Petition for Writ of Certiorari — In Re Solomon Roberts, Petitioner

Supreme Court briefApr 8, 2019

Ask Donna

What actually matters in this document.

Text

ON

PROVIDED TO

CHARLOTTE Cl

for MAILING

SUPREME COURT TO THE UNITED STATES

■l9°5frR9.

'v-' v •

NO.:

, ,*

IN RE SOLOMON DAVID ROBERTS, Petitioner,,

\

I /<

%

r'

T1 ~

:-s :

A j I

V '

V

PETITION FOR EXTRAORDINARY WRIT OF

PROHIBITON/MANDAMUS

Pursuant to Supreme Court Rule 20 Petitioner, Solomon David Roberts, pro

se, an indigent prisoner, unrepresented by counsel; petition this Honorable

Court having supervisory control over “all” [Article III] inferior courts; for

issuance of writ of mandamus in this exceptional case where there is a clear

abuse of discretion and/or usurpation of judicial power, warranting restraint

by this Honorable Supreme Court. See Los Angeles Brush Mfg. Co. v.

FILED

James. 272 U.S. 701 at 706-07 (1927).

The writ will be in aid of this court’s “appellate” or “Supervisory ’ ^PR 0 8 2019

jurisdiction. Where exceptional circumstances warrant the exercis#^i^i|FcoijRi:ua/

court’s discretionary powers, and that adequate relief cannot be obtained in

anyother form or from any other court; under the material facts and

circumstances. No Court state or federal have afforded a plenary review of

the federal questions; nor reached a merit based analysis.

UNITED STATES COURT OF APPEALS (11th CIR.)

(Name of court that last ruled on the merits of my case)

Solomon David Roberts #066691

Charlotte Correction Institution

33123 Oil Well Road

Punta Gorda, Florida 33955

RECEIVED

JUL 2 2 2019

8l^0VrLH,'jRCTL-5Rsl<

OUESTION(S) PRESENTED

»

“Whether the supervisory control of U.S. Supreme Court

Is necessary to proper Judicial Administration in the

Federal System?”

“Is it of Great Public Importance Where a District Court

Exceeded or Refused to Exercise it’s Function?”

“Whether the errors of District Court affects substantial

Rights from an abuse of judicial power, or refusal

To exercise it; which is the function of Mandamus

To correct?”

“Whether Magistrate Judge abandon of neutrality, to do the work

Of an Attorney in opposition; divested the District Court of

Jurisdiction in the first instance?”

Whether District Judge’s adoption of Magistrate’s R&R is

Unlawful in the sense that it embraces Magistrate’s violation

Of 28 U.S. C. section 454 and is void; amounting to

Misprision of Treason?”

“Whether a prisoner who moves under 28 U.S.C. section 2241

On denial of meaningful access to court under Florida Constitution

Article I section 21 must be given a hearing at which he is entitiled

To be present, where there is a necessity for the determination

Of a factual question?”

2

LIST OF PARTIES

[x]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:

United States Court of Appeals “Eleventh Circuit”

United States District Court “Middle District” Florida

United States District Court “Southern District” Florida

District Court of Appeal (Fla.) Second District

Tenth (10th) Judicial Circuit Court (Hardee County)

Assistant Attorney General [Fla. Department of Corrections]

3

TABLE OF CONTENTS

Page(s)

OPINIONS BELOW

6

JURISDICTION

7

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED

8

STATEMENT OF THE CASE

9

REASON FOR GRANTING THE WRIT

10

CONCLUSION

20

DECLARATION

21

PROOF OF SERVICE

21

INDEX TO APPENDICES

APPENDIX A

Civil Docket [#18-cv-21195] (11th Cir) Dismissal for

failure to pay filing fees. [Doc. 34]

APPENDIX B

District Judge Adoption of Magistrate R&R

APPENDIX C

Middle District Transfer of section 2241(d) to [S.D.Fla.]

APPENDIX D

Petitioner’s request for Docket Entries

APPENDIX E

Docket obtained from Ft. Lauderdale office [S.D.Fla.]

APPENDIX F

Motion for leave to file belated “IFP”

APPENDIX G

28 USC section 351 Judicial Misconduct Complaints

APPENDIX H Magistrate’s Proffer of evidence in response to s.2241(d)

Petition

4

TABLE OF AUTHORITIES CITED

Cases

Bankers Life & Casualty Co. v. Holland. 346 U S. 379 at 383 (1953);

13

Blackledge v. Allison. 431 U.S. 63 at 68 (1977).

15

Bolware v. State, 995 so.2d 268 at 272(Fla.2008)

17

Bound v. Smith, 430 US 817 (1977.....................................

15

Cheney v. State. 640 so.2d 103 at 105(Fla. 4th DCA 1994)

16

Clisby v. Jones, 960 f.2d 925 at 936 (11th Cir. 1992...........

13

Coleman v. Thompson, 501 U.S. 722 at 750 (1991)

12

Harden v. state, 453 so.2d 550 (Fla. 4th Dist. 1984)...

16

King v. State. 390 so.2d 315 at 320(Fla. 1980)

16

Laird v. Tatum. 409 U.S. 824 at 838 n.ll (1972),

12

Lewis v. Casey, 518 US 343 (1996)

15

Los Angeles Brush MFG. Corp. v. James. 272 U.S. 701 at 706-07 (1927)

7

McCarthy v. U.S.. 394 us 459(1969).

17

Quillen v. State. 73 so.3d 890 at 892(Fla. 4th Dist 2011)

17

Roche v. Evaporated Milk Asso. 319 US 21, 63 S.Ct., 938 (1943)

14

U.S. v. Jones. 381 f.3d 615 at 618 n.3(7th Cir.2004)

17

U.S. v. Will. 449 U.S. 200 at 231 [FN 19] (1980)....

14

United States v. Arami, 536 f.3d 479 (5th Cir. 2008)

16

United states v. Olano, 507 US 725,113 S.Ct., 1770 (1993)

11

Whitney v. Florida. 389 U.S. 138 (1967)

13

Williams v. State. 500 so.2d 501 at 503 n.4 (Fla. 1986).

16

5

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR EXTRAORDINARY WRIT

Petitioner respectfully prays that an Extraordinary Writ issue to review the

judgment below.

OPINIONS BELOW

[X] FOR CASES FROM FEDERAL COURTS

The opinion of the U.S. Court of Appeals (11th Cir.) appears at Appendix A

to the Petition and is referred to by docket entry [Doc. 34]

The opinion of the U.S. District Court appears at Appendix B

6

JURISDICTION

[x] FOR CASES FROM FEDERAL COURTS

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

Jan 14, 2019.

Appendix A [Doc. 34]

After having acknowledged (dismissal) by docket, responded immediately

with belated motion to proceed ‘IFP’ Appendix F

The Jurisdiction of this Court is invoked under 28 USC section 1651(a) see

Los Angeles Brush MFG. Corp. v. James. 272 U.S. 701 at 706-07 (1927)

NOTE: Appendix G consist of case numbers for Judicial Misconduct

Complaints on “Magistrate” and “District” Judges for the Southern

District Court

7

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Page(s)

U.S. Constitution Article VI cl.3

9, 14

U.S. Const. Amend. XIV

10, 11

18 USC section 4 & 2384

14

28 USC section 453 thru 455

12

28 USC section 454(1)

11, 12

28 USC section 2241 (C)(3),(4)

10 thru 20

28 USC section 2254

11

Supreme Court Rule 10(C)

15

Supreme Court Rule 20(4)(a)

15

Florida Constitution Article I section 9

Florida Constitution Article I section 21

s. 775.087(2) Florida Statutes

/

14, 17

9, 13,14, 20

16

Fla. R. Crim. Proc. Rule 3.172(f)

17 thru 19

8

STATEMENT OF THE CASE

[1] Petitioner initially filed under the color of law; [a] petition for

“territorial” Writ of Habeas Corpus to Hardee County Courthouse (Fla.)

This resulted in violation of Florida Const. Article I section 9,21 and the

Fourteenth Amendment to the United States Constitution.

[2] Petitioner sought relief in an orderly fashion which ended n Petition For

Writ of Habeas Corpus in the United States District Court “middle” case no.

18-cv-00307. Pursuant to 28 U.S.C. section 2241 (c)(3),(d) on Federal

Question: “whether Petitioner was denied meaningful access to court under

Art. I Section 21 [and] Due Process Guarantee of Federal protected right to

be heard according to law.”

See Appendix A [Doc. 1]

[3] The Honorable Charlene E. Honeywell, District Judge, [# 18-cv00307] [Doc. 7] having concurrent jurisdiction; transferred the case to it’s

Sister Court, [S.D.Fla.]. In furtherance of justice for a hearing and

determination under 28 U.S.C. section 2241(d). id at footnote 2.

Appendix C

[4] United States District “Southern” District [# 18-cv-21195] proceeded;

where the Honorable Cooke, J. and Magistrate White [Doc.9] was assigned

to the case, where [a] miscarriage of justice manifest “affirmatively” on

record, Which includes District Judge’s adoption of Magistrate’s R&R [Doc.

9 & 28] in that it is unlawful in the sense that it embraces a violation of [28

U.S.C. section 454] inherently resulting in Misprision of Treason [18 U.S.C.

section 4 and 2384] and/or Article VI clause 3 of the United States

Appendix B

Constitution.

9

[5]On COA Review,[or] Appeal the Honorable (11th Cir.) Dismissed Appeal

without Providing Service on the Petitioner [Doc. 34]. After having received

Complaint of Judicial Misconduct pursuant to [28 U.S.C. section 351-364]

Appendix A [Doc.34]

[6]Petitioner became aware of dismissal by requesting for case docket

[Appendix D]; followed by Clerk of Court having responded.

Appendix E

[7] Petitioner immediately filed belated Application to proceed without

Court cost in Response.

Appendix F

REASONS FOR GRANTING PETITION

Petitioner contends that the Honorable Magistrate White (S.D. Fla.) did not

afford Petitioner, his federal protected right to an “Impartial Magistrate” in

Habeas Corpus Proceedings under 28 U.S.C. section 2241(C)(3)(d)

“Every litigant is entitled to nothing less than the cold neutrality of an

Impartial Judge.” See U.S.C.A. Const. Amend. XIV

Petitioner contends that the “All Writs Act” is necessary in this exceptional

case (instance) where there has been a clear “abuse of discretion” and

“usurpation of judicial power.” [Affirmatively appearing in the record.

Thus, [“manifest facts”] does not require proof.

10

The exceptional circumstances here warrant the use of extraordinary remedy

of mandamus.

A. PLAIN-ERROR

I

“Whether Magistrate Judge abandon of neutrality,

To do the work of an attorney in opposition;

Divested the District Court of jurisdiction in the

first instance.”

Here, Petitioner easily satisfies the first two prongs of the Piano

requirements: where Magistrate White committed error by refusing to

exercise the function of the District Court pursuant to 28 USC Section 2241,

which was given. [Appendix C ] and Usurp the authority under 28 USC

Section 2254 which was not given. Followed by a clear abandon of

neutrality to practice the work of an Attorney in violation of [28 USC

section 454(1)]; also U.S.C.A. Const. Amend. XIV sec.3

Appendix H

Whether Error Affected “Substantial Rights?”

Petitioner argues that these errors [a]ffected [His] “substantial rights”

Olano, (507 U.S. at 734);1 where Magistrate White refused to exercise its

function pursuant to 28 USC section 2241(d); including usurpation of

judicial power under section 2254.

United states v. Olano, 507 US 725,113 S.Ct., 1770 (1993)

11

Although Petitioner’s knowledge were obtained through erudition; it is

difficult to discern any situation where an error in failing to apply the rule or

function of 28 USC section 2241 (C)(3),(d) by an [Article III] judge would

not affect a defendant’s substantial rights. This followed by Magistrate’s

commission of “High Misdemeanor” in violation of section 454(1). [App. H]

The final question is whether the errors “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Olano, (507 U.S.

at 732). Petitioner contends because the subject concerns the enforcement of

the Constitution, statutes, rules; which by law it is formulated and put in

force to correct errors so palpably improper that the failure to address and/or

correct them would result in a “Miscarriage of Justice.” See Coleman v.

Thompson. 501 U.S. 722 at 750 (1991)

POINT TWO

Whether District Judge Adoption of Magistrate’s R & R is

Unlawful in the sense that it embraces Magistrate’s violation of

28 USC sections 453-454(1) and is void, amounting to Misprision of

Treason

Petitioner contends that he was denied his Federal Protected Right to be

heard by a judge mindful of his or her own ‘oath of office’ [28 USC sections

453-455] See Laird v. Tatum. 409 U.S. 824 at 838 n.l 1 (1972).

In this context, District Judge having been timely advised by Objection

[Doc. 16] of Magistrate’s Palpable Abuse of Discretion at issue. District

Judge appears to have turned a blind-eye to the recorded evidence. This

included deviation from the well-settled principle of law established by the

12

iL

'J

(11 Cir) (en banc) decision in Clisbv. instructions to: “resolve all claims

for relief raised in petition for writ of habeas corpus; regardless

whether habeas relief is granted or denied.”

Petitioner like any other litigant is “entitled to careful consideration and

plenary processing of [his] claim, including full opportunity for presentation

of the relevant facts. This is because of the United States Supreme Court’s

Reasoning in Whitney v. Florida, 389 U.S. 138 (1967) that [Art.I sec. 21]

of Florida Constitution. The phrase “every person” clearly includes

Petitioner.

“Whether a prisoner who moves under 28 U.S.C. section 2241

On denial of meaningful access to court under Florida Constitution

Article I section 21 must be given a hearing at which he is entitiled

To be present, where there is a necessity for the determination

Of a factual federal question?”

THEREFORE, based on the preponderance of the recorded evidence

established in the District Court and presented to this Honorable Supreme

Court for review; the errors [is] of “Great Public Importance by which the

District Court exceeded and/or refused to exercise its judicial function.”

See Bankers Life & Casualty Co. v. Holland. 346 U.S. 379 at 383 (1953);

U.S. v. Will. 449 U.S. 200 at 231 [FN 19] (1980). Whether District Judge

had a clear duty to report Magistrate’s “High Misdemeanor” pursuant to 18

USC section 4 and 2384, including a violation of Article VI cl.3 of the

United States Constitution. Is for this Honorable [Article III] Court to say

what the law is?

2 Clisby v. Jones, 960 f.2d 925 at 936 (11th Cir. 1992)

13

MOREOVER, whether it is of Public [American Citizens] interest that a

federal court would exceed or refuse to exercise its judicial function in the

endeavor to prevent addressing federal questions at an actual hearing [is]

constitutionally intolerable as a matter of law?

Thus, this Honorable court should not hesitate to restrain an inferior judge

who have practically nullified [28 USC sec. 2241 (C)(3),(d); James, 272 US

at 707.

Petitioner reiterate the importance of the extraordinary writ, to be used

“only” in such extraordinary case where there is a clear abuse of discretion

and/or ‘usurpation of judicial power.’ See Holland. 346 US at 383; Roche v.

Evaporated Milk Asso, 319 US 21, 63 S.Ct., 938 (1943).

POINT THREE:

Whether a Prisoner who moves under 28 USC section 2241 on

denial of meaningful access to court, under Florida Constitution; [Art. I

sec.21] must be given a hearing at which he is entitled to be present

where there is a necessity for the determination of a factual question?

Petitioner request whether he is entitled to application under Rule 20(4)(a)

directed to Respondent [FDOC] or to another court for the relief sought on

the underlying claim accompanying the denial of meaningful access to court

•5

under Bound v. Smith, and Lewis v. Casey, precedents; where the District

Court refused to exercise its function under section 2241(d) in the first

instance.

NOTE: While the index to Appendix [A thru H] refers to point one &

two. The substantial evidence in support of point three is referred to as

3 Bound v. Smith, 430 US 817 (1977); Lewis v. Casey, 518 US 343 (1996)

14

0

index to Attachment [A thru E] following index to appendix [A thru H]

attached hereto.

In this instance, the “non-frivolous underlying claim” on the federal

question of “denial of meaningful access to the court” raised in s. 2241(d)

petition; which presents a justiciable controversy on jurisdictional defect,

which inherently renders [FDOC] commitment void as a matter of law.

Thus, the state ‘habeas’ court decided an important federal question in a way

that conflicts with relevant decisions of this court. See Rule 10(c).

While Petitioner’s Life sentence following violation of probation [#78-5774

B] for a non-homicide offense, committed prior to Petitioner’s 18 Birthday;

violates the 8th Amendment Ban on Cruel and Unusual Punishment, presents

a compelling reason for the exercise of this court’s supervisory power or

control; on the authority of Blackledge v. Allison. 431 U.S. 63 at 68

(1977)(an Unkept promise).

The underlying new felony offense(s) [1982 Case(s)] which form the basis

for violation of probation; is not binding on Petitioner, the Prosecutor or the

Court. See Harden. 453 so.2d at 550; because there have been no fair and

reliable determination of guilt. The errors, affirmatively appears in the

record, to wit; the Plea colloquy and respective written judgment and

sentence instruments. Which consist of (1) trial court failed to formally

accept Petitioner’s open guilty plea in open court and for the record 4 see

[Attachment A pg. 7] and (2) the court imposed multiple illegal sentences, to

4 United States v. Arami, 536 f.3d 479 (5th Cir. 2008); Harden v. state, 453 so.2d 550 (Fla. 4* Dist. 1984)

15

a

wit; Stacked minimum mandatory three years terms pursuant to s.

775.087(2) Fla. Stat. in both # 82-8169 [Attachment B] and #82-15413

[Attachment D] including impostion of life in all three cases [Attachment B

thru D] for attempted 1st degree murder; a first degree felony punishable by a

maximum term of 30 years. See King v. State. 390 so.2d 315 at 320(Fla.

1980) The fact is, Petitioner cannot acquiesce to an illegal sentence. See

Cheney v. State. 640 so.2d 103 at 105(Fla. 4th DCA 1994):Williams v.

State. 500 so.2d 501 at 503 n.4 (Fla. 1986).

Petitioner argues that even if the plea was accepted by the court; imposition

of an illegal sentence rendered the plea process in its entirety void based on

the undisputed facts that the court “exceeded its jurisdiction” and engaged in

“usurpation of judicial power.”

THEREFORE, because the “voluntariness of the plea” is ensured by the

court’s compliance with rule 3.172(f). see U.S. v. Jones. 381 f.3d 615 at 618

n.3(7* Cir.2004); Quillen v. State. 73 so.3d 890 at 892(Fla. 4th Dist

2011)[381 f.3d 619 n. 7]; Harden. 453 so.2d at 551.

Petitioner’s plea was obtained in violation of the 14th Amendment to the

United States Constitution and West’s F.S.A. Const. Article 1 sec.9 See

Bolware v. State. 995 so.2d 268 at 272(Fla.2008)(citing McCarthy v. U.S..

394 us 459(1969).

However, trial court refused to allow Petitioner the unqualified right to

withdraw his guilty plea on more than one occasion “pre-acceptance”

resulting in Plain-error. See [Ex. F] [156 so.3d 2].

In which the trial court lacked discretion to deny a pre-acceptance

withdrawal of a guilty plea.[536 f.3d 482]. In furtherance, State Appellate

16

Court [Attachment E] failed to adequately exercise its function on the

federal questions concerning the errors presented for review.

This constitutes ‘Plain-Error’ where the trial court had no discretion to deny

a pre-acceptance withdrawal of a guilty plea in the first instance. [536 f.2d

482] At no time did the state judge accept plea. [Attachment A pg. 7]

Fla. R. Crim.P. Rule 3.172(f)

Petitioner argues that rule 3.172(f) is an absolute rule that imposes an

absolute right on a defendant to withdraw his or her guilty plea before the

court accepts it. Arami, 536 f.3d at 482; Harden, 453 so.2d at 550.

HERE, Petitioner easily satisfies the first two prongs of the plain-error test.

(1) trial court committed error under rule 3.172(f) by denying petitioner’s

motion to withdraw before the court had accepted his plea. (2) the

error is ‘clear and obvious’ because of the plain language of rule

3.172(f) is unambiguous, as it clearly gives defendants an absolute

right to withdraw a plea before the court accepts it. Id.

Petitioner argues that the error affected his substantial rights where the the

clear language of rule 3.172(f) which provides Petitioner with an

unqualified right to withdraw a guilty plea “without any necessary

justification” indicates that any error in the court’s failure to consider the

rule would affect a defendant’s substantial rights. Without the error

Petitioner would have been able to withdraw his guilty plea and proceed to

trial; thereby demonstrating a “probability of a different result” that

undermine the confidence of [His] plea.

17

'U

j

'i*'

The Fifth Circuit expressly articulated that:

“It is difficult to discern any situation where an error in failing to

apply Rule 11(d)(1) would not affect a defendant’s substantial rights” id. At

536 f.3d 484. The same applies to Fla.R.Crim.P. Rule 3.172(f).

Here, the ‘probability of a different result’ exist; that is sufficient to

undermine confidence in the outcome of the proceeding. [536 f.3d. 484].

The final question is whether the error “seriously affected the fairness,

integrity, or public reputation of judicial proceedings.” (e.g. Piano. 507

us at 732).

Petitioner ‘ad informandum conscientiam judicis’ that “denying him the

right to have a jury determine his guilt, satisfies this test. Id at 484 citing

U.S.v. Bradley, 455 f.3d 453 at 464(4* Cir. 2006)(the fact is no jury

rendered a verdict in this case; there has been no ‘fair and reliable

determination’ of the Petitioner’s guilt.” A jurisdictional defect is not subject

to procedural default.

WHEREFORE, rule 3.172(f) set out an absolute rule allowing Petitioner to

withdraw his guilty plea before the court accept it. Then [here] it follows

that depriving Petitioner of his unconditional right under the rule would and

[did] affect the fairness, integrity, or public reputation of judicial proceeding

because the Petitioner would lose his right to take his case before a jury.

[536 f.3d at 485] because the errors affirmatively appears in the record. The

apparent manifest miscarriage of justice is compelling to aid this Honorable

Court of its supervisory control of the federal court of appeals and district

court as necessary to proper judicial administration of the federal system.

18

Thus, the recorded material facts in this context, indicates that the federal

and state court “exceeded its jurisdiction” [and] engaged in “usurpation of

judicial power.” Whereas the judiciary refused to exercise its function; to

address and correct the apparent miscarriage of justice on face of record.

Where both State Habeas Court and U.S. District Court(S.D.Fla.) has

decided an important federal question in a way that conflicts with relevant

decisions of this Honorable Supreme Court.

CONCLUSION

The petition for extraordinary writ should be granted as this Honorable

Court must find that the District Court abused its discretion and committed

usurpation of judicial power based on the ‘substantial evidence’ before this

court where the court must not hesitate to restrain the inferior judges. Also

order federal evidentiary hearing on the underlying section 2241 claim of

denial of meaningful access to the courts under Florida Constitution Article I

section 21 Federal Question. The failure to act in preserving justice

administration would defeat the ends of justice and promote and/or

acquiesce to judicial corruption which is a “federal question” of Great Public

Improtance; in which the American People would find constitutional

intolerable.

Presented in Good Faith and not for frivolous or deceptive purpose:

/s/

Petitioner pro se

19

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.