Petition for Writ of Certiorari — Donte Booker, Petitioner v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

DONTE BOOKER

—PETITIONER

(Your Name)

vs.

UNITED STATES OF AMERICA

—RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Li .5. Court of Appeals for the Sixth Circuit

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

PETITION FOR WRIT OF CERTIORARI

DONTE HOOKER

(Your Name)

F.C.I. Elkton (Low)

0. Box 10

(Address)

Lisbon, Ohio. 44432

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

Whether the Sixth Circuit Court of Appeals refusal to recognize trial

counsel performance deficient and prejudice Petitioner for failure to

present exculpatory evidence ("POLICE REPORT") in his possession during

trial when Petitioner testified under oath on the stand stating his

"RELUCTANCE" hours before arrest?

Whether trial counsel prejudice Petitioner for failure to produce exculpatory evidence (POLICE REPORT) at any time during trial to establish

entrapment defense?

Whether trial counsel performance deficient and prejudice Petitioner

for failure to produce exculpatory evidence (POLICE REPORT) to impeach

witnesses whom testified that Petitioner never showed any reluctance

during investigation?

Whether trial counsel performance deficient and prejudice Petitioner

for failure to produce exculpatory evidence (PENDING STATE CIVIL SUITS)

State Case No. CV-12-797478, Donte Booker v. Patrick Sullivan, et al., &

Case No. CV-12--797479, Donte Booker v. Scott Ramsey et al. Cuyahoga County

Court of Common Pleas to negate profit in this alleged crime?

Whether trial counsel performance was deficient and prejudice Petitioner

for failure - to produce exculpatory evidence (STATE CIVIL SUITS) at trial

when he was aware that both parties were in negotiations to award Petitionner a large settleinentof money to avoid trial?

Whether trial counsel performance was deficient and prejudice Petitioner

for failure to produce exculpatory evidence (STATE CIVIL SUITS) at trial to

impeach witnesses whom testified that Petitioner wanted to commit alleged

crime to receive money proceeds from selling the drugs?

Whether trial counsel performance deficient and prejudice Petitioner for

failure to produce exculpatory evidence (STATE CIVIL SUITS) existence during

trial to negate profit and establish entrapment defense?

Whether trial counsel performance was deficient and prejudice Petitioner

when withholding exculpatory evidence (POLICE REPORT) in his possession,

which he failed to turn over discovery evidence to Petitioner so that he

could adequately prepare for his defense at trial?

Whether Petitioner's prior offenses still qualify as predicate offenses

when Petitioner has clearly presented and produced evidence of [proof]

beyozrd a reasonable doubt that he is no longer a Career Offender under

U.S.S.G. § 4B1.1?

Whether trial counsel prejudice Petitioner for failure to introduce

(STATE CIVIL SUITS) under Fed.R.Evid. 401, to negate profit, impeach

witnesses, support entrapment defense.

Whether Sixth Circuit prejudice Petitioner for failure to accept Supplement

under Fed.R.Civ.P. 15(a), newly discovered evidence, Rehearing En Banc?

Whether Prosecutorial Misconduct remarks violated due process?

Whether new interpretation case law determines Petitioner's prior predicate

offenses are no longer crimes of violence tinder ti.S.S.G. 4B1.1?

LIST OF PARTIES

[x] All parties appear in the caption of the case on the cover page.

[ ] 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:

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Haines v. Kerner, 40 14. U.S. 519, 520 (1972)

Strickland v. biahington, 14.66 U.S. 668, 687 (1984)

Harris, 9 F. 3d at 497

Tacbson v. u.S., 503 u.S. 514.0, 548 (1 (392)

U.S. v. Al-Cholan, 610 F. 3d 945, 950 (6th Cir. 2010)

4

Jacobson v. U.S., 503 U.S. 540, 51.8

(1992)

U.S. v. Wright, 921 F. 2d 42, 44 (3rd Cir. 1990)

Fedroft, 874 F. 2d at 184

Donte Booker v. Patrick Sullivan, Civil No. C/-12-797479

Donte Booker v . Scott Ramsey, Civil No. C/-12-797478

U.S. v. Cotton, 535 U.S. 625, 632 (2002)

U.S. v. Kilpatrick, 798 F. 3d 365, 378 (6th Cir. 2015)

U.S. v. Miner, 774 F. 3d 336, 348 (6th Cir. 2014)

U.S. v. Jones, 399 F. 3d 640, 648 (6th Cir. 2005)

Darden v. Wainwright, 477 U.S. 168, 181 (1986)

Parker v. Matthrews, 132 S. Ct. 2148, 2153 (2012)

U.S. v. Kuchne, 547 F. 3d 667, 687 (6th Cir. 2008)

Cristini v. McKee, 526 F. 3d 888, 899 (6th Cir. 2008)

Gates v. U.S., 2018 U.S. App. LEXIS 4975 (5th Cir. Feb. 20, 2018)

U.S. v. Yates, 866 F. 3d 723, 724-34 (6th Cir. 2017)

.7

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STATUTES AND RULES

[J.S.9.G. 491.1

.14

11.S.9.G. 4A1.2(a)(2)

.15

[i.S.S.G. 491.2(c)

.15

11.9.5. G . 4A1 .1(e)

C ommentary Application Notes 2(A) Predicate Offenses

.15

.15

OTHER

Gall v. 11.9., 21 F. 3d 107, 109 (6th Cir. 1994)

Wright v. U.S., 182 F. 3d 458, 463 (5th Cir. 1999)

Hill v. U.S., 368 U.S. 424, 428 (1968)

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

[V.5. v. Pruitt, 2017 11.9. Dist. l.EXIS 10368

(N.D. Ohio 2017)

U.S. V. McBee, 2017 U.S. Dist. LEXIS81+047

(N D. Ohio 2017)

.15

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TABLE OF CONTENTS

OPINIONS BELOW

.

1

JURISDICTION................................................................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................. 3

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

REASONS FOR GRANTING THE WRIT .......................................................................... 7-1 6

CONCLUSION....................................................................................................................1 7

INDEX TO APPENDICES

APPENDIX

(Exhibit K)

APPENDIX B

(Exhibit L).

APPENDIX. C

APPENDIX D

APPENDIX E

APPENDIX F

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

[

For cases from federal courts:

A

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

the petition and is

.]

[1

[ ]

to

Sixth Circuit Court Appeals

(Exhibit K)

reported at

; or,

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

is unpublished.

B

The opinion of the United States district court appears at Appendix

to

the petition and is Northern District of Ohio, Eastern Division

]

[ ]

[ ]

[ ]

(Exhibit L)

reported at

, or,

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

is unpublished.

For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

[1

{ ]

[]

reported at

; or,

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

is unpublished.

The opinion of the

appears at Appendix

______________________________________________

to the petition and is

; or,

[ ] reported at

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

[] is unpublished.

1.

court

JURISDICTION

[xj For cases from federal courts:

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

was October 31, 2017

N

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

E] A timely petition for rehearing was denied by. the United States Court of

Appeals on the following date: November 1 5, 201 7

, and a copy of the

order denying rehearing appears at Appendix 0 (E.x h i b i t M)

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

to and including

in Application No. .A______

(date) on ____________________ (date)

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

[] A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

.

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

to and including

Application No.

(date) on

A

(date) in

.

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

(2)

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United State Constitution Amendment V.

No person shall be held to answer for a capital or other wise infamous

crime unless on a presentment or indictment by a Grand Jury unless in cases

ariseing in the land or navel forces or in the militia when in actual service

in a time of war or public danger, nor shall any person be subject to the

same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal cases to be a witness against himself, nor be deprived of

life, liberty, or property without due process of law; nor shall private

property be taken without just compensation.

United. States Constitution Amendment VI.

In all criminal-prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the state and district

wherein the crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and cause of

the accusation; to be confronted with the witness against him; to have

compulsory process for obtaining witnesses in his favor, and have the

assistance - of counsel for his defense.

(3)

STATEMENT OF THE CASE

After her release from prison, Daisetta Harris worked as a paid

formant for the Cleveland Police Department. (R. 69 Transcript

pg. #625). After she told one of the woman she knew from prison

in-

of Jury Trial

, that she

needed money,. the woman gave her the phone number of the Petiti

oner Booker

who needed fake ID's. (Id at pg.#672). Harris called Booker to

arranged a

(unmonitored) and (unrecorded) meeting at a Burger King fast food

restaurant

in Cleveland. W. As Harris related that October, 2012, meetin

g at Booker's

trial, Booker could not furnish her with fake ID's, but was under

the impression that Harris could supply him with a fake ID. (Id at pg. #630).

According.

to Harris, states that Booker then asked her about any easy target

s to rob,

which she stated she did. (Id at pg. #636-37). After the meetin

g with Booker,

Harris contacted Det. Todd Clark .of the Cleveland Police Department..

(Id at

pg. #639) Harris has worked as:-a paid informant of Det,. Clark since

July of

2012. (Id at Pg. #585). Det. Clark told Harris to se up another

meeting with

Booker where this conversation could be recorded. At the meetin

g on October

31, 2012, at the same Burger King, Harris told Booker that she

had a girl

friend who-: along with her boyfriend moved drugs from various drug stash

houses

in Cleveland. Booker then Boasts and describe how the robbery should

take

place. (Id at pg. #547). After Booker left the meeting, Det. Clark,

who had

been monitoring the meeting followed Booker and copies down the

license plate

of his car. (Id at Pg. #550). A later search by Det. Clark and

verified the

vehicle belonged to Booker. Another meeting was held at the same

Burger King

with Harris, girl friend Det. Gomez, and Gomez boyfriend ATF agent

Miller,

which Booker again Boasts and describe how the robbery should take

place.

Agent Miller informed Booker on certain details to commit the robber

y and he

would contact Booker once he is contacted by his boss. (Id at pg.

718-20).

While Booker waited, through numerous text messages 1 and unrecoreded

phone

calls to Booker cell phone number 216-200-2575, Harris continued

to pressure

Booker using "LIES" informing him about a critically ill grandd

aughter in the

hospital that needs a "HEART TRANSPLANT" and her needing Booker

to help give

her -money to pay for the operation, and enormous hospit

al bills. That her

granddaughter life was in his hands and if he did not help her,

then he will

be blamed for her death! (Id at pg. #307-08). Harris also stated

on the stand

that there was were other (unmonitored) meetings'.with Booker that

she ne.ver

told her boss Det. Clark. (See attachment)

.

(4)

ATTACHMENT (STATEMENT OF THE CASE)

On January 08, 2013, on the day of arrest and hours before arrest

at approximately 1636 hours a (monitored) controlled telephone call was made

by Harris and Det. Clark to Booker cell phone number 216-200-2575. During

this (monitored) controlled call the Audio Recording Device "MALFUNCTIONED"

only recording Harris voice conversation and [not] recording Booker voice

conversation when Booker was informing Harris and Det. Clark that he did not

want to commit any robberies and for Harris and Det. Clark to find someone

else to do it. (See attached Exhibit A). Two hours later at approximately

1722 hours another (monitored) was made again to Booker cell phone number 216200-2575 by Harris- and Det. Clark, Booker again shows "RELUCTANCE" and tells

Harris and Det. Clark to take the drug bag themselves, which Harris tells

Booker this is "IMPOSSIBLE"! Continuing to put more pressure on Booker. In the

police report by Det. Clark to his supervisor Lt. Michael Connelly states that

Booker "EVENTUALLY AGREED" to come to the hotel. (Exhibit A). After being

pressured by Harris and Det. Clark, and Det. Gomez who previously informed

Booker on December 12, 2012, at another monitored meeting with Harris that Det.

Gomez wants to rip off her boyfriend and for Booker to give her $100,000 out

of the deal. (Id at Pg. #718-20). Booker eventually agreed to come to the La

Quinta Inn, located in Cleveland, where Det. Clark placed ten kilos of "sham

cocaine" in a red duffle bag placed in the rear of black Avalanche chevy

vehicle parked in the back of the hotel. (Id at Pg. #568-70). Once Booker

arrived at the hotel, Harris texted Booker and told him Gomez unlocked the

Avalanche doors with her remote and for Booker to grab the kilos of sham

cocaine. (Id at Pg. #576). Booker grabbed the ten kilosin the duffle bag out

the Avalanche and got in his vehicle and begin driving out the parking lot.

Various law enforcement attempts to stop Booker, which Booker lead them in

pursuit and eventually crashed into a swon drift. Booker got out and ran, but

was apprehended and handcuffed. (Id at Pg. #575-579). Once Booker was arrested

and searched, there was no gun, weapons, ski masks, police fake clothes, duct

tape, criminal tools, vests, or money found on his person or in his vehicle by

law enforcement. Nor did Booker have anyone with him to assist him or conspire

in this alleged crime.

Later at trial it was known by Det. Clark that Booker was not under any

investigation prior to meeting Harris for drug stash house robberies or drug

crimes by law enforcement agencies. Nor was anyone identified to whom Booker

conspired with to sell the cocaine to at trial. Booker has no previous history

(5)

ATTACHMENT (STATEMENT OF THE CASE)

of drug crimes or stash house robberies. Booker testified on the stand that he

only agreed to assist Harris in her scheme after her repeated entreaties

through numerous telephone calls and texts. Harris repeatedly telling "LIES"

that she needed Booker to commit this alleged crime to get money to pay for

her grandchild heart surgery and hospital billsplaying on Booker sympathy.

(ID at Pg. #307-08). The evidence of Harris pressure and manipulation of

Booker was pointed at enormous phone conversations and texts reflected in

Harris phone records that were not recorded by police. (Id at Pg. #304).

Booker denied participating in any drug stash house robberies or dealing in

drugs. (Id at Pg. #310-312). Booker explained his first intentions of getting

involved was for play to test his acting skills from watching his favorite

movies and actors and was never serious of commiting any robbery or drug crime.

(Id at Pg. #304-06).

Booker also testified at trial that when Harris called him hours before

arrest on January 08, 2013, that he told Harris that he did not want to proceed further and commit any robbery or drug crimes and to find someone else to

do it. (See Exhibit A). When Booker was pressured by Harris and Det. Clark,

telling him that it would be "IMPOSSIBLE" for Harris and Gomez to do this

alleged crime themselves and take the bag of drugs. Booker testified that the

reason why I the Petitioner proceeded to go to the hotel was that I felt

obligated thinking about Harris critically ill granddaughter in the hospital.

To help give Harris money to save her granddaughter life. (See Case No. 1:13CR-00050, DN #: 51, at 310-,- ¶ 22-24);(DN #: 51, at 311, ¶ 14-24);(DN #: 51 at

312, ¶ 1-12);(see also Exhibit B).

(6)

REASONS FOR GRANTING THE PETITION

This Petition is filed pro se pursuant Hain

es v. Kerner, 404 U.S.

519, 520,92 S. Ct. 594, 30 L. Ed. 2d 652

(1972).

I. TRIAL COUNSEL FAILED TO INTRODUCE EXCU

LPATORY EVIDENCE (POLICE REPORT)

AT TRIAL

Trial counsels Dominic Coletta and Roger

Synenberg performance was

deficient and prejudice Petitioner Booker

for failure to introduce exculpatory evidence (Police Report) to support

entrapment defense that was in

their possession during trial. Which depr

ived and violated Booker's Sixth

Amendment right to effective assistance of

counsel. (See Strickland v.

Washington, 466 U.S. 668, 687-88, 691-92,

104 S. Ct. 2052, 80L. Ed. 2d

674 (1984)).

POLICE REPORT: "At approximately 1636 hour

s, CS (Harris) placed

a. controlled monitored telephone call to

that CS's girlfriend (Det. Gomez), was in

216-200-2575, and told Booker

town." "CS told Booker that CS

would meet with CS's girlfriend and let Book

er know where Booker needed to

come to get the cocaine." "It should be note

d that the (Audio Recording

Device Malfunctioned) during this call only

recording CS's side of the

conversation." (Exhibit A).

POLICE REPORT: "At approximately 1722 hour

ed recorded telephone call to 216-200-2575

s, CS placed a monitor-

, CS told Booker that CS's girlfriend told CS to come to the La Quinta Hote

l." "CS told Booker that the

bag (with the drugs) would be inside of Aval

anche that CS's girlfriend

parked in the rear of the parking lot at

the hotel." "CS told Booker that

Booker would need to come and get the bag

now!" "At that time Booker told

CS to leave with CS's girlfriend, take - the

bag (withthedrugs)." "CS told

Booker that would be impossible!" "Booker

eventually agreed to come to the

hotel." (Exhibit A).

II. POLICE REPORT CORROBORATES BOOKER TEST

AT TRIAL

IMONY STATING HIS RELUCTANCE

(7)

ATTACHMENT (REASONS FOR GRANTING PETITION)

BOOKER: "I am at home making my kids something to eat when she

(informant .

, -Harris) called me." (Case No. 1:13-CR-00050, DN: 51 at 311,

¶ 14-15);(also see Exhibit B). (Trial Transcripts).

BOOKER: " I tell the informant (Harris) I'm cool, I am not doing

no home invasions." (DN: 51 at 311, ¶ 14-15).

BOOKER: "She keeps talking not listening to what I am saying, so

Ist the phone down to feed my kids and she hangs up." (DN: 51 at 311,J

21-22).

BOOKER: "Then she calls back, tells me it's going down, it's at

the hotel, hurry up get in your car." (DN: 51,at 311, ¶ 22-24).

TRIAL COUNSEL: "Why didn't you at that point in time just not go?

(DN: 51 at 312, ¶ 1-2) -j

BOOKER: "I was thinking about her ill granddaughter, I felt

obligated, make the move for them, gave them whatever to pay for the

heart transplant and bills and go back home." (DN: 51 at 312, ¶ 3-12);

(Exhibit B).

Reasonable jurist could agree trial counsel performance was

deficient and prejudice Booker for failure to introduce exculpatory

evidence (Police Report) in counsel's possession during trial to support

Booker testimony on the stand stating his "RELUCTANCE" and to support

entrapment defense.

Once existence of police report, reasonable jurist could agree

based on Booker's testimony on the stand, Booker could have told CS

(Harris) during the malfuctioned audio recording device that failed to

capture Booker's voice conversation that he was a unwilling participant

in this alleged crime.

Once knowing existence of police report, reasonable jurist could

agree Booker displayed "RELUCTANCE" when telling Harris and Det. Clark

through the monitored controlled call "to take the bag (with the drugs)

themselves".

Once knowing existence of police report, reasonable jurist could

agree that Harris and Det. Clark, continued to "INDUCE" Booker to commit

(8)

a crime when telling Booker through monitored controlled call that it is

"IMPOSSIBLE" for them to take the bag (with the drugs) themselves. Putting more pressure and forcing Booker to come to the hotel and take the

bag himself. (See Harris 9 F. 3d at 497 (quoting Tacobson v. United

States, 503 U.S. 540, 548, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992)).

Reasonable jurist could agree through Det. Clark's testimony on

the stand stating Booker was not under investigation prior to meeting

CS (Harris), for any stash house robberies or drug crimes, that Booker

was not predisposed and lacked predisposition. (See United States v.

AL-Cholan, 610 F. 3d 945, 950 (6th Cir. 2010)).

Reasonable jurist could agree through Det. Clark testimony

stating Booker did not have a criminal history of drug stash house robberies or drug crimes, that government failed to prove predisposition beyond

a reasonable doubt. (See Jacobson v. United States, 503 U.S. 540, 548-49,

112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992);(also see United States v.

Wright, 921 F. 2d 42, 44 (3rd Cir. 1990)).

Reasonable jurist could agree that CS Harris and Det. Clark used

their scheme of [persuasion] and [sympathy] from telling "LIES" about

Harris having an critically ill grandchild in the hospital needing a

!HEART TRANSPLANT" and needs Booker to steal drugs and sell drugs to help

pay for the heart transplant and medical bills to save the grandchild's

life. (See Wright, 921 F. 2d at 45 (quoting Fedroft 874 F. 2d at 184)).

Reasonable jurist could agree through CS Harris phone records

verifying substantial calls to Booker phone number 216-200-2575, and texts

messages, and CS Harris testimony stating that there were unmonitored and

no recorded meetings with Booker that she did not inform Det. Clark, that

a tremedous amount of "INDUCEMENT" was presented to Booker.

Reasbale jurist could agree that it's reasonably probable the

results would have been different if not for counsel's [errors]. (See

Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984)).

Reasonable jurist could debate district court's and circuit

(9)

court's that this sub-claim does not satisfy either Stricklang prong.

Reasonable jurist could disagree with district court's and circuit court's

rejection of this sub-claim.

III. TRIAL COUNSEL FAILED TO INTRODUCE EXCULPATORY EVIDENCE STATE CIVIL

SUITS

Trial counsel's performance was deficient and prejudice Booker for

failure to introduce exculpatory evidence (state civil suits) to [negate]

"PROFIT" and support entrapment defense.that was in counsel's possession

during trial. Which deprived and violated Booker's Sixth Amendment right to

effective assistance of counsel. (See Strickland v. Washington, 466 U.S.

668, 687-88, 691-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

Petitioner Booker, informed trial counsel Roger Synenberg before

trial, that he has two pending state civil suits in the Cuyahoga County

Court of Common Pleas. That him and his attorney was in negotiations with

both parties to agree on a large settlement of money to avoid trial.(See

Donte Booker v. Partick Sullivan, Civil No. CV-12-797479 & Donte Booker v.

Scott Ramsey, Civil No. CV-12-797478);(Exhibit C).

Trial counsel was aware of both civil suits that were pending before

and during trial, which counsel signed a sworn affidavit stating Booker

told him about both pending civil suits before trial. (See Exhibit

ROGER SYNENBERG:

).

"Mr. Booker informed me of his civil litigation

against the city of Beachwood, Ohio., arising out of his wrongful conviction

in or about 1988 for crimes that he did not commit during the course of my

representation of Mr. Booker." (Exhibit 6 ).

Once knowing existence of both civil suits that were pending in

state court during trial, reasonable jurist could agree that Booker did not

have a motive to commit this alleged crime for "PROFIT" of selling the

drugs (cocaine).

Once knowing existence of civil suits, reasonable jurist could

agree that trial counsel should have introduced civil suits as exculpatory

evidence to impeach witnesses and government whom stated and testified Booker

personally engaged himself to receive and gain large proceeds from selling

(10)

he drugs in this alleged crime.

Once knowing existence of civil suit

s, reasonable jurist could

agree that trial counsel should have

introduced civil suits to [negate]

profit and support entrapment defense.

Once knowing existence of civil suit

agree that it's reasoñablyprobable

if not for counsel's [errors]. (See

s, reasonable jurist could

the results would have been differen

t

Strickland v. Washington, 466 U.S. 688,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (198

535 U.S. 625, 632, 152 L. Ed. 2d 860,

4)- (also see United States v. Cotton,

122 S. Ct. 1781 (2002)).

Reasonable jurist could debate the dist

court's conclusion that this sub-clai

rict court's and circuit

m does not satisfy either Strickland

prongand rejection of this sub-claim

.

-

IV. BOOKER'S SIGNED SWORN AFFIDAVIT

Petitioner Booker signed a sworn affi

davit and submitted this to the

court. (Civil No. 17-3357, DN: 20, File

d 9/27/2017), stating after trial

Booker and trial counsel Dominic Cole

tta, attended a Presentence Investig

ation meeting with probation officer Alle

n Gold. Once this meeting was completed, trial counsel Dominic Coletta,

left the room to go get the officer

to

escort Booker back to his cell. Duri

ng that time Booker noticed papers on

top of counsel's files on the table.

Which Booker got up to look at them

and

seen the police report that he had neve

r seen and confiscated this. Once

arrived back to his cell and read this

police report, this is when he was

aware of the two monitored controlled

calls made by CS Harris and Det. Clar

k

hours before arrest. (See Exhibit I);(

also see Exhibit A).

Record will reflect that Booker file

d a pro se motion stating ineffective assistance of counsel and requ

ested to dismiss both trial counsels

and

proceed pro se with standby counsel.

(Case No. 1:13-CR-00050, DN: 36, 39).

District Court signed an Order granting

Booker's motion. (Case No. 1:13-CR00050, DN: 42).

Booker also, filed a pro se motion unde

r Fed.R.Crim.P. 33(b)(1),

Newly Discovered Evidence (Police Repo

rt), requesting new trial. This moti

on

is still pending. (Case No. 1:13-CR00050, DN: 78, Filed: 3/12/2015)

.

(1 1)

V. TRIAL COUNSEL. DOMINIC COLETTA FAILED TO PRESENT AFFIDAVIT

Petitioner Booker, has also, signed a sworn statement under oath

pursuant 18 U.S.C. § 1746 penalty of perjury in his 28 U.S.C. § 2255

Petition stating what had occurred at the Presentence Investigation meeting

with counsel Dominic Coletta after trial. (Civil No. 1:15-CV-01051, DN: 80,

Filed: 05/26/2015).

Both trial counsels Dominic Coletta and Roger Synenberg, both failed

to address or refute Booker's allegations to what actually occurred at the

Presentence Investigation meeting. Counsel Dominic Coletta, [refuse] to

submit an affidavit to respond to Booker's allegations as untrue.

Reasonable jurist could agree that an evidentiary hearing is

warranted to establish the [facts]. (See United States v. Kilpatrick, 798

F. 3d 365, 378 (6th Cir. 2015)(quoting United States v. Miner, 774 F. 3d

336, 348 (6th Cir. 2014)).

Reasonable jurist could debate district court's and circuit court's

conclusion that this sub-claim does not satisfy either Strickland prong

for failure to disclose discovery evidence material (police report) to

Booker. So that he could have adequately prepared for his entrapment

defense properly.

Reasonable jurist could debate with district court's and circuit

court's rejection of this sub-claim.

Reasonable jurist could agree that it's reasonably probable the results would have been different if not for counsel's [errors]. (See United

States v. Jones, 399 F. 3d 640, 648, 483 Fed. Appx. 197 (6th. Cir. 2005);

(also. see Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052,. 80 L.

Ed. 2d 674 (1984)).

III. PROSECIJTORIAL MISCONDUCT

Jr'osecutor Edward Feran flagrant remark stating his credibility to the

evidence of guilt during closing argument, so infected the trial with unfairness as to make the resulting conviction a denial of due process.

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-

(See Darden v. b)ainuright, 477 U.S. 168, 181, 106 S. Ct. 2664, 91 L. Ed. 2d

144 (1986);(Parker v. Matthews, 132 S. Ct. 2146, 2153, 183 L. Ed. 2d 32

(2012)).

FERAN: In fact, in my 15 years as a Federal Prosecutor, the evidence

couldn't be more simplistic." (Case: 1:13-CR-00050, Doc #: 70, Page ID #: 793)

(Exhibit F)

SVNENBERG: "Objection, your Honor." (Case: 1:13-CR-00050, Doc #: 70,

Page ID #: 793) ;(Exhibit F).

COURT: "Sustained." "Disregard that last comment." (Case: 1:13-Cr-00050,

Doc #: 70, Page ID #: 793);(Exhibit F).

SYNENBERG: "udge, I'd like to make a motion for mistrial." "Because of

the remarks that the Government made with reference to he's never seen evidence in 15 years like this." (Case: 1:13-CR-00050, Doc #: 70, Page ID #: 798-

799);(Ex. F).

COURT: "Okay, I siistaned the objection when he said that." "And some

ways, it gets into, it's not directly, but kind of goes to your credibility,

which you shoLildn't have gone into." (Case: 1:13-CR-00050, Doc #: 70, Page ID

#: 799);(Ex. F).

The Court states on record that Feran remarks was based on his credibility and agrees that the remark was flagrant, "stating Feran shouldn't have

told the jurors this remark."

remark was:

improper;

tended to mislead the jury;

prejudice;

.

deliberately made;

5. flagrant to warrant reversal.

The preponderance of the evidence was not strong to convict if counsel

would have presented exculpatory evidence (Police Report) , (Malfunctioned

Recordings) that was in his possession during trial. Which, [displays]

Booker's "RELUCTANCE" hours before arrest. (See Ex. A). Counsel has a fiduciary duty and ethical obligated duty to present the jury this evidence on the

behalf of his client Booker, which reasonable jurist could have inferred

[doubt] and found Booker not guilty. Booker presented the

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"ENTRAPMENT DEFENSE" and "RELUCTANCE" is the most important [factor] of

[innocence] in the entrapment defense.

Counsel Synenberg objected to the improper remark at trial, so therefore

this Honorable Court shoul-d review this claim of prosecutorial misconduct de

novo. (See U.S. v. Kuehne, 547 F. 3d 667, 687 (6th Cir. 2008)).

Feran's conduct and flagrant reniarkswas improper as to warrant reversal.

(See Cristini v. McKee, 526 F. 3d 888, 899 (6th Cir. 2008)).

A flagrant remark such as to Feran's credibility to the guilt of the

evidence cannot be reasonably [cured]. Because the jurors are now basing their

guilty decision more [strongly] on Feran's credibility.

!II. GATES V. U.S., 2018 U.S. App. LEXIS 4075, Case No. 17-3156

(6th Cir. 2018)

Based on "new interpretation case law" in light of Sixth Circuit Court

of Appeals recent decision in Gates v. U.S., 2018 U.S. App. LEXIS 4075, Case

No. 17-3156 (6th Cir. 2010), and U.S. v. Yates, 566 F. 3d 723, 724-34 (6th Cir.

2017) , Booker's 1986 Case No. CR213404 & 1987 Case No. CR-21 6213 Ohio Revise

Code (n.R.C.) 2911.02(A)(3) (Pre-Senate Bill Two) Robbery offense convictions

no longer qualify as "crimes of violence" under [J.S.S.G. 401.1, 481.2(a) (1),

481 .2(a)(2) Career Offender Guidelines. (See Exhibits G &

H).

VIII. U.S. v.. PRUITT, 2017 U.S. Dist. LEXIS 10368, Case No. 1:'i5-ClI-02452,

JUDGE JAMES S. GLiJIN (N.D. OHIO 2017)

Based on "new interpretation case law" in light of United States District

for the Northern District of Ohio decision in U.S. v. Pruitt, 2017 U.S. Dist.

LEXIS 10368, Judge James S. Gwin (N.D. Ohio 2017), Booker's sentencing Judge

James S. Gwin determined that Hooker's 2010 Case No. CR-536586 O.R.C. 2905.02

Abuction offense conviction no longer qualify as a "crime of violence" under

UJ.S.S.G. 401.1, $bl.2(a)(1), 401.2(a)(2) Career Offender Guidelines. (See also

U.S. v . McBee , 2017 U.S. Dist . LEXIS 84047, Case No. 1 :07-CR-362 , Judge John

R. Adams (N.D. Ohio 2017); (Exhibits I & J)

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LJ.5.S.G. 4A1.2(a)(2), 401.2(c)

Booker's 2010 Abduction Case No. CR-536886& 2010.Atempted Felonious

Assault [same] Case No. CR-536886 offenses were commited on the [same] day,

[same] time, under the [same] charging instrument, setences were imposed

on the [same] day with no "INTER\/ENING ARREST". JSee Exhibit J).

U.S.5.G. 4A1.2(a)(2)

states:

-

"If there is no intervening arrest, prior sentences are counted

separately unless: (A) the sentences resulted f r om offenses contained in

the same charging instrument; or (B) the sentences were imposed on the

same day. Treat any prior sentence covered by (A) or (B) as a single

sentence. (See attached Exhibit N);(also see .1J.S.S.G. 4A1.1(e)).

Commentary Application Notes 2(A) Predicate Offense states:

"No more than "ONE" prior sentence in a Igiven single sentence may be

used as a predicate offense." (See Exhibit N).

Based on ti.S.5.G. 4A1.2(a)(2), 491.2(c), only "ONE" prior predicate

offense in a given single sentence without an intervening arrest can be

used as a predicate offense. Therefore, this [eliminates] Bookers 2010

Attempted Felonious Assault offense as a "crime of violence" under 11.5.5.0.

4 81.1 Career Offender Because both 2010 Abduction & 2010 Attempted Felonious

Assault offenses were tinder the same charging instrument (indictment), bath

were committed on the same day and time, both sentences were imposed on the

same day with no intervening arrest. (See Exhibit 0).

SENTENCING

At Booker's sentencing held on July 18, 2013, the Presentencing Report

(PSR) indicated that Booker has (four) qualifying offenses under IJ.S.S.G.

481.1 Career Offender. Offenses: 1986 Robbery, 1987 Robbery, 2010 Abduction,

2010 Attempted Felonious Assault. (See (PSR)). Booker's factual evidence of

[proof] presentedhas [eliminated] all four qualifying offenses. According

to 11.5.5.0. 4B1.1, there has to be at least "Thin" qualifying offense convictions to qualify a defendant under ti.S.S.G. 491.1 Career TJffender. (See 11.5.5.

0. 481 .1) .

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XI. FUNDAMENTAL DEFECT, MISCARRIAGE OF JUSTICE, DUE PROCESS

District Court [erred] and [improperly] sentenced Booker under [J.S.S.G.

4B1.1 Career Offender, which constitutes a fundamental defect" in sentencing

that inherently results in a "complete miscarriage of

justice",

and the

egregious [error] amounted in violation of Booker's "due process". (See

Gall v. U.S., 21 F. 3d 107, 109 (6th Cir. 1994);(biright v. U.S., 182 F. 3d

L,.58,

453 (6th Cir. 1999)(quoting Hill v. U.S., 368 'U.S. 4211., 11.28, 825. Ct.

11.68, 7 L. Ed. 2d 417 (1968)).

Booker had demonstrated that reasonable jurist could agree the results

could have been different if not for counsel's [errors]. (See Strickland v.

Hashington, 466 IJ.S. 688, 1011. S. Ct. 2052, 80 L. Ed. 2d 417 (1984)).

Booker has made a substantial showing of a denial of a constitutional

right. (See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).

Booker demonstrates that reasonable jurist could disagree with District

Court's and Circuit Court's rejection of his constitutional claims. (See

Miller-El, 537 U.S. at-327)

C 0 N Cl. Ui S I ON / R EL I E F

For the foregoing reasons, I Petitioner Donte Booker, pray and respectfully hereby request this Honorable Court to grant Petition for Certiorari

in his favor. And review the decisions of the District Court and Sixth

Circuit Court in this matter. In the interest of justice, fairness, integrity,

of the judicial proceedings.

Also, grant toappoint counsel pursuant 18 U.S.C. 3006A (CJA); (2)

remand for new trial; (3) remand for resentencing de novo.

Thank you and God bless the united States of America.

Respectfully submitted,

Donte Booker #58625-060 pro se

F.C.I. Elkton (Low)

P.O. Box 10

Lisbon, Ohio; 44432

.

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

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