Petition for Writ of Certiorari — Larry Bentley, Jr., Petitioner v. United States

Supreme Court briefJan 9, 2020

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IN THE SUPREME COURT OF THE UNITED STATES

J;S

LARRY BENTLEY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

LARRY BENTLEY, PRO SE

Petitioner

FCC Forrest City (Camp)

P.0. Box 8000

Forrest City, AR 72336

QUESTIONS PRESENTED

First, this court has held that the use of a detection device

by law enforcement on a citizens person, places, or things without

a warrant, which reveals the presence of lawful behavior constitutes

a search under the Fourth Amendment.

This case poses the question

of whether the same rule applies to so-called narcotics detection

canines who have been proven

to a scientific certainty, to indicate

only to the presence of the non-contraband odors of methyl benzoate,

acetic acid, pipernol, and benzaldehyde, instead of any actual

controlled substances. And further, if counsel's failure to raise

such a question is one that is debatable amongst jurist of reason,

or deserves encouragement to proceed further.

II.

Second, this Court has held that Fourth Amendment decisions

rendered by the Court while a defendant is on direct appeal do

not apply retroactively to those cases if the decision announces

a new rule of constitutional law, that is, one that is not clearly

dicatated by prior precedent of the Supreme Court,

This case

poses the question of whether the same rule applies to cases

in which this Court clearly states that the rule it is announcing

was dictated and controlled by prior precedent, so that it should

be applied retroactively to cases on direct appeal.

And further,

if counsel's failure to raise such a question is one that is

debatable amongst jurist of reason, or deserves encouragement

to proceed further.

III.

Third, this Court has held that the Constitution does not

permit the State to convict a citizen for exercising a privilege

which the State had clearly informed the citizen was available

to him.

This case poses the question of whether the same rule

applies to seizures under the Fourth Amendment so that when a

citizen complies with the driving instructions issued by the

Secretary of State's Office, their subsequent seizure would be

•fA'"*

unreasonable under the Fourth Amendment., And further, if this

question is debatable amongst jurist of reason.

IV.

Fourth, this Court has held that a defendant is entitled

to conflict free representation by counsel, though qualifying

the right to require a defendant to demonstrate prejudice when

a potential, undisclosed conflict arises.

This case poses the

question of at what point has a defendant produced sufficient

evidence to support a claim that prejudice exist and that an

attorney and the government's failure to disclose potential conflicts has so undermined the right to independent counsel as

to be constitutionally impermissible,

is debatable amongst jurist of reason.

And further, if this question

TABLE OF CONTENTS

Questions Presented

Pg*

i.- ii.

Table of Authorities

iv.

Opinions Below

Jurisdiction

Constitutional Provisions Involved

Statement of the Case

Whether.the fact that so-called narcotics

detection canines indicate to the non-contrand

substances methyl benzoate, acetic acid, piperonal, and

benzaldehyde, mean that canine deployments are searches

under the Fourth Amendment.

Whether the rule announced in Rodriguez

announced a new rule of constitutional law allowing for

application of the good-faith exemption

Whether a citizen can be seized when following

instructions given by State authorities

4. Whether the Sixth Amendment requires counsel

and the government to fully disclose information

related to a potential conflict of interest prior to

obtaining a waiver.

Background

1. District Court Proceeding

2. The Decision of the Court of Appeals

iii

Reasons for Granting Writ

The question of whether the Fourth Amendment

tolerates canine sniffs without probable cause given that

so called narcotics dogs only detect non-contraband odors

is a question of exceptional importance.

II.

Federal Courts are divided over whether or not

this Court's decision in Rodriguez announced a new rule of

constitutional law applicable to cases on direct appeal.'

III.

The question of whether the Fourth Amendment tolerates

seizures of motorist when they comply with the driving

instructions of State authorities is a question of

exceptional importance.

IV.

The Seventh Circuit's standard for establishing

conflicted representation is ambiguous and does not afford

a meaningful examination of counsel's representation. 16

Conclusion

Certificate of Service

Appendix

iv.

Table of Authorities

pg»

Cox v. Lousiana, 379 U.S. 536 (1965)

Davis v. United States, 564 U.S. 229 (2011)

Heien v. North Carolina, 135 S. Ct. 530 (2014)

Hutto v. Davis, 454 U.S. 370 (1982)

Illinois v. Caballes, 543 U.S. 405 (2005)

Kimmelman v. Morrison, 477 U.S. 365 (1986)

3.7.12

Kyllo v. United States, 533 U.S. 27 (2001)

2.12

Miller-El v. Cockrell, 537 U.S. 322 (2003)

Rodriguez v. United States, 191 L.Ed. 2d 492 (2015) 4,7,15

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

4,16

Raley v. Ohio, 360 U.S. 423 (1959)

Teague v. Lane, 489 U.S. 288 (1989)

Whren v. United States, 517 U.S. 806 (1996)

United States v. Bentley, 795 F.3d 630 (7th Cir. 2015) 7

United States v. Britton, 731 F.3d 745 (7th Cir. 2013) 6

United States v. Collazo, 818 F.3d 247 (6th Cir. 2016) 14

United States v. Evans, 736 F.3d 779 (9th Cir. 2015)

United States v. Johnson, 745 F.3d 227 (7th Cir. 2013) 6

United States v. McDuffie, 671 Fed. Appx. 893 (5th Cir.2016)14

United States v. Pettit, 785 F.3d 1374 (10th Cir. 2015) 14

United States v. Rodriguez, 799 F.3d 1222 (8th Cir. 2015) 14

United States v. Spears, 636 Fed. Appx. 893 (5th Cir. 2016) 14

United States v. Williams, 808 F.3d 283 (4th Cir. 2015) 14

Statutes and Code of Federal Regulations

21 U.S.C. §841(a)(1)

28 U.S.C. §1254(a)

28;U:S.C. §2253

28 U.S.C. §2255

3,8

1,8

Constitutional Provisions

U.S. Const. Amend. IV

U.S. Const. Amend V

U.S. Const. Amend. VI

2,10,12,15

2,4,10,12,17

No.

IN THE SUPREME COURT OF THE UNITED STATES

LARRY BENTLEY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Larry Bentley respectfully petitions the Court for a Writ

of Certiorari to review the opinion and judgment entered by the

United States Court of Appeals for the Seventh Circuit onr.August

1 , 2019

with rehearing and suggestion for rehearing en banc

denied on October 11, 2019.

Opinions Below

The decisions fo the United States Court of Appeals affirming

the denial of relief pursuant to 28 U.S.C. §2255 and the denial

of certificate of appealability (COA) is appended to this Petition.

(App. 1A).

The District Court's ruling denying relief and COA

is also contained in:the Appendix. (App. 2A)

Jurisdiction

The judgment of the Court of Appeals for.the Seventh Circuit

was entered on!

August 1

, 2019. (App. 1A).

Rehearing and

rehearing en banc were denied on October 11, 2019.

(App. 3A)

Bentley received notice of the denial on October 18, 2019. Bentley

invokes this Court's jurisdiciton under 28 U.S.C. §1254(1), having

timely filed this petition for

a writ of certiorari within ninety

days of the final judgment of the Court of Appeals.

Constitutional Provisions Involved

Larry Bentley's Petition for a writ of certiorari involves

the Fourth Amendment's right to be free from unreasonable searches

and seizures, the Fifth Amendment's right to Due Process, and

the Sixth Amendment's right to the effective assistance of counsel.

U.S. Const. Amend IV

The right of the people to be secure in their persons

houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by oath or affirmation, and particularly

describing the place to be searched,. and the persons or tnings

to be seized.

U.S. Const. Amend V

No Person shall be .... deprived of life, liberty, or property,

without due process of law....

U.S. Const. Amend VI

In all criminal prosecutions, the accused shall enjoy the

right ... to have the Assistance of Counsel for his defence.

Statement of the Case

In Miller-El v. Cockrell, 537 U.S. 322, 327 (2003), this

Court established the proper standard for making the determination

of if a COA should be granted, holding that the defendant need

only demonstrate "a substantial showing of the denial of a con-

stitutional right."

28 U.S.C. §2253.

In order to meet that

standard a defendant must prove that jurists of reason could

(a) disagree with a District Court's resolution of the defendant's

constitutional claims, or (b) conclude the issues presented are

adequate to deserve encouragement to proceed further,

This Court

has held that when performing this analysis, the appellate courts

must make a threshold inquiry into the merits of the constitutional

claims, and avoid ruling on the merits of the claims.

In this case, the constitutional claim is rooted in the

ineffective assistance of counsel at both the district court

level and on appeal.

In Strickland v. Washington, 466 U.S. 668

(1984), this Court established the all to familiar standard for

addressing claims of ineffective assistance,

A defendant is

required to show both cause and prejudice in order to prove that

counsel's performance was deficient.

In Kimmelman v. Morrison,

477 U.S. 365, 475-77 (1986), this Court extended the right to

effective assistance to all stages of the trial proceedings.

The common theme in this line of jurisprudence is that a

defendant should be afforded the opportunity to have meritorious

constitutional claims fully addressed by the Courts.

The questions presend in this case are:

1)) Whether the fact that so-called narcotics detection canines

indicate to the non-contraband substances methyl benzoate, acetic

acid, piperonal, and benzaldehyde, mean that canine deployments

are searches under the Fourth Amendment as so defined in Kyllo.

And further, if true, if counsel's failure to investigate and

present such an argument was constitutional deficient is a question

that is debatable amongst jurist of reason?;

2) Whether this Court's Fourth Amendment decision in Rodriguez

v. United States, 191 L.Ed. 2d 492 (2015) announced a new rule

of law allowing for application of the good-faith exemption on

direct review, or whether it simply adhered to clearly established

prior precedence of this Court and should therefore apply to

cases on direct review?

And further, if counsel's failure to

raise such an issue on direct appeal constitutes ineffective

assistance is a question that is debatable amongst jurist of

reason?;

Whether this Court's decision in Raley v. Ohio, 360 U.S.

423 (1959), which held that.,a-citizen cannot be prosecuted for

complying with the instructions of State actors authorizing the

arresting behavior, precludes an officer from seizing an individual

for complying with the driving instructions given by the Secretary

of State's Office?

And further, if counsel's failure to raise

such a question constitutes ineffective assistance and is debatable

amongst

jurist of reasonor deserves encouragement to proceed

further?;

Whether the Sixth Amendment requires counsel and the government

to inform a defendant, prior to obtaining a waiver, that counsel,

who along with being under federal indictment, had additional

accusations of making false statements leveled against him by

both the District Court and the Court of Appeals?

BACKGROUND

On October 14, 2019, Officer Veerman ran the license plate

of a Chrysler Pacifica parked at a gas station,

Veerman discovered

that the female registered owner of the Pacifica had an expired

Illinois license.

After running the Pacifica’s plates, Veerman drove to an

adjacent gas station and continued to observed the Pacifica.

Veerman observed the Pacifica exit the gas station heading towards

the entrace to 1-55.

Veerman testifed that he never saw anyone

at, near, enter, or exit the vehicle,

He further testified that

he could not see into the vehicle to observe the driver.

Veerman followed the Pacifica onto 1-55.

As two tailgating

drivers,passed the Pacifica to it's left, it moved slightly right,

touching the fog line.. Gin' both occassions the roadway began

to curve.

Veerman testified that he did not observe any erratic

swerving.

Veerman initiated a traffic stop for "failing to drive

as nearly as practicable" within the lane, and engaged the Defendant

in questioning, agreeing that he did not harbor any suspicion

of impairment.

Veermen testified that he did not have sufficient

reason to detain the Pacifica on the basis of the registered

owner's expired license.

Officer Jones arrived on the scene, and was instructed to

stay with the Defendant while Veerman ran a license and criminal

background check, and filled out a racial profiling form.

called fqr a K-9 unit.

Jones

Prior to the arrival of the canine unit,

the license check and criminal history came back clear.

Officer

Shively responded to the call with Lex, his canine partner.

The canine was deployed on the vehicle

and Officer Shively testified

^that.L‘ex: had "indicated to the presence of drugs,

A physical

search of the vehicle revealed the presence of approximately

15kilograms of cocaine inside of a hidden compartment,

Bentley

was indicted for violation of 21 U.S.C. §841(b)(1)(a).

A suppression

hearing ensued in which counsel argued that the intitial stop

was unlawful, that it was prolonged beyond the time reasonably

required to complete the original purpose of the detention, and

that the canine involved was not reliable.

The motion was denied

and Bentley was convicted after a trial and sentenced to 240

months.

An appeal followed in which counsel argued that the

original detention was unlawful, that the canine was unreliable,

and that the case was not proven beyond a reasonable doubt.

Over Bentley's objection, counsel abandoned Bentley's prolongation

argument. While the appeal was pending, counsel was indicted

in the Northern District of Illinois.

The appeal was stayed

in order to allow Bentley the opportunity to waive or retain new

counsel.

Unbeknownst to Bentley, at that time counsel had recently

been held in contempt and ordered jailed by the district court

in the Southern; District o(f Illinois for lying to the court.

see United States v. Britton, 731 F.3d 745 (7th Cir. 2013).

Also, counsel had been fined and publicly rebuked by the Seventh

Circuit Court of Appeals for lying to that court in United States

v. Johnson, 745 F.3d 227 (7th Cir. 2014).

After procurring (

an agreement with counsel that he would amend the appeal filing

to include the abandoned prolongation argument, but without being

informed of the full extent of counsel's legal troubles, Bentley

retained Brindley.

Brindley did not amend the appeal as agreed,

but after oral arguments this Court issued an opinion in Rodriguez

v. United States, 191 L.Ed. 2d 492 (2015), holding again that

prolongation of a traffic stop beyond the purpose of the initial

detention was unconstitutional.

Brindley then filed a rule 28(j)

motion, noticing the appeals court of the holding, but;did not

seek leave to amend.

The appeal was denied.

see United States

v. Bentley, 795 F.3d 630 (7th Cir. 2015), rehearing and rehearing

en banc denied, certiorari denied.

A timely motion pursuant

to 28 U.S.C. §2255 was then filed in thh district court.

District Court proceedings

j. In his motion /for relief, Petitioner argued multiple grounds

warranting redress, but only four of which are relevant to this

petition.

In the motion, Bentley, argued that his counsel was

ineffective for 1) failing to investigate and argue that so-called

narcotics detection canines indicate to the non-contraband substances

methyl benzoate, acetic acid, piperonal and benzaldehyde, and

that accordingly, they are searching under Kyllo v. United States,

533 U.S. 27 (2001).; 2) failing to argue on appeal that the stop

was prolonged; 3) failing to argue that the initial seizure was

unlawful because Bentley was seized for following the driving

instructions issued by the Stat6; and 4) failing, along with

the government, to disclose the full extent of his legal issues

prior to Bentley's conflict waiver,

The district court granted

an evidentiary hearing on the single issue of conflicted representation.

The district court ultimately denied the motion and denied certific

ate of appealability pursuant to 28 U.S.C. §2253.

(see App.2A)

Bentley timely appealed.

The Decision of The Court of Appeals

On January 4, 2019, Bentley filed a motion pursuant to 28.

U.S.C. §2253 in the Seventh Circuit Court of Appeals seeking

a certificate of apppealability to address the district court's

procedural rulings and it's denial of the §2255 motion. On

August

, 2019, in a one page order, a two judge panel denied

COA, holding that Petitioner had not demonstrated the denial

of a constitutional right, (see App.lA).

Bentley filed a suggestion

for rehearing by the panel and petition for rehearing en banc.

These request were also denied by the Court.

(see App.3A).

Reasons for Granting the Writ

The importance of the Fourth Amendment questions presented

cannot be overstated.

In both State and Federal Courts the rights

of everyday citizens to be free from unreasonable' searches and

seizures are being tested by law enforcement on a daily, ongoing

basis.

During the proceedings following these encounters, both

the defendants and the government start the analysis of the propriety

of the seizures and searches with this Court's decisions on what

is permissible within the confines of lawful traffic stop,

However

they often differ on which cases are applicable to a particular

set of circumstances and the underlying facts supporting those

decisions. The singular shared is that all parties involved share

a belief that the

facts underlying their positions must be accurate

in order to insure the integrity of the legal system.

Petitioner's

first question turns on the issue of insuring the factual under

pinnings of a long running legal precedent, that being that if

so-called narcotics detection canines indicate to the odor of

non-contraband substances, are they searching under the Fourth

Amendment?

This Court should resolve the question of if these

deployments constitute searches under the Fourth Amendment requiring

the establishment of probable cause prior to the deployments.

As to Petitioner's second question

the lower courts are

divided on the question of if this Court's most recent Fourth

Amendment decision on prolongation reiterated prior precedent

or if it announced a new rule of law.

Some court's consider

the plain language of the decision as dispositive on the question

of if the rule announced was new or not. Others, like the Seventh

Circuit, find that even when faced with a contrary ruling from

this Court, it's own circuit rulings take precendent over this

Court's opinions.

This Court should resolve the conflict surround

ing when it's opinions adhering to prior precedent, or when they

announce a new rule of constitutional law.

Specifically, it

should resolve the conflict related to it's recent prolongation

decision.

Third, because of the broad discretion law enforcement enjoys

in performing seizures, the rights of citizens to avoid those

seizure by complying with State driving instructions is critical

to the most basic of liberties, the right to be left alone to

travel from one place to another.

Because this Court's prior

opinions have held that it is unconstitutional to prosecute a

citizen for compliance with State authority instructions, and

the Seventh Circuit has rendered an opinion inconsistent with

that ..dgnelpsion,; the Court should grant•certiorari to maintain the

judicial hiearchy and uniformity in the Court's.

Fourth, because of the ambiguity which exist in the law

when determining when a defendant has been prejudiced by a poten

tial conflict with counsel, creating a potentially insurmountable

hurdle for a defendant, this Court should grant certiorari to

insure the Sixth Amendment's protection of the right to conflict

free representation is clearly defined.

The first three questions presented are significant, as

these stops and searches play a central role in many criminal

prosecutions, and-more importantly, in the day-to-day lives of

the traveling public.

If not properly contained, full blown

searches on less than probable cause, prolonged detentions, and

seizures for State authorized driving behaviors, will amount

to-unfettered intrusions on personal liberties that could swallow

the protections of the Fourth Amendment entirely,

this result, this

To prevent

Court should grant Certiorari.

The question of whether the Fourth Amendment tolerates canine

sniffs without probable cause given that so-called narcotics

dogs only detect non-contraband odors is a question of exceptional

importance.

The issue presented in this petition is important to both

:•

law enforcement officers and the citizens they detain.

Though

the Seventh Circuit chose to accept the conclusion that these

canines indicate only to controlled substances and that Illinois

v. Caballes, 543 U.S. 405 (2005), controls their deployments,

that position is inconsistent with the undisputed conclusions

of the scientific community that these canines actual indicate

to non-contraband substances,

truth seeking function,

It also undermines the judiciary's

And it is inconsistent with Caballes

which held that a well-trained dog would only indicate to contra

band, and conversely, If it were to reveal lawful behavior, it

is searching under the Fourth Amendment.

There is overwhelming

evidence supporting the conclusion that these canines indicate

to lawfulLbehavior, andthat

the government was aware of this.

fact prior to arguing before this Court in Caballes that these

canines only indicate to contraband.

For example, there was

a United States Patent issued in 1981 which demonstrated that

these canines indicate to non-contraband methyl benzoate.

App. 4A).

Further

not use actual drugs

(see

the United States Customs Department does

to train it's dogs

but instead uses only

non-contraband methyl benzoate, acetic acid, piperonal, and benzaldehyde to train these canines to detect drugs.

(see App* 5A)

This is a fact that was known to the government prior to arguments in Caballes as detailed in the aforementioned CDC report

dated 2004.

And Petitioner made his counsel aware of this fact

prior to the suppression hearing.

Finally, the National Institute

of Health has also stated that methyl benzoate is lawful to possess.

(See App. 6A) (see also 21 C.F.R. §§'s 172.515, 424.21, and 182.60).

If Petitioner's allegations are true, then those canines are

the equivalent of the thermal imaging device used in Kyllo v.

United States

533 U.S. 27 (2001), and they are searching under

the Fourth Amendment.

During oral arguments in Caballes, the

Government conceded when questioned by Justice Stevens, that

the results would be different if these dogs indicated to both

lawful and unlawful activity.

In fact, it was this distinction

which formed the basis of the holding in Caballes.

Given this Court's conclusions in Caballes, the importance

of the right of citizens to be free from unreasonable searches

hangs in the balance.

The protections afforded by the Fourth

Amendment will be severly. undermined if law enforcement is allowed

to continue to conduct searches without probable casue.

The

Seventh ..Circuit has diminished this Court's ruling in MillerEl by failing to decide if this quesitn was one that deserved

encouragement to proceed further,

Under the Seventh Circuit's

interpretation, a lawyer can fail to investigate information

essential to a clients case and the truth seeking function of

the court's, and never have that failure subjected to meaningful

review.

These positions so undermine the right to a fundamentally

fair and accurate process, that

no process at all.

they leave the impression of

The issue presented in Bentley's case is

significant because of the potential ramifications in the areas

of Fourth and Sixth Amendment jurisprudence.

While the truth

seeking function is being undermined in this traffic stop case,

■:

•i

the mannner in which the Seventh Circuit has limited review is

applicable to other contexts as well.

If the government is allowed

to knowingly present false evidence to the courts, with defendants

having no venue to test the legality of the government's actions,

the system of checks and balances )<: which imparts on the judiciary

the obligation to protect the constitutional rights of the citizens

against encroachment by the State, will be permanently eroded.

To stem any further erosion.of the Fourth and Sixth Amendment's

safeguards, this Court should grant certiorari.

II. Federal Courts are divided over whether or not this Court's

decision in Rodriguez announced a new rule of constitutional

law applicable to cases on direct appeal.

The Court of Appeals' decision in Benltey accepted the premise

that this Court's holding in Rodriguez announced a new rule of

constitutional law and is therefore inapplicable to cases on

direct review represents a departure from this Court's jurisprudence.

This Court

has held that it announces a new rule of law when

the decision is not dictated by prior precedent.

v- Lane, 489 U.S. 288, 301 (1989).

see Teague

Contrary to this conclusion,

this Court made clear that it was not announcing a new rule in

Rodriguez, but was following the holding of Caballes.

The Seventh

Circuit has interpretted prior precedent to mean the rules of

law of the circuit in which the issue is raised as opposed to

those of this Court, even wehn this Court has opined on an issue

in dispute.

In doing so, the Seventh Circuit has extended the

reach of the good-faith exemption.

Other federal courts, when confronted with the question of if

Rodriquez announced a new rule of law, have held that it is clear

from the text of the opinion thaet the decision did not announce

a new rule of law, but adhered to existing law.

(see United

States v. Evans, 736 F.3d 779 (9th Cir. 2015); United States

v. McDuffie, 671 Fed. Appx. 490 (9th Cir. 2016); United States

v. Williams, 808 F.3d 238 (4th Cir. 2015); United States v. Spears,

636 Fed. Appx. 893 (5th Cir. 2016); United States v. Collazo,

818 F.3d 247 (6th Cir. 2016); United States v. Pettit, 785 F.3d

1374 (10th Cir. 2015); United States v. Waller, 105 F.Supp. 3d

683 (W.D. Texas, 2015); cf. United States v. Rodriguez, 799 F.3d

1222 (8th Cir. 2015)).

The Seventh Circuit has engaged in an expansive and disjointed

development of Fourth Amendment law which has resulted in the

continued application of the de minis approach, as well as the

principle that traffic stops are not like Terry stops because

they are based on probable.-cause and are subject to unlimited

detention.

Indeed, the body of law being developed in;the Seventh

Circuit in the area of traffic stops defers from case to case

based on the panel of judges examining the question,

Because

of the uncertainty in the law within the Seventh Circuit, neither

the^officers, nor citizens know what conduct comports with the

law.

This Court has long ago established that because our judic

iary is a hierarchial one, judges of the lower courts must carry

out the decisions of the Supreme Court, even when they disagree

with them.

Hutto v. Davis, 454 U.S. 370, 375 (1982).

Circuit has not conformed to this mandate.

The Seventh

Instead it has misapplied

this Court's decision in Davis v. United States, 564 U.S. 229

(2011), by applying the good-faith exemption to cases pending

when Rodriguez was decided, arguing that Rodriguez announced

a new rule of law.

Contrarily, Rodriguez merely reiterates the

clearly established law announced in Caballes.

The Court should grant review in order to insure uniformity

in the application of Fourth Amendment law throughout the country.

Further, the Court should take the opportunity to address the

hierarchical relationship between it and the Seventh Circuit.

Finally, the Court should resolve the conflict between the circuits

on when a case announces a new rule of law.

III.

The question of whether the Fourth Amendment tolerates

seizures of motorist when they comply with the driving instructions

of State authorities is a question of exceptional importance.

In Whren v. United States, 517 U.S. 806 (1996), this Court

granted broad discretion to officers in their seizing decisions,

holding that as long as the officer had observed a traffic.law

violation, then the seizure conforms with the Fourth Amendment.

This Court later extended Whren to authorize seizures based on

mistakes of both fact and law.

S.Ct. 530, 540 (2014).

Heien v. North Carolina, 135

In this case the Seventh Circuit has

extended Whren and Heien to allow traffic stops of citizens when

they drive exactly in the manner instructed by the State.

This

extension of police seizing power appears to conflict with this

Court's decision in Raley v. Ohio, 360 U.S. 423, 436-37 (1959),

and Cox v. Louisana, 379 U.S. 536, 571-73 (1965), which held

it impermissible

for the State to convict a citizen for exercising

a privilege which the State had clearly informed was available

to the citizen.

This

issue is significant because of the

potential of ensnaring citizens through a form of entrapment.

If the government is allowed to criminalize behavior it has author

ized, then the government will have gained unfettered power

to seize

a result that would effectively end all Fourth Amendment

protections.

To avoid such a degradation of the Fourth Amendment's

safeguards, this Court should grant certiorari.

IV.

The Seventh Circuit's standard for establishing conflicted

representation is ambigous and does not affor a meaningful examr i.nation of counsel's representation.

The Sixth Amendment gives citizens the right to conflict

free representation.

This Court has recognized two possibilities

of conflicted representation, potential and actual conflict.

In either case the defendant is required to demonstrate that

he was prejudiced by the conflicted representation.

The problem

is that there is no Standard for determining when a defendant

has proven prejudice.

Ultimately, the question is how far must

a defendant go in order to demonstrate that the right to conflict

free counsel has been denied?

The unanswered question is "When

does an attorney and the government have an obligation to disclose

information pertaining to a conflict between the attorney and

the client?"

Currently, the lack of a coherent standard leaves

the government and attorneys free to hide potential conflicts

which could or would alter a defendant's belief that the attorney

will effectively represent his interest in court from the defendants.

This lack of transparency leaves a defendant scrambling to discover

the subjective mindset of the attorney in failing to take a specific

action on behalf of the client in order to prove that the conflict

had a prejudicial effect.

Such a burden can have a deleterious

effect on the right to conflict-free counsel.

Counsel can, as

here, fail to disclose his legal issues in two different courts,

(one of which he would be litigating on behalf of the defendant),

and then have a .conflict waiver enforced by the courts,

Defendants

are left to not only prove prejudice, but alos prove that counsel's

failure to disclose was knowing and willful.

Because the burden

to establish prejudice is so onerous, in these circumstances .

the Court should grant certiorari to decide if an assumption

of prejudice is appropriate in order to maintain the protections

offered by the Sixth Amendment.

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.