Petition for Writ of Certiorari — Peter Victor Ayika, Petitioner v. United States
Supreme Court briefMar 2, 2019
Ask Donna
What actually matters in this document.
Text
7
F \
No.c"
L,
F
I
IN THE
SUPREME COURT OF THE UNITED STATES
Supreme Court, U.S.
FILED
MAR 02 2019
OFFICE OF THE CLERK
PETER VICTOR AYIKA:_ PETITIONER
(Your Name)
VS.
UNITED STATES OF AMERICA_ RESPONDENT(S)
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF CERTIORARI
PETER VICTOR AYIKA, Pro se
(Your Name)
Federal Register NO. 33042-280
FCI LA TUNA, P. 0. BOX 3000
(Address)
ANTHONY, Tx/NM 88021
(City, State, Zip Code)
NOT APPLICABLE (N/A)
(Phone Number)
QUESTION(S) PRESENTED
[1]Whether a certificate of Appealability (COA) should issue to pursue
the Sixth Amendment claim on appeal where petitioner's rights to
Sixth Amendment constitutional right to effective assistance of
counsel was denied when counsel was ineffective in failing to move
to dismiss the indictment for violation of the Statutory and
constitutional Speedy Trial Act (STA).
Whether a COA should issue to pursue Speedy Trial Act (STA) claims
on appeal where petitioner's rights to statutory and constitutional
Speedy trial were denied when more than thirty(30) days of the STA
Section 3161(b)'s time limit was exceeded before the indictment
was returned in this case.
Whether , under the Rule of this honorable Court, the Court of Appeals
erred when it denied COA based on expressed view that claims
presented in direct appeals for the first time and never raised in
the district court are foreclosed, and therefore, preclude issuance
of a COA.
2.
'!
LIST OF PARTIES
[X] All parties appear in the caption of the case on the cover page.
[] All parties do not appear in the caption of the case on the cover page. A list of
all parties to the proceeding in the court whose judgment is the subject of this
petition is as follows:
3.
.1
TABLE OF CONTENTS
OPINIONS BELOW
.
1
JURISDICTION.............................................................................................................. 8
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............................9
STATEMENT OF THE CASE ........................................................................................10
REASONS FOR GRANTING THE WRIT .......................................... . ........................... 15
CONCLUSION................................................................................................................34
INDEX TO APPENDICES
APPENDIX A
Decision of Court of Appeals Denying COA
APPENDIX B Decision of District Court Denying § 2255 Motion
APPENDIX C - Decision of Court of Appeals' Panel Denying COA
Reconsideration Motion.
APPENDIX D' January 9, 2019 Decision of Court of Appeals' Clerk
Denying Rehearing En Banc Petition.
APPENDIX
January 31, 2019 Decision of Court of Appeals' Clerk
Denying Rehearing Reconsideration Motion.
APPENDIX F Affidavit
4.
TABLE OF AUTHORITIES CITED
CASES
PAGE NUMBER
Arrington v. Smith, 2017 U.S. App. LEXIS 17738
(5th Cir. 2017) .....................30
Baker v. Estella, 711 F.2d 44 (5th Cir. 1983) ....................32
Barnett v. United States, 384 F.2d 848
(5th Cir. 1967) ....................20,24
:uriago v. Deutch Bank, 871 F.3d 380
(5th Cir. 2017) .....................30
Buxton v. Collins, 925 F.2d 816 (5th Cir. 1991) ....................28
Causey v. Cain, 450 F.3d 601,603(5th Cir. 2006) ....................13
Campbell v. LeBlanc, 694 Fed App 275(5th Cir. 2017) .................30
Cobb v. Wainwright, 666 F.2d 966(5th Cir. 1982) ....................29
Cone v. Bell, 556 U.S. 449 (2008) ..................................32
Cook v. Lynaugh, 821 F.2d 1072(5th Cir. 1987) ......................28
Dillingham v. United States, 423 U.S. 64, 46 L.Ed 2d
205 (1958) ..................18,19,25,27
Draper v. United States, 358 U.S. U.S. 307, 3 L.Ed 2d
327 (1958) ..........................22
Funk v. Stryker, 631 F.3d 777 (5th air. 2011) ......................29
Houston v. Lack, 487 U.S. 266, 101 L.Ed 2d 245(1988) ................13
Jenkins v. Hutton, 135 S.Ct 1769(2017) ..............................33
Johnson v. Norcross, 565 Fed App 287(5th Cir. 2014) .................20
Mills v. Wainwright, 415 F.2d 787(5th Cir. 1969) ....................23
Robertson v. Piano City, 70 F.3d 21,23(5th Cir. 1995) ...............31
Singleton v. wuiff, 428 U.S. 106(1976) ..............................31
Slack v. McDaniel, 529 U.S. 473, 484(2007) .......................18,19
Soffar v. Dretke, 368 F.3d 441 (5th Cir. 2004) ....................14
Stephen Zant, 716 F.2d 276(5th Cir. 1983)... ........................ 29
Strickland v. Washington, 466 U.S. 668(1984) .....................27,28
Sterling FM Group v. Hammer, 393 F.3d 1223(11th Cir. 2004) ..........30
United States v. Adams,1995 U.S. Apfx LEXIS 42534
(5th Cir. 1995) ......................22
5.
-
CASES(cont)
United States v. Antone, 753 F.2d 1301(5th Cir. 1985) ..............22
United States v. Atkinson, 450 F.2d 835(5th Cir. 1985) .............22
United States v. Ayika, 837 F.3d 460(5th Cir. 2016) ...............12,31
,United States v. Bailey, 11 F.3d 1229(5th Cir. 1997) .............17,27
United States v. Brown, 941 F.2d 1300(5th Cir. 1991) ................22
United States v. Cabral, 475 F.2d 715(1st Cir. 1973) .............20,23
(United States v. DeTienne, 468 F.2d 151(7th Cir. 1972) ..............23
United States v. Hopkins, 318 Fed App 297(5th Cir 2009) .............30
United States v. Martinez-Espinosa,299 F.3d 414
(5th Cir 2012) ................27
United States v. Mathurin, 690 F.3d 1236(11th Cir. 2012) .............27
United States v. Molina, 535 Fed App 417(5th Cir. 2013) ...........17,27
United States v. Nixon, 634 F.2d 306(5th dr. 1981) .............20,21,23
United States v. :01ano, 507 U.S. 725(1993) ..........................32
United States v. Palomba, 31 F.3d 1456(9th Cir 1994) ..............27,28
United States •v. Rabon, 872 F.2d 589(5th Cir. 1989) .................22,23
United States v. Saunders, 476 F.2d 5 (5th Cir 1973) ................24
United States v. Rice, 431 Fed App 289(5th Cir. 2001) ..............17,27
United States v. Velazquez, 749 F.2d 161(3rd Cir 2013) ..............19
United States v. Stayton, 791 F.2d 17(2nd Cir. 1986) ................28
United States v. Velasquez, 890 F.2d 717(5th Cir. 1989) ..............27
United States v. Watson, 423 U.S. 411(1976) .........................23
Vance v. Nunnery, 137 F.3d 270(5th Cir 1998) .........................21
STATUTES:
18 U.S.C. § 287 .....................................................11
18 U.S.C. §1035 ...................................................11
18 U.C.S. § 1341 ..................................................11,12
18 U.S.C. § 1343 ..................................................11,12
18 U.S.C. § 1347 .......................................11,12,17,20,26
18 U.S.C. § 3161(b) ..........................................9,15,17,26
18 U.S.C. § 3162(a)(1) ......................................9,15,17,26
21 U.S.C. § 841 ................................................10,11,12
21 U.S.C. § 849 ....................................................11
28 U.S.C. § 2255 ............................................12,19,30,33
.
M
STATUTES (cont)
28 U.S.C. § 1254(1) ................................................8
RULES:
Fed R. App. 4(a)(1) ...............................................13
FedR. App. 40 ...................................................13
CONSTITUTION:
FourthAmendment...................................................23
Sixth Amendment ..........................................2,9,15,18,19
7.
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
FXI For cases from federal courts:
A to
The opinion of the United States court of appeals appears at Appendix
the petition and is
[I reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
[I] is unpublished.
The opinion of the United States district court appears at Appendix
the petition and is
B
[ ] reported at
; or,
[] has been designated for publication but is not yet reported; or,
[x] is unpublished.
[ ] For cases from state courts:
[Not Applicable (N/A)]
The opinion of the highest state court to review the merits appears at
Appendix
to the petition and is
[1 reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
[] is unpublished.
The opinion of the
appears at Appendix
____________________________________________
to the petition and is
[I reported at
; or,
[1 has been designated for publication but is not yet reported; or,
[I is unpublished.
1.
court
to
JURISDICTION
[X] For cases from federal courts:
The date on which the United States Court of Appeals decided my case
was 0ctber 10, 2018
[1 No petition for rehearing was timely filed in my case.
[N/A]
[XI A timely petition for rehearing was denied by the United States Court of
Appeals on the following date: January 9, 2019
,and a copy of the
order denying rehearing appears at Appendix D
[XI An extension of time to file the petition for a writ of certiorari was granted
to and including MAY 21 1 2019
(date) on MARCH 22. 2019 (date)
in Application No. _A_ (a)
.
The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).
Li For cases from state courts: [Not Applicable]
The date on which the highest state court decided my case was
A copy of that decision appears at Appendix
[ ] A timely petition for rehearing was thereafter denied on the following date:
and a copy of the order denying rehearing
appears at Appendix
[ ] An extension of time to file the petition for a writ of certiorari was granted
to and including
(date) on
(date) in
Application No. .A______
The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Sixth Amendment Right to Speedy Trial:
-
"In all criminal prosecution, the accused shall enjoy the right
to a Speedy and public trial, by an irhpartial jury of the State
and district wherein the crime shall - have been com m itted
Sixth Amendment Right to Effective Assistance of Counsel:
"In all criminal prosecution, the accused shall enjoy the right
....effective Assistance of Counsel for his defense".
The Fourth Amendment protects the right of the people to be secure
in their persons, . . . . against unreasonable searches and seizures,
shall not be violated. Under the Fourth Amendment, a warrantless
arrest by a law officer is reasonable where there is probable cause
to believe thata criminal offense has been or is- being committed.
The Fourth Amendment is . not violated by warrantless arrest where
there was probable cause for the arrest. Devenpeck v. Alford, 543
U.S. 146,153, 160 L.Ed 2d 537 (2004).
Title 18, United States Code Section 3161(b) of the Speedy Trial
Act:
If
Any information or indictment charging an individual with
the commission of an offense shall be filed within thirty(30) days
from the date on which such individual was arrested or served
with a summons in connection with such charges".
Title 18, United States Code, Section 3162(a)(1) of the Speedy Trial
Act:
"
If, in the case of any individual against whom a complaint is
filed charging such individual with an offense, no indictment or
information is filed within the time limit required by Section
3161(b)[18 U.S.C. -p3161(b)] as extended by section 3161(h) of
• this chapter [18 U.S.C. § 3161(h)], such charge against that
individual contained in such complaint shall be dismissed or
otherwise dropped".
STATEMENT OF THE CASE
This case stemmed from a 2007 joint Federal investigation,
conducted by the Federal Bureau of Investigation (FBI), Department
of Health and Human iServices, the Drug Enforcement Agency (DEA),
the Texas Attorney General and the Medicaid Fraud Controlled Unit,
in connection with petitioner's pharmacy practice in which there were
allegations that petitioner was using his position as a pharmacist
to - sell Listed Chemicals and hydrocodones ( a prescription controlled
substance) to various addicted individuals C which hereinafter form
basis for "the drug case"), and also was submitting false claims to
Medicaid and various private federal insurance programs for prescription
drugs that were not being filled or dispensed (which hereinafter form
basis for "the fraud case"). As • part of the initial investigation., the
Special F.B.I. Agent, Shanna Beaulieu, and other law enforcement
personnel from the abovernentioned agencies interviewed more than
ten(10) beneficiaries ofMedicaid and the Federal Employees of Health
Care Benefit programs. 'They also supoened bank records associated with
petitioner and Continental pharmacy which petitioner owned and operated
Following-the.-conclusion of the joint investigation and using the
-
information gattered from her direct personal knowledge during the
course of theinvestigation in culminating of, approximately two-year
long investigation and from information obtained from various law
enforcement officers, investigators and auditors from the above
mentioned agencies, the F.B.I Special Agent, Shanna Beaulieu, on
March 4, 2009, returned an eight-count indictment charging petitioner
with drug offenses violation (the drug case) alleging unlawful
possession and selling of prescription controlled substances (the
hydrocodones) and methamphetamine precursors(the pseudoephedrine) in
violation of Section 841, Title 21 United States Code docketed
in the drug case criminal case Number: Ep-09-CR-0660-FM in the district
court.
WIN
On or about March 10, 2009, the FBI Special Agent, Beaulieu,
filed 116-page affidavit [ECF NO. 397 & 3991 in support of search and
seizure warrant application stating the underlying circumstances
from which conclusion would be reached that petitioner was engaged
in health care fraud in violation of Section 1347, Title 18 of the
United States Code. The information in the affidavit, in its totality,
provides substantial basis to rely upon to establish probable cause
to believe that a crime is being committed on the premises to be
searched. In pertinent part, the affidavit states: "...Based upon
facts and Circumstances detailed herein, there is probable cause to
believe evidence of criminal violations, specifically, violation of:
Title 18 U.S.C. § 287, False claim; Title 18 U.S.C. §1035, False
Statement Related To Health Care Fraud Matters; Title 18 U.S.C. §1341,
Mail Fraud; Title 18 U.S.C. §1343, Wire Fraud; Title 18 U.S.C. §1347,
Healthcare Fraud; Title 21 U.S.C. § 8494 §841, Conspiracy To
Distribute, Namely Hydrocodone; Title U.S.C. § 841, Attempted
possession with intent to Manufacture Methamphetamine; Title 21 U.S.C.
§ 841, Possession of a Listed Chemical Knowing the Listed .Chemical will
be used to Manufacture a Controlled Substance, which constitute the
the drug case.•'Seè the "affidavit" marked as APPENDIX F attached
hereto at page 2 to 3.
On March 11, 2009, petitioner was arrestedand at the same time
seized the following assets of the petitioner in connection of the
health care fraud scheme:
$1,056,040.00 from petitioner's bank in UBA bank
$176,038.00from petitioner's:seven(7) bank accounts at Bank
of America.
$233,052.00 from the petitioner's bank account at JP Morgan
Chase Bank.
$50.908.00 from petitioner's bank account at Wells Fargo Bank.
$11,191.00 in cash located at Continental Pharmacy.
$37,264 in cash from the petitioner's residence.
2006 Toyota sequola
2006 Honda Odyssey
Residence located at 7216 Desert Jewel Dr. El Paso, Texas.
See page 4-5 of the Detension order issued after his arrest, filled
in the district court, cause number EP-09-CR-0660-FM.
11.
On August 24, 2011, a grand jury returned a three—count indictment
charging petitioner with one count of Health Care Fraud in violation of
18 U.S.C. § 1347, count One; one count of Mail Fraud in violation of
18 U.S.C. §..1341, count Two; and one count of Wire Fraud in violation of
18 U.S.C. § 1343, count Three; all three charges form the bases for the
"fraud case". [ECF NO. 1].
On August 16, 2017, petitioner, by counsel filed his motion
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence. {ECF NO. 2711.
On December 5, 2017, the district court denied § 2255 motion and
consequently denied a COA. See the district court's memorandum opinion
and order marked as APPENDIX B and attached hereto.
On April17, 2018, petitioner seeks permission from the Court of
Appeals to initiate appellate review of the district court's denial
of a COA.
On October 10, 2018, the Court improperly denied a COA on procedural
grounds concluding that "on direct appeal, this Court rejected the
Speedy Trial Act (STA) 's claim as well as the ineffective of assistance
of counsel claim based on the alleged STA violation citing the case:
United Sates v. Ayika, 837 F.3d 460, 464-65(5th Cir. 2016). And the
Court further states.thatAyika's ineffective assistance of counsel claim
is therefore foreclosed to the extend he relies on the STA. See the Court
of Appeals Decision denying a COA marked as APPENDIX A attached hereto.
On November 19, 2018, petitioner files motion for reconsideration of
the denial of a COA motion because petitioner respectfully disagree with
the Court's ruling on this accord. On the direct appeal at issue, as pro
se, the STA claim was raised for the first time and was never before
addressed in the district court below, but the appellate panel looked
at the STA claim anyway for clear error, which is impermissible review
becausse appellate Court may not review issues or claims that were never
raised in the district court and are presented in the appellate Court
for the first time, Such a review is invalid and void. The appellate
panel that undertook such review in the direct appeal erred as such the
STA claim and the ineffective assistance of counsel claims are not
foreclosed. Because the STA claim and ineffective assistance of counsel
claim reviewed in the direct appeal are invalidated, a review on the
merits of the COA petition is warranted to issue a COA.
12.
On December 3, 2018, Court denied COA without a statement of the
reason for the denial, and in the light of petitioner's reasons that
STA claim and ineffective assistance of counsel claims are not foreclosed.
Instead those claims are viable and meritorious claims and a COA should
issue to appeal the district court erroneous ruling on §2255 motion.
On December 14, 2018, petitioner moves for rehearing on the merits of
the claims raised for issuance of a COA.
On January 9, 2019, the Deputy Clerk of the Court issued. an order
stating that the time for filing an en banc rehearing has expired, and
therefore, the Court is taking no action on the petition set forth
See the Deputy Clerk's letter correspondence marked as APPENDIX D and
hereto attached.
On January 15, 2019, petitioner seeks for a reconsideration of the
Deputy Clerk's order that stated the Court is not taking no action in
petitioner's rehearing motion because the time for filing rehearing
has expired. Petitioner argued that the time for a filing of a petition
for rehearing under Fed. R. App. P. 40 was timely because the petition
was filed before the time expired. Pursuant to Fed. R. App. P. 40(a),
a petition for rehearing may be filed within 14 days after entry of
judgment. Petitioner placed his petition.for rehearing in the prison's
mailbox on December 14, 2018 following the Court's order of December 3,
2018, which indicates that the petitioner's motion for rehearing was
filed within the 14-day period permitted under Fed. R. App. P.40 under
the mailbox rule. The mailbox rule states that the petition is deemed
filed when it is placed in prison mailbox. See Houston v. Lack, 487
U.S. 266, 101 L.Ed 2d 245 (1998)(holding that a pro se prison's notice
of appeal held filed for the purpose of time limit under Rule 40
of Fed. R. App. P. at the moment of delivery to prison authorities for
mailing to the Court). Petitioner's motion for rehearing contained a
certificate of service indicating that he served the motion for
rehearing on the respondent by placing it on the prison's mailbox on
December 14, 2018 to be mailed to clerk of the Court. Petitioner's
motion would be held filed when he placed it in the prison mail system
for mailing to the Fifth Circuit Court of Appeals on December 14,2018.
See Causey v. Cain, 450 F.3d 601, 603-07 (5th Cir. 2006)(applying
mailbox rule in determining timeliness of federal habeas petition).
13.
Accordingly, petitioner motion for rehearing was timely. The deputy
clerk abuse its discretion in denying rehearing consideration where
it failed to forward petitioner's motion' for rehearing reconsideration
to the judges of the Court in order to decide the issuance of COA on
the merits of the issues raised in the petition. By so doing, petitioner
is denied a due process of the appellate procedure. Soffar v. Dretke,
368 F.3d 441 (5th Cir. 2004).
On January 31, 2009, in response to petitioner's petition for rehearing
reconsideration, the deputy clerk issued an order stating that it is
not taking any action on petitioner's rehearing reconsideration, and
as such petitioner's argument that his COA rehearing petition was
timely filed was not addressed and abandoned, thus, leaving the COA
petition in abeyance. See the Deputy Clerk's letter correspondence
marked as APPENDIX E attached hereto
On Febuary 20, .2019, because petitiOner filed a timely notice of appeal
from the order, denying the §2255 motion and COA, and because petitioner
made a substantial showing of the denial of a constitutional right
necessary to obtain a COA under §2253(c)(2), petitioner filed an appeal
in the Court of appeals - for a review of the district court adverse
judgment on his §2255 motion.
'On February 27, 2019, 'the deputy clerk of the Court of appeal issued
an order stating that it is not taking any action on petitioner's
appeal. Therefore, this petition for a writ of certiorari follows.
seeking for a review of the court of appeals'- denial of COA and
after further consideration order the issuance of a COA.
14.
REASONS FOR GRANTING THE PETITION
Petitioner is entitled to a COA as such the petition for a certiorari
should be granted to pursue the claims of the denial of petitioner's
constitutional right to Sixth Amendment right to effective assistance of
counsel and the claim of denial of petitioner's right to statutory and
constitutional Speedy Trial Act (STA).
The STA claim stemmed from the fact that petitioner was charged with the
health care fraud offense in a 116-page probable-cause-affidavit
returned on March.10, 2009 and was arrested on March 11, 2009. Then,
thereafter on August 24, 2011, a grand jury indictment for health care
fraud was returned. More than twenty nine (29) months after petitioner
was arrested on March 11, 2009, petitioner was indicted for committing
health care fraud. Thus, because health care fraud indictment was
returned more than thirty (30) days of Sectionr3161(b)!s time limit,
it required dismissal of the indictment pursuant to § 3162(a)(1) for
violation of § 3161(b) of the Speedy Trial Act.
The ineffective assistance of counsel claim stemmed from the fact that
trial counsel failed to move to dismiss the - health care fraud indictment
for statutory and constitutional speedy trial violation on the basis that
petitioner was not indicted within the thirty (30) days after his
arrest on March 11, 2009. The district court ruling on the STA claim
and ineffective assistance of counsel claims incorrectly concluded
that there was neither speedy trial violation nor ineffective
assistance of counsel. In reaching its conclusion, district court
determined that petitioner was not arrested for fraud case on March 11,
2009 arrest, instead petitioner was arrested for drug case only,
and therefore, petitioner cannot rely on March 11, 2009 arrest date
to show fraud case speedy trial violation, and for that matter,
petitioner was under investigation for health care fraud at the time
of the initial arrest on March 11, 2009. See the district court's
memorandum opinion and order marked as Appendix B and attached hereto.
The district court clearly erred in its ruling that there was neither
STA violation nor ineffective assistance of counsel: And also district
court clearly erred in its ruling that the arrest for fraud case was not
rested on the initial March 11, 2009 arrest date.
15.
When petitioner initiated the COA motion, the Court of Appeals denied
the initial COA petition on procedural grounds without reaching the
petitioner's underlying federal constitutional claims concluding that
the STA claim and ineffective assistance of counsel claim have been
reviewed on direct appeal and rejected, and therefore, foreclosed.
The court of Appeals was incorrect in its procedural ruling. The STA
claim and the ineffective assistance claim were presented for the first
time on direct appeal and were never raised in the district court.
It is well settled precedent in the Court of Appeals that argument or
issues not presented in the district court shall not be considered for
the first time on appeal. In this regard, therefore, the Court of
Appeals may not review these claims that were not raised in the
1istrict court and were presented in appellate court for the first time.
The procedural ruling was wrong and improper and to use it:in denying
a COA works against justice. The Court of Appeals abuse its discretion
in denying a COA motion on that basis.
Therefore, the issues presented here for review is to determine:
(1)-Whether there were Statutory and Constitutional Speedy trial
violations which constitute the denial of petitioner's rights to
Speedy Trial Act.(STA).
To review the issue of the STA violation, it is necessary to
determine whether March ii, 2009 arrest date was also the arrest
date for health care fraud case; and whether the record indicates
that authorities were still investigating petitioner for health
care fraud at the time of the March 11, 2009 arrest.
Whether counsel was ineffective in failing to move to dismiss
indictment for Speedy Trial Act (STA) violation.
Whether, under the Rule of this Honorable Court, the Court of
Appeals erred when it denied COA based on expressed view that
claims presented in the direct appeal for the first time and were
never raised in the district court are foreclosed, and therefore,
precludes issuance of a COA.
16.
[1]
WHETHER THERE WERE STATUTORY AND
CONSTITUTIONAL SPEEDY TRIAL VIOLATIONS
On March 10, 2009, probable-cause--affidavit alleged that
petitioner violated among other offenses, Section 1347, Title 18
of the United States Code, the health care fraud offense.
On March 11, 2009, a day after the affidavit was filed, petitioner
was arrested in connection with the charge.
On August 24, 2011, petitioner was indicted by a grand jury for
violation of 18 U.S.C. § 1347, the health care fraud offense, which
is the same statutory Section 1347, Title 18, United States Code
which was cited in the probable-cause--affidavit filed on March 10
2009. The indictment returned more than 29 months after petitioner
was charged with commission of federal offense and arrested upon
such complaint was clearly returned more than thirty(30) days of
§3161(b)'s time limit requiring dismissal of the indictment pursuant
to § 3162(a)(1) for such § §3161(b) violation. The thirty-day requirement-applies to an indictment issued in connection with federal
criminal offense for which defendant was arrested. United States v.
•Molina, 535 Fed Appx417 (5th Cir 2013). The cleat mandate of
18 U.S.C. §3162(a).(1), requires dismissal of only charge contained
in the original complaint or in the original accusatory instrument.
United States v Bailey, 111 F.3d 1229 (5th Cir 1997)(quoting
United States v Rice, 431 Fed Appx 289 (5th Cir 2001) which as
here, the affidavit of probable cause in support for search and seizure warrant application was the initial accusatory instrument in this
instant case on which petitioner was accused for violation of health
care fraud offense. See page 2 of the Affidavit. Thus, because the
health care offense indictment was untimely as more than thirty days
had elapsed between the initial arrest and the health care fraud
indictment, it requires dismissal for violation of petitioner's
statutory right to a Speedy trial under the Speedy Trial Act, which
support claim that counsel was ineffective for failing to move to
dismiss the indictment for Speedy Trial Act violation.
17.
Furthermore, the preindictment delay of more than 29 months also
constituted
a violation of petitioner's Sixth Amendment right to
a Speedy Trial and yet the defense counsel failed to raise that
petitioner had been denied a Speedy trial in violation of the Sixth
Amendment. The protection of the Sixth Amendment right to Speedy
trial is activated only when a criminal prosecution has begun and
extends only to those persons who have been accused in the course of
the prosecution. Dillingham v. United States, 423 U.S. 64, 46 L.Ed
2d 205, 96 S.Ct 303 (1975).
An accusation has generally been considered to include the actual
restraints imposed by arrest and holding to answer a criminal charge,
Id Dillingham, supra. Thus, the 29 month—delay between petitioner's
arrest and indictment in this instant case violates petitioner's
Sixth Amendment Constitutional rights to a Speedy trial, requiring
dismissal of the indictment for unnecessary prosecutorial delay.
The -district court. denies petitioner's •habeas relief concluding that
there was neither Speedy Trial Act violation nor Sixth Amendment
Speedy trial violation. Petitioner submits that district court erred
in concluding that there was neither Speedy Trial Act violation nor
Sixth Amendment Speedy trial violation. Nonetheless, an overview of
the Speedy trial claim, upon the relevant law and record, in this case
clearly support claim that petitioner's Statutory right and the
Sixth Amendment constitutional right to a Speedy trial were violated.
The district court's adjudication of the Speedy trial claims is
unreasonably wrong, thus debatable as such there is a practical
certainity that the jurists of the reason would disagree with
the district court's resolution of the petitioner's constitutional
claims, and therefore, would find the district court's ruling
debatable or wrong, Slack v. McDaniel, 529 U.S. 473, 484 (2007).
The record reflects that there was approximately 29 months delay
between the time when the indictment was returned and petitioner's
arrest in connection with health care offense. On its face, the 30day requirement was exceeded which is clear violation of Speedy Trial
Act, §3161(b). Furthermore, the constitutional right to a Speedy
attaches when a person is arrested. Dillingham, 423 U.S. 64,
46 L.Ed 2d 205 (1975). Thus, the 29—month delay between petitioner's
18.
-
arrest and indictment violates petitioner's Sixth Amendment Constitutional right to a Speedy Trial, requiring dismissal of the indictment
for unnecessary prosecutiorial delay.
The record is inconclusive as to the reason for the delay between
arrest and indictment. At very least, there is some question as to
whether the government diligently pursued petitioner from arrest
to indictment. United States v. Velazquez, 749 F.3d 161 (3rd Circ.
2013). Based on these substances, there is practical certainity
that jurist of the reason would find it debatable whether the
petitioner states a valid claim of the denial of a constitutional
right, and therefore, would find it debatable whether district court
was correct in its Speedy trial ruling. Slack v. McDaniel, 529 U.S.
484 (2007). The 29-month delay between petitioner's arrest and
indictment denied petitioner a Speedy trial in violation of the
Statutory and Constitutional Speedy Trial Act, and the indictment
should have been dismissed on the grounds that petitioner had been
• denied a Speedytrial under Sixth Amendment. Id Velazquez supra.
The protection of the Sixth Amendment is activated only when a
crimininal prosecution has begun and extends only to those persons
who have been accused in the •course of that prosecution. Dillingham
v. United States, 423 U.S. 64, 46, L.Ed2d 205 1 96 SCt 303(1975).
Thus, the :29-inonth delay between petitioner's arrest and indictment
violates.petitioner's right to Statutory and Constitutional rights
to a Speedy trial for unnecessary delay in asserting that district
court abuse its discretion in denying petitioner's §2255 motion.
Henceforth, petitioner urges this Honorable Court to issue a COA in
order to appeal the district court ruling, where it was clear to anyone
that petitioner was denied a constitutional right guarantee by Sixth
Amendment's Speedy trial of United States Constitution.
'19.
WHETHER MARCH 2009 ARREST WAS THE ARREST
DATE FOR HEALTH CARE FRAUD AS WELL
The district court ruling on STA claim incorrectly determined that
there was neither statutory nor constitutional Speedy trial violation.
.In reaching its conclusion, district court determined that petitioner
Was not arrested in the fraud case on March 11, 2009 arrest, instead he
was arrested for drug case only, and therefore, petitioner cannot rely
on March 11, 2009 arrest date to show a violation of Speedy trial for
he fraud case. See the district court Memorandum opinion and order
marked as APPENDIX B and attached hereto.
In other words, the district court determines that March 11, 2009
arrest was not for fraud case because: (1) March 11, 2009 arrest was
for drug case only for which arrest warrant was issued. (2) An arrest
warrant to arrest petitioner for fraud case had not been issued at the
time of March 11, 2009 arrest, therefore,. fraud case was not included
in the March 11, 2009 arrest, and (3), the fraud case was undergoing
investigation at that time of March 11, 2009 arrest. The district court
determination in these regards are unpersuasive and are clearly
unreasonable and wrong.
However, petitioner submits that the initial March 11, 2009 arrest
was also for fraud case as well because the Special FBI Agent's
constructed affidavit, upon sworn allegation, established probable
cause that petitioner committed health care fraud in violation of
Section 1347, Title 18, United States Code. Johnson v. Norcross, 565
Fed. Appx 287 (5th Cir. 2014), and the drug case underlying the
March 11, 2009 arrest was reasonably related to fraud case. United
States v. Nixon, 634 F.2d 306 (5th Cir. 1981), henceforth, the initial
arrest would have started the critical period for fraud case trial.
United States v. Cabral, 475 F.2d 715 (1st Cir. 1973). Furthermore,
the affidavit does not demonstrate that petitioner was charged ( or for
that matter booked for health care fraud investigation but rather
was charged with specific offense of healthcare defrauding and there
was probable cause to make a constitutional arrest for the fraud case on
March 11, 2009 based on existence of the probable cause. Barnett v.
United States, 384 F.2d 848 (5th Cir. 1967).
20.
t
Y
The principal facts under consideration involved the related drug
crime and health care fraud crime by reason of the fact that they
might have been charged on a given set of facts stemming from 2007
joint federal investigation and their commissions had occurred in-:the
same locality and at the same relevant time period.
An undisputed evidence shows that law enforcement officer had before
the arrest marshalled facts sufficient in her professional judgment
to charge petitioner with two specific offenses, namely the drug and
health care fraud offense in a sworn affidavit before a magistrate
alleging violation of these two crimes.The drug offense underlying
the initial March 11, 2009 arrest was based on the same given set
of facts arising out of the accusatory probable—cause—affidavit that
also charged health care offense and both crimes were committed in
the same locality and within the same relevant time period, thus,
making the two crimes reasonably interrelated. United States v. Nixon,
634 F.2d 306 (5th Cir. 1981). An arrest warrant was issued for drug
case but not for fraud case for which probable cause existed and
petitioner was arrested on March 11, 2009.
The district court and the government take the position that
the initial arrest of petitioner on March 11, 2009 was for drug crime
only on the basis that arrest warrant has been issued for drug
offense and not for health care fraud crime. However, petitioner
takes the position that the initial March 11, 2009 arrest also was
for the health care fraud crime for which probable cause existed for
arrest at the time of the March 11, 2009 arrest. Whether an arrest on
health care fraud is valid depends upon whether at the moment the
arrest was made, the drug crime underlying the arrest and health care
fraud crime were reasonably related. Id.
There are two settings identified in which a warrantless arrest
could be constitutionally valid and lawful when two or more - charges
are found against a person. Vance v. Nunnery, 137 F.3d 270 (5th Cir.
1998). First, in cases where probable cause exists or present.
Second, in cases where the two offenses being committed are reasonably
related. Petitioner submits that the facts of this case place
March 11, 2009 arrest in this category because there was probable
cause to arrest petitioner for health care fraud; also the drug case and
the fraud case are reasonably related.
21.
PROBABLE CAUSE EXISTED:
In this instant case, petitioner submits that March 11, 2009 arrest
also constituted arrest of petitioner for health care fraud offense
because probable cause existed at the time of the arrest. United
States v Antone, 753 F.2d 1301 (5th Cir 1985). If probable cause
to arrest petitioner for health care fraud offense existed at the
time of March 11, 2009 arrest, then there is without doubt reasonable
grounds to believe that there was arrest of petitioner for health care
fraud as well on March 11, 2009. Draper v Udited States, 358 U.S. 307,
3 L.Ed 2d 327 (1958)(holding that arrest is lawful if the arresting
officer had probable cause within the meaning of the Fourth Amendment
which authorizes arrests upon probable cause and reasonable grounds).
Thus, to arrest petitioner for health care fraud violation, without
warrant, a probable cause is required to arrest petitioner. United States
v. Adams, 1995 U.S. Appx. LEXIS 42534 (5th Cir. 1995).
The Special F.B.I. Agent's affidavit for search and seizure warrant
application clearly provideda substantial basis for - Magistrate finding
of probable cause that petitioner committed health care fraud to issue
search warrant. United States v. Brown, 941 F.2d 1300 (5th Cir. 1991).
• Accordingly, the facts set forth in the affidavit provide sufficient
facts relied 'upon to establish probable cause to believe
that health care..fräud offense is being commited or has been committed
and petitioner committed it. See the affidavit at page 2, marked as
APPENDIX F and attached hereto. Thus, probable cause existed for
petitioner's arrest on health care fraud charge. United States v. Rabon,
872 F.2d 589 (5th Cir. 1989). Therefore, there was a valid arrest
of the petitioner for health care fraud on the initial March 11, 2009
arrest.
THE TWO ALLEGED CRIMES ARE RELATED:
Notwithstanding the existence of probable cause to arrest petitioner
for health care fraud, the drug case and the fraud case are reasonably
related by virtue of the facts that the two crimes stemmed from set
of facts derived from 2007 joint federal investigation and both
the drug case and the fraud case are charged on the same accusatory
probable—cause—affidavit from which facts are relied upon to issue
22.
II
4
I
,
search warrant. Thus, on the sum basis of the facts of the investigation
and affidavit, it is foreseeably true to reach a conclusion that the
drug case and the fraud case are sufficiently related. United States v.
Nixon, 634 F.2d 306 (5th Cir. 1981). See also United States v. DeTienne,
468 F.2d 151 (7th Cir. 1972). In United States v. Nixon, Supra, the
Fifth Circuit Court held that: " ...If the crime for which a defendant
is ultimately prosecuted is but a part of or really glides the charge
underlying his initial arrest and different accusatory dates between
them are not reasonably explicable, the initial arrest may well mark
the Speedy trial provision's applicability as to prosecution for all
the interrelated offenses". Because the drug case and the fraud case are
reasonably related, the March 11, 2009 drug case's arrest also constitu—
te the arrest date for the fraud case. Id.
In United States v. Atkinson, 450 F.2d 835 (5th Cir. 1971), the Fifth
Circuit Court held: ". ..We want it well understood that when a crime
under, which the arrest is made and the crime for which probable cause
exists are in some fashion related, there is no question but there is.
valid arrest". See also Mills v.. Wainwright, 415 F.2d 787 (5th Cir.
1969). Because probable cause existed at the time of the arrest for
fraud -case arrest and the drug case and the fraud case are reasonably
related, there was a valid arrest of petitioner for health care fraud
crime onMarch11, 2009 arrest as well. United States v. Rabon, 872 F.2d
589 (5th Cir. 1989). See also United States v. Watson, 423 U.S. 411, 46
L.Ed 2d 598 (1976)( held that Fourth Amendment does not require a
warrant for an arrest made on a probable cause, thus held, that Fourth
Amendment is not violated by warrantless arrest where there is probable
cause for the arrest). Therefore, March 11, 2009 arrest constituted a
valid arrest of well established law for the health care fraud offense
for which probable cause existed for arrest. Henceforth, the Speedy
trial claim for fraud case crystalized at the time of the initial
arrest on March 11, 2009. United States v. Cabral, 475 F.2d 715 ( 1st
Cir. 1973).
The district court in attempt to invalidate health care fraud
arrest on March 11, 2009, and to support its ruling that petitioner
was not arrested on March 11, 2009 for healthcare fraud case, stated
in its memorandum opinion and order: "...Notwithstanding the fact
23.
the search warrant affidavit indicates authorities were investigating
Ayika for healthcare fraud, he was not arrested on the fraud case
prior to his indictment on 2011...". See the district Court memorandum
opinion and order, [ECF NO. 400], marked as APPENDIX B and attached
hereto, at page 11-12. The government, however, did not raise this
argument. To the extent the district court asserted that government
was investigating petitioner for healthcare fraud case, it is incorrect..
In this instant case, petitioner was charged with a specific offense
statute, the §1347 healthcare fraud, and there was probable cause to
arrest petitioner for commission of that offense. Thus, the arrest
was valid and so was constitutionally lawful. Barnett V. United States,
354 F.2d 848(5th Cir. 1967). The districL court imprecise statement
that authorities were investigating petitionerat the moment of the
March 11, 2009 arrest will not invalidate that arrest for healthcare
fraud offense. In Barnett, supra., the Fifth Circuit held that where a
-
valid legal basis relied up.on-.t,o arrest and detain exists, the use by
- the jailer of an imprecise term,,. "for investigation", to describe the
basis for arrest and detention will not invalidate the arrest and
detention in.' view of finding of probable cause. id at 856. The arrest
based on constitutional. probable. cause for §1347. healthcare violation
did not become unconstitutional, because authorities were investigating
petitionerfor health-care offense charged in'the.aff'idavit..
Furthermore, the district court, in support of.its ruling, that
petitioner was not arrested in March 11, 2009 for health care
fraud stated that: "... Special Agent Beaulieu also testified that
Ayika's arrest on March 11, 2009 was for drug case and not for
health care fraud, wire fraud or mail fraud...". The district
court ruling is incorreèt. The fifth Circuit,in United State v.
Saunders, 476 F.2d 5 (5th Cir. 1973) has held that when an arrest
was made which is properly supported by probable cause for certain
offenses, neither an objective reliance of existence of other
offense for arrest of defendant nor verbal announcement of wrong
offense by enforcement officer vitiates the arrest or affect the
result. Thus, Agent, Beaulieu's testimony that petitioner's arrest
on March 11, 2009 was not for health care fraud did not change the
24.
validity of fraud case arrest of petitioner on March 11, 2009 for
which probable cause existed for arrest of the petitioner. Thus,
district court's ruling that petitioner was not arrested for fraud
case on March 11, 2009 was unreasonably wrong. Petitioner was arrested
for health care fraud as well on March 11, 2009 he was arrested
because the drug case underlying March 11, 2009 arrest is related
to health care fraud case for which probable cause to arrest existed,
therefore, there was a legal and valid health care fraud arrest on
March 11, 2009 as well, which support claim that petitioner's right
to Speedy trial under the Statutory and Sixth Amendment Speedy trial
has been denied. Dillingham v. United States,423 U. S. 64 (1975) where
29 months had elapsed after his arrest to return the fraud case
indictment.
25.
[2]
WHETHER COUNSEL WAS INEFFECTIVE IN FAILING
TO MOVE TO DISMISS INDICTMENT FOR
SPEEDY TRIAL ACT VIOLATION
On March 10, 2009, a probable—cause—affidavit, filed in this case,
alleged that petitioner violated, among other offenses, Section 1347,
Title 18 of the United States Code the health care fraud offense.
On March 11, 2009, a day after the affidavit was filed, petitioner
was arrested in connection with the charges alleged in the affidavit.
On August 24, 2011, an indictment was returned .charging the health
care fraud offense, § 1347, the same offense charged in the affidavit
of probable cause.
Pursuant to Sec. 3161(b) of the Speedy Trial Act, an indictment
charging individual with commission of an offense shall be filed
within, thirty days from the date on which such 'individual was
arrested in connection with such charges against him See 18 U.S.C .,
'
3161(b). And 18 U.S.C. §3162(a)(1) provides in part that if no
indictment is filed within the time limit as required by § 3161(b)
such cha'rges.against.that individual in such complaint shall be
dismissed. See 18U.S.C. § 3162(a)(1). V
•,
Affidavit filed on March 10, 2009 alleged that there was probable
cause to believe that petitioner has committed health care fraud in
violation of Sec 1347. On March 11, 2009, petitioner was arrested
in connection with the charges in the probable cause affidavit.
Ultimately, the health care fraud offense, § 1347, among other
charges in the probable cause affidavit formed the basis for the
March 11, 2009 arrest.
On August 24, 2011, petitioner was indicted by a grand jury for
violation of 18 U.S.C. §1347, the health care fraud offense, which
is the same statutory Section 1347, Title 18.of United States Code
which was cited in the probable cause affidavit filed on March 10,
2009. The indictment returned more than 29 months after petitioner
was charged with commission of federal offense and arrested upon
such charge was clearly returned more than thirty(30) days of
§3161(b)'s time limit requiring dismissal of the indictment pursuant
26.
to §3162(a)(1) for §3161(b) violation. The 30-day requirement applies
to an indictment issued in connection with criminal charges for which
defendant was arrested. United States v. Molina, 535 Fed Appx 417
(5th Cir 2013). The clear mandates of §3162(a)(1) requires dismissal
of only charge contained in the original accusatory instrument.
United States v Bailey, 11 F.3d 1229(5th Cir 1997)(quoting United
States v Rice, 431 Fed Appx. 289(5th Cir 2001). Thus, because the
health care offense returned was untimely as more than thirty days had
elapsed between the initial arrest and the fraud indictment requiring
dismissal, petitioner submits that the indictment should have been
dismissed, United States v Mathurin, 690 F.3d 1236(11th Cir. 2012). See
also United States v. Martinez-Espinosa, 299 F.3d 414(5th Cir 2002),
and defense counsel was ineffective for failing to move for dismissal
of the indictment for statutory and constitutional Speedy trial violation. United States v. Palomba, 31 F.3d 1450(9th Cir 1994) and
Dillingham v United_States,.423 U.S. 64, 46 L.Ed .2d 205 (1975)
Defense counsel failure to identify the delay between the probable
cause affidavits' charges, the arrest and the issuance of indictment
fell below an objective standard of reasonableness and it pr ejudiced
petitioner. Strickland vWashington, 466 U.S. 668, 104 S Ct 2055
(1984). Under a plain reading of § 3161(b), an indictment must have
been filed within 30-day from that arrest on March 11, 2009.
However, the indictment was not issued until August 24, 2011. Thus,
it was apparent at the time petitioner was indicted that the
pre-indictment delay violated § 3161(b). Under the circumstance,
counsel should have moved to dismiss the indictment based on the
apparent violation of § 3161(b). Defense counsel's failure to dismiss
the health care fraud indictment for violation of §3161(b) fell
below an objective standard of reasonableness. Id Strickland, supra.
Had counsel sought dismissal of the indictment for Speedy Trial
Act violation, the district court should have dismissed the indictment because dismissal is mandatory when the arrest-indictment delay
exceeds the 30-day time limitation as required by § 3161(b). United
States v. Velasquez, 890 F.2d 717 (5th Cir 1989). See also
United States v Martinez-Espinosa, 299 F.3d 414 (5th Cir 2002).
Failure of counsel to pursue for dismisal as a result of Speedy
Trial Act violation undermines the confidence in the outcome of this
27.
case, because, quite frankly, but for counsels deficient performance,
the result of the proceeding should have been different in that the
district court should have dismissed the health care fraud indictment
with prejudice against reprosecution because the delay of 29 months
to return indictment after arrest is enormous, serious and severe
delay which is measured as violation of Speedy Trial Act that warrant
dismissal with prejudice and sufficient alone by itself to bar reprosec—
ution. See United States v. Stayton, 791 F.2d 17 (2nd Cir. 1986).
The record reflects that there was approximately 29 months delay
between the time of petitioner's arrest and return of indictment for
health care fraud and defense counsel did not diligently pursue to
dismiss indictment; on its face, petitioner was denied effective
assistance of counsel guarantee by Sixth Amendment of United States
Constitution. Strickland v. Washington, supra. District Court's
determination that there was no ineffective assistance of counsel was
erroneous and unreasonable. Because petitioners rights under the
Statutory and Constitutional' 'Speedy trial were violated and defense
counsel' failed to move to dismiss the indictment on the apparent
Violation, accordingly,, the indictment must be dismissed. United
States v.. Palomba, 31 F.3d 1456 (9th Cir. 1994). Petitioner is entitled
to 'redress ón'appeal, henceforth, entitled 'to 'a COA where petitioner
has established that he is entitled to relief on the merits of his
claims, Buxton v Collins, 925 F.2d 816 (5th Cir. 1991), and has
shown that he was denied a constitutional right to effective
assistance of counsel quarantee by the Sixth Amendment, Cook v.
Lynaugh, 821 F.2d 1072 (5th Cir 1987). Therefore petitioner,
respectfully urge this Honorable Court to grant a COA to appeal the
district court's ruling.
ME
I
{3]
WHETHER THE COURT OF APPEALS ERRED WHEN IT DENIED COA
BASED ON EXPRESSED VIEW THAT CLAIMS PRESENTED IN THE
DIRECT APPEAL FOR THE FIRST TIME AND WERE NEVER RAISED
IN THE DISTRICT COURT ARE FORECLOSED, AND THEREFORE,
PRECLUDES ISSUANCE OF A COA.
This petition for a certiorari arises in a matter regarding the denial
of a COA on incorrect grounds that STA claim and ineffective assistance of counsel claim were reviewed on direct appeal and rejected by
Court of Appeals, and therefore, foreclosed. Petitioner respectfully
disagree with the court's determination and conclusion. Petitioner
as a pro se presented the STA claim for the first time and was never
before raised in the district court below relying on ineffective
assistance of counsel claim. The appellate court instead to decline
review of the claims looked at the claims for clear error, which is
impermissible because appellate court may not review issues or claims
that were not raise.d in the district court and are presented in the
appellate court for the first time, Stephens v. Zant, 716 F.2d 276
(5th Cir. 1983). In such c ircumstances,- the appell a te court may
consider the issues only in exceptional •cases where it is necessary
to prevent grave miscarriage of justice or preserve the integrity
of justice proceeding. id . Suffice to say that this is not such a
case presented here, so appellate court should have properly
decline the STA claim review. Needless tosay, the STA claim review
is at best flawed and invalid. The STA claim raised for the first time
on appeal and was never presented in the district court is not subject
to plain error review. The appellate panel erred in undertaking such
review. The practice and procedure providing jurisdiction to Court of
Appeals require that issues or claims of the district court's decisions
be subject for further review for clear error in appellate courts. But
as here, the STA claim has not been looked at by district court, and
therefore, is not subject to appellate review. It is long well
settled law in the Fifth Circuit that argument not presented in the
district court shall not be considered for the first time on appeal.
See Stephen v. Zant, supra. See also Cobb v. Wainwright, 666 F.2d
966 (5th Cir. 1982). In Funk v. Stryker, 631 F.3d 777 (5th Cir.
2011), the Fifth Cir. Court of Appeals has held that the Court lacked
appellate jurisdiction to consider the cinims raised by Stryker for
29.
the first time on appeal because the claim was not before the district
court, therefore, the Court is foreclosed from considering the claim.
Fifth Circuit Court has generally held that it will not consider an
argument not raised in the district court and presented for the first
time on appeal. See Burciago v. Deutch Bank, 871 F.3d 380(5th Cir 2017)
(held that the scope of appellate review is limited to matters presented to the district court; argument not raised in the district court
cannot be asserted for the first time on appeal unless such review is
necessary to prevent a miscarriage of justice). See Campbell v. LeBlanc,
694 Fed. Appx 275(5th Cir..2017)(Court held that as ageneral rule,
this court does not review issues raised for the first time on appeal).
See Arrington v. Smith, 2017 U.S. App. LEXIS 17738(5th Cir 2017)(held
that issues 1 and 2 were not raised in the district court so we do not
consider them here quoting Johnson v. Quarterman,483 F.3d 278(5th Cir
2007)). See United States v. Hopkins, 318 Fed Appx 297(5th Cir 2009)(
the Court held that the issue of ineffective assistance was not raised
in the district court and was not addressed, we decline to consider
the claim.. Hopkins is not precluded from raising the merits of his
ineffective assistance claim in a timely §2255 motion).
Following the well settled procedure, which restricts 5th Circuit to a
review of issues or claims presented to district court, it would of
course be inappropriate and improper for the appellate court to
consider the STA claim for the first time and was not before the
district court. The panel should have declined to consider the STA
claim because the STA claim that has not been presented in the
district court shall not be considered for the first time on appeal.
See Sterling Fin. Group v. Hammer, 393 F.3d 1223,1226(11th Cir 2004).
Because appellate panel undertook impermissible STA claim review and
ineffective assistance review where it should'nt, they are discarded
and void. Notwithstanding undertaking an impermissible review, the
appellate panel also caused an omission of a crucial "affidavit"
record-evidence required to aid the decisional process of the STA
claim and ineffective assistance claim by denying
Motion to Supplement the Record on Appeal (ROA) with a crucial 116-page affidavit
record that also was never been filed in district court's docket by
30.
-
.
V
.
-_
prosecution. See the appellate Court's opinion footnote NO.28 in
United States v. Ayika, 837 F.3d 460 (5th Cir 2016)(stating:
"...Furthermore, Ayika motion for reconsideration of the Clerk's
order denying his motion to.supplement.ROA with ... affidavit supporting
a search and seizure warrant ...is denied".)
Thus, the ROA before the panel was devoid of the affidavit evidence
required to permit the panel to make a fair evaluation of the STA
claim when it undertook to review the STA claim. Furthermore, issues
raised for the first time on appeal that involve factual determination that could have been resolved in district court generally do not
rise to the level of plain error review. Robertson v Piano City,
70 F.3d 21, .23 (5th Cir. 1995). A determination of petitioner's
STA violation would require resolution of the factual issues leading
to alleged STA violation which are contained in the 116-page affidavit.
Rejecting the 116-page affidavit as part of the ROA otherwise rejected
admission of valuable evidence 'required to decide merits of the claims.
Supreme Court in Singleton v. .Wulff, 428 U.S. 106(1976) has held that
a federal .appellatecourts generally do not consider issues which
havenot' been presented to the district court. The Supreme Court
explained that this, is essential inorde.r that parties may have the
Opportunity to offer evidence, they believe, relevant to the issues.
This being so injustice was more likely to be caused 'than avoided
by deciding issues without defendant having had an opportunity to be
heard in the district court. In rejecting the 116-page affidavit as
part of ROA, the appellate panel took the position that the 116-page
affidavit is not part of the district court record.
The 116-page affidavit is a crucial record required to permit the
panel to make a fair evaluation of STA claim and ineffective assistance
claim. Indeed, the 116-page affidavit is necessary and valuable record
required to aid in the decisional process of the STA claim and the
ineffective assistance claim. Had the 116-page affidavit record was
allowed to become part of the ROA for review, petitioner should have
prevailed on STA claim and ineffective of assistance claim because
the panel should have found a STA violation which support claim that
counsel was ineffective and consequently dismissed the indictment with
prejudice to reprosecution. In the absence of the 116-page affidavit,
the STA claim and ineffective assistance claim review would be without
merits as the required evidence-record needed to determine the merits
31.
01
Ic
of the claims is lacking. Because the presence of the 116-page
affidavit indeed sensibly establish evidence in the record showing
STA violation and denial of effective assistance of counsel, its
rejection as part of the review record and couple with the impermiss-
ible review by the panel were clear error that actually cause a manifest injustice. - The error was plain and affected petitioners
substantial right and also affected the fairness of the proceeding in
the district court and the Court of Appeals. Thus, the outcome of
the panel decision ( i.e. the rejection of the 116-page affidavit as
part of the ROA and undertaking an impermissible review of the claim)
amount to miscarriage of justice that seriously affect the fairness,
integrity and public reputation of the judicial proceedings. United
States v. Olano, 507 U.S. 725(1993) Because the STA claim and the
ineffective assistance of counsel claim were not presented in the
district court and were raised in the appellate court for the first
time, those claims were not proper before Court of Appeals, therefore,
the court of appeals procedurally erred by finding that the STA
claim and the ineffective assistance of counsel claim has been
reviewed in 'the direct appeal and foreclosed. The review to grant
a COA'is limitted.to the grounds upon which district court's ruliings
were sought and - had. The Court of Appeals, disregarding its own rule
and standard of practice, entertained an issue that was not mentioned
at all in the district court and was mentioned only in direct appeal
brief without any development in the district court. See Cone v. Bell,
556 U.S. 449 (2008). Because government did not raise the procedural
default in the district court, the Fifth Circuit denial of a COA rests
on erroneous premises and must therefore be vacated since there is no
record that district court denied those claims on procedural grounds.
Baker v. Estella, 711 F.2d 44 (5th Cir. 1983). In addition, because
the reviewed STA claim and ineffective assistance.óf counsel claim in
direct appeal are impermissible and therefore invalidated under the
rule of Court of Appeals and under the rule of this Honorable Court
which provide that such claims presented in direct appeal for the first
time are not reviewable where they were not raised in district court,
the review is therefore void as such those claims are not procedurally
barred or foreclosed in § 2255 motion for that matter.
32.
br
Hothwithstanding the procedural default, petitioner urges that this
Honorable Court should reach the merits of petitioner's claims to
avoid a fundamental miscarriage of justice where petitioner has
shown by clear and convicing evidence that no reasonable jurist
would have concluded that: (1) petitioner's constitutional right was
not violated by counsel's ineffective assistance, (2) or conclude
that petitioner's rights to statutory and constitutional speedy trial
were not violated for that matter. Jenkins v. Hutton, 135 S. Ct 1769
(2017).
Above all, there are very strong reasons for granting certiorari in
this matter. Most importantly, fundamental rights are at stake.
The Sixth Amendment rights have been seriously violated and undermined.
The Court of Appeals unreasonably applied procedurally default in
denying petitioner's claim of ineffective assistance of counsel claim
and the STA claim. The application of a procedural default rule
that would prevent petitioner from presenting a valid claim especially
when the claim is one of effective assistance of counsel that is bedrock
principle of our justice system is of a serious concern. Ayestas v.
Davis, 200 L.Ed 2d.376 (2007). The district court and the Court of
Appeals denial of Sixth Amendment claims in light of its merits has
led to practical problems and abuse and rendered their decisions
unconstitutionally wrong. Further, the district court and Court of
Appeals denial of Sixth Amendment is inconsistence with other Sixth
Amendment cases, notably the Strickland case. Having recognize the
importance of following precedent, it is. important that Supreme Court
should review the questions involved tw determine whether district
court and the Court of Appeals' decisions were contrary to or inolved
an unreasonable application of clearly established federal law in I
light of Strickland. Sexton v. Beaudreaux, 138 S.Ct 2555(2018).
33.
CONCLUSION
Because petitioner's rights to statutory and constitutional speedy
trial were violated and because it is obvious and clear to anyone
that petitioner's constitutional right to effective assistance of
counsel was denied by counsel's ineffective assistance, petitioner
urges that this Honorable Court should reach the merits of-the
claims raised in this petition and after further consideration grant
inforina pauperis, grant certiorari and vacate the judgment of Court
of Appeals and remand the case with instruction to issue a COA to
petitioner to appeal the district court adverse ruling on the
§ 2255 motion.
The petition for a writ of certiorari should be granted.
Respectfully resubmitted,
Date: APRIL 15, 2019
34.
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.