s then-applicable firstdegree murder guideline was appropriate."

How this sounds to, "jurist of reasons and a jury beyond reasonable doubt"standard where Petitioner was not charged with murder, but

the jury found him guilty of murder?

PAGE 14

Beside the jury found Petitioner guilty of conspiracy;.to kill,

on the sentencing day, the U.S District Court conducted its own preponderance of evidences relying upon the GEX 68's first degree murder

evidence, and found a 15 years old boy got killed by a blast outside

Karaoke parlor on July 12, 2000. Then, by grouping all counts together,

the U.S District Court applied U.S.S.G. § 2A2.1(a)(1)'s first degree

murder guideline, and imposed two life sentences in Count One and Four,

300 months term of imprisonment in CountTwo, and 60 months in Count

Three, regardless of those "bodily injury" elements materially alleged

in each count.

The statutory interpretation of both §956a, U.S.S.G. §2A2.1(a)(1)

under 18 U.S.C.1111 defined and prescribed as the follows:

18 U.S.C.956ain part provides that: "an act that would constitute the offense of "murder","kidriapping or"niaiming" if committed

within a special maritime and territorial jurisdiction of the

United States.. ."

U.S.S.G. 2A2.1(a)(1): Definition of First Degree Murder, "first

degree murder"means conduct that, if committed within the special

maritime and territorial jurisdiction of the United States, would

constitute first degree murder under 18 U.S.C.1111.

Both statutory interpretation and definition clearly described

the intent of U.S Congress tried to separate those clauses under §956a

constituted each offense within and not within the special maritime

and territorial jurisdiction of the United States based on their act,

outside the U.S in a foreign country committed by each conspirator, as

required by §1111.

PAGE 15

DISTRICT COURT LACKS OF JURISDICTION TO SENTENCE:

In plus, the U.S District Court has no jurisdiction to apply

U.S.S.G.SS 2A2.1(a)(1)'s first degree murder guideline by relying on

false GEX 68's first degree murder evidence preponderance which it found

a 15 years old boy got killed in a blast outside Karaoke parlor on July

12,2000. Hun Sen government is a marionette or puppet of Vietcong, and

under its dictatorship there are many different groups against it. Thus,

no one knows who committed the GEX 68, but the U.S District Court 2 ued it

without careful examination,

Also, based on the U.S District Court's ruling to deny §2255

motion;as see in Appendix-B page 10 line .20-23,"Although Petitioner

was not charged with murder, the jury found that Petitioner had the

specific intent to kill and convicted him of conspiracy to kill. The

Court's reliance onU.S.S.G.S 2A2.1(a)(1)'s then-applicable firstdegree murder guideline was appropriate." By law and sentencing proceeding requirement, the U.S District Court should apply sentencing

guideline based on the applicable charged offense, not allegations.

Although Petitioner was not charged with murder ... therefore, U.S.S.G.

§ 2A2.1's first degree murder guideline.isnot applicable.

UNDER POLITICAL OBLIGATION AND INFLUENCE, PROSECUTOR USED PETITIONER

AS AN EXPENDABLE PAWN AND SACRIFICIAL LAMB OFFERED UP EXCHANGE WITH

CAMBODIA'S COOPERATION TO FIGHT THE WAR ON TERROR IN SOUTHEAST ASIA:

Before indictment after being assigned by his deputy chief as

a judicial advocate, Brian D.Hershman,AUSA traveled to Cambodia with his

team. He met with several Cambodian officials working under Hun Sen

regime who complained that Chhun remained a free man after 11/24/2000

militry-coup d'etat took place at Cambédia.

PAGE 16

"At this point, we are wondering that if the U.S is the master

of the fight against international terrorism, why is the U.S

ignoring this terrorist case." See Appendix-G page 25 attached.

Hun Sen angrily accused the U.S of hypocrisy for failing to

vigorously pursue Chhun after he returned from Cambodia, but the U.S

Ambassador Kent Wieldmann had responded that the two countries did not

have an extradition treaty and that it was up to the U.S to determine

whether Chhun had broken any U.S laws. "It's not the business of the

Cambodia government," he said.

After 9/11 terrorist attack on the U.S soil, the Bush Administration began to consider Southeast Asia as a second front in the global

war on terrorism, focused especially on the radical Islamic group Jemaah

Islamiyah. See Appendix-G page 24 at last para.

This caused a "pendular shift in U.S-Cambodia relation. Cambodia

was taken off the list of illegal drug producing countries. The following

year, Secretary of State Cohn Powell signed an agreement with Cambodia

to strenghten counter-terrorism training, exchanged financial and

immigration data, and work to create joint programs."

All the while, however, Hun Sen's government complained that

Chhun remained a free man.Hun Sen said in 2001"What is the real value

of the U.S•Thuggestion to Cambodia to offer cooperation against international terrorism?" See Appendix-C page 25.

PAGE 17

31.

When Chhun was finally indicted, Hun Sen told reporters the

arrest was"part of the cooperation in the fight against common terrorism

both Cambodia and the United States have an obligation to."

In memorandum, the U.S Ambassador to Cambodia Charles Ray conveyed

his "appreciation and congratulations to the L.A Division, to the U.S

Attorney Office and to all those who moved this case forward."

DIPLOMATIC FRUITS FROM USING CHHUN YASITH AS A SACRIFICIAL LAMB AND

POLITICAL EXPENDABLE PAWN:

.

S

Within months of Chhun's arrest, FBI Deputy Director John Pistole

made a trip to Phnom Penh to announce plans to establish an FBI Office

in the U.S Embassy and train Cambodian police in counterterrorism

measures. He presented awards toCambodian Officials"jn recognition

of their important contribution to the prosecution of the Cambodian

Freedom Fighters counterterrorism case."

"The correlation between the opening of the new FBI office in

Phnom Penh and the prosecution of Mr.Chhun was unmistakable," Callahan

wrote in his brief of direct appeal to challenge the sentencing factors

under §3553, not raised as an arguable issue.

At the ribbon-cutting ceremony, FBI Director Robert Mueller who

now is a special counsel investigating the Trump-Russia collusion, noted

that Cambodia would serve as an important country in the U.S antiterrorism campaign because of - its potential to be used as a transit point or

base for terrorism. See Appendix-G page 25.

PAGE 18

•36

Mueller then noted that, following the inauguration of the FBI

Office in Phnom Pénh,"the United States intended to make Yasith Chhun

face justice in the near future..."

Before 9/11, Hun Sen was viewed by the United States government

as a murderous despot, but after 9/11, Hun Sen became George W.Bush's

partner overnight to fight terrorists in Southeast Asia. The playing

field changed, the rule changed, and. the priorities changed, but Hun Sen

didn't.change; the world did. Callahan Jr. said.

As a result of this diplomatic fruits emanated from using Chhun

as a sacrificial lamb and an expendable pawn because of political obligation and influence where prosecutor ignored the U.S Supreme Court

listing the factors among others as characteristic of the judicial

process which one of them is "INSULATION FROM POLITICAL INFLUENCE" in

Butz v. Economou,438 U.S at 511 (1978), a FBI named Donald Shannon

affirmatively made his adequate statement in Appendix-G at page 25 that:

"If it weren't for Chhun, we would never have had to work On

this together and we would never have gotten this colleague-type

atmosphere with Cambodia," Shannon says."This case opened up

doors into working drugs, working fugitives, working human

trafficking, child-prostitution rings, and all that stuff,

because those doors and those lines of communication were open.

The momentum just kept going."

PAGE 19

PETITIONER'S RIGHT TO COUNSEL IMPOSED BY SIXTH AMENDMENT WAS DEPRIVED

BY RICHARD M.CALLAHAN JR. WHO WAS A SOLE TRIAL AND APPELLATE COUNSEL:

As aforementioned facts substantially showed in prima fade of

constitutional right violation before indictment, before trial, during

trial, before sentencing, and during sentencing that ineffective

counsel's deficient performance fell below an objective standard and

professional norm demanded competent attorney.

Before the trial began, petitioner told his counsel that the

indictment returned by the grand jury charged a murder offense to kill,

but materially alleged only the"bodily injury" elements in all counts,

when counsel approached him one day at MDC-LA while he brought up a

subject that the government seeking a death penalty upon Petitioner.

Petitioner raised a question how he faces "death penalty"consequence

where the overt acts materially alleged only bodily injury elements?

Counsel answered that the government had burden of first degree

murder evidences such as GEX 68 to support a popcorn violent attack on

Karaoke parlor where the vietnamese civilians frequented. Petitioner

responded that henever ordered such coward violent act to kill civilians, only military action to topple Hun Sen who was a Pol Pot's field

commander killed over 2.5 million innocent lives in April 1975 to Jan.

1979. GEX 68 could be a false first degree murder evidence to support

the Overt Act # 2 in Count One, Petitioner said, please investigate it.

However, counsel ignored it before trial and failed to object

it when GEX 68 was presented before the trial jury where who know that

PAGE 20

this false or irrelevant GEX 68 evidence did or did not sway the trial

jury's decision to convict Petitioner for a"bodily injury"element alleged

to support a conspiracy to kill clause under §956a in an Overt Act # 2.

At direct appeal, in April, 2012 Adam Piore sent his written

article called "The Accidental Terrorist" "California Accountant's

Military Coup D'etat",after several months he spent time to interview

Petitioner as well as Brian D.Hershman, AUSA and FBI Agent Donald Shannon,.

Petitioner made a copy and sent his counsel to alert and to ask

him to raise the"political obligation and influence"as a"supplemental

claim"in his final Brief where a FBI agent Donald Shannon's adequate

statement made in that article supporting his §3553 factor argument in

his Opening Brief filed on 01/31/2011. After several tim extensions of

both sides, it was possible to raise such meritful issue as a new proof

not as a §3553 factor argument, to catch up his Final Brief due date

on August 2013.

However, Counsel sent his email to refuse to do so by saying that

he ran out of time, but in the past, Counsel used to file an extension

motion to have time, but not this time. In fact, Counsel filed his Final

Brief later after the due date (August,2013) till October,2013 without

raising the"political obligation"issue as a;presented issue for review,

not a §3553 factor. Therefore, the 9th Circuit never ruled or never

reviewed such substantial issuein its decision filed on 03/11/2014.

PAGE 21

THE U.S DISTRICT COURT DENIED THE "COA" AND §2255 PETITIONS WITHOUT

REACHING THE UNDERLYING FEDERAL CONSTITUTIONAL VALID - CLAIMS BY NOT

GIVING FULL CONSIDERATION AND REPEATEDLY IGNORING THE SUBSTANTIAL

EVIDENCES WHICH PETITIONER PUT FORTH IN SUPPORT OF HIS JURISDICTIONAL

AND CONSTITUTIONAL CLAIMS:

Within one year statute of limitation, Petitioner timely filed

his construed §2255 motion. He raised the jurisdictional issues which

were never waived, forfeited, and cannot be procedurally defaulted

under the COTTON U.S Supreme Court decision, and he needs not show cause

and prejudice to collaterally attack under §2255 proceeding.

The jurisdictional issues and constitutional claims under §2255

motion and the"COA" filed in the U.S District Court arose out of the

71

prosecutor 's"_

p

rosecutorial misconduct"before indictment and before the

2005 grand jury followed by"improper jury'instruction"caused"structural

error'"fatal niaterial variance", and"no jurisdiction to sentence".

However, the U.S District ignored those substantial evidences

attached and put forth to support the jurisdictional issues and constitutional claims, and denied it without reaching suchunderlying constitutional and jurisdictional claims. See Appendix-B,C,;and:F attached.

Also see Appendix-G, H and I which are substantial evidences ignored by

the U.S District Court however, it denied"not on procedural ground."

Petitioner timely filed his notice of appeal to the 9th Circuit.

As see in Appendix-D and E attached herewith, ) Petitioner again realleged

those jurisdictional and constitutional claims and reattached all those

PAGE 22

substantial evidences along with his appellate COA petition and COA

Rehearing and En banc Rehearing, however,.the 9th Circuit Court panel

judges denied both petitions and closed the case instead of en banc

determination by the entire 9th Circuit Court, by citing Miller-El.

No doubt that during five year periods, the U.S Supreme Court

overturned its decisions more than 40 federal cases in the past. Herein,

the U.S District Court and 9th Circuit Court denied the .2255 and COA

petitions based on"not making a substantial showing of the denial of a

constitutional right, not procedural ground," by citing Miller-El.

However, either way around the jurisdictional issues cannot be

procedurally defaulted, waived, or forfeited. The jurisdictional defects

must be corrected,under the Cotton decision of-this Court, regardless

the issues have been raised in the district court or not. Therefore,

both District and Appellate Courts decisions:to deny the COA and §2255

petitions conflicting to this Court's decisions and other circuits.

The Griffin Supreme Court said since lack of jurisdiction of a

federal court touching the subject matter of the litigation cannot be

waived by the parties, we must upon this appeal examine the contention.

The dismissal of indictment,based on the prosecutorial misconducts

before indictment and before the grand jury alone, is warranted to

prevent the prosecutorial impairment of the 2005 grand jury's integrity

and prejudice. This jurisdictional defect cannot be procedurally waived,

forfeited, or defaulted to collaterally attack as well. as ineffective

counsel claim.

PAGE 23

DISMISSAL OF INDICTMENT IS WARRANTED UNDER THE COURT'S INHERENT SUPERVISORY POWER:,

53.

Petitioner clearly established the valid claims of jurisdictional

issues and constitutional claims, but the U.S District Court and 9th

Circuit Court ignored or denied without full consideration of those

substantial evidences put forth to support them.,in his COA petitions.

54.

Beside the prosecutorial misconducts before indictment and before

the 2005 grand jury, the political obligation, or influence is one of the

fttors listed by this Court in"Butz v. Economou",where prosecutor acted

outside his role as a judicial advocate to intimately associate with

the judicial phase of criminal process, 'as the follows:

the need to assure that the individual can perform his

function without harassment or intimidation;

the 'presence of safeguards that reduce the need for private

damages actions as a means of controlling unconstitutional

conduct;

insulation from political influence;

the importance of precedent;

the adversary nature of. the process; and

the correctibility of error 'on appeal.

55.

The"Berger" Supreme Court said [W]hile he may strike hardblow,

he is not at liberty to strike foul ones. It is as much his duty to

refrain from improper methods calculated to produce a.wrongful conviction as it is to use every legitimate means to bring about a just

one.

PAGE 24

REASONS FOR GRANTING THE PETITION

A.

For national importance of having the Supreme Court decide

questions involved in political obligation or influence in

this case correlated with the prosecutor's prosecutorial

misconducts before indictment and during the charging process

proximately undermined the 2005 grand jury's independent role

and integrity. A prosecutor acted outside his role, conducted

his own investigation opposing. to quasi-judicial activity by

walking in theFBI's shoes. During the face-to-face interviews,

his personal outrage meter tipped, then sought.for"Yasith Chhun

deserved to go to prison for a very long time'.' To comply with

his personal outrage and political obligation, prosecutor premeditatedly used improper methods calculated to obtain indictment

to produce wrongful convictions toward cruel punishments violated

the Due Process-Grand Jury Clause imposed by Fifth and prohibited

by Eighth Amendments. of U.S Constitution.

STANDING POINTS:

The importance of this case not only to petitioner, but to others,

who had been used as a sacrificial lamb and political expendable pawn

to produce diplomatic fruits-as in this case to open up a new FBI Office

in Phnom Penh, Cambodia.

This case left the lower courts incapable to properly handle the

justice of unprecedented fundamental characters where the fraud,

corruption, and political influence could occur within this judicial

system to undermine its integrity and public judicial reputation.

To decide the questions in this case is a judicial duty of this Court

PAGE 25

to protect the individiiial'srights..'& U.S Constitution built by the

founding fathers of this Country where its foundation is the rule of law.

3".

Without the rule of law, this country would not be much different

from Cambodia where Petitioner's father Yem Kong was beheaded on a hot

of July 1977 in front of his mother by a group of Khmer Rouge soldiers

accused him a U.S spy under Lon Nol regime sided with the U.S to fight

the war against' Communists.

4.

Petitioner's father always praised the United States as a father

of democracy, justice, and freedom. To honor his dream, the three goals

and principles of Cambodian Freedom Fighters "CFF" listed those three

words when it was founded in Thailand in 1998 when the U.S Congress

passed the H.R.533 to condemn Hun Sen and asked Bill Clinton Administration to bring Hun Sen to ICC for a crime against humanity and Human

right violations.

5..

The "LONELY WAR" article written by Eric Pape and the "Accidental

Terrorist" written by Adam Piore as see in Appendix-G attached told

this true story how Petitioner has been used as a sacrificial lamb

offered up in exchange with the Cambodia's cooperation to fight' the war

on terror in Southeast Asia after the 9/11 pendular shift U.S-Cambodia

relation.

6.

To decide questions in this case to tell the world and Americans

who watch it closely how the judicial system and its play ground of

check and balance maintained by this Court where its independence

PAGE 2

and integrity cannot be intimidated, harassed, corrupted, and influenced.

Its judicial duty to protect the U.S Constitution, unbiasedly interpret

the laws, to preserve justice equally to the individuals, and preserve

its public judicial. reputation.

B.

If the lower courts denied Petitioner's clearly established

validity of jurisdictional and constitutional claims in his

COA and §2255 petitions, Petitioner strongly believes that

their decision.- to deny conflicting with this Court's decisions

and other circuits. To decide questions in this case as"safeguards or conformity"for. the lower courts so far departed from

the accepted and usual course - of judicial proceedings, and

or as a"sanction of such a departure"by the lower courts, as

to call for an exercise of this Court's supervisory power.

STANDING POINTS FOR CONFLICTING WITH THIS COURT, ITS OWN, AND OTHERS:

Citing Miller-El v. Cockrell, 537 u.S.322,327 (2003), but denying

the COA petition not under procedural ground, where Miller-El Court

said in part that (2) when District Court denied a state prisoner's

habeas corpus petition on "procedural ground".. .Here in this case the

District Court and 9th Circuit denied the COA by"not making substantial

showing of the denial of constitutional right." Both denie4 COA without

full consideration of substantial evidences put forth in support of the

substantial showing of the denial of constitutional right.

Either way around, denying on procedural grounds or not, the

jurisdictional defects cannot be waived, forfeited, and procedurally

PAGE 27

defaulted, and defects require correction regardless of whether error

raised in district court. The"Cotton"Supreme Court said.

See U.S v. Cotton, 535 U.S.625, 630 (2002)

PROSECUTORIAL 'MISCONDUCT BEFORE INDICTMENT

"A prosecutor-who assists, directs, or otherwise participates

in obtaining evidence prior to an indictment undoubtedly is

functioning more in his investigative capacity than in his

quasi-judicial capacities of deciding which suits to bring

and conducting them in court."

See Joseph v.Patterson, 795 F.2d 549,556 (6th Cir.1986).

Its own precedent:

"While interview conducted before the probable cause to arrest

has been established are not protected by absolute immunity.

Courts have only drawn the line that absolute immunity could

not be invoked before probable cause was established."

See Genzler v. Longanbach, 410 F.3d 630 (9th Cir.2005).

"A prosecutor is not absolute immunity with respect to action

outside of his or her role as an advocate, such as the execution

of a certificattion for determination of probable cause."

See Kalina v. Fletcher, 522 U.S 118, 502 (1997)

"Absolute immunity flows not from rankor title or "location

within the government," but from the nature of the responsibility of the individual official."

Sed:. Butz v. Econornou, 511 U.S.98 S.Ct.2894 (1978)

PAGE 28

PROSECUTORIAL MISCONDUCT BEFORE THE GRAND JURY

"The prosecutor's role in our adversarial justice system-to

obtain convictions, regardless of a defendant's guilt or

innocences-necessarily creates competitiveness in terms of

winning cases. [W]hile he may strike hardblows, he is not

at liberty to strike foul ones. It is as much his duty to

refrain from improper methods calculated to produce wrongful

conviction as it is to use every legitimate means to bring

about a just one."

See Berger v. UnitedStates, 295 U.S.78,88 (1935).

9TH CIRCUIT COURT ITSELF HAS ITS STRONG WORDS FOR PROSECUTORIAL

MISCONDUCTS

'The Department of Justice has an obligation to its lawyers

and to the public to prevent prosecutorial misconduct and

responsibilities that do not apply to other lawyers; they

must serve truth and justice first. Their job is not just

to win, but to win fairly, staying within the rules. That

did not happen here."

"When a prosecutor steps over the boundaries of proper

conduct and into unethical territory, the government has

a duty to own up to it and to give assurance that it will

not happen again," and "the Office of Professional Responsibility within the Department of Justice has responsibility

of investigating allegations of misconduct by federal

prosecutors. '

See United States v. Lopez-Avila, 768 F.3d 955 (9th Cir.2012).

PAGE 29

"The grand jury's independence and integrity was compromised

by the government's prosecutorial misconduct. The - government's

use of false testimony and double hearsay speculations seriously

eroded the grand jury's integrity to independentlyevaluate..the

evidence to. return the indictment."

See United States v. Lawrence Hogan, 712 F.2d 757 (2nd Cir.1983).

9thCircui.t Court's own pr ecedent:

"Prosecutor's misconduct before the grand jury violates a

defendant's constitutional right to grand jury indictment.

The grand jury clause of the Fifth Amendment guarantees that

a defendant will be indicted only upon an"informed and independent determination of a legally constituted grand jury."

See United States v. Sears, Roebuck and Company,Inc., 719 F.2d 1386

1391 9th Cir.1983)

"The test of whether a grand jury's indictment is constitutionally improper, and therefore subjected to dismissal, is

whether the prosecutor's violation substantially influenced

the grand jury's decision to indict, or if there is a'grave

doubt'that the decision to indict was free from the substan±tial influence of such violation."

See Bank of •Nova Scottia v. United States, 487 U.S.250,256 (1986).

"Prosecutor may not mislead grand jury or engage in fundamentally

unfair tactics before it." In fact the gain in prosecutor's

influence over grand juries is all the more reason to insist

PAGE 30

that these limitations be observed strictly."

See United States v. Ciambrone, 601 F.2d 616,623 (2nd Cir.1979).

13.

"A prosecutor. may not make statements or argue in a manner

calculated to inflame the grand jury unfairly against accused."

See United States v. Serubo, 604 F.2d 807,818 (3rd Cir.1979). :

In short, a prosecutor as an officer of the court is sworn to

to ensure that justice is done, not simply to obtain an indictment

by using improper methods and personal outrage-meter - tipping calculated

to produce wrongful convictions toward cruel punishments to comply with

his premeditated plan sought. for"Yasith Chhun deserved to go to prison

for a very long time".

Second, not simply to obtain an indictment to comply with the

political obligation or influence to. use Petitioner as an expendable

pawn or sacrificial lamb offered up in exchange with the Cambodia's

cooperation to fight the war on terror inSoutheastAsia. These

unlawful .actions constituted the prosecutorial misconduct and undermined

the 2005 grand jury's independent role and integrity to independently

evaluateithe probable cause which was unlawfully collected or obtained

from such violation and political influence.

The prosecutor:'s prosecutorial misconduct before indictment and

before the grand jury caused "improper jury instruction led into the

structural error" ,"fatal material variance"between the materially

alleged"bodily_injury"elements and"first degree murder"evidence..,GEX 68.

PAGE 31

Prosecutor's unlawful action before indictment and before

the 2005 grand jury proximately deprived the U.S District Court's

jurisdiction to sentence and left it incapable to determine if"a

properly constituted grand jury"would have indicted Chhun Yasith.

That is the reason that the U.S District Court ruled in the §2255

motion "In any event, although petitioner tas not charged with murder,

but the jury found thatpetitionerhad the specific intent to kill

and convicted him of conspiracy to.kill ... See Appendix-B attached.

The Berger Supreme Court said the prosecutors role in our

adversarial justice system-to obtain convictions, regardless of a

defendant's guilt or innocences-necessarily creates competitiveness

in terms of winning cases. "An indictment can also be dismissed based

on grand jury prosecutorial misconduct through exercises of the Court's

inherent supervisory power':gee United States v. Williams, 504 U.S.

369 45-7 (1992)1 "whenever grand jury returns an indictment the defendant

can move to dismiss based on prosecutorial misconduct before the grand

jury.'.'

"[A] district court may dismiss an indictment if it perceives

constitutional error that interfere with the grand jury's independence

and the integrity of the grand jury proceeding." See United States v.

Isgro, 974 F.2d 1091,1094 (9th Cir.1992). "Dismissal justified where

the history of prosecutorial misconduct is so systematic and pervasive

as to raise a substantial doubt and serious question about the fundamental fairness of the process." See United States v. Hogan, 712 F.2d

757,761 (2nd Cir.1983).

PAGE 32

"Fifth Amendment Grand Jury right serves a vital function...

as a check on prosecutorial power. Subject matter jurisdiction never

forfeited or waived; defects require correction." U.S V. Cotton, 535

U.S.625 9 634 (2002).

As - cited the above caselaws, there are more cases conflicted

with the 9th Circuit Court and District Court for the Central District

of California's decisions. There no doubt that it is over 40 cases in

five years period that this Court overturned their decisions.

CONCLUSION

WHEREFORE Petitioner prays that this Court will grant his

petition for a Writ of Certiorari as-stated in the reasons for granting

the petition.

Respectfully executed and submitted

on /J2018.

-

CHHUN YASITH, PRO SE PETITIONER

#31900-112

UNITED STATES PENITENTIARY CANAAN

P.0.BOX 300

WAYMART, PA 18472.

PAGE 3