Petition for Writ of Certiorari — Jarvas Jovon Brinkley, Petitioner v. Randee Rewerts, Warden

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IN THE

SUPREME COURT OT THE UNITED STATES

Supre

TERM,

rleo”' US.

SfP i 7 2019

JARVAS JAVON BRINKLEY,

Petitioner,

2FFICEQF

-VRANDEEREWERTS, (WARDEN),

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Respectfully Submitted:

. _________ /___________________

l^Cas Javon Brmkiey, Inmale # 324670

Carson City Correctional Facility

10274 Boyer Road

Carson City, Michigan 48811-9746

In/Propria/Persona

Dated:

, 7,0

.2019 A.D.

^M£lerk

QUESTION PRESENTED

DOES THE DECISIONS BELOW CONFLICT WITH THE DECISIONS OF OTHER U.S.

CIRCUIT COURTS OF APPEALS AND STATE APPELLATE COURTS, AND MISAPPLY THIS

COURT’S DECISIONS IN STRICKLAND V WASHINGTON, AND LAFLER V COOPER,

VIOLATING PETITIONER JARVAS JAVON BRINKLEY’S CONSTITUTIONAL RIGHTS UNDER

THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS?

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES To the PROCEEDINGS

2

TABLE OF CONTENTS

ii

PETITION

1

OPINIONS BELOW.

1

JURISDICTION

1

CONSTITUTIONAL PROVISIONS

1-2

STATEMENT OF THE CASE

3-16

A. Facts

3

B. Claim and Proceedings Below.

3

REASONS FOR GRANTING THE WRIT

,4-16

THE MICHIGAN COURT OF APPEALS, AND THE MICHIGAN SUPREME COURT DENIED

PETITIONER JARVAS JAVON BRINKLEY’S STATE AND FEDERAL CONSTITUTIONAL

CLAIMS IN DIRECT CONFLICT WITH THE UNITED STATES CONSTITUTION, AND

HOLDINGS OF THIS COURT, OTHER CIRCUIT COURTS, AND THE STATE APPELLATE

4-14

COURTS OF MICHIGAN

THIS COURT SHOULD USE THIS CASE TO RESOLVE THE CONFLICT IN SPLITS OF

AUTHORITY AND TO CLARIFY STRICKLAND, LAFLER V COOPER, MCLS SECTION

15-16

780.972, MICHIGAN COURT RULE 2.517(A)(1)

17

Conclusion

ii

INDEX OF AUTHORITIES

Page (s):

Cases:

Alexander v Poole, U.S. Dist. Ct, (E.D. New York, 2005

16

Dickens v Jones, 203 F. Supp.2d 354, 359 (E.D. Mich 2002)

15

Estate of Jackson v Hardaway (In re Hardaway), 558 B.R. 831, LEXIS 3629, Eastern District

of Michigan, Southern Division (Decided

October 5th, 2016, U.S. Sixth Circuit Court

of Appeals)................................................

7

Guilmette v Howes, 624 F.3rd 286 (6th Cir. 2010).

11

Hinton v Alabama, 571 U.S. 263; 134 S.Ct. 1081;__ L.Ed.2d__ (2014)

13

Laflerv Cooper, 566 U.S. 156; 132 S.Ct. 1376; 182L.Ed.2d 398 (2012).

12, 13, 14

People v Armstrong, 490 Mich 281 (2011)

13

People v Camerson, 52 Mich App 463 (1974).

8

People v Conyer, 281 Mich App 526 (2008)

5

People v Dykhouse, 418 Mich 488, 501 (1984)

5, 16

People v Giacalone, 242 Mich 16, 21 (1928)

6

People v Guajardo, 300 Mich App 26, 40 (2013)

8-9, 16

6, 16

People v Heflin, 434 Mich 482 (1990)

m

INDEX OF AUTHORITIES

(Continues....)

People v Hobson, 500 Mich 1005, 1006 (2017)

14

People v Kupinski, 2018 W.L. No. 3186188, 7 MA (June 28th 2018)

8

People v Lafler, 734 F.3rd 503, 510 (6th Cir. 2013)

People v Macard, 73 Mich 15 (October Term, 1888)

13

9

People v Morrin, 31 Mich App 301, 329 (1971).

5, 16

People v Thomas, 223 Mich App 9, 11 (1997)

4,9

People v Walker, 203 Mich 908; 919 N.W. 2d 401 (Decided on November 21st, 2018)

1

People v Walker, 2019 Mich App LEXIS 2531 (Decided on May 23rd, 2019)

14

People v Whalen, 412 Mich 166,169-70; 312 NW2d 638 (1981)

9

Pond v The People, 8 Mich 150 (1860)

7

Rompilla v Beard, 545 U.S. 374; 125 S.Ct. 2456; 162L.Ed.2d 360 (2005)

13

William v Bowersox, 304 F. 3rd 667, 671 (8th Cir. 2003)

15

IV

INDEX OF AUTHORITIES

(Continues....)

UNITED STATES CONSTITUTION

.........1, 10

............1,8

........... 1,8

............1,8

First Amendment..................

Fifth Amendment..................

Sixth Amendment.................

Fourteenth Amendment........

MICHIGAN CONSTITUTION OF 1963

................ 2

.......... 2, 10

Article I, Section 17.............

Article I, Section 20.............

united states federal statutes

U.S.S. Court Rule 13.1........

MICHIGAN COMPILED LAWS AND STATUTES SERVICES

.......... 3

Section 750.227b.................

Section 750.316..................

Section 780.972(1)..............

Section 780.972(2)(1).........

MSA:

.....3

Section 28.424(2)....

MICHIGAN COURT RULES

10-11

R. 2.517(A)(1)

v

PRAYER

Petitioner JARVAS JAVON BRINKLEY, humbly requests that a “Writ OF Certiorari”

be issued, in order to review the Judgements and Orders of the Michigan Supreme Court, which

was entered on: July 2,nd 2019, at SC # 158565 and the Michigan Court Of Appeals, which was

entered on: August 30th, 2018 (UNPUBLISHED), at COA #337437, and PRAYS that this

Honorable Court will Grant him any and all relief from the constitutional violations that has

occurred against him.

OPINIONS AND ORDERS BELOW

The Order of the Michigan Supreme Court is reported as “People Of The State Of

Michigan v Jarvas Javon Brinkley, Case No. 158565,” (July 2nd 2019), and is attached as

Appendix “A,” The Decision of the Michigan Court Of Appeals a “ Per Curiam” Decision, the

Judgement is reported as “People Of the State of Michigan v Jarvas Javonn Brinkley, Case

No. 338437,” and is attached as Appendix “B.”

JURISDICTION

The judgement of the Michigan Supreme Court, was entered on July 2nd 2019, entering

its denial of Petitioner Jarvas Javon Brinkley’s leave to appeal, and The Michigan Court Of

Appeals judgment was entered on August 30th, 2018. Therefore, this Petition is being filed

within the ninety (90) day time requirements of these two (2) court decision dates.

Jurisdiction therefore, is conferred upon this Honorable Court pursuant to U.S.S.Ct. Rule

13.1, and the First Amendment of The United States.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Fifth, Sixth and Fourteenth Amendments to the United States

Constitution, which reads in pertinent parts:

“No person shall be deprived of life, liberty, or property, without due process of law...” (Fifth

Amendment).

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have been committed....’ and to

have the assistance of counsel for his defense.” (Sixth Amendment);

1

“...nor shall any State deprive any person of life, liberty, or property, without due process of law,

nor deny to any person within its jurisdiction the equal protection of the laws ” (Fourteenth

Amendment).

This case also involves the State of Michigan’s Constitutional provision of 1963, which read in

pertinent parts:

“No person shall be denied the equal protection of the laws..(Article 1, Section 17),

“No person shall be ...deprived of life, liberty or property, without due process of law.” (Article

1, Section 17); and

‘In every criminal prosecution, the accused shall have the right to a speedy trial and a public trial

by an impartial jury...; to have the assistance of counsel for his defense; to have an appeal as a

matter of right; and as provided by law, when the trial court so orders, to have such reasonable

assistance as may be necessary to prosecute an appeal.:” (Article 1, Section 20).

PARTIES TO THE PROCEEDINGS

Petitioner, Jarvas Javon Brinkley was the party-petitioner in the Michigan Court of

Appeals, and later, was the party-petitioner in the Michigan Supreme Court.

The PEOPLE OF THE STATE OF MICHIGAN was the part-respondent in this

petition within the Michigan Court of Appeals, and later, the was the party-respondent in this

petition within the Michigan Supreme Court.

These two (2) Parties are the very same parties in the case at bar, and at all times this

case was Captioned as: “The People of the State of Michigan vs. Jarvas Javon Brinkley.”

Both Parties maintain their business and office address as: Carson City Correctional

Facility, Boyer Road, Carson City, Michigan 48811-9746, located in the City of Carson City, for

the State of Michigan.

2

STATEMENT OF THE CASE

A. Facts

I. Under Michigan’s Self-Defense Act (SDA) statutory provisions MCLS

Section 780.972(1), a defendant can raise the self-defense act if there is evidence that show

defendant had an honest and reasonable belief that the use of deadly force was necessary to

prevent imminent death, great bodily harm, or sexual assault to himself or to another, is allowed

to use deadly force as provided by common law.” MCLS 780.972(1).

On January 20th, 2017 A.D., Petitioner Jarvas was found guilty, by way of a jury trial,

of first-degree premeditated murder, contrary to MCLS, Section 750.316, and felony-firearm,

contrary to MCLS Section 750.227b, MSA Section 28.424(2).

On February 23rd, 2017 A.D., Petitioner Jarvas was sentenced to imprisonment to

serve a Mandatory Life Sentence prison term without parole, and a Two (2) Year prison term for

the Felony-Firearm conviction.

B. Claims and Proceedings Below

Petitioner Jarvas sought his Direct Appeal within the Michigan Court of Appeals,

raising three (3) Constitutional issues for review: 1) Sufficiency of the Evidence, 2) Evidence of

Illegal Firearm, and 3) Ineffective Assistance of Counsel, under the Standard 4 Rule for filing

Supplemental Brief Issues. On August 30th, 2018 A.D., the Michigan Court of Appeals issued

its Unpublished Per Curiam Decision, Denying Petitioner Jarvas’s three appellate issues.

.3

See Exhibit “A” attached hereto. Petitioner Jarvas then sought his Leave To Appeal to the

Michigan Supreme Court, raising the very same issues for appellate review. On July 2nd ,2019

A.D., the Michigan Supreme Court Denied Petitioner Jarvas’s leave to appeal, in a one (1) page

three (3) Liner decision. See Exhibit “B” attached hereto.

The County Prosecutor filed opposing arguments to Petitioner Jarvas ’s claims to the

state

Appellate Courts. See Enclosures.

REASONS FOR GRANTING THE WRIT

I.

THE MICHIGAN COURT OF APPEALS, AND THE MICHIGAN SUPREME COURT

DENIED PETITIONER JARVAS JAVON BRINKLEY’S STATE AND FEDERAL

CONSTITUTIONAL CLAIMS IN DIRECT CONFLICT WITH THE UNITED STATES

CONSTITUTION AND HOLDINGS OF THIS COURT, OTHER CIRCUIT COURTS,

AND THE STATE APPELLATE COURTS OF MICHIGAN.

Overview

A. Sufficiency of the Evidence. A petitioner can challenge the Constitutionality of a conviction,

if he can show that the evidence the prosecutor relied upon was contrary to the United States

Constitution, Holdings by the United States Supreme Court, other Circuit Courts, and holdings

by the State Appellate Courts.

Petitioner Jarvas contends that the Michigan Court of Appeals August 30, 2018 Per

Curiam Decision runs contrary to Michigan’s “Stand Your Ground” Statute, and therefore

is a “Mis-conception of the law and fact.” In People v. Thomas? 223 Mich App 9,11

4

(1997), the Court ruled that: “Mis-conceptions of the law and fact denies the defendant'the

due process and equal protection of the law that the United States Constitution guarantees

to all persons charged with committing a criminal offense. For example, MCLS Section 780.972

(2)(1), clearly reads: “An individual who has not or is not engaged in the commission of a crime

at the time he or she uses deadly force may use deadly force against another individual

anywhere he or she has the legal right to be with no duty to retreat if either of the following

applies: (a) The individual honestly and reasonably believes that the use of deadly force is

necessary to prevent the imminent death of, or imminent great bodily harm to himself or

herself or to another individual

See Pennle v. rnnver. 281 Mich App 526 (2008): “Under MCL 780.972, there is no

duty to retreat if the person has not committed or is not committing a crime and has a legal

right to be where they are at the time they use deadly force. Because MCL 780.972 of the

Self-Defense Act, MCL 780.971 et seq., constitutes a substantive change to the right of

self-defense, it applies prospectively only.” Therefore, this substantive change and statutory

right, applies prospectively to Petitioner Jarvas, and the state appellate courts were wrong in

their decisions, constituting a “misconception of the law,” violating Petitioner Jarvas s right to

due process and equal protection of the law.

Furthermore, the cases relied on by the MCOAs,’ such as People v. Dykhouse, 418

Mich 488,501 (1984), People v. Morrin, 31 Mich App 301,329 (1971), are a mis-application

of law and fact, where in both of these cited cases, Pykh.QHS£> supra, and MflEEin* supra,

5

clearly addressed the pre-meditation elements, and the “to think about beforehand” elements of

the crime. Petitioner Jarvas strongly contends that he did think about it beforehand, and strongly

felt that his life was in danger, therefore, Petitioner Jarvas was thinking only of defending

himself, and did not “pre-meditate” to kill, but only to defend himself, especially where he

“honestly and reasonably” believed that the use of deadly force was necessary to prevent

imminent death or imminent great bodily harm to himself Petitioner Jarvas meets the standards

announced in People v. Heflin, 434 Mich 482, id. At----503 (1990).

Heflin, supra, ruled that a “....defendant may lawfully use deadly force when

he feels he is in danger of death or great bodily harm...and a court must give instructions

that specifically inform the jury, as required by Michigan’s law, that the use of deadly force is

lawful where one is in danger of death or grave bodily harm...” Id. at----502-504.

As Petitioner Jarvas previously argued within his Brief on Direct Appeal, the prosecutor

did,

and has not met his burden of proof beyond a reasonable doubt that Petitioner Jarvas did

in fact “premeditated” to kill Mr. Tommie Allen. See EfiOfik v. Qiacalom 242 Mich 16,21

(1928), the “....circumstances of the crime must be viewed from the standpoint of the accused

alone, and that if they are sufficient to induce in him an honest and reasonable belief that he is in

danger of great bodily harm or loss of life, he is justified or excused in killing. ” Id at

21.

In accord with the cardinal rule of “Criminal Law and Procedure,” applicable to all

claims of self-defense, is that the killing of another person is justifiable homicide if, under all the

6

circumstances, a defendant honestly and reasonably believes that he is in imminent danger of

death or

great bodily harm and that it is necessary for him to exercise deadly force. A claim of

self-defense first requires proof that a defendant acted in response to an assault. Where

a defendant charged with murder asserts that he killed in self-defense, his state of mind at the

time of the act is material because it is an important element in determining his justification

for his belief in an impending attack by the deceased. However, it has long been clear in

Michigan that the right of self-defense commences and ceases when real or apparent necessity

begins and ends. Estate of .Tacksojo v. Hardaway fin re Hardaway) , 558 B.R. 831, LEXIS

3627, Eastern District of Michigan, Southern Division (Decided October 5,2016, U.S. Sixth

Circuit Court of Appeals). Id. at__ HN6 Defenses, Burdens of Proof.

Petitioner Jarvas asserts that he was not in the commission of committing any sort of

a crime, he had a legal right to be where he was at the time of the crime, and he had an

honest and reasonable belief that his life was in serious harm. The deceased confronted

the petitioner, and constantly pursued the petitioner. When the petitioner tried to leave, the

deceased followed behind the petitioner with something his hands. Even though

Petitioner Jarvas’s belief may have been wrong, “...the guilt of the circumstances as

they ‘appear’ to him, and he will not be held responsible for a knowledge of the facts,

unless his ignorance arises from fault or ignorance.” Mv. The PeQpife 8 Mich 150,

(1860), id. at__ 175,182. (Emphasis added. Bold, Underlining Mine).

Contrary to clearly mandated statutes, both state and federal, as well as decades of

old case law and court precedents, the prosecutor wishes for the courts to rule on “the guilt

of the circumstances” based on the prosecutor s ‘theory of the case. Now see people v

r.52 Mich App 463 (1974), ruling that: “For an accused to prevail on a claim of

self-defense, it must be shown that under all of the circumstances as they appsarsdt0 him

at the time, he was in danger of suffering death or great bodily harm .” Id. at

465.

(Emphasis added. Underlining, Bold Mine).

The prosecutor’s theory of the case only violates Petitioner Jarvas s state and federal

constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the United States

Constitution. The Constitutional standards and requirements as to the case at bar, are by

both statutory provisions and sound settled case law as to what Petitioner Jarvas was thinking at

the time of the circumstances surrounding the crime. Therefore, this case should be decided

based on the mandates of statutory provisions and decided case law.

n. Evidence of Illegal Firearm. Statutory requirements also provide the bases for an

exce ption to a rule under certain circumstances. The SDA of MCLS Section 780.972, et

seq. is one of those provisions. The recently decided case of People v. Kupingki, 2018 WL No.

3186188, 7 MA (June 28th, 2018), following the conclusions reached in Efiflplfi v.

300 Mich App 26,40 (2013), id. at__ fn 2, held that: “The Self-Defense Act (SDA), 780.971

et. seq., has since ‘ codified the circumstances in which a person may use deadly force in

self-defense or in defense of another person without having the duty to retreat.

Id. at

708.

8

Notwithstanding the codification, “a felon possessing a firearm is not precluded from

raising self-defense under the SDA when there is evidence that would allow a jury to conclude

that criminal possession of a firearm was ‘appropriately justified.”’ Guajardo, supra,

832 N.W.2nd 409 (2013). Id. at__ fn 2.

Now see People v Macard. 73 Mich 15 (October Term, 1888), where nearly One

Hundred

Thirty One (131) years ago, the Michigan Supreme Court held:

“It is not necessary for a person, if without fault, when suddenly assaulted upon the public

highway, or upon his own premises, and when an instants delay may be at the expense of his

own life, to retreat before using deadly force.” Id. at----17,21.

Therefore, the MCOAs’ August 30th, 2018 “Unpublished” Per Curiam Decision, with

the cited cases relied upon, is a “misconception” of the law, and is contrary to other court

holdings, as well as the holdings from this United States Supreme Court’s various holdings

regarding the elements of “self-defense” requirements. Furthermore, the MOCAs’ August 30th,

2018 Decision is wrong because, it is also contrary to other holdings by the United States Circuit

Courts of Appeal, once again, posing a violation of due process and equal protection of the law

under a “misconception” of the law. See for example, Eesplfe v. ThomM, 223 Mich App 9,11

(1997), where this court granted a reversal of a sentence, and a remand back to the lower court

stating: “A sentence that is based on a misconception of law is invalid.” Id. at—9. The court

went on to state: “Generally, a sentence is invalid where, as here, it is based on a misconception

of law,” r-itina People V Whalen. 412 Mich 166,169-70; 312 N.W.2nd 638 (1981), id. at----11.

9

Petitioner Jarvas’s conviction for premeditated murder, and senteithout parole

are invalid, especially where they were based on a “misconception” of the law as to Petitioner

Jarvas’s fault and guilt at the time of the crime, where all of the circumstances at the time

appeared to him that his life was in danger of imminent death, or great bodily harm.

Equally so, the Michigan Supreme Court’s July 2nd, 2019 one (1) page, three (3) liner

Decision is also wrong, where this Court Order is totally ioM of any mandated “findings of

fact,” and “conclusions of law,” in accord with MCR 2.517 Findings by Court, which clearly

reads as follows:

(A) Requirements.

(1) In actions tried on the facts without a jury or with an advisory jury, the court SHALL find

the facts specially, state separately its conclusions of law, and direct entry of the appropriate

judgment.

The failure of the state supreme court to provide Petitioner Jarvas with the required findings

of fact, and conclusions of law, denies him his due process and equal protection rights to

challenge the court’s July 2nd, 2019 decision within the federal appellate courts. The First

Amendment to the United States Constitution grants Petitioner Jarvas the right to challenge the

government’s adverse actions, and at any time. Also, the State of Michigan’s Constitution of

1963, Article I, Section 20, grants Petitioner Jarvas the right to appeal his conviction and

sentence, which reads in pertinent parts: “In every criminal prosecution, the

accused SHATJ, have the right....to an appeal as a matter of right...” These appellate

procedures that Petitioner Jarvas is now litigating, are a paramount part of his appeal,

10

Petitioner Jarvas strongly contends that his right to an appeal is being denied to him, and

hampered by the Michigan Supreme Court’s failure to provide the required “findings of fact,

and conclusions of law.” This is because Petitioner Jarvas does not know what to appeal, since

the Order Denial does not state, or list, how the Court “found the facts” that it relied on to deny

Petitioner Jarvas’s appellate claims, and what case law it relied on in its “conclusions of law.”

Just nine (9) years ago, The United States Sixth Circuit Court of Appeals denounced this

sort of unconstitutional judicial behavior when it addressed the states’ post-appellate procedural

Claims. See Gnilmette v Howes. 624 F.3rd 286 (6th Cir. 2010), where it held: “the state

supreme court’s order was unexplained [meaning that the text of the order fails to disclose the

reason for the judgment], and the last reasoned state court decision was on the merits, the state

courts never enforced a procedural bar to Guilmette’s claims, mainly because the courts did not

specifically identify which subparagraph of the 6.508(D) rule their affirmance relied on. Id.

at _290. Therefore, MCR 2.517(A)(1) applies in the case at bar, and the state supreme court

was required to provide Petitioner Jarvas with the “findings of fact,” and “conclusions of law.”

It is, therefore, Petitioner Jarvas contention that, both state appellate courts’ decisions

in the case at bar, have presented “a clear split “ in other Michigan State Court s decisions, as

well as this U.S. Supreme Court’s decisions, and fundamentally misapplies this court’s

“due process” and “equal protection of the law” settled cases and judicial analysis. Thus,

Petitioner Jarvas is entitled to the relief that he seeks.

11

m. Ineffective Assistance of Counsel.

Petitioner Jarvas filed his own “Standard 4 Brief,” alleging ineffective assistance of counsel

knowing fully that, on direct appeal, the trial attorney was not going to file a claim of

“Ineffective Assistance of Counsel” against himself. Neither did Petitioner Jarvas know that he

was supposed to “...preserve a claim of ineffective assistance of counsel by moving, in the trial

court, for a new trial or an evidentiary hearing under People v Ginther....” Page 5 of the

Michigan Court of Appeals’ Unpublished August 30,2018 Per Curiam decision.

It must be kept in mind the main fact that Petitioner Jarvas is not a member of the

American Bar Association, or the Michigan Bar Association, and therefore, does not, or did

not know anything about the law or trial court procedures, in order to do what the MCOA’s

Per Curiam decision stated that Petitioner Jarvas should have done. This reasoning by the

MCOA is analogous to asserting Petitioner Jarvas is an attorney.

Petitioner Jarvas contends that trial counsel should have withdrew from the case at

bar, if he actually felt the case was not winnable. Counsel went to trial because he felt there

was a chance that Petitioner Jarvas could probably prevail on a defense of “Self-Defense,”

contrary to trial counsel’s questioning during the third day of the trial, outside the presence

of the jury.

Petitioner Jarvas contended, and still maintain, the claim that the prosecutor’s plea

deal offer was not thoroughly explained, or encouraged by trial counsel. In Laffer v Cooper.

12

566 U.S. 156; 132 S.Ct 1376; 182 L.Ed.2d 398 (2012), the U.S. Supreme Court held:

1) Petitioner was prejudiced by counsel’s deficient performance m advising petitioner to

reject the plea offer and go to trial, and 2) The proper remedy for counsel’s ineffective assistance

was to order the state trial court to reoffer the plea agreement, and then, if petitioner accepted the

offer, the state court could exercise its discretion regarding whether to resentence.

at

1391.

Rompilla v Beard, 545 U.S. 374; 125 S.Ct 2456; 162 L.Ed.2d 360 (2005): “...defense

counsel’s failure to examine file on defendant’s prior conviction fell below the level of

reasonable performance

such failure was prejudicial to defendant, warranting habeas relief

on grounds of ineffective assistance of counsel.”; Peop.tei v LaflfiE, 734 F.3rd 503,510 (6th

Cir. 2013):

“Counsel was ineffective in not impeaching only two witnesses tying defendant

to murder with their known false testimony.”; Hilllfla v Alabama, 571 U.S. 263; 134 S.Ct 1081

(2014), Held: 1) defense counsel’s failure to request additional funds to replace an inadequate

expert amounted to deficient performance, and 2) state appellate court erred m determining

that defendant could not have been prejudiced by counsel’s performance.” Vacated and

Remanded this case for a new trial.

Also see, People v Armstrong. 490 Mich 281 (2011), holding that defendant suffered

prejudice from counsel’s failure to pursue cell phone records for introduction in the trial court,

and concluded that the Court of Appeals erred in its opinion finding that defendant was not

prejudiced, reversed the court of appeals decision, and ordered a new trial for the defendant.

Id. at__ 291,294.

In People V. Walker. 503 Mich 908; 919 N.W.2d 401 (Decided on November 21,2018),

13

remanded the case back to the court of appeals for consideration of whether Lafler v Cooper

should be applied retroactively to that case, in which the defendant’s convictions became final

in 2005. The Michigan Court of Appeals had found that the trial court erred in its conclusion

that there is a reasonable probability that the defendant would have accepted the plea offer.

The Michigan Supreme Court, on the other hand, did not believe the trial court had erred

in its decision, especially where the trial had used the standards announced in the Lafler, supra.

Now see People v Walker. 2019 IVlicli App LEXIS 2531 (Decided Msy 23, 2019), ruling that

[Lafler, supra] “...did not create a new rule and it applied retroactively to the case. The law

being applied, Strickland, supra, was clearly established federal law and was not new within

the meaning of Teague v. Lane.” (Emphasis added. Bold Mine).

In the second Walker decision, the court of appeals concluded that the defendant was

entitled to post conviction relief for ineffective assistance of counsel, who failed to

inform defendant of pre-trial plea offer. In the case at bar, trial counsel failed to properly,

and thoroughly encourage Petitioner Jarvas to accept the plea offer, especially if counsel felt

there was no way Petitioner Jarvas could prevail with a jury trial. Also see Peopte v Hpfas.QJL

500 Mich 1005,1006 (2017). There are direct similarities in the above cited state and federal

court case holdings, and in the case at bar. Petitioner Jarvas is entitled to the very same “due

process” and “equal protection” of the laws.

14

n.

THE COURT SHOULD USE THIS CASE TO RESOLVE THE CONFLICT IN SPLITS

OF AUTHORITY AND TO CLARIFY STRICKLAND, LAFLER V COOPER, MCLS

SECTION 780.972, MICHIGAN’S COURT RULE 2.517(A)(1).

The Michigan State Appellate Courts’ Decisions Diverges Sharply from Other Courts

Both state appellate courts decisions make very clear that no amount of self-defense

evidence could ever establish a state or federal constitutional violation because of the state

prosecutor’s “theory of the circumstances,” rather than Petitioner Jarvas’s appearances of the

Circumstances. Therefore, their decisions split sharply from other state and federal courts. In

fact, the theoretical splits are as sharp as they can be, and therefore, this Honorable Court should

address Petitioner Jarvas’s constitutional claims.

Federal Circuit Courts across the country would strongly disagree with the conclusions

reached by the Michigan State Appellate Courts, as to “duty to retreat, when the delay could be a

risk of imminent death or great bodily harm.”

While requirements of “clearly established law” are to be determined solely by the holdings

of the Supreme Court, the decisions of lower federal courts are useful in assessing the

reasonableness of the state court’s resolution of an issue, “the objective reasonableness of a state

Court’s application of Supreme Court precedent may be established by showing other circuits

having similarly applied the precedent.” See Williams v Bowersox, 340 F.3rd 667,671 (8th

Cir. 2003); Dickens v .Tones. 203 F.Supp.2d 354,359 (E.D. Mich. 2002).

15

The Court in Alexander v Poole, U.S. Dist Ct. (E.D. New York, 2005), Held:

“A state court decision is “contrary to” clearly established federal law “if the state court

applies a rule that contradicts the governing law set forth” in Supreme Court precedent, or

“if the state court confronts a set of facts that are materially indistinguishable from a decision

of [the Supreme Court] and nevertheless arrives” at a different conclusion. Williams v Taylor,

529 U.S. 362,405-06 (2000).” Further holding: “A state court decision involves an

“unreasonable application” of clearly established law if it unreasonably applies Supreme Court

precedent to the particular facts of a case.” Id. at__ 409.

Petitioner Jaivas strongly asserts that the applied case law used by the state appellate court

i.e., Goecke, Dykhouse, Morrin, Abraham (In re Abraham), Heflin to deny Petitioner

Jarvas’s constitutional claims, are misapplied, and a direct “misapplication of the law and facts,

which diverge sharply from other state and federal courts’ applications. Petitioner Jarvas’s

Constitutional Rights under the Fifth, Sixth, and Fourteenth Amendment, as well as the State’s

Constitution of 1963, Article I, Section 20, are being violated.

16

CONCLUSION

WHEREFORE, for all of the foregoing reasons presented in Petitioner Jarvas Javon

Brinkley’ s Petition For Writ Of Certiorari, humbly prays and requests that this Honorable

Court will GRANT the herein petition.

Respectfully Submitted,

Ja^yiis Javon Brinkley, #3246741/

Carson City Correctional Facility

10274 Boyer Road

Carson City, Michigan 48811-9746

In/Propria/Persona

17

STATE OF MICHIGAN

IN THE COUNTY OF MONTCALM

JARVAS JAVON BRINKLEY,

Petitioner

VS-

SC NO.: 158565

COA NO.: 337437

WAYNE CC NO.; 16-006408-FC

RANDEE REWERTS, (WARDEN),

Respondent

STATE OF MICHIGAN

)

)SS;

COUNTY OF MONTCALM )

AFFIDAVIT OF:

.TARVAS .TAVON BRINKLEY

NOW COMES Jarvas Javon Brinkley, In/Propria/Persona, being first duly sworn,

deposes and says In support of his “Motion For Leave To Proceed In Forma Pauperis,” the

following statements to wit:

1) That he is the Movant in this cause and action, who desires to pursue this action within

this Honorable court without pre-payment of the costs and fees for filing this action;

2) That he does not have a prison job, and the only monies he has is this gift his mother

monthly witch averages out to fifty dollars (50.00);

3) That he needs this money for his personal hygiene, postage stamps, writing and typing

paper for motion, petitions, and letters to the courts, photo copying, and mailing costs of

his legal papers and documents within the courts, and

4) That he is “unable” to pay the costs and fees associated with filing this motion and legal

papers.

FURTHER, AFFIANT SAYETH NOT.

Respectfully Submitted,

Jar^s Javon Brinkley #324670^

Carson City Correctional Facility

10274 Boyer Road

Carson City, Michigan 48811-9746

In/Propria/Persona