Petition for Writ of Certiorari — Jason L. Clark, Petitioner v. United States

No.

19-5995

IN THE

SUPREME COURT OF THE UNITED STATES

Jason L. Clark

- PETITIONER

(Your Name)

vs.

Hnitp.cl .States of America

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Uni tp.ri Statp.s Eighth Circuit Court Of Appeals___________

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

PETITION FOR WRIT OF CERTIORARI

.Iflsnn I.. r.lark-Rpg. No. 17832-045

(Your Name)

Forrest City Correctional Complex/Med, P.0 Box 3000

(Address)

Forrpst City Arkansas. 72336

(City, State, Zip Code)

Non Applicable (N/A)

(Phone Number)

/

QUESTION(S) PRESENTED

DOES A GUILTY PLEA BAR A CRIMINAL DEFENDANT FROM LATER COLLATERAL

ATTACK ON HIS CONVICTION ON THE GROUND THAT THE STATUTE OF

CONVICTION VIOLATES THE CONSTITUTION

i

,\y.

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:

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION.....,.

..... — v......

•*•••■•■

'r'V*‘ • ■

„ 2 .. . .

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT"© FTH ECASE

K

REASONS iirr»D

\j\ i GRANTING THE WRIT

.7

CONCLUSION

15

INDEX TO APPENDICES

APPENDIX A

May 9, 2019, Order by the Eighth Circuit Court Of Appeals

Certificate of Appealability.

APPENDIX B

July 17, 2019, Order "denying Rehearing En Banc."

United States District Court's December 17, 2018, Order

APPENDIX C

Denying section 2255 motion.

APPENDIX D

APPENDIX E

APPENDIX F

Constitutional Amendments and Federal Statutes.

TABLE OF AUTHORITIES CITED

-

C'

CASES

Class v. United States, 200 L.Ed 2d 37

Haynes v. United. S.tates 390. U.S. 85, 87 (1968)

Black ledge ip. Perry, 417 U.S. 21 (1974)

Menna v. new York, 423 U.S. 61 (1975)

United States v. Broce, 488 U.S. 563 (1989)

Descamps v. United States 133 S.Ct. 1684 (2013)

-Ma-th-i-s-v. United-States",'-T36^S^. Ct .'“224‘3 ^2016')~----Sessions v. Dimaya, No. 15-1498

Kolender v. lawson, 461 U.S. 352, 357-358 (1983)

Moncrieffe v. Holder, 569 U.S. 184

Carachuri-Rosendo, 130 S.Ct. 2577

Connally v. general Constr. Co.,

Collins v. kentucky, 234 U.S. 634, 638

United States v. Frady, 456 U.S. 152 (1982)

Bousley v. United States, 523 U.S. 614, 622 (1998)

United States v. Ruis, 536 U.S. 622 (2002)

Adams v. United States, 317 U.S. 269 (1942)

Hill v. Lockhart, 474 U.S. 52 (1995)

Strickland v. Washington, 466 U.S. 668 (1984)

STATUTES

PAGE NUMBER

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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 BEEOW

l ] JKor cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] 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__C

the petition and is

[ ] reported at

; or,

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

[X] is unpublished.

[ ] For cases from state courts:

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

Appendix_____to the petition and is

[ ] reported at

; or,

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

[ ] is unpublished.

The opinion of the _

court

fn fl-io noH’Hnn or»/^ ic

appears at Appendix

[ ] reported at

; or,

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

f ] is unpublished.

ou

jjuvi ui vij

1.

ujju

Jo

A

to

to

JURISDICTION

[ ] For cases from federal courts:

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

was May 9, 2019

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

{X-]-A-timely-petition-for-rehear-ing-was-denied-by-t-he-United-St-ates-Goua’t“of

Appeals on the following date: July 17,2019

, 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. § 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______

f ] 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).

2.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Sixth Amendment of the United States Constitution Appendix D page 1

18 U.-S.C. 924(e) in part.

Appendix D"pg.'2

28 U.S.C. 2255 provisions. Appendix D. pg. 3.

_28 U.S.C. 2253 provisions. Appendix D. pg. 5.

*

3.

STATEMENT OF THE CASE

i.) On November 15, 2016, in the Western District of Missouri, the

Petitioner along with others were charged in a twenty eight (28) count

indictmea-t, involving firearms

and drug trafficking offenses. The Pe­

titioner was specifically, charged under counts 6, 8, 11, 12, 13, 14.

See District Court Docket (D-Dkt-1).

—

2.) On march 21, 2017, the Appellant entered a plea of guilt based

on a plea agreement with the Government. D-Dkt-37

3.) The plea agreement included a waiver of right to appeal sen­

tence, directly or collaterally, on any ground except claims of ineffec

tive assistance of counsel, prosecutorial misconduct, or an illegal sen

tence." D-Dkt-37.

4.) On September 6, 2017, the Petitioner was sentenced to 235 mo­

nths term of imprisonment. D-Dkt 58.

5.) On September 12, 2017, timely notice of appeal was submitted,

however, the Eighth Circuit enforced the plea agreement waiver. Finding

no non-frivolous issues, for appeal outside the scope of the waiver. See

United States v. Clark, 720 Fed. Appx. 813 (8th Cir. 2018).

6.) The matter before this honorable Court pertains to 28 U.S.C.

2255 motion

that was submitted in the District Court, involving the

challenge of the constitutionality of the statutes of the Petitioner ',s

conviction. See Civil Docket (Civ. Dkt. 21)

4.

6.) Subsequently, the claim of Ineffective Assistance of counsel

was also raised.

The Petitioner'^ motion was followed by the Govern­

ment Vs "Response," and that of the Petitioner Vs "Reply."

See Civ. Dkt

21.

7.) On December 17, 2018, the District Court by Court Order, deter

mined that "based on ... valid waiver, relief denied on grounds (l)-(3),

claims that specificallyy, pertained to (1) 21 U.S.C. 851(e) prodeeding

to establish prior convictions, being in violation of the "Doctrine of

Seperation of Powers," and conflicts with ...section 2255; (2) determi­

ning whether state offenses qualify as prior conviction to be used as

grounds for sentencing enhancement; (3) 924(e)(2)(A)(ii) at Title 18,

(definition of serious drug offense) is unconstitutionally vague and al­

lows for arbitrary enforcement of the law.

District Court Order (Dist.

Crt. Ord. page 1.)

8.) The District Court also denied the claim of Ineffective Assis­

tance of Counsel, denied Evidentiary Hearing and also denied issuing a

Certificate Of Appealability.

See Dist. Crt. Ord. pg.2-3.

9.) The Petitioner sought redress in the United States Eighth Cir.

cuit Court of Appeals.

Specifically, asserting that Certificate of Ap­

pealability should issue because the District Court misapplied the Go­

vernment Vs waiver.

Appellate Case No.19-1170, page 6. (App. No.)

10-) The three judge panel, determined that "review of the origi­

nal file of the district court,"

5.

revealed that application for a certificate of appealability is denied,

the appeal is dismissed.

See case No. 19-1170.

11.) The Petitioner further sought reconsideration "En Banc," asserting that the three judge panel erroneously sanctioned the District

Court\s misapplication of the Government Vs waiver, and contending that

counsel\s failure to adequately inform him amounted to a miscarriage of

justice, and that counsel',s failure to invoke the categorical and modified categorical approach regarding prior predicates during the time

that he enters plea agreement establish

"cause" which resulted in an

unauthorized sentence establishing prejudice.

See Petitioner ',s Motion

for reconsideration (Mot. Recon.) page 8-9.

12.) On July 17, 2019, the petition for rehearing was denied and

at the direction of the Eighth Circuit Court of Appeals, petition for

rehearing by the panel was denied. See Order Case No. 19-1170, July 17,

2019.

13.) The Petitioner now seeks to.be granted certiorari regarding

the conflicting findings reached by the lower Courts.

6.

REASONS FOR GRANTING THE PETITION

In summation, the Eighth Circuit Court Of Appeals was asked two

federal question*

One (1) Whether a Certificate of Appealability is­

sues (where three claims submitted in a section 2255 motion, pertained

to sentences in excess of the statutory maximum and the District Courtforecloses determination on material facts based on waiver,,and Two

(2) where counsel failed to determine whether prior offenses qualify

for imposing statutory sentencing enhancements and district court fa­

iled to address that material fact should Certificate

of Appealability

r

issue."

The finality of it's review amounted to rubber stamping it's

adoption of the District Court's dicision with a statement that; "the

Court has carefully reviewed the original file of the district court,

and the application for a certificate of appealability is denied. The

appeal is dismissed."

The application of the law put forth to deter­

mining the federal questions remain a mystery.and this grants the Su­

preme Court (The Highest Court) the. ability to exercise it's supervisory

power to instruct the lower courts because what the Appellate Court has

adopted conflicts with current lav; even eighth circuit precedent. When

the Petitioner's 2255 motion states a valid claim of the denial of a

constitutional right, consideration should be given in some form as to

whether a jurist of reason would find it debatable whether the district

court was correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000)^

The

Petitioner maintains that claims pertaining to a vague law or one in

violation of the "Seperation of Power Doctrine," does not fall within

scope of a plea waiver and that constitutional claim-warrant relief.

7.

DOES a guilty plea bar a criminal defendant from later collateral

ATTACK ON HIS CONVICTION ON- THE GROUND THAT THE STATUTE OF

CONVICTION VIOLATES THE CONSTITUTION

Because in conjunction with misapplication of a plea waiver, guilty plea was not voluntary expression of the defendant s choice, done

with sufficient awareness of the relevant legal circumstances and like­

ly consequences, relief should be granted;

This question was again recently answered in Class v« United Sta^

tea, 200 L.Ed 2d 37, as it pertained to the application of a plea waiving or that it bars appeals on many claims.

The Court explained thatll

"Fifty years ago this Court directly addressed a similar claim (a claim

that the statute of conviction was unconstitutional). And the Court sta

ted that a defendant's plea of guilty did not...waive his previous [Con

stitutional] claim."

Haynes v. United States, 390 U.S. 85, 87, n. 2,

88 S.Ct. 722 (1968).

The Class, Court also turned to Blackledge v.

Perry, 417 U.S.. 21, (1974), in reference to habeas relief on the ground

that Perry, should be barred from raising his constitutional challen

ge-

But this Court held that it did not. A year and a half later this

Court in Menna v. New York, 423 U.S. 61, (1975) what it had said and held in Blackledge.

These holdings reflect an un­

derstanding of the nature of guilty pleas which

tches back nearly 150 years,

---repeated

in broad outline, stre

The Court makes it's original reference

to a statement given in the "Opinion," by the honorable Justice Harlan,

8.

that; "plea of guilty did not, of course, waive his previous [consti­

tutional] claim." Haynes at 390 U.S. at 87, n. 2.

In more recent years

the Court reaffirmed the Menna-Blackledge, doctrine and refined it's

scope.

See United States v. Broce, 488 U.S. 563 (1989) ("a guilty plea

does not bar a claim on appeal, where on the face of the record the

court had no power to enter the conviction or impose the sentence.")

in the instant case the constitutional claims are consistent with Peti­

tioner knowing, voluntary and inteligent admission that he did what the

indictment alleged, nor do the Petitioner',s claims focus upon case re­

lated constitutional defects that "occurred prior to entry of the plea

Blackledge, 417 U.S. at 30; they could not for example, have been cured

through a new indictment, cases of reference make clear that a defen­

dant's guilty plea does not make irrelevant the kind of constitutional

claims that the Petitioner sought to make.

In sum, the claims that we­

re raised in the Petitioner's 28 U.S.C. 2255 motion and that the Dist­

rict Court procedurally denied redress did not fall within any of the

types-.-that the Petitioner',s plea agreement forbids him to raise on

direct appeal or by collateral attack,

They challenge the Government'^

power to criminalize (by enhancement) Petitioner',s (admitted) conduct.

They thereby call into question the government',s power to constitutio­

nally prosecute him. Broce, supra, at 575 (quoting Menna, supra at 6162, n. 2.)

A guilty plea does not bar direct appeal or collateral at­

tack under these circumstances.

For instance, PetitionerVs first claim

raised in his 2255 motion of question, was based on the contention that

"21 U.S.C. 851(e) violates the "Doctrine of the Seperation of Powers,"

and that it conflicts with 28 U.S.C. 2255."

9.

The provisions of 21 U.S.C

851(e) clearly states that; "No person who stands convicted of an of­

fense under this part [21 U.S.C. 841 et.seq.] may

challenge the vali

dity of any prior conviction alleged under this section which occurred

more than five years before the date of the information alleging such

prior conviction." 21 U.S.C. 851(e).

However, with the exception of

the limits set in 851(e), all prior predicates are subject to the cate­

gorical or modified approach

with regards to statutory enhancements

and a determination is reached as to whether the statutory enhancement

is lawful or unlawful based on advanced principles uniformally estab­

lished by trial and error in the Courts. See Descamps v. United States,

133 S.Ct. 2276 (2013)^1 Mathis v. United States, 136 S.Ct. 2243 (2016;).

Also ------Moncrieffe 133 S.Ct. at 1684 ("a state offense is a categorical

match with a generic federal offense only if a conviction of the state

offense "necessarily involved... facts equating to [the] generic [fede­

ral offense].")

Not to run afoul of the platform.established, but as

the Petitioner informed the District Court that; "by use of the 2255 ve­

hicle Congress established that a prisoner may move the Court that im­

posed a sentence in violation of the Constitution or laws of the United

States for relief.

Yet 851(e) says otherwise,

It conflicts with red-

ress customarily allowed when implicated as a miscarriage of justice.

It is a wrong to allow the Government to'go back 30 years to dig up a

prior predicate, then shield their far reaching, when regardless that

by the law under the Controlled Substance Act (CSA), the predicate may

now be found to be a misdemeanor offense.

The honorable Gorsuch J., in

Sessions v. Dimaya, No. 15-1498, gave a thurough rendition on the arbi­

trary enforcement of law and notable is the reference that he made to

10.

A. Hamilton, thats found in the Federalist No. 78, at 466, warning that;

"while liberty can have nothing to fear from the judiciary alone, it

has everything to fear from the union of the judicial and legislative

powers."

Hand-in hand, the judiciary and that of the Congressional le-

gislature have jointly enforced a federal statute that conflicts with

the rudimentary concept of criminal justice, "[D]ue Process."

Congress

framing a law that judicially has no pertinent guidelines and delegating

authority to administrators, prosecutors, juries and judges to make ad

hoc decisions implicates "Union," of the two branches, where the law is

upheld in the Courts, when it should otherwise be found to be a malady.

See Kolender v. Lawson, 461 U.S. 352, 357-358 (1983)

This was the cla­

im that the District Court actually turned a blind eye.

The Second

claim in the Petitioner \s 2255 motion, is encapsulated by the first, to

the extent that it relates to how prior predicates are determined under

the Petitioner's legal circumstances.

Where the Petitioner was also sen

tenced under 18 U.S.C. 924(e)',s, "Armed Career Criminal Act," (ACCA), he

asserted the 1996 version of his conviction for "Possession with intent

to distribute (Mo. Rev. Stat. 195.211(2) and (3) and the 1997 version of

"Mere Possession," (Mo. Rev. Stat. 195.202) did not qualify as ACCA "se­

rious drug offense," nor under 18 U.S.C. 851 as prior predicates. See

Moncrieffe v. Holder, 569 U.S. 184, ("State offenses constitute felony

punishable under the CSA, only if it proscribes conduct punishable as a

felony under that federal lav/.") Also see Carachuri-Rosendo, 130 S.Ct.

2577 ("Our more focused categorical inquiry is whether the record of con

viction of the predicate offense necessarily establishes conduct that ;

the CSA, own it's own terms, makes punishable as a felony.").

Adequate

examination of the prior predicates mentioned above, evidences that the

11.

Petitioner Vs sentence involving 18 U.S.C. 922(g) offense, is in excess

of the statutory maximum, inviolation of the Constitution and the laws

of the United States of America.

The third claim submitted by the Pe­

titioner is also in congruence with the former---- claims, yet, asserting

that 18 U.S.C. 924(e)(2)(A)(ii) is unconstitutionally vague law, and

that Congress left room for those provisions to be circumvented and sub

ject to the preference of the judiciary, instead of placing emphasis on

it'.s meaning. Citing Sessions v. Dimaya, No. 15-1498 - ("vague laws in­

vite arbitrary power... leaving the people in the dark about what the

law demands and allowing prosecutors and the Courts to make it up.")

(Justice Gorsuch concurring). The Petitioner's contentions turned to

the very definition given in 924(e)(2)(A)(ii) which states; "As used in

this subsection--(A) the term "serious drug offense" means--(i) an of­

fense under the Controlled Substance Act (21 U.S.C. 801 et. seq.), the

Controlled Substances Import and Export Act (21 U.S.C. 951 et. seq.),

or chapter 705 of title 46 [46 U.S.C'.S. 70501 et. seq.], for which a

maximum term of imprisonment of ten years or more is prescribed by law;

or (ii) an offense under state law, involving manufacturing, distribu­

ting, or possessing with intent to manufacture or distribute, a control

led substance (as defined in section 102 of the Controlled Substances

Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten

years or more is prescribed by law."

Where the Courts have declined to

enforce the plain readingfqf the provisions, opting :to ignore the spe­

cifics given by Congress when directing; "as‘ defined, in section 102 of

the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law," the pro-

12.

vision fails to make clear that such would be based on state legislafeu

re s definition of "serious drug offense}" for it s attachment of leng

thy penalties that carry a maximum term of imprisonment of ten years or

more.

Even when including; "an offense under state law, involving man-

ufacturing, distributing or possessing with intent to manufacture or

distribute la controlled substance," the provision in the next breah tu­

rns back to what is defined under federal law, which certainly includes

specific drug quantities as elements of the offense in determining

for

which a maximum term of ten years or more is 'prescribed by law." (federal law)

The provision does not give people of common intelligence fa-

ir notice of what the law demands of them.

constr. Co

See Connally v. General

269 U.S. 385 (1926); also see Collins v. Kentucky, 234 U.S.

634, 638 (1914).

Congress handed the responsibility of defining 924(e)

(2)(A)(ii), to judges and that argument must not be.barred by a pleawaiver.

Furthermore, Fed. Rule Crim. P. Rule 11(a)(2), "has no appli-

cation" to the "kinds of constitutional objections" that may be raised

under the Meanna-Blackledge doctrine,

In any event, in the instant ca-

se, the 28 U.S.C. 2255 proceedings do not fall within the scope of the

Government's plea waiver, procedural denial based on the waiver was in

error, particularly where those claims pertained to an illegal sentence

and doing .so'.amounts-to-a_iniisoarrigeI.of justice. United States v. Broce, 488 U.S. 563 (1989).

However, looking to the entirety of the Peti-

tioner's legal representation when deciding to enter his plea of guilt

which involved the plea waiver, counsel's errors must be considered to

reach a finding regarding raising claims, not raised on appeal, the fac

tors to consider is customarily."cause, and prejudice," See United Sta­

tes ,v. Erady, 456 U.S. 152 (1982)

Bousley v. United States, 523 U.S.

13.

614, 622 (1998) and when you examine counsel White Jr.'s affidavit,you

find,the bald statement that; "Now it seems as though Mr. Clark is sa­

ying that counsel should have objected to his underlying record as not

substantiating, his being an armed career offender,

While my belief is

his understanding of that process differs from my own, and that he is

not correct in his assessment of that record, I believe that the Proba­

tion Officer's calculations would have been accepted by the Court anyv?ay."

But the District Court record omits, what he based that belief

on, nor does his affidavit state specifically "what makes the Petitio­

ner an ACCA offender," by his assessment of the underlying record.

The

Petitioner was never informed by counsel regarding^the status of his

prior convictions, based on the precedent law, counsel has not shown

that he was informed on the subject, he made no reference in the District Court

adversaril.y: as to their relevance, the subject is never bro

ached by counsel in the Courtroom, nor did he make his client aware of

how those prior convictions made him an ACCA offender.

Guilty pleas

must be voluntary, with their attendant waivers made knowingly, intelrligently and with sufficient awareness of the relevant circumstances

and likely consequences.

United States v. Mis, 536 U.S. 622 (2002).

Also see Adams v. United States, 317 U.S. 269 (1942). ("Criminal defen

dants typically may waive their rights, as long as they do so volun­

tarily and with knowledge of the general nature and consequences of the

waiver.); Hill v. Lockhart, 474 U.S. 52 (1995). ("Counsel must give ob­

jective advice before the presumption of effectiveness will be applied.

Mr. White Jr.'s conduct at the minimum deprived the Petitioner the a-

14.

wareness to make a choice based on the specifics of his legal circum­

stances, which allows for a finding in the District Court for his prior

convictions to be substantiated as actually qualifying as ACCA offenses.

Counsel's conduct failed to conform to the degree of skill, care, and

diligence of a reasonably competent attorney. Strickland, 466 U.S. at

687. His infractions prevented the Petitioner from adversarily opposing

or receiving a-r.^thurough evaluation on the use of his prior convictions

as prior ACCA predicates,

But for counsel's error, a determination is

reached during the District Court proceedings, and.counsel's claim that

the Petitioner had no non frivolous claims on direct appeal would not

have existed.

Furthermore, the ACCA penalty is not implemented and if

by law a finding was reached otherwise after those facts, it then could

be said that "the Government's evidence was put to the test,

Ineffecr

tive assistance of Counsel goes hand-in-hand, with why the plea waiver

should not have been enforced by the District Court and the Appellate

Court panel adopted a decision so out of line with normal judicial stan

dard •, that it can only be reconciled by the United States Supreme Court

excercising it's supervisory power to instruct the Eighth Circuit Court

of Appeals on the matter.

CONCLUSION

Because in conjunction with misapplication of a plea waiver, and

Counsel's errors, guilty plea was not voluntary expression of the Pe­

titioner's choice, nor done with sufficient awareness of the relevant

legal circumstnaces, relief should be granted.

15.

CERTIFICATE OF SERVICE

I, Jason L. Clark, duly certify that the aforementioned was sent

United States pre-paid post to; The Clerk, Supreme Court of the United

States, Washington, D.C. 20543

DECLARATION

_

I, Jason L. Clark duly swear under the penalty of perjury that the

aforementioned is true and correct to the best of my knowledge and the

laws of the United States of America.

Sworn pursuant to 28 U.S.C. 17

46.

Respectfully Submitted

Date

A

fason L. Clark

^eg. No. 17832-045

Forrest City Correctional

Complex/Medium

Forrest City Arkansas

P.0. Box 3000

72336