Petition for Writ of Certiorari — David Marshall, Petitioner v. Wisconsin

No.

ORkkJ A L

i89326

FILED

OCT 1 .02018

IN THE

•.....__..;_....

J

—,

SUPREME COURT OF THE UNITE]) STATES

—~i.-,-.,.~-".~~..-..---~-.-.-,..-----.-.,-.---.--,-

DAVID MARSHALL

PETITIONER(S)

STATE OF WISCONSIN

RESPOND ENr(S)

ON PEI'TTION FOR WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT &

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

PETITION FOR WRIT OF CERTIORARI

DAVID MATRSHALL #354701.

STANLEY CORR. INST,

POST OFFICE. BOX100 CORRECTIONS DRIVE

SThNLEY, WISCONSIN 54768

RECEIVED

MAY 1 62019

OFFICE OF THE CLERK

SUPREME COURT, U.S.

,:

f.

SUPREME COURT OF THE UNITED STATES

Pfl'ITIONER(S)

DAVID MARSHALL

VS.

RESPOND

STATE OF WISCONSIN

I( s)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR ThE SEVETIII CIRCUIT

(Name of court that lasted ruled on merits of your case)

PEFITION FOR WRIT OF CERTIORARI

DAVID MARSHALL

(Your name)

100 CORRECTION'S DRIVE

54768

S

-I-.

QUESTION(S) PRESENTED

1)1,71hether the United States Court of Appeals for the Seventh Circuit

red, when it failed to issue a Certificate of Appealibility under

title 28 U.S §1291, 2253(c), and Fed. 22(b). When the petitioner1 s

made a substantial showing of a Constitutional Right as indicting

by BAREFOOT V. ESTELLE, 463 U.S. 880, 893 (1983).

2)A jurists of reason would find it debatable whether the habeas petition states a valid claim of the denial of a constitutional Right.

3)A jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.

LIST OF PARTIES

[XI All parties 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 inose

judgment is the subject of this petition is as follow:

A

-111"

TABLE OF

CONTENTS

OPINIOND BELOW

JURISDIcTION..

vi

..

.".""..

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED... .........

.

1

.....

STATEMENT OF THE CASE

2

REASONS FOR GRANTING THE WRIT

3

CONCLUSION .............. ................. ...... .................. 7

INDEX TO

APPENDIX

APPENDIX-A

UNITED STATES COURT OF APPEALS

APPENDIX-SB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

APPENDIX-C UNITED STATES DISTRICT COURT EASTERN DISTRTCT OFWrSCONSIN

APPENDIX--fl SUPREME COURT

APPENDIX--E

COURT OF APPEALS

APPENDIX-f DEPUTY MAT11! GUTH/AFFIDA'IT TO THE COURT

APPENDIX-G RAJ K. SINGU MOTION TO SUPPRESS THE FRUITS OF THE PREMISES

APPENDIX-11 COURT OF APPEALS/DECISION

APPENDIx-- I

im

iv..

CASES

TABLE OF AUTEJORITIES CITED

KATZ V. UITI)STATE.S, 389 U.S. 347 (1967)

KNOWLES V MIRZONCE, 556 U.S. 111 (2009)

PAGE

4

1

LOCKHART V. FREM:L, 506 U.S.. 364 (1993)

MAPP V. OHIO. 367 US. 643 (1961)

M'TERS V. STATE, 60 Wis. 2d 248 (1973)

6

NAPLJE V. IlLINOIS, 360 U.S. 264 (1959)

8

PEOLES V. ALLEN, No. 113135 Sup, Ct 111

3

1

3,7

5

SLACK V

MCDANIEL, 529 U.S. 473 (2000)

STATE V. BALTES, 183 Wis 2d 545 (1924)

STATE V. FELTON, 110 Wis. 2d 465 (1983)

STATE V. FRITZ, 212 Wis. 2d 284 (1997)

STATE V. GAJEWSKI, 2008 Wi. 99

STATE V. HIJMTER, 235 Wis. 2d 188 (1940)

STATE V. JEANNIE M.P. 2005 WI. App. 183

4,6

7

6

4

6

8

STATE V. LU1Y'JIG, 124 .Wis. 2d 600 (1985)

5

STATE V. SANQEZ, 201 Wis. 2d 219 (1996)

STATE V. iYE, 2001 WI. 124

8

7

STRICKLAND V. WSHINCrON, 466 U.S. 666 (1984)

TERRY V. OHIO, 392 U.S. 1 (1968)

UNITED STATES V. COOK, 657 F. 2d 734

14,6,7,8

4

6,7

UNITED STATES V. RUSSELL, 411 U.S. 423 (1973)6

WIGGINS V SMITH, 539 U.S. 510 (2003)

WOLF V. COLORADO, 338 U.S. 25 (1949)

YARBOROUGH V. ALVADO, 541 U.S. 652 (2004)

$

8

I

STAflYEES AND RULES

.

WIS STAT

939.05

PAGE

943.41(5)(a)(1a)

2

968.12(2)(3)(a)

.J,_J

28 U.S C. S. §2253(c)

I

IN THE

SUPRE11E COURT OF ThE UNITED STATES

Petitioner respectfully prays that a writ of certiorari issue to review

the judgment below.

OPINIONS BILOW

[X) For cases from federal court:

The opinion of the United States Court of Appeals appear at Appendix

A to the petition and is

[xj reported at MARSH-ALL V WISCONSIN JANUARY 12, 2018, or

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

[ ] is unpublished.

The opinion of the United States District Court appear at Appendix

B to the petition and is

[ ] report

or,

...,

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

I I is published.

[ ) For cases from the state court;

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

.to the petition and is

Appendix

or,

[ I reported at

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

[ ] is published.

COURT

[ J The opinion of the

I I reported at

-

: OR,

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

[ I is published

JURiSDICFION

[x] For cases from the federal courts:

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

was January 12, 2018.

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

{] A timely petition for rehearing was denied by the United States

, and a copy of the

Court of Appeals on the following:

order denying rehearing appears at Appendix

An extension of time to file the petitton for a writ of certiorari

(date)

(date) on

was granted to and includin&

In Application No.

...

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

[x) For cases from state courts

The (late on which the highest state court decided my case was January

12, 2018 A copy of that decision appears at Appendix-- B.

{] A timely petition for rehearing was there after denied on the

, and a copy of the order denying

following date

rehearing appears at Appendix

-

.......................................

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

(date) on(date)

was granted to and including,--.A

in Application NO.

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

-vii

CONSTI'lVI'IONAL AND STATUTORY PROVISIONS INVOLVED

The district court judge Nancy Joseph, denied the petitioner (Marshall) writ

of habeas corpus petition on the grounds, he has not made a substantial showing of

a Constitution right, on January 12, 2018. Also, the judge (Joseph) denied the petitioner's an Certificate of Appealibility as well. The United States Court of -Appeals for the Seventh Circuit, denied the petitioner's request for a Certificate of

Appealibility on September 4, 2018. The petitioner (Marshall) disagreed with the

court assessment of the record. The district court judge (Joseph) states, "that the

petitioner (Marshall) raised three constitutional issues in his writ of habeas petition. (1)t1he lawfulness of its issuance; (2)ineffective assistance of counsel; and

(3)prosecutotial misconduct To determining whether a (COA) should be issue where

the petition uas dismissed on procedural grounds has two components, one directed

at the distrcit courts procedural holding. SIACKV MCDANIEL, 529 U.S. 473 (2000)

Here's the district court judge (Joseph) states, "that the petitioner's has

failed to demonstrate that his trial counsel Raj K

Singh

, was ineffective for not

raising the lawfulness of its issuance at the suppression hearing held on May 5

2009 Also, Marshall's certainly has not demonstrate that had counsel (Singh) have

raised the lawfulness of its issuance, 'there is a reasonable probability that the

outcome of the case would have been different-" The judge (Joseph) finds Marshall's

Sixth Amendment claim of ineffective assistance of counsel is without merits."

\. .'

S'IRICKJ.AND V WASHINGTON, 466 U.S. 668. 686 (1984) In the context of his habeas cor

pus the federal court must determine of the state s court determination was unrea-

sonable." KNOWLES V. MIRZANGE. 556 U. S 111, 123 (2009) This is a general standard

4.

and a state court has even more latitude to reasonably determine that a defendant

has not satisfied the standard Id (citing YARI3OROUGHV ALVARDO2 541 U.S,652,

664 (2004).

The petitioner (Marshall) argues, "he did in fact attempt to make a substantial

showing of the denial of a constitutional right, and argued that the district court

procedural ruling were wrong" To obtain a certificate of appealibility under 28

(1)

U.S,C.S. §2253(c), a habeas prisoner must demonstrate that includes showing that rea

sonable jurist could debate whether or, for that matter, agree that the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further, Where a district court has

rejected the constitutional claims on the merits the showing required to satisfy 28

IJ.S.C.S. §2253(c) is straightforward The petitioner (Marshall) must demonstrate

that reasonable jurist would find the district court assessment of the constitutional

claims debatable or wrong SLACK V

MCDANIEL, 529 U S 473 (2000).

STATEMENT OF THE CASE

The petitioner (Marshall) in the present case pleaded no contest to seven count

of identity theft and one count of fradul.et used of a credit card in violation of

Wis. Stat. §939.05 and §943.41(5)(a)(1a). The petitioner's was sentenced on November

16, 2009, to 32 years, 23 years confinement and 9 years extended supervision upon

release from prison.

In the present case, Deputy Matthew Guth prepared an affidavit for a search warrant for Marshall's residence at 1803 Western Avenue, Apt #13, in Green Bay, WI..

The search warrant was reviewed by Brown County (ADA) Roger Shaha and Court Comm

issioner Qwistophia Paquet. Qi July 20, 2007 at 9:20am

deputy Guth along with the

Appleton Police Department Seg. Cary Meyer and Brian Leitzinger and Green Bay Police

Department Officer Tony Bloom executed the search warrant to Marshall's residence

The apartment consisted of one bedroom. I, (Guth) observed the apartment was void

of any televisions even though a TV stand was observed in the living room and an-other at the foot of the bed. Cables that would typically be hooked up to the TV's

were observed lying on the floor in both locating consistent with someone removing

the TV a. I, (Guth) observed the bed sheet and blankets were made and a jacket was

lying on the bed, sail the hanger inside consistent with someone removing the jacket from the closet and placing on the bed I, (Guth) observed that the jacket lying on the bed, had the inside back lining cut open The jacket appeared consistent

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with a correctional institution type grab and the inside tag was stamped "OSCI" In-side the lining hidden within the jacket, I, (Guth) recovered numerous identifying

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information in reviewing the reports I, (Guth) observed the incidents were coiisis

tent with the victims purse being taken from either a store or hospital. l (Guth)

completed a DePere Police Department seized item report The items were submitted

into evidence at the DePere Police Department

REASONS FOR GRANTING ThE PETITION

The petitioner (Marshall) states, 'the reasons why this petition should be gr-anted because the "affidavit" submitted by the affiant Deputy Matthew Guth is a vio-

lation of Marshalls Fourth Amendment right, against unreasonable searches and seizures The petitioner (Marshall) states. 'that no search warranty shall be issue

upon probable cause supported by oath or affirmation." Wis Const

art-I, and §11.

The petitioner (Marshall) claim. "that the affiant (Guth) did not give any sworn

testimonys that support the search warrants because the "affidavit" does not have a

secure (date) on the document, and this do not meet [the] standard require[d] by law

(See affidavit submitted by Deputy Guth-exhibit'1) The based on the Fourth Amendment

to the constitution, which protects individual s and prohibit a court from issuing a

warrant except, "upon probable cause supported by oath or affirmation." U S. Const

Amend IV

The petitioner (Marshall) argued, "the only question to the court is whether the

judge or magistrate has the authority to issued a search warrant without placing an

secure (late on the application?" The affidavit open with "duty sworn is true and

correct under penalty of perjury The Court Cornmisssioner (Paquet) did not complete

the process by placing an secure date on the document, which is required by law,

which violates Marshall s 4th, 5th and 14th Amendments rights

Here's [a] unsworn

or undated declaration not made under penalty of perjury, nor stating the document

is true is not an affidavit should be nullity STATE V BALTFS 183 Wis

2d 545

(1924); and Wis Stat. §968 12(2)(3)(a) The petitioner (Marshall) request this

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Court to moves to strike the purported affidavit, simply because it fails with the

Fourth Amendment right, and could not be consider constitutes evidence and any evidence seized under an defective search warrant is fruits from the poisonous trees,

and cannot be used in state or federal courts PBOPLES 11. ALLEN. No. 113135 Sup

Ct

ilL (See; affidavitexhibit-4)

The petitioner (Marshall) asserts that he received ineffective assistance of

trial counsel Raj K Siugh, when counsel (Singh) argued the {w]rong issue at the suppressing hearing held on May 5, 2009. Marshall's claim, 'this case should have been

dismissed at the hearing, "due to the facts that the affidavit does not have a secure

date on the application, which make the affidavit invalid. This claim is based on the

Sixth Amendment to the Constitution, which guarantees a defendant in a criminal case

the right to have assistance of counsel for his defense; to be meaningful and that

assistance must be effective STRICKLANO\' WASHINGTON, 466 11 S 668, 686 (1984)

The deficient performance is judged on an objective standard of reasonableness which

is the first prong in STRICKLAND. To establish prejudice a defendant must show a

reasonable probability that, but for counsel's professional errors, the result of the

proceeding would have been different A reasonable probability is one that undermine

the court s confidence in the outcome. STATE V GAJESKI, 2008 WI

App 99; TERRY V.

OHiO. 392 U S. 1 (1968); IiAPPV OHIO, 367 U S 643 (1961); and KATZ V. UNITED STATES

389 U . S. 347 (1967).

The petitioner (Marshall) states, "in further support his argument, both legal

and factual of the motion the petitioner's (Marshall) respectfully directs the Court

attention to the previously submitted papers denominated, the defendant motion to

suppess fruits of search of premises (in bold letters an undated and unsworn affidavit's) that would seem to relate to the aforementioned search warraiit trial coun•

sd (Singh) made a serious errors at the suppressing hearing, iiten counsel (Singh)

argued the ]w]rong issues that the evidence was seized was outside the scope of the

warrant. (See counsel Singh motion to suppress the evidence-exhibit -. 2)

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The Court of Apppeals made the following statement regard the evidence in the case

no. 2010AP2641CR:

"With regard to the search warrant. Marshall does not

challenge the lawfulness of its issuance Rather, he

contends the evidence seizued was outside the scope

of the warrant." (See: Court of Appeals/decision-pg.

6-paragraph-14-exhibit-3).

The petitioner (Marshall) states, "certain guidelines have been enumerated which

help assist courts in deciding an ineffectiveness claim. The reasonableness of a

particular case, (must be) viewed as of the time of counsel's conduct. A convicted

defendant's making a claim of ineffective assistance must identify the acts or omis

sions of counsel that are alleged not to have been result of reasonable professional

judgment The court must then determine whether, in light of all the circumstance,

the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination the court should keep in mind that

counsel function as elaborated in prevailing professional norms, is to make the ad-versarial testing process work in that particular case. At the same time, the court

should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional

judgment."

The petitioner (Marshall) is required to show that trial counsel (Siugh) performauce was deficient, and that the deficient performance prejudiced the defendant

or undermined confidence in the outcome of the trial. The prejudice standard is. not

outcome determinative; the defendant need not show that counsel (Singh) errors more

likely than not altered the outtomev STAThV UIFA41G, 124 Wis. 2d 600, 369 N.W. 2d

722-23 (1985) A single act or omission may deprive the defendant of effective counsel's if it was prejudicial to the defendant. See: STATE V. FELTON, 110 Wis

2d 485,

329 N.W. 2d 161 (1983) For example: Trial Counsel Singh filed a motion to suppress

the fruits of the search of the premises on April 13, 2009. In counsel's (Singh) own

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motion, its states in bold letters, "accompanying this paper is a copy of an undated

and apparently uusworu, "AFFIDAVIT IN SUPPORT OF SEARCH WARRANT

(See: counsel

Singh motionexhibit2) Marshall's claim, "it appears from the document [affidavit ]

neither the affiant Deputy Guth, (ADA) Shaha, nor the (Cc) Paquet, check the document [affidavit] before signing the application without an secure date to complete

the process, which make the affidavit invalid." See: Wis. Stat. §968.12(2)(3)(a)

Here, "the district attorney (Mares) benefit from the defective seach warrant,

and the circuit court judge (Atkinson) ruled that the evidence seizued was not selzued outside the scope of the warrant Marshall's claims, without this illegal evidence introduce as evidence at the hearing the district attorney (Mares) case would

have been dismissed." Counsel's (Singh) deficient performance fell below an objective standard of reasonableness, when counsel's (Singh) fails to argues that the

affidavit's submitted to the court by the affiant (Guth) was invalid, and this does

not meet [the] standard require[d] by law- Here, "the (cc) Paquet) did not place a

secure date to make the affidavit's valid which make the process incomplete and a

violation of Marshall's 4th, 5th, and 14th Ameudmants rights. counsel Singh deficient

performance prejudicial the defense =VWART V.

506 U. S. 364, 113 S Ct

838, 122 L. E1. 2d 180 (1993); STATE V. FRITZ 212 Wis 2d 284, 569 NW 2d 48, 51

(1997); and citing STRTCKIAND V. WASHINGTON, 104 S. Ct at 2064.

The petitioner (Marshall) claims, "the lawfulness of its issuance or the evidence seized outside the scope of the warrant are the same issues, both deals with

Marshall's Fourth Amendment claim, against unreasonable searches and seizures to the

U.S Constitution." Here, "the state nor the courts have addressed or offer no extrinsic evidence demonstrating the approximate date of signing of the afidavit's

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submitted to the court by the affiant (Guth). The exclusionary rules serves three

principal purposes: (1)to detering police misconduct; (2)preventing the government

from benefiting from its own wrong by using illegally seized evidence to convicts;

and (3)preventing the courts from becoming an "accomplice" in the violation of the

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United States Constitution. UNITED STATES V. COOK, 657 F. 2d 784; STATE V. HUNTER

235 Wis. 2d 188 (1940); and MAFP V. QjL(L, 367 U.S. 643 (1961) The Supreme Court

-

states in

aKINSV. UNITED STATES, 364 U.S. 206 (1960)

"There it was held the judicial iutergrity would be compromised

by introduction of illegal obtained evidence, i. a, the government should not profit from the violation of constitutional

precepts. A constitutional right to be protected against outragous government conduct was recognized by the United States

Supreme Court u in UNT

,.TED STATES

r

411 U, S. 423 (1973)

CONCLUSION

The petitioner (Marshall) argued, A fundamental miscarriage of justice is something that is created by law enforcement authorities." A miscarriage of justice don't

have anything to do with innocent or guilty, its about a person constitutional right

to be protected from outragous government. The petitioner (Marshall) states, "when

law enforcement authorities enter into the residence to excute a search warrant, the

search warrant must meet the standard required by law. If, "the judge or magistrate

failed in his or her duty to place or put an secure (late befôre admiiister under oath

or affirmation any sworn testimony before authorize the invasion of private property,

then the search warrant should be void. It is well establish that the Fourteenth Amendment U.S. Const, Amend. XIV, protects a. criminal defendant from any misconduct by

law enforcement authorities, which would deprive the petitioner (Marshall) due process of law. UNITED STATES V. COOK, 657 F. 2d 734.

The petitioner (Marshall) claims, "when there is a clear violation of an constitutional issue, the court muist consider all the facts in the case." Neither the 2c

(Paquet), the district attorney (haha), nor Matthew Guth detected that the judge or

magistrate failed to (date) the affidavit's submitted by the affiant (Guth) to the

circuit court judge (Atkinson) on May 5, 2009 at the suppressing hearing. The search

warrant was facially defective, because no actual [date] is on the application. The

petitioner contends, "that the affiant (Guth) along with others law enforcement auth.

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orities could have seizedd the evidence from Marshall's apartment first, then proceeded

to establish there is probable cause to ex.cute a search warrant The affidavit's

-

prove that the petitioner's do not know, when the (cc) Paquet) gave the affiant Guth

and others law enforcement authorities permission to invasion private property, because there is no (late on the document.. Without an actual [date] on the application

then this search warrant should be void STATE V. B.ALTES, 183 Wis.. 2d 545 (1924).

Wis Stat. §968J2(2)(3)(a)

"Generally, will be presumed that the proceedings resulkthg in the

issuance of a search warrant are regular and sustain the issuance

of the warrant. But ihere it is challenged at the inception the

proceeding, an inquiry as to its (validity] will be bad, and if

it be made to appear that no actual (late, or sworn testimony was

adduced to support the warrant, the evidence secured by the use

of illegal warrant will be suppressed. STATE V. IYE 2001 WI.

124; and MYERS V STATE, 60 Wis. 2d

The petitioner (Marshall) states, "he should not be punish for his trial counsel

(Singh) ineffectiveness for arguing the [w]rong issues at the suppressing hearing on

May 5, 2009." According to the law, "the Sixth Amendment guarantees a defendant the

right to effective assistance of counsel." STRICKLAND V WASHINGTON, 466 U.S. 668,

686 (1984). This [affidavit] submitted to the circuit court by Matthew Guth is unsworn or undated, and could not be consider constitutes as evidence in this case at

all. The petitioner (Marshall) claims, "the ddistrict attorney (Mares) profits from

the illegal evidence under an defective warrant. A conviction obtained through uses

of false evidence, known to be such by representatives of the state, must fall under

U.S. Coust. Amend. XIV. The same result obtaining when the state, although not soli

citing false evidence, allow it to go uncorrected when it appears. NAPUE If , ILLINI0S

360 U.S. 264 (1959). All evidence obtained by searches and seizures in violation of

the Federal Constitution is inadmissible in a criminal trial in a state court WOLF

COLORADO, 338 U.S. 25 (1949)

The petitioner (Marshall) argued the court must [strike] the purported affi

davit's, because it fails with the Fourth Amendment right, against unreasonable seaU

..

rches and seizures. Any evidence seized under an defective search warrant is consider

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fruits from the poisonous trees; and cannot be used in state or federal courts. The

petitioner's claims, 'there is a strong probability, hit for counsel (Singh) unpro-.

fessional errors, the result of the proceeding would have been different A reason

able puobability is a probability sufficient to undermine confidence in the outcome

The petitioner (Marshall) have prove or shown that counsel's (Singh) deficient per-

formance prejudiced the defense. STATE V SANCEZ, 201 Wis. 2d 219 (1996); TATE\'

JANIEM.P.

2005 WI, App 183; WIGGINS V SMITH, 539 U.S. 510 (2003); and STRIcK

LANDVWASHINGT0N 466 U.S. 668 (1984)

CONCLUSION

The petitioner (Marshall) is requesting this Court for the following ORDER (1)

that the search warrant be quashed; (2)that all testimonys and exhibits produced by

the State derived from the search of the premises be stricken from the record; (3)

that the entire case be dismissed with prejudiced; and (4)for the discharge of the

petitioner (Marshall)

Dated at Stanley, Wisconsin th1s31 day of OCTOBER,

Respectfully submitted,

DAVID MARSHALL, PRO SE

FILE:

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2018