Petition for Writ of Certiorari — Omar Qazi, Petitioner v. United States

Supreme Court briefJun 5, 2018

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No.

Re: District Court No. 2:15-cr-00014-APG-VCF

CANo. 17-10478

IN THE

SUPREME COURT OF THE UNITED STATES

Omar Qazi

Petitioner.

UNITED STATES OF AMERICA

Respondent.

On Petition for Certiorari

From the United States Court of Appeals

For the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Omar Qazi

N.S.D.C.

2190 E. Mesquite Ave.

Pahrump, Nevada

Proper Person

TABLE OF CONTENTS

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

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

QUESTIONS PRESENTED FOR REVIEW............................................................ 1

JURISDICTIONAL STATEMENT.........................................................................2

CONSTITUTIONAL PROVISIONS INVOLVED...............................................3

STATEMENT OF THE CASE...............................................................................4

REASONS FOR GRANTING THE PETITION.....................................................7

A. THE PANEL DECISION CONFLICTS WITH ESTABLISHED DECISIONS OF

THE UNITED STATES SUPREME COURT, AND OF THE NINTH CIRCUIT

COURT OF APPEALS................................................................................................6

THE EXCESSIVE PROLONGED DETENTION HAS BECOME PUNITIVE

IN VIOLATION OF THE DUE PROCESS CLAUSE................................................7

THE "COMPREHENSIVE CRIME CONTROL ACT OF 1984" PASSED AS

A MERE 'JOINT RESOLUTION,' WAS NEVER CONSTITUTIONALLY

ENACTED AS A SUBSTANTIVE ACT OF CONGRESS TO AUTHORIZE THE

PERMANENT REPEALMENT OF THE "BAIL REFORM ACT OF 1966," OR

TO AUTHORIZE SENTENCING PURSUANT TO THE "SENTENCING

REFORM ACT OF 1984 ............................................................................................ 11

THIS TEMPORARY RESOLUTION HAD CEASED FROM BEING

ENFORCEABLE UPON ITS EXPIRATION............................................................18

B. THE NINTH CIRCUIT VEERED OFF FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEEDINGS .................................................

THE DISTRICT COURT'S CLEARLY ERRONEOUS FACTUAL FINDING

ON RISK OF NON-APPEARANCE BASED ON FAILURES TO APPEAR..........20

PETITIONER HAS TIME SERVED UNDER THE SENTENCING

GUIDELINES, AND CONTINUED DETENTION WOULD VIOLATE

PETITIONER'S RIGHT UNDER THE DUE PROCESS CLAUSE.........................20

UNDER THE FIFTH, SIXTH AND EIGHTH AMENDMENTS TO THE

CONSTITUTION AN ACCUSED SHOULD NOT BE PUNISHED BEFORE

CONVICTION AND JUDGMENT, AND PLACING PRETRIAL DETAINEES IN

FACILITIES DESIGNED FOR, AND OCCUPIED BY, CONVICTED PRISONERS

CARRIES A PUNITIVE ELEMENT.........................................................................21

THE SPEEDY TRIAL ACT REQUIRES PETITIONER TO BE RELEASED

FROM PRE-TRIAL DETENTION............................................................................24

THE DISTRICT COURT'S CLEARLY ERRONEOUS FACTUAL FINDING

THAT PETITIONER IS VIOLENT DUE TO COURTROOM BEHAVIOUR AT

THE MARCH 24, 2017 HEARING .......................... .................. ......... ......................24

THE MAGISTRATE DETERMINED THAT THE NINTH CIRCUIT'S RULING

IN UNITED STATES V. TWINE WAS MOOT WITHOUT ANY LAWFUL

CITATION OR SUPPORTING AUTHORITY ......................................................... 26

PRETRIAL DETENTION CAN NOT BE BASED SOLELY ON A FINDING OF

DANGEROUSNESS, AND THAT THE FINDING OF DANGEROUSNESS MUST

BE RELATED TO THE CURRENT CASE...............................................................27

THE BURDEN WAS ON THE GOVERNMENT TO PROVIDE CLEAR AND

CONVINCING EVIDENCE AT THE DETENTION HEARING.............................28

•7

9. PETITIONER WAS FORCED TO SURRENDER A CONSTITUTIONAL RIGHT

IN ORDER TO ASSERT ANOTHER........................................................................29

VI. CONCLUSION....................................................................................................30

TABLE OF CONTENTS TO APPENDIX A.............................................................32

TABLE OF AUTHORITIES

Cases

AFGEv. Pierce, 697 F.2d 303 (D.C. Cir. 1982).........................................................16

Ad. Fish Spotters Assn v. Evans, 321 F.3d 220 (1st Cir. 2003)..................................18

Bell v. Wolfish, 441 U.S. 520 (1979)...........................................................................22

Bldg. & Constr Trades Dept. v. Martin, 961 F.2d 269 (D.C. Cir. 1992)....................18

Buckley v. Valeo, 424 U.S. 1(1976)...........................................................................17

Clinton v. City ofNew York, 524 US 417,439 (1998)............................................5, 13

Exeter Bancorporation v. KSG, Inc., 58 F.3d 1306 (8th Cir. 1995).....................25,29

Exparte Watkins, 7 Pet 568, 573-574, 8 L Ed 786 (1833).........................................23

FH.E. Oil Co. v. Commissioner, 150 F.2d 857 (5th Cir. 1945)..................................16

Gerstein v. Pugh, 420 U.S. 103 (1975).......................................................................21

Haines v. Kerner, 404 U.S. 519 (1972)........................................................................6

Hamdi v. Rumsfeld, 542 U.S. 507 (2004)...................................................................10

Ingraham v. Wright, 430 U.S. 651 (1977)..................................................................22

In re Murchison, 349 U.S. 133 (1955)........................................................................25

INS v. Chadha, 462 U.S. 919 (1983)................................................................4, 13, 17

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)................................................22

Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en bane)...............................................4

Minis v. United States, 40 U.S.(15 Pet.) 423 (1841).............................................18-19

Morales Feliciano v. Hernandez Colon, 697 F. Supp. 37 (D.P.R. 1988)....................22

NLRB v Pittsburgh S.S. Co., 340 U.S. 498 (1951).......................................................4

Pembroke v. Wood County, 981 F.2d 225 (5th Cir. 1993)...........................................23

Robbins v. Doe, 994 F. Supp. 214 (S.D.N.Y. 1998)

.23

Seattle Audobon Soc'y v. Evans, 952 F.2d 297 (9th Cir. 1991)............................15, 18

Simmons v. United States, 390 U.S. 377 (1968)......................................................

Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978)..........................................................14

United States v. Accetturo, 783 F.2d 382 (3d Cir. 1986)........................................8, 24

United States v. Ailemen, 165 F.R.D. 571 (N.D. Cal. 1996)...................................9, 11

United States v. Byrd, 969 F.2d 106 (5th Cir. 1992)...................................................27

United States v. Gallo, 653 F. Supp. 320 (1986)....................................................9,24

United States v. Gelfuso, 838 F.2d 358 (9th Cir. 1987)........................................7, 8, 9

United States v. Gonzales-Claudio, 806 F.2d 334 (2d Cir. 1986)................................8

United States v. Hare, 873 F.2d 796 (5th Cir. 1989)....................................................9

United States v. LoFranco, 620 F. Supp. 1324 (S.D.N.Y. 1985)................................21

United States v.Montoya, 486 F. Supp. 2d 996 (D. Ariz. 2007)................................28

United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985)...........................................9

United States v. Patriarca, 948 F.2d 789 (1st Cir. 1991)............................................28

United States v. Ploof, 851 F.2d 7 (1st Cir. 1988)......................................................27

United States v. Fortes, 786 F.2d 758 (7th Cir. 1986)..................................................8

United States v. Powell, 761 F.2d 1227 (8th Cir. 1985)..............................................17

United States v. Qazi, 713 Fed. Appx. 691 (2018).......................................................6

United States v. Salerno, 481 U.S. 739 (1987).............................................7, 8,24,28

United States v. Say, 233 F. Supp. 2d 221 (D. Mass. 2002).......................................27

United States v. Scott, 450 F.3d 863 (9th Cir. 2006)...............................................4, 28

United States v. Shareef, 907 F. Supp. 1481 (D. Kan. 1995)......................................21

United States v. Theron, 782 F.2d 1510 (10th Cir. 1986).............................................8

United States v. Twine, 344 F.3d 987 (9th Cir. 2003).................................................26

Williams v. Pennsylvania, 136 S. Ct. 1899 (2016).....................................................25

Wong Wing v. United States, 163 U.S. 228 (1896).....................................................22

Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).....................................................25

Woody. Stratos Prod. Dev., LLC, 482 F.3d 1118 (9th Cir. 2007) .................... ...... 25,29

Constitutional Provisions

Art. I, §7,cl.2 ...........................................................................................................13

Art. I,7,cl.3 ...........................................................................................................13

EighthAmendment ................................................................................................. 9, 23

Fifth Amendment Due Process Clause ............................................................. 9, 22, 30

FourthAmendment ................................................................... . ........................... 29, 30

Separation of Powers ............................................................................................ 16, 17

Sixth Amendment ....................................................................................... 9, 22, 29, 30

Statutes

1 U.S.C. § 101............................................................................................................12

18 U.S.C. § 922(g)(1)...................................................................................................2

18 U.S.C. § 924(a)(2)...................................................................................................2

18 U.S.C. § 4001 ................................................................................................... 12, 19

28 U.S.C. § 1254..........................................................................................................3

31 U.S.C. 1301 ..................................................................................................... 18, 19

Acts of Congress

Bail Reform Act of 1966, Pub. L. No. 89-465............................................................12

Non-Detention Act, Pub. L. 92-128

.12, 19

Legislative Bills and Resolutions

HouseBill HR 5865...................................................................................................12

House Joint Resolution 648, Public Law 98-473 ............................................ 11, 12 19

Other Materials

House Rule XXI (94th Cong. 1976)............................................................................15

How Long is Too Long? When Pretrial Detention Violates Due Process, 60 Tenn. L.

Rev. 1 (Fall, 1992)......................................................................................................29

Senate Standing Rule XVl(1975) ............................................................................... 15

T Cooley, General Principles of Constitutional Law 224 (1880)..............................23

The Federalist No. 73 (H. Lodge ed 1888) (A. Hamilton).........................................17

QUESTIONS PRESENTED FOR REVIEW

(1) What is the Supreme Court's view as to the point at which detention in a

particular case might become excessively prolonged, and therefore punitive, in

relation to Congress' regulatory goal?; (2) Does the Due Process limit on the length of

pretrial detention require an assessment by the District Court on a case-by-case

basis?; (3) Could substantive law be enacted constitutionally through an

appropriations measure in a joint resolution?; (4) Does the Non-Detention Act

authorize a person to be detained or imprisoned by a joint resolution?; (5) Does an

appropriations measure lawfully apply after the fiscal year in which it is passed?; (6)

Can expired legislation be enforced in Court?; (7) If the Magistrate judge determined

at the initial arraignment that Petitioner did not have failures to appear in his criminal

history, but continues to rule afterwards that Petitioner has failures to appear without

any evidence provided to the Court by either party, would this be a clear error?; (8)

Would it be a violation of Due Process to continue Petitioner's pre-trial detainment

longer than a prison sentence Petitioner would likely serve if convicted?; (9) Should

the District Court conduct an analysis on Petitioner's sentencing guideleine range?;

(10) Does the placement of pretrial detainees in facilities designed for, and occupied

by, convicted prisoners carry a punitive element?; (11) Does the Speedy Trial Act

require Petitioner's release from pre-trial detention in this case?; (12) Can the judge

serve as both accuser and adjudicator on a matter in the case?; (13) Was Petitioner

entitled to a full evidentiary detention hearing?; (14) Does the Magistrate have the

authority to moot the Ninth Circuit's ruling in Twine without citing the legislation that

allegedly made it moot, and without the issue being raised by either party?; (15) Must

the finding of dangerousness in a detention ruling be related to the Federal case?; (16)

Are the mere statements of counsel sufficient as evidence at a detention hearing or do

those statements create issues of material fact?; (17) Should the District Court permit

Petitioner to surrender one constitutional right in order to assert another?

II.

JURISDICTIONAL STATEMENT

On January 20, 2015, a federal grand jury allegedly returned a Criminal

Indictment in the federal Disrict of Nevada charging the Petitioner with one count of

Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See

Dkt.# 1 (Case No. 2:15-cr-00014-APG-VCF). On February 08, 2015, the accused

was arrested by the State on an un-related charge that was immediately dismissed at

arraignment in the State Court. Petitioner remained in State custody due to the

Federal hold for this case. On February 24, 2015, the accused was transfered to

Federal custody, where the accused currently awaits trial. Petitioner then attempted to

re-open the detention hearing and reconsider the detention order on several occasions.

Significantly the last attempt being Dkts.# 289 and 290 filed on January 23, 2017.

On June 08, 2017, the Magistrate judge filed an Order denying Dkts.# 289 and

290. (Dkt.# 325). A copy of that decision appears at Appendix A. On June 15, 2017,

Petitioner filed a Notice of Appeal to the United States Court ofAppeals for the Ninth

Circuit. On August 15, 2017, the Ninth Circuit (CA No. 17-10262) dismissed the

appeal from the magistrate judge's June 8, 2017 order for lack of jurisdiction."

On August 28, 2017, Petitioner filed a Motion for Revocation of the

Magistrate's Order Dkt.# 325, and for a Full Evidentiary Detention Hearing.

(Dkts.#355 and 356). On November 03, 2017, the District Judge filed an Order

denying Dkts.# 355 and 356. (Dkt.# 386). A copy of that decision appears at..

Appendix A. On November 09, 2017, Petitioner filed a Notice of Appeal to the Ninth

Circuit. On February 12, 2018 the Ninth Circuit (CA No. 17-10478) entered an Order

denying the appeal. A copy of that decision appears at Appendix A. Shortly after, a

timely Petition for Rehearing En Banc was filed, and then quickly denied on March

14, 2018. A copy of that order appears at Appendix A.

The jurisdiction of this Court is invoked under codified statute 28 U.S.C. §

1254(1).

III.

CONSTITUTIONAL PROVISIONS INVOLVED

ARTICLE I, SECTION 7, CLAUSE 2

ARTICLE I, SECTION 7, CLAUSE 3

EIGHTH AMENDMENT

FIFTH AMENDMENT

SEPARATION OF POWERS

SIXTH AMENDMENT

FEW

STATEMENT OF THE CASE

Petitioner has been indefinitely deprived of the right to be presumed innocent

till proven guilty, with the current detention lasting a shocking 40 months

(approximately 1,250 days), and counting, at time of this writing. This Supreme

Court should adhere to the fundamental principle of being presuthed innocent,

because an individual is "constitutionally presumed to be innocent pending trial, and

innocence can only raise an inference of innocence, not of guilt." United States v.

Scott, 450 F.3d 863, 874 (9th Cir. 2006). This Honorable Court should grant certiorari

or it would endorse a 'fundamental miscarriage of justice' by requiring that an

individual who is actually innocent remain imprisoned. See e.g., Lee v. Lampert, 653

F.3d 929, 934 (9th Cir. 2011) (en bane).

Moreover, this case involves important principles, the settlement of which are

important to the general public at large. See NLRB v Pittsburgh S.S. Co., 340 U.S.

498, 502 (1951). The issues raised Petition, and ultimately determined by this Court

will affect several Americans across the country. Petitioner had started a recent online

public petition on Change.org, asking for the public's support, and there is over 400

signatures from people on that website, as of this writing, seeking for the high Court's

decision on this matter.

Petitioner brings this Writ of Certiorari to this Supreme Court because the

judicial branch is fundamentally the critical backstop to defend rights of individuals

against the excesses of political branches, See INS v. Chadha, 462 U.S. 919, 941

(1983), and because this petition presents the "profoundly important issue" of the

Constitutionality of an Act of Congress. See Clinton v. City of New York, 524 US 417,

439 (1998). Particularly, the Ninth Circuit has issued a decision in a way that

conflicts with decisions of this Supreme Court, and in conflict with the decisions of

other United States court of appeals, which will be shown herein.

Futhermore, many of the questions presented in this Petition were never

addressed by the magistrate or District judge of the District Court, nor by the Ninth

Circuit Court of Appeals, drifting so far from the accepted and usual course of

judicial proceedings. The Ninth Circuit's ruling disregarded the decisions of other

panels of their Court, failing to act consistently regarding the binding effect of

precedent. Thus, the District Court and the Ninth Circuit stonewalled Petitioner's

legal and factual arguments, and therefore, those issues are now brought to this

Court's attention to prevent any further injustice. Perhaps, many of the undecided

questions of federal law were not addressed by the lower courts because they are

significantly important and are better off to be settled by this Court.

It is important to note that at the last calendar call held on January 3, 2017, the

court ruled on several outstanding motions. Specifically, District Judge Gordon

granted Petitioner's Motion in Limine to exclude other bad acts evidence, and

affirmed the Magistrate's Report and Recommendation, granting in part Petitioner's

Motion to Suppress Statement Due to Insufficient Miranda Warnings. See Minutes of

Proceedings (Dkt.# 281). On January 4, 2017, the respondent notified the Court of its

appeal on these decisions. See Minutes of Proceedings (Dkt.# 284). This appeal has

delayed the trial date of January 9, 2017, and since then there has been no trial date

set. On appeal, the Ninth Circuit reversed and remanded without a sufficient analysis

or explanation on how the District Court could have been wrong. See United States v.

Qazi, 713 Fed.Appx. 691(2018). Petitioner then moved for a Petition for Rehearing

En Banc, which was denied, and thus, Petitioner is now preparing to file a Writ of

Certiorari to this Supreme Court which may extensively delay the trial even further

until that matter is ultimately decided. All the while, however, Petitioner is forced to

wait (possibly another year or two) for an unknown trial date on this very simple,

non-complex case in pre-trial detention.

It is also important to note that on April 15, 2018, Petitioner's attorney in the

Ninth Circuit had filed a Motion to have appellate counsel appointed under the

Criminal Justice Act in order to file this Petition for Certiorari. The Ninth Circuit

never addressed the Motion. Thus, Petitioner now files this Petition In Propria

Persona, without any assistance and filed at the last minute to meet the deadline.

Petitioner respectfully requests this pleading to be construed liberally, as I am not a

professional lawyer, and as the Court is aware that Pro per pleadings are held to a less

stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519,

520 (1972). Petitioner also requests the Court to have patience with the issues

presented because most matters herein were completely stonewalled by the lower

Courts which has created the reason for this rather lengthy Writ, and because it will

truly seem as if you are reading a fictional novel. Lastly, if further briefing or oral

argument is ordered by this Court, Petitioner respectfully requests this Court to

appoint Assistance of Counsel.

REASONS FOR GRANTING THE PETITION

A. THE PANEL DECISION CONFLICTS WITH ESTABLISHED DECISIONS

OF THE UNITED STATES SUPREME COURT, AND OF THE NINTH

CIRCUIT COURT OF APPEALS

1. THE EXCESSIVE PROLONGED DETENTION HAS BECOME PUNITIVE

IN VIOLATION OF THE DUE PROCESS CLAUSE

In United States v. Salerno, 481 U.S. 739 (1987), this Court held: "The fact that

the Bail Reform Act might operate unconstitutionally under some conceivable set of

circumstances is insufficient to render it wholly invalid..." Id. at 745. "We intimate no

view as to the point at which detention in a particular case might become excessively

prolonged, and therefore punitive, in relation to Congress' regulatory goal." Id. at 747

11.4. Thus, the Supreme Court had acknowledged that the Bail Reform Act of 1984

might operate unconstitutionally under some conceivable set of circumstances, and

detention in a particular case might become excessively prolonged, and therefore

punitive, in relation to Congress' regulatory goal.

Likewise, in United States v. Gelfuso, 838 F.2d 358, 359 (9th Cir. 1987), the

Ninth Circuit Court of Appeals acknowledged the following:

"Several Circuits have recognized that the length of pretrial detention raises a

constitutional issue at some point. See e.g., United States v. Fortes, 786 F.2d

758, 768 (7th Cir. 1986); United States v. Accetturo, 783 F.2d 382, 388 (3d Cir.

1986); United States v. Gonzales-Claudio, 806 F.2d 334, 343 (2d Cir. 1986);

United States v. Theron, 782 F.2d 15105 1516 (10th Cir. 1986). The Supreme

Court, however, has declined to identify at what point pretrial detention might

be excessively prolonged and therefore punitive rather than regulatory.

United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 2101 n.4, 95 L. Ed.

2d 697 (1987)."

The Ninth Circuit in Gelfuso, then adopted the view of the Second Circuit

holding that "[t]he due process limit on the length of pretrial detention requires

assessment on a case-by-case basis." Id. Gelfuso also held that courts should

"consider the length of confinement in conjunction with the extent to which the

prosecution bears responsibility for the delay that has ensued." Id. Yet, the District

Court in this case held that "the Ninth Circuit has not addressed whether the district

court may properly consider the length of current or potential future detention."

Magistrate's June 8, 2017 Order, Dkt.# 325 at 17. The District judge also affirmed

this ruling by stating the following in his Order:

"Mr. Qazi raised the issue of whether the length of his pretrial detention

violated his right to due process under United States v. Salerno, 481 U.S. 739

(1987). As Judge Leen noted, there is no Ninth Circuit law on whether the

length of pretrial detention should be considered when reconsidering a

detention order. ECF No. 25 at 17. The Fifth Circuit has held that the length of

pretrial detention is not material to the issues of flight risk or dangerousness to

the community. United States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989). The

length of Mr. Qazi's pretrial detention is addressed more fully in Magistrate

Judge Ferenbach's Report and Recommendation to deny Mr. Qazi's motion to

dismiss the indictment', which I am accepting in full. I do not believe the

circumstances here justify consideration of the length of detention for the

purposes of reconsidering the detention order." Dkt.# 386 at 2, footnote 1.

Nevertheless, "[it is clear that long pretrial detentions, at least in some

circumstances, can violate the Due Process Clause of the Fifth Amendment of the

Constitution of the United States." United States v. Ailemen, 165 F.R.D. 571, 577

(N.D. Cal. 1996) (citing, inter alia, United States v. Gelfuso, 838 F.2d 358, 359-360

(9th Cir. 1988)); See also United States v. Gallo, 653 F. Supp. 320, 335 (1986)

("Otherwise valid pretrial detention does assume a punitive character, and thus

offends the due process clause, when it is significantly prolonged. Such incarceration

is rendered so harsh by its length that it.

degenerates into punishment.") (internal

quotation marks omitted); United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir.

1985) ("The Fifth and Eighth Amendments' prohibitions of deprivation of liberty

without due process and of excessive bail require careful review of pretrial detention

orders"). However, in United States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989), the

The Magistrate's Report and Recommendation (R&R) that the Court was referring to was the magistrate's

recommendation to deny the Motion to Dismiss Indictment for Violation of the Sixth Amendment Constitutional

Right to a Speedy Trial and Fed. R. Crim. P. 48(b)(3) (Dkt.# 329). See Dkt.# 360 at 11, where the Magistrate

addressed the length of pre-trial detention by determining the following (which happens to be accepted in flill by the

District judge): "The delay in this case is well in excess of the period of delay that gives rise to a presumption of

prejudice. The "trigger" has been tripped. The Court is therefore required to consider all of the factors under the

balancing test to determine whether Mr. Qazi's right to a speedy trial pursuant to the Sixth Amendment has been

violated such that his motion to dismiss on that ground should be granted. The Court notes that this is not a

complex case involving numerous charges and defendants. In this case, the indictment charges Mr. Qazi with one

count for felon in possession of a firearm."

Fifth Circuit held that the length of current or potential future detention cannot be

considered in deciding whether to reopen a detention hearing reasoning it is not

material to the issue of risk of flight or dangerousness. But, this ruling conflicts with

the Ninth Circuit in Gelfuso, and the ruling in Hare is the holding that the District

Court adopted in this case. The Supreme Court should also grant Certiorari to resolve

this Circuit split, and to compel the Dictrict Court to follow the Ninth Circuit's

binding precedent in Gelfuso.

After all, Petitioner still retains the fundamental right to be free from

involuntary confinement by the government without due process of law, and the court

should weigh the opposing governmental interests against the curtailment of liberty

that such confinement entails. See Hamdi v. Rumsfeld, 542 U.S. 507, 531, 124 S. Ct.

2633, 159 L. Ed. 2d 578 (2004); See also id. at 2661 (Scalia, J., dissenting) ("The

very core of liberty secured by our Anglo-Saxon system of separated powers has been

freedom from indefinite imprisonment at the will of the Executive. Blackstone stated

this principle clearly: "Of great importance to the public is the preservation of this

personal liberty: for if once it were left in the power of any, the highest, magistrate to

imprison arbitrarily whomever he or his officers thought proper.

be an end of all other rights and immunities.

there would soon

To bereave a man of life, or by

violence to confiscate his estate, without accusation or trial, would be so gross and

notorious an act of despotism, as must at once convey the alarm of tyranny

throughout the whole kingdom. But confinement of the person, by secretly hurrying

him to gaol, where his sufferings are unknown or forgotten; is a less public, a less

striking, and therefore a more dangerous engine of arbitrary government..........1

W. Blackstone, Commentaries on the Laws of England 131-133 (1765)'") (last ellipsis

added).

Yet, the District Court did not conduct a Due Process analysis, and the Ninth

Circuit completely failed to address this important matter, violating Petitioner's

fundamental Due Process rights. The Ninth Circuit's panel decision affirmed the

District Court's June 8, 2017 Order, without addressing any of these merits on appeal,

ultimately violating Petitioner's Due Process rights, and conflicting with the binding

precedent of Gelfuso, Salerno, and Rurnsfeld.

Nonetheless, it is quite evident that the prolonged pre-trial detention in this

case has lasted so long that it has become punitive, and unfair under any standard.

Petitioner's "fundamental rights

the right to a speedy trial, the protection against

excessive bail, the presumption of innocence

all would be empty pronouncements,

full of sound and fury but signifying nothing, for a defendant who could be

imprisoned indefinitely while awaiting trial." United States v. Ailernen, 165 F.R.D.

571, 578 (N.D. Cal. 1996)

2. THE "COMPREHENSIVE CRIME CONTROL ACT OF 1984" PASSED AS

A MERE 'JOINT RESOLUTION,' WAS NEVER CONSTITUTIONALLY

ENACTED AS A SUBSTANTIVE ACT OF CONGRESS TO AUTHORIZE THE

PERMANENT REPEALMENT OF THE "BAIL REFORM ACT OF 1966," OR

TO AUTHORIZE SENTENCING PURSUANT TO THE "SENTENCING

REFORM ACT OF 1984"

House Joint Resolution 648, Public Law 98-473, Title II, which is cited as the

"Comprehensive Crime Control Act of 1984," (CCCA of 1984) contains chapters I

XXIII, including Chapter I-Bail, which may be cited as the "Bail Reform Act of

1984" ("BRA of 1984"), and Chapter II-Sentencing Reform which may be cited as

the "Sentencing Reform Act of 1984" ("SRA of 1984")

The BRA of 1984 claims to repeal the Bail Reform Act of 1966, Pub. L. No.

89-465 ("BRA of 1966"). But prior to enacting the the BRA of 1984, FIR 5865 was

introduced as a bill in the 98th Congress, which met from Jan 3, 1983 to Oct 12,

1984. The Bill failed to make it out of Committee. Legislation not enacted by the end

of a Congress is cleared from the books. On the last day of the session, a

Congressman inserted the same text as a rider to Public Law 98-473 which was a

Joint Resolution Making continuing appropriations for the fiscal year 1985, and

other purposes.

Despite its authentic-sounding title, the final form of the Comprehensive Crime

Control Act of 1984 was insufficient to make it a substantive Act of Congress.

Federal law requires that "The enacting clause of all Acts of Congress shall be in the

following form: 'Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled." See 1 U.S.C. § 101.

Additionally, the Non-Detention Act, Pub. L. 92-128, requires that "No citizen

shall be imprisoned or otherwise detained by the United States except pursuant to an

Act of Congress." See 18 U.S.C. § 4001(a). Only the BRA of 1966 meets these

requirements. The BRA of 1984 does not. Nor was the Joint Resolution sufficient to

propose general law, nor permanently repeal substantive law (the BRA of 1966).

Most importantly, the CCCA of 1984 was not enacted under the law making

process described in Art I, §7, cl. 2 of the Constitution. The Constitution for the

United States mandates that: "Every Bill which shall have passed the House of

Representatives and the Senate, shall, before it become a Law, be presented to the

President of the United States . . . ." U.S. Const. Art. I, § 7, cl. 2. A law has been

enacted in conformance with this constitutional mandate only if "(1) a bill containing

its exact text was approved by a majority of the Members of the House of

Representatives; (2) the Senate approved precisely the same text; and (3) that text

was signed into law by the President." Clinton v. City of New York, 524 U.S. 417, 448

(1998).

Most importantly, "[d]uring the final debate on Art I, § 7, cl 2, James Madison

expressed concern that it might easily be evaded by the simple expedient of

calling a proposed law a "resolution" or "vote" rather than a "bill." 2 Farrand

301-302. As a consequence, Art I, § 7, cl 3, supra, at 945-946, 77 L Ed 2d, at 341,

was added. 2 Farrand 304-305." INS v. Chadha, 462 U.S. 919, 947 (1983).

(emphasis added). Evidently, the very intent of the Framers was to insert Art I, § 7,

cl. 3 into the Constitution, so that proposed laws could only be enacted through a bill

under Art I, § 7, cl. 2, rather than by resolution or vote.

Moreover, the U.S. Supreme Court has held that an authorization to

temporarily amend or suspend substantive law under an appropriations measure does

not give Congress the authorization to permanently repeal substantive law. See Tenn.

Valley Auth. v. Hill, 437 U.S. 153, 190-191 (1978), where the U.S. Supreme Court

held the following:

"We recognize that both substantive enactments and appropriations

measures are "Acts of Congress," but the latter have the limited and

specific purpose of providing funds for authorized programs. When voting

on appropriations measures, legislators are entitled to operate under the

assumption that the funds will be devoted to purposes which are lawful and

not for any purpose forbidden. Without such an assurance, every

appropriations measure would be pregnant with prospects of altering

substantive legislation, repealing by implication any prior statute which

might prohibit the expenditure. Not only would this lead to the absurd

result of requiring Members to review exhaustively the background of every

authorization before voting on an appropriation, but it would flout the very

rules the Congress carefully adopted to avoid this need."...

"Thus, to sustain petitioner's position, we would be obliged to assume that

Congress meant to repeal pro tanto § 7 of the Act by means of a procedure

expressly prohibited under the rules of Congress. Perhaps mindful of the

fact that it is "swimming upstream" against a strong current of wellestablished precedent, TVA argues for an exception to the rule against

implied repealers in a circumstance where, Appropriations Committees

have expressly stated their "understanding" that the earlier legislation would

not prohibit the proposed expenditure.

We cannot accept such a

proposition. Expressions of committees dealing with requests for

appropriations cannot be equated with statutes enacted by Congress,

particularly not in the circumstances presented by this case. First, the

Appropriations Committees had no jurisdiction over the subject of

endangered species,much less did they conduct the type of extensive

hearings which preceded passage of the earlier Endangered Species Acts,

especially the 1973 Act. We venture to suggest that the House Committee

on Merchant Marine and Fisheries and the Senate Committee on Commerce

would be somewhat surprised to learn that their careful work on the

substantive legislation had been undone by the simple-and briefinsertion of some inconsistent language in Appropriations Committees'

Reports."

The Ninth Circuit Court of Appeals also held that appropriations acts are

generally only "in force during the fiscal year of the appropriation and do not work a

permanent change in the substantive law." Seattle Audobon Soc 'y v. Evans, 952

F.2d 297, 304 (9th Cir. 1991).

According to its own rules, Congress is also not supposed to use appropriations

measures as vehicles for the amendment or proposal of general laws. See Senate

Standing Rule XVl, para. 4, (1975) ("No amendment which proposes general

legislation shall be received to any general appropriation bill, nor shall any

amendment not germane or relevant to the subject matter contained in the bill be

received."); See also House Rule )iX[, para. 2 (94th Cong. 1976) ("No appropriation

shall be reported in any general appropriation bill, or be in order as an amendment

thereto, for any expenditure not previously authorized by law, unless in continuation

of appropriations for such public works and objects as are already in progress. Nor

shall any provision in any such bill or amendment thereto changing existing law

be in order, except such as being germane to the subject matter of the bill shall

retrench expenditures by the reduction of the number and salary of the officers of the

United States, by the reduction of the compensation of any person paid out of the

Treasury of the United States, or by the reduction of amounts of money covered by

the bill.")

Interestingly, the Fifth Circuit Court of Appeals decided a case regarding

"Resolution No. 50 adopted by the House of Representatives June 22, and agreed to

by the Senate July 21, 1945," and the Court held that "[t]he Resolution is not an Act

of Congress approved by the President or passed over his veto. It does not make

law, or change the law made by a previous Congress and President." FH.E. Oil

Co. v. Commissioner of Internal Revenue, 150 F.2d 857, 858 (5 Cir. 1945)

Proposing law through a Joint Resolution is also considered a one-house veto,

which "impermissibly makes law without a vote by both Houses of Congress and

circumvents the President's power to veto. Legislative vetoes also violate the

principle of separation of powers. They provide a means for Congress to control

the executive without going through the full lawmaking process, thus

unconstitutionally enhancing congressional power at the expense of executive

power." American Federation of Gov't Employees v. Pierce, 697 F.2d 303, 306 (D.C.

Cir. 1982). "Such continuing resolutions have become a regular feature of the

congressional landscape towards the end of almost every fiscal year and, since, in

theory at least, the government, or part of it, will come to a halt if the continuing

resolution is not signed into law, they are considered "veto proof," or nearly so, and

members of Congress with cherished projects of their own strive to attach them as

amendments to the continuing-appropriations joint resolution, secure in the

knowledge that the President cannot veto part of a measure." United States v.

Powell, 761 F.2d 1227, 1234-35 (8th Cir. 1985).

Instructively, the Framers "viewed the principle of separation of powers as a

vital check against tyranny." Buckley v. Valeo, 424 U.S. 1, 121 (1976). And "the

President's qualified veto power is a critical element in the distribution of powers

under the Constitution, widely endorsed among the Framers, and intended to serve

the President as a defense against legislative encroachment and to check the passing

of bad laws, through haste, inadvertence, or design." Chadha, supra, 462 U.S. at 980

(quoting The Federalist No. 73, p 458 (H. Lodge ed 1888) (A. Hamilton)) (internal

quotation marks omitted).

Thus, this legislative practice of proposing and enacting substantive law

through a joint resolution was not only a violation of Art I, § 7, ci. 2 of the

Constitution, but also Separation of Powers. Yet the Ninth Circuit panel decision

affirmed the District Court's ruling which sidestepped this argument, without

addressing any of the merits on appeals, ultimately violating Petitioner's Due Process

rights, conflicting with laws of the United States, the binding precedent of this

Supreme Court in Hill and Chadha, and the Ninth Circuit Court in Evans.

3. THIS TEMPORARY RESOLUTION HAD CEASED FROM BEING

ENFORCEABLE UPON ITS EXPIRATION

A federal appropriations act applies only for the fiscal year in which it is

passed, unless it expressly provides otherwise. See 31 U.S.C. 1301(c)(2).

Additionally, the Ninth Circuit Court of Appeals has held that appropriations acts are

generally only "in force during the fiscal year of the appropriation and do not

work a permanent change in the substantive law." Seattle Audobon Soc y v. Evans,

952 F.2d 297, 304 (9th Cir. 1991); See also Ad. Fish Spotters Assn v. Evans, 321 F.3d

220, 224 (1st Cir. 2003) ("A provision in an annual appropriations bill presumptively

applies only during the fiscal year to which the bill pertains [unless]

the

appropriations bill expressly provides that it is available after the fiscal year covered

by the law in which it appears.") (quotations omitted); Bldg. & Constr. Trades Dept.,

AFL-CIO v. Martin, 295 U.S. App. D.C. 182, 961 F.2d 269, 274 (D.C. Cir. 1992)

("[A] provision contained in an appropriations bill operates only in the applicable

fiscal year, unless its language clearly indicates that it is intended to be

permanent."

...

"[W]hen Congress intends a provision in an appropriations bill to

have permanent effect, it uses words of permanency or futurity (such as "to

apply in all years hereafter")).

The CCCA of 1984 contained no explicit declaration that it was intended to be

in force after the fiscal year covered by the law in which it appears. In Minis v.

United States, 40 U.S.(15 Pet.) 423, 445 (1841), the U.S. Supreme Court settled this

by holding that "[i]t would be somewhat ususual to find engrafted upon an act

making special and temporary appropriation, any provision which was to have a

general and permanent application to all future appropriations. Nor ought such an

intention on the part of the Legislature to be presumed, unless it is expressed in the

most clear and positive terms, and where the language admits of no other reasonable

interpretation."

Accordingly, provisions contained in an appropriations measure operate only in

the applicable fiscal year, unless its language clearly indicates that it is intended to be

permanent. See 31 U.S.C. 1301(c)(2). The Joint Resolution contained no words of

futurity or permanency, and the authority of the Joint Resolution expired on

September 30, 1985. Thereby, the District Court does not have the authority to

imprison or otherwise detain petitioner pursuant to any provision under the expired

Comprehensive Crime Control Act of 1984, which includes the Bail Reform Act of

1984 and Sentencing Reform Act of 1984. Thus, Petitioner is entitled to immediate

release pursuant to the Non-Detention Act, Pub. L. 92-128 (18 U.S.C. § 4001).

Yet, the Ninth Circuit panel decision affirmed the District Court's ruling which

absolutely stonewalled this argument, and without addressing any of the merits on

appeals, ultimately violating Petitioner's Due Process rights, conflicting with the laws

of the United States, the binding precedents of this Supreme Court in Hill and Minis,

and the Ninth Circuit Court in Evans.

B. THE NINTH CIRCUIT VEERED OFF FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEEDINGS

THE DISTRICT COURT'S CLEARLY ERRONEOUS FACTUAL FINDING

ON RISK OF NON-APPEARANCE BASED ON FAILURES TO APPEAR

The Detention Order belies the Magistrate's own admission on the record.

When the Government attempted to argue that Petitioner had failures to appear in the

past, the Magistrate stated: "You have numerous failures to appear in your criminal

history, let me strike that, you do not." See Dkt.# 178-1, Gov. Ex. #1, 6:04-6:25

(Audio Recording of Initial Appearance).

Yet the District Court has continued to detain Petitioner under the guise of

having "failures to appear." See Magistrate's June 8, 2017 Order, Dkt.# 325 at 23.

Yet, the panel decision affirmed this ruling, without addressing this argument,

amounting to a serious Due Process violation.

PETITIONER HAS TIME SERVED UNDER THE SENTENCING

GUIDELINES, AND CONTINUED DETENTION WOULD VIOLATE

PETITIONER'S RIGHT UNDER THE DUE PROCESS CLAUSE

Petitioner had raised the proper argument that the time served in custody would

have already passed the sentencing guideline range ifPetitioner was found guilty.

Petitioner estimated a sentencing range of 21-27 months with a litany of supporting

authorities and facts. See Dkt.# 308 at 4-7; and Dkt.# 315 at 6-7. Nonetheless,

assuming arguendo that the plaintiff had the correct guideline estimation of 63-78,

Petitioner would still have finished nearly the entire sentence by including good time

credit and eligibility to the halfway house.

There are two District Court cases that aid this Due Process inquiry by

FIX

comparing the length of expected detention to the prison sentence a defendant would

serve if convicted. See United States v. Shareef, 907 F. Supp. 1481, 1484 (D. Kan.

1995) (holding that "it is also appropriate to consider the potential terms of

imprisonment to which the defendants may be sentenced if ultimately found guilty of

the charges as compared to the prospective length of pretrial detention in determining

whether the due process rights of a person may be violated."); See also Id.

("[F]undamental fairness requires that defendants, presumed innocent, not be

required to serve a major portion of the sentence to which he or she would be subject

prior to a determination of guilt."); United States v. LoFranco, 620 F. Supp. 1324,

1325 (S.D.N.Y. 1985) ("holding a defendant without bail for longer than he would

serve if tried and convicted must also violate due process")

Yet, the District Court, and the Ninth Circuit have stonewalled this matter,

violating Petitioner's fundamental Due Process rights.

3. UNDER THE FIFTH, SIXTH AND EIGHTH AMENDMENTS TO THE

CONSTITUTION AN ACCUSED SHOULD NOT BE PUNISHED BEFORE

CONVICTION AND JUDGMENT, AND PLACING PRETRIAL DETAINEES

IN FACILITIES DESIGNED FOR, AND OCCUPIED BY, CONVICTED

PRISONERS CARRIES A PUNITIVE ELEMENT.

Petitioner argued in District Court that "pretrial detention is by nature

temporary." Gerstein v. Pugh, 420 U.S. 103, 111 n.h I (1975). Under the due process

clause of the Fifth Amendment, an accused may not be punished prior to an

adjudication of guilt conducted in accordance with due process of law. See, e.g., Bell

v. Wolfish, 441 U.S. 520, 535 (1979); Ingraham v. Wright, 430 U.S. 651, 671-672

n.40, 674(1977); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-67, 186 (1963);

Wong Wing v. United States, 163 U.S. 228, 237 (1896). "[T]he Fifth and Sixth

Amendments mandate that this punishment cannot be imposed without a prior

criminal trial and all its incidents, including indictment, notice, confrontation, jury

trial, assistance of counsel, and compulsory process for obtaining witnesses." See

Kennedy v Mendoza-Martinez, 372 US 144, 165-67 (1963); See also Id. at 186. ("[I]t

has been an abiding principle governing the lives of civilized men that "no freeman

shall be taken or imprisoned or disseised or outlawed or exiled ... without the

judgment of his peers or by the law of the land ....' What we hold is only that, in

keeping with this cherished tradition, punishment cannot be imposed 'without due

process of law." Any lesser holding would ignore the constitutional mandate upon

which our essential liberties depend.")

Petitioner had also argued that the placing of convicts who have been

sentenced to several years in prison with innocent people, puts all pre-trial detainees

at risk of life and substantial physical harm. That this type of housing condition

could only be justified as cruel and unusual punishment to the Petitioner who is

presumed to be innocent and unconvicted. "Most importantly, placing pretrial

detainees in facilities designed for, and occupied by, convicted prisoners also carries a

punitive element. See e.g., Morales Feliciano v. Hernandez Colon, 697 F. Supp. 37,

45-46 (D.P.R. 1988), affd sub nom. Morales-Feliciano v. Parole Bd. Of Puerto Rico,

887 F.2d 1 (1st Cir. 1989) ("knowing[] commingling of.

pretrial detainees with

convicts suffering punishment for crime, [causes a prison to] also punish the

unconvicted however unexplicit the officials' purpose to punish may be.")

Accordingly, the prolonged confinement of a pretrial detainee in a facility statutorily

designated for convicted prisoners raises the spectre of a Constitutional violation."

(quoting Robbins v. Doe, 994 F. Supp. 214, 218 (S.D.N.Y. 1998)); See also Pembroke

v. Wood County, 981 F.2d 225, 229 (5th Cir. 1993).

Furthermore, Petitioner argued that this continued detention is evidently cruel

and unusual punishment in a direct violation of the Eighth Amendment to the

Constitution for the United States of America. An accused should not be punished

before a conviction and judgment. Petitioner argued that he has been punished for

serving more than what others would have served on the same charge and in the same

circumstances, and that the pre-trial detention has lasted so long that it has become

punitive in nature, regardless of the standard applied. Since the Petitioner has not

been convicted of any crime, he may not so be punished. See T Cooley, General

Principles of Constitutional Law 224 (1880) ("When life and liberty are in question,

there must in every instance be judicial proceedings; and that requirement implies an

accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a

conviction and judgment before the punishment can be inflicted"); See also Exparte

Watkins, 7 Pet 568, 573-574, 8 L Ed 786 (1833) ("The eighth amendment is addressed

to courts of the United States exercising criminal jurisdiction, and is doubtless

mandatory to them and a limitation upon their discretion.")

Yet, the District Court, and the Ninth Circuit completely failed to address these

matters also, violating Petitioner's fundamental Due Process rights.

THE SPEEDY TRIAL ACT.REQUIRES PETITIONER TO BE RELEASED

FROM PRE-TRIAL DETENTION.

This Supreme Court in United States v. Salerno, 481 U.S. 739, 747 (1987), had

held that "the maximum length of pretrial detention is limited by the stringent time

limitations of the Speedy Trial Act."

Petitioner had also detailed the legislative history to the Bail Reform Act with

supporting authorities (United States v. Accetturo, 783 F.2d 382, 387-88 (3d Cir.

1986); United States v. Gallo, 653 F. Supp. 320, 342-43 (E.D.N.Y. 1986)), revealing

that the legislators had no real basis for concern that some pretrial detainee might

languish in pretrial confinement for a prolonged period, since the Speedy Trial Act of

1974 would insure that an accused's trial would be commenced within 90 days of his

arrest. See Dkt.# 289 at 8-9.

Yet, the District Court, and the Ninth Circuit failed to address this matter,

violating Petitioner's fundamental Due Process rights.

THE DISTRICT COURT'S CLEARLY ERRONEOUS FACTUAL FINDING

THAT PETITIONER IS VIOLENT DUE TO COURTROOM BEHAVIOUR AT

THE MARCH 24, 2017 HEARING.

The Magistrate claimed: "When one of the Marshals attempted to place him in

handcuffs, he became physically combative, threw the Marshal down over the table

causing the table to crash and both Qazi and the Marshal to fall to the ground." See

Dkt.# 325, at 11. However, there was no evidence presented from any party to

support this determination.

The Prisoner Restraint Request by the United States Marshals Service

mentioned that "3-24/2017- Refused Orders and Resisted DUSM attempts to place

him in handcuffs resulting in Court room table being knocked over." See Dkt.# 345,

at 2. There is a major difference between being physically combative, and refusing or

resisting. The United States Marshals Service never alleged that Petitioner was

combative or that he threw a Marshal over a table. Likewise, the government

mentioned that "defendant refused to be hand cuffed and physically resisted two

United States Marshals." Dkt.# 307, at 10, footnote 5. But, the Magistrate made her

own allegation, conflicting with the statements of both the USMS and AUSA.

Additionally, none of these mere allegations could have been used as concrete

evidence?

However, Petitioner has maintained that he was never physically combative,

and had requested for a hearing to present and review evidence. But the Court never

held a hearing to view any supporting evidence in regards to the Magistrate's sole

allegation', or to hear testimony from the alleged victim (CCA Lieutenant, D. Perrin,

who is not a U.S. Marshal). Additionally, the Court's own video surveillance would

"[A]rguments and statements of counsel are not evidence and do not create issues of material fact" Wood v. Siratos

Prod. Dev., LLC (In re Ahaza Sys.), 482 F.3d 1118, 1122 n. 1 (9th Cir. 2007); Exeter Bancorporation v. Kemper

Securities Group, Inc., 58 F.3d 1306, 1312 n. 5(8th Cir. 1995) (holding statements of counsel are not evidence and

do not create issues of fact)

The magistrate's allegation that Petitioner was physically combative made the judge the sole accuser against

Petitioner. The judge can not rule on her own accusation. The district court thus became both the prosecutor and the

judge. "[A]n unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator

in a case." Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016) (citing In re Murchison, 349 U.S. 133, 136-137

(1955)) ("It would be very strange if our system of law permitted ajudge to act as a grand jury and then try the very

persons accused as aresult of his investigations.") Id at 137. See also Wong Yang Sung v. McGrath, 339 U.S. 33

(1950) (members of administrative agency may not serve as both a prosecutor of a charge and judge of the hearing

of that charge).

have proven the judge's assertions to be outright false. Since Petitioner had not had a

trial, or even a hearing for parties to present evidence on that allegation, he remains

innocent until proven guilty.

Nonetheless, the panel decision affirmed the District Court's ruling without

addressing the merits at all, violating Petitioner's fundamental Due Process rights.

6. THE MAGISTRATE DETERMINED THAT THE NINTH CIRCUIT'S

RULING IN UNITED STATES V. TWINE WAS MOOT WITHOUT ANY

LAWFUL CITATION OR SUPPORTING AUTHORITY.

The Magistrate asserted the following in her Order: "In United States v. Twine,

the Ninth Circuit held that felon in possession of a firearm was not a crime of

violence for purposes of the Bail Reform Act. 344 F.3d 987 (9th Cir. 2003) (reh'g en

bane denied 362 F.3d at 1163 (9th Cir. 2004)). However, in 2006, Congress amended

the Bail Reform Act to authorize detention of a defendant charged with any felony

that involves possession or use of a firearm. The 2006 amendment explicitly making

a defendant eligible for detention in a case in which he is charged with a felony

involving the use or possession of a firearm renders the Ninth Circuit holding in

Twine moot. Thus, Qazi was and remains eligible for detention based on the offense

charged." See Dkt.# 325, at 19.

However, the Ninth Circuit's ruling in Twine has never been overturned, is still

valid, and is not rendered moot. The 2006 amendment that the Magistrate is asserting

is not even provided or cited, and thus does not apply. This amendment would also be

null and void, since it would be in reference to expired legislation (Bail Reform Act).

910

See infra.

Additionally, no party raised this argument in any court pleadings. In fact, the

government conceded that I was not subject to a rebuttable presumption by asserting

the following: "Upon review of the audio recording from February 24, 2015, neither

the Government (Gov. Ex. #1 at 4:00

5:10) nor the Court (Id. at 5:17

7:30)

mentioned that the Defendant was subject to a rebuttable presumption however the

Order filed on March 5, 2015, Doc. #14, and the Order filed on November 20, 2105,

Doc. #101 both include that as a basis upon which the Court relied. The Government

respectfully submits that this appears to be an unintentional error perhaps

misinterpreting the Court's statement that the charge the Defendant was facing, Felon

in Possession of a Firearm, created an ability for the Court to detain the Defendant

pending trial (Id. At 5:38

5:49)." Dkt.# 178 at 2, footnote 2.

Nonetheless, the District Court Judge, and the Ninth Circuit failed to address

this matter either, violating Petitioner's fundamental Due Process rights.

7. PRETRIAL DETENTION CAN NOT BE BASED SOLELY ON A FINDING

OF DANGEROUSNESS, AND THAT THE FINDING OF DANGEROUSNESS

MUST BE RELATED TO THE CURRENT CASE.

Petitioner argued to the District Court that the finding of dangerousness

unrelated to the federal charges is not a sufficient basis for detention, citing United

States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988) (defendant's threat to kill his girlfriend's

husband could not be considered unless it could be connected to the case); United

States v. Byrd, 969 F.2d 106, 109 (5th Cir. 1992); United States v. Say, 233 F. Supp.

2d 221 (D. Mass. 2002); United States v. Patriarca, 948 F.2d 789 (1st Cir. 1991); See

also United States v. Montoya, 486 F. Supp. 2d 996, (D. Ariz. 2007) (holding that the

accused's 1998 domestic violence conviction and ideation regarding a propane tank

bomb and dislike for his brother-in-law, were not inferences that arise to clear and

convincing evidence of dangerousness.)

"It is not surprising that detention can be ordered only after a hearing; due

process requires as much. What may be surprising is the conclusion that even after a

hearing, detention can be ordered only in certain designated and limited

circumstances, irrespective of whether the defendant's release may jeopardize public

safety. Nevertheless, we find ourselves in agreement with the First and Third Circuits:

a defendant's threat to the safety of other persons or to the community, standing

alone, will not justify pre-trial detention." Montoya, supra, at footnote 2.

Yet, the District Court, and the Ninth Circuit failed to address this issue,

violating Petitioner's fundamental Due Process rights.

8. THE BURDEN WAS ON THE GOVERNMENT TO PROVIDE CLEAR AND

CONVINCING EVIDENCE AT THE DETENTION HEARING

Petitioner had argued that the government never met their burden of providing

clear and convincing evidence to merit the notion that no conditions of release can be

made. "In a full-blown adversary hearing, the Government must convince a neutral

decisionmaker by clear and convincing evidence that no conditions of release can

reasonably assure the safety of the community or any person." United States v. Scott,

450 F.3d 863, 874 (9th Cir. 2006) (quoting Salerno, 481 U.S. at 750).

At every detention hearing, including arraignment, the government never

produced any evidence, such as documentation or testimonial evidence. The only

issues ever presented were the prosecution's mere statements and allegations with no

offer of proof. But this was not sufficient under the law.'

Yet, the District Court, and the Ninth Circuit failed to address this issue,

violating Petitioner's fundamental Due Process rights.

9. PETITIONER WAS FORCED TO SURRENDER A CONSTITUTIONAL

RIGHT IN ORDER TO ASSERT ANOTHER.

Petitioner argued in District Court that the Court should not put the

responsibility on Petitioner for any delay. Petitioner argued that the Due Process right

to file all necessary motions in preparation for trial, including the Constitutional right

to exclude unlawful evidence seized in violation to the Fourth Amendment. Should

not abrogate the right to have a speedy trial under the Sixth Amendment. It is

extremely unfair to put the Petitioner in this situation where you have to choose some

Constitutional rights over others. To support this argument and to highlight this

position Petitioner had referred to an article titled How Long is Too Long? When

Pretrial Detention Violates Due Process, 60 Tenn. L. Rev. 1 (Fall, 1992), where

Professor Einesman presented some logical reasons on why excluding any or all

periods of delay attributable to an accused's motion practice may be unconstitutional.

As Professor Einesman noted: "Charging a defendant with the responsibility

'[A]rguments and statements of counsel are not evidence and do not create issues of material fact' Wood v. Siratos

Prod Dev., LLC (In re Ahaza Sys.), 482 F.3d 1118, 1122 n. 1 (9th Cir. 2007); Exeter Bancorporation v. Kemper

Securities Group, Inc., 58 F.3d 1306, 1312 n. 5 (8th Cir. 1995) (holding statements of counsel are not evidence and

do not create issues of fact)

for delaying the trial and extending his detention due to his filing of pre-trial motions

creates an intolerable dilemma for the defendant. For example, if he files a pretrial

motion to suppress evidence or obtain discovery, his pretrial detention is extended,

and he may be held responsible for this extension. The alternative is to abandon all

claims under the Fourth, Fifth and Sixth Amendments versus the Fifth Amendment

right not to be punished before an adjudication of guilt by a prolonged period of

pretrial incarceration. The Supreme Court has held that it will not tolerate a

government action which compels a defendant to choose between the excercise of

two constitutional rights." Id. at 37-38. (See Dkt.# 289 at 15.)

Petitioner had also referrenced Simmons v. United States, 390 U.S. 377, 394

(1968), where the U.S. Supreme Court held: "[W]e find it intolerable that one

constitutional right should have to be surrendered in order to assert another."

Simmons v. United States, 390 U.S. 377, 394 (1968). See Dkt.# 289 at 16.

This argument had defeated the plaintiffs position that Petitioner should be

responsible for the delay in this case. But the Magistrate's Order only mentioned that

I had relied on a 1992 article by Professor Einesman, and failed to mention that I had

also relied on the Supreme Court's ruling in Simmons. See Dkt.# 325, at 8. But

afterwards, the Magistrate never gave a decision on this matter, and likewise, the

District Judge, and the Ninth Circuit failed to address this issue either, violating

Petitioner's fundamental Due Process rights.

VI.

CONCLUSION

For the reasons mentioned above, Petitioner respectfully requests that this

Supreme Court enter an order granting this Petition for Writ of Certiorari.

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct, and that this document is executed

without the benefit of a notary pursuant to NRS 208.165, as I am a prisoner confined

in a private prison within this state of Nevada.

Executed on June 05, 2018.

Respectfully submitted,

Omar Qazi

Signed:

Omar Qazi

N.S.D.C.

2190 E. Mesquite Ave.

Pahrump, Nevada

Proper Person

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.