Petition for Writ of Certiorari — Richard Shelley, Petitioner v. United States

No.

AL

•1 CD

IN THE

SUPREME COURT OF THE UNITED STATES

r"i

/

V

RICHARD SHELLEY

— PETITIONER

(Your Name)

FILED

MAY 2 0 2019

vs.

UNITED STATES OF AMERICA

kESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR ELEVENTH CIRCUIT

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

RICHARD SHELLEY

(Your Name)

Federal Correctional Complex

Yazoo City Low

P.O.Box 5000_________________

Yazoo City, MS, 39194

(Phone Number)

RECEIVED

MAY 2 8 2019

OFFICE OF THE CLERK

SUPREME COURT, U.S.

QUESTION(S) PRESENTED

WHETHER THE DISTRICT COURT ERRED IN FINDING THAT SHELLEY FAILED TO OBJECT

TO THE GOVERNMENT'S USE OF A PEREMPTORY STRIKE, THEREBY CAUSING AN 5th

AMENDMENT DUE PROCESS CLAUSE VIOLATION AND VIOLATION OF THE SIXTH AMENDMENT

RIGHT TO A FAIR TRIAL?

And Batson v Kentucky, violation?

LIST OF PARTIES

£X] All parties appear in the caption of the case on the cover page.

.[ ] Ail 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:

TABLE OF CONTENTS

1

OPINIONS BELOW

JURISDICTION

.2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

4'

STATEMENT OF THE CASE;.

6

REASONS FOR GRANTING THE WRIT

7

CONCLUSION

9

INDEX TO APPENDICES

APPENDIX A- OPINION OF THE UNITED STATES COURRT OF APPEALS

APPENDIX B - OPINION OF THE DISTRICT COURT

APPENDIX C - A COPY OF THE ORDER DENYING REHEARING

APPENDIX D

APPENDIX E

APPENDIX F

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

For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix —A— to

the petition and is

; or,

[ ] reported at

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

^X] is unpublished.

The opinion of the United States district court appears at Appendix.—5— to

the petition and is

[ ] reported at

) or,

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

[ ] is unpublished.

.

[ ] For cases from state courts:

The' opinion of the highest state court to review the merits appears at

to the petition and is

Appendix

[ ] reported at__ _

I °r,

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

[ ] is unpublished.

The opinion of the_

court

appears at Appendix

to the petition and is

[ ] reported at____

; or,

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

[ ] is unpublished.

1.

JURISDICTION

For cases from federal courts:

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

was January 8,2019

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

Ixl A timely petition for rehearing ws^niedJj^ the United States Court of

, and a copy of the

Appeals on the following date: ________________

order denying rehearing appears at Appendix —9----[ ] An extension of time to file .the petition for a writ of certiorari was granted

_ (date)

(date) on

to and including______

in Application No.__ A

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

[ ] For cases from state courts:

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).

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TABLE OF AUTHORITIES CITED

PAGE NUMBER

7,'8,

CASES

Batson v. Kentucky, 476 U.S. 79, 106 S.Gt. 1712,(1986)

Bui v. Haley, 321 F..3d 1304 (11th Cir. 2003)................

8

Central Alabama Fair Housing Ctr. v. Lowder Realty Co.,

236 F.3d 629 (11th Cir. 2000)...................................... .................

United States v. Allen-Brown, 243 F.3d 1293(llth Cir.2201).. 6

United States v. Campa, 529 F.3d 980(llthCir.2008)........

7

United States v. Robertson, 736 F.3d 1317(llthCir.2013)......7

Hernandez v. Texas, 347 US,lat 482, 98 L. Ed. 866, ,74 S Ct 667...8

Patton v. Mississippi, 332 US, at 469 L.Ed. 866, 74 S Ct 667

8

Whitus v. Georgia, 385 US, at 549-550, 17 L.Ed 2d 599, 87 S Ct 643 ... 8

STATUTES AND RULES

OTHER

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.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

5th AMENDMENT DUE PORCF.SS CLAUSE, AND THE EQUAL PROTECTION CLAUSE

6th Amendment Fair Trial Violation

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REASONS FOR GRANTING THE PETITION

Mr. Shelley states the reasons for granting the petition are: (1) The

District Court made an incorrect finding that Mr. Shelley failed to object;

(2) The Court of Appeals found that it therefore was not error for the

District Court hot to make a finding that the government used its perem­

ptory strike on a prospective African-American juror for a hoh-discrimnatory reasons.(3) Mr. Shelley was denied his 5th Amendment right to due

process by the Courts action and (4) Mr. Shelley was denied a fair'trial

in violation of the Sixth Amendment. This petition should be granted for

the above stated reasons as Mr. Shelley will not be granted the relief he

seeks in a 28 U.S.C. § 2255, because of the Court of Appeals affirmation

the lower court will not reverse the Appeals Court.

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STATEMENT OF THE CASE

Mr. Shelley submits this ia an error. Not only did Mr. Shelley object to

the government's use of a peremptory strike on the prospective juror, but

the district court also shifted the burden onto the government, making an

implicit finding that a prima facie case of racial discrimination had

been made based on Mr. Shelley's objection.

After the government struck two African-Americans jurors in its first

four peremptory challenges, defense counsel observed.a pattern and obj­

ected: "I'm sorry Your Honor, but that's the second black member of the

panel that the Government has stricken peremptory." DE:162:150 (emphasis

added). This was the first opportunity Mr. Shelley had to object to the

striking of both African-American jurors, because this was the moment

defense counsel observed a pattern of striking African-American- jurors.

Mr. Shelley could not have objected when only Walter Lubin(the first of

the two African-American jurors) was struck because at the time there was

on pattern; only one African-American juror had been stricken. And the ob­

jection clearly encompassed the striking of both Walter Lubin and Shirley

Sims (the second of the two African-American jurors) as Shelley's attorney

objected on the grounds that two blacks jurors had just been stricken.

And in fact, United States v. Allen-Brown, 243 F.3d 1293, 1297 (11th

Cir. 2001), the case cited to by the panel, see slip op. at 3, supports

Mr. Shelley's position. In that case, the defense attempted to remove six

white prospective jurors using peremptory challenges. Allen-Brown, 243 F.

3d at 1295. The government objected, raising a Batson challenge, and def­

ense counsel was required to give a race neutral reason for the striking

of all six jurors. Id. at 1296. The court did not find that defense cou­

nsel was.only required to give a race neutral reason for the striking, of

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the sixth juror; race neutral reasons for striking of the previous five

jurors was required as well. Seeid.

The same is true here. Defense counsel's objection to the government's

attempt to remove two African-American jurors was an objection to the stricking of both of those jurors. The district court was therefore required

to make a finding that the government used a peremptory strike on both

jurors for a^non-discriminatory, race neutral reason. The government's

reasons for striking the second of the two African-American jurors, Ms.

Sims, and the district court's finding that this reason was race neutral,

without questioning the government, was not enough. A race neutral reason

for the striking of Mr. Lubin was required as well. The district court s

failure to make any findings as to Mr. Lubin, after making an implicit

finding that Mr. Shelley had made a prima facie case of racial discrimin­

ation by turning the burden over to the government, was error.

As laid out in the Initial and Reply Briefs, because the court shifted

the burden onto the government after defense counsel objected, stating:

"What do you want to say [Assistant United States Attorney]?", DF.:162t:50,

the district court made an implicit finding that Mr. Shelley had made a

prima facie. See United States v. Robertson, 736 F.3d 1317, 1317(llth Cir.

2013)(finding "although the court did not elaborate on how the government

met its burden at step one, the district court's prima facie finding was

implicit."); see also United States v. Campa, 529 F.3d 980, 998(llth Cir.

2008)(finding the court's shifting of the burden onto the government to

give a race-neutral explanation for peremptory challenges was an implicit

ruling " that the defendants had made a prima facie showing of racial dis­

crimination.") .

And, as this Court found in Batson v. Kentucky, 476 U.S. 79, 106 S,.Ct’.

1712, 90 L.Ed. 2d 69(1986), that once a defendant makes such a prima facie

showing the burden shifts to the prosecution to come forward with a neutral

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explanation for challenging the jurors which relates to the particular

case to be tried. Under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,

90 L.Ed. 2d 69(1986), the defendant must make a prima facie showing that

the prosecutor exercised a peremptory challenge because of race. Second,

assuming [2019 U.S. Dist. LEXIS 27] the defendant made such a showing, the

prosecutor must offer a racs-neutral basis for striking the juror. And

third, the trial court must then determine whether the defendant has car­

ried his or her burden of proving purposed discrimination. The third step

requries the trial court to court evaluate the persuasiveness of the just­

ification prosecutor. In this case, Shelley made a timely objection to the

prosecutor s removal of all black persons on the venire. Here, the trial

court flatly rejected the objection without requiring the prosecutor to

give an explanation for his, actions, and the case should be remanded.

Cf. Whitus v. Georgia, 385 US, at 549-550, 17 L.Ed 2d 599, 87 S Ct 643;

Hernandez v. Texas, 347 US, at 482, 98 L. Ed. 866, 74 S Ct 667; Patton v.

Mississippi, 332 US, at 469, 98 L. Ed. 866, 74 S. Ct 667.

The Eleventh Circuit Court of Appeals, made a ruling contaray to the ruling

put forth by this Court in Batson v. Kentucky, and contrary to their own

circuit precedent. Dening Shelley the protections of the 5th Amendment, due

process clause protection and Equal protection as guarnteed by the U.S. c

Constitution; also dening Shelley the Sixth Amendment protections to a fair

and impartial trial. As evidence by the ruling and analysis used previously

by the Eleventh Circuit cases and rulings: In Bui avr.- -Haley, 321 F.3d 1304,

1316(llth Cir. 2003)(finding only the prosecutor who struck the juror was

capable of fulfilling the government's burden to provide a race-neutral

reason for the strike), and the district court pever made any findings 1

based on other factors that Mr. Lubin was stricken for a race-neutral reason, see id. at 1317 (finding the district court can rely on factors other

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than the government's given reasons to find an absence of racial discrim­

ination), there was no finding in the district court (and therefore nothring for this Court to rely upon) that the government used its peremptory

challenge to strike Mr. Lubin for a non-discriminatory reason. The strik­

ing of Mr. Lubin was therefore a Batson violation.

CONCLUSION

Mr. Shelly respectfully submits that this United States Supreme Court, find

that a Batson Violation was committed and that Mr. Shelley was denied the

5th Amendment due process clause violaton and denied Equal Protection under

the Constitution; and denied a fair trial. MrJ Shelley request that this

Court grant this petition for a writ of certiorari.

Respectfully Sibmitted,

/sl Richard Shelley~

Federal Correctional Complex

Yazoo City Low

P.0. BOX 5000

Yazoo City, MS 39194

Date

Itjjt

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