Petition for Writ of Certiorari — Brent Edward Lovett, Petitioner v. United States
Supreme Court briefMay 15, 2019
Ask Donna
What actually matters in this document.
Text
I o' mmz1
~ 01
FILED
MAY 152019
IN THE
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
L'FPEME CO'JRT U.S.
BRENT EDWARD LOVETT,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit
Ninth Circuit Case No: 18-16498
District Court Civil Case No: 2:17-cv-01580-JCM
Orig. CR Case No: 2:11-cr-00165-JCM-GWF
PETITION FOR WRIT OF CERTIORARI
Brent Lovett
Petitioner-Pro Se
8211 Omni Court
Las Vegas, Nevada 89149
Telephone: 702-427-6657
Facsimile: 888-420-6834
Email: brentlovett267gamiI.com
*Petitioner Pro Se
May 12, 2019
!'ThECEIVED1
I MAY2O2O I
OFT
E 61qE LJ
QUESTIONS PRESENTED
Petitioner Brent Edward Lovett (Prisoner in Custody of BOP, RRC) moves
this Court to remand the case back to the Ninth Circuit Court of Appeals, for the
Court to explain and detail "whV' the 20 pages of detailed legal arguments
(concerning the drug use, disbarment and imprisonment of his Appellate Counsel)
which clearly shown that "jurists of reason would find it debatable whether the
[section 2255 motion] states a valid claim of the denial of a constitutional right
"and" that any jurists of reason would find it debatable whether the district court
was correct in its procedural ruling" did not meet its test, and what that test
was, and what issue was this test applied to.
Under the protections of 5th and 14th Due Process clauses, should the
Courts be required to state the reasons for determinations and then indicate
the evidence and record that were relied upon to protect precepts of
fundamental fairness and to protect against arbitrary enforcement?
Is Slack v. McDaniel, 529 U.S. 473,484 (2000) unconstitutionally vague
because the opinion is worded in a standardless way that invites arbitrary
enforcement which has resulted in a "void for vagueness" standard?
What is a "Jurists of Reason", what is "Debatable"?
Should a "Jurists of Reason" be understood as a "jurists deciding
reasonably," i.e., as an inquiry into conduct, not status? If two people disagree on
any topic, is that debatable?
At the COA stage, the only question is whether the applicant has shown that
jurists of reason could disagree with the district court's resolution of his
2
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.
This Court has never heard a case on the merits of any test into what is
reasonable, or how to determine what is debatable. Without any kind of test, the
Courts across this country have ruled inconsistently on this issue. The Courts have
used this "lack of a standard test" to deny prisoners their Constitutional rights with
the "blanket statement" from Slack v. McDaniel which has no possible verifiable
standard, which in itself is a Fifth and Fourteenth Amendment violation of the
United States Constitution right to Due Process.
Wouldn't any "Jurists of Reason" find it debatable whether the district court
was correct, when it ruled a counsel was not ineffective, when:
The counsel failed to follow 4 Appellate Court orders?
The counsel failed to file the Appellate Brief by the Court imposed
deadlines, 8 times, over 16 months?
The counsel failed to meet with and communicate with his client?
The counsel files a partial appellate brief without input or notice to his
client, and failed to argue any of the non-frivolous issue presented by the
client?
The counsel was a known drug addict?
The counsel was terminated from 14 other federal cases due to his
failure to represent his clients?
The counsel was disbarred from practicing law?
The counsel was arrested in a drug sting, and charged with accessory
to murder?
What is a fair test to give adequate guidance, so that the average
4.
person can determine, what a reasonable jurist would find debatable?
Persons of common intelligence cannot be required to guess at the meaning
of [an] enactment and or ruling. Denial of due process is the failure to observe that
fundamental fairness essential to the very concept of justice.
3
TABLE OF CONTENTS
Table of Contents
QUESTIONS PRESENTED.................................................................................2
TABLE OF CONTENTS.......................................................................................4
TABLE OF AUTHORITIES .................................................................................5
PETITION FOR A WRIT OF CERTIORARI .......................................................6
OPINIONS BELOW..............................................................................................6
JURISDICTION....................................................................................................6
CONSTITUTIONAL PROVISIONS INVOLVED................................................7
STATEMENT OF THE CASE..............................................................................8
LegalBackground ......................................................................................8
FactualBackground.................................................................................13
THE CONSTITUTIONAL ERRORS IN THIS CASE........................................15
FIFTH -AMENDMENT ...........................................................................15
SIXTH AMENDMENT.............................................................................15
FIRST AMENDMENT.............................................................................15
ISSUES PRESENTED WHICH ARE DEBATABLE AMONG.........................16
JURISTS OF REASON.......................................................................................16
ISSUES PRESENTED IN THE COA ................................................................19
REASONS FOR GRANTING THE WRIT .........................................................20
CONCLUSION....................................................................................................21
DECLARATION..................................................................................................21
AppendixA..........................................................................................................22
AppendixB..........................................................................................................23
MOTION TO PROCEED IN FORMA PAUPERIS ............................................24
rd
TABLE OF AUTHORITIES
Cases
Addington v. Texas, 441 U.S. 418, 423 (1979 .......................................................................10
Goldberg v. Kelly, 397 U.S. 254, 271 (1970)..........................................................................10
Gonzalez v. Thaler, 565 U.S. 134,140-41 (2012)...............................................................6
Miller-El v. Cockrell, 537 U.S. 322, 327(2003)................................................................... 6
Slackv. McDaniel .................................................................................................................... 3, 6
Slack v. McDaniel, 529 U.S. 473,484 (2000).......................................................................2
Winship, 397 U.S. 358, 370 (1970)..........................................................................................10
Statutes
18U.S.C.1 ...............................................................................................................................13
28 U.S.C. 1254 ........................................................................................................................... 6
28 U.S.C. § 2253(c)(2)...............................................................................................................6
28 U.S.C. §1746..........................................................................................................................25
28 U.S.C.S.
2253(c) ..................................................................................................................8
5
PETITION FOR A WRIT OF CERTIORARI
Brent Lovett respectfully request that this Court grant a writ of certiorari to
review the Court of Appeals for the Ninth Circuit's judgment which was "Before:
SCHROEDER and CHRISTEN, Circuit Judges.
"The request for a certificate of appealability (Docket Entry No. 2)
is denied because appellant has not shown that "jurists of reason would
find it debatable whether the [section 2255 motion] states a valid claim
of the denial of a constitutional right and that jurists of reason would find
it debatable whether the district court was correct in its procedural
ruling." Slack v. McDaniel, 529 U.S. 473,484 (2000); see also 28 U.S.C.
§ 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134,140-41 (2012); Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003).
OPINIONS BELOW
The Court of Appeals' decision is attached hereto as Appendix 1. And the
unpublished orders denying rehearing en banc are included as Appendix B
JURISDICTION
The Court of Appeals' judgment was issued on January 10, 2019.
Rehearing was denied on February 28, 2019. The Court has jurisdiction
pursuant to 28 U.S.C. § 1254.
CONSTITUTIONAL PROVISIONS INVOLVED
The Fifth Amendment to the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
compensation.
The Fourteenth Amendment to the United States Constitution provides:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein they
reside. No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
7
STATEMENT OF THE CASE
Legal Background
Certificate of Appealability.- When habeas corpus petitioner seeks to
initiate an appeal of the dismissal of a habeas corpus petition after April 24,
1996, the right to appeal is governed by the certificate of appealability
requirements found at 28 U.S.C.S. § 2253(c). When the district court denies a
habeas petition on procedural grounds without reaching the prisoner's underlying
constitutional claim, a certificate of appealability should issue and an appeal of
the district court's order may be taken if the prisoner shows, at least, that jurists
of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right, and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling. Nowhere, has the
Court defined what is a Jurist of Reason, or what is Debatable, thus leaving the
Courts in an entirely arbitrary position to issue blanket statements, as in this
case, when the motion and the record were overwhelmingly clear of the
Constitutional errors presented, and that any jurist or reason would debate what
the Court did, and would debate that the Petitioners Constitutional rights were
violated.
The certificate of appealability (COA) inquiry is not coextensive with a merits
analysis. At the COA stage, the only question is whether the applicant has
shown that jurists of reason could disagree with the district court's resolution of
his constitutional claims or that jurists could conclude the issues presented are
8
adequate to deserve encouragement to proceed further. When a court of appeals
sidesteps the COA process by not reviewing the case at all, just issuing a blanket
statement as it has done a thousand time, it has in fact denied the Petitioner his
Constitutional rights to Due Process.
The Requirements of Due Process.—Although due process tolerates
variances in procedure "appropriate to the nature of the case," it is nonetheless
possible to identify its core goals and requirements. First, "[p]rocedural due
process rules are meant to protect persons not from the deprivation, but from the
mistaken or unjustified deprivation of life, liberty, or property." Thus, the required
elements of due process are those that "minimize substantively unfair or
mistaken deprivations" by enabling persons to contest the basis upon which a
state proposes to deprive them of protected interests.
The core of these
requirements is notice and a hearing before an impartial tribunal. Due process
may also require an opportunity for confrontation and cross-examination, and
for discovery; that a decision be made based on the record, and that a party
be allowed to be represented by counsel.
Decision on the Record. Although this issue arises principally in the
administrative law area, it applies to criminal law as well. "[T]he decision maker's
conclusion
.
.
.
must rest solely on the legal rules and evidence adduced at the
hearing or on the record. To demonstrate compliance with this elementary
requirement, the decision maker should state the reasons for his determination
and indicate the evidence he relied on, though his statement need not amount to
a full opinion or even formal findings of fact and conclusions of law." (Goldberg v.
Kelly, 397 U.S. 254, 271 (1970) (citations omitted)).
Burden of Proof and Presumptions.—The Due Process Clause does
prevent the deprivation of liberty or property upon application of a standard of
proof too lax to make reasonable assurance of accurate fact finding. Thus, "[t]he
function of a standard of proof, as that concept is embodied in the Due Process
Clause and in the realm of fact finding, is to 'instruct the facifinder concerning the
degree of confidence our society thinks he should have in the correctness of
factual conclusions for a particular type of adjudication." (Addington v. Texas,
441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970)
(Justice Harlan concurring)).
As long as a presumption is not unreasonable and is not conclusive, it
does not violate the Due Process Clause. Legislative fiat may not take the place
of fact in the determination of issues involving life, liberty, or property, however,
and a statute or opinion creating a presumption which is entirely arbitrary and
which operates to deny a fair opportunity to repel it or to present facts pertinent to
one's defense is void.
PROCEDURAL DUE PROCESS—CRIMINAL Generally: The Principle
of Fundamental Fairness The Court has held that practically all the criminal
procedural guarantees of the Bill of Rights—the Fourth, Fifth, Sixth, and Eighth
10
Amendments—are fundamental to state criminal justice systems and that the
absence of one or the other particular guarantees denies a suspect or a
defendant due process of law under the Fourteenth Amendment. In addition,
the Court has held that the Due Process Clause protects against practices and
policies that violate precepts of fundamental fairness, even if they do not
violate specific guarantees of the Bill of Rights. The standard query in such
cases is whether the challenged practice or policy violates "a fundamental
principle of liberty and justice which inheres in the very idea of a free government
and is the inalienable right of a citizen of such government."
Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine.
Criminal statutes or opinions that lack sufficient definiteness or specificity are
commonly held "void for vagueness." Such issues "may run afoul of the Due
Process Clause because it fails to give adequate guidance to those who would
be law-abiding, to advise defendants of the nature of the offense with which they
are charged, or to guide courts in trying those- who are accused." "Men of
common intelligence cannot be required to guess at the meaning of [an]
enactment or opinion. In other situations, a opinion may be unconstitutionally
vague because the opinion is worded in a standardless way that invites arbitrary
enforcement. In this vein, the Court has invalidated two kinds of laws as "void
for vagueness": (1) laws that define criminal offenses; and (2) laws that fix the
permissible sentences for criminal offenses. With respect to laws that define
criminal offenses, the Court has required that a penal statute provide the
11
definition of the offense with "sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement." Court opinion must follow this same
definition "sufficient definiteness that ordinary people can understand what must
be presented and what test must be met and in a manner that does not
encourage arbitrary and discriminatory enforcement."
Fair TriaL—As noted, the provisions of the Bill of Rights now applicable to the
states contain basic guarantees of a fair trial— right to counsel, right to speedy
and public trial, right to be free from use of unlawfully seized evidence and
unlawfully obtained confessions,, and the like. But this does not exhaust the
requirements of fairness. "Due process of law requires that the proceedings
shall be fair, but fairness is a relative, not an absolute concept.
.
.
.
What is fair
in one set of circumstances may be an act of tyranny in others." Conversely, "as
applied to a criminal legal process, denial of due process is the failure to observe
that fundamental fairness essential to the very concept of justice. In order to
declare a denial of it
.
.
.
[the Court] must find that the absence of that fairness
fatally infected the process; the acts complained of must be of such quality as
necessarily prevents a fair process.
12
Factual Background
In April 2011, the Government obtained a One Count Indictment which
charged Lovett with a violation of 18 U.S.C. §1344 and alleged that on or
about May 2006 to in or about August 2006 Lovett "...enriched himself by
fraudulently obtaining a commercial real estate loan from which he would
skin part of the loan proceeds for himself." The Indictment alleged that
Lockheed Federal Credit Union (LCU) loan was obtained by Lovett using
false documents and providing false information.
It also alleged that Lovett omitted to disclose his ownership and
control of Bay Resorts International (Bay) and Equity Resources (Equity),
the seller and the buyer respectively of the property known as 2400 North
Tenaya (Property). Finally, the Indictment alleged that Lovett obtained
approximately $1,337,396.60 from the proceeds of the sale from the
property from Bay to Equity, then allowed the property to go into
foreclosure after only making four payments to LCU.
On February 19, 2013, started a 7 day trial in which Lovett was
found guilty of the one count.
May 24, 2013 (Dk#223), Lovett files a motion for a new trial, due to
newly discovered evidence.
May 29, 2013 (Dk#226) Lovett is sentenced to 98 months. June 3,
2013 (Dk#230) Notice of Appeal is filed.
August 8, 2016 The Ninth Circuit Court of Appeals affirms Lovett's
conviction.
October 26, 2016 Application for Writ of Certiorari filed with the United
13
States Supreme Court.
April 3, 2017 Order denying Writ of Certiorari.
April 12, 2017 Lovett files §2255 together with motion to exceed page
volume.
May 24, 2017, District Court grants Lovett's request to exceed page
volume.
July 10, 2018 the District Court denies Petition under §2255.
The Court of Appeals' for the Ninth Circuit judgment was issued on
January 10, 2019. Rehearing was denied on February 28, 2019.
14
THE CONSTITUTIONAL ERRORS IN THIS CASE
FIFTH -AMENDMENT
> Constitutional Right to offer testimony of witnesses.
> Constitutional Due Process right to the dismissal of the Grand Jury
Indictment due to Prosecutorial Misconduct.
-
> Constitutional Right to Equal Protection which forbids
discrimination.
> Constitutional Right to present a complete defense.
> Constitutional Right to be presented with critical evidence.
SIXTH AMENDMENT
> Constitutional Right to a Speedy Trial.
> Constitutional Right to confront witnesses and to interview
witnesses, and to be presented with evidence suppressed by the
FBI.
> Constitutional Right to the compulsory process for obtaining
witnesses and expert witnesses.
> Constitutional Right to present a complete defense.
> Constitutional Right to the Assistance of Counsel.
> Constitutional Right to assist in your own defense.
> Constitutional Right to control your own defense.
> Constitutional Right to a meaningful representation.
FIRST AMENDMENT
> Constitutional Right to access to the courts and to have the
questions presented and ruled on by the Court.
Throughout the Motion for a New Trial (DC Dk#223), the §2255
Petition and the Reply to the Government's response together with the
facts detailed herein, Lovett has made a substantial showing of the denial
of his Constitutional Rights, together in the light of all the evidence and
facts presented, it is more likely than not, that no reasonable juror would
have convicted Lovett.
15
ISSUES PRESENTED WHICH ARE DEBATABLE AMONG
JURISTS OF REASON
To meet the requirements for a Certificate of Appealability, the Petitioner must
show that reasonable jurists could debate whether or, for that matter, agree that
the petition should have been resolved in a different manner or that the issues
that were presented were adequate to deserve encouragement to proceed
further. The Petitioner has presented a substantial showing on the following
debatable issues:
The District Court erred when it failed to address the fact that Disbarred Court
Appointed Appellate Counsel Gamage failed to follow the Orders of the
Appellate Court which was a violation the Petitioner's Sixth Amendment Right
to effective counsel, before the Court ruled that some of the issues were
barred due to the Successive Claim Rule or procedural defaulted due to
Gamage's failure to raise them on appeal.
The District Court erred when it failed to address the fact that Disbarred Court
Appointed Appellate Counsel Gamage failed to render ANY legal assistance
to the Petitioner before the Court ruled that some of the issues were barred
due to the Successive Claim Rule or procedural defaulted due to Gamage's
failure to raise them on Appeal. (Gamage was disbarred for this very reason).
The District Court erred when it failed to address the undisputed fact that the
trial court had ruled that the emails would not be used in the trial as testimonial
in nature, which in fact that they were.
The District Court failed to address
that the emails were shown during testimony to have been created text
documents or have been altered, which would prove the Petitioner not guilty of
if1
the crime charged.
The District Court erred when it failed to address the undisputed fact that the
Petitioner was denied his right to interview witnesses prior to trial, and then
again denied his right to interview the witness during the trial which prejudiced
the defense of the case by not allowing the Petitioner to prove the computer
server would not allow the sending of remote emails, that someone else was
in Las Vegas directing the submission of the loan documents, and that a
Federal Express package was sent from Las Vegas to the lender with loan
documents while the Petitioner was over 500 miles away on a houseboat in
the middle of Lake Shasta with no cell or computer services which would
prove the Petitioner not guilty of the crime charged.
The District Court erred when it failed to address the ineffective assistance of
the pre-trial counsels, and the undisputed facts that they did not interview a
single witness, or file any meaningful pre-trial motions, or hire the required
expert witness to detail the computer server at Bay Resorts and how the
emails were sent to the lender, or file to dismiss the case due to the violation
of the Petitioner's Speedy Trial rights, or the fact that pre-trial counsel
informed the Court that he could "only do so many trial back to back", and the
fact that he was not prepared on the day of the trial, which forced the
Petitioner to represent himself 5 minutes before trial.
The District Court erred when it failed to address that the Faretta waiver was
not meaningful without a full inquiry of what counsel had done to prepare, if
any of the witnesses were in fact interviewed, if counsel had a defense ready
17
to present, and why would the Petitioner move to represent himself at such a
late hour.
The District Court erred when it failed to address the undisputed fact that the
Petitioners Speedy Trial rights were in fact violated.
The District Court erred when it did not address the cumulative errors.
18
ISSUES PRESENTED IN THE COA
THE DISTRICT COURT ERRED WHEN IT FAILED TO ADDRESS
APPELLANT'S SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO
EFFECTIVE APPELLATE COUNSEL WHICH WAS VIOLATED WHEN
DISBARRED COUNSEL GAMAGE REFUSED TO FOLLOW THE
APPELLATE COURT'S ORDERS.
THE DISTRICT COURT ERRED WHEN IT FAILED TO ADDRESS THAT
APPELLANT'S SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO
EFFECTIVE APPELLANT COUNSEL WAS VIOLATED BY DISBARRED
COUNSEL GAMAGE FOR HIS CONTINUED FAILURE TO RENDER
ANY LEGAL ASSISTANCE, WHICH FELL BELOW THE STANDARD OF
A REASONABLY COMPETENT ATTORNEY.
THE DISTRICT COURT ERRED WHEN IT FAILED TO ADDRESS THE
UNDISPUTED FACT THAT THE TRIAL COURT HAD RULED THAT THE
EMAILS WOULD NOT BE USED AS TESTIMONIAL IN NATURE.
THE DISTRICT COURT ERRED WHEN IT FAILED TO ADDRESS THE
UNDISPUTED FACT THAT LOVETT WAS DENIED THE RIGHT TO
INTERVIEW WITNESSES FOR HIS DEFENSE OF HIS CASE.
THE DISTRICT COURT ERRED WHEN IT FAILED TO ADDRESS THE
ISSUES RAISED IN THE §2255 PETITION UNDER THE SUCCESSIVE
CLAIM RULE AND THE PROCEDURAL DEFAULT RULE WITHOUT
FIRST ADDRESSING AND DETAILING THE INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL CLAIM.
THE DISTRICT COURT ERRED WHEN IT FAILED TO ADDRESS THE
INEFFECTIVE ASSISTANCE OF PRETRIAL COUNSEL.
a. THE GOVERNMENT PLACED THE BLAME FOR
FAILURE TO MOVE FOR THE DISMISSAL OF THE
INDICTMENT FOR VIOLATION OF THE SPEEDY TRIAL
ACT ON THE PRE-TRIAL COUNSELS.
THE DISTRICT COURT ERRED WHEN IT DID NOT ADDRESS THAT
THE FARETTA WAIVER WAS NOT MEANINGFUL.
THE DISTRICT COURT ERRED WHEN IT FAILED TO ADDRESS THE
SPEEDY TRIAL CLAIMS.
THE DISTRICT COURT ERRED WHEN IT FAILED TO ADDRESS THE
THE DISTRICT COURT ERRED WHEN IT FAILED TO ADDRESS
PREJUDICE.
19
REASONS FOR GRANTING THE WRIT
This Court has never heard a case on the merits of any test into what is
reasonable, or how to determine what is debatable. Without any kind of test, the
Courts across this country have ruled inconsistently on this issue. The Courts
have used this "lack of a standard test" to deny prisoners their Constitutional
rights with the "blanket statement" which has no possible verifiable standard,
which in itself is a Fifth and Fourteenth Amendments to the United States
Constitution violation right to Due Process.
Previous cases that came to this Court did not ask this Court to supply a
standard clear test.
It is logical for this Court to create a test to conform with the past opinion, and the
Constitution of the United States.
This case has an extensive record and is a good vehicle to conduct the
review that never occurred before.
The record in this case is extensive.
20
CONCLUSION
For the above reasons, this Court should grant this petition for writ of
certiorari, remand the case back to the Ninth Circuit Court of Appeals, and have
the Court detail why the arguments presented failed to overcome its test, and
what that test was, or this Court should put forth a standardized test of
reasonableness and what is debatable among jurist.
DECLARATION
I hereby verify that the matters alleged herein, and in the the Appellate
Brief, reply, the original §2255 petition and the reply to the Government's
response are true and correct, except as to matter alleged on information and
belief, as to those, I believe them to be true.
I certify under penalty of perjury that the foregoing is true and correct.
Respectfully subm
étitioner-Pro Se
8211 Omni Court
Las Vegas, Nevada 89149
Telephone: 702-427-6657
Facsimile: 888-420-6834
Email: brentlovett267(äqamil.com
*Petitioner Pro Se
21
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.