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

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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)."

-35-

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

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

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