Petition for Writ of Certiorari — Corinthian Bostic, Petitioner v. United States

CORINTHIAN BOSTIC

PETITIONER

-

(Your Name)

vs.

UNITED STATES OF AMERICA

RESPONDENT(S)

-

ON PETITION FOR A WRIT OF CERTIORARI TO

ELEVENTH CIRCUIT OF APPEALS

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

PETITION FOR WRIT OF CERTIORARI

CORINTHIAN BOSTIC

(Your Name)

F.C.I.

(Address)

JESUP, GA 30359

(City, State, Zip Code)

(Phone Number)

QUESTIONS PRESENTED

Did the pre-trial judge abuse its discretion by denying Bostic's appointed attorney's motion to

withdraw where Bostic and his trial counsel had a conflict of interest?

During a pre-trial hearing, did the judge err by not informing the defendant of his right to

appeal when the motion to withdraw was denied?

Did pre-trial judge violate Bostic's fifth amendment right to due process by denying justice to

the poor when he stated "If you were a wealthy man, you could have as many lawyers as you

could persuade to come into it. But we have protection for those who are indigent. We choose

lawyers for them.

Was ineffective assistance, rendered when the trial attorney withdrew the motion to suppress

rather than comply with the judge's order?

Did Bostic's trial counsel provide ineffective assistance by not giving a reason for

withdrawing the motion to suppress, and if a reason was provided, was the reason valid?

Who has the right to continue with the suppression motion, the attorney or the defendant?

Did Bostic's trial attorney provide ineffective assistance by failing to request court records

and transcripts pertaining to his case from the lower courts?

Did the trial counsel provide ineffective assistance when he did not comply with the

defendants request to appeal for a new trial?

Was the defendant's fifth amendenment right to due process violated when his trial attorney

failed to inform him before trial that he would be charged until the Armed Career Criminal Act?

Did the appellant attorney err by not filing a reply to the government's brief?

Os....

S..

LIST OF PARTIES

I All parties appear in the caption of the case on the cover page.

All parties do not appear in the caption of the case on the cover page. A list

of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

BOSTIC CORINThIAN, APPELLANT

CHRISTINE, BOBBY L ,UNITED STATES ATTORNEY

DURHAM, JAMES D. ,FORMER ASSISTANT UNITED STATES ATTORNEY

GREENWOOD, NANCY C ,ASSISTANT UNITED STATES ATTOR

NEY

*

MATEO ,MARCELA C ,ASSISTANT UNITED STATES ATTORNEY

MOCK, JR. ,ROBERT M. ,FORMER ATTORNEY FOR APPELLANT

MOORE,JR., HON .WILLIAM T. ,UNITED STATES DISTRICT JUDGE

PATRICK, BRADFORD C. ,ASSISTANT UNITED STATES ATTORNEY

RAFFERTY,BRIAN T ,ASSISTANT UNITED STATES ATTORNEY

SMITh,RON.G.R.UNITRD STATES MAGISTRATE JUDGE

TANNER,R..BRIAN,ASSISTANT UNITED STATES ATTORNEY

TARVER, EDWARD J. ,FORMER UNITED STATES ATTORNEY

WINCHESTER, MATTHEW K. ,ATTORNEY FOR APPELLANT

1

*00

TABLE OF CONTENTS

OPINIONS BELOW...............................................................................................................1

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

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

STATEMENTOF THE CASE...............................................................................................6

REASONS FOR GRANTING THE WRIT............................................................................7

CONCLUSION.........................................................................................................................8

INDEX TO APPENDICES

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES CITED

United States Supreme Court Decisions

Old Chief v. United States, 519 U.S. 172 (117 S.Ct. (644) (1997) ...............................................................2

United States v. Gonzalez-Lopez, 548 U.S. 140 (126 S. Ct. 2557) (2006)................................................2

Skilling v. United States, 516 U.S. 358 (130 S.Ct. 2896) (2010)...................................................................2

United States v. Ross, 456 U.S. 798 (102 S. Ct. 2157) (1982).....................................................................4

• United States Court of Appeals for the Eleventh Circuit Decisions

United States v. Jimemez-Antunez 820 F. 3d 1267 (11th Cir.2016) ...................................................2

Thomas v. Wainright, 767 F. 2d 738 (11th Cir. 1985).............................................................................................2

United States v. Garey, 540 F. 3d 1253 (11th Cir. 2008) (en banc). .................................................................... 2

Bonner v. City of Pritchard, 661 F. 2d 1206 (11th Cir. 1981) (en banc).............................................................3

United States v. Timmann, 741 F. 3d 1170 (11th Cir. 2013)..............................................................................3

United States v. Chathansouxat, 342 F. 3d 1271 (11t) Cir. 2003)....................................................................3

United States v. Fiel ds , 625 F. App'x. 949 (11th Or. 2015) (per curium) ........................................................4

United States v. Floyd, 247 F. App'x 161 (11th Cir. 2007) per curium)...........................................................6

United States v. Addison, 785 F. 3d 553 (11th Cir. 2015).................................................................................6

United States v. Smith 596 F. App'x 804 (11th Cir. 2015) (per curium) ......................................................... 6

Extra-Circuit Decisions

United States v. Nielsen, 9 F. 3d 1487 (10th Cir. 1993)...............................................................................7

United States v. Bradford, 423 F. 3d 1149 (10th Cir. 2005).......................................................................6

000

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

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

OPINIONS BELOW

[

For cases from federal courts:

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

the petition and is

[ ]

[ ]

[l

reported at

; or,

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

is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ]

[ ]

[d

[ ]

to

reported at

; or,

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

is unpublished.

.

For cases from state courts:

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

Appendix

to the petition and is

II]

[ ]

[ ]

to

reported at

; or,

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

is unpublished.

-

The opinion of the

appears at Appendix

________________________________________________

to the petition and is

; or,

[ ] reported at

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

[ ] is unpublished.

1.

court

JURISDICTION

[ ] For cases from federal courts:

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

was MAY 31,2018

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

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

Appeals on the following date:

order denying rehearing appears at Appendix

,

and a copy of the

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

to and including

in Application No.

(date) on ____________________ (date)

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

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

and a copy of the order denying rehearing

appears at Appendix

.

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

to and including

Application No. .A______

(date) on

________________

(date) in

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

/

STATEMENT OF THE CASE

This case presents an important question concerning the "good cause" standard that

indigent defendants must meet to substitute appointed counsel in a federal criminal case.

Because an indigent defendant's disagreement with, and disapproval of, counsel's unilateral

decision to withdraw a dispositive motion can, in some instances, create an irreconcilable

conflict over the sole available complete defense, Bostic, on these facts, is entitled to a trial.

On February 9, 2016, Sergeant Colon and Officer Daniel Kang with the Chatham County

Police Department, Crime Suppression Unit, were patrolling west 34th Street in Savannah,

Georgia searching for suspects in a recent homicide. When asked, "So what was the purpose of

riding around that neighborhood?' The officers answered, we had a recent homicide a few days

prior to that, in that area, so we were basically concentrating on everything in that area."). To

search for suspects, the officers used Georgia Traffic Code violations to stop vehicles they

encountered during their patrol. As the officers turned east on 34th street, Kang and Colon

observed a blue Mercury Grand Marquis with "extremely dark tints" driving west towards them in

the opposite direction.

The Grand Marquis belonged to Bostic's wife, but Bostic was driving. The window tint

reported "19" after being measured by Officer Kang- a tint illegal in Georgia. O.C.G..A. 40-873.1. Kang informed Colon, and Sgt. Colon turned the patrol car behind the Grand Marquis to

execute a traffic stop. The Grand Marquis parked on the street behind another parked vehicle;

officers activated their lights to initiate a seizure of the Grand Marquis, turned around to get

behind the vehicle. As he crossed over Barnard, he pulled into a parking spot behind a parked

vehicle, and at that time is when I lit them up and initiated the traffic stop.")

Bostic emerged from the driver's side and began approaching the patrol car. No threats

were made towards the officers. The officers told Bostic to remain near the Grand Marquis and

keep his hands on the vehicle. Bostic was frisked, and a search of his person revealed no

weapons or contraband. Bostic was detained, away from the vehicle. Sgt. Colon noticed a

passenger in the Grand Marquis, and Kang observed the passenger, Ebony Butler, was "shifting

around." According to the officers, a strong odor of burnt marijuana came from the Grand

Marquis. When asked, Kang could not testify to a "specific source," but a video of the stop.

showed that Kang believed that Butler looked "high as a Georgia pine."

The officers told Bostic that they searched the Grand Marquis because they smelled

marijuana, but a comprehensive vehicle search revealed no marijuana. When asked "Did you

find any marijuana in the car?" the officer answered "Not to my recollection."). Bostic explained

the odor- he admitted that he and Butler "smoked a joint" prior to the stop. Sgt. Colon and

Officer Kang began searching the Grand Marquis cabin from front to back, but nothing was

recovered from the cabin.

Bostic. objected, and did not consent to the search. Without consent, the officers opened

the trunk. Inside the trunk, on the left side, officers located a firearm. The .40 caliber firearm

was not registered to Bostic. Bostic, gave custodial statements'admitting to purchasing the gun

two years ago on the street. .Law enforcement located the true owner, but the owner had

reported the fiream stolen in August of 2015. No usable fingerprints were found on the

firearm." No fingerprints were recovered from the bullets or the magazine.

MEMORANDUM OF LAW AS TO GROUND ONE

FAILURE TO APPOINT SUBSTITUTE COUNSEL

The District Court violated Bostic's Sixth Amendment right to counsel when it refused to

substitute new counsel under circumstances that constitute "good cause" for a substitution

of appointed counsel.

"A choice-of-counsel violation occurs whenever the defendant's choice is wrongfully denied{;]"

such a violation of the right to counsel is a "structural error" not subject to review for

harmlessness on appeal. United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (Ill) (126 S. Ct.

2557) (2006). Though the Sixth Amendment provides financially -solvent defendants with a

right to terminate retained counsel without cause, United States v. Jimenez-Antunez, 820 F.3d

1267, 1271 (111) (11th Cir. 2016), an indigent criminal defendant "does not have a right ... to

demand a different appointed lawyer except for good cause." Thomas v. Wainwright, 767 F.2d

738, 742 (11th Cir. 198 5) (emphasis added).

"Good cause, in this context, exists where there is a fundamental problem, such as a conflict of

interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an

apparently unjust verdict." United States v. Garey, 540 F.3d 1253, 1263 (11th Cir. 2008)

en banc) (quoting United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973)). Evidence of a

severe and pervasive conflict, or minimal communication, is required. United States v. Lott, 310

F.3d 1231, 1250 (10th Cir. 2002) (citations omitted). Even if counsel is competent, "a serious

breakdown in communications can result in an inadequate defense," but "[a] defendant's general

loss of confidence or trust in his counsel, standing alone, is not sufficient." Wainwright, 767

F.2d at 742. The good cause exception protects the right to effective assistance of counsel; if

good cause exists, a defendant no longer has effective representation. Jimenez-Antunes, 820

F.3d at 1271 (111) citing United States v. Rivera-Corona, 618 F.3d 979 (9th Cir. 2010)).

Under this framework, the District court erred, violating Bostic's right to counsel, when it denied

trial counsel's motion to withdraw as counsel, for two reasons. First, the evidence adduced at the

inquiry hearing showed both a breakdown in communications and an irreconcilable conflict.

Second, the irreconcilable conflict was factually grounded over a legitimate issue central to the

defense strategy, to wit: a dispositive motion to suppress a warrantless search.

•.•..... ...

MEMORANDUM OF LAW AS TO GROUND ONE

(FAILURE TO APPOINT SUBSTITUTE COUNSEL)

The Sixth Amendment provides indigent defendants with a narrow right to substitute appointed

counsel only where "good cause" is shown for substitution. 'Good cause" exists, and

substitution is required, where a conflict of interest, irreconcilable conflict, or communication

breakdown dissolves the relationship.

The District Court erred when it denied the motion to withdraw as counsel. Bostic showed good

cause for substitution when trial counsel unilaterally withdrew-without consulting Bostic- a

dispositive motion to suppress the warrantless search of Bostic's vehicle. On these facts, the

officers had probable cause to search the vehicle's passenger cabin based on the odor of burnt

marijuana, but that probable cause did not extend to the trunk. The search of the trunk revealed

the most damaging evidence against Bostic, to which Bostic otherwise had no available

(credible) defenses at jury trial. Based on his review of the discovery trial counsel withdrew the

motion with knowledge that the motion was Bostic's only complete defense to the indicted

offense.

Bostic filed a complaint against trial counsel with the State Bar of Georgia. After the bar

complaint, communications broke down and counsel proffered that very little, if any, trust

remained. Counsel had "serious doubts" about his ability to effectively represent Bostic, those

concerns were shared by Bostic, and made known to the Court. Failure to substitute appointed

counsel, here, was a structural error.

MEMORANDUM OF LAW AS TO GROUND TWO

INEFFECTIVE ASSISTANCE OF COUNSEL

The defendant's motion to suppress the warrantless search raised a colorable legal issue because

law enforcement, relying solely on the order of burnt marijuana, lacked probable cause to search

the trunk. See e.g., United States v. Bradford, 423 F.3d 1149, 1160 (II) (A) (10th Cir. 2005)

('The order of burnt marijuana in the passenger compartment of vehicle does not, standing alone.

establish probable cause to search the trunk of the vehicle.'); see also United States v. Floyd, 247

F. App'x 161, 167 (11th Cir. 2007) (per curium) (explaining smell of burnt marijuana coupled

with multiple factors that conjunctively-but not in isolation- established the probable cause); but

see Merricks v. Addison, 785 F.3d 553, 560 (V) n. 3 (11th Cir. 2015) (the smell of burnt

marijuana emanating from a vehicle is sufficient probable cause to search the vehicle."). While it

is true the burnt marijuana order established probable cause to search the Grand Marquis

passenger cabin, that probable cause did not extend to the trunk-especially given that law

enforcement search of the cabin revealed no corroborating evidence.

On these facts, it is clear both that (1) the marijuana odor detected by police was "burnt" not

"raw" and (2) it was therefore unreasonable for police to believe the trunk contained marijuana

evidence. First, the government in its response to Bostic's motion cited Bostic's statement to

Kang that "he smoked a joint with the passenger earlier." [Doc. 24 at 2] citing Govt's MTS Ex.

1 at 3:3 8). Kang and Colon search Bostic and Butler but located no marijuana. [Doc. 74 at 8, 30].

A search of the passenger cabin revealed no marijuana or paraphernalia evidence. [Doc. 74 at 30:

23-24].

Second, it was unreasonable for Kang and Colon, without corroboration, to believe the trunk

contained marijuana usage evidence because neither officer testified to noticing an odor

emanating from the trunk or the back seat of the Grand Marquis- the odor emanated from the

cabin (which was searched) and the occupants (who were searched and detained, away from the

Grand Marquis). Cf., United States v. Smith, 596 F. App'x 804, 807 (III) (11th Cir. 2015) per

curium). In Smith, this Court affirmed the denial of a motion to suppress where the officer

testified to smelling the odor of raw marijuana coming from the back seat of a vehicle. Prior to

making the stop, the officer observed appellant move from the back seat to the trunk of his car,

and then roll a marijuana cigar at a nearby picnic table. Id. at 806. Under the circumstances, the

Court noted that the marijuana odor was "raw" and found that, given then officer's observations

of the defendants interaction with the trunk, it was entirely possible that the defendant moved the

marijuana from the back seat to the trunk before moving to the picnic table to smoke the

marijuana cigar. Both material facts are absent in Bostic's case.

The "corrobation-based-approach" is consistent with the views of other Circuits, specifically the

tenth. See e.g., United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993) (holding officer's

detection of burnt marijuana odor did not give probable cause to search the trunk after

consensual search of the cabin revealed no corroborating evidence). The corroboration

requirement stems from precedent holding "the scope of a warrantless search of an automobile as

defined by the object of the search and the places in which there is probable cause to believe that

it may be found." United States v. Ross, 456 U.S. 798, 824 (102 S. Ct. 2157) (1982). As applied

to Bostic, the probable cause to arrest after the cabin search was limited to DUI controlled

substance, possession of marijuana by consumption, and driving on a suspended license. None

of the objectives provided probable cause to search the trunk, because it was not reasonable for

law enforcement to believe-without corroborating evidence from the cabin search-that marijuana

was used or possessed in the trunk. Bostic multiple times refused consent.

With this factual predicate in the foreground, the cause for substitution of appointed

counsel exceeds that presented in cases like Young and Wainwright. In Wainwright, this Court

affirmed a refusal to substitute appointed counsel because the defendant, by refusing to cooperate

and remain silent during the inquiry hearing, contributed to the communications breakdown, he

later sought to benefit from. Id 767 F,2d at 741. Bostic's case is materially distinguishable from

Wainwright because the distrust and lack of cooperation stemmed from trial counsel's refusal to

pursue Bostic's only complete defense to the indicted crime. Similarly, in Young, the former

Fifth Circuit refused to substitute counsel where the defendant purposefully ceased

communications and failed to present an irreconcilable conflict to justify the breakdown. Here,

by contrast, the defendant's position is that the conflict over a critical defense issue caused the

communications breakdown and subsequent distrust.

...

GROUND TWO

INEFFECTIVE ASSISTANCE OF COUNSEL

SUPPORTING FACTS

Two months after withdrawing the motion and just two weeks before trial, trial counsel, Robert

Mock, Jr., filed a motion to withdraw as counsel. [Document ]. The motion stated that Bostic's

wife had filed a complaint with the State Bar of Georgia against. Mock, and that "there is very

little, if any, trust remaining between defendant and his [trial] counsel in this case." [Document

]. The motion continued that "the defendant is showing very little cooperation, and that counsel

has serious concerns as to whether he can adequately represent the defendant. [Document I

11

Disagreements over the motion and transcript request to assist in making decisions

regarding defense strategy prompts Bostic to fire Trial Counsel.

The District court held an attorney hearing on the motion to withdraw. At the inquiry hearing,

Bostic confirmed that he instructed his wife to file a bar complaint against Mock, Jr. [Document

]. The reason was Mock's unilateral Withdrawal of the motion to suppress, which Bostic

perceived as central to the defense strategy. [Document ]. Bostic stated to the District Court

that Mock previously told Bostic he would file the motion to suppress, and that Mock had failed

to comply with Judge's order regarding the motion. [Document]. The District Court denied the

motion, stating: "It's just a disagreement about some motion to suppress, that's all I see."

[Document] There was no discussion of trial counsel's original basis for the motion, the facts of

the warrantless search and seizure, trials counsel's reason for withdrawing it nor was the

defendant made aware of his right to appeal the judge's order. [Document]

...

...

The evidence and record show both a breakdown in communications and a severe

conflict between client and counsel.

The motion to withdraw stated: "Counsel for Defendant shows that there is

very little, if any, trust remaining between Defendant and his counsel in this

case, that Defendant is showing very little cooperation, and the counsel has

serious concerns at this point as to whether he can adequately represent

Defendant." [Doc. 35 at 1]. The distrust and communication breakdown

stemmed from trial counsel's unilateral decision to withdraw Bostic's motion

to suppress the warrantless search of the Grand Marquis-a dispositive issue

central to the defense. [Doc. 35 at 1].

Trial counsel never gave a reason for withdrawing the motion, and the district did

not ask for one at the inquiry hearing. The District Court did not discuss the

facts surrounding the search of the Grand Marquis at the inquiry hearing, so

there was no evidence as to trial counsel's basis for filing the motion, or his

reason for withdrawing it. The issues surrounding the motion to suppress

were important to Bostic so as to prompt the filing of a bar complaint with the

State Bar of Georgia. [Doc. 35 at 1]; [Doc. 83 at 5: 14-16. And, with good

reason-the defense in this case rested almost entirely upon suppression of the

search because, if meritorious, the firearm, ammunition and Bostic' s

admission were fruits of the poisonous tree. See United States v. Timmann,

741 F.3d 1170, 1182 (III) (C) (11th Cir. 2013). ("Under the so-called fruit of

the poisonous tree doctrine, admissions or confessions that the police induce

by confronting a suspect with evidence obtained through an illegal search or

seizure must be suppressed."); see also United States v. Chathansouxat, 342

F.3d 1271 (11th Cir. 2003) (same).

At the attorney inquiry hearing, the district court heard evidence that trial counsel

provided Bostic with discovery, but did not explain it, and that trial counsel

had not consulted Bostic in his unilateral decision to withdraw the motion to

suppress. See [Doc. 83 at 6, 12] Trial counsel only visited him only once to

present the government's plea agreement, which Bostic rejected [Doc. 83 at

11].

D.

Trial counsel's unadvised abandonment of defendant's main defense was not a

mere disagreement over a trial strategy, as the District Court perceived, but

rather a serious impasse over the adequacy of trial counsel's representation.

Contra United States v. Fields, 625 F. App'x 949, 953 (J)(D) (11th Cir. 2015)

(per curiam) (holding defendant's "general - assertions about counsel's

unwillingness to ask certain questions of witnesses" did not rise to the level of

irreconcilable conflict). The totality of the information available to the

District Court established that the defendant's defense; the available

information created "good cause" for the substitution of counsel.

.•••••

STANDARD OF REVIEW

Denial of motion to withdraw as counsel. "We review the denial of a motion as counsel

for abuse of discretion." Brown v. United States, 720 F.3d 1316, 1325 (11th Cir. 2013).

"A district court abuses its discretion if it applies an incorrect legal standard, applies the

law in an unreasonable or incorrect manner, follows improper procedures in making a

determination, or make findings of fact that are clearly erroneous." United States v. Toll,

804 F.3d 1344, 1353 (11th Cir. 2015) (quoting Citizens for Police Accountability

Political Comm. v. Browning, 572 F.3d 1213, 1216-17 (11th Cir. 2009).

Defendant, respectfully requests this Honorable court to vacate or set aside his

conviction and sentence on the grounds that his fourth amendment right under the United

States constitution were violated when he was denied substitute counsel.

hllq

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

)

I....