Petition for Writ of Certiorari — Ramnarine Persaud, Petitioner v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

RAMNARINE PERSAUD,

VS.

--

UNITED STATES OF AMERICA,

--

PETITIONER

RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI TO

THE FIRST U.S. CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

RAMNARINE PERSAUD

45853-069 H05-1061

MCRAE CORRECTIONAL FACILITY

P. 0. DRAWER 55030

MCRAE HELENA, GA 31055

QUESTIONS PRESENTED

• Is the Maritime Drug Law Enforcement Act (MDLEA)

Constitutional under the "jurisdictional" component of

Article I of the United States Constitution where

Petitioner, the master of a Guyanese-flagged vessel, was

intercepted by the United States Coast Guard while

sailing in international waters enroute from Jamaica to

Guyana and prosecuted in federal court for violating

United States' drug laws?

• Was Petitioner denied the effective assistance of counsel

where, at no time during his visits with Petitioner did his

attorney ever demonstrate to Petitioner that the United

States government had actually contacted the

government of Guyana and obtained permission to board

and conduct a search Petitioner's vessel?

• Were Petitioner's Due Process rights violated under the

MDLEA?

LIST OF PARTIES

[X] All parties do not appear in the caption of the case on the cover page.

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

of this petition is as follows:

Bauza-Almonte, Esq., Mariana, AUSA

Besosa, Hon. Francisco A., U.S. District Judge

Persaud, Ramnarine, pro se

Rodriguez-Velez, Esq., Rosa Emilia, U.S. Attorney

Miranda-Corrada, Esq., Victor P.

Velez-Rive, Hon. Camille 1., Magistrate Judge

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el

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TABLE OF CONTENTS

PAGE

OPINIONSBELOW ................................................1

JURISDICTION...................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...............1

STATEMENT OF THE FACTS .........................................2

STA1EPblIEIs11 OF THE CASE ..........................................3

REASONS FOR GRANTING THE WRIT ................................11

CONCLUSION...................................................12

INDEX OF APPENDICES

The First U.S. Circuit Court of Appeals Order denying a Certificate of

Apealability

The District Court Order denying a Certificate of Appealability

The District Court Order adopting the Magistrate's Report and

Recommendation and denying Petitioner's 2255

The Magistrate Court's Report and Recommendation recommending

the denial of Petitioner's 2255

V

p

TABLE OF AUTHORITIES CITED

CASES

PAGE

Argencourt v. United States, 78 F.3d 14 (ist Cir. 1996)

. 9

Berroa Santana v. United States, 939 F.Supp2d. 109 (D.P.R.2013) .......9

Cirilo-Munoz v. United States, 404•F.3d. 527 (ist Cir. 2005) ........ ..... 9

Mattei-Albizu v. United States, 694 F.Supp.2d 404 (D.P.R. 2010) ........9

Rosado v. Allen, 482 F.Supp.2d 94 (D. Mass. 2007) ...................8, 9

Scarpa v. Dubois, 38 F.3d 1(lst Cir. 1994) ...........................8,9

Smullen v. United States, 94 F.3d 20(1st Cir.1996) .....................8

Strickland v. Washington, 466 U.S. 668 (1984) .......................8,9

United States v. Maynard, 888 F.2d 918 (ist Cir. 1989) ...............10, 11

United States v. Natanel, 938 F.2d 302(1st Cir. 1991) ...................8

United States v. Trinidad, 839 F.3d 112(lstCir.2016) ...................7

STATUTES

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

28 U.S.C. §2255..................................................3

46 U.S.C. § 70502 (The Maritime Drug Enforcement Act (MDLEA)) ......PASSIM

vi

OTHER AUTHORITIES

United States Constitution, Fifth Amendment

.1

United States Constitution, Sixth Amendment .......................2, 8

VII

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 of the United States Court of Appeals for the First Circuit.

OPINIONS BELOW

The January 5, 2018 opinion of the First U.S. Circuit Court of Appeals

denying a Certificate of Appealability is unpublished and attached as Appendix A.

JURISDICTION

The Court of Appeals entered its judgment on January 5, 2018. This court

has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves a federal criminal defendant's constitutional rights under

the Fifth Amendment and Sixth Amendments which provide in relevant part:

"No person shall be held to answer for a capital, or otherwise

infamous crime ... nor be deprived of life, liberty, or property, without

due process of law..."

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"In all criminal prosecutions, the accused shall enjoy the right to

the assistance of Counsel for his defence."

STATEMENT OF THE FACTS

On June 26, 2015, Petitioner departed Guyana as the master on board the

M/V "CHRISTOPHE"- a fishing-type vessel with 12, 000 pounds of fish and a crew

of four men, bound for Jamaica. The "CHRISTOPHE" was registered in Guyana

and flying the Guyanese flag. Approximately 170 nautical miles south of the

Dominican Republic, the "CHRISTOPHE" was stopped by the United States Coast

Guard who asked about the vessel's registry. Petitioner confirmed that the vessel

was registered in Guyana and was flying the flag of Guyana.

Several hours after the Coast Guard had allegedly contacted the

government of Guyana, the U.S. Coast Guard requested permission to search the

CHRISTOPHE. Members of the Coast Guard boarded the "CHRISTOPHE,"

conducted a search and eventually found a shipment of cocaine. Petitioner and

his crew were arrested and taken to Puerto Rico.

Petitioner was never shown any documentation that the Coast Guard had

ever contacted the government of Guyana or had received permission from the

government of Guyana to board and conduct a search of the "CHRISTOPHE."

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STATEMENT OF THE CASE

After Petitioner had been arrested and transferred to Guyanabo, Puerto

Rico, he was advised by all of the other inmates there that all he should do is just

plead guilty because, if he did not and went to trial, he would lose and get a very

lengthy sentence. Therefore, whenever his attorney came to visit him, he just

went along with whatever his attorney said and accepted whatever he told him.

Petitioner did the very same thing in court.

However, after having arrived in prison, Petitioner is still not satisfied that

he received the "due process" to which he is entitled because he never

understood how it is that he, a national of Guyana, on a Guyanese-registered

vessel, while sailing in international waters enroute from Jamaica to Guyana and

flying the Guyanese flag, could have been stopped and searched by the United

States Coast Guard, arrested, brought to the United States, convicted in a United

States court and sentenced to a federal prison in the United States.

Petitioner instituted this appeal pursuant to Title 28 U.S.C. § 2255, not so

much in an effort to vacate his conviction but to demonstrate to this honorable

Court that it is Petitioner's belief that he did not benefit from the effective

assistance of counsel to which he was entitled by law.

Specifically, as a foreign national with absolutely no knowledge

whatsoever of the United States criminal justice system, Petitioner simply "went

along to get along" with whatever was required of him. Having now been

somewhat relieved of the extreme pressures involved in the ordeal of being

arrested, prosecuted and sentenced to prison, and having now had the benefit of

speaking with many other federal inmates, Petitioner, on reflection, now realizes

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that he may not have been afforded all of the protections of the law to which he

was entitled.

PETITIONER'S PERSONAL HISTORY AND THE RELEVANT FACTS

Petitioner is a national of the Cooperative Republic of Guyana, South

America, who has very little formal education. Petitioner began working on

fishing vessels at a very early age and alternated between primary school and his

employment. Shortly after primary school, Petitioner became fully employed in

the fishing industry and, after many years of experience, eventually became a

captain of sea-going fishing vessels.

Petitioner, along with four others, was arrested on these federal charges

after having been interdicted at sea, in international waters, aboard the M/V

"CHRISTOPHE," of which he was the captain, on a voyage enroute in international

waters from Guyana to Jamaica. Petitioner and his crew had no intention

whatsoever of travelling to the United States or any of its territories.

In July of 2015, Petitioner was detained at the Federal Detention Center in

Guyanabo, Puerto Rico, where he met with his attorney, Mr. Victor Miranda, Esq.,

on approximately eight occasions and to whom he related details of the events

leading up to his arrest

Petitioner eventually enquired of attorney Miranda as to what was the best

course of action for Petitioner to take. Attorney Miranda recommended to

Petitioner that it was in Petitioner's best interests to accept a plea.

Attorney Miranda eventually returned with a plea bargain for between

seven to nine years. Attorney Miranda never discussed with Petitioner anything

relating to federal law and the law concerning the United States Coast Guard

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having asserted jurisdiction over his vessel, a foreign vessel flying the flag of

Guyana, in international waters.

Throughout Petitioner's approximately seven months' pre-trial detention

at the Federal Detention Center in Guyanabo, the common refrain among

detainees was that Petitioner, as with all other persons charged, should simply

take whatever plea that was offered to him. This was the usual practice because

it was commonly understood that it would be a grave mistake to challenge the

federal government, one which would certainly result in a conviction and a much

lengthier sentence. Petitioner simply took their advice and accepted the plea.

It is Petitioner's contention that at the time of his arrest, his vessel was

located in international waters, at approximately 170 nautical miles south of the

Dominican Republic, not Mona Island, Puerto Rico, as stated by the government

in its Response. Additionally, Petitioner has been informed by his family that an

account of the interdiction of Petitioner's vessel was available in an article posted

on the internet and the location that was reported was, indeed, 170 nautical

miles south of the Dominican Republic as stated above. In any event, the actual

location can be very easily verified by consulting the Global Positioning System

(GPS) that was on board Petitioner's vessel.

ISSUE #1

The Maritime Drug Law Enforcement Act (MDLEA) is

unconstitutional under the "jurisdictional" component of

Article I of the United States Constitution where Petitioner,

the master of a Guyanese-flagged vessel, was intercepted by

the United States Coast Guard while sailing in international

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waters enroute from Jamaica to Guyana and prosecuted in

federal court for violating United States' drug laws.

THE MARITIME DRUG LAW ENFORCEMENT ACT (MDLEA)

"The Maritime Drug Enforcement Act provides, in pertinent part, that:

Vessel subject to the jurisdiction of the United States.

In this chapter, the term "vessel subject to the

(1) In general.

jurisdiction of the United States includes

-

-

-

(C) a vessel registered in a foreign nation if that nation has consented

or waived objection to the enforcement of United States law by the

United States:...

(C) a "vessel aboard which the master or individual in charge

makes a claim of registry and for which the claimed nation of registry

does not affirmatively and unequivocally assert that the vessel is of

its nationality."

Claim of nationality or registry. A claim of nationality or registry

under this section includes only

-

-

(3) a verbal claim of nationality or registry by the master or individual

in charge of the vessel." 46 U.S.C. § 70502(c)(1)(C), (d)(C) (e) (1)(2)(3).

"THE SWEEPING POWERS ASSERTED BY CONGRESS"

"I can no longer support the approach taken by this court and

our sister circuits in embracing the sweeping powers asserted by

Congress and the Executive under The Maritime Drug Enforcement

Act (MDLEA), and I am of the view that the district court acted

without jurisdiction over [Petitioner]. My concerns are of a

fundamental nature and deal with the power of this court, or rather

the lack of power of this court, to penalize [Petitioner] for the crimes

which he allegedly committed against the United States. That is, first,

whether the United States has the power to arrest [Petitioner] under

the circumstances of this case and involuntarily render him into the

territory of the United States. Second, whether the United States has

the power to retroactively apply to him the criminal laws of the

United States for conduct which previous to his arrest and rendition

was not subject to these laws, and which only comes into play by the

actions of the United States in arresting [Petitioner] in international

waters and rendering him into United States territory... The Maritime

Drug Enforcement Act (MDLEA) codified as amended at 46 U.S.C. §

70501-08, has been used to expand United States criminal

jurisdiction well beyond U.S. borders to include people and acts that

have no connection whatsOever with the United States. This

extraterritorial exercise is far in excess of any powers either

permitted by international law or granted by Congress to the

Executive branch." United States v. Trinidad, 839 F.3d 112, 116- 120

(15t Cir. 2016) (TORRUELLA, Circuit Judge (Dissenting)).

The foregoing dissent by Judge Torruella essentially captures the first

argument that Petitioner is attempting to make. Attorney Miranda did absolutely

nothing to demonstrate to Petitioner, a person of humble origins and with little

formal education, as to how it was that he could have been arrested in

international waters between Guyana and Jamaica, charged with a crime against

the United States, turned over to American authorizes, prosecuted in an American

federal court and sentenced to serve time in an American prison.

ISSUE #2

Petitioner was denied the effective assistance of counsel

where, at no time during his visits with Petitioner did his

attorney ever demonstrate to Petitioner that the United

States government had actually contacted the government

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I

of Guyana and obtained permission to board and conduct a

search Petitioner's vessel.

THE STANDARD FOR THE EFFECTIVE ASSISTANCEOF COUNSEL

"In all criminal prosecutions, the accused shall enjoy the right to

...

the

assistance of Counsel for his defence." U.S. Const. Amend. 6. To establish a claim

of ineffective assistance of counsel, a Petitioner "must show that counsel's

performance was deficient, "and that the deficiency prejudiced the Petitioner.

Strickland v. Washington, 466 U.S. 668,687, 104 S.Ct. 2052,80 L.Ed.2d 674(1984).

"This inquiry involves a two part test." Rosado v. Allen, 482 F.supp.2d 94, 101 (D.

Mass 007). First, a defendant must show that, 'in light of all the circumstances,

the identified acts or omissions were outside the wide range of professionally

competent assistance." Id. (quoting Strickland v. Washington, 466 U.S. at 690,

104 S.Ct. 2052.) "This evaluation of counsel's performance 'demands a fairly

tolerant approach." Rosado v. Allen, 482 F.Supp.2d at 101 (quoting Scarpa v.

Dubois, 38 F.3d 1, 8 (ist Cir. 1994). "The court must apply the performance

standard 'not in hindsight, but based on what the lawyer knew, or should have

known, at the time of his tactical choices were made and implemented.' "Rosado

v. Allen, 482 F.Supp.2d at 101 (quoting United States v. Natanel, 938 F.2d 302,

309 (15t Cir. 1991). The test includes a "strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance," Smullen v.

United States, 94 F.3d 20, 23 (1st Cir.1996) (quoting Strickland v. Washington, 466

U.S. at 68, 104 S.Ct. 2052). "Second, a defendant must establish 'that prejudice

resulted 'in consequence of counsel's blunders" which entails 'a showing of a

"reasonable probability that, but for counsel's unprofessional errors, the result

E.

1

of the proceeding would have been different." Rosado v. Allen, 482 F.Supp.2d at

101 (quoting Scarpa v. Dubois, 38 F.3d at 8) (quoting Strickland v. Washington,

466 U.S. at 694, 104 S.Ct. 2052; see Mattei-Albizu v. United States., 694 F.Supp.2d

404, 407 (D.P.R. 2010). However, "[a]n error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment." Argencourt v. United

States, 78 F.3d 14, 16 (ist Cir. 1996) (quoting Strickland v. Washington, 466 U.S. at

691, 104 S.Ct. 2052). Thus, "[c]ounsel's actions are to be judged 'in light of the

whole record, including the facts of the case, the trial transcripts, the exhibits,

and the applicable substantive law," Rosado v. Allen, 482 F.Supp.2d at 101

(quoting Scarpa v. Dubois, 38 F.3d. at 15. The defendant bears the burden of proof

for both elements of the test. Cirilo-Munoz v. United States, 404 F.3d. 527, 530

(rt Cir. 2005) cert.denied, 525 U.S. 942, 119 S.Ct. 363, 142 L.ed.2d. 300 (2010)

(citing Scarpa v. Dubois, 38 F.3d at 8-9.)" Berroa Santana v. United States, 939

F.Supp2d. 109, 116-117 (D.P.R.2013).

Petitioner respectfully submits that the facts and circumstances in his case,

as previously related above, clearly satisfy the forgoing "two part test."

PETITIONER'S CLAIM OF

INEFFECTIVE ASSISTANCE OF COUNSEL

At no time during his visits with Petitioner did attorney Miranda ever

demonstrate to Petitioner where the United States government had contacted

the government of Guyana and obtained permission to search Petitioner's vessel.

Petitioner is of the belief that attorney Miranda was not effective in his

representation of Petitioner because attorney Miranda did not put the

1'

government to its burden of proof as to whether the United States Coast Guard

did indeed comply with the established protocol required for the United States

government to assert jurisdiction over Petitioner's vessel in international waters.

Attorney Miranda did not sit down with Petitioner and show any

documentation whatsoever to show that the United States Coast Guard had

contacted officials of the government of Guyana or show any official

communication with, and the approval by the government of Guyana, that

authorized the United States government to assert federal jurisdiction over

Petitioner's vessel.

If attorney Miranda had seen any discovery material relating to the

foregoing, he certainly did not share them with Petitioner and, at the time,

Petitioner certainly was not aware that he had a right to be informed of such. As

Petitioner has previously stated, he just "went along with the program" in order

to conclude the process as quickly as possible.

ISSUE #3

Petitioner's Due Process rights were violated under the

MDLEA.

POTENTIAL PREJUDICE TO PETITIONER

In United States v. Maynard, 888 F.2d 918 (ist Cir. 1989), this court reversed

the defendant's convictions because it found that the defendant had standing to

challenge the district court's finding of MDLEA jurisdiction based on the fact that

the United States Coast Guard had failed to contact British Virgin Islands ("BVI")

10

authorities before seizing his vessel, even though he was flying a BVI flag and had

likely made a verbal claim of BVI nationality.

In the instant matter, Petitioner has still not seen any documentation to

confirm whether or not agents of the United States had actually communicated

with Guyanese officials and had in fact received permission from them in order

to assert United States' jurisdiction over Petitioner's vessel. If they never did so,

as in Maynard, supra, the United States did not in fact have jurisdiction and the

United States would not have been able to search, detain, prosecute or convict

Petitioner. As such, the outcome of these proceedings would have been

dramatically different, to possibly include the reversal of Petitioner's conviction

or even a dismissal of the indictment.

REASONS FOR GRANTING THE PETITION

Petitioner's Due Process rights and his right to the effective assistance of

counsel were violated where his vessels was stopped, boarded, searched and he

was eventually arrested in international waters, by authorities of the United

States, without having actually seen reliable proof that authorities of Guyana, his

native country and whose flag he was flying, had indeed granted such permission.

This issue is of great importance as it affects hundreds, if not thousands, of nonU.S. citizens every year who are intercepted in international waters, searched,

arrested, brought to the United States and, in spite of having absolutely no nexus

whatsoever to the United States, are indicted and prosecuted in federal courts

and eventually sentenced to serve time in prisons all across the United States.

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)

CONCLUSION

This petition presents a question that is significant and may be of a first

impression in this Court. For all of the foregoing reasons, Petitioner respectfully

submits that this court's review is warranted in order to address Congress's

"sweeping powers

...

under The Maritime Drug Law Enforcement Act (MDLEA)"

where citizens from all across the world, navigating in international waters, are

routinely arrested on the high seas, hauled into federal courts, prosecuted and

convicted for criminal offenses which have absolutely no nexus whatsoever to

the United States. The petition for writ of certiorari should be granted.

Date: March 6, 2018

Respectfully Submitted,

Ramnarine Persaud

45853-069 H05-1061

McRae Correctional Facility

P. 0. Drawer 55030

McRae Helena, GA 31055

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