Petition for Writ of Certiorari — William Dean Chapman, Petitioner v. United States
Supreme Court briefJun 15, 2018
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No.
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s
IN THE
SUPREME COURT OF THE UNITED STATES
William Chapman
— PETITIONER
(Your Name)
vs.
United States
— RESPONDENT(S)
ON PETITION FOR A WRIT OF CERTIORARI TO
Fourth Circuit Court of Appeals
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF CERTIORARI
William Chapman
(Your Name)
Morgantown Federal Corrections Institution
P.0. Box 1000, Morgantown, IT 26507
(Address)
Morgantown, WV 26507
(City, State, Zip Code)
n/a
(Phone Number)
Em
QUESTIONS PRESENTED
1)
a.
Is equitable tolling warranted when access to legal files and
resources is severely hampered?
Where the 4th Circuit has denied equitable
tolling for circumstances that would warrant tolling according to the
7th Circuit standard in Socha v. Boughton, is there a circuit split or
need for uniform clarification?
b.
Did the 4th Circuit ignore the Supreme Court in Holland v. Florida,
which states that there is a presumption in favor of equitable tolling
of AEDPA’s statute of limitations?
2)
a.
Is the test of materiality of new evidence to allow the filing
of a 2255 petitionethat the new evidence must prove innocence at trial?
b.
Does Kyles v. Whitley govern materiality of new evidence to allow
a 2255 petition?
c.
Is the at-trial test of materiality inappropriate to a case where
a plea was taken?
Should the District Court have used a Hill v. Lockhart
inquiry as the test of materiality?
d.
Is either an at-trial test or Hill v. Lockhart inquiry appropriate
to evidence supporting a claim of fraud upon the court, where the issue
is a violation of due process?
3)
Are District Court judges entitled to rely on affidavits of respondents
in denying an evidentiary hearing of a 2255 proceeding?
Are District
Court judges required to follow the rules of procedure for 2255?
Is
due process denied when the District Court does not follow the rules?
4)
a.
Did the District Court grossly misapply the 4th Circuit case
of U.S. v. Dyess to Petitioner's attorney's complete lack of investigation?
Is conducting an investigation that uncovers no exculpatory evidence
the same as conducting no investigation at all?
b.
5)
Is the 4th Circuit case of U.S. v. Dyess consistent with Strickland?
Is the belief that a witness is a "cooperating witness", by itself,
a valid exception to defense counsel's Strickland duty to interview all
witnesses who may have information on the guilt or innocence of the defendant?
6)
a.
Did the District Court abuse it's discretion by wrongly finding
that Petitioner's allegation of prosecutorial misconduct and fraud upon
the court was unfounded and mere speculation?
b.
Was Petitioner required to submit evidence supporting his case
in order to require an evidentiary hearing, or was it enough that the
allegations in his 2255 motion were clearly-stated?
7)
a.
Did the District Court abuse it's discretion by an over-reliance
on Rule 11 as a per se rule?
b.
Is Lemaster correctly applied by the District Court?
Are clearly-stated
allegations of extraordinary circumstances sufficient to meet the non-absence
requirement of Lemaster, or must a Petitioner also prove the allegation
with evidence prior to being granted an evidentiary hearing?
Questions Presented - 2
8)
a.
Does the combination of Miller v. United States and Raines v.
United States, as presented by the District Court, create an evidentiary
requirement that violates Supreme Court precedent and §2255 rules?
Is
a petitioner required to prove the clearly-stated allegations in his
or her 2255 motion prior to being granted an evidentiary hearing?
b.
Did the District Court mistate and misapply the cases of Miller
and Raines to create an unfair bar for petitioners to receive an evidentiary
hearing?
c.
Is a petitioner, in a collateral attack of a plea agreement,
required to disprove "facts" which are not in the plea agreement?
Is
it enough that a petitioner disproves;-:"facts" which are stated in the
plea agreement?
Conversely, when a judge insists that a petitioner must
prove a point which the plea already acknowledges, has the judge made
an error and, thus, abused discretion?
Questions Presented - 3
LIST OF PARTIES
All parties appear in the caption of the case on the cover page*.*
RELATED CASES
William Dean Chapman v. United States of America, No. 1:15-cv-1683, U.S.
District Court,fEastern District of Virginia, Alexandria Division.
Judgement
entered July 28, 2017.
United States of America v. William Dean Chapman, No. l:13-cr-233, U.S.
District Court, Eastern District of Virginia, Alexandria Division.
Judgement
entered December 6, 2013.
United States of America v. William Dean Chapman, No. 17-7018, U.S. Circuit
Court of Appeals, Fourth Circuit.
Judgement entered January 10, 2018.
United States of America v. William Dean Chapman, No. 19-6844, U.S. Circuit
Court of Appeals, Fourth Circuit.
Judgement entered August 27, 2019.
William Dean Chapman v. United States of America, No. 18-1590, U.S. Circuit
Court of Appeals, Fourth Circuit.
Judgement entered July 23, 2018.
TABLE OF CONTENTS
OPINIONS BELOW
1
JURISDICTION
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
3
STATEMENT OF THE CASE
4
REASONS FOR GRANTING THE WRIT
40
CONCLUSION
.41
INDEX TO APPENDICES
APPENDIX A
APPENDIX B
D
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
Fourth Circuit Court of Appeals
Denial of Petitioner for Certiorari
U.S. District Court, Eastern District of Virginia, Alexandria
Divisoionfrict Court, EGBtfehnCJlietnrfcct of Virginia, Alexandria
MemgrahdumFOpifilLofii&cOrder, July 28, 2017.
Memorandum Opinion & Order. July 28, 2017
Fourth Circuit Court of Appeals
Denial of Rehearing, January 10, 2018
U.S. District Court, Eastern District of Virginia, Alexandria
Division
Denial of Motion for Reconsideration, April 5, 2019.
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
the petition and is
to
[ ] 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_?___to
the petition and is
[ ] reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
OU is unpublished.
i,-
[ ] 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
I or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
The opinion of the _
appears at Appendix
court
to the petition and is
[ ] reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
1.
JURISDICTION
[x] For cases from federal courts:
The date on which the United States Court of Appeals decided my case
was 7/23/2018
[ ] No petition for rehearing was timely filed in my case.
[ ^ A timely petition for rehearing was denied by the United States Court of
Appeals on the following date: 1/23/2018____
, and a copy of the
order denying rehearing appears at Appendix
|XX] An extension of time to file the petition for a writ of certiorari was granted
unspecified
to and including unspecified
(date) on
(date)
in Application No. __ A_____
The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).
* Petitioner originally filed a brief with the Supreme Court on June 1
2018, but it was lost in the mail.
After writing to the Court, Petitioner
received a letter in August, 2019, allowing him to send in a brief,
Noo
time period or deadline was specified in the letter.
[ ] 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______ .
*5
[ ] 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
TABLE OF AUTHORITIES CITED
CASES
PAGE
1)) Jae Lee v. United States, 137 S . Ct. 1958, 1968 (201,7)
11
2)
Gilberto Garza v. IdahodSGpreme,Court, 139 S. Ct. 738, 203 11 Ed.
203 L. Ed. (2d,:77,.;82) (2019)
3)
Holland v. Florida, 560 U.S. 631, 646, 130 S. Ct.
2, 3
2549, 177 L. Ed. 2d 130 (2010)
4)
Da^r:ivvrMcDon6ugh5'e5147. U.S. 198, 208, 126 S. Ct.
2, 3
1675, 164 L. Ed. 2d 376 (2006)
5)
Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct.
4, 9, 10
1555, 131 L. Ed. 2d 490 (1995)
6). Hill v. Lockhart, 474 U.S • ) at 59, 106 S. Ct.
4, 11-12
366, 88 L. Ed. 2d 203 (
7)
United States v. Cronic, 466 U.S. 648, 659, 104
11
S. Ct. 2039, 80 L. Ed. 2d 657 (1984)
8)
Strickland v. Washington, 466 U.S. 688 (1984)
17, 20-22
9)
Rompilia v. Beard, 545 U.S. 374, 383-390, 125
18, 21-22
S. Ct. 2456, 162 L. Ed. 2d 360 (2005)
10)
Lonchar v. Thomas, 517 U.S. 314, 324, 134 L.
3
Ed. 2d 440, 116 S. Ct. 1293 (1996)
11)
Flores-Ortega v. United States, 528 U.S • > at
11
483, 120 S. Ct. 1029, 145 L. Ed. 2d 985
12)
Holmbergr.v,>;Armbrbchjt:i "327 U.S. 392, 396, 66
2
S. Ct. 582, 90 L. Ed. 743 (1946)
13)
Hazel-AtlassGlass Co. v. Hartford Emire Co • )
322 U.S. 238, 248, 64 S. Ct. 997, 88 L. Ed. 1250,
1944 Dec. Comm'r Pat. 675 (1944)
3
TABLE OF AUTHORITIES CITED (p.2)
14)
Porter v. McCollum, 588 U.S. 30, 130 S. Ct. 447,
16-17
453, 175 L. Ed. 2d 398 (2009)
15)
Socha v. Boughton, 763 F. 3d 674 (7th Cir. 2014)
16) United States v. Dyess, 730 F. 3d. 354, 362 (4th
1-3
15-16, 20
Cir. 2013)
17)
Towns v. Smith, 395 F. 3d 251, 258 (6th Cir. 2005)
17, 21
18)
Elmore v. Ozmint, 661 F. 3d. 783 (4th Cir. 2010)
18
19)
Slack v. McDaniel, 529 U.S. 473, 484, 120 S.CCt.
29
1595, 146 L. Ed. 2d 542.
20)
United States v. Lemaster, 403 F. 3d. 216, 221
30
(4th Cir. 2005)
21)
United States v. Lilly, 536 F. 3d. 190, 195 (3rd
32, 34
Cir. 2008)
22)
Miller v. United States, 261 F. 2d. 546, 547 (4th
33
Cir. 1958)
33-34
23)
33-34
Raines v. United States, 423 F. 2d 526, 529 (4th
Cir. 1970)
24)
United States v. McCoy, 410 F. 3d. 124, 134 (3rd
34
Cir. 2005)
25)
United States v. Salerno, 290 F. 2d. 105, 106
13-14
(2nd Cir. 1961)
26)
Romero v. United States, 327 F. 2d. 711, 712 (5th
13-14
Cir. 1964)
27)
Machibroda v. United States, 368 U.S. 487, 494,
495 (1962)
13
TABLE OF AUTHORITIES (p.3)
28)
Scott v. United States, 349 F. 2d. 641-643 (6th
13
Cir. 1965)
29)
Schiebelhut v. United States, 357 F. 2d. 743,
13
745 (6th Cir. 1966)
30)
Del Piano v. United States, 362 F. 2d. 931-933
13
(3rd Cir. 1966)
STATUTES AND RULES
§2255i Riiles, in particular Rule 5
12-14, 19, 33-36
Rules of Criminal Procedure, Rule 11
30-32
AEDPA Statute of Limitations
2-3
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Sixth Amendment
In all criminal prosecutions,ttheaaccasddshhhll '.engioyt'feherrighti:to iasspeedy
and public trial, by an impartial jury of the State and district wherein
the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the assistance of counsel
for his defense.
§2255 (b)
Unless the motion and files and records of the case conclusively
show that the prisoner is entitled to no relief, the court shall cause
notice thereof to be served upon the United States attorney, grant a prompt
hearing thereon, determine the issues and make findings of fact and conclusions
of law with respect thereto.
If the court finds that the judgment!; was
rendered without jurisdiction, or that the sentence imposed was not authorized
by law or otherwise open to collateral attack, or that there has been
such a denial or infringement of the constitutional rights of the prisoner
as to render the judgment vulnerable to collateral attack, the court shall
vacate and set the judgment aside and shall discharge the prisoner or
resentence him or grant a new trial or correcttfclje sentence as may appear
appropriate.
3
1)
Is equitable tolling warranted when access to legal files and resources
is severely hampered?
Where the 4th Circuit has denied equitable tolling
according to circumstances that would warrant tolling according to the
7th Circuit standard in Socha v. Boughton, is there a circuit split
or need for uniform clarification?
Did the 4th Circuit ignore the Supreme
Court in Holland v. Florida, which states that there is a presumption
in favor of equitable tolling of AEDPA's statute of limitations?
The 7th Circuit determined thaS^equitableatolling was warranted
when access to legal files and resources was severely hampered (Socha
v. Boughton, 763, F. 3d 674, 7th Cir. 2014).
In Petitioner's case,
Petitioner was transferred from a federal facility in Ashland, KY to
another federal facility in Morgantown, WV, in September, 2015.
Prior
to transfer, Petitioner had to hand over all legal files to be transferred
separately.
Petitioner was in transit for approximately three weeks,
during which time Petitioner had no access to his legal files and no
access to a law library or legal resources.
Even had a law library
been available, it would have been of no use because inmates are not
allowed to carry any items with them during transit, so any work would
have to have been discarded.
Inmates are not told when they will be
transported, so there is no ability to plan to send work by mail.
was simply no way to get any work done.
There
Petitioner was transferred
from Ashland to Oklahoma to Atlanta and - finally - to Morgantown.
Each
transfer took a complete day - three full days in which Petitioner was
in handcuffs and leg restraints.
Even after arriving at Morgantown,
it was another two weeks before finally receiving legal files from Receiving
& Delivery within the prison.
A total of five weeks elapsed where Petitioner
was completely without access to personal legal files, three of those
w
4
weeks were also without access to legal resources such as a law library.
Petitioner submitted his 2255 on December 17, 2U15 and believed
it to be timely, having been told by his attorney that the deadline
was December 18th, 2015.
15, 2015
As it turns out, the deadline was December
and Petitioner was two days late.
The District Court refused
to toll the two days and refused to recognize Petitioner's lack of access
to legal files and resources, even though Petitioner raised the issue
and the case of Socha v. Boughton on Motion for Reconsideration.
The
4th Circuit Court rubber-stamped the District Court decision, but neither
court explained their reasoning.
The decision of the 4th Circuit is
not in agreement with Socha v. Boughton and there appears to be a difference
in how the circuits are applying equitable tolling.
Additionally, the 4th Circuit appears to be ignoring Supreme Court
precedent.
This court has stated that there is a "presumption in favor"
of equitable tolling of AEDPA's statute of limitations (Holland v. Florida,
560 U.S. 631, 646, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010)(emphasis
in original).
This court has further stated that AEDPA's statute of
limitations "Does not set forth ian inflexible rule requiring dismissal
whenever it's clock has run'." (Id, quoting Day v. McDonough 547 U.S.
198, 208, 126 S. Ct. 1675, 164 L. Ed. 2d 376 (2006)).
This court, in
Holland, specifically made clear that courts must be flexible and exercise
their equitable powers on a case-by-case basis, not by blindly following
"mechanical rules" (quoting Holmberg v. Armbrecht, 327 U.S. 392, 396,
66 S. Ct. 582, 90 L. Ed. 743 (1946)).
Yet, in spite of these Supreme
Court decisions, the District Court in Petitioner's case appears to
be following just such a mechanical rule, does not appear to be following
a presumption in favor of equitable tolling - but clearly against it
- and appears to be entirely inflexible even in the face of acceptable
circu
circumstances to allow equitable tolling.
This court has also stated, in Holland, that a court is not bound
to follow past precedent when doing so would prevent it from n f according
all the relief necessary to correct particular injustices. V fl (quoting
Hazel-Atlas Glass Co. v. Hartford Empire Co • 9 322 U.S. 238, 248, 64
S. Ct. 997, 88 L. Ed. 1250, 1944 Dec. Comm'r Pat. 675 (1944)).
Yet,
the District Court felt obliged to entertain a previous ruling it had
made in which it denied tolling three days as a reason why it should
not allow tolling two days in Petitioner's case, even though the circumstances
were different and Petitioner's case clearly met the requirements set
forth in the 7th Circuit standard of Socha v. Boughton.
Petitioner's 2255 is his first habeas petition.
of justice and due process for it to be heard.
It is in the interest
"Dismissal of a first
habeas petition is a particularly serious matter, for that dismissal
denies the petitioner the protections of the Great Writ entirely, risking
injury to an important interest in human history." (Lonchar v. Thomas,
517 U.S. 314, 324. 134 L. Ed. 2d 440, 116 S. Ct. 1293 (1996)).
Should the District Court have allowed equitable tolling for the
time Petitioner was without access to legal files and resources?
Is
it acceptable for the 4th Circuit to ignore Supreme Court precedent
in Holland v. Florida concerning a presumption in favor of equitable
tolling?
Is it acceptable for the 4th Circuit to ignore the Supreme
Court decision in Day v. McDonough and treat AEDPA's statute of limitations
as an inflexible, categorical^ per se rule?
6
2) a.
Is the test of materiality of new evidence to allow the filing of
a 2255 petition that the new evidence must prove innocence at trial?
b.
Does Kyleslv. Whitley govern materiality of new evidence to allow
a 2255 petition?
c.
Is the at-trial test of materiality inappropriate to a case where
a plea was taken?
Should the District Court have used a Hill v.. Lockhart
inquiry as the test of materiality?
d.
Is either an at-trial test or Hill v. Lockhart appropriate to evidence
supporting a claim of fraud upon the court, where the issue is a-iviolation
of due process?
On November 10, 2015, Petitioner received a transcript of an interview
of his employee, Michael Arko, with the SEC.
This transcript strongly
supported Petitioner's assertion that the Statement of Facts in the plea
agreement was untrue, that the prosecution deliberately lied tc and mislead the c
court, and that Petitioner's defense counsel was ineffective for refusing to
speak with Arko, contact the SEC, or conduct any kind of meaningful investigation.
Petitioner submitted his 2255 motion on December 17, 2015
one month
after receiving the transcript.
The District Court made six statements regarding the materiality of
Arko's SEC interview.
These statements almost uniformly contradict the
evidence before the court and end with a test of materiality which does not
consider Kyles v. Whitley or Hill v. Lockhart and requires an outcome
of innocence at trial.
1)
These statements are:
The District Court stated," ...the Arko testimony simply does not
undercut Petitioner's admissions in the Statement of Facts." (Memo Opinion
& Order, p.ll))
This is demonstrably not true.
of Facts is only
10 pages in total.
0£
The plea's Statement
Four pages are devoted to a description
7 'A
vJ
of "Victim 2".
In Arko's SEC interview, he accepts complete responsibility
for those events and calls it an accident - his accident.
that I was angry with him when I learned about it.
He acknowledges
This aligns with
Petitioner’s descriptionsof events in his request to withdraw the plea
Arko's statements to the SEC
agreement in 2013 - before sentencing.
don't simply undercut the supposed "facts" of the plea, they obliterate
it - how could Petitioner have deliberately and with criminal intent
done the acts set forth in the plea agreement when Arko fully admits
to having done them, states that they were his own accident and that
Petitioner did not even know about it until after the fact?
Especially when considered with the brokerage statements and emails
Petitioner submitted with his 2255 motion, which show that the "facts"
of "Victim 1" - the only other specific circumstance - were also incorrect
and simply did not occur, the entire veracity of the plea agreement is
in question.
These were the only two instances mentioned in the plea
and they are both disproven.
They constitute 60% of the content of the
plea agreement's Statement of Facts.
The balance of the plea agreement
is a general listing of actions, none of which are criminal but are simply
taggeduat the end as having been done with "criminal intent".
How could
anyone go about disproving or proving the thoughts in their head?
All
I can do is disprove the actual specific facts - and this Petitioner has
done.
There is nothing left to disprove.
How could it be possible, then, that Arko's SEC transcript is not
relevant new evidence when it directly addresses and refutes "facts" in
the plea agreement Statement of Facts and directly supports Petitioner's
allegations in his 2255 motion?
This is not the only issue that Arko's SEC interview addresses.
In
2013, the Government submitted a highly-redacted FBI-302 of Arko - Petitioner's
empl
8[_
7
employee - purporting to show that Petitioner had lied to Arko and then
relied on that document to state in court that Petitioner had lied to
Arko and suggest that I had lied to everyone.
Petitioner alleged, in
his 2255 motion, that the redactions made by the Government not only
misrepresented the facts, they directly contradicted them and - if Arko's
FBI-302 were submitted unredacted - would show the opposite of the Government
allegation.
Specifically, Arko's FBI-302 would show that Petitioner
had never lied to Arko and the Government had made the redactions solely
to misrepresent the contents and support an allegation they knew to
be false.
Arko's SEC transcript strongly refutes the Government's presentation
of his FBI-302 and the allegation that Petitioner lied to Arko.
It
is strong support for Petitioner's 2255 allegation that the Government
deliberately redacted Arko's FBI-302 in order to deceive and mislead
the court.
In Arko's SEC transcript, on six separate occasions, he
refutes the Government's argument and casts serious doubt ont he contents
of his FBI-302 and shows how highly suspicious it is that so much of
that FBI-302 was redacted.
<If Petitioner's argument was without merit, the Government could easily
have shown it by filing an unredacted version of Arko's FBI-302.
Instead,
they claimed that the redactions were made to protect confidential information
on clients and another legal case (another lie) and then submitted a
new highly-redacted version of Arko's FBI-302.
four additional sentences visible.
Petitioner's 2255 allegation.
The new version had
Each new sentence directly supported
This was detailed to the District Court
on Motion for Reconsideration and to th’e Circuit Court on appeal. Both denied.
d
When the Government deliberately lies to the court, that bears directly
on the due process rights of the defendant.
and
9f
The unfairness is clear,
prejudice is presumed.
How could it be possible that Arko's SEC transcript
is not material new evidence when it directly supports Petitioner's
argument in his 2255 motion that the Government deliberately lied to
the court?
This is not an argument of innocence (although Petitioner is, in
fact, innocent, and made the argument of innocence in both his request
to withdraw his plea and in his 2255 motion), but an argument of denial
of due process.
How, then, is it appropriate to use as a standard of
materiality that of an outcome of innocence at trial?
Especially when
a trial never took place'!
2)
The District Court stated that "Arko's testimony to the SEC
does not offer any evidence that refutes Petitioner's admissions that
he immediately sold client's securities upon receipt..." (Memo Opinion
& Order, p.ll, 2nd paragraph).
There is no need for Arko's SEC transcript
to do this, as the plea itself acknowledges that Petitioner "...had
the right to sell the customer's securities upon receipt." (Elea, Statement
of Facts, p.2).
The District Court makes a clear error of logic, for
why should any evidence be required to prove a point that the plea already
acknowledges?
The District Court appears to be confused and unaware
that Petitioner had an explicit contractual right to sell and that the
plea agreement acknowledged it.
However, Petitioner pointed out the
error in his Motion for Reconsideration and on appeal to the Circuit
Court.
3)
Both deenied and neither explained their position.
Similarly, there is no need to address whether funds were "misused"
for personal expenses.
(Memo Opinion & Order, p.ll, 2nd paragraph).
No funds were misused and the plea agreement does not state that funds
were misused.
In this, the District Court has taken unsupported statements
from the Government and assumed them into the plea without ever checking
to see
10
to see if they are actually there.
They are not.
On the whole, Petitioner
put more money into ACM (Petitioner's company) than was ever withdrawn
- a point Petitioner has made on multiple occasions and the Government
has never deenied.
It is the sufficiency of the plea that is under
attack, not the Government's unproven statements made outside the plea.
This is another error of the District Court - to assume facts into the
plea which are not there.
Why should any evidence be required of Petitioner
to disprove a point which the plea does not make?
4.)’) The District Court continues, "...used funds from new client
transactions to repay maturing client obligations." (Memo Opinion &
Order, p.ll, middle).
This occurred only to the extent that all funds
that went into the company's reserves did so without regard to when
the transaction took place and came out of the reserve without regard
to when maturing transactions had been initiated.
This is a necessary
aspect of diversification of business and market risk - across time.
There is nothing criminal about it and it is a near-universal practice
in the insurance and investment industries.
In fact, Petitioner had
an expert witness testify to the viability of Petitioner's business
and overall business model at his Request to Withdraw the plea, prior
to sentencing in 2013.
The expert witness testimony was ignored based
on incorrect and unfounded assumptions of the judge, based solely on
unfounded statements from the Government.
(This circumstance is outlined
in Petitioner's 2255 motion, pp.80-81, #6).
Even if Arko's SEC transcript did not address this point directly,
that does not invalidate all the ether points that his interview does
address.
5)
The District Court continued to state that Arko's SEC interview
did not address "...how ACM [Petitioner's company] failed to disclose
it1 s
11
it's financial difficulties to new or existing clients." (Memo Opinion
& Order, p.ll, middle).
As Petitioner has stated repeatedly and the
plea agreement itself acknowledges, Petitioner did not interact with
clients direbtiy.v 11 OpmftiimicationofaaychandleH,
umatfket iftg v par tiler M,
who spoke with a client or potential client's attorneys or advisors.
Arko acknowledges ihihisnSEGrttflfisCriptcthat Petitioner told both him
and marketing partners about Petitioner's company's financial position.
The marketing partners were responsible for communicating this information
to client's - that is why they were told,
This is material support
to Petitioner's position and shows that the District Court was simply
wrong in it's statement that Arko's SEC transcript did not address it.
6)
Finally, the District Court concluded, "The Court finds that
nothing contained in Mr. Arko's testimony constitutes material or exculpatory
evidence becuase there is not a reasonable probability that the testimony
would have shown Petitioner's innocence had it been introduced at trial."
(Memo Opinion & Order, p.ll, middle).
This is an astonishingly incorrect
statement, but it also appears to be the wrong standard.
The District
Court is holding to a requirement that new evidence must prove innocence
at trial in order to be material.
However, this court has made clear
that the "touchstone of materiality is a 'reasonable probability of
a different result, and the adjective is important.
The question is
not whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in it's absence he
received a fair trial, understood as a trial resulting in a verdict
worthy of confidence." (Kyles v. Whitley, 514,U.S. 419, 434, 115 S.
Ct. 1555, 131 L. Ed. 2d 490 (1995)).
The District Court did not consider Kyles in it's decision but instead
held to a standard that evidence is material where it changes the outcome
OI
i'
12
of a trial - exactly as Kyles says not to do.
The question of whether a trial would ahve been fair without the
evidence is fairly apparent.
If Petitioner had been accused at trial
of the actions described in the plea for "Victim 2" and the jury was
not allowed to see Arko's explanation that it was all his fault and
that it was an accident - or to hear Arko say it on the witness stand
- would that be fair?
If the Government alleged at trial that Petitioner
had lied to Arko - as they alleged and appeared to show with Arko's
doctored FBI-302 - would it be fair if the jury was not able to see
that Arko had contradicted those statements years earlier to the SEC
or, even better, to hear Arko say in open court that he had never
made the statements alleged to him by the Government and had actually
stated the opposite?
Would it not sway a court to be shown that the
Government was clearly lying and dishonest?
be fair!
Of course it would not
Petitioner meets the test as applied in Kyles.
Arko's SEC transcript supports multiple of Petitioner's allegations.
Arko's SEC transcript highlights the ineffective assistance of counsel
Minter for refusing to speak with Arko or contact the SEC.
It raises
a Brady issue for why the Government did not disclose this evidence
to Petitioner prior to the plea when they clearly had it in their possession.
It supports Petitioner's argument that the Government deliberately misled
the District Court (and continues to do so, even today, by refusing
to correct;the issue by submitting Arko'SFEBIv302Funredacted).
Arko's
SEC transcript is clearly material new evidence supporting Petitioner's
motion.
The District Court's test is inappropriate because it does not consider
Kyles, but is an at-trial test even the correct test?
Petitioner took
a plea and insists that ineffective assistance led to the plea.
Je
13
\
In
Jae-Lee v. United States, this Court stated "... .^counsel’jsrldef ieieiit
performance led not to a
judicial proceeding of disputed reliability,
but rather to the forfeiture of the proceeding itself.' (quoting FloresOrtega, 528 U.S • 9 at 483, 120 S. Ct. 1029, 145 L. Ed. 2d 985).
When
a defendant alleges his counsel's deficient performance led him to accept
a guilty plea rather than go to trial, we do not ask whether, had he
gone to trial, the result of that trial 'would have been different'
than the result of the plea bargain.
That is because, while we ordinarily
apply a strong presumption of reliability to judicial proceedings,1 I
'we cannot accord
any such presumption 'to judicial proceedings,that
never took place'.
(Id • ) at 482-483, 120 S. Ct. 1029, 145 L. Ed. 2d
985." (Jae Lee v. United States, 137 S. Ct. 1958, 1965 (2017)).
This
Court thenccontinued to outline that Hill v. Lockhart was the applicable
test - whether "but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial." (Id • 9 quoting Hill
v. Lockhart, 474 U.S • ) at 59, 106 S. Ct. 366, 88 L. Ed. 2d 203).
If Hill v. Lockhart is the applicable test for defendants who r’ :
have takenca plea, the test is even more simplified for Petitioner,
since Petitioner claims a total failure to investigate.
"No showing
of prejudice is necessary 'if the accused is denied counsel at a critical
state of his trial,' .S:iSimilarly, prejudice is presumed 'if counsel
entirely fails to subject the prosecution!secase to meaningful adversarial
testing." (Gilberto Garza v. IdahoSSupreme Court of the United States,
139 S. Ct. 738, 203 L. Ed. 2d 77, 82 (2/27/2019) (quoting United States
v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1985)).
Therefore, in Petitioner's case, the only requirement is to show that
counsel failed to investigate at a cricial stage - and a plea is a critical
stage.
No showing of prejudice is necessary.
14
Petitioner asks, then, if an allegation of ineffective assistance
of counsel that led to a plea is claimed inaa 2255 motion, is the appropriate
test of materiality of evidence supporting that allegation an at-trial
test or a Hill v. Lockhart analysis of the decision of the defendant
to take the plea in the first place?
How should evidence be evaluated for materiality when the issue
is neither at-trial nor plea-related?
For example, Petitioner's allegation
of prosecutorial misconduct is an argument of denial of due process.
It may not directly relate to a trial or a plea.
that evidence must support an allegation.
The §2255 rules state
Is the real test of materiality
only that the evidence must support the claims in Petitioner's 2255
motion?
That seems like the most reasonable, simple and all-encompassing
test.
: \--i5
3)
Are District Court judges entitled to rely on affidavits of respondents in
in denying an2Evidentiary hearing of a 2255 proceeding?
Are District
Court judges required to followlfehe rules of procedure for §2255?
Is
due process denied when the District Court does not follow the rules?
The District Court stated "...in a signed affidavit, Ms. Minter states
that 'all information presented by Mr. Chapman in defense of his case
was reviewed by [her] or another member of the Office of the Federal Phblic
Defender. f If (Memo Opinion & Order, p.8, bottom)of 2nd paragraph).
Without
considering the truth of affiants statement, what is clear is that the
court was relying on the affidavit of the respondent.
The District Court
similarly relied on an affidavit from Pleasant Brodnax (Memo Opinion &
Order, £.9, 2nd paragraph).
Again, without considering the truth of affiants
statement, the District Court is relying on the statements in the affidavits
to support his decision without holding an evidentiary hearing.
Is the
District Court entitled to do so?
The United States Code Service Rules of Procedure, Section 2255 Rules,
Rule 5, states.Numerous cases have held that the government's answer
and affidavits are not conclusive against the movant and if they raise
disputed issues of fact a hearing must be held."
The rule citestthe following cases in support of this requirement:
1)
Machibroda v. United States, 368 U.S. 487, 494, 495 (1962);
2)
United States v. Salerno, 290 F. 2d. 105, 106 (2nd Cir. 1961);
3)
Romero v. United States, 327 F. 2d. 711, 712 (5th Cir. 1964);
4)
Scott v. United States, 349 F. 2d. 641, 642, 643 (6th Cir. 1965);
5)
Shhiebelhut v. United States, 357 F. 2d. 743, 745 (6th Cir. 1966); and
6)
Del Piano v. United States, 362 F. 2d. 931, 932, 933 (3rd Cir. 1966).
The District Court, in relying on affidavits and denying a hearing,
err
16
:
.1
erred by not following rule 5.
Petitioner brought this issue to the attention
of the District Court on Motion for Reconsideration - so the court was
aware of the issue - but refused to change position or explain itself.
The issue was raised on appeal to the Circuit Court and that court similarly
chose not to explain itself.
Romero v. United States discusses the issue directly, stating that,
"The district judge, in denying the motion without a hearing, fell into
his error by undertaking to rely upon an affidavit of the district attorney,
that no statement of the kind were made, and upon his own finding and :o
conclusion, that the claim of the applicants, that such promises were
made was ridiculous and preposterous upon it's face.
This he could not
do."
U.S. v. Salerno states "Section 2255 requires a hearing i'(uhless:.the
motion and files and records of the case conclusively show that the prisoner
is entitled to no relief.®
Applying this language, the Supreme Court
has frowned upon reliance on factual statements in opposing affidavits,
since these are not 'files and records of the case" ...under the decisions
it seems he should hhve one [a hearing], however fruitless it appears
likely to be."
Was the District Court entitled to rely on the affidavits in refusing
to hold an evidentiary hearing?
nM;-?
4)
a.
Did the District Court grossly misapply the 4th Circuit case of
U.S. v. Dyess to Petitioner's attorney's complete lack of investigation?
Is conducting an investigation that uncovers no exculpatory evidence the
same as conducting no investigation at all?
b.
Is the 4th Circuit case of U.S. v. Dyess consistent with Strickland?
Iitfissimpossible.'vfcocoverstafcerdefense counsel Whitney Minter's failure
to investigate.
She interviewed no witnesses, she requested no evidence,
she did not even review evidence that was presented to her by Petitioner.
She made no evidence requests to the Government.
no independent investigation.
her affidavit.
She literally conducted
Ms. Minter largely acknowledges this in
"Mr. Chapman is correct that I did not seek to obtain
the transcript of Michael Arko's testimony before the Securities & Exchange
Commission." and "Mr. Chppman is correct that I did not seektto interview
Michael Arko."
(Minter affidavit, 2/21/17, p.2, #4 and #5).
Instead
of addressing this failure, the District Court quoted United:.Statds -Vi's
Dyess, 730 F. 3d. 354, 362 (4th Cir. 2013), stating "Strickland does not
impose a constitutional requirement that counsel uncover every scrap of
evidence that could conceivably help their client."
In doing so, the
Court attempts to state that:
1)
investigating a civil investigation from which the Government
was known to have received information is not important, in spite of the
urging of the defendant;
2)
interviewingaa central figure with obvious knowledge of key events
and information - or anyone at all, since Minter interviewed no one
in spite of repeated and insistent urging of the defendant, issnot important;
and
3)
case was
reviewing documents supplied by the defendant in support of his
18
!
case was not important to do before advising and pressing defendant to
take a plea.
None of these failures are scraps - they are central to the case.
The comparison to Dyess is entirely unwarranted and misapplied.
In Dyess,
the defendant faults counsel for failing to discover information (that
a police investigator was sleeping with his wife), but the defense counsel
did investigate - he hired a private investigator and pursued the matter
- he simply did not discover anything.
case.
This is not the situation in Petitioner's
Defense counsel Minter did not investigate at all.
even attempt it.
She did not
It was not because she didn't think to do it - it was
not an oversight - Petitioner was begging and arguing with her to do it
and asking her if she had done any of it at each successive meeting.
At
each meeting, the answer was no, until finally she said she wasn't going
to contact Arko because he was "cooperating with the Government and would
Since when is guessing an adequate
say whatever they told him to say."
substitute for actual investigation?
Petitioner's 2255 details Ms. Minter's glaring failure to investigate
anything at all (2255, pp.18-28).
A damning summary was provided, of
which the following points are just a few:
- Ms. Minter never looked at the evidence - any evidence... in spite
of repeated requests.
- Ms. Minter never interviewed anyone... in spite of [Petitioner's]
repeated requests.
- Ms. Minter never evaluated opportunities at trial, nor was she ever
in a position to do so, in spite of [Petitioner's] repeated requests.
(Petitioner 2255, p.23)
In Porter v. McCollum, the Supreme Court found that counsel's performance
o
was constitutionally deficient where counsel "did not even take the first
s
1
step of interviewing witnesses or requesting records." (Porter v. McCollum,
588,U.S. 30, 130 S. Ct. 447, 453, 175 L. Ed. 2d 398 (2009)).
Counsel
Minter's failure to investigate basic facts was not a failure to investigate
every nook and cranny, it was a total failure to investigate basic facts
by taking basic first steps that any rational attorney would have taken
to investigate evidence and witnesses that were right in front of her
and begging to be reviewed.
Rather than looking at the totality of the circumstances - everything
that Ms. Minter did not do - to consider a failure to investigate, the
District Court looked at each distinct fact in isolation and tried to
reason away the failures.
It is very unconvincing - Petition has researched
many similar cases and has never seen one worse than his own instance
case.
The District Court stated that "Ms. Minter's decision not to interview
Mr. Arko also falls well below the level of establishing extraordinary
circumstances because Ms. Minter was aware that Mr. Arko was cooperating
with the Government." (Memo Opinion & Order, p.8).
anything to do with it?
Why should this have
This would be in direct contradiction to a lawyer's
explicit Strickland duty "to investigate all witnesses who may have
information concerning his or her client's guilt or innocence." (Towns
v. Smith, 395 F. 3d. 251, 258 (6th Cir. 2005)).
Nor is "an actual failure
to investigate [excused] by a hypothetical decision not to use it's
unknown result." (Soffar, 368 F. 3d. at 674).
A witness is not excluded
from this requirement simply because he is (according to the Government)
"working with thfe Government".
If this were true, the Government could
pre-empt any defense independent investigation by merely stating that ,-q
all potential witnesses were cooperating.
Also, if this were arvalid excikse
excuse , then why did Minter not interview Robert Strauss or Dan Stafford’
20 *
Why did she not interview anyone?
Not only is there no exception for witnesses purportedly cooperating
with the Government, it would seem that, if a witness were cooperating
with the Government, it would be even more important to interview that
person, not less.
TheKSupreihe Gourfcshas found that information known
to be used by the Government is a prime source of information and failure
to investigate it is; extraordinary.
(Rompilla v. Beard, 545 U.S. 374,
383-390, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005)).
Ms. Minter's failure to investigate is also not dependent on whether
Mr. Arko had exonerating information or not (although he did).
The issue
is that counsel could not make an informed decision without conducting
an investigation.
She did not conduct an investigation and there is no
excuse for it, therefore her decision could not have been an informed
decision.
The 4th Circuit found that "counsel, despite a professional
obligation to conduct an investigation, failed to investigate at all.
Because no strategic reason could support the total failure to investigate,
no amount of deference could compel any fair.concldsioniiother than that
petitioner was denied effective assiStanceoof counsel." (Elmore v. Ozmint,
661, F. 3d 783, 4th Cir. 2010).
Defense counsel Minter failed to investigate:
1) Anything from the SEC;
2) anything from the Oklahoma Department of Securities;
3);0any witnesses at all.
Not Michael Arko, Dan Stafford, Robert Strauss,
any customers or regulators or prior legal counsel; or
4)
any evidence and information that Petitioner directly gave her.
In addition, Ms. Minter did not make any information or evidence requests
to the Government.
decided to show her.
is not
She reviewed only what bits and pieces the Government
That is not an independent investigation.
21
;-j
L-- T - •
That
is not an investigation at all.
It is a legitimate question to ask -
"what independent investigation did Ms. Minter conduct?"
The answer is
that she did not conduct one at all.
Concerning point #4 above, Ms. Minter stated in her affidavit that
"all information presented by Mr. Chapman in defense of his case was reviewed..."
The District Court is not entitled to rely on this statement to deny a
hearing, only to makh the issues, according to Rule 5 of §2255 Rules of
Procedure, and the Court should have called for an evidentiary hearing.
MSiOMinteMi!;s statement is a clever bit of language that is deliberately
vague on the issue of timing.
When Ms. Minter reviewed this information
is important - doing so after Petitioner took the plea would have been
worthless in informing her opinion of whether Petitioner should take a
plea or go to trial.
Correct?
Yet, Ms. Minter did not review any documents
Petitioner gave her until long after advising Petitioner to take a plea.
Minter knows that she did not and she also knows that Petitioner knows
it.
How?
In mid-June 2013, Ms. Minter contacted Petitioner and told
him that she was reviewing the evidence Petitioner had given her, inrpreparation
fori, sentencing, ;but that she cculd not access them because she did not
have the password (the files were saved on a thumb drive).
Since she
didn't even have the password until mid-Junev2013,eitlisnimpossible that
she reviewed the evidence before the plea was entered on May 23, 2013
(although she was advising Petitioner ta take a plea at least a month
before that - April, 2013.)
Ms. Minter was deliberately vague because
she knew that if the issue went to an evidentiary hearing, I would be
able to prove this.
What is surprising is that Ms. Minter, in her affidavit, acknowledged
everything Petitioner alleged in his 2255 motion, with the sole exception
being the vague^response as to'when sijg.„ reviewed Petitioner's files.
clu'
22iS.:„
Even
the Government conceded that "It is difficult to believe that (^defense
counsel] would have performed as incompetently as defendant now maintains."
(Government Response to Defendant's Notice of Filing (2Q13eRequest'itbdWithdraw),
p.8).
Petitioner noted this in his 2255 motion (p.28, 2nd paragraph) as
well as noting that the Request to Withdraw was much less detailed
Petitioner's 2255 motion.
than
Even with the additional detail and the Government's
acknowledgement that such behavior constituted incompetence, the District Court
fashioned a defense of Minter's ineffective assistance by explaining away
each individual failure, instead of looking at the totality of the failure.
b.
Is the 4th Circuit case of Dyess consistent with Strickland?
The Strickland Standard is that defense counsel should interview all
witnesses who may have information on the guilt or innocence of their client.
The phrasing is very deliberate and all-encompassing.
8rr"a reasonable number of" witnesses.
bfnwitness.
It does not say "most"
There is no exception for the kind
The only qualification of Strickland is that, to the extent
defense counsel does not follow this rule, it should have good reasons.
The 4th Circuit case of Dyess is actually about the requirement to
uncover information, not the requirement to investigate.
Counsel in Dyess
clearly investigated, they simply did not uncover the information.
If counsel
searches for information but does not find it, they still conducted an
investigation.
There is no failure to investigate.
using Dyess for failure to investigate circumstances.
Yet, the 4th Circuit is
This appears inappropriate
and, if allowed to stand, undermines the Supreme Court in Strickland.
This should be clarified so that the 4th Circuit does not continue on
this path and, potentially, even enlarge the exceptions to Strickland.
23 V
5)
Is the belief that a witness is a "cooperating witness", by itself,
a valid exception to defense counsel's Strickland duty to interview all
witnesses who may have information on the guilt or innocence of the defendant?
The District Court stated that "Ms. Minter's decision not to interview
Mr. Arko also falls well below the level of establishing extraordinary
circumstances because Ms. Minter was aware that Mr. Arko was cooperating
with the Government." (Memo Opinion & Order, p.8).
this should be the case.
It is not clear why
Petitioner can find no other case or rule in
which a cooperating witness is excluded from the explicit duty "to investigate
all witnesses who may have information concerning hits or her client's
guilt or innocence." (Towns v. Smith 395 F. 3d. 251, 258 (6th Cir. 2005)).
If such an exception were to be valid, unscrupulous p&eseamfentspcould
pre-empt any independent investigation by the defense by merely saying
lilt all potential witnesses were cooperating (ar, at least, the one's
that might contradict the Government).
The only exception Petitioner is aware of to the Strickland requirement
is that, to the extent an investigation is not undertaken, there should
be good reasons for it.
Was it reasonable for counsel Minter to simply
assume that a "cooperating witness" would say "whatever the government
told him to say" and therefore refuse to interview that witness over the
protests of Petitioner?
Perhaps if there were many other witnesses, but
Ms. Minter interviewed no one - not a single person.
No did she look
at any other evidence.
But, to the specific issue of a "cooperating" witness, which is the
sole reason given by the District Court for why Minter's conduct was not
ineffective, thisSGpuictehas found that information known to be used by
the Government is a prime source of information and failure to
24; ' ?
investigate it is antextraordinary circumstance. (Rompilla v. Beard, 545
U.S. 374, 383-390, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005)).
That would
suggest that a cooperating witness is exceptionally important to interview.
"No reasonable lawyer would forgo examination of the file... looking at
a file the prosecution says it will use is a sure bet whatever may be
in that file is going to tell the defense counsel something about what
the prosecution can produce... It is owing to these circumstances that
the state courts were objectively unreasonable in concluding that counsel
could reasonably decline to make any effort to review the file." (Rompilla
v. Beard, 545 U.S. 374, 383-390, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005)).
This was discussed in Petitioner's 2255 (p.25-26).
Since Petitioner is unable to find case law that is definitive one
way or another, it seems to be an important question - are cooperating
witnesses excluded from the Strickland requirement to be interviewed?
If so, why?
25- . -
6)
a.
Did the District Court abuse it's discretion by wrongly finding
that Petitioner's allegation of prosecutorial misconduct and fraud upon
the court was unfounded and mere speculation?
b.
Was Petitioner required to submit evidence supporting his case
in order to require an evidentiary hearing, or was it enough that the
allegations in his 2255 motion were clearly-stated?
The District Court stated that "Petitioner is unable to produce any
evidence to support this accusation and it appears to be purely speculative."
(Memo Opinion & Order, p.ll, bottom).
Is this true?
Did Petitioner put
forward an allegation that was without any evidentiary support, pulling
it out of thin air?
The allegation put forward by Petitioner in his 2255
motion was thattfahe Government deliberately redacted the majority of Arko's
FBI-302 interview in order to create the false appearance that Petitioner
had lied to Arko about how his company operated.
Petitioner alleged that,
underneath the redactions, you would find not only that Petitioner had
made no such false statements, but that the opposite of the Government's
argument would be shown. (2255, p.6, 2nd paragraph).
Is such a statement without evidentiary support?
Petitioner submitted
Arko's SEC interview as evidence in support of this allegation.
In his
interview with the SEC, Arko stated the opposite of the Government position
no less than six unique times.
Petitioner detailed a number of statements
from Arko's SEC transcript that contradicted the Government (2255, pp.49-51).
These are so directly relevant that they are worth repeating here:
1)
ARKO: ...the most common question was, how are you executing this
transaction?
SEC:
Okay.
26 ^
ARKO:
andJ.I didn't know the answer to that... since I wasn't doing the
trading, I didn't know, in fact, what he was doing... Even if I did know
it, it wouldn't have been appropriate for me to explain it." (Arko SEC
interview, p.45,line 19 - p.46 line 10).
2)
ARKO!?
...I was able to reproduce virtually the entire pricing structure...
so, it was reasonable to conclude that, whether he was physically doing
it, it sure matched my hedge strategy mathematically." (ARKO,SEC interview,
p.49, lines 3-17).
3)
SEC:
The math works, but as far as the mechanics of did he actually
go out and enter the contract?
ARKO:
I don't know.
(ARKO SEC interview, p.49, lines 18-20).
So the point is not missed, Arko was asked point blank if he know
how the contracts were actually executed - not just what he thought or
assumed - and his answer was "I don't know."
4)
ARKO:
...in fact, he [Petitioner] got kind of upset with me at that
point when I mentioned that I think I figured out the math.
And his concern
was, well, what if Emerging Money - you know, then they don't need us
anymore.
Right?
I mean, did you just give away the house? (Arko SEC
interview, p.49 line 24 - p.50 line 3).
Arko is explaining the importance of proprietary information as to
the nature of the transaction.
5)
SEC:
...did you ever discuss the specifics of how he would go about
doing the hedging?
ARKO:
6)
No.
ARKO:
(Arko SEC interview, p.52, lines 5-9).
...as I've already explained, I - Bill was unwilling to tell
me how he was executing the transactions.
So, I didn't know that part...
it was Emerging Money.[Petitioner's external marketing partner]... ifeat
was with them that I was having these conversations.
I would have gott
27
J)
So, most likely,
I would have gotten it from them."
(Arko's SEC interview, p.80, lines
11-12).
Another instance where Arko tells the SEC that Petitioner did not
tell him how Petitioner's company executed transactions and that Arkbt\l:i .vvr-u!
believed he got his ideas from Emerging Money [an external marketing partner).
7)
SEC:
Once you started entering into new contracts, are you hedging
each individual contract or do you know?
ARKO:
I no longer had any idea what the trading strategies were.
had always been proprietary.
I never actually knew.
know, ideas that were consistent with the pricing."
They
I just had, you
(Arko'SEC interview,
p. 107, lines 2-8).
8)
SEC: But he never explained to you how he's generating the table?
ARKO:
He never did, no.
(Afko SEC interview, p.lll, lines 7-9).
The eight unique quotes above all support Petitioner's argument that
the Government's allegation is not true arid that the redactions made by
the Government were done deliberately to hide the truth.
They all come
from Arko's SEC interview transcript, which was submitted with Petitioner's
2255 motion as Exhibit 28.
Arko's SEC transcript was discussed at length
on pages 48-51 of Petitioner's 2255 and is also the subject of Ground,
#4, starting on page 5.
Petitioner pointed out to the judge specifically
how Arko's SEC interview was relevant and important new evidence and how
it supported Petitioner's allegation.
This alone should hhve been enough
to realize that Petitioner's allegation was not "pure speculation" and
that a hearing was necessary.
But is that all the evidence?
Is there anything else the District
Court could have looked to as evidence supporting Petitioner's allegation?
The answer is yes.
Petit
The Government submitted an opposition statement to
28
}
Petitioner's 2255 motion and, along with it, an almost-identical copyodf
Arko's FBI-302 that had originally been submitted in 2013.
was that four additional sentences were visible.
allegation.
The only difference
Each one supported Petitioner's
To be clear - every additional sentence shown in Arko's EBI-302
directly supported Petitioner's allegation.
Petitioner detailed this
new evidence in his response to the Government's opposition statement
(Petitioner Response to Oppoisition Statement of the United States RE:
2255, pp.8-9).
Petitioner also listed these points in his Motion for
Reconsideration with the District Court and on appeal to the Circuit Court.
Both were denied without explanation.
Here are the four additional sentences from Arko's FBI-302, which
had been previously redacted:
1)
"Chapman never told Arko how the deals were structured";
2)
"Chapman never talked about where he got his idea for his hedging
strategy";
3)
"Chapman would not provide any information about his trades"; and
4)
"Arko advised that ChapmVi was very secretive".
By redacting these statements (and many others which are still redacted)
the Government mislead the District Court into believing the Government's
false allegation that Petitioner had disclosed a false hedging strategy
to Arko.
The new FBI-302 submitted by the Government is clear evidence
supporting Petitioner's allegation.
of the Government.
IN fact, it is highly incriminating
It is clear from Arko's SEC transcript and from the
additional statements now in view in the second Arko FBI-302 that these
are compelling evidence supporting Petitioner's allegation.
That being
the case, how could the District Court - and the Circuit Court, too
possibly state that Petitioner's allegation was "purely speculative" and
without "any evidence"?
The District Court is undeniably wrong.
29 V J
As for the Government, they were not done with their lying.
the Government
stated in it's Opposition Statement that Petitioner could not have access
to the unredacted Arko FBI-302 because "The FBI notes contain confidential
information regarding ACM's clients and details on an investigation in
a separate legal proceeding.
protect this information."
The United States was and is entitled to
If that were the case
if we are to believe
that Ifihe redactions took place to protect confidential information about
clients and other proceedings - then why were the four newly-uncovered
statements redacted in the first place?
They clearly have nothing to
do with clients or other cases - so why?
The answer is that they were
coveringi.it up to promote a lie and they don't want to admit it, so they
have made another lie.
There is nothing confidential about clients or
separate legal proceedings in the redacted portions of Arko's FBI-302.
This will be proven when Arko's FBI-302 is finally uncovered without redaction
and the Government will be shown to have lied to the Court twice, at least.
What Petitioner has listed andvdescfibed above should have been enough
for the District Court to realize there was ample evidence supporting
Petitionefis claims.
Petitioner simply does not understand how the court
could say there is no evidence when there was an abundance of evidence
right in front of it.
Did the District Court err by not recognizing the
evidence presented as supporting Petitioner's claim?
Was Petitioner required
to submit such evidence orrwas the Court's requirement unnecessary prior
to an evidentiary hearing?
Was it enough that Petitioner's allegations
were clearly-stated?
Petitioner filed a Motion for Reconsideration in August, 2017, detailing
the above issues.
While Petitioner was waiting, he received a letter
from Arko - in February, 2018.
In the letter, Arko strongly denied ever
telling the FBI what the Government alleged and insisted that he had actually
state
30 Cl
stated the opposite (sound familiar?
in his 2255 motion).
This was Petitioner's exact allegation
Arko stated that, if anyone even suggested otherwise,
they were horrible liars (Petitioner paraphrases because what Arko actually
said was much more strongly worded).
Petitioner submitted the letter
to the Court and asked it to review this new evidence in conjunction with
the Motion for Reconsideration or tooallow certiorari of a subsequent
2255 petition.
What the District Court did next seems deliberate and
inexcusable.
The District Court waited 21 months to respond to Petitioner's Motion
for Reconsideration, which is - curiously - 13 months from the time of
receiving and submitting Arko's letter.
The District Court denied Petitioner's
Motion for Reconsideration without explanation and proceeded to moot Petitioner's
submission of Arko's letter as evidence.
The Court never considered Petitioner's
request for certiorari of a subsequent 2255 petition while also never
considering the letter as evidence supporting the Motion for Consideration.
By waiting 13 months to respond, the District Court took away Petitioner's
right to file a subsequent 2255 based on new evidence.
Petitioner wrote
a letter to the District Court to make sure the courttwas aware of what
was happening as a result of it's actions, but received not response.
Petitioner
appealed to the Circuit Court, but was denied without explanation.
Petitoner believes that this is horribly unfair and a clear denial
of due process.
It is disturbing to think that the District Court may
have acted in such a manner deliberately to attempt to end the case.
Did
the District Court abuse it's discretion by acting as it did and denying
\due process to Petitioner?
Does Arko's SEC transcript, the newly-submitted FBI-302 and Arko's
letter constitute sufficient evidence to support Petitioner's allegation
and warrant an evidentiary hearing?
of
31
Did Petitioner's clearly-stated allegation
of prosecutorial misconduct and supporting evidence meet the standard
setiforth by Slack.lv. McDaniel of a ''substantial showing of the denial
of a constitutional right" that would trigger an evidentiary hearing?
32
.
7)
a.
Did the District Court abuse it's discretion by an over-reliance
on Rule lllas a per se rule?
b.
Is Lemaster correctly applied by the District Court?
Are clearly-stated
allegations of extraordinary circumstances sufficient to meet the non-absence
requirement of Lemaster, or must a Petitioner also prove the allegation
prior to being granted an evidentiary hearing?
The District Court stated that Petitioner's allegation that defense
counsel Minter failed to investigate "directly conflicts with Petitioner's
statements made under oath at his Rule 11 hearing when he stated that
he was satisfied with the representation his attorneys had given him...
The Court gives these statements a great deal of consideration because
in the absence of extraordinary circumstances, the truth of sworn statements
made ddring a Rule 11 colloquy is conclusively established, and a district
court should, without holding an evidentiary hearing, dismiss any §2255
Motion that necessarily relies on allegations that contradict sworn statements.'
United States v. Lemaster, 403 F. 3d. 216, 221 (4th Cir. 2005))."
(Memorandum
Opinion & Order, p.7-8).
The District Court, in quoting Lemaster, seems to have ignored the
opening phrase "in the absence of extraordinary circumstances..." (Id.)
A failure to investigate is an extraordinary circumstance that would overcome
a reliance on rule 11.
Yet, the District Court goes on; to list several
of the things that Ms. Minter did not do and then state that they did
not constitute a failure to investigate.
If you look at the long list
of things that Minter did not do (and which she mostly acknowledges in
her affidavit), it is Hard not to look at the cumulative effect and conclude
that she failed to investigate and offered clearly ineffective assistance.
M£ Minter could have been in a coma and the District Court would have
ruled
33 V-> \
ruled that her assistance was effective!
Petitioner's allegation of
ineffective assistance of counsel Minter, when looked at in total, is
an allegation that Minter conducted no investigation and did absolutely
nothing except tell Petitioner he had to take a plea.
According to thfe
District Court, that constitutes effective assistance.
If the District
Court is correct, then failure to investigate simply does not exist.
This is obviously counter to all precedent.
The District Court appears to be relying on Lemaster to discount
the allegation in the first place.
The judge appears to be saying "Petitioner
cannot have extraordinary circumstances because the extraordinary circumstances
he alleges conflict with his Rule 11 statements."
If such an application
is not pointed out and rebuked, Lemaster becomes a sledgehammer against
any and all claims of ineffective assistance made after a plea.
However,
Petitioner's allegations do not conflict with his Rule 11 statements
in any direct or specific manner.
Petitioner simply stated that he was
satisfied with counsel's representation, while Petitioner's allegations
in his 2255 motion are very specific andnstibstantial in nature and almost-full
fully corroborated by counsel Minter and other evidence.
But, also,
there are numerous instances where both statements could be true and
therefore not in conflict.
For example, Petitioner could have been satisfied
at the time of the Rule 11 colloquy, only to discover later that there
was ineffective assistance.
Or, a petitioner may not have known or understood
the significance of the question in the plea colloquy (as is the case
with Petitioner in this case.
Petitioner had assumed it was a polite
question of no significance, similar to "How do you find the temperature
in the courtroom today?"
of it's significance.)
It was not until later that Petitioner learnedrcc
If Petitioner is unaware of the significance
of the question, it is likely that many defendants also share such an
igv
ignorance.
It is unfair to require defendants to be experts on the significance
of the law as it relates to effective legal representation.
A Sourt "must accept the truth of the [movant's] allegations unless
they are clearly frivolous based on the existing record." (United States
v. Lilly, 536 F. 3d. 190, 195 (3rd Cir. 2008)).
Are clearly-stated allegations
of ineffective assistance of counsel frivolous if they potentially contradict
Rule 11 statements or are they legitimate claims of extraordinary circumstances
that would be an exception to Lemaster?
T
8)
a.
Does the combination of 4th Circuit cases of Miller v. United
States and Raines v. United States , a^resented by the District Court,
create an evidentiary requirement that violates Supreme Court precedent
and §2255 rules?
Is a petitioner required to prove the clearly-stated
allegations in his or her 2255 motion prior to being granted an evidentiary
hearing?
b.
Did the District Court mistate and misapply the cas&ssof Miller
and Raines to create an unfair bar for petitioners to receive an evidentiary
hearing?
c.
Is a petitioner, in a collateral attack of a plea agreement, required
to disprove "facts" which are not in the plea agreement?
Is it enough
that a petitioner disproves "facts" which are stated in the plea agreement?
Conversely, when a judge insists that a petitioner must prove a point
which the plea already acknowledges, has the judge made an error and,
thus, abused discretion?
In it's Memorandum Opinion & Order denying an evidentiary hearing,
the District Court stated, "When filing a 2255 motion to vacate, set aside,
or correct a sentence, a petitioner bears the burden of proving their
grounds for collateral attack by a preponderance of the evidence." and
then cited Miller v. United States, 261 F. 2d 546, 547 (4th Cir. 1958).
The District Court immediately followed this with "If the motion, when
viewed against the record, shows that the petitioner is entitled to no
relief,, the court may summarily deny the motion." and cited Raines v.
United States, 423 F. 2d 526, 529 (4th Cir. 1970).
& Order, pp.4-5).
(Memorandum Opinion
If the District Court's interpretation of Miller is
correct, then a petitioner has to prove his case with evidence at the
time of filing.
pu
This seems to be an absurd arrangement - what is the
36
purpose of an evidentiary hearing if the evidence to prove the allegation
must be presented prior to being granted an evidentiary hearing?
The
hearing would be moot at that pointV-J Following Miller with Raines, a
district court can (and did, in Petitioner's case) deny a motion without
an evidentiary hearing if a petitioner does not prove his case with evidence
at the time of filing.
Such a situation appears to be at odds with the §2255 rules, as explained
in the case of United States v. Lilly, 536 F. 3d 190, 195 (3rd Cir. 2008):
"Discretion whether to grant a hearing is constrained by Section 2255,
which requires the district court to hold an evidentiary hearing 'unless
the motion and files and records of the case show conclusively that the
movant is not entitled to relief. if; tt
This is not a high bar for a movant
to meet, especially since the district court, in considering a Section
2255 claim,
"must accept the truth of the movant's factual allegations
unless they are clearly frivolous on the basis of the existing record."
(Id.)
A section 2255"motion "can be dismissed without a hearing [only] if
(1) the [movant's] allegations, accepted as true, would not entitle the
[movant] to relief, or (2) the allegations;canno|L;be accepted as true
because they are contradicted by the record, inherently incredible, or
conclusions rather than statements of fact." (United States v. McCoy,
410 F. 3d. 124, 134 (3rd Cir. 2005)).
A district court's decision not
to hold an evidentiary hearing may be reversed for abuse of discretion
if "the files and records of the case are inconclusive on the issue of
whether movant is entitled to relief." (Id.)
Petitioner has met the requirements
for an evidentiary hearing: the allegations, if accepted as true, would
entitle Petitioner to relief, are not clearly frivolous, are not contradicted
by the record, inherently incredible, or conclusions r-ather than statements
37
of fact.
Yet, Petitioner was denied a hearing.
Does the combination
of Miller and Raines, as used by the District Court, violate §2255 rules
and prior precedent by creating an evidentiary requirement at the time
of filing the motion?
With respect to the second part of this issue (Question 8.b), the
District Court made subtle changes to the language used in both Miller
and Raines that amount to a substantial change.
First, Miller does not
state "When filing", as the District Court stated in it's Memorandum Opinion
& Order, p.4.
Miller actually states "In a §2255 motion, the defendant
bears the burden of proving the grounds for collateral attack by a preponderance
of the evidence." (Miller v. United States, 261 F. 2d. 546, 547 (4th Cir.
1958)).
The District Court changed the phrase "In a §2255 motion" to
"When filing a 2255 motion" and this change is very important.
The District
Court's rephrasing gives the impression that a petitioner must prove his
case at the very beginning - "when filing".
This is very misleading and
also incorrect.
Likewise, Raines states "Where the defendants motion, when viewed
against the record, does not state a claim for relief, the Court should
summarily dismiss the motion." (Raines v. United States, 423 F. 2d. 526,
529 (4th Cir. 1970)).
The District Court changed Raines to state "If
the motion, when viewed against the record, shows that the petitioner
is entitled to nowrelief, the court may summarily deny the motion."
the underlined sections.
Compare
Perhaps they do not appear that different on
first view, but the change is substantial.
Raines simply says that a
district court can dismiss a 2255 which does not make a claim for which
the court can provide relief.
That is very different from a conclusion
that a petitioner has not shown that they are entitled to relief - something
that would require proof.
If a petitioner states a claim that, if true,
would eutivlf him to rolled;, but c®8 e
would entitle* him to relief, but an evidentiary hearing is denied because
the petitioner did not prove the claim at the time of filing - now you
can see how the combination of mistatements gave the District Court carte
blanche to deny a hearing for valid claims.
This is directly counter
to §2255 rules, prior precedent, and the spirit of the law and due process.
With respect to the third and final issue (Question 8.c), Petitioner
references the subject matter of Question 2 on pp.4-11 of this brief,
in order to avoiderepetition and the waste of space, as the subject matter
was brought up in that Question.
With respect to the District Court's second statement (this brief,
p.7, #2), why should any evidence be required to prove a point that the
plea already acknowledges is true?
Is a petitioner required to prove
that he did not do something that the plea already acknowledges was allowable?
With respect to the District Court's third statement (this brief,
p.7, #3), why should any evidence be necessary to disprove a point that
the plea does not make?
When a judge reads into a plea agreement "facts"
or requirements which are not there, is that error?
These two issues are especially important because they appear to show
that the judge was either confused about what was and was not in the plea
agreement or was simply trying tqphard to make a case that was not there.
This prejudiced petitioner by denying an evidentiary hearing.
39
REASONS FOR GRANTING THE PETITION
Petitioner raises multiple issues of national importance with respect to
due process of law.
There is a need for clarification or correction
to avoid a continued move in the wrong direction by the 4th Circuit and,
potentially, other circuits.
Subtle changes to the wording of prior
precedent which cause substantial elimination of rights of petitioners
to evidentiary hearings - and directly conflict with §2255 rules and
procedures and prior precedent.
An;'inappr6priAtelyghighrbar as a test
for materiality of newly discovered evidence that is in conflict with
new Supreme Court precedent.
Clarification is needed on the issue of
equitable tolling of AEDPA’s statute of limitations.
In Petitioner's
case, the 4th Circuit has done numferous things that would curtail the
dug!, procdss-1 fightslofnail petitionersiJeidiualihowedsCo go unchecked.
Petition
Petitioner asks for review not only for his own benefit, but the benefit
of the judicial system as a whole and petitioners within it.
40
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
llliam
Date:
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.