Petition for Writ of Certiorari — Felix A. Okafor, Petitioner v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

FELIX A. OKAFOR,.

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

FELIX A. OKAFOR, PRO-SE

INMATE ID NO: 56118-056

USP HAZELTON, P.O.BOX 2000

BRUCETON MILLS, W.VA.,26525

DATED: 24 JUNE, 2018

Pro-Se Petitioner

QUESTIONS PRESENTED FOR REVIEW

MAY A CONVICTION THAT IS ADMITTEDLY A VIOLATION

OF THE

CONCURTRENT SENTENCE DOCTRINE BE ALLOWED

TO STAND IN LIGHT

OF RAY V. UNITED STATES, ,481 U.S. 736 (1987)?

WHETHER THE SIXTH AMENDMENT IS IMPLICATED WHERE

THE DISTRICT

COURT ERRONEOUS SENTENCING DETERMINATION UNLA

WFUL

LY INCREASED

DEFENDANTS SENTENCING IN LIGHT OF THIS COURT'S DECI

SION IN

GLOVER V UNITED STATES, .531 Z. S.,

(2001)?

WHETHER IN LIGHT OF THE REVERED STATUS OF THE BEYO

ND-AREASONABLE-DOUBT STANDARD, CAN A CONVICTION

WHER

E

THE

ELEMENT OF THE OFFENSE MAY NOT HAVE BEEN FOUND AGAI

NST

THE DEFENDANT BY SUCH STANDARD BE OVERLOOKED IN

LIGH

T OF

IN re.WINSHIP, 397 U.S.358 (1970)?

IV: WHETHER PETITIONER'S CONVICTION AND SENTENCE

BOTH

21 U.S.C.841(a) AND 860 VIOLATED THE DOUBLE OF

JEOP

CLAUSE IN LIGHT OF THE "SAME EVIDENCE RULE" ADOP ARDY

BLOCKBURGER V.UNITED STATES, 284 U.S.299(1932)? TED IN

V. IS DUE PROCESS VIOLATED WHEN A PROSECUTOR HAS

AN AFFIRMATIVE

DUTY TO DISCLOSE ANY EXCULPATORY AND IMPEACHMENT

EVIDENCE

KNOWN TO ANY AGENT/OFFICER INVOLVED IN THE TTRIAL,

TO DO SO IN LIGHT OF KYLES V. WHITLEY, 514 US.419 BUT FAILED

(1995)?

1

TABLE OF CONTENTS

PAGE

I

QUESTIONS PRESENTED ............... ..................... . .......

TABLE OF CONTENTS ................................................Ii

TABLE OF AUTHORITIES ............................................iv

OPINION AND ORDERS BELOW ...................................... .1

JURISDICTION STATEMENT ........................................1

CONSTITUTIONAL PROVISIONS .....................................1

STATEMENT OF THE CASE ..........................................2

STATEMENT OF REASONS FOR'GRANTING CERTIORARI ..................

3

I.MAYA'.CONVICDION THAT IS ADMITTEDLY A VIOLATION OF THE

CONCURRENT SENTENCE DOCTRINE BE ALLOWED TO STAND IN LIGHT

OF RAY V.UNITED STATES, 481 U.S.736 (1987)2 ................

3

..

WHETHER THE SIXTH AMENDMENT IS IMPLiCATED. WHERE THE

DISTRICT COURT ERRONEOUS SENTENCING. DETERMINATION

UNLAWFULLY INCREASED DEFENDANTS SENTENCING IN LIGHT

• OF THIS COURT'S' DECISION IN GLOVER V.UNITED STATES,

531 U.S. 198 (2001)?.... ...................................... 6

WHETHER IN LIGHT OF THE REVERED STATUS OF THE 'BEYONDA-REASONABLE-DOUBT STANDARD, CAN A' CONVICTION ,WHERE. THE

ELEMENT OF THE OFFENSE MAY NOT HAVE BEEN.,,FOUND AGAINST

• A DEFENDANT BY SUCH A STANDARD BE OVERLOOKED INLIGHT OF

WINSHIP.V.UNITED STATES 397 U.S.358 (1970)? ...............9

WHETHER PETITI.ONER'S CONVICTIONAND'SENTENCE OF BOTH

21 U.S.C..841 AND' 860 VIOLATED THE DOUBLE JEOPARDY

CLAUSE IN LIGHT OF THE 'SAME EVIDENCE RULE"'ADOPTED

IN BLOCKBURGER V.UN'ITED STATES, 284 U.S. 299 (1932)7 .....

'

14

IS DUE PROCESS VIOLATED - WHEN A PROSECUTOR HAS AN

AFFIRMATIVE DUTY TO DISCLOSE ANY EXCULPATORY AND

IMPEACHMENT EVIDENCE KNOWN TO. ANY AGENT/OFFICER

INVOLVED IN THE TRIAL, BUT FAILED TO DO SO INLIGHT

OF KYLES V.WHITLEY, 514 U.S. 419 (1995)? ..................17

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

20

APPENDIX:

OPINION,

U..S..Côurt0f Appeals for the Fourth Circuit

entered April 3,2018 .....................................App.A

District Court judgement and Conviction Order

entered December 18,201 ...............................App.B

11

•

U.S.ourt Of Appeals for the Fourth Circuit

Rehearing and Rehearing en Banc

judgement Of Court Filed, denying

petitionon June 5,2018 ................................... . ................ App.0

Excerptsof Transcript of Trial proceedings before

the Honrable Senior Judge Malcolm .J.Howard

on July 9,2013.

Testimony of the Government Confidential Informant

(Jerome), the only person involved with petitioner in

the charged conspiracy. (J.A.243-45) ....................................App.D

The Government Counsel (AUSA) Testimony before the Court;

Indicating that government had no Evidence nor Witnesses. to

Corroborate that petitioner was involved in a conspiracy to

.App.E

distribute 100(Kg) of marijuana, and 100(g) of Heroin (J.A.469-71) ..............

U.S.District Court Order: JUDGMENT IN A CRIMINAL CASE,4/10/14

Showing that Petitioner's Sentences were run Concurrent

and pursuant to-18 U.S.C.3103, a Monetary Assessment as

well as a Prison term was also imposed on each of the

........... . ........ App.F

.

MultipleConvictions .......................................

U.S.District Court Notice Of Appeal and Docket Sheet

Transmission to U.S.Court Of apeals, January 3,2018..

Record showing that Petitioner s sentences were Run.

Concurrent and a Monetary assessment fee pursuant to

18 U.S.C.3103, as well as a Prison term was imposed

on each of the Multipie Convictions in violation of

the

Concurrent

sentence

doctrine.............

a

..

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

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

App.G

TABLE OF AUTHORITIES

PAGES

CASE:

BALL V.UNITED STATES

470 U.S. 856 (1985).....................................:5

BARBIE V.WARDEN

331 F.2d 842 (4th Cir.1964) ...............................19

BLOCKBURGER V.UNITED STATES

284 U.S.299 (1932) ......................................14,16

BROWN V.OHIO

432 U.S.161 (1977).........................................

CARTER V.UNITED STATES

537 U.S. 1187 (2002) ......................................14,16

CONE V.BELL

129 S.ct. 1769 (2009) ....................................19

GIGLIO V. UNITED STATES

405 U.S.150 (1972) .......................................

17,18

GLOVER V.UNITED STATES

531 U.S.198 (2001) ......................................6,7

IN Re.SEALED CASE

NO:99-3096 1 185 F.3d 887 (D.C.Cir.1999) .................19

IN RE. WINSHIP

.370U.S.358(1970) ......................................9,12,13

JEFFERS V. UNITED STATES

423 U.S.137 (1977) ........................................15

KYLES V.WHITLEY

514 U.S.-419 (1995) ......................................17,18,20

McMILLIAN V.JOHNSON

88F.3d1554(11thCir.1996) ...........................19

MITCHELL V.GIBSON

262 F.3d 1036 (10 th Cir.2001) ........................19

PETITE V.UNITED STATES

361U.S.529(1960) .......................................4

RAY V. UNITED STATES

481 U.S.736 (1987) ......................................3,7

RUTLEDGE V. UNITED STATES

517 U.S.292 (1996) ......................................5

SEARS V UNITED STATES

343 F.2d 139 (5th Cir..1965) ............................

iv

9,12,13

STRICKLER V.GREEN

527 U.S.263 (1990) ..........................................19

UNITED STATES V.ANDERSON

59 F.3d 1323 (D.C.Cir.1995) ..................................5

UNITED STATES V.ARBANE

446 F.3d 1223 (11th Cir.2006) .............................12

UNITED STATES V.AVILES-COLON

536 F.3d 1 (lst.Cir.2008) .................................19

UNITED STATES V.BARBOA

777 F.2d 1420,1422 n.1 (10 th Cir.1985) ..................12

UNITED STATES V.BODKINS

274 F.App'x.294 (4th Cir.2008) ...........................19

UNITED STATES V.CHASE

372 F.2d 453 (4th Cir.1967) .................................13

UNITED STATES V;CARLTON

442 F.3d 802 (2nd Cir.2006) .................................13

UNITED STATES V.CAPPAS

29 F.3d 1187 (7th Cir. 1994) ...............................5

UNITED. STATES V.CARPENTER

422 F.3d 738 (8th Cir.2005) ..............................15

UNITED STATES V.ESCOBAR-de BRIGHT

742 F.2d 1196(9th Cir.1984) .............................13

UNITED STATES V. FENTON

367 F.3d 14 (lst.Cir.2004) ...............................15

UNITED STATES V.FONTANILLA

849 F.2d 1257 (9th Cir.1988) ...............................5

UNITED STATES V.FREYRE-LAZARO

3F.3d 1496(11th Cjr.1993) .................................16

UNITED STATES V.GUESS

482 Fed.Appx.832; 2012 U.S.Ap°p.LEXIS 11686 (4th Cir.2012).. 5,7

UNITED STATES V.HAMILTON

985 F.2d 1344 (11th Cir.1992) ...............................5

UNITED STATES V.JACKSON

443 F.3d 293 (3rd Cir.2006)..:.....................6........15

UNITED STATES V.JONES

489 F.3d 243 (6th Cir.2007) ...................................15

UNITED STATES V. KAKATIN

214 F.3d 1049 (9th Cir.2000) ..............................15

V

UNITED STATES V.LINDSAY

985 F.2d 666 (2nd Cir.1993) ................................5,16

UNITED STATES V.NAHKIMETAS.

991 F.2d 379 (7th cir.1993) ..................................13

UNITED STATES V.McARTHUR

850 F.3d 925;2017 U.S.App.LEXIS 3311 (8th Cir. 2017) .......5

UNITED STATES V.M0ORE

958 F.2d 310 (10 th Cir.1992) ..............................5,16

UNITED STATES V.MOSS

591 F.2d 428,434 n-8 (8th Cir.1979) ........................13

UNITED STATES V.NUNEZ

889 F.2d 1564 (6th Cir.1989) .................................13

UNITED STATES V.PARET-RUIZ

567 F.3d 1,6, (1st Cir.2009) ..................................13

UNITED STATES V.PRIVETTE

947 F.2d 1259 (5th Cir.1991) ................................5,16

UNITED STATES V.SCOTT

987 F.2d 261 (5th Cir.1993) ...............................15

UNITED STATES V.SIMS

975 F.2d 1225 (6th Cir.1992) ...............................5

UNITED STATES V.WHITE.

2001 U.S.App.LEXIS 28426 (2nd Cir.2001) .....................15

C'T'AmTIt'e

18 U.S.C.924(c) .................................................2,3,4,5,7,16

18 U.S.C.'3103 ....... . .......................................... 3,7

18 U.S.C.3231 ....................................................1

21U.S.C..841 ........................ . ....... ......... . ....... 2,3,6,7,14,15.,16.

21 U.S.C.846 .........................................................2,7,11

21 U.S.C.SS856 .........................................................2,3

21 U.S.CSS860 ............. ............................................ 2,3,14,15

28

U.S.C.1254 ................................. ......................1

-

28 U.S.C.1291 .............................................................1

.28 U.S.C.2101 .......................................................1

28 U.S.C.2253.......................................................3,6,9

.

28 U.S.C.SS2255............ . . .

2,3,6,a,9,17

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

vi

-

GUIDELINES:

)

.

. . . ........

U.S.S.G3D1.2 ...... ....................................

6,7,8

CONSTITUTIONAL PROVISIONS:

US.CONST.amend.V ........................ . ...................... 1,4,5,14,16

.............................. .6,8

U.S.CONST.amend.VI.........................

U.S.CONST.amend. XIV .............................................1

RULES:

Fed.R.Evid. 902(6) ................................................

'.

a

-J

18

I

OPINION AND ORDERS BELOW

The Orders appealed from is

located at the Docket of the

United

Court Of Appeals for the Fou

rth Circuit case No: 18-601

2.

JURISDICTIONAL STATEMENT

This Petition for Writ Of Cer

tiorari is from the Order and

entered on June 5, 2018, in

the above referenced Case by

Circuit Court Of Appeals. Acc

Judgment

the Fourth

ordingly, the Court has Jur

this petition for Writ Of

isdiction over

Certiorari matter pursuant

and 28 U.S.C,2101. The Dis

to 28 U.S.C.1254

trict Court had original Jur

isdiction over

the subject matter of this

case pursuant to 18 U.S.C.'32

31. The Court of

Appeals had jurisdiction pur

suant to 28 U.S.C,1291 and

28 U.S.C.3742.

CONSTITUTIONAL PROVISIONS INV

OLVED

"No person shall be deprived

of Life, liberty or property

without

Due Process Of Law."

U.S.Const.àmend. V.

"No person shall.. .be Subjec

t for the same Offense to be

in Jeopardy of Life or limb."

Twice put

U.S. Const.amend.V.

The Due Process Clause protec

ts the accused against convic

upon proof beyond a Reasonabl

the offense wi.th.which he is

tion except

e Doubt of the:existence of

charged.

U.S.Const.arnend. V.and XIV.

1

every element of

STATEMENT OF THE CASE

On February 21, 2012,.Petiti

oner (Okafor) was charged in

Counts indictment with violat

a Twenty-two

ions of various Federal Narcot

ics and Firearms

Offenses. Eleven Counts of pos

ses

sion to distribute in violat

§841(a) and Eleven counts of

ion of 21 U.S.

possession of firearms in vio

lation of 18 U.S.

§924(c) (J.A.23-30).

On January 22,2013, a Superc

eding indictment was issued

petitioner with Three additi

which charged

onal Crimes; Conspiracy to dis

tribute Marijuana

and Heroin (Count-one); Mainta

ining a.. Dwelling to distribut

e controlled

substances (Count-two); and

Dis

tribution of Controlled substa

nces within

1000 feet of a School (Count

-three). The other Twenty-tw

o (22) charges

remained the same.

Trial commenced on July 9,2013

Petitioner (Okafor) was convic

ted

and concluded on July 11,201

3 (J.A.16).

' on all Counts and petitione

r was sentenced

on April 22.2014 (JA.20). Pet

itioner entered a Timely not

ice of appeal on

April 20,2014.

On March 2.,2015,..the..Fourth

Conviction and a Rehearing and

C.ircuit.Court Of Appeals affirm

ed the

Rehearing en banc was denied

on april 27,2015.

the United States supreme Cou

rt denied Certiorari on Octobe

r 5,2015.

Petitioner filed a 28 U.S.C.

2255 Motion on June 2, 2016

and was denied on

December 18,2017. A Certifica

te Of Appealability was subseq

uently filed and

was denied on April 3,2018.

A rehearing and Rehearing en

banc was denied

on June 5,2018. Thus this Wri

t of Certiorari.

2.

REASONS FOR GRANTING CERTIORARI

i

THIS PETITION PRESENTS TO THIS COURT A MORE FUNDAMENTAL

QUESTION FOR REVIEW: MAY A CONVICTION THAT IS ADMITTEDLY

A VIOLATION OF THE CONCURRENT SENTENCE DOCTRINE BE ALLOWED

TO STAND IN LIGHT OF RAY V.UNITED STATES, 481 U.S.736(1987)?

Petitioner contends that his. Sentences were not Concurrent for. the. purposes .of the

Concurrent Sentence, where pursuant to 18 U.S.C.3103, District Court entered a Separate

Special Assessment fee for each of petitioner's Twenty-Five Counts. Specifically, petitioner

was.convicted on a Twenty-five Counts; Conspiracy Count-One; 21 U.S.C.856, Count-two;

21 U.S.C.860, Count-three; Counts 4,6,8,10,12,14,16,18,20,22,24, all Eleven Counts violation

of 21 U.S.C.841(a) possession and distribution of a Controlled Substances and Eleven Counts

of 18 U.S.C.924(c)(5,V,9,11,13,15,17,19,21,23,25) possession of Firearms predicated upon

the 21 U.S.C.841(a) Convictions. District Courtgrouped petitioners Convictions

Sentences to run concurrent, petitioner was also subjected to a Monetary Assessment Fee

Pursuant to 18 U.S.C.3103 as well as Prison term for each of the Twenty-Five Counts....

3157 Months.

A Monetary Assessment. fee of $100was imposedon each-- of the-Twenty-five

Counts ($100X25)=$2500.00, so that the petitioner's liability to pay the

r

total Mone:taryAssessment:ieidependent on the validity of the Conviction

on each Count. Petitioner:, contends that in ligh.tof the. supreme 'Court decision..

in Ray V. United States, 481 U.S.736 (1987), that he. is not actually serving a

Concurrent Sentence, but in fact, in addition to the concurrent term of

Incarceration, he also received a Cumulative Monetary assessment Pursuant to

18 U.S.C.3103. This was advanced in both petitioner's 28 U.S.C.2255 and

2253,at both the District Court and the Appelate Court respectively and was

denied Relief. Again was sent to the Fouth Circuit for . a Rehearing and a

Rehearing en banc for further review and. again was denied relief.

In Ray supra, Petitioner was convicted on Three Counts, One-Count of a

Conspiracy, and Two-Counts of possession with intent to distribute. The

District Court imposed a $50.00 assessment fee on each of the Three Counts

3

totaling $150.00. He was Sentenced to concurrent 7-year terms on all three

counts, and to a concurrent special parole terms of five years on the two

possession counts. the Court of Appeals affirmed petitioner's conspiracy

convictions and one of his possession convictions. The Supreme Court

concluded that since the petitioner's ability to pay the total depended on

the validity of each of the three convictions, the sentences were not concurrent and the

Court of Appeals improperly applied the Concurrent sentence in declining to review the

petitioner's Second convictions for possession and it VACATED the Sentence and remanded to

the Court Of Appeals as directed. Like Ray supra, Petitioner's convictions and sentences

were not Concurrent and the Concurrent Sentence Doctrine was improperly applied and

violated Due Process. Petitioner was Sentenced on

concurrent terms of78 Months and

a Concurrent Special Parole terms of Five years on the Eleven Possession Counts

Furthermore, the Eleven (11)counts of the 18 U.S.C.924(c) that was predicated on

the Eleven possession convictions were not Vacated, but rather,both special assessment

fee and prison term were imposed on those counts in violation of Double Jeopardy and

the Justice Dept.Policy to refrain from pursuing Multiple §924(c) in this Circumstances.

The Relevant Policy provides that each §924(c) in an Indictment should be based on a

Separate Predicate offense. See Brief Of the United States in Opposition for Writ of

Certiorari; Carter V. United States,537 u.s.1187(2002). It further stated that the 'Irnpos,ition

Of Consecutive Sentences under Subsection §924(c) in a concurrent sentence would impinge

upon the fundamental 'DOUBLE JEOPARDY' principles. " The rule against Multiplicity is

rooted in the Double Jeopardy Clause of the Fifth Amendment, which prohibits successive

prosecution for the same. offense in a single criminal trial. See, Petite v. United States,

361 U.S.529, 4L.Ed2d490,80 S..ct.. 450 (1960)(sarne).

Also both the Justice Department Policy and every Court of Appeals that have addressed

the issue have reached the same consensus that only One §924(c) violation may be charged in

relation to one Predicated crime, and where as in this Instant offense, the Possession

Counts that the §924(c)'s were predicated upon were all Run Concurrent, the Eleven 924(c)

all but One must be VACATED. Allowing those to run Consecutively would violate the "Double

Jeopardy" principles. Every Court of Appeals that have addressed this issue

4

has reached the same conclusion, Only One 18U.S.C.924(c) can be charged to one predicate

offense. See; United States v.PkArthur, 850F.3d925;2017U.S.App.LEXIS. 3311 (8thCCir.2017);

United States v.Caças, 29F.3d 1187 (7th Cir 1994); United States r. Sims , 975F.2d 1225 (6th Cir.

1992); UnIted States v.Moore, 958 _!E.2d 310(10th% Cir.1992); United States v.Hamilton, 953 F.2d

1344(11th Cir.1992); United States v. Lindsay, 985 F.2d 666 (2nd.Cir.1993);

United states v.Fontanilla, 849 F.2d 1257 (9th Cir. 1988); United States v.Privette, 947 F.2d

1259 (5th Cir. 1991); United States v.Anderson, 313 U.S.App.D.C.335; 59F. 3d 1323 (D.C.Cir..1995);

United States v.Guess,482 Fed.Appx.832;2012 U.S.App.UXES11686 (4th Cir.2012). Thus all

of Petitioner's Concurrent Sentences and the 18 U.S.C.924(c) predicated upon .those are

impermissible Punishments, it violated the Double Jeopardy Principles and must be Vacated.

See Ball v.United States, 470U.S.856 (1985)(Even where the District Court imposed Concurrent

Sentences for Multiplicituos convictions, such that the defendant suffered no additional

period of punishnEnt for the second or other Convictions, one or all of the concurrent

convictions must be Vacatedbecause the fact of a separate conviction can carry with it a

collateral Cosequences Id at 864-65); Rutledge v.United States, 517 U.S.292 (1996)(As long

as 18 U.S.C.3103 stands a Second Conviction will amount to a second Punishment Id at 517

U.S.at 307 (1996)).

For the Foregoing reasons, and because the Fourth Circuit decided an important Question

Of.-Federal Law in a way that is in Conflict with the Applicable decisions of this Court

and therefore violated binding Supreme Court precedent, It is respectfully Submitted that

a Writ Of Certiorari should be Granted to resolve this issue of exceptional importance.

a

5

U

WHETHER THE 6th AMENDMENT IS IMPLICATED WHERE THE

1iSTRICT COURT ERRONEOUS SEN TENCING DETERMINATION

UNLAWFULLY INCREASED DEFENDANTS SENTENCING IN LIGHT

OF THIS COURT'S DECISION IN GLOVER V.UNITED STATES,

531 U.S. 198 (2001 2_

Petitioner contends that District Court's erroneous Sentencing

Determination unlawfully increased his prison sentence, when it failed to

Group his Sentence together under Section:3D1.2 of the Guidelines. And the

Fourth Circuit Court Of Appeals decision to affirm that decision conflicts

with the applicable decisions of this Court. Specifically, in Glover v.

United States, 531 U.S.198, 148 L.Ed 2d 604, 121 S.ct 696 (2001).

Section 3D1.2, provides that Counts involving substantially the same harm

within the meaning of:

.S.arne:•:act of.Trans act ion/Vic tim;

When Counts involve same victim, and two or more acts/transactions

connected by common Criminal Objective;

When One of the counts embodies conduct that is treated as a Specific

Characteristic in or other adjustments to the Guidelines applicable to

another of the Counts.

When Offense Level is determined Largely on the Basis of the total amount

of Harm or Loss.

Specifically, Petitioner was convicted in Eleven (ii) counts of 21 U.S.C.

§841 (a) Violations possession with intent to Distribute and was subsequently

sentenced on each of the Counts without Grouping the Counts as required under

U.S.S.G.3D1.2 and ultimately increased the Petitioner's Prison sentence.

Petitioner challenged this in his 28 U.S.C.2255 and 2253 (COA) before both

the District Court and the Fourth Circuit Court's Of Appeals respectively, but

was denied Certificate Of Appealability..

In the Government Motion in Support of the District Court, denial of

Petitioner's Certificate of Appealabilty; It stated that all of the Petitioner's

6

drug counts were grouped as part of Count-One, the Conspiracy conviction.

(DE#112@12). The government argument is without Merit, and, District Court

reliance on that argument in reaching its decision to deny: Certificate-- . of

Appealability is equally erroneous. Import.antly, the Fourth Circuit Court of

Appeals decision to affirm the.DistitCourt's decision and dEny Certificate

of appealabilty is equally erroneous, It conflicts with the applicable

decisions of this court. Specifically, the Court's decisons in Clover v.

United States, 531 U.S. 198 (2001).

Moreover, the District Court imposed a $100.00 fine for each of the Drug

counts of Conviction under 21 U.S.C.846 and 841(a), Eleven(11)counts as well

as the Eleven(11) ckunts of the. §924(c) that was predicated on those Counts.

In fact, in addition to the Concurrent term of Incarceration, Petitioner was

also subjected to a Cummulative Monetary assessment fee pursuant to 18.U.S.C.

§3103 contrary to this Courts holding in Ray v. United States, 481 U.S.736

(1987). Petitioner's Monetary Assessment was $100x25($2500.00). Consequently,

District Court cannot Safely argue that petitioner's §841(a) Counts were

Grouped as part of the COUNT-ONE CONSPIRACY COUNT. Such an argument is

respectfully, wrong.

Also, petitioner was subjected to a sentencing enhancement of all the

§924(c) that was predicated upon each of the §841(à) violation.. In fact had

this counts been grouped under U.S.S.G.3D1.2 as required, Petitioner's

sentence would have been significantly reduced by 255Years. All the 18 U..S.C.

§924(c):.o.U'i'd:have been eliminated except one. "it is the. number of the

Predicate Offenses, not the number of Guns, that determines whether a separatel

and successive violations of §924(c) haFe occured". United States v Guess,

482 Fed.Appx.832;2012 U.S.App.LEXIS 11686 (4th Cir.2012).

Petitioner cites this Court decision in Glover. In Gloverv.United States,

531 U.S.198 (2001), Glover was convicted of Tax evasion, Racketeering and

Money Laundering. District Court determined that the Money Laundering Counts

7

would not be grouped with the other Counts, pursuant to U.S.S.G.3D1.2, which

allowed for the grouping Of Counts involving substantially the same harm. As

a result, the defendants offense level was increased.for purposes of guidelines

and so was his Prison sentence.. .84 Months, •Six Months higher than expected.

He subsequently, filed a motion under.. §2255 in the District Court to correct

the sentence. The District court expressing the view that &-21 Months increase

in sentence was not significant to amount to Prejudice. The Sevnth(7th)Circuit

Concurred with the district Court and affirmed his Conviction and Sentence.

The Supreme Court reversed the Court Of Appeals judgement, in an Opinion

expressing the Views of the Court, It held that "the Trial Court erred in the

Guidelines. Det.ermintion that Unlawfully Increased the Defendants Prison

sentence; It. Stated that any amount of Prison time has Sixth (6th) Amendment

Significance., Glover, 531 U.S.@203-04" In this instance case, District Court

erroneous Sentencing Determination unlawfully increased petitioner's Prison

Sentence and the Fourth .Circuit affirmation of that decision conflicts.with

the applicable decisions of this Court.

Because the Fourth Circuit has decided thisques.tion of .Federal Law in a way

that is in conflict with the applicable decisions of this Court, Lt is

respectfully submitted that.a WritOfCertiorari would be Appropriate to

resolve this issue of Exceptional Importance.

.0

8

.

.

4

•

III.

WHETHER IN LIGHT OF THE REVERED STATUS OF THE BEYONDA-REASONABLE DOUBT STANDARD, CAN A CONVICTION WHERE

THE ELEMENT OF THE OFFENSE MAY NOT HAVE BEEN FOUND

AGAINST THE DEFENDANT BY SUCH A STANDARD BE OVERLOOKED

INLIGHT OF In re.WINSHIP -397 U.S 358 (1970)?

Petitioner was convicted in a superceding indictment, Count-One Conspiracy

in violation of 21 U.S.C.846. For distribution of Marijuana and Heroin devoid

of the elements of the Offense. Petitioner appealed the conviction and Sentenc

under § 2255 and was denied a Certificate Of Appealabilty by the District Court

and was affirmed in a §2253(COA) by the Fourth Circuit Court Of Appeals and a

Rehearing and Rehearing en banc.was also denied. Thus this Writ Of Certiorari.

This Instant case, Petitioner was charged with conspiring to "Possess with

intent to distribute a controlled substance." therefore the government is

required to prove beyond.a reasonable doubt that petitioner entered into an

agreement with another person, not just to possess a controlled substance, but

to possess "with intent to distribute." This agreement isrefered to here as

a "DRUG DISTRIBUTION AGREEMENT." for a Conspiracy to exist, the government

must satisfy all three elements of Conspiracy. .1) An agreement to distribute

existed between Two or. More people; A government Agent and or Confidential

informant not included; 2). The defendant knew of •the Conspiracy, and..3).

The defendant knowingly and Voluntarily became part of the Conspiracy.

Petitioner states that at Trial, the government introduced Mr.Jerome as

only other person involved in this conspiracy. The problem here, is Mr.Jerome

is a Government Informant. For this reason, to achieve a conviction for a

Conspiracy, the government.must. first satisfy the. FIRST element; An Agreement

between Two-people. The element of the Offense is not satisfied unless one

conspires with at least one true Co-conpirator, because conspiracy is a

Crime in part because of the dangers of concerted action, this risk do not

exist when the only Co-conspirator is a government Informant. See, Sears v.

United States, 343 F.2d 139 (5th Cir.1965). Also one cannot conspire by

himself.

9

More importantly, at Trial, Jerome (CI) testified as follows (J.A.243-45)

Q: When you had this transaction with Mr.Okafor nobody else was

present at the time?

A: NO IT WAS ONLY ME AND HIM AT THE BAR

Q: Infact, during the meeting, he talked to you about all the Heroin,,

Kilo of Heroin, do you remember that?

A: Yes

Q: You never saw a Kilo of Heroin, Did you?

A: I never seen it.

Q: So this people that he was talking about, you don't believe they

existed?

A: I DON'T THINK ANYBODY WAS INVOLVED.

Next was the testimony of Detective Guseman. Guseman was the lead agent

of

the Investigation, the focus of his testimony was that petitioner was

involved

in a conspiracy because of his statement to the Confidential Informant

Jerome

that he had seen a thousand Pounds of Marijuana and that was a clear indica

tion

of a very large conspiracy (J.A.109), despite the confidential Informant,

Mr.

Jerome to the Contrary.. .1 DON'T THINK ANYBODY WAS INVOLVED(J.A.245).

Next was Detective Adam Dunn"s Direct. testimony (J.A.291-93). Dunn was

also part of the Investigation, and below was his testimony:

Q: Before interviewing or speaking to the.défendant, did you advise

him of his Miranda Rights?

A: I did

Q: Did he orally waived his Rights?

A: He orally waived those rights,yes

.

Q: And he agreed to speak to you about his knowledge of drug activity?

A: Mr.Okafor (petitioner) told me he had a Mexican supplier that was

supplying him with Marijuana.

Q: Okay, did he provide any type of other information regarding

supplIers,as far as names, phone number or anything?

A: He didn't provide any name, however, he did provide a phone number

and he attempted to make a call and he spoke to someone. HOWEVER. I

WAS UNABLE TO TELL IF IT WAS A CONVERSATION ABOUT DRUGS.

Q: Okay, did the defendant also make any statements regarding Heroin?

A: He did, while we were talking to Mr.Okafor, he did receive a phone

call on one of his Cell-Phones.IT WASN'T WHERE I COULD HEAR THE

PARTY'S CONVERSATION.

.

10

14

The fact is that at no time did I speak to Detective Dunn. See his

testimony at (J.A.290&308),I HAD WORDS WITH PETITIONER AND HE INDICATED TO

ME THAT HE WANTED TO COOPERATE (J.A.290). HE FURTHER STATED, "I WAS UNDER

• THE IMPRESSION THAT HE WAS GOING TO COOPERATE. WE FELT LIKE HE WAS GOING

TO TALK TO HIS ATTORNEY AND HE WOULD COOPERATE. THERE WAS A LAPSE IN TIME

WHERE HE DIDN ' T COOPERATE(J.A.308).

Next was the crucial testimony of the Government Counsel. AUSA, Ethan

Ontjes (J.A.469-71): The Court asked the Government for evidence to support

its argument as to the existence at Conspiracy. The Government in response

CONCEDED that there was no EVIDENCE TO CORROBORATE nor WITNESSES TO SHOW.

that petitioner was involved in a conspiracy to distribute (100) Grams of

Heroin and (100) Kilograms of Marijuana or more in violation of 21 U.S.C.

§846. Thereafter, the following exchange between the COURT and the

GOVERNMENT ATTORNEY:

COURT: Wait, I cannot do this, you are just asking me.. .you are arguing

conclusively. You and I know. that when I get an Objection on Quantity, other

than what the Jury found, any Quantity more than the Verdict numbers, Count

one Conspiracy that we are going to have, evidence, that I am not going to

Seat here and recalculate that.

AUSA: I don u t know if we need to present that because the fact that "WE DON'T

HAVE WITNESSES." So the question the Court mustdecide today is by the

preponderance of the, evidence has the Government. .."IS THERE COROBORATION"

of these statements. "I DON'T HAVE WITNESSES" that I can put before this

Court to say that I dealt with the defendant during this time period, this

a

much amount of Drugs.

COURT: You have been talking for Ten Minutes, You have not given me one

Specific yet, you have just rambled around and said the Probation Officer

was probably right by a preponderance of the evidence etcetera, et cetera.

Petitioner contends that in light of the evidence adduced at Trial

starting with the first Government witness, Mr.Jerome the (CI):

IT WAS ONLY ME AND HIM AT ' THE BAR: I KNOW HE WAS LYING TO ME, I NEVER SEEN

ONE (1) KILO OF HEROIN: I DON'

T THINK. ANYBODY WAS INVOLVED. (J.A.24345).

1•

1

•

•

DETECTIVE GUSEMAN: Petitioner statement to Jerome (CI) that he had seen

One (1000) thousand Pounds of Marijuana was not only a sign of conspiracy but

an indication of a Large conspiracy (J.A.109).

DETECTIVE DUNN: Petitioner did not provide any name.. However, he provided a

phone number and he attempted to make a call and he spoke to someone, however,

"I WAS UNABLE TO TELL IF IT WAS A CONVERSATION ABOUT DRUGS." AND WHILE WE WERE

TALKING TO PETTITIONER, HE DID RECEIVE A PHONE CALL ON ONE OF HIS CELL PHONES.

"IT WAS. NOT WHERE I.- COULD HEAR. THE CONVERSATION-" .(J.A.291-292).

AUSA: "I DONT HAVE WITNESSES" THAT I CAN PUT BEFORE THIS COURT TO SAY THAT I

DEALT WITH PETITIONER THIS PERIOD, "THIS AMOUNT OF DRUGS." "I DON"T

HAVE WITNESSES TO COROBORATE" THE EXISTENCE OF CONSPIRACY.(J.A..469_71).

In light of the above, clearly, the records admits only to speculation that

Petitioner had enteed into an agreement with any bona.iide Conspirator to

distribute Marijuana and Heroin, the only possible conspirators that can be

imagined; the Confidential Informant, Mr.Jerome and the unidentified supplier

of Marijuana and Heroin.However, Mr. Jerome who was a Government Informant,

could .not be . a bona fide conspirator, because, "there can be no Indictable

Conspiracy with a Government Informant whosecretly intends to frustrate the

Conspiracy." Sears v United States,343 F.2d 139 (5th Cir.1965). As to the

unidentified supplier, the Government introduced no evidence showing any

Agreement between petitioner and anybody to violate the Law, possess a

controlled substance or possess the substance with the intent to distribute...

"A DRUG DISTRIBUTION AGREEMENT."

"Due process protects the accused against conviction except upon proof

beyond. a reasonable doubt of every element/facts necessary to constitute the

crime with which he is charged." In re.Winship, 397 U.S.358 (1970). 'It follows

that when such a conviction occurs ... It cannot Constitutionally stand.'"

The failure of the Government t:Ô acknowledge that "An agreement with a

Government informant alone is not a conspiracy." This is the Unquestioned Law

in all.--the-Circuit that have addressed this issue. See example United States

v. Arbane,446 F.3d 1223 (11th Cir.2006); United States v.Barboa,777 F.2d 1420

12

1422 n.1(10th Cir.1985); United States v.Mahkirnetas, 991 F.2d 379(7th Cir.1993);

United States v.Escobar-debright, 742 F.2d 1196(9th Cr.1984);

United States v.Paret-Rui.z,567 F.3d1,6 (1st. Cir.2009); United States V.Ca1ton,

442 F.3d802(2nd Cir.2006); United States v. tNunez,889 F.2d 1564 (6th Cir.19.89);

United States v. Moss, 591 F.2d428,434 n.8(8th Cir.1979); Sears v. United States

343 F.2d 139 (5th Cir.1965); United States v. Chase, 372 F.2d 453 (4th Cir.1967).

Accordingly, the government have not proven beyond a reasonable doubt even

in light most favourable to the.prosecution that petitioner conspired with

anybody to possess and distributed any controlled substance and petitioners

conviction is not consistent with the demand of the Due Process. See,

In re.Winship v.Unitéd States, 397 U.S.358(1970).

For the reasons above, it is respectfully submitted that Affirming a

Conviction where the Government has failed to prove the essential element of

the Crime Beyond-A-Reasonable-Doubt, affects the Substantial rights and.

seriously impugns the fairness, integrity and public reputation of the

Judicial proceedings. It is therefore, respectfully submitted that a Writ Of

Certiorari should be granted to resolve this issue of Exceptional importance

that is Fundamental to our Due Process.

-

a

13

BOTH

WHETHER PETITIONER'S CONVICTION AND SENTENCEE OF

RDY

JEOPA

DOUBL

THE

TED

21 U.S.C.841(a) AND 860 VIOLA

IN

ED

ADOPT

RULE"

NCE

EVIDE

CLAUSE IN LIGHT OF THE "SAME

BLOCKBURGER V. UNITED STATES,284 U.S.299(1932)

e of the U.S.Const.

Petitioner's right under the Double Jeopardy Claus

ssion and distribution,

Amend. V were violated when he was convicted of posse

on within 1000 feet of a

under 21I.U.S.C.'841(a) and possession and.' distributi

is a lesser included

School in violation of 21 U.S.C.'860. 21 U.S.C.841

Amendment embodies three

Offense of §860. The Due Process Clause of the Fifth

n after acquittal; it

protections: It protects against second prosecutio

se after - conviction;

protects against second prosecution for the same offen

for the same Offense.

and lastly, it protects against multiple punishment

rdyi Clause is to ensure

Petitioner will focus on the later, the Double Jeopa

prescribed by Congress in

that Sentencing Courts do not exceed " the limits

and prescribe Punishment."

which lies the Substantive Power to define Crimes

to "whether each

The general test for Compliance with the clause looks

does not."

provision requires proof of a fact which the other

test adopted in the

The Federal standard has been the "SAME EVIDENCE"

or

States, 284 U.S. 299 (1932) where the same act

Blockburger v.United

Statutory provisions.,

transaction constitutes a violation of Two distinct

are two Offenses or only

the test to be applied to determine whether there

additional fact which the

one, is whether each provision requires proof of an

tedly been reaffirmed

other does not. The "Blockburger Test" has been repea

ruction. Under the

by the Supreme Court. It is a Rule of Statutory Const

nse of 21 U.S.C.860.

same evidence test, 841(a) is a lesser includedOffe

Multi-Count Indictments

In the Instant case, petitioner was convicted in a

n 1000 feet of a school.

of §841(a) and §860, possEssion. and-possession withi

22,24 for Heroin, all

Counts 4,6,8,10, for Marijuana and 12,14,16,18,20,

must:be impossible to

lesser included offense of 21 U.S.C.860. Meaning it,

21 U.•S.C.841. Petitioner

violate the charged offense without a violation of

and6O for the same acts.

was convicted and Sentenced under both Statue §841

14

'

tion of a

Thus, the prosecutor who has established a 21 U.S.C.860 Viola

established

controlled substance within 1000fee.t of school, has necessarily

se of §860.

a 21 U.S.C.841(a) violation, because is a lesser included offen

ssed the issues

Petitioner contends that Supreme Court cases that have a-ddre

See Brown v.

of lesser included offenses have reached .the same conclusion.

e of Auto theft);

Ohio, 432 U.S.161 (1977) (Joyriding is a lesser included offens

is included in

Jeffers v.United States, 423 U.S.137(1977)(Where one offense

or Concurrent

another., It cannot support a Separate conviction or sentence

m the District

sentence). Consequently, the Fourth Circuit decision to affir

question of

Court's conviction and Sentence on those Counts is an important

of this Court.

Federal Law that i in conflict with the applicable decisions

ed the

Every Court of Appeals that have addressed the issue have reach

se of §860. See

same conclusion. 21 U.S.C.'841(a) is a lesser included offen

The Court in

United States v.White, 2001 U.S.App.LEXIS 28426 (2nd Cir.2001).

tions of

White held that petitioner was convicted in a Multi-count viola

within 1000 ft

§841(a) distribution of drugs and §860 distribution of drugs

ctions were a

of a School. The Government conceded that Whites 841(a) convi

rence between

Lesserincluded Offense of his §860 Convictions. The only diffe

that §860

his counts of §841(a) convictions and the860 conviction is

dant

contains an additional element that a statement that the defen

ict Court

"Committed the Alleged Acts" within 1000 feet of a School. Distr

se it is a

dismissed all the 21U.S.C,841(a) counts of Conviction, becau

White cannot

lesser included Offense of §860 in its ruling, it stated that

e has not

be convicted or sentenced on both counts, because the Legislatur

Authorized Cummulative Punishments for both offenses. See also

other :Court

00); ..'..

of Appeals: United States v.Kakatin, 214 F.3d 1049 (9th Cir.20

United States v.Jories,489F.3d 243 (6thCir.2007); United States

v.Scott, 987

F.2d 261 (5thCir.1993); United States v.Carpenter, 422 F.3d 78

(8thCir.2005);

United States v. Fenton, 367 F.3d 14 (1st Cir. 2004); United States

15

v.Jackson,

443 F3d 293 (3rd Cir.2006); United States v.Freyre-Lazaro,3F.3d1496(llthCir.

1993).

In addition, all the 924(c) convictions predicated upon those 841(a)

convictions must also be Vacated, they are. duplicative and violated petitioner'

right under the Double jeopardy Clause of the Fifth Amendment.Double jeopardy

Clause of the Fifth amendment Prohibits. su.cessive. proecutiôns: fr..the same

offense as well as the imposition of cumulative punishments for the same

offense in. a single criminal trial. The multiple convictions of the §924(c)(1),

eleven to be exact in the same trial is Multiplicituos and a cumulative

punishment and must be Vacated. See United States v.Lindsay,985F.2d 666

(2nd Cir.1992)(A defendant cannot be sentenced for Multiple violations based

on both the Greater and lesser included Offense); United States v. Privette,

947 F.2d 1259 (5th Cir.1991)(To ay.bd4 violating Double Jeopardy principles,

each Firearms offense must be sufficiently linked to a Separate drug traficking

offense to prevent two convictions of §924(c) on the same drug offense);

United States

.Cir.. 992(speD.

Importantly, It violated the Justice Dept. Policy. The relevant policy

provides that each §924(c) charge in an indictment should be based on a

separate predicate offense, See, Brief of UnitedStates in opposition for Writ

of Certiorari, Carte41 v.United States, 537 U.S. 1187 (2002)(The imposition of

consecutive sentence under 18U.S.C.924(c) in a concurrent sentence would

impinge upon the fundamental "DOUBLE JEOPARDY!' principles).

0

For the reasons above, because the Fourth Circuit decided an important

Question of federal Law in a way that is in conflict with the applicable

decisions of this Court and other Courts Of Appeal. Specifically, "SAME EVIDENCE

RULE" adopted in Blockburger v. United States, 284U.S.299 (1932) in violàt1n:of

the Double Jeopardy Clause of the Fifth amendment. It is respectfully submitted

that a Writ Of Certiorari would be appropriate to resolve this issue of

Exceptional Importance.

16

•

V.

IS DUE PROCESS VIOLATED WHEN A PROSECUTOR HAS AN

AFFIRMATIVE DUTY TO DISCLOSE ANY EXCULPATORY AND

IMPEACHMENT EVIDENCE KNOWN TO ANY AGENT/OFFICER

INVOLVED IN THE TRIAL, BUT FAILED TO DO SO INLIGHT

OF KYLES V.WHITLEY, 514 U.S.419 (1995)?

Petitioner contends that a Prosecuttor has a duty to learn of any

.

favorable evidence known to others acting on government behalf in the case

including the Police. Kyles v.Whitley,514 U.S.419 (1995). Meaning that it is

the obligation ofeach AUSA to seek all exculpatory and Impeachment

........

Information from all members of the AUSA's Prosecution Team. Members of the

team include Federal, State, and Local Law enforcement officers and other

government officials participating in the investigation and prosecution of

a criminal case against a defendant. Due Process Clause also requires the

Prosecutor to disclose material that could be used to challenge or impeach

the Credibility of the government's case. See Giglio V.United States, 405

U.S. 150 (1972).

In the Instant case, Petitioner was indicted in a Conspiracy to distribute

100(g) of Heroin and 100(Kg) of Marijuana on a Twenty-Five-Counts. At Trial

the Two Government witnesses, Detectives Guseman and Dunn both testified that

petitioner was involved in a conspiracy and based on their tandem proffered

false testimonies, petitioner was convicted. However, petitioner discovered

post trial that the Government. had not disclosed, the Press Release by same

Agents, that was a subject of a Newspaper Article that stated that based

on their Ten(10)Months investigation, that petitioner was -actually the only

person involved and nobody else and furthermore, the Quantity of drugs that

was involved was 1008 Grams Of Marijuana and 14 Grams of Heroin.

Petitioner advanced this argument in his 28 U.S.C.2255 Motion and in

its response in support .of the District Court to deny Petitioner's Motion,

the Government Stated "the Newspaper Article evidence does not bind the

Government when it comes to Trial Proof." petitioner disagreed, because

the Press , Release is

17

certainly an evidence. See Fed.R.Evid. 902(6), the newspaper article is a

self authenticating evidence; it required P0 extrinsic evidence of

authenticity in order to be admitted. Section- listed Newspaper and the;

periodicals as qualifying as evidence. So the issue should not be whether the

government is bound by the information, rather, the failure to disclose an

information that is potential impeachment issue that could have been used to

impeach the testimonies of the government witnesses; Detectives Guseman and

Dunn. Because the government's case "depended almost entirely" on their

testimony. The evidence is relevant to their Credibility and the jury was

entitled to know of it. See Giglio v.United States., 405 U.S.@154-55 (1972).

Because evidenc is material as in this case, when there is a reasonable

probability that the withheld evidence would have at least altered at least

One Jurors assessment of the case, Kyles, 514 U.S. at 434-35(1995).. "The

question is not whether the, defendant could have received a different verdict

with the Undisclosed evidence, but whether in its absence he received a fair

Trial, understood as a trial resulting in a verdict of Confidence." 514 U.S.

at 434(1995).

In fact long before trial, On March 8,2012, Petitioner requested the

disclosure of all records,, documents or physical evidence, expert conclusions

and analysis that has been seized or obtained by the prosecution in connection

with its investigation of this case (J.A.35). the Government responded on

June 21,2013, without any reference or information about the Press Release

detailing the result of their Ten(10)Month investigation that petitioner was

the only ; person involved and the quantity of the controlled substance at issue

was 1008-Grams of Marijuana and 14-Grams of Heroin as opposed to the

Conspiracy to distribute 100-Grams of Heroin and 10.0-Kilograms of Marijuana.

Clearly. whether or not the government was aware of the "Press release"

is irrelevant, because they failed to release such evidence that is both

Exculpatory and Impeachment information that is relevant to Petitioners Guilt

18

or innocence. and because the Officers were also .part of the Prosecution team, their action

is imputed to the Prosecutor. See Barbie v. Warden,331 F.2d 842 (4th Cir.1964). If the

Police as here, the detectives of the Johnston County Sherriff Dept., North Carolina

(detectives Guseman and Dunn) allows the AUSA to produce evidence pointing to guilt without

informing him of the evidence in their possession which contradicts his inference, State

Officers are practicing Deception, not only to the AUSA, but the Court, the Defendant and

his Counsel. The deception is no less if they, rather than the AUSA is Guilty of non

disclosure

Petitioner contends that had the Information been disclosed, the evidence would not

only have undermined their credibility, but would have undermined the Prosecutors theory

that petitioner was involved in any Conspiracy. The Supreme - Court case Law is repleted

with cases addressing non-disclosure of exculpatory and impeachment evidence. See. Strickler

v.Green,527U.S.263 (1990). When a State holds from a Criminal defendant evidence that is

Material to his Guilt or Punishment, It violates his right to Due Process; Cone V.Bell, 129

S.ct.1769 (2009)(Same); Giglio V. United States, 405 U.S.150 (1972)(same). Also every

Court OfAppeals that have addressed this Issue have reached the same Conclusion.

United States v.vile-Colon,536F.3d 1(1st Cir.2008)(DEA reports favorable to an accused

because they contradicted the testimony of Government witness); McMillian V.Johnson, 88 F.

3d 1554 (11th Cir.1996)(Brady violation when Police concealed evidence favorable to a

defendant from the Prosecutor); Mitchell V.Gibson, 262 F.3d 1036 (10th Cir.2001)(Witholding

exculpatory evidence that could have affected Sentence); United States V.Bodkins, 274 F.

Appx' 294 (4th Cir. 2008) ( The Government witness's prior statements to police

favorable to an accussed because inconsistenLwith Trial testimony);

In re Sealed case, No: 99-3096, 185 F.3d 887 (D.C.Cir.1999)(Brady violation

when the U.S. Attorney' Office failed fo conduct a complete search of

Federal and Local Law Enforcement Agencies for Brady material).

19

For the reasons above, the Fourth Circuit decision to deny Certificate of

Appealabilty and Rehearing and Rehearing en banc conflicts with theapplicable

decisions of this Court and other Court's of Appeal that have addressed this

issue of disclosure. Specifically, Kyles v.Whitley, 514 U.S.419 (.1995).it is

therefore respectfully submitted that a Writ of Certiorari should be Granted

to resolve this issue of exceptional importance.

CONCLUSION

Wherefore, for the foregoing reasons, petitioner requests this Court

Grant this Petitién for Writ Of Certiorari and reverse the Fourth Circuit

Court Of Appeals, because the Fourth Circuit has decided important Questions

Of Federal Law that is in Conflict with this Court and other Court's Of

Appeal.

Respectfully submitted this_24day of June,2018

/ s/

-J

t4I4X A.

UKU'UK,1V-1NU:j7bI10P HAZELTON, P.O.BOXV2000

RUCETON MILLS, W.VA, 26525

a

20