Petition for Writ of Certiorari — Desmond Smith, Petitioner v. J. A. Terris, Warden

79 6 6

TN THE SUPREME COURT OF

THE UNITED STATES

Original Case No. 2:17-CV-10992GCS MLM

No. 17-1663

DEMOND SMITH,

Petitioner,

V.

J.A. TERRIS,

FILED

DEC 1 (12018

Respondent.

OFFICE OF THE CLER}c

SUPREME COURT. U

ON THE WRIT OF CERTIORARI TO THE

SIXTH CIRCUIT COURT OF APPEALS

PURSUANT PETITIONER'S 28 U.S.C. § 2241

RECEIVED

DEC 19 2018

QUESTIONS FOR REVIEW

Whether the ACCA's definition-of a "serious drug offense" imposes a sentence

enhancement or make an exception when a state's definition of "delivery and

manufacture" makes a match with its generic offense by its use of specified

means to satisfy its element without constitutional violations?

Whether the ACCA'imposes a sentence enhancement when a state's prior crime of

conviction criminalizes "attempt" and "delivery" disjunctively in satisfying

its relevant offense? Yet still create a match within the generic offense when

the conduct itself is criminalized under its statute to a five-year maximum

sentence without violating Petitioner's constitutional rights?

1

TABLE OF CONTENTS

.1

QUESTIONS FOR REVIEW

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

TABLE OF AUTHORITIES........................................................iii

CITATIONS OF OPINIONS AND ORDERS IN CASE......................................v

JURISDICTIONAL STATEMENT .................................. .................... vi

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED..............................vi

STATEMENT OF THE CASE.........................................................1

ARGUMENTS FOR ALLOWANCE OF WRIT...............................................9

CONCLUSION................................................................. ...23

APPENDICES............................ ....................................... 25

ii-

TABLE OF AUTHORITIES

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)

Curney v. United States, 2017 U.S. Dist. Lexis 76546 (6th Cir. 2017)

Desc.arnps v. United States, 133 S. Ct. 2276 (2013)

Haines v. Kerner, 404 U.S. 519, 520 L.Ed.2d 652 (1972)

Mathis v. United States, 136 S. Ct. 2243 (2016)

People v. Alexander, 188 Mich. App. 96, 469, N.W. 2d 10 (Mich. Ct. App. 1991)

People v. Beaudin, 417 Mich 570, 330 N.W. 2d 461 (1983)

People v. Brown, 163 App. 273, 413 N.W. 2d 766 (1987)

People v. Cook, 466 Mich. 503, 511 N.W. 2d 275 (1994)

People v. Edwards, 107 Mich. App. 767, 309 N.W. 2d 607 (1981)

People v. Johnson, 187 Mich. App. 621, 468 N.W. 2d 307 (1991)

People v. Kamin, 405 Mich. 482, 275 N.W. 2d 777 (1979)

People v. Maleski, 560 N.W. 2d 71, 220 Mich. App. 518 (1996)

People v. Marji, 180 Mich. App. 525, 447 N.W. 2d 835 (1989)

People v. Rhodus, 477 Mich. App. 1034, 727 N.W. 2d 608 (2007)

People v. Schultz, 246 Mich. App. 695, 635 N.W. 2d 491 (2001)

People v. Stapf, 155 Mich. App. 191, 400 N.W. 2d 656 (1986)

People v. Steele, 429 Mich. 13, 412,N.W. 2d 206 (1987)

People v. Tate, 134 Mich. App. 682 N.W. 2d 297 (1984)

People v. Wright, 74 Mich. App. 297 N.W. 2d 739 (1977)

Perry v. Werlich, 2018 U.S. Dist. Lexis 60693 (7th Cir. 2018)

Richardson v. United States, 526 U.S. 813 1 119 S. Ct. 1707 (1999)

Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 291 (1991)

Shepard v. United States, 544 U.S. 13 1 125 S. Ct. 1254 (2005)

Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143 (1990)

111

United States v. Glass, 701 Fed. App'x 108 (3rd Cir. App. 2017)

United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016)

United States v. Medkins, 866 F.3d 1136 (10th Cir. App. 2017)

United States v. Russello, 464 U.S. 16, 104 S. Ct. 296 (1983)

United States v. Tibbs, 685 Fed. App'x 456, 459 (6th Cir. 2017)

Wayne County Prosecutors v. Recorders Court Judge, 177 Mich. App. 762,

442 N.W. 2d 771 (1991)

18 U.S.C. § 921(a)(20)

18 U.S.C. § 922(g)

18 U.S.C. § 924(e) "Armed Career Criminal Act"

21 U.S.C. § 802(8)

28 U.S.C. § 1254(1)

28 U.S.C. § 2241

28 U.S.C. § 2255

Michigan Criminal Jury Instructions, Chapter 12

Michigan Compiled Laws 750.92 (attempt)

Michigan Compiled Laws 333.7105 (Appendix D ), definition of "delivery"

Michigan Compiled Laws 333.7106 (Appendix j ), definition of "manufacturing"

Michigan Controlled Substance Act 333.7401(1) and 333.7401(2)(a)(4)

iv

CITATIONS OF OPINIONS AND ORDERS IN CASE

Petitioner recently challenged the imposition of his federal sentencing

enhancement under the Armed Career Criminal Act pursuant to 28 U.S.C. § 2241.

In 2013, Petitioner plead guilty to being a felon in possession under 18 U.S.C.

§ 922(g), thus subject.to a 15-year minimum penalty under the ACCA (United

States v. Smith, 2:12-CR-20103'). Petitioner filed an appeal; the Sixth Circuit

dismissed the appeal as untimely (ECF No. 62). He thus petitioned the court in

the form of a Motion to Vacate his sentence under 28 U.S.C. § 2255, which the

court also denied (ECF No. 84). Smith thus filed a Motion to Amend or Correct

under Rule 59(e) (ECF No. 87), and also a Certificate of Appealability, which

also both were denied (ECF No. 94). The appeals court granted a COA for

Petitioner, and thus while pending, Smith sought to amend his 28 U.S.C. § 2255

to assert his newly based claims based upon Mathis v. United States, 136 S. Ct.

2243, 195 L.Ed.2d 604 (2016). The court construed it as a request for a second

and successive motion-(ECF No. 97). On March 13, 2017, the Sixth Circuit Court

of Appeals dismissed the request (ECF No. 99). Petitioner thus 'raised the

instant and same claim here as he did in the initial 28 U.S.C. § 2241 that in

this court decision, post-Mathis, it invalidates his sentence enhancement based

upon the non-qualifying prior predicate conviction of the Michigan statute

"unlawful delivery/manufacture."

Opinion and Order dismissing without prejudice the petition of Habeas

Corpus

-

Smith v. Terris, 2017 U.S. District Lexis 25966 (6th Cir. 2017)

Opinion and Order dismissing petition for Writ of Habeas Corpus

-

Smith

v. Terris, 2017 U.S. Dist. Lexis 73922 (6th Cir. 2017)

Order denying appeal of 28 U.S.C. § 2241

Lexis 2785 (6th Cit. App. 2018)

-

Smith v. Terris, 2018 U.S. App.

Order denying Petition for Rehearing and Rehearing En Bane

-

Smith v.

Terris, 2018 U.S. App. Lexis 19240 (6th Cir. App. 2018)

JURISDICTIONAL STATEMENT

The judgment of the U.S. Court of Appeals for the Sixth Circuit Court was

entered on February 2, 2018, regarding Petitioner's initial 28 U.S.C. § 2241.

Both rehearing and rehearing en bane petitions were filed with the court. See,

Smith v. Terris, 2018 U.S. App. Lexis 2785 and 2018 U.S. App. Lexis 19240 (6th

Cir. Appis. 2018). Petitioner thus invokes the jurisdiction i6f the Court under

28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

U.S. Const. Amendment VI

18 U.S.C. § 922(g), felon in possession

18 U.S.C. § 924(e), ACCA

Michigan CSA 333.7401(1) and 333.7401(2)(a)(4)

M.C.L. 750.92, attempt statute

U.S.S.G. H 4B1.1/4B1.2, Career Offender statute

vi

STATEMENT OF THE CASE

Course of proceedings in the 28 U.S.C. § 2241 case now before the Court.

In March of 2017, in a case pending in the U.S. District Court for the

Sixth Circuit, Petitioner, post-Mathis v. United States, 136 S. Ct 2243, 2016,

submitted a 28 U.S.C. §2241 stating his innocence of the ACCA enhancement due

to the unconstitutional imposition of the "modified categorical approach" leading

past the ten-year maximum sentence of 18 U.S.C. § 922(g). This was thus due to

the prior offense of (MCL 333.7401) delivery/manufacturing conviction no longer

qualifying as a "serious drug offense" and non-divisible as an element into the

generic offense to satisfy his sentence enhancement under the ACCA. The district

court thus forwarded to the Court of Appeals where Petitioner again reiterated

his issue in light of Mathis and the structured frameworks of the Fifth Circuit

Court of Appeals case precedent of United States v. Hinkle, 832 F.3d 569 (5th

Cir. 2016). He further petitioned the court to amend based on what he thus

discovered as the element of "attempted delivery" of the Michigan statutes to

thus be broader in its prior use to enhance Defendant past ten years. Petitioner

was thus denied February 2, 2018, both rehearing and rehearing en banc were

sought and no judge of panel rendered a vote in Petitioner's favor and was thus

denied July 12, 2018, where Petitioner states he is exhausting his final decision

to the hands of this Court, where he seeks through a Writ of Certiorari the

relief of the ACCA enhancement to a sentence at or thus under the ten-year

maximum of 18 U.S.C. § 922(i), felon in possession. Petitioner further humbly

requests the Court to review this Petition in a manner less stringent than if a

qualified attorney presented this motion, citing Haines v. Kerner, 404 U.S. 519 1

520 L.Ed.2d 652 (1972).

Relevant facts concerning the underlying unconstitutional conviction of

the ACCA.

1

Petitioner states that the conflict of interest lies in the Sixth Circuit's

opinion that the definition of a "serious drug offense" creates a match to the

Michigan Controlled Substance Act of "delivery/manufacturing" to create an

enhancement for the ACCA desite its unconstitutional use of "means" to satisfy

its elements. The Sixth Circuit's analysis of a qualifying prior predicate

offense for the ACCA inverts the statutory interpretation of Mathis and Descamps

in what Petitioner believes to be a non-bearing impact in that circuit in its

ability to distinguish elements from means in a definition's listings of a

serious drug offense. United States v. Mathis, 136 5. Ct. 894; 193 L.Ed.2d 788

(2016); also, Descamps v. United States, 133 S. Ct. 2276 (2013). Mathis plainly

and unmistakably leads to the conclusion that the definition of "unlawful

delivery/manufacturing" (333.7401(2)(a)(4)) as authoritatively interpreted by

Michigan "jury instructions" and "case law" sets forth various multi-theory

means of committing the offense and does not set forth separate disjunctive

elements of the offense. The longstanding principals of this Court in Mathis

states that, "in no uncertain term that a state crime cannot qualify as an ACCA

predicate if its elements are broader than those of a listed generic offense."

Taylor v. United States, 495 U.S. 602, 110 S. Ct. 2143, 109 L.Ed.2d 607. How a

defendant actually perpetrated the crime what we have referred to as the underlying "brute facts or means" of commission, Richardson, 526 U.S. 817, 119 S. Ct.

1707, 143 L.Ed.2d 95, makes no difference; even if his conduct fits within the

generic offense, the mismatch of elements saves him from an ACCA enhancement.

Petitioner further argued under the same structure and same basis of Mathis

and Descamps that Michigan courts treat its "delivery" elements in violation of

the generic offense of delivery or any listed serious drug offense by treating

its alternative elements as factual means, or as the state defines them as

multi-theory ways of committing the offense. It allows a jury to avoid any

2

discussion of the specific factual details of each violation which covers up a

wide range of disagreements amongst jurors about what the defendant did or did

not do and thus as discussed allows prosecution to prove multiple violations.

Schad v. Arizona, 501 U.S. 624, 115 L.Ed.2d 555. Petitioner states that the

relevant element of the offense of conviction "unlawful delivery/manufacturing"

of MCL 333.7401(1) creates an indivisible statute when the jury need not agree

on anything past the fact that the statute was violated. Any statutory phrase

that explicitly refers to multiple alternative means of commission must be

regarded as indivisible. And, only when the law requires that in order to

convict the defendant, the jury must unanimously agree that he committed a

particular substantive offense contained within a disjunctively worded statute

is a court able to conclude that the statute contains alternative elements and

not means. The Sixth Circuit further fails to realize or yet just acknowledge

that the alternate elements must create at least one category or form of an

offense that matches up to the elements of the generic federal offense in

question. After reading the stated facts, the Court will see that the listed

acts of delivery/manufacturing does not require the necessary "jury unanimity"

required and a person is charged with three multi-theories of committing the

broader offenses of delivery, that Michigan laws distinctively separate its

list of crimes into two categories in order to convict and determine the rights

of one person as far as jury unanimity goes in the court of law. Petitioner

states he has thus included authoritative sources of state law that shows

Michigan's application to the use of that statute includes a "general intent

crime" which under "delivery/manufacturing" offenses a jury need not find the

elements unanimously agreed upon to the finding of a single offense in its

statute and further use of the Michigan Criminal Jury Instructions for determining what has and what has not to be proven to convict under the listed prior

3

predicate offenses of "delivery/manufacturing", MCL 333.7401(2)(a)(4). Further

relevant facts concerning Petitioner's conviction is that the alternative

element of "delivery" itself criminalizes thus broader conduct than its generic

offense by its criminalizing the use of attempt (attempted delivery) and also

"sharing" based on facts that attempted delivery and sharing under Michigan's

laws disjunctively charge a defendant with separate elements to define and

satisfy its statutory definition of "delivery." Attempt is criminalized by its

own separate statute (750.92) and is subsumed in the definition of delivery and

when combines creates a maximum penalty of five years. To find that a state

statute creates a crime outside the generic definition of a listed crime in a

federal statute requires more than the application of legal imagiiiation to a

state's statute's language. It requiers a realistic probability, not a theoretical possibility, that the state would apply its statute to conduct that falls

outside the generic definition of a crime. People v. Schultz, 246 Mich. App.

695, 704, 635 N.W. 2d 491 (2001)(sharing a controlled substance in a social

setting can satisfy the delivery element); People v. Brown, 163 Mich. App. 273,

413 N.W. 2d 766 (1987). The court found that the statutory definition of delivery was satisfied by the social sharing of a drug, evidence of delivery was

sufficient to support a bind over. Petitioner factually believes the lower

courts applied the modified categorical approach without engaging in the two-part

analysis thus contravening this Court's repeated structure to consider the

elements of the offense. Mathis, 136 S. Ct. at 2252. Under Michigan law, a

defendant can be held liable for an attempt due to mere preparation or other

preliminary acts such as substantial steps toward completion of any crime that

constitutes "attempt"; but even then, all listed acts are means, nothing directly

categorized to any controlled substance act of Michigan law. Petitioner states

it could thus be concluded that Michigan delivery is not a categorical match

for the generic definition of delivery or any other listed offense.

4

Existance of Jurisdiction

III. Petitioner states that jurisdiction exists in the above matter sought

under U.S.C. §1254(1)(2), also under Part III Rule 10(a)(c) under the

jurisdiction on Writ of Certiorari, under what Petitioner believes to

be thus compelling reasons for review:

The Sixth Circuit Court of Appeals rendered an opinion in Petitioner's

28 U.S.C. § 2241 Habeas petition in a manner that conflicts with the structured

opinion in Mathis v. United States, 136 S. Ct. 2243 (2016), by rendering Petitioner's prior predicate offense as qualifying as a "serious drug offense" under

the § 924(e) ACCA enhancement by the relevant offense of the Michigan Controlled

Substance Act "unlawful delivery and manufacturing" where the Petitioner has

shown the state convicts a person under those listed offenses by the use of

alternative factual means of committing the offense under the scope of the

modified categorical approach, bearing a thus substantial conflict to Petitioner's

Sixth Amendment rights allowing him to be sentenced past the statutory maximum of

§ 922(g) to a sentence of ten years or less. The Sixth Circuit further opined

in the final decision of Petitioner's § 2241 that his offense of delivery qualifies as a predicate offense to support his ACCA sentence enhancement post-Mathis

based no upon Mathis, but United States v. Tibbs, 685 F. App'x 456, 459, 462-63

(6th Cir.), a case based upon the career offender advisory guidelines, U.S.S.G.

§ 4B1.2, allowing the Sixth Circuit to be still in violation of what is struc-

tured by the Court for properly applying the "modified categorical approach" to

determine under the definition of a serious drug offense if Petitioner's prior

predicate lawfully saves him from an enhanced sentence.

The Sixth Circuit court's application of the modified categorical approach

as instructed by the Court to determine an elements-or-means offense for determining what qualifies as a "serious drug offense" is very out of line with normal

5

judicial standards. Petitioner believes that Supreme Court instruction is

required being there lies no unified ruling that the Sixth Circuit is willing

to adopt outside its non-published opinion in Tibbs. The Sixth Circuit is in

conflictive error with Michigan state laws based upon how the authoritative

sources of law criminalize a vast majority of controlled substance offenses by

the use of means to satisfy the elements. The Sixth Circuit remains in a dispute

with the Fifth Circuit Court of Appeals in United States v. Hinkle, 832 F.3d

569 (5th Cir. 2016), which also defined an identical "delivery" element as being

overly broad by its use of means after Mathis and could not be applied to an

enhanced sentence. They further used the analysis of Mathis in determining that

the identically phrased statute used means and thus did not categorically match

under the instructed use of the modified categorical approach, rendering its

relevant offense broader than the generic offense, the exact basis of Petitioner's

§ 2241 surrounding his decision based upon Mathis and the analysis of Hinkle,

upon which Petitioner believes entitles the Court to the greater existance of

jurisdiction to instruct the lower courts on a unified decision of the categorical

finding of a "serious drug offense" under the § 924(e) ACCA enhancement, where

failure to do so he believes will continuously affect the fairness and reputation

of judicial proceedings of this Court.

IV.

The Court of Appeals has decided the federal questions in a way that - con-

flicts with the applicable decisions of the Court after Mathis being that Mathis

is based upon the correct application of the "modified categorical approach."

The Sixth Circuit seems to believe that not only Under the erroneous application

of the "modified categorical approach" but under the § 4B1.2 Career Offender

statute based on a non-published case law of United States v. Tibbs, 685 F.

App'x 456 (6th Cir. 2012), does Petitioner's prior predicate for the ACCA

1.1

enhancement for a "serious drug offense" qualify. See panel's opinion, Smith v.

Terris, 2018 U.S. App. Lexis 2785 (6th Cir. 2018). When compared to the definition of a "controlled substance offense" (§ 4B1.2), Petitioner states there

lies a difference of opinions and believe the Court will agree also with the

conflict of interest here where there lies a difference in theHstatutory definition of § 924(e) "serious drug offense" versus the guideline's definition.

In Tibbs, he attacks the Michigan Controlled Substance Act as a whole based upon

the inclusion of "create", thus made to say 333.7401 is not divisible and renders

it overbroad in relation to the guideline's definition of a "controlled substance."

Tibbs, ignoring the statutory definition of § 924(e)'s "serious drug offense",

gives comparison to what has also resulted in a circuit conflict to United

States v. Hinkle, 832 F.3d 569, 570, 576 (5th Cir. 2016), stating that as

Petitioner argues, the court reasoned that the relevant portion of the statute

was indivisible because the definition of "delivery" sets out various means of

committing the singular offense of delivering a controlled substance rather than

distinct elements of separate offenses, thus forth criminalizing a greater swath

of conduct under the "advisory guidelines career offender" provision, all which

was determined to be applied to the instructions of Mathis' court. The Tibbs

court states he cited no Michigan law declaring that the relevant portion of

333.7401 provides alternative means rather than elements and secondly acknowledges Hinkle's court addressed only the word "deliver" and its definition. The

conflict of the Sixth Circuit further lies right there where they believe Mathis

nor Hinkle has no affect on Tibbs, nor the determination of identifying a prior

predicate conviction under the definition of a "delivery" offense that would

categorically fit within the generic offenses. The panel's opinion marks a substantial departure from the Court's prior practice of the modififed categorical

approach, resulting in an incorrect outcome when determining the qualifying

7

offenses of a serious drug offense. Other circuits themselves have adopted

Hinkle's decision for applying the relevant element of a state statute agreeing

that Mathis is controlling in its use of identifying a "controlled substance" or

"serious drug offense" even under the Career Offender Statute and Mathis is an

ACCA offense. United States v. Madkins, 866 F.3d 1136 (10th Cir. App. 2017);

United States v. Glass, 701 Fed. App'x 108 (3rd Cir. App. 2017); Perry v.

Werlich, 2018 U.S. District Lexis 60693 (7th Cir. 2018); United States v. Thomas,

886 F.3d 1274 (8th Cir. App. 2018). Under Curney v. United States, 2017 U.S.

Dist. Lexis 76546 (6th Cir. App. 2017), the Sixth Circuit recognized the same

argument that Petitioner has- been arguing that the Hinkle court concluded that

the method used to "deliver" a controlled substance was a means, not an element,

of the offense used to commit the Texas crime. And that the Hinkle court held,

due to 'a mismatch of elements, his conviction criminalizes a greater swath of

conduct. They acknowledged that the Hinkle decision rested upon the Texas

definition of "delivery" compared to the generic federal definition but its

further use of means. (Petitioner cites the same opinion of court in Tibbs,

685 Fed. App'x 456) Petitioner states that the Sixth Circuit Court of Appeals

and district courts have a continuing and erroneous understanding of the law for

a prior predicate for the use of an ACCA enhancement past the statutory maximum

of felon in possession. Petitioner states that the fact that neither courts has

stated - any authoritative case law or opinion directed precisely to Petitioner's

arguments regarding the ACCA, being that no circuit can overturn another circuit's

opinion or case precedent other than the circuit itself or the Supreme Court

itself, Petitioner humbly pleads and prays the Court vacate and remand

Petitioner's sentence and remand to the lower court with an instructed opinion

thus identifying the merits of Petitioner's claim as to his Sixth Amendment

violation by the state's use of means to satisfy its elements, based upon

Mathis v. United States, 136 S. Ct. 2243 (2016).

Lii

Lii

ARGUMENTS FOR ALLOWANCE OF WRIT

Ground One

I.

The Sixth Circuit Court of Appeals erred in allowing the affirmation of

Petitioner's conviction of "delivering/manufacturing" on the basis that they

allowed outside the ACCA § 924(e)'s definition of a "serious drug offense"

an exception to the qualification of its statutory rules by performing an

erroneous modified categorical approach resulting in an enhancement past the

ten-year statutory maximum of 18 U.S.C.: § 922(g). The use of Petitioner's

prior predicate convictions by itself stands to be non-qualifying and thus

unconstitutional in its use under the ACCA's definition of a "serious drug

offense." The relevant offense of conviction delivery/manufacture under

Michigan's Controlled Substance Act statute lists multi-theories (means) of

satisfying its alternative element knowingly or "unlawful delivery" based upon

the opinion of Mathis v. United States, 136 S. Ct. 2243 (2016), under its list

of related crimes, Congress urges courts to compare in this matter to the

elements of the federal generic offense of "delivery." Petitioner's prior

offense of "delivery" lists the same exact list of elements the generic offense

lists: "the actual, constructive or attempted transfer[.]" The relevant offense

of the Michigan statute when compared consists of "means" to satisfy its element., This Court in Mathis stated in a statutes listing of "means" the relevant

offense is:thus to be considered broader in comparison to a federal generic

statute. Petitioner states to solidify the elements of "unlawful delivery/

manufacturing.')

' 18 U.S.C. § 921(a)(20) states that what constitutes a conviction

for a crime under § 924(e) shall be determined in accordance with the laws of

the jurisdiction in which the proceedings were held (emphasis). Petitioner

followed by the opinion of Mathis distinctly deferred to state laws in determining that his conviction for "delivery" did not apply to an ACCA enhancement,

along with the alternative element of "manufacturing." Elements are the constituent parts of a crime's legal definition

--

the things the prosecution must

prove to sustain a conviction. At trial, they are what the jury must find

beyond a reasonable doubt to convict the defendant. Citing, Richardson v.

United States, 526 U.S. 813, 119 S. Ct. 1707 L.Ed.2d 985 (1999). As found in

Mathis' reversal of his enhancement, Petitioner firmly argues that to satisfy

the generic element of "delivery/manufacturing" at a trial, a defendant has no

constitutional right to "jury unanimity" and thus under federal law its prior

does not entitle Petitioner to an enhanced sentence nor does it categorically

qualify under the ACCA's definition of a "serious drug offense." To apply as

aLcategorical offense to the enhancement, the court must focus on whether the

elements of the crime of conviction sufficiently match the elements of generic

delivery only with the use of authoritative sources of state law or thus Shepard

documents. See, Shepard v. United States, 544 U.S. 13,125 S. Ct. 1254, 161

L.Ed.2d 205 (2005). Also, Descamps, where the court found that his conviction

rested upon facts satisfying the elements of the generic offense. The court

thus allowed the permitting of consulting extra-statutory documents, but only

to assess whether the defendant was convicted of the particular statutory definition that corresponds to the elements of the generic offense. Descamps v.

United States, 133 S. Ct. 2276, 2281 (2013).

Jury Unanimity

Post-Mathis' interpretation statutorily of a court's use of the modified

categorical approach and determination of elements and means, M.C.L. 333.7401(1)

does not allow "delivery/manufacturing" to list multiple elements disjunctively

leading to the separate criminalizing of crimes, but the fact legislatures chose

to enumerate factual means of committing the alternative elements saves Petitioner

from an enhancement. See, Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491 (1991).

10

Michigan law requires the prosecution to prove all the elements of "delivery/

manufacturing" separately to a jury, that all essential elements to the crimes

listed have been proven beyond a reasonable doubt. Petitioner states he does

now as he did for the lower courts, provide a list of authoritative sources of

state law to allow the court to readily determine the nature of Michigan's

alternatively-phrased list of statute's factual means of satisfying the delivery element by use of cited case laws of Michigan courts and Michigan Criminal

Jury Instructions. The court in People v. Maleski, 220 Mich. App. 518, 560

N.W. 2d 71, 1996 (Appendix A), when it gave jury instructions that states it

relies upon legislature's distinction in criminal cases by its use of "specific

intent crimes" where it involves a particular criminal intent beyond the act

done meaning it has separate elements to be found by a judge or jury beyond

reasonable doubt. While delivery is a "general intent" crime that involves

merely to just do the intended physical act, meaning a jury has no reason to

agree on which act of transference of a controlled substance was committed.

See, People v. Beaudin, 417 Mich. 570, 339 N.W. 2d 461 (1983). The court thus

stated in People v. Edwards, 107 Mich. App. 767, 309 N.W. 2d 607 (1981); also,

People v. Steele, 429 Mich. 13, 412 N.W. 2d 206; that "any act of transference"

found satisfies the element of unlawful delivery. The same court thus ruled

in People v. Tate, 134 Mich. App. 682, 352 N.W. 2d 297 (1984), that there was

no manifest injustice where defendant sustained a conviction for delivery under

the instructions of a "general intent crime." As a '-listed offense of M.C.L.

333.7401(1), a defendant is not charged before a jury with separate elements

of a crime, but merely three separate theories (means) of satisfying the broader

than the generic offense's elements. Elements at trial are what the jury must

find beyond a reasonable doubt to convict a defendant, thus elements are the

constituent parts of a crime's legal definition. In particular, "means" need

neither be found by a jury nore admitted by a defendant. And, in no uncertain

11

terms, a state crime cannot qualify as an ACCA predicate if its elements are

broader than those of the listed generic offense. Richardson v. United States,

526 U.S. 813, 143 L.Ed.2d 985 (1999). A state offense is a categorical match

with a generic federal offense only if a conviction of a state offense would

necessarily involve proving facts that would establish a violation of the generic

federal offense. When a state criminalizes offenses that fall outside the federal

generic definition; there is not a categorical match. Unlawful delivery instructs

nothing as Maleski describes in its definition or the provision provided to a

jury regarding any part of the actor's intent to be proven as an element apart

from the act of delivery. Notice Criminal Jury Instructions, Chapter 12,

Appendix B, under "Unlawful Delivery of a Controlled Substance" (CJ12d 12.2),

the judge is to inform the jury in No. 7 that "delivery" means that a defendant

transferred or attempted to transfer the substance to another person. The mere

use of the disjunctive "or" in the definition of a crime does not automatically

make or render it divisible. Only when the law requires that in order to convict

the defendant, the jury must unanimously agree that he committed a "particular

substantive offense" contained within the disjunctively-worded statute are we

able to conclude that the statute contains alternative elements and not means.

The alternative elements must create at least one category or form an offense

that matches up to the elements of the generic federal offense in question.

The distinct instructions of "unlawful manufacturing" (CJ12d 12.1) state that an

allegation of manufacturing is acquired by its list of "specific acts" being

more than one equal to a statute's means. Defendant Rhodus (People v. Rhodus,

477 Mich. 1034, 727 N.W. 2d 608 (2007) was thus convicted under the "general

intent" acts of M.C.L. 333.7401 under its relevant elements of "delivery/manufacturing" (See Appendix C). The court thus ruled "jury unanimity" is not

required with regard to the alternate theory. Reliance upon this opinion is

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based upon People v. Cooks, 466 Mich. 503, 511 N.W. 2d 275 (1994), where it was

stated, "a trial court is not required to give a more detailed (specific)

unanimity instructions merely because a single charge could be based on more

than one underlying event." The critical inquiry is whether either party has

presented evidence that materially distinguishes any of the alleges multiple

acts from the others. In other words, where materially identical evidence is

presented with respect to each act, and there is no juror confusion, a "general

unanimity" instruction will suffice. (Id. at 512-513) Being that the statute's

CSA 333.7401 lists multi-theory statutes, the Cooks court found them to be analytically distinct and falls actually in compliance with Richardson and Mathis

courts that when a statute lists alternative means of committing an offense which

in and of themselves do not constitute separate and distinct offenses, jury

unanimity is not required with regard to the alternative theory. Cooks, supra

at 515 n.16(quoting People v. Johnson, 187 Mich. App. 621, 468 N.W. 2d 307 (1991).

If the court looks at the other listed offense of "possession with intent to

deliver," it distinctively prescribes that offense to be proven with a "specific

intent." See, CJ12d 12.3 (use note 3)(Appendix B) noting a prosecutor must prove

an element beyond the mere act of "delivery." Upon a peek of the documents, it

should be clearly established that Michigan's drug statute lists "delivery/

manufacturing" as a "general intent" crime, and under state law proven to not be

categorically divisible into the federal generic offense due to legislature's

choice of means to satisfy its alternative elemetns in a jury trial. Petitioner

further inverts the matter of opinion of the lower courts when they stated the

Hinkle case has no bearing affect on Tibbs' case law precedent for the Sixth

Circuit. Well at a peek of the jury instructions, even as Hinkle was invalidated by the broader means of "offering to sell," a further peek at CJ12d 12.2

"unlawful delivery" instructions commentary, it verifies that the alternative

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element of 'M.C.L. 333.7401 can be satisfied by [sharing] the. social, sharing of

a drug. When the defendant gave drugs to a prostitute for sex, it stated evidence of delivery was satisfied to support a conviction." See, People v. Brown,

163 App. 273, 413 N.W. 2d 766 (1987). Petitioner also enlightens the Court

again with authoritative law showing the element of the offense further criminalizes a broader swath of conduct if you look at the Court of Appeal's decision

in People v. Schultz, 246 Mich. App. 695, 704, 635 N.W. 2d 491 (2001), where it

again was thus decided that "sharing of a controlled substance in a social setting

can also satisfy the delivery element." Petitioner states that he has shown a

clear as any indication that each alternative that was used to enhance him lists

only possible means of committing those crimes, not an element that a jury must

find unanimously. Between the documents shown and state law, it should be thus

granted relief from the ACCA enhancement whereas if not as stated by the Court,

it refuses to introduce inconsistency and arbitrariness into the ACCA qualifications, and Petitioner humbly asks that this Court continue to follow its

requirements under the opinion of Mathis and state law to a sentence without an

ACCA enhancement, whereas failure to do so will continuously result in an error

sufficiently grave to be deemed a miscarriage of justice or a fundamental defect.

Imposing Violations of Sixth Amendment Rights

Petitioner firmly believes that this illegal imposition of the modified

categorical approach by the use of a prior predicate offense of the.ACCA's

criminalizing a broader swath of conduct imposed by the Sixth Circuit's erroneous

understanding of the law in its ability to separate means from elements in a

statute brings into a violation of his Sixth Amendment rights under Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000). The only

approach allowed for use of the modified categorical approach was to determine

what crime with what elements played a part disjunctively, and to allow nothing

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more than to determine if a jury necessarily had to find each element of the

offense of delivery/manufacture and not as a means for discovering facts or

means that possibly could have satisfied the elements of a generic offense.

Descamps v. United States, 133 S. Ct. 2276 (2013). A further violation of the

Petitioner's Sixth Amendment rights was developed by the courts when they used

in their opinion to affirm his conviction for an ACCA enhancement, they used

the non-qualifying application of the Career Offender Statute's § 4B1.2 definition of a controlled substance to satisfy lower courts' use of the modified

categorical approach of the § 924(e)'s definition of Petitioner's listed

non-qualifying "serious drug offense." Under the guidelines manual (2012 Nov. 1),

looking at the Armed Career Criminal § 4B1.4, it specifically states at commentary application note 1: "It is to be thus noted that the definitions of 'violent

felony' and 'serious drug offense' in 18 U.S.C. § 924(e) are not identical to

the definitions of 'crime of violence' and 'controlled substance offenses' used

in § 4B1.4 (Career Offender) ." The lower courts apply their own two-step

categorical approach: (1) the court identifies the state offense in its list of

elements as the whole statute (333.7401(1)); (2) it then thus identified either

the "serious drug offense" or "controlled substance offenses", then determines

the two matches categorically if they have the same listed offenses and says it

is thus considered to be divisible and thus the elements of the offense of conviction are the same as or narrower than the generic offenses. Sixth Circuit

seems to support an inferrence that Congress intended the sentencing courts to

look only in reference to the § 924(e) enhancement based upon a person whom

has committed three serious drug offenses rather than being convicted of three

serious drug ofenses. To be "convicted" rather than "committed" means a crime

falls within certain categories by its use of matching elements of the offense

of conviction not matching Controlled Substance statutes list of offenses,

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leaving Petitioner as he previously stated, in violation of his Sixth Amendment

rights. Even further, when a court refuses to look into the statutory definition of a prior offense to determine whether a jury was actually required to

find all the elements of a prior offense and compare them to the elements of

the generic offense under Taylor v. United States, 109 L.Ed.2d 607, 495 U.S.

575. Taylor gives cause in the matter to mean as to "delivery"

-

the offense

relevant in this case. Congress meant a crime "containing the following

elements: actual, constructive or attempted transfer." The court must focus

solely on whether those elements of the crime of conviction sufficiently match

those listed elements of "generic delivery" while ignoring the particular facts

of the case. The fact that the crime of Petitioner's conviction covers • more

conduct than the generic offense, it is not an ACCA "delivery or manufacturing"

even when delivery's actual conduct is listed within the generic offense's

boundaries.

Ground Two

II. The Sixth Circuit Court of Appeals erred in allowing the district court

to use a non-qualifying prior predicate offense proven to be broader than the

elements of a generic offense in order to apply a sentence outside the ACCA's

meaning of a "serious drug offense." Petitioner relies on Mathis v. United

States, 136 S. Ct. 2243, stating that under Michigan state laws, "unlawful

delivery" (M.C.L. 333.7401(2)(a)(4)) serves as an unqualifying statutory

predicate offense under the federal generic version of the definition of

delivery, due to the facts that the Michigan statute criminalizes conduct that

is not included within its generic definition. This Court stated in Apprendi,

"If statutory alternatives carry different punishments, then they must be

elements." Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). A

prior crime also qualifies as an ACCA predicate if, but only if, its elements

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are the same as or narrower than those of the generic offense; and, in no

uncertain circumstances can a state crime' qualify as an ACCA predicate if its

elements are broader than those of a listed generic offense, even if his conduct

fits within the generic offense. The mismatch of elements saves the Petitioner

from an ACCA enhancement. Taylor v. United States, 495 U.S. 575, 110 S. Ct.

2143 (1990); also, Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707

(1999). Under Michigan law, "knowingly deliver" criminalizes "attempted delivery"

of an element that creates two distinct, separate offenses in its own category.

When comparing the state offense to the generic element of "delivery", 21 U.S.C.

§ 802(8) or § 924(e), in their definitions they do themselves criminalize

attempt" as a separate and distinctive offense leading to the separation of

crimes. Michigan's statute M.C.L. 750.92 of attempt offenses has a penalty of

its own elements of the offense to a five-year maximum penalty. The broader

element of "attempt" is subsumedin its Michigan definition of "unlawful delivery."

"Attempt" is a Broader Swath of Conduct

To understand the broadness of its elements, Petitioner seeks to break

down his analysis of his petition by starting with the meat of his argument

based upon the qualifications of the ACCA enhancement under its qualifying

definition of a"serious drug offense" 18 U.S.C. § 924(e)(2)(a)(2), stated in

its three qualfying parts:

An offense involving manufacturing, distributing, or possessing

with intent to manufacture, or distribute a controlled

substance (as defined in Section 102 of the Controlled

Substance Act (21 USC 802)) for which a term of ten years or

more is prescribed by law.

Title 18 U.S.C. § 921(a)(20) states the initial qualification of a

conviction to qualify for an enhancement of the ACCA: "What constitutes a

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conviction of such a crime shalt be determined in accordance with the laws of

the jurisdiction in which the proceedings were held." Relating to Michigan

laws first off, there ties not any listed or enumerated offense for "attempted

delivery" as being an element or as "involving" a controlled substance act

under law. Second, "attempt" (750.92) is not defined anywhere in 21 U.S.C.

§ 802 where Michigan law not only defines by lists its elements of attempt (See

MCL 750.92). Third, "attempt" nor "attempted delivery" under state law is

prescribed a maximum term of ten years or more, but is penalized to a five-year

maximum. Wayne Co. Prosecutor v. Recorders Court Judge, 177 Mich. App. 762,

442 N.W. 2d 771 (1989); also, People v. Kamin, 405 Mich. 482, 275 N.W. 2d

777 (1979). To identify its broader element of "delivery", Petitioner implicates that Michigan's element "attempted delivery" in itself is listed as two

separate elements that lead toward reasonable inferences of identifying the

single element of "knowingly deliver." Fact being that a convictino for

"attempted deliver" can be obtained under the Michigan statute, it was argued

firmly by Petitioner that prosecution must prove each element beyond a reasonable

doubt, but if the question arose at trial by a jury's lack of understanding to

each element or conduct performed by one defendant regarding "attempted delivery,"

the court would be forced by law to read to the jury the broader elements of

M.C.L. 750.92 "attempt" disjunctive from "delivery", and that is not how that

element is described in the generic version of delivery's definition. Petitioner

satisfies that theory with Michigan case law (emphasis), People v. Alexander,

188 Mich. App. 96, 469 N.W. 2d 10 (Mich. Ct. App. 1991), where a jury asked

"whether the conduct of delivery by a third party was considered a delivery?"

The appeals court stated that the court properly responded by reading the

statutory definition of the "attempted" statute disjunctively with "delivery."

Right there alone invalidates further use of the modified categorical approach

and further prevent any further violation of Petitioner Smith's Sixth Amendment rights. The lower court was right to no longer be allowed to go any

further to determine if Petitioner was convicted of "knowingly deliver" as

he states it is but yet a non-qualifying element of the ACCA's definition of a

"serious drug offense." For the "attempt" statute, M.C.L. 750.92, to not be

considered broader under the generic definition, Congress would have had to

list "attempt" as a separate offense or criminalized it separately from its

generic definition, but only if it was their intent. Congress tied the ACCA's

harsh mandatory minimum sentence to state offenses "involving" manufacturing,

distributing, or possession with intent to manufacture or distribute a controlled substance. Michigan's "attempt" statute is saying nothing in its

definition other than the commission of a crime, none specific to "involving"

of a controlled substance act under Michigan law and especially of a "serious

drug offense." Nothing states Congress intended the ACCA's statutory phrase to

sweep broadly enough to encompass conduct for which "attempt" disjunctively

criminalizes its element, nor penalizes disjuctively to a maximum term of ten

years or more, f orbit the facts that "attempted delivery" of the Michigan statute

falls in the generic definition, as a standing factor to a serious drug offense,

under federal laws "attempted delivery" is read conjunctively as a separate

crime or alternative element used to satisfy the element of its offense "delivery."

But, under state law, "attempt" is subsumed under its definition of "delivery"

and considered as two separate elements that when read conjunctively act as none

other than a means of satisfying its element of the offense, thus proven to be

as "criminalizing a broader swath of conduct" than the ACCA's generic version.

There lies no other constitutional way to compare the two offenses, if Congress

thought enough to include it as a separated element or enumerated offense of

distribution, it very well could just as it did in 18 U.S. .0 § 924(e)(2)(a)(1) in

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its definition of crimes of violence. As stated in prior opinnions of United

States v Russello) 464 U.S. 16 1 104 S. Ct. 296 (1983), where Congress

includes limiting language in one section of a statute but omits it in another

section of the same statute. It is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion. And, thus,

as the statute 18 U.SC. § 924(e)(2)(a)(1) & (2) is read together, the courts

other cited opinion should thus apply when said; "it refused to conclude that

the 'differing language' in two statutory provisions has the same meaning."

Thus stated by Petitioner when the statutory provisions are read together, it

states nothing indeterminate of either statute criminalizing its use of "attempt

offenses" or the element of "attempted delivery." To classify attempt by itself

in a statute as a whole versus the state's classification as a separate distinctive offense would render Congress's intentions vague or thus as this Court

said just that: "What they say is what they mean." The fact that Congress

declined to use the inclusion of "attempt" elsewhere other than § 924(e)(2)(B)(2),

Taylor and Descamps order the court to see if a person could be convicted for

conduct that would not qualify under the ACCA enhancement. Taylor v. United

States, 495 U.S. 575, 109 L.Ed.2d 607 (1990); also, Descamps v. United States,

133 S. Ct. 2276, 186 L.Ed.2d 438 (2013). Michigan law does state that the

offense of "attempted delivery" may be charged only by reference to M.C.L.

Section 333.7401 in conjunction with its statute in order to convict with.

People v. Marji, 180 Mich. App. Ct. 525 N.W. 2d 835 (1989); also, People v.

Wright, 74 Michigan App. 297 N.W. 2d 739 (1977). There is no general or simple

charge of "attempt" to commit any illegal acts. (emphasis) People v. Stapf,

155 Michigan App. 191, 400 N.W. 2d 656 (1986); People v. Kamin, 405 Mich. 482,

275 NW. 2d 777 (1979). Michigan's (750.92) attempt statute is not a divisible

statute, nor does it list separate elements of an offense by definition nor is

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it comprised of multiple alternative elements or versions of the crime so that

the modified categorical approach version applies to it as an offense involving

a serious drug offense. A statute is divisible "only if at least one of the

categories in which the statute may be divided constitutes 'by its elements' an

offense involving a seriosu drug offense." No single category of attempt constitutes by its elements nor by its penalty to a five-year maximum sentence as

a serious drug offense. It does not set forth a stand alone crime, the crime

of attempt does not exist in the abstract but in the relation to other unrelated

drug offenses also. It would be thus imprudent to analyze the statutory language

in complete isolation, whereas here Defendant was convicted of the "delivery"

statute which among it subsumes by state law the generic "attempt" statute which

embraces all substantive crimes outside a serious drug offense. So, to determine

whether under the Mathis approach an "elements only inquiry" the Court must

determine whether attempt qualifies as a serious drug offense. Petitioner asks

the Court to keep in mind that Congress stated the wording "involving" as defined

in Section 102 and carries a ten-year maximum or more, but Section 102 lacks a

definiiiion of "attempt" in its use of a serious drug offense. It can never

categorically comport with the terms of an ACCA predicate offense in comparing

attempt to a non-existing definition of a serious drug offense; and, secondly,

identifying it as a categorical match for the ACCA, given its critical analysis,

the Court should see that the subsumption of the offense can be determined to

sweep more broadly than-the generic offense by its criminalizing of broader

elements in its defition Mathis v. United States, 136 S. Ct. 2243 (2016);

also, Descamps v. United States, 133 S. Ct. 2276, 186 L.Ed.2d 438 (2013).

See definition of Attempt.

21

Attempt to Commit a Crime

Any person who shall attempt to commit an offense prohibited

by law shall and in such manner attempt or shall do any acts

toward the commission of such offenses but shall fail in the

perpetration or shall be interrupted or prevented in the

execution of the seine when no express provision is made by

law for the punishment shall be punished under MCL 750.92.

Petitioner thus humbly seeks reversal of the Sixth Circuit's opinion

and seeks a sentence at or below the statutory maximum of ten years under

18 U.S.C. § 922(g), remand with further proceedings overturning the court's

prior decision in Tibbs based upon facts shown under Mathis, 136 S. Ct. 2243,

that the Michigan statute of "unlawful delivery" MCL 333.7401(2)(a)(4) is no

longer a qualifying predicate offense that satisfies the definition of a

"serious drug offense" resulting in Petitioner's enhancement, whereas failure

to do so will result in a continuous miscarriage of justice on the Defendant.

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CONCLUSION

In conclusion, Petitioner states that the Court of Appeals for the Sixth

Circuit states that he has not shown how he has benefitted from Mathis. He

begs to differ and hopes this Court sees the continuous ongoing manifest

injustice being further in violation of his Sixth Amendment by the unqualifying

use of a prior predicate conviction used to enhance Petitioner under the ACCA.

The alternatively-phrased statute of Michigan 333.7401(1) lists the alternative

elements of "delivery/manufacturing" each one defining one crime with alternative elements broader than the definition of its generic offenses of a

"serious drug offense" by its use of specified "means" (multi-theories) of

fuilfilling its acts and not disjunctively having elements to satisfy its

generic definition. A statute's listing of disjunctive means does nothing to

mitigate the possible unfairness of being an increased sentence enhancement on

something not legally necessary to a prior conviction. And, for these reasons,

the lower cort erred in applying the modified categorical approach to determine

by the use of means which offense Petitioner committed under delivery/manufacture. Petitioner thus stresses the fact that the Sixth Circuit continuously

uses the inapplicable case precedent of United States v: Tibbs, 685 F. App'x

456, 459 (6th Cir. 2017), an uiripunlished opinion that based upon either the

Armed Career or the Career Offender statute. His argument still invalidates

the opinion of Tibbs as ruling that certain elements of MCL 333.7401(1)

qualifies for an enhancement after Mathis. He states that only a court of its

own jurisdiction can overturn its case law or the Supreme Court where Petitioner has shown that the Michigan statute criminalizes broader elements of

"delivery/manufacturing." He asks of this Court to exercise Its judicial power

in the matter where Petitioner believes the Sixth Circuit, even under review of

Mathis, will still stand on its belief that Tibbs overrules Mathis and Hinkle

only as a judicial reference to the same exact statute and merits of Petitioner's

23

argument will still result in an unresolved circuit conflict or split where

thus failure to do so will lessen the results of his request to the reverse

and remanding of his sentence to one at the advisory guidelines of 18 U.S.C.

§ 922(g) of ten years or less where failure to do so will result in the

continuing violation of his Sixth Amendment rights.

Respectfully submitted,

Demond Deshon Smith

Reg. No. 46678-039

F.C.I. Elkton

P.O. Box 10

Lisbon, OH 44432

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