Petition for Writ of Certiorari — Danny D. Tran, Petitioner v. Kansas

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No.

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se

IN THE

SUPREME COURT OF THE UNITED STATES

03M ML

S up 1'6 r-

DANNY D. TRAN

---

PETITIONER

VS.

MARTY SAUERS, WARDEN .-RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF KANSAS

PETITION FOR WRIT OF CERTIORARI

Danny D. Tran #0098510 pro Se.

Ellsworth Correctional Facility

1607 State St.

P0 Box 107

Ellsworth, Kansas 67439-0107

Cou rt, U.S.

FLED

OFFI CE OF HE CLERK

'

QUESTIONS PRESENTED

MAY THIS COURT'S DECISION IN STRICKLAND V. WASHINGTON AS TO WHAT

CONSTITUTES THE INEFFECTIVE ASSISTANCE OF COUNSEL?

MAY THIS COURT'S DECISION IN IN RE GAULTAS TO WHAT CONSTITUTES A

COERCED CONFESSION BY A JUVENILE?

MAY THIS COURT'S DECISION IN WILLIAMS V. TAYLOR AS TO WHAT CONSTITUTES

A POSTCARD DENIAL?

1

TABLE OF CONTENTS

Questions Presented ...................................................................

Tableof Contents ......................................................................ii

Table of Authorities .................................................................iii, iv

OpinionBelow ..........................................................................1

Jurisdiction............................................................................1

Constitutional and Statutory Provisions Involved ........................................2

Statement of the Case ...................................................................3

Argument For Allowance of Writ........................................................8

THE KANSAS COURT OF APPEALS ERRED IN AFFIRMING THE CONVICTION

ON THE BASIS OF AN UNREASONABLE APPLICATION OF STRICKLAND ...........8

THE KANSAS COURT OF APPEALS ERRED IN AFFIRMING THE CONVICTION

ON THE BASIS THAT THE JUVENILE CONFESSION WAS TRUE AND UNCOERCED. 10

THE KANSAS SUPREME COURT ERRED IN AFFIRMING THE CONVICTION ON

THE BASIS OF A POSTCARD DENIAL .............................................13

Conclusion............................................................................15

Appendix

Appendix A Order of the Kansas Supreme Court

Appendix B Decision of the Kansas Court of Appeals 2017

Appendix C Decision of the Kansas Court of Appeals 2014

ii

TABLE OF AUTHORITIES

Cases

Boykin v. Alabama, 395 U.S. 238, 243, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969) ......................6

Byrd v. Workman, 645 F.3d 1159, 1171-72 (loth Cir. 2011) .....................................11

Edwards v. Arizona, 451 U.S. 477, 488, 101 S. Ct. 1880, 68 L. Ed. 378 (1981) .....................12

Fare v. Michael C., 442 U.S. 707, 725, 61 L. Ed. 2d 197, 99 S. Ct. 2560 (1979) ....................7, 12

Goudy v. Basinger, 604 F.3d 394, 399 (loth Cir. 2010) ............................................13

Griffin v. Warden Md. Corr. Adj. Ctr., 970 F.2d 1355, 1358 (41h Cir. 1992) ..........................8

Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 784, 178 L. Ed. 2d 264 (2011) .................14

Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) ..................6, 9, 10

Hunter v. Aispuro, 982 F.2d 344, 347-48 (gth Cir. 1992) .........................................14

In re Gault, 387 U.S. 1, 54, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967) ................................11

In re Gault, 387 U.S. 1, 55, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967) ...............................6, 11

Krouse v. Lowden, 153 Kan. 181, 109 P.2d 138 cert. denied 314 U.S. 633, 86 L. Ed. 508, 62 S. Ct. 67,

reh. denied 314 U.S. 7-10, 86 L. Ed. 566, 62 S. Ct. 174 .....................................13

Lafler v. Cooper, 566 U.S. 156, 165, 132 S. Ct. 1376, 182 L. Ed. 2d 398 92012) ......................6

Lee v. Mississippi, 332 U.S. 742, 745, 68 S. Ct. 300, 92 L. Ed. 330 (1948) ...........................7

Malloy v. Hogan, 378 U.S. 1, 6, 84S. Ct. 1489, 12 L. Ed. 2d 653 (1964) ............................10

Maryland v. Shatzer, 599 U.S. 98, 104, 130 S. Ct. 1213, 1219 (2010) .............................11

Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321,46 L. Ed. 2d 313 (1975) .......................12

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, (1966) ........................11

Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986) ....................10

Premo v. Moore, 562 U.S. 115, 118,131 S. Ct. 733,178 L. Ed. 2d 649 (2011) ......................9

Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) ........10, 12

Strickland v Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674,104 S. Ct. 2052, reh. denied 467 U.S.

1267,82L. Ed. 2d864,1045. Ct. 3562(1984) ..........................................6,8

Strickland v Washington, 466 U.S. 668, 691, 80 L. Ed. 2d 674,104 S. Ct. 2052, reh. denied 467 U.S.

1267, 82 L. Ed. 2d 864,104 S. Ct. 3562 (1984) .............................................8

Tice v. Johnson, 647 F.3d 87, 107 (4th Cir. 2011) .................................................12

Tollettv. Henderson, 411 U.S. 258, 267,93S. Ct. 1602,1608,36 L. Ed. 2d 235 (1973) ..............6

United States v. Barnes, 83 F.3d 934, 939 (71h Cir. 1996) ..........................................9

United States v. Barnes, 83 F.3d 934, 940 (71h Cir. 1996) ..........................................9

United States v. Cronic, 466 U.S. 548, 657 n.19, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984) ...........9

Vontress v. State, 299 Kan. 607, 325 P.3d 1114 (2014)............................................4

Weeks v. Commonwealth, 248 Va. 460, 450 S. E. 2d 379,385-86 (Va. 1994).......................12

Williams v. Taylor, 529 U.S. 362, 407, 120 S. Ct. 1495 (2000) .................................13, 14

iii

Statutes

28 U.S.C. § 1257(a) ......................................................................1

U.S. CONST., AMEND V.................................................................10

U.S. CONST., AMEND VI ............................................................5, 6,8

U.S. CONST., AMEND XIV Sec.1 .........................................................10

U.S CONST., ARTICLE VI ...............................................................13

lv

Li

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

The opinion of the Kansas Supreme Court to review the merits appears at Appendix

to the petition and is without explanation.

The opinion of the Kansas Court of Appeals appears at Appendix

is unpublished.

to the petition and

The opinion of the Kansas Court of Appeals appears at Appendix

is unpublished.

to the petition and

JURISDICTIONAL STATEMENT

The decision of the Kansas Supreme Court was entered on August 30, 2018. Rehearing was

not sought. The jurisdiction of this Court is invoked under 28 USCS 1257(a).

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

Article VI, United States Constitution provides:

"This Constitution, and the Laws of the United States which shall be made in

pursuance thereof. shall be the Supreme Law of the Land, and the judges of

every state shall be bound thereby."

..

The Fifth Amendment, United States Constitution provides:

"No person.. shall be compelled in any criminal case to be a witness against

himself."

.

The Sixth Amendment, United States Constitution provides:

"In all prosecutions the accused shall enjoy the right.

assistance of counsel for his defence."

. .

to have the

The Fourteenth Amendment Section 1, United States Constitution provides:

"...No state shall

deprive any person of life, liberty, or property, without

due process of law."

. . .

The statute under which Petitioner sought post conviction relief was 28 U.S.C. § 1257(a)

State Courts; Certiorari

Final judgments or decress rendered by the highest court of a state in which a decision

could be had, may be reviewed by the Supreme Court by Writ of Certiorari where the

validity of a treaty or statute of the United States is drawn in question or where the validity

of a statute of any state is drawn in question on the ground of its being repugnant to the

Constitution, treaties, or laws of the United States or where any title, right, privilege, or

immunity is specially set up or claimed under the Constitution or the treaties or statutes of,

or any commission held or authority exercised under, the United States

2

STATEMENT OF THE CASE

I.

COURSE OF PROCEEDINGS IN THE SECTION 1257 CASE NOW BEFORE THIS

COURT

On July 30, 2009 in a cause pending in the Kansas District Court, Sedgwick County,

Juvenile Department, entitled In the Matter of Danny D. Tran, Juvenile no. 09JV555,

petitioner waived his male adult prosecution hearing and was transferred to Sedgwick

County Adult Detention Facility on the crimes of Aggravated Robbery, Kidnapping, two

counts of Aggravated Battery, and Aggravated Burglary.

On August 7, 2009, upon transfer to the adult court the same cause pending in the

Kansas State District Court, Sedgwick County, entitled STATE OF KANSAS V. DANNY D.

TRAN, criminal no. 09CR2159, petitioner entered into a guilty plea to the crimes of

Aggravated Robbery, Kidnapping, two counts of Aggravated Battery, and Aggravated

Burglary, for probation with an underlying sentence of 228 months.

On October 22, 2009, the district court entered judgment and petitioner was

sentenced to probation with an underlying term of 228 months of imprisonment on each

count to run concurrently.

On October 7, 2010, the district court revoked petitioner's probation and imposed

the underlying sentence of 228 months of imprisonment. This judgment was affirmed by

the Kansas Supreme Court in a mandate filed on March 13, 2012.

On March 11, 2013, petitioner filed a Motion to Witdraw Guilty Plea alleging

manifest injustice. Subsequently, on April 1, 2013, petitioner filed a supplement to the

motion to withdraw guilty plea, wherein petitioner asserted reasons demonstrating

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excusable neglect for failure to file the motion within the one-year statute of limitations. In

addition, petitioner asked the district court to construe his motion to withdraw guilty plea

as a K.S.A. 60-1507, and make a finding that he should be allowed to assert his claims

outside the one-year statute of limitations to prevent a manifest injustice. The motion was

summarily denied without an evidentiary hearing. The Kansas Court of Appeals reversed

and remanded the case. See Appendix C.

On remand, the district court entered an order denying the motion after conducting

an evidentiary hearing on the merits. Petitioner appealed. This judgment was affirmed.

Petition for review denied without opinion. See Appendix A & B.

II.

RELEVANT FACTS CONCERNING THE UNDERLYING CONVICTION

The relevant facts are contained in petitioner's motion to withdraw guilty plea,

which was construed as a K.S.A. 60-1507. Petitioner argued in his motion that manifest

injustice exists, as he alleges that the police illegally obtained a confession and that his

counsel was ineffective for failing to investigate that allegation and file a motion to

suppress his confession.

During the motion to withdraw guilty plea hearing, the district court held that

petitioner had failed to show any reason for the untimely filing and denied his motion. In

the journal entry of denial, the district court noted that no exceptions excused the untimely

filing under either excusable neglect or manifest injustice standards.

On appeal, the Kansas Court of Appeals held that the district court erred in failing to

consider all of the factors outlined in Vontress v. State, 299 Ran. 607, 325 P.3d 1114 (2014),

specifically whether petitioner's ineffective assistance of counsel claim raised a substantial

issue of fact or law. The Kansas Court of Appeals remanded the case to the district court for

4

an evidentiary hearing to determine whether petitioner's attorney had been ineffective.

On remand, petitioner recounted the facts of his arrest, interrogation, and

confession as set out in his motion. The district court reconsidered the Vontress factors and

found that: 1) petitioner did not provide a persuasive reason for failure to timely file his

motion; 2) petitioner did not claim actual innocence; and 3) petitioner was not credible and

counsel was not ineffective. The district court concluded by holding that based on the

totality of the circumstances, manifest injustice has not been shown and that the motion be

denied. Petitioner appealed.

On appeal of remand, the Kansas Court of Appeals affirmed the decision and held

that because the petitioner did not furnish a record which affirmatively shows that

prejudicial error occurred in the trial court, the appellate court presumes that the action of

the trial court was proper. Substantial competent evidence supports the district court's

findings that counsel was not ineffective and that petitioner would not have insisted on

going to trial if he had known about the suppression issue.

EXISTENCE OF JURISDICTION BELOW

Petitioner was convicted in the District Court of the State of Kansas of Aggravated

Robbery, Kidnapping, two counts of Aggravated Battery, and Aggravated Burglary. A K.S.A.

22-3210 construed as a K.S.A. 60-1507 was appropriately made in that Court, and duly

appealed to the Kansas Supreme Court.

THE COURT OF APPEALS HAS DECIDED A FEDERAL QUESTION IN A WAY IN

CONFLICT WITH THE APPLICABLE DECISIONS OF THE COURT.

This is an ineffective assistance of counsel and coerced juvenile confession case.

"The Sixth Amendment guarantees a defendant the effective assistance of counsel at

'critical stages of a criminal proceeding,' including when [petitioner] enters a guilty plea."

Lafler v. Cooper, 566 U.S. 156, 165, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012); Hill V.

Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).

To be valid, a plea must both be voluntary and knowing. Boykin v. Alabama, 395 U.S.

238, 243, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). Petitioner "may only attack the voluntary

and intelligent character of the guilty plea by showing that the advice he received from

counsel was not within the constitutional standards established for effective assistance of

counsel." Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235

(1973). In the context of a guilty plea, petitioner "must show that there is a reasonable

probability that, but for counsels errors, he would not have pleaded guilty and would have

insisted on going to trial." Hill at 58-59.

Petitioner claimed that counsel should have but did not seek to suppress an

improperly obtained confession. Premo v. Moore, 562 U.S. 115, 118, 131 S. Ct. 733, 178 L.

Ed. 2d 649 (2011).

This Court has recognized that "[a] juvenile's inculpatory statement must be

voluntary and free from coercion or suggestion and must bot be the product of ignorance of

rights or adolescent fantasy, fright, or despair." In re Gault. 387 U.S 1, 55, 18 L. Ed. 2d 527,

87 S. Ct. 1428 (1967)

As set out in Strickland v Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct.

2052, reb. denied 467 U.S. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562 (1984), the Kansas district

court examined the totality of the circumstances to determine whether petitioner was

prejudiced by counsels errors. The district court concluded that: 1) petitioner was not

credible; 2) counsel was not ineffective for failing to pursue a suppression issue; 3) did not

think that the interrogation provided "such a cut-and-dry case"; 4) even if the confession

had been suppressed, the State would still have a strong case; and 5) petitioner would not

have insisted on going to trial.

In Fare v. Michael C., 442 U.S. 707, 725, 61 L. Ed. 2d 197, 99 S. Ct. 2560 (1979), this

Court has said, "[t]he totality approach permits

--

indeed, it mandates

--

inquiry into all the

circumstances surrounding the interrogation[,]" of a minor. This is not the case as the

district court failed to conduct such an inquiry in assessingthe validity and voluntariness of

a juvenile confession.

It is also settled that the truth of petitioner's admission of guilt does not remove

them from the protection of the privilege against self-incrimination for, "a defendant in ,a

criminal case is deprived of due process of law if his conviction is founded, in whole or in

part, upon an involuntary confession, without regard for the truth or falsity of the

confession, and even though there is ample evidence aside from the confession to support

the conviction." Lee v. Mississippi, 332 U.S. 742, 745, 68 S. Ct. 300, 92 L. Ed. 330 (1948).

In reaching its decision to affirm, the court below decided that those principles were

not to be applied to the case at bar because: 1) Counsel made a strategic choice not to

investigate suppression and pursuing a very favorable plea was reasonable; 2) petitioner's

interrogation was not a part of the record on appeal, therefore the district courts findings

were proper; 3) Counsel was not ineffective and petitioner would not have insisted on

going to trial; and 4) the Kansas Supreme Court issued an order by postcard denial.

Petitioner respectfully urge that all aspects of the decision are erroneous and at

variance with this Court's decision as explained in the argument below.

7

ARGUMENT FOR ALLOWANCE OF WRIT

I.

THE KANSAS COURT OF APPEALS ERRED IN AFFIRMING THE CONVICTION ON

THE BASIS OF AN UNREASONABLE APPLICATION OF STRICKLAND

The Kansas Court of Appeals affirmed the district court's decision in that counsel for

petitioner was not ineffective in failing to suppress. In the Court's decision it stated:

"Here, [counsel] made a strategic choice. Even if [counsel] did not make a full investigation

into the suppression issue, resonable professional judgment would support the limitation on

his investigation because [counsel] was working within the time constraints of the plea

negotiations. Either [counsel] could investigate and pursue a potentially unsuccessful motion

to suppress or he could work out a very favorable plea agreement that would accomplish

[petitioner's] goal of avoiding prison, the uncertainty of successfully pursuing a motion to

suppress coupled with the time-sensitive nature of the plea negotiations support the district

court's conclusion that [counsel] was not ineffective." See Exhibit B

This Court should be disinclined to accept the Kansas Court of Appeals invitation to

engage in after-the-fact rationalization of a litigation strategy that almost certainly was

never contemplated. It is this Court's holding that "courts should not conjure up tactical

decisions [that petitioner's counsel] could have made [to suppress] but plainly did not[,]"

Griffin v. Warden Md. Corr. Adj. Ctr., 970 F.2d 1355, 1358 (4 th Cir. 1992), regardless of the

time-sensitive nature of the plea negotiations.

The Sixth Amendment to the United States Constitution provides that "{i]n all

criminal prosecutions, the accused shall enjoy the right

.

.

.

to have the Assistance of

Counsel for his defence." And this right is the right to the effective assistance of counsel.

Strickland, 466 U.S. at 687.

In order to make the adversarial process meaningful counsel had a duty to

investigate all reasonable lines of defense. ffl at 691. In this case, the duty to investigate

8

-

exculpatory evidence. Hill, 474 U.S. at 59. If counsel was reasonable competent, then he

would have necessarily made a "full investigation into the suppression issue" and learn that

both Miranda and Edwards violations were present regarding petitioner's juvenile

confession before advising him to plead guilty. United States v. Barnes, 83 F.3d 934, 939

(71h Cir. 1996). (R. IX, 12, 15-16).

The record on appeal will reglect that counsel for petitioner on remand corrected

the trial court in that it was not petitioner's "goal [to avoid] prison [,]" rather that the

options petitioner had were either prison or probation because he had already confessed.

(R.X,34).

The Kansas Court of Appeals claims that there is uncertainty in whether the motion

to suppress would have been granted or not. And even if the motion to suppress was

granted, the state had built a case against the petitioner. True, that the state may have built

a case against the petitioner, but with a confession that incriminates the petitioner

suppressed, counsel would then have a duty, at the minimum, to hold the state "to its heavy

burden to prove guilt beyond a reasonable doubt." United States v. Cronic, 466 U.S. 548,

657 n.19, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984).

A motion to suppress would have rendered petitioner to not waive his male adult

prosecution, be tried as a juvenile, and insisted on going to trial. Petitioner's decision about

going to trial runs on his prospects of success and those were affected by counsel's errors

in that counsel should have but did not seek to suppress an improperly obtained

confession. Premo, 562 U.S. at 118. Counsel's failure to suppress was the decisive factor in

the petitioner's decision to plead guilty. Barnes, 83 F. 3d at 940. This isolated error is

sufficiently egregious and prejudicial enough to support petitioner's claim of ineffective

(9

dy

-

assistance. Murray V. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639,91 L. Ed. 2d 397 (1986).

This case at bar will show that the Kansas Court of Appeals unreasonable applied

Strickland and erred in affirming the district court because, for the above-mentioned

reasons, "[t]here is a reasonable probability that, but for [counsel's] errors, [petitioner]

would have insisted on going to trial." HilL 474 U.S. 59.

II.

THE KANSAS COURT OF APPEALS ERRED IN AFFIRMING THE CONVICTION ON

THE BASIS THAT THE JUVENILE CONFESSION WAS TRUE AND UNCOERCED

The district judge, after examing the interrogation, concluded that it was not so "cut-

and-dry[.]" The judge also found that after petitioner learned that he might be charged with

attempted murder, petitioner chose to confess. However, because "[n]either the emails nor

the interrogation are part of the record on appeal, [the Kansas Court of Appeals] must

presume that the district court's findings were proper. See Exhibit B.

The Fourteenth Amendment to the United States Constitution provides that "[n]o

State shall

.

.

.

deprive any person of life, liberty, or property, without due process of law."

Further, the Fifth Amendment, which applies to the States by virtue of the Fourteenth

Amendment, Malloy v. Hogan, 378 U.S. 1, 6,84 S. Ct. 1489,12 L. Ed. 2d 653 (1964), provides

that "[n]o person

.

.

.

shall be compelled in any criminal case to be a witness against

himself."

"This Court has held that the totality of the circumstances approach used to

determine the voluntariness of adult's confession is adequate for evaluating juvenile

confessions. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041

(1973). "[A] juvenile confession is not inadmissible merely because the person making it is

a juvenile; however, a juvenile's confession requires courts to use the 'greatest care' in

10

assessing the validity of the confession." In re Gault, 387 U.S. at 55.

This Court typically looks at the following nonexclusive factors when determining

whether a defendant's statement to the police was voluntary: (1) the accused's mental

condition; (2) the manner and duration of the interview; (3) the accused's ability to

communicate with the outside world; (4) the accused's age, intellect, and background; (5)

the officer's fairness in conducting the interview; and (6) the accused's fluency with the

English language." lii at 54.

Specifically, when evaluating the voluntariness of a juvenile's statement, this Court

considers "[t]he age of the juvenile, the length of questioning, the juvenile's education, the

juvenile's prior experience with police, and the juvenile's mental[.]" Id at 55.

Petitioner did not choose to confess merely because he might be charges with

attempted murder. The record on appeal will reflect that petitioner changed his mind

because, through his perspective, he was threatened as opposed to just changing his mind.

(R. XI, 21).

The Kansas Court of Appeals misstated the record in making this finding, a finding

that proves petitioner's Fifth Amendment rights were violated. A violation that is central to

his claim of ineffective assistance of counsel. This misstatement "factually undermine[d]

the fact-finding process, rendering the resulting factual finsing unreasonable." Byrd v.

Workman, 645 F.3d 1159, 1171-72 (loth Cir. 2011).

Although the emails and interrogation were not a part of the record on appeal, the

transcripts were and the analytical framework is clear: petitioner, a juvenile, "indicate[d]

prior to questioning, that he wishe[d] to remain silent," Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and "request[ed for] an attorney[,]" Maryland v.

11

Shatzer, 599 U.S. 98, 104, 130 S. Ct. 1213, 1219 (2010); quoting Edwards v. Arizona. 451

U.S. 477, 488, 101 S. Ct. 1880, 68 L. Ed. 378, but the Wichita Police Department failed to

scrupulously honor petitioner's request. Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321,

46 L. Ed. 2d 313 (1975).

Further, the Kansas Court of Appeals disregarded the factors pointed out by remand

counsel, not the district court, that petitioner: 1) was handcuffed to a table for four hours;

2) had no contact with the outside world; 3) was refused a bathroom break at least once; 4)

had no new reading of Miranda; 5) had no interval of time pass; and 6) was interrogated

about the same matter. (R. X, 77)

Also, petitioner, a seventeen year old during the interrogation, through testimony

provided that he had initialed "no" where the Miranda form stated whether he wished to

waive his right to remain silent. (R. X, 7-8). This invocation is sufficient to invoke the Fifth

Amendment. Tice v. Johnson. 647 F.3d 87, 107 (4th Cir. 2011); Weeks v. Commonwealth,

248 Va. 460, 450 S. E. 2d 379, 385-86 (Va. 1994).

It is true that the totality of the circumstances was conducted, but for the.

determination of the ineffectiveness of counsel. The totality of the circumstances

surrounding the voluntariness of petitioner's confession, a juvenile one, was absent. This

determination is of a different one than for ineffectiveness. Schneckloth, 412 U.S. at 226.

This Court mandates courts inquire into all the circumstances surrounding the

interrogation of a minor. Fare. 442 U.S. at 725.

Through the transcripts, the totality of the circumstances, was pointed out by

remand counsel, surrounding petitioner's juvenile confession, which was obtained through

coercive conduct of officers, after petitioner unequivocally invoked his right to remain

i2

silent, would render it inadmissible in a court of law under the holdings in this Court in

interpretation of the Fifth Amendment, as Article VI of the Constitution of the United States

provides in part as follows:

"This Constitution, and the Laws of the United States which shall be made in

pursuance thereof.. shall be the supreme law of the Land; and the Judges of every

.

State shall be bound thereby."

"In passing it should be noted that under this constitutional mandate the

interpretation placed on the decisions of the Supreme Court of the United States is

controlling upon state courts and must be followed. This we may add true regardless of

views of state courts even though such decisions are inconsistent with their prior decision."

Krouse v. Lowden, 153 Kan. 181, 109 P.2d 138, cert. denied 314 U.S. 633, 86 L. Ed. 508, 62 S.

Ct. 67, reh. denied 314 U.S. 7-10, 86 L. Ed. 566, 62 S. Ct. 174.

The U.S. Supreme Court cases of Miranda, Mosley, and Edwards are dispositive of

these issues.

The Kansas Court of Appeals passes on the confession issue because the emails and

interrogation were not a part of the record on appeal and ignores the rest of the remand

transcripts that proves violations of Fare, Miranda, Moslev. and Edwards.

This Court has ruled that whenever a state court identifies the correct legal principle

and then refuses to extend that principle to a context, in this case the juvenile confession

issue, is considered unreasonable, Williams v. Taylor. 529 U.S. 362, 407, 120 S. Ct. 1495

(2000), and contrary to the ruling in Goudy v. Basinger, 604 F.3d 394 399, (loth Cir. 2010).

III. THE KANSAS SUPREME COURT ERRED IN AFFIRMING THE CONVICTION ON

THE BASIS OF A POSTCARD DENIAL

13

1-

On August, 30, 2018, the Kansas Supreme Court failed to explain their denial of

petitioner's claims. The Kansas Court of Appeals cited case law and offered little rationale

and the Kansas Supreme Court simply denied petitioner's petition for review without

citation. This terse denial constitutes adjudication on the merits. Hunter v. Aispuro, 982

F.2d 344, 34748 (9th Cir. 1992).

Petitioner submits that the Kansas Court of Appeals acknowledged that a Miranda

violation was claimed but did not review the claim. Further, the mandate in Fare was not

applied in petitioner's case during review by the Kansas Court of Appeals. The Strickland

standard set by this Court was unreasonably applied as petitioner has mentioned above in

this writ. Williams. 529 U.S. at 407-408. The absence of applying clearly established federal

law, as determined by this Court, to the facts of the case at bar is objectively unreasonable.

Petitioner's merits and reasons as to his claims constitutes that there was no

reasonalbie basis for the state court to deny relief. Harrington v. Richter, 562 U.S. 86, 131 S.

Ct. 770, 784,178 L. Ed. 2d 264 (2011).

14

CONCLUSION

The judgment below is a unique departure from decisions of this Court that requires

the effective assistance for his defence in suppressing an involuntary juvenile confession

This Court further requires that convictions based on involuntary statements be set aside

at any time after conviction. As such, it represents a breach in the wall erected by the Fifth

amendment to the Constitution and the decisions of this Court that were designed to

protect a citizen from being convicted by the Government through the use of statements

involuntarily wrung from the citizen.

This Petition for Writ of Certiorari shoud, therefore, be granted.

Respectfully Submitted,

Danny Tran #98510, pro se

Ellsworth Correctional Facility

1607 State St.

P0 Box 107

Ellsworth, Kansas 67439-0107

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