Petition for Writ of Certiorari — Leroy Scott, Petitioner v. United States
Supreme Court briefFeb 19, 2019
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No:
IN THE SUPREME COURT OF
THE UNITED STATES
t
LEROY SCOTT, JR.,,
PETITIONER,
FILED
V
FEB 19 2019
OFFICE OF THE CLERK
SUPREME COURT, U.S.
UNITED STATES OF AMERICA
RESPONDENT.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETITION FOR LEAVE TO FILE EXCESSIVE PAGE(S)
PURSUANT TO RULE 33.2
t.
TO THE HONORABLE JUDGES OF THE SUPREME COURT:
COMES NOW, LEROY SCOTT JR., THE PETITIONER, PROCEEDING IN
PRO SE, and respectfully moves this Honorable Court for a[n]
ORDER GRANTING him permission to exceed the page limitation,
set forth within Rule 33.2(b), which exceeds the page limit set
by such Rule by
OA t ,
additional pages.
The Petitioner will show this Honorable Court as follows:
11) Petitioner's proceeding Pro Se and haâ had no training
in the field of law and needs the additional
pages to
properly litigate his claims.
72) The complexity of the facts and issues iniloved in this
Petition for Certiorari, warrant granting permission to exceed
thepage limitation.
¶3) Under discrete facts and circumstances, it would be unfair and unreasonable NOT to grant the Petitioner permission
to exceed the page limitation.
14) Due to the Petitioner being incarcerated within a fed—
eral correctional institution, he, therefore, is subjected to
random 'lock—downs' and/or institutional 'lock—downs' which,
in such instant, constituted the Petitioner to complete said
petition by HAND.
55) Petitioner makes this petition in the interest of just—
ice and NOT meant to delay the proceedings.
ool
No:
IN THE SUPREME COURT OF
THE UNITED STATES
LEROY SCOTT, JR.,
PETITIONER,
V
UNITED STATES OF AMERICA
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
QUESTIONS PRESENTED
WHETHER COUNSEL'S INEFFECTIVENESS CONFLICTS WITH THE - HOLDING IN MISSOURI v FRYE, FOR FAILING TO ADVISE PETITIONER
OF THE MEANS TO SET FORTH IN THE DEATH PENALTY PROTOCOL
WHERE THE PLEA AGREEMENT ESSENTIALLY MISTAKEN HIS EXPOSURE
TO THE DEATH PENALTY.
WHETHER THE LOWER COURT'S REJECTION OF THE PETITIONER'S
REQUEST FOR A COA ON HIS CLAIM THAT HIS ATTORNEY LABORED
UNDER A CONFLICT OF INTEREST, BASED ON HIS PRIOR REPRESENTATION OF A(N) ALLEGED CO-CONSPIRATOR.
-
WHETHER THE GOVERNMENT'S EGREGIOUS CONDUCT CONFLICT'S WITH
THR HOLDING IN UNITED STATES v BRADY, WHERE PETITIONER WAS
MISINFORMED AS TO A CRUCIAL ASPECT OF HIS PLEA.
WHETHER PETITIONER'S SECOND ATTORNEY NON-APPEARANCE DURING
PLEA PROCESS WAS EQUIVALENT TO THE CONSTRUCTIVE DENIAL OF
THE RIGHT TO COUNSEL, WHEN THE APPLICATION OF 18 USC § 3005
ENTITLES PETITIONER TO THE ASSISTANCE OF TWO ATTORNEYS UPON
INDICTMENT WHERE PETITIONER WAS CHARGED WITH A CAPITAL
CRIME?
-1-
fr
-,
ALL PARTIES APPEAR IN THE CAPTION COVER PAGE
-11-
TABLE OF CONTENTS
Page No.
.
OPINIONS BELOW ........................................
JURISDICTION ..........................................
111
iii a
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .......
STATEMENT OF THE CASE .................................1, 2, 3,
REASONS FOR GRANTING THE WRIT .........................
viii',
CONCLUSION .............................................37, 38
INDEX TO APPENDICES
APPENDIX A:
Opinion,, United States v Leroy Scott, Jr.,
Appeal No: 18-6057 (4th Cir Sept 20, 2018)
APPENDIX B:
Opinion and Order denying Motion under 28 USC §
2255, to vacate, set aside or correct sentence, United States
v Leroy Scott, Jr. (Civ No 2:16-cv-5)(See Exhibit F)
APPENDIX C:
Order Staying the Mandate until the Fourth Circuit rules on Petition for Rehearing or Rehearing En Banc,
United States v Leroy Scott, Jr. (No. 18-6057)(4th Cir Nov 2,
2018)
APPENDIX D:
Order Denying Petition for Rehearing and Rehearing En Banc, United States v Leroy Scott, Jr., (No. 186057)
(4th Cir Nov 2018)
APPENDIX E:
Exhibits in Support of Petitioner
(EXHIBIT
(EXHIBIT
(EXHIBIT
(EXHIBIT
(EXHIBIT
(EXHIBIT
(EXHIBIT
(EXHIBIT
05-17-2013 Status Conference
Plea Agreement
Statement of Reasons; Addendum; Presentece Report
U.S. Att'y Manual Title 9-10.000
11-20-2017 Evidentiary Hearing Proceeding
12-21-2017 Opinion and Order
United States v Jackson Example
Motion of Declaration
-
-iii-
JURISDICTION
This Court has jurisdiction over this matter, pursuant to
28 USC § 1254(1).
Fl
-111(a)-
-
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
18 Usc H 924(c), 924(;)
(;)
a person who, in the course of a violation of subsect—
tion (c), causes the death of a person through the use of a
firearm, shall
--
if the killing is a murder (as defined in section 1111
[18 USCS § 1111]), be punished by death or by imprisonment for
any term of years or for life, and
if the killing is manslaughter..., be punished as provided in that section.
18 usc §,3005
Whoever is indicted for treason or other capital crimes,
shall, be allowed to make his full defense by counsel. . . shall
promptly, upon the defendants request, assign 2 such counsel,
of whom at least 1 shall be learned in the law applicable to
capital cases...
i v—
-
TABLE OF AUTHORITIES CITED
PAGE NO
CASES
Brady v United States, 397 U.S. 742 25 LEd 2d 747,
90 SCt 1463 (1970) ...................................11, 42, 47
Buck v Davis, 137 SCt 759, 777, 197 LEd 2d1. ................61
Cronic v United States, 466 U.S. 648 (1984) .............51, 53
Cuyler v Sullivan, 445 U.S. 335, 348 (1988). .................27
Fontaine v United States, 411 U.S. 213, 215 (1973)
STATUTES AND RULES
18 USC § 3005
18 USC § 924(c), 9240)
28 USC § 2255
OTHER
U.S. Consitution Sixth Amendment
Department of Justice United States Attorney Manual
Capital Crimes 9-10.000 to 9-10.200
-v-
..
......
37
TABLE OF AUTHORITIES CITED
PAGE NUMBER
CASES
United States v Jackson, 554 Fed App'x 156
(4th Cir 2014) ...................................... 1 8, 45
United States v Jordan, 509 F. 3d 191
(4th Cir 2007) ........................................36
Lassiter v Turner, 423 F.2d
(4th Cir 1970) ..............................10, 36, 43, 47
Nickens v Taylor, 240 F.3d 348, 361
(4th Cir 2001) ......................................
27
United States v Nicholson, 611 F.3d 191
(4th Cir 2009) .......................................25, 30
United States v Shelton, 246 F.2d 571
(5th Cir 1957) ......................................1 1 , 42
United States v Swaby, 855 F.3d 233
(4th Cir 2017) ......................................
32
United States v White, 628 App'x 848
(4th Cir 2015) ......................................37
United States v Watson, 496 F.2d 1125
(4th Cir 1973) ......................................51, 54
United States v Boone, 245 F.3d 352
(4th Cir 2001) ......................................51, 54
United States v Carter, 454 F.2d 426
(4th Cir 1972) ........................................35
Charbonnages de France v Smith, 597 F.2d 406
(4th Cir 1979) ......................................38
Coles v Peyton, 389 F.2d 224,
(4th Cir 1968) .....................................
13
United States v Dawson, 587 F.3d 640
(4th Cir 2009) ........................................48
-vi-
TABLE OF AUTHORITIES CITED
PAGE NUMBER
CASES
United States v Ferrara, 509 F.3d 278
(1st Cir 2006) ..............................10, 12, 22, 37
United States v Fisher, 711 F.3d 460
(4th Cir 2013) ......................10, 11, 12, 23, 36, 42
United States v Hammerman, 528 F.2d 326
(4th Cir 1975) .................................. 11 , 37, 43
United States v Hammond, 528 F.2d 15
(4th Cir 1975) .......................................20, 47
United States v Harvery, 791 F.2d 294
(4th Cir 1986)
United States v Houmis, 558 F.2d 182
(3rd Cir 1977) .....................................
38
106 SCt 336, 370-71
Hill v Lockhart, 477 U.S. 52, 58-59
88 LEd 2d 203 (1985) ............................. 34, 39, 62
-
Hood v United States, 343 U.S. 148
151 (1952) ..........................................
59
Lafler v Cooper, 566 U.S. 156, 132 SCt 1376, 1384
182 L.Ed 2d (2012) .................................
6
Lee v United States, 137 SCt 1958
1966, 198 L.Ed 2d 476 (2017) .................6, 23, 32, 48
Mempa V Rhay, 389 U.S. 128, 88 SCt 254
19 L.Ed 2d 336 (1967) ..............................
13
Missouri v Frye, 566 U.S. 134, 132 SCt 1399, 1408
182 L.Ed 2d 379 (2012) ..............................6, 62
Montejo v Louisiana, 556 U.S. 778, 129 SCt 2079
173 L.Ed 2d 955 (2009) ..............................
6
Slack v McDaniel, 529 U.S. 473
483-85 (2000) .......................................
62
—vii—
TABLE OF AUTHORITIES CITED
CASES
PAGE NUMBER
Strickland v Washington, 466 U.S. 688, 104 SCt 2052,2064
80 L.Ed 2d 674 (1984) ........................5, 23, 24, 62
Wadge v United States, 38 U.S. 218, 227-228
87 SCt 1926, 18 L.Ed 2d 1149 (1967) .................
.58
Well v United States, 519 U.S. 482, 483
(1997) ..............................................58
-viii-
REASON[S] FOR GRANTING THE WRIT
51) The lower court's rejection of the Petitioner's request
for COA on his claim, that Trial Attorney, JAMES 0 BROCCOLETTI,
was ineffective, conflicts with the holding in Missouri v Frye,
for failing to advise him, of the 'means' set forth in the
Death Penalty Protocol, where the written agreement has 'essentially mistaken' his exposure to the Death Penalty, if convicted
after trial, is debatable amongst jurists of reason and therefore, deserving of Certiorari Review, where U.S. v Fisher, 711
F3d 460 (4th Cir 2013), 'egregious conduct,' stands for the proposition that a quality plea is involuntary where a defendant
has been misinformed, of the 'crucial aspect, ' of a plea offer.
See Slack v McDaniel. 529 U.S. 473 (2000).
Whether the lower court's rejection of the Petitioner's
request for a COA on his claim that his attorney labored under
a .conflict of interest,' based on this prior representation
of alleged co-conspirator, BERNICE GWALTNEY, is debatable among
jurists of reason and therefore, deserving of Certiorari Review,
where United States v Nicholson, 611 F3d 191 (4th Cir 2009)
stands for the proposition that a 'conflict of interest' exists
where counsel previously represented a[n] alleged co-conspirator.. See Slack, Id.
The lower court's rejection of Petitioner's request for
-viiii-
COA, on his claim that his guilty plea was rendered involuntary
based on the Government's 'egregious conduct,' conflicts with
the holding in United States v Brady, where the plea agreement
'essentially mistaken' that the Petitioner faced the Death Penalty, if he 'rejected' the Government's plea offer is debatable
amongst jurists of reason and therefore, deserving Certiorari
Review, where United States v Fisher, United States v Brady
.
supra, stands for the proposition that a guilty plea is involuntary where a Defendant has been misinformed as to a crucial
aspect of the plea.
See Buck v Davis,
U.S.
(2017).
¶4) The lower court's rejection of the Petitioner's request for a COA on his claim that his guilty plea was rendered
involuntary by the absence of his second lawyer from the guilty
plea hearing is debatable amongst jurists of reason and therefore deserving of Certiorari Review, where United States
V
Boone, 245 F3d 352 9 358 (4th Cir 200), stands for the proposition that 18 USC § 3005, guaranteed the Petitioner the added
protection of representation by [2] two lawyer[s]. See Slack,
Id.
-
STATEMENT OF THE CASE
In early 2013, a Grand Jury returned a [5] five count indictment charging LEROY SCOTT, JR., witht he following: Conspiracy to Tamper with a Witness/Informant in violation of 18
USC § 1512(A); Conspiracy to Retaliate Against a Witness/Informant in violation of 18 USC § 1512(A)(1)(A) and (A)(3)(A); Retaliation Against a Witness/Informant in violation of 18 USC §
1513(A)(1)(B) and (A)(2)(A); and Use of a Firearm, Resulting
in Death, in violation of 18 USC § 924(c), § 924(;); Because
of the nature of the charges, the death penalty was a[n] available punishment for the indicted offense.
However, within several months of the indictment, the Dept
of Justice ('DOJ') elected NOT to seek the death penalty against
LEROY SCOTT, JR.
A few months after the DOJ's decision NOT to seek the death penalty in SCOTT's case, Defense Counsel, JAMES A BROCCOLETTI, who's previously filed an affidavit of his experience in
criminal law, does NOT mention any learned law inCpital Cases.
However, Defense Attorney JAME A BROCCOLETTI, without the
assistance of second defense counsel, as required by Federal
Death Penalty Act, 18 USC § 3005, presented Petitioner SCOTT
with a written Plea Agreement, drafted by the Government that
SCOTT would agree to a binding plea Fed R Crim P 11(c)(1)(c)
to a LIFE SENTENCE on Counts [1] through [4] and a consecutive
-1-
LIFE SENTENCE on Count [5].
In exchange, the Government agreed
NOT to seek the Death
Penalty, eventhough the Government, months previously before
the plea offer, elected NOT to seek the Death Penalty.
Through prompting of Defense Counsel, Petitioner SCOTT,
via plea agreement, pled guilty to the charges in the indictment and was sentenced to LIFE in prison.
Petitioner LEROY SCOTT, JR., filed a motion to vacate his
sentence, pursuant to 28 USC
§ 2255, raising the following cl-
aims:
That the plea was, involuntary because Petitioner was
misled by the language of the Government's Plea Agreement;
Counsel was ineffective during plea negotiations where
Counsel advised Petitioner to sign the agreement under
false pretense(s), that if the plea was 'rejected,'
the Death Penalty would be reconsidered; and,
The Plea is involuntary because Petitioner was deprived of a[n] absolute statutory right to the assistance
of ['2] two attorneys during a critical stage of the
proceeding.
After holding a[n] evidentiary hearing, the District Court
ruled that the Petitioner had NOT met either of the prongs in
Strickland, for ineffective assistance of counsel, being that
-2-
-
the Death Penalty was removed.
But the District Court acknowledged that it could NOT
fatham why Petitioner SCOTT, would commit to multiple bind—
ing pelas of LIFE in prison, once the Death Penalty was re—
moved.
Petitioner, LEROY SCOTT, JR., filed a[n] appeal within
the United States Court of Appeals for the Fourth Circuit.
Whom of which affirmed the District Court's decision.
I.
THE FOURTH CIRCUIT COURT OF APPEALS ERRED BY DETERMINING
THAT SCOTT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS DID
NOT MEET THE STANDARDS SET FORTH BY THE COURT IN STRICKLAND
AND HILL, WHERE HIS PLEA WAS INVOLUNTARY AS MISINFORMED
TO A CRUCIAL ASPECT OF THE PLEA
It is well settled, that Counsel owes their client a duty
of loyalty, a duty to avoid conflicts of interest, and when
representing a criminal defendant, Counsel's role is to assist
defendant in his defense with the permissable rule of law. See
Strickland v Washington, 466 U.S. 688, 104 SCt 2052, 80 LEd 2d
674 (1984).
Such assistance includes the duty to advocate defendant's
cause, to consult with the accused on ALL matters of importance
and to apprise the defendant of important development in the
course of the prosecution. Id. at 688.
The Sixth Amendment to the United States Constiution,
'guarantees a Defendant the right to have Counsel present at
ALL 'critical' stages of the criminal proceeding, ' Montejo V
Louisiana, 556 U.S. 778, 786 129 SCt 2079, 173 LEd 2d 955
(2009)(quoting United States v Wadge, 38 U.S. 218, 227-228,
87 SCt 1926, 18 LEd 2d 1149 (1967), which includes the entry
of a guilty plea. See Lee v United States, 137 SCt 1958, 1964
198 LEd 476 (2017).
Although, the Supreme Court has NOT elaborated in detail
on the "duty and responsibilities of defense counsel in the
plea bargain process." Missouri v Frye, 566 U.S. 134, 132 SCt
1399, 1408, 182 LEd 2d 379 (2012), See Lafler
-4-
V
Cooper, 566
U.S. 156, 132 SCt 1376, 1384, 182 LEd 2d 398 (2012).
In the instant case, during the May 17, 2013 Status Conference the Prosecutor, MS EVERHART, led Petitioner SCOTT to
believe that, "we [Department of Justices](hereinafter, DOJ),
are NOT seeking the Death Penalty in this case. See Exhibit
A
-
Status Conference Trans, Pg 3 at 10-11).
Three months after the May Status Conference the Government
through Counsel BROCCOLETTI introduced Petitioner SCOTT, with
a binding Plea Agreement. The District Court's responsibility
during a Rule 11(b)(1) hearing is to 'explain' the meaning of
those terms, NOT to misinform those terms.
Here because of Trial Counsel BROCCOLETTI'S ineffectiveness in negotiating the Government's misleading disparagment
interpretation in the Plea Agreement. Unfortunately, the District Court embarked into such a misadventure during Petitioner
SCOTT',S August 16, 2013 Rule 11 Plea Hearing.
When the District Court explained to Petitioner SCOTT, in
return for his plea of guilty, and his agreement to a LIFE
sentence of imprisonment, the Government agrees NOT to seek
the Death Penalty. See (Exhibit
-
B Plea Agreement).
Obviously, Petitioner SCOTT was mislead through NO fault
of his own, that the District Court falsely assured him that
with the acceptance of his plea, he would avoid the Death
Penalty.
The record is undisputed that the Department of Justice
-5-
had reviewed and decided NOT to seek the Death Penalty in Petitioner SCOTT'S case. It is also undisputed, that Petitioner
SCOTT believed that the Death Penalty had been initally
'decli-
ned,' by the 'DOJ.'
It is also undisputed that Petitioner's SCOTT'S Final Plea
Agreement included a provision that 'claimed' that Petitioner
SCOTT agreed to plead guilty to avoid the Death Penalty.
It is further undisputed, that the Statement of Reasons
drafted by the District Court and the Addendum to the Presentence Report by the Government, ALL recites a provision, that
Petitioner SCOTT agrees to plead guilty to avoid the Death Penalty. See (Exhibit
-
C Statement of Reason and Addendum PSI).
-Moreover,it is also undisputed that the procedures set
forth in the 'DOJ,' Death Penalty Protocol states very clearly, "the Death Penalty may NOT be sought, and NO Attorney from
the Governemnt, may threaten to seek it solely for the purpose
of obtaining a more desirable negotiating position. Absent
the authorization of the Attorney General..." 9-10.120.
(Exhibit
-
See
D Death Penalty Protocol, Title 9-10.000 to 9-10.
200).
In this case, egregious conduct are the types of promises
or threats,, which deprive a plea of it's voluntary character,
are NOT susceptible of 'comprehensive definition...' See
Lassiter
V
Turner, 423 F2d 897 (4th Cir 1990) at 900 (Prose-
cutor's threat "to do what the law will NOT permit, if it 'mo-
-6-
tivates a Defendant ignorance, of the impossibility, renders
the plea involuntary)."
Misrepresentation potentially meriting withdrawl of a gu—
ilty plea are NOT limited to promises intended to induce a gu—
ilty plea; plain and inexcusable misrepresentations NOT anchored
to any permissible litigation strategy" may amount to egregious
conduct. See United States v Fisher, 711 F3d 460 (4th Cir 2013)
quoting Ferrara
V
United States, 456 F3d 278 (1st Cir 2006) at
283.
While such promises or statements were made in 'good faith,'
like here, it does
NOT preclude a finding of egregious conduct.
Id at 467 (citing United States v Hammermen, 528 F2d 326 (4th
Cir 1995);
In tracing the origin of the Fisher case, "egregiously
impermissible conduct" requirement from. Brady
V
United States,
397 U.S. 742, 755 90 SCt 1463, 25 LEd 2d 747 (1970)(quoting
Shelton v United States, 246 F2d 571 (5th Cir 1957) where
Judge TUTTLE had been concerned with situations in which Defen—
dant's were misled by "promise of leniency" similar to Petitio—
ner SCOTT, for example, when a Defendant had been promised by
a[n] Officer in one State, that if he pled guilty to charges
in that State, he would NOT be prosecuted by Law Officials in
another State 17 or when a Prosecutor improperly promise[s] a
lenient sentence. 18.
Here, the Government improperly promised Petitioner SCOTT
—7—
leniency, "in return for Petitioner SCOTT'S plea of guilty...
to a sentence of LIFE.. .The United States agrees NOT to seek
the Death Penalty."
Although, the Death Penalty was allegedly taken off the
table, Petitioner SCOTT was prejudice, relying on the highly
uncommon fact[s] of the Government's essential mistakes in his
Plea Agreement, the heart of the Government's case. See Fisher
Id at 466. 15 and Ferrara, 456 F3d at 281-86, finding egregious
conduct.
Clearly the failure of Trial Attorney BROCCOLETTI, researching and investigating into the egregious conduct and the
Death Penalty Protocols, fellbelow the minimum standard of
representation demands of attorneys in criminal cases. "The
Sixth Amendment guarantees a Defendant the effective assistance of counsel, at ALL critical stages of criminal proceedings, including the entry of a guitly plea and sentencing."
See Mempa
V
Rhay, 389 U.S. 128, 88 SCt 254, 19' LEd 2d 336 (1967).
Counsel must conduct adequate factual and legal investations to determine if defense[s] can be developed. See Coles
V
Peyton, 389 F2d 224 (4th Cir 1968). Had Trial Counsel, JAMES
O BROCCOLETTI investigated the obvious, he would have found
that the Government violated there own 'means' set forth in
the 2013 Death Penalty Protocol.
As to making such determination(s), "in return for Petitioner SCOTT'S plea of guilty and his agreement to àLIFE
sentence ... the Government agree NOT to seek the Death Penalty."
See Exhibit
-
D 9-10.120.
Nevertheless, in DENYING Petitioner SCOTT RELIEF, the District Court relied heavily on the "Government earlier in Court
Statements [made at the May 17, 2013 Status Conference] and Defense Counsel's consistent and accurate advice."
The Court found "Petitioner was full aware at the time of
his plea that the Government was NOT pursuing the Death Penalty."
See Exhibit
-
F, Page 9.
To show that the District Court above fact-finding is misleading and erroneous. Petitioner SCOTT points to when the
District Court questioned Trial Attorney JAMES 0 BROCCOLETTI
during the November 20, 2017, Evidentiary Hearing, about whether the Government was precluded from coming back and changing
their minds and seeking the Death Penalty, and whether there
was benefit in having the Death Penalty language in the Plea
Agreement.
The Court: Before you move on from that issue about the
Death Penalty discussion, after the Status
Conference when the Government indicated that
they were not going to seek the Death Penalty
was it your view that the Government was precluded from ever coming back in that case and
changing it's mind and seeking the Death Penalty?
BROCCOLETTI:
No, I think their report to the Court at that
time at the Status Conference that they would
not seek the Death Penalty, I don't think its
necessarily absolute and binding for ever and
-9-
ever. I think if things had changed, if there
had been potentially some new information or
some new evidence that developed, potentially
that could cause them to change their mind; I
assume.
• •The-:Court: So was there benefit to having it in the agreement?
BROCCOLETTI: Well, the benefit to the agreement it that,
once and for all, it foreclosed them from pursuing it.
See Exhibit
-
E Evidentiary Hearing, Page 43 at 12-25 and Page
44 at 1-5.
These above allegation[s] made by Trial Attorney BROCCOLETTI, are to much of a[n] 'if,' and NO more than a[n] educational guess. The District Court should have 'erred on the
side of caution, ' before ruling that Defense Counsel did NOT
perform deficiently by 'failing' to challenge the Government
unartful inclusion of 'quid gro pro,' language in the written
Plea - Agreement. . . " See Exhibit F
-
(December 21,2017 Opinion
and Order, Page 10).
Had Trial Counsel JAMES 0 BROCCOLETTI properly researched
and investigated when questioned by the District Court on whether the Government are precluded from coming back and changing their minds, in seeking the Death Penalty and whether
there is benefit for •having it in the Plea Agreement, Trial
Counsel, JAMES 0 BROCCOLETTI, would have known through resear-
-10-
ching, that the 'DOJ,' 2013 Death Penalty Protocol, set forth
'means' for making such determination[s] under Title 9-10.000
to 9-10.200, for example, 9-10.120, Conditional Plea Agreements states:
"The Death Penalty may not be sought, and no Attorney
for the Government may threaten to seek it, solely
for the purpose of obtaining a more desirable negotiating position. Absen the Authorization of the
Attorney General, may not enter into a binding Plea
Agreement that precludes the United States from seeking the Death Penalty with respect to any Defendant
falling within the 'scope' of this chapter."
.at ALL times, the United States Attorney of Assistant Attorney General, must make clear to ALL parties
that the Conditional Plea don't represent a binding
agreement, but is conditional on the authorization of
The Attorney General."
Had Trial Counsel, JAMES 0 BROCCOLETTI, properly researched and explained to SCOTT, the 'DOJ' 2013 Death Penalty
Protocol set forth
'means' into makin such determination[s]
Attorney BROCOLLETTI and Petitioner LEROY SCOTT, would have
known that the Attorney General is the ONLY person who has
the 'power' to promise the Petitioner, during a binding Plea
Agreement Negotiation, that he or she 'WILL NOT' be seeking
the Death Penalty.
Thus, the United States Attorney and AUSA 'DO NOT' have
such power and the Attorney General has 'NOT' delegated such
11-
power to the U.S. Attorney or AUSA's 'by the way' of the United
States Manual 9-10.130 and 9-10.160.
A good exampled of the Government's above 'promise,' see
United States v Jackson, 554 Fed Appx 156 (4th Cir 2014), the
dissent by Circuit Judge WILKINSON at 165, Exhibit
-
C; notably
too, the 'promise' in ¶ 1,4, and 11 of Petitioner SCOTT'S
binding written Plea Agreement, which states that it constitutes "the complete plea agreement" between the United States,
the Defendant and the Defendant's Counsel.
Nevertheless, Defense Counsel JAMES 0 BROCCOLETTI, admitted at the November 20, 2017 Evidentiary Hearing and in his
Motion of Declaration, that he did NOT know whay the language
'purporting' to remove the Death Penalty was 'even' included
in the Plea Agreement. See Exhibit
-
-
E, Page 40 and Exhibit
H Motion of Declaration, Page 2 at 5.
It is obvious, that Defense Counsel BROCCOLETTI did NOT
research or investigate the Death Penalty Protocol makes
clear, "...NO Attorney for the Go v ernment may threaten to seek
it, solely for the purpose of obtaining a more desirable nego—
tiating position.
Therefore, the Prosecutor in this case, 'DID NOT' have
such 'power' to seek or NOT too seek the Death Penalty, nor
to negotiate a binding Plea Agreement, but - conditional on the
Authorization of the Attorney General, who has NOT 'delegated'
such 'power' to the Prosecutor in this case, by the way of
—12—
the United States Manual 9-10.00 to 9-10.200. See Exhibit
-
G.
Petitioner SCOTT was prejudiced for Defense Counsel, JAMES
0 BROCCOLETTI'S 'failure' to explain and NOT adequately researching and investigating the egregious impermissible conduct by
the Prosecutor and the 'means' set forth in the Death Penalty
Protocol, fell below a[n] Objective Standard of Reasonableness.
This may have induced a guilty plea, that would NOT have
been forthcoming if SCOTT had been correctly told the truth
about about his 'exposure,' to the Death Penalty and the
'means,' set forth in the Death Penalty Protocol. See United
States v Hammond, 528 F2d 15 (1975).
Defense Counsel BROCCOLETTI'S allegation[s] NOT 'ONLY'
affected Petitioner SCOTT, it misled and confused the District
Court's fact-finding, into believing that the Government could
're-instate' the Death Penalty, if there was new evidence or
new information. See Exhibit
-
E, Page 43 at 12-25 and Page
52 at 15-25.
Defense Counsel BROCCOLETTI'S allegation[s] are conflicting to the text set forth in 9-10.160, which states once
the 'DOJ' has already withdrawn, their NOTICE to seek the
Death Penalty. The 'means' set forth in the Death Penalty
Protocol, 9-10.160, 'explicitly' states, generally, withdrawl
will be GRANTED fin cases like Petitioner's] if there are
material changes in the facts and circumstances of the case
-13-
which would have resulted in a decision NOT to seek the Death
Penalty, if they had been know at the time of the initial determination. Id at 9-10;160.
This is clearly in opposite as
to Trial Attorney JAMES 0 BROCCOLETTI allegation made to the
District Court. See Exhibit
-
E, Pages 43 and 52.
It is undeniable, that MR BROCCOLETTI misled and confused the District Court into a[n] erroneous 'fact finding' when
question, M BROCCOLETTI about whether the Government was precluded from coming back and changing their minds, to seek the
Death Penalty, and whether there was benefit for having it in
the Plea Agreement. Fisher, Id at 466, and Ferrara, 456 F3d
at 281-86, finding egregious conduct.
Petitioner, LEROY SCOTT submits, if it was NO for Trial
Attorney BROCCOLETTI'S ineffectiveness, for 'failing' to explain and adequately investigate the 'means' set forth in the
Death Penalty Protocol, the Government's egregious conduct,
and for being misled in his Plea Agreement, that-the Government was still seeking the Death Penalty, up until the time
he entered his guilty plea; he would NOT have pled guilty and
would have insisted on going to trial. Strickland v Washington. See also Fisher, Id at 468-469.
Whether Petitioner SCOTT pled guilty or was convicted
after trial, he had something to gain and nothing to lose by
proceeding to trial. Such a choice would have been rational,
Lee at 1969 and the Court cannot conclude that a reasonable
14--
Defendant in Petitioner SCOTT'S shoes, would have acted differently.
II. THE FOURTH CIRCUIT COURT OF APPEALS ERRED BY DETERMINING
THAT PETITIONER SCOTT'S ATTORNEY CONFLICT OF INTEREST
CLAIMS DID NOT MEET THE STANDARD SET FORTH BY THE COURT
IN NICHOLSON AND CIJYLER V SULLIVAN
The District Court ruled that Petitioner SCOTT has NOT
demonstrated that Counsel labored under a 'Conflict of Interest,' based on his prior representation - of alleged co-conspirator, BERNICE GWALTNEY.
Petitioner SCOTT testified at the November 20, 2017 Evidentiary Hearing, that he asked JAMES 0 BROCCOLETTI, "could
BERNICE GWALTNEY be a witness." See Exhibit
-
E, Page 10 at
15.
This was said in that manner, because MR SARTWELL, Petitioner SCOTT'S Evidentiary Hearing Attorney, advised him NOT
to mention GWALTNEY as his defense witness, for strategic
reason[s]. SCOTT submits, if it was NOT for Attorney SARTWELL
ineffective strategical technique[s], he would have called
MS GWALTNEY as his defense witness.
BERNICE GWALTNEY previously told LEROY SCOTT, that she
would testify on his behalf, because she knew who had actually.
called the 'hit' on the witness inquestion and could confirm
the Petitioner LEROY SCOTT JR., was NOT involved.
Had Petitioner SCOTT called BERNICE GWALTNEY (BROCCOLETTI'S
-15-
priot client) as a defense witness, to testify as to the identity of the actual guilty party, she would have potentially admitted that she was part of the Conspiracy to Murder.
Trial Attorney JAMES 0 BROCCOLETTI would have been placed
in the position of having to serve [2] two masters, a scenario
that would have adversely affected his performance. See United
States v Nicholson, 611 F3d 191 (4th Cir 2009)(finding conflict
of interest under similar circumstances).
Thus, BERNICE GWALTNEY was a witness BROCCOLETTI could NOT
call, but .a witness Petitioner SCOTT should have called, if it
was NOT for his Evidentiary Hearing Attorney MR SARTWELL'S ineffectiveness.
Petitioner SCOTT did not realize this potential conflict
as he DID NOT understand that if BERNICE GWALTNEY admitted to
knowing the 'true killer,' she would have potentially implicated herself.
Petitioner SCOTT maintain[s] that this is the reason that
Trial Attorney BROCCOLETTI was so 'intent' in having him to
plead guilty, to [2] two LIFE sentences and to avoid a virtually non-existent Death Penalty while preserving Appellate
Rights, Petitioner SCOTT would have preserved, had he gone
to trial..
Trial Attorney BROCCOLETTI thought this plea would save
him from 'confronting' the real conflict. In sum, BROCCOLETTI
suffered from a[n] actual conflict and it resulted in adverse
-16-
action against Petitioner LEROY SCOTT JR.,
-
namely the encour-
agement to enter into a binding Plea, to a[n] otherwise ridicul o us sentence.
"In order to establish a violation of the Sixth Amendment,
a Defendant who raised NO objection at a trial, must demonstrate that a[n] actual conflict of interest adversely affected
his lawyer's performance." Cuyler vSullivan, 446 U.S. 335, 348,
(198Q).
The Court established a [3] three part standard in Mickens
V
Taylor, 240 F3d 348, 361 (4th Cir 2001)(En Banc), Aff'd with-
out consideration on this point, 535 U.S. 162 (2002).
"He must
first of all, identify a plausible alternative, strategy or
tactic, that his defense counsel might have pursued." United
States v Nicholson, citing Mickens at 361.
"Second, he must establish that the alternative strategy
or tactic was objectively reasonable under the facts of the
case, known to the Attorney at the time of the Attorney's tactical decision." Id. "Inorder to satisfy this second prong,
the Petitoner must show that the alternative strategy of tactic was clearly suggested by the circumstance." Id.
"And lastly, he must show that the Defense Counsel's
'failure' to pursue that strategy or tactic would have been
successful, but only that it would have been objectively reasonable." Id.
Had Petitioner SCOTT called BERNICE GWALTNEY to testify ,
-17-
-
-
on his behalf, which would have benn to her extreme detriment.
These interests were in total opposition to each other.
Here, LEROY SCOTT JR., the Petitioner, have and had obvious
and plausible alternative strategies, to try his odds at trial
rather than agreeing to multiple 'consecutive LIFE sentence[s]'
especially since the Death Penalty was allegedly taken off the
table.
Second, this alternative strategy was certainly 'objectively reasonable.' The Court has determined although the second
prong requires "findings of fact," known to the lawyer at the
time of his tactical decision, the ultimate question involves
a conclusion of law reached under an objective standard: whether, considering the facts known to the lawyer, the alternative defense strategy was objectively reasonable." Id at 206-7.
Petitioner SCOTT knew of a witness that could exonerate
him and Trial Attorney JAMES 0 BROCCOLETTI should have called
he.r;at trial, under the circumstances, this would have been a
tactic and objectively reasonable, than to entering a plea to
multiple 'LIFE sentences,' and a non-existent Death Penalty.
Third, this 'failure' to recommend that Petitioner SCOTT
to proceed to trial and instead concede to multiple 'LIFE sentences' was surely linked to the conflict.
Here, Trial Attorny JAMES 0 BROCCOLLETTI, 'claims' he did
NOT consider this a 'viable' strategy, because he had asked the
Government if they were going to call BERNICE GWALTNEY, as a
witness.
Here, Trial Counsel JAMES 0 BROCCOLETTI, misses the point,
Petitioner SCOTT would have wanted BERNICE GWALTNEY to testify
for him, NOT the Government.
The Fourth Circuit Court in Nicholson, adopted a [2] two
part test, where the Defendant may prove a 'link' to the conflict, by either of [2] two ways: [1] by establishing that the
alternative defense was inherently in conflict with. . . the attorney's other loyalties or interest.., or [2] by otherwise
showing that the alternative defense was NOT undertaken due to
those other loyalties or interests. 611 F3d at 212.
In simple terms, a[n] alternative defehse and the lawyer's
other loyalties or interest[s] are 'inherently in conflict,' if
they are 'inconsistent' with each other. Id at 213.
Attorney BROCCOLETTI'S conflict is easily to establish here
because the conflict is 'inherent.' There can be little doubt
that when a[n] Attorney represent's one client, who can 'exonerate' another client, by their testimony, but that testimony
implicates his [other] client in the crim, the interest's are
'inconsisten' with each other.
The District Court Judge ruled that there was NO conflict
because Attorney JAMES 0 BROCCOLETTI contacted the Government
and was informed them that his 'former' client, would NOT be
a witness for the Government'. See Exhibit
-
F, Page 13.
Clearly the Court and BROCCOLETTI misses the point, that
_1 9-
Petitioner SCOTT would have wanted BERNICE GWALTNEY to testify
on his behalf, if it was NOT for Trial Attorney JAMES 0 BROCCOLETTI and the November 20, 2017 Evidentiary Hearing Attorney,
MR SARTWELL'S ineffectiveness, BERNICE GWALTNEY, would have
been called as a witness.
The District Court further engaged in a{n] 'improper' prejudice analysis, by stating that "while Counsel could have obtained a. better result on the 'consecutive sentence, ' on Count 5
it is speculative to assert, that the Government would have
agreed to a lesser sentence, on Count 5." See Exhibit
-
F, Page
14.
Again, the District Court is missing the point, according
to the Supreme Counrt in Lee v United States, it's NOT whether
the G-overnemnt would have agreed to a lesser sentence, for Count
5. It's whether it would have been 'rational' for Petitioenr
LEROY SCOTT JR., as a 'plausible' alternative strategy, to go
to trial and have BERNICE GWALTNEY to 'testify' on his behalf,
while on the other hand, 'argue' for a lesser sentence on Count
5.
The Court in United States .v Swaby, 855 F3d 233 (4th Cir
2017), stated, to show prejudice, Petitioner SCOTT, don't have
to show that going to trial would have been the best objective
strategy or even a[n] attractive option.
It merely requires the Defendant to show a 'reasonable'
likelihood that a person in his shoes would have chosen to go
-20-
to trial, the decision DOES NOT need to be 'optimal,' and DOES
NOT need to ensure acquittal; it only needs to be rational.
Clearly, it would have been rational for Petitioner SCOTT
to have BERNICE GWALTNEY to testisfy on his behalf, while argue
for a lesser sentence. Than to accept a 'binding plea agreement,' to a mandatory LIFE sentence, on Count 5. Especially,
when Count 5, carries a Mandatory Minimum of 10 years up to
LIFE, 'but not a Mandatory LIFE, Petitioner SCOTT would have
received ANY term of year[s].
Under the circumstances, it's a reasonable likelihood, that
Petitioner SCOTT would have 'negotiated'. for a lesser sentence
on Count 5, other than LIFE. Given the Government's 'flexibility'
to Petitioner SCOTT, other aimed requests, "not to cooperation
and his right to appeal," it is reasonably likely that the Government may have agreed to a lesser sentence on Count 5.
Petitioner SCOTT submits, if it was NOT for Trial Attorney
BROCCOLETTI'S ineffectiveness, he would NOT have pled guilty and
would have insisted on going to trial. Hill and Strickland.
Whether Petitioner SCOTT pled guilty or was convicted after
trial, he had something to 'gain,' and nothing to 'lose.' by going
to trial. Such a choice is 'rational,' and this Court cannot
conclude that a reasonable Defendant in SCOTT'S shoes, would've
acted any differently.
-21-
III. THE FOURTH CIRCUIT COURT OF APPEALS ERRED IN AFFIRMING MR
LEROY SCOTT JR'S CONVICTION, WHERE THE GOVERNMENT PLEA
AGREEMENT, MISLED HIS EXPOSURE TO THE DEATH PENALTY
When construing a plea agreement, the Courts are to 'rely'
on General Contract Law Principles. See United States v Harvey,
791 F2d 294 (4th Cir 1986).
But given the context--- the waiver
of a Defendant's constitutional right to trial and the implication[s] for "public confidence in the Fair Administration of Justice," the Court must analyze plea agreements with special
scrutiny. Id (quoting United States v Carter, 454 F2d 426, (4th
Cir 1972), holding that the law governing the interpretation of
the plea agreement, is a "Amalgam of Constitutional, Supervisory
and Private [contract] law concerns. "Id. These concerns" require holding the Governemnt to a greater degree of responsibility
than the Defendant, "for any..." See United States v Jordan,
509 F3d 191 (4th Cir 2007), egregiously impermissible conduct
like "...promises or threats, which deprive a plea of it's voluntary character are NOT susceptible of comprehensive definition.. •"
Lassiter v Turner, 423 F2d 897 (4th Cir 1970) at .900
(prosecutor's threat, "to do what the law will NOT permit, if
it motivates a Defendant ignorant of the impossibility, renders
the plea involuntary)."
Misrepresentation, potentially meriting withdrawal of a
guilty, plea, are NOT limited to promises intended to induce a
guilty plea; plain and inexcusable misrepresentation[ s] NOT
-22-
anchored to any permissible litigation strategy" may amount to
egregious conduct. Fisher v United States, 711 F3d 460 (4th
Cir 2013) at 456 (quoting Ferrara v United States, 456 F3d 278
(1st Cir 2006) at 293 (internal quotation marks and alterations
omitted)
Although, promises or statement were made in 'good faith'
does NOT 'preclude' a finding of egregious conduct. Id at 467
(citing United States v Hammerman, 528 F2d 326, 331-32 (4th Cir
1975).
It is well established, plea colloquies conducted under
Fed R Crim P 11, are intended "to flush out and resolve ALL
such issue[s]
. . .
like any procedural mechanism, it's exercise
is neither always perfect nor uniformly invulnerable to subsequent challenge." Fontaine v United States, 411 U.S. 213, 215
93 Sct 1462, 36 LEd 2d 169 (1973; United States v White, 628
Fed Appx 848 (4th Cir 2015)(vacated and remanded because the
parties had NOT mutually manifested their assent to the same
understanding of a[n] essential term, there was NO valid plea
agreement to be enforced.
One of the contract law's fundamental doctrine is that there can be NO agreement unless there is a "meeting of the minds."
Charbonnages de France v Smith, 597 F2d 406 (4th Cir 1979); See
Restatement (Second) of Contracts IT 17, 20 (1981).
In other words, the parties must have mutually assented
to the most essential term of their bargain. Where 'substan-
-23-
10~1
04
tial confusion,' call into question whether there has been such
a meeting of the minds, over a plea bargain, there is NO valid
agreement to be enforced. Houomis v United States, 558 F2d 182
(3rd Cir 1977)(vacating sentence pursuant to guilty plea in
face of "doubt, whether any 'meeting of the minds,' ever resulted from plea negotiation)."
The longstanding test for determining the validity of a
guilty plea is whether the plea represents a voluntary and intelligent choice, among the alternative courses of action open
to the Defendant." Hill v Lockhart, 474 U.S. 52, 59, 106 SCt
366, 88 LEd 2d 203 (1985) citations and quotation marks omitted).
The Supreme Court has outlined the following standard as
to the voluntariness of guilty pleas:
'A plea of guilty entered by one fully aware of the
direct consequences, including the actual value of
any commitments made to him by the Court, Prosecutor, or his own counsel, must stand, unless induced
by threats (or promises to discontive improper-harassment) misrepresentations (including unfulfilled
of unfulfillable promises) or perhaps by promises
that are by their nature improper as. having no proper relationship to the Prosecutor's business (eg,
bribes).
In the case at bar, on May 17, 2013, a Status was held,
the Prosecutor MS EVERHART led Petitioner SCOTT to believe,
"that we [Dept of Justice][hereinafter
-
DOJ] are NOT seeking
the Death Penalty in this case." See Exhibit
10.
-24-
-
A, Page 3 at
Three months after the Status Conference, the Government
through Trial Attorney, JAMES 0 BROCCOLETTI, provided Petitioner LEROY SCOTT JR., with a 'binding plea agreement,' which
stated:
"In return for the Defendant's pleas of guilty and
Defendant's agreement to a sentence of LIFE imprisonment for the offense[s] charged in Count[s]
[l]drie, [2] two, [3], three, [4] four and [5]
five, the United States agrees NOT to seek the
Death Penalty for these offense{s] . . ."
The agreement then stated the following to re-emphasize
the point:
'Notwithstanding, the foregoing, and pursuant to
Rule 11(c)(1)(c) of the Federal Rules of Criminal Procedure, the parties agree that in return
for the Defendant's plea of guilty to the charges in the Indictment, and the agreement of the
United States NOT to seek the Death Penalty for
the offense[s] charged in Counts [1] one, [2]
two, [3] three, [4] four a sentence of LIFE imprisonment is the appropriate disposition for
each of the offense[s] charged in Count[s] [1]
one, [2] two, [3] three, [4] four and [5] five."
See Exhibit
-
B 55 1 and 4
Misrepresentation made by the Government deem Petitioner
SCOTT'S guilty plea involuntary, whenegregiously impermissible conduct proceed the signing of the plea agreement, were
the decistion to pled was formed based on the impermissible
conduct.
Here, Petitioner SCOTT was 'misled' through NO fault of
his own, that Government disparagment interpretation in the
-25-
plea agreement, the Addendum to the presentence report by the
Government and the Statement of Reason, drafted by the District
Court, falsely assuring him the acceptance of the plea agreement was to avoid the Death Penalty.
A good example of the above egregious Government conduct
is in the origin of Fisher, egregiously impermissible conduct
requirement from Brady v United
,
397 U.S. 742, 755 90 SCt 1463,
25 LEd 2d 747 (1970)(quoting Shelton v United States, 246 F2d
571571 (5th Cir 1957). Where Judge TUTTLE'S opinion in Shelton
1, is 'clear' that TUTTLE had been concerned with situation[s]
in which Defendant's were 'misled' by promises of leniency,
"for example, a Defendant has been promised [similar to SCOTT]
by a[n] officer in one State, that if he pled guilty to the
charges in that State, he would NOT be prosecuted by officials
in another State, 17 or when a Prosecutor improperly promised a
lenient sentence.
Clearly, the Prosecutor egregiously impermissible conduct
in SCOTT case, is unquestionable, where the Government 'falsely'
and 'improperly' promise him in the plea agreement,
for LIFE
Penalty
. . .
..."
"
in return
the United States agrees NOT to seek the Death
When the Death Penalty was allegedly taken off
the table. (Prosecutor's treat "to do what the law will NOT
permit, if it 'motivate[s]' a Defendant ignorant of the impossibility, renders the plea involuntary"). Lassiter at 900
(whether that -promise[s] .orstatement[s] were made in 'good
-26t.
-
faith'
DOES NOT preclude a finding of egregious conduct. Id at
467 (citing United States v Hammerman, 528 F2d 326, 331-32 (4th
Cir 1975).
:Furthermore, had Trial Attorney JAMES 0 BROCCOLETTI, properly researched and explained to Petitioner SCOTT, that the
'DOJ' 2013 Death Penalty Protocol, set forth 'means' into making determination on how the 'DOJ,' procedure[s] applies to his
case, pursuant to Title 9-10.000 to 9-10.200.
For a[d] example, Petitioner LEROY SCOTT would have known
9-10.120, Conditional Plea Agreement states:
"The Death Penalty may NOT be sought, and NO attorney
for the Government may threaten to seek it, for the
sole purpose of obtaining a more [dJesirable negotiating. position. Absent the Authorization of the Attorney General may NOT enter into a binding agreement
that precludes the United States from seeking the
Death Penalty with respect to any Defendant falling
within the scopr of this chapter."
• .at all time, the United States Attorney or Assistant Attorney General, must make clear to ALL parties
that the Conditional Plea don't represent a binding
agreement, but is conditioned on the Authorization of
The Attorney General."
See Exhibit
-
D
Had it NOT been for Trial Attorney, JAMES 0 BROCCOLETTI'S
ineffectiveness and the Government 'egregiously impermissible
conduct,' Petitioner SCOTT would NOT have pled guilty and would
have insisted on going to trial. SCOTT would have known that
the Prosecutor in this case DID NOT have such power to negoti-
-27-
for
ate a 'binding plea agreement,' solely
the purpose of obtain-
ing a more desireable negotiating position. Nor,
'to seek or NOT
to seek' the Death Penalty, but conditional on the Authorization
of the Attorney General, who has NOT 'delegated' such power to
the Prosecutor in this case by the way of the United States Man-
ual 9-10.000 to 9-10.200.
A good illustration, see Exhibit
-
G, United. States v Jack-
son, 554 Fed. Appx. 156 (4th Cir 2014), the dissent by Circuit
Judge WILKINSON at 165.
It also should be noted, once the Attorney General submits
to withdraw a Notice of Seeking the Death Penalty, "the death
penalty may NOT be sought, and NO Attorney for the Government
may threaten to seek it, solely for the purpose of obtaining
a more desirable negotiating position. Id 9-10.120.
This is based on, generally, withdrawal, "like in Petitioner SCOTT'S case," will only be granted, if there are material
changes in the fact[s] and circumstance[s] of the case which
would have resulted in a decision at the time of the initial
determination. Id 9-10.120 to 9-10.160.
Notably, as well, the egregiously promise in ¶ 11 of the
Petitioner's binding written plea agreement, which states,
"
that it constitutes the complete plea agreement between the
United States, the Defendant and the Defendant's counsel. See
Exhibit
-
B.
The promises in ¶ 1, 4, and 11 of Petitioner LEROY SCOTT'.S
-28-
plea agreement,
"
...
must NOT have been induced by promise[s]
or threat[s], which deprive it of the character of a voluntary
act, Las s iter, 423 F2d at 900.
The truth of Petitioner SCOTT's plea agreement, went to the
heart of the prosecution's case, unfulfillable promise[s] were
made in his plea agreement. This may have induced a guilty plea
that would have NOT have been forthcoming if it was NOT for the
Prosecution's egregiously impermissible conduct. See United States v Hammond, 528 F2d 15 (1975).
Where the Supreme Court in Brady, states that the Defendant's
plea is involuntary when the misrepresentation for which the Defendant based his agreement on, could not NOT be fulfilled.
"It is well established that the interpretation of plea
agreement[s] is 'rooted' in contract law, and that each party
should recieve the benefit of its bargain." See United States
v Dawson, 587 F3d 640 (4th Cir 2009).
Here, Petitioner SCOTT cleary did NOT receive the benefit
of his bargain, as he was NEVER exposed to the Death Penalty.
The decision whether to plead guilty or to go to trial, involves
assessing the respective consequences of a conviction after
trial and a conviction based on a plea. See Lee v United States,
137 SCt 1958, 1966
,
198 LEd 2d 476 (2017).
When those consequences are, from the Defendant's perspective, similarly dire, even the smallest chance of success at
trial may look attractive. Id.
—29—
When [Petitioner SCOTT] claims that [the Government egregiously plea agreement] was the basis for his decision to either
plead guilty or go to trial, the 'focus' must be on the Defendant's decision
making. Id at 1966-7.
Petitioner SCOTT submits, but for the egregiously impermissible conduct in the plea agreement and for being 'misled' during
the Rule 11 proceedings, that the Government was still seeking
the Death Penalty, up until the time he entered his guilty plea.
Petitioner SCOTT would NOT have plead guilty and would've
insisted on going to trial. Id Fisher at 467 and Ferrara, 456
F3d at 294. Whether SCOTT plead guilty or was convicted after
trial, he had something to 'gain,' and nothing to 'lose,' by
going to trial. Such a choice is rational, Lee at 1969, and
the Court cannot conclude that a reasonable defendant in MR
SCOTT's [Petitioner] shoes, would have acted differently.
IV. THE COURT OF APPEAL ERRED IN AFFIRMING SCOTT'S CONVICTION ON
SECOND-ATTORNEY DURING RULE 11PROCESS WAS EQUIVALENT TO
CONSTRUCTIVE DENIAL OF THE RIGHT TO COUNSEL.
Also exceptional cirsumstances exist where Petitioner LEROY
SCOTT ask[s] this Court to answer the sole question of whether
MR SCOTT's second attorney's non-appearance during plea hearing
was equivalent to the Constructive DENIAL of the right to counsel in violation of the United States Constitution Sixth Amendment, when the application of 18 USC § 3005, entitles Petitioner
-30-
-
the assistance of two [2] attorney's uponindictment, where the
Petitioner, LEROY SCOTT was charged in federal court for Capital
Crime[s] under 18 USC § 924(c) § 924(;).
The lower court's decision DENYING' Habeas Relief, stating
that Petitioner's SCOTT's second attorney's non—appearance during plea hearing DID NOT result in prejudice is constrary to
this Court's precedent in United States v Cronic, 466 U.S. 648
(1984).
The circumstance(s) surrounding Petitioner SCOTT's case
amount[s] to the 'Constructive Denial' of the right to the
assistance of [2] two attorney's under § 3005. Also, the Court's
decision is contrary to Circuit Court precedent, in United States v Watson, 496 F2d 1125, 1130 (4th Cir 1973) and United States
V
Boone, 245 F3d 352, 358 (4th Cir 2001), which established
that the application of 18 USC § 3005 creates a[n] absolute
right to [2] two attorney's in case[s] where the Death Penalty
may be imposed, even where the Government DOES NOT, in fact
seek the Death Penalty.
The Fourth Circuit's interpretation of the provision in
§ 3005, applies upon indictment, for a Capital Crime. There-
fore, this Court should answer whether the [2] two attorneys
provision, § 3005, required the appearance of a second attorney
in Petitioner SCOTT's case, during a critical stage of the proceeding, namely, the plea process.
This Court should settle the exceptionally important ques-
-31--
tion of whether Petitioner's second attorney's non-appearance
during plea hearing stage[s], was equivalent to the 'Constructive Denial,' of the right of counsel, in violation of the
United States Constitution Sixth Amendment, when the application of 18 USC § 3005 'entitles' Petitioner, the assistance
of [2] two attorney's upon indictment, where the Petitioner, LELEROY SCOTT, JR., was charged with a Capital Crime.
This Court's precedent in United States v Cronic, 466 U.S.
648, 654 (1984), stated: 'a[n] accused's right to be represented
by Counsel is a fundamental component of our criminal justice
system. Lawyers in criminal cases, "are necessities, NOT luxuries." Their presence is essential because they are the means
through which the [other rights] of the person on trial are secured.
Without counsel, the right to a trial itself would be 'of
little avail.' as this Court recognized repeatedly. "Of ALL
the rights that a[n] accused person has, the right to be represented by counsel, is by far the nose persuasive for it grants
his ability to assert any other rights he may have." Id at 466
U.S. 655.
The circumstances surrounding Petitioner SCOTT's case, was
equivalent to the 'Constructive Denial' of the Right to Counsel
in violation, of the United States Constitution Sixth Amendment,
and this Court's precedent in Cronic. Id.
The lower court's decision denying Habeas Relief, stating:
-32-
"SCOTT's second attorney's non-appearance during plea hearing
did NOT result in prejudice," is contrary to the Fourth Circuit Court of Appeals precedent in United States v Watson,
496 F2d 1125, 1130 (4th Cir 1973); United States v Boone, and
the application of 18 USC § 3005, which creates a{.n] absolute
right to [2] two attorneys in case[s] where the Death Penalty
may be imposed, even when the Government DOES NOT, in fact,
seek the Death Penalty.
Petitioner SCOTT asserts that Congress first created a
right to [2] two attorney's in a Capital Case, in 1790. See
1 Stat. 118
-
119; see also Watson, 496 F2d § 1130 (Murray, J.
dissenting)(noting history of passage of two-attorney requirements).
Congress codified the [2] two attorney requirement for
Capital Case[s] in § 3005 in 1948. See 62 Stat. 814, prior
to 1994, 18 USC § 3005 provide[d], "whoever is indicted for
a
. . .
Capital Crime, shall be allowed to make his full defense
by Counsel learned in the law," and upon the Defendant's request, the District Court shall "assign to him such counsel,
NOT exceeding [2] tow, as he may desire. ." 18 USC § 3005
(1986).
In 1994, Congress amended § 3005, contemporaneously, with
the passage of the Federal Death Penalty Act of 1994, 18 USC
§
3591
-
3598 (108 Stat. 1959
provides in pertinent part:
-
1968) Section 3005 currently
'whoever is indicted for treason or other Capital Crime, shall be allowed to make his full defense by
Counsel; add the Court before which the Defendant
is to be tried, or a Judge thereof, shall promptly,
upon the Defendant's request assign [2] such counsel, of when at least 1 shall be learned in the law
applicable to Capital Case[s].
18 USC § 3005 (108 Stat. 1982)
Petitioner SCOTT asserts that 18 USC § 3005 creates a[n]
absolute right to [2] two attorneys, in case[s] where the
Death Penalty may be imposed; the interpretation of § 3005
applies upon indictment and the second attorney's appearance
is a requirement, during every stage of the proceedings.
Petitioner SCOTT asserts that 18 USC § 3005, creates a[n]
absolute right to [2] two attorney's in cases where the Death
may be imposed, even when the Government DOES NOT, in fact,
seek the Death Penalty.
The lower court, in contrast, denyin Habeas Relief, stated
that Petitioner SCOTT, did NOT have a right to second attorney
during the plea hearing, which is equivalent to Petitioner's
trial, to make adequately informed choices.
The 1994 Amendment added the phrase, 'Applicable to Capital Case[s],' to the "learned in the law,
"
Congress' intent
was to provide additional counsel in which on counsel for the
Petitioner's defense, shall be "learned in the law" of Capital
Case[s]. The Affidavit submitted during the 28 USC § 2255
proceedings, in this case at bar, demonstrates that defense
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counsel, JAMES 0 BROCCOLETTI, does NOT have any experience in
Capital Law, which such circumstance[s] amounts to a denial of
'Constructive Right' to Counsel, during a critical stage of the
proceedings.
It should be cleary noted, that the Petitioner, LEROY SCOTT
JR.,
DID NOT have the assistance of a second attorney, during
the plea hearing process, as required under § 3005.
Petitioner SCOTT was indicted under 18 USC §§ 924(c), 924
(;) which provides that the use of a firearm, resulting in death
is subjected to IMPRISONMENT for ANY term of years, or to the
Death Penalty, or to LIFE imprisonment."
18 USC § 924(;)
because the maximum punishment available by statute is death,
§ 924(;) is, by definition, a Capital Crime.
Thus, § 3005 applied to Petitioner LEROY SCOTT, JR., in
this case at bar, requiring the appearance of second attorney
during plea process.
The dispute surrounds the triggering event for application
of § 3005
--
in ALL case[s] where the death penalty could be
imposed, because the enabling statute defines it as a Capital
Crime, or only in those case[s] where the Death Penalty is actually sought, by the Government.
To determine the 'scope' of a statute, interpretation begins with it's plain text. See United States
V
Wells, 519 U.S.
482, 483 (1997)(stating that the "first criterion in the interpretative hierarchy, is a natural reading of the full text)."
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In this case, the current language of § 3005 is clear
--
the requirement of [2] two attorneys is 'triggered' upon md—
ictrnent. The statute begins with the 'phrase' "whoever is
indicted
. . .
for Capital Crime
. . ."
18 USC § 3005.
This language provides the statutory 'trigger' for the
section, and the text is clear that the statute becomes applicable upon indictment for a Capital Crime, and NOT upon the
later decision by the Government to seek or NOT to seek the
Death Penalty.
As discussed above, § 924(;) qualifies as a Capital Crime
because the Death Penalty is the maximum sentence that could
be imposed on the Petitioner, LEROY SCOTT, JR.,. If Congress
wished to limit the [2] two attorney requirement to case[s] in
which the Death Penalty is actually sought, it could have easily done so. See United States v Hood, 343 Y,S, 148, 151
(1962)(11 we should NOT read such laws so as to put in what is
NOT readily found here)."
Given the exceptional circumstance[s] of the Petitioner
LEROY SCOTTJR, case at bar, Certiorari is warranted to resolve the 'sole question,' of whether Petitioner SCOTT's second attorney's, non—appearance during the plea process, was
equivalent to the 'Constructive Denial' of the right to counsel, in violation of the United States Constitution Sixth Amendment.
When the application of 18 USC § 3005 entitled Petitioner
—36—
SCOTT to the assistance of [2] two attorney's upon indictment,
including one attorney "learned in law applicable to Capital
Case[s]" where Petitioner LEROY SCOTT, JR., was charged with
a Capital Crime.
The denial of a second-attorney during a 'critical stage'
of the proceeding[s] as required by § 3005.
Thus, requires REVERSAL.
CONCLUSION
PETITIONER, LEROY SCOTT, JR., has been deprived of basic
fundamental rights, guaranteed by the Fifth and Sixth Amendment[s] of the United States Consitution and to seek RELIEF
in this Court, to restore those rights.
Based on the argument[s] and authorities presented herein, Petitioner's guilty plea was sustained in violation of
Due Process and NOT voluntarily or intelligently entered due
to the fact, he DID NOT understand the consequences of his
plea.
Petitioner was deprived of his right to effective assistance of counsel, in the District Court and Appellate Court.
This Petition should also be GRANTED on the authority of
Buck and Slack.
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Petitioner, LEROY SCOTT JR., PRAYS this Honorable Court
wi11 {i]ssue a Writ of Certiorari and REVERSE the Judgment of
the Fourth Circuit Court of Appeals 2 .
The Petitioner for a Writ of Certiorari should be GRANTED.
Respectfully submitted on this 19th day of February 2019.
LEROY SCOTT JR
2 1f this Court elects NOT to address these [i]ssues presented in this petition at this time, it is requested that the Writ {i]ssue and the matter be
REMANDED to the Fourth Circuit Court of Appeals for RECONSIDERATION in light
of this Court's opinion in Strickland, Hill, Missouri, -Buck and Slack, all
Supra.
affic
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