Petition for Writ of Certiorari — In Re James Ernest Frye, Petitioner

Supreme Court briefFeb 3, 2020

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Supreme Court, U.S.

FILED

FEB 0 3 2020

OFFICE OF THE CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

"IN RE JAMES ERNEST FRYE JR."

AKA "JAMES EDWARD FRYE"

PETITIONER

VS.

UNITED STATES OF AMERICA - RESPONDENT

ON PETITION FOR EXTRAORDINARY WRIT SEEKING

MANDAMUS AND INJUNCTIVE RELIEF PURSUANT

TO 28 U.S.C. § 1651(a) ALL WRITS ACT

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

APPEAL NO. 18-60551

JAMES ERNEST FRYE JUNIOR

INMATE REGISTER NO. 98362-024

FCC COLEMAN/USP II

POST OFFICE BOX 1034

COLEMAN, FL 33521-1034

TABLE OF CONTENTS

Page(s)

Table of Contents

i-ii

Questions Presented for Review

iii-iv

Relief Sought

Exceptional Circumstances That Warrant The

Exercise of This Court's Discretionary Powers

How This Writ Will Be In Aid Of The

Court's Appellate Jurisdiction . .

vii

Why Adequate Relief Cannot Be Obtained In Any

Other Form Or From Any Other Court .....

viii

List of Parties in Court Below

Corporate Disclosure Statement

ix-xi

Table of Authorities Cited

Index of Appendices

xii

Jurisdictional Statement

Citation of Lower Court Decisions

Controlling Provisions, Statutes, and Regulations

. .

3-5

Statement of the Case and Governing Facts

6-1 0

Argument

11-29

II.

Extraordinary Relief Is Warrant Pursuant

to 28 U.S.C. § 1651(a)

........

11-17

A. Supporting Laws to the Facts

11-13

B. Necessity of Extraordinary Writ

13-17

United States Court of Appeals for the Fifth

Circuit's Judicial Usurpation of Power and

Abuse of Discretion ................................................

17-29

A. Supporting Laws to the Facts

17-29

Conclusion

Certificate of Compliance

Certificate of Service

Page(s)

Appendix

33-34

Appendix Exhibits

35-128

QUESTIONS PRESENTED FOR REVIEW

Is Mandamus and Injunctive Relief warranted in the instant

request for the issuance of the All Writs Act 28 U.S.C. §

1651(a), due to the lower courts I (U.S. Court of Appeals

for the Fifth Circuit and the U.S. District Court for the

Southern District of Mississippi) continued denial of

Petitioner's retained enumerated constitutional rights?

Does the First Amendment right to petition the Government

for redress of grievances allow Petitioner Frye to petition

the lower Court of Appeals for the Fifth Circuit, for a

plain error review pursuant to Federal Rules of Criminal

Procedure 52(b) for a record of fact of an incorrect calculation of the U.S.S.G • f as decided by this U.S. Supreme

Court inJ7R©sales-Mireles v. U;.S if 585 U.S.

_, ! 1387 S-CCt.

, 201 L.Ed.2d 376, 2018 U.S. LEXIS 3690?

Did the lower courts' order[s] in Petitioner Frye's diligent

filing for a plain error review deprive Frye of his substan

tial Fifth Amendment rights of life and liberty, without due

process of law, as this Court held in Rosales-Mireles v.

U.S

585 U.S.

, 138 S.Ct.

,201 L.Ed.2d 376, 2018 U.S.

LEXIS 3690?

Does Article Six Section Two of the United States Constitution require the lower courts in this case to afford

Petitioner Frye his procedural due process (the minimal

requirements of Notice and a Hearing guaranteed [a plain

iii

error review] by the Due Process Clause of the Fifth Amend

ment, especially if the deprivation of a significant life

or liberty interest may occur)?

Was the lower courts

inconsistent application of this Court's

and their own holdings of the requirement of review as to

plain error a violation of the Ninth Amendment of the United

States Constitution, which states that the enumeration in the

Constitution of certain rights shall not be construed to deny

or disparage others retained by the People?

Relief Sought

Petitioner-Applicant Frye respectfully requests that this

United States Supreme Court compel the United States Court of

Appeals for the Fifth Circuit to perform their discretionary

duties correctly, by applying a plain error review pursuant to

Fed. R. Crim. P. 52(b), to Petitioner-Applicant's record of fact

and the incorrect application of the U.S.S.G. in his sentencing,

in accordance with this Court's announcement in Rosales-Mireles

v. U.S., 585 U.S.

, 138 S.Ct. ___ , 201 L.Ed.2d 376, 2018 U.S.

LEXIS 3690.

Petitioner-Applicant Frye respectfully asserts that injunc

tive relief is,also warranted; to stop the United States Court of

Appeals for the Fifth Circuit from continuing to deny PetitionerApplicant Frye's substantial constitutional rights and provide

the requested plain error review of the unauthorized and uncon

stitutional application of the career criminal status and subse

quent career criminal enhancements.

More specifically, Petitioner-Applicant Frye respectfully

requests that this Court remand this case back to the U.S. Court

of Appeals for the Fifth Circuit, and Order the fifth Circuit to

review Petitioner-Applicant's claim pursuant to Fed.R.Crim.P.

52(b) Plain Error and to stop the manifest injustice and continued

denial of Petitioner-Applicant's substantial constitutional rights.

Exceptional Circumstances that Warrant the Exercise

of This U.S. Supreme Court's Discretionary Powers

Petitioner-Applicant Frye respectfully asserts that the

exceptional circumstance(s) in this case are that the U.S. Court

of Appeals for the Fifth Circuit's deviant and conflicting appli

cation of Fed.R.Crim.P. 52(b) Plain Error; which conflicts with

Congress-enacted legislation, this U.S. Supreme Court's announced

standards, and the Fifth Circuit's recent decisions (see reliedupon cases cited herein).

The Fifth Circuit Court of Appeals in Petitioner-Applicant's

appeal has decided an important federal question (a plain error

review under Fed.R.Crim.P. 52(b)) in a way that conflicts with

relevant recent decisions of this U.S. Supreme Court and their own

court standards.

The Fifth Circuit Court of Appeals in Petitioner-Applicant

Frye's appeal has so far departed from the accepted and usual

course of judicial proceedings, as to the discretionary applica

tion of Fed.R.Crim.P. 52(b) Plain Error that the exercise of this

U.S. Supreme Court's supervisory power is warranted under this

Court's Rule 20.1, 28 U.S.C. § 1651(a) All Writs Act Extraordinary

Writ seeking Mandamus and Injunctive Relief.

Petitioner-Applicant Frye maintains that the Fifth Circuit

Court of Appeals

wantonness, their prejudicial orders, and

vexatious denial of Petitioner-Applicant's appeal meets the

exceptional circumstance requirements.

How the Writ will be in aid of the

Court's appellate jurisdiction

Petitioner-Applicant Frye respectfully asserts that granting

this Extraordinary Writ seeking mandamus and injunctive relief

will end the continuation of a manifest injustice and end the

denial of Petitioner-Applicant's substantial constitutional rights.

Petitioner-Applicant Frye respectfully asserts that the United

States Constitution, Article Three Section Two, vests appellate

jurisdiction., the power of this U.S. Supreme Court to review and

revise a lower court's decision.

For this U.S. Supreme Court to use that power here in

Petitioner-Applicant Frye's case where it is warranted will be

in aid of this Court's appellate jurisdiction.

vii

Why Adequate Relief Cannot Be Obtained

In Any Other Form Or From Any Other Court

Petitioner-Applicant Frye contends that, according to the

legal application of a writ of mandamus and injunctive relief,

relief ordering a lower court (in this case, the Fifth Circuit

Court of Appeals) to perform their Article Six Paragraph Two of

the United States Constitution duties can only be obtained by

this "Superior Court" (the United States Supreme Court).

A petition for a plain error review for the incorrect appli

cation of the United States Sentencing Guidelines is not appro

priate according to the U.S. District Court.

Petitioner-Applicant

contends that, according to this Court's announcement in RosalesMireles, supra, an incorrect application of the U.S.S.G. should

be corrected by a U.S. Court of Appeals.

Therefore, adequate relief cannot be obtained in any other

form or from any other court.

viii

LIST OF PARTIES IN COURT BELOW

James Ernest Frye Junior

aka "James Edward Frye"

Petitioner

United States Court of Appeals for the Fifth Circuit

Respondent

United States District Court for the Southern District of

Mississippi, Eastern Division

Respondent

United States of America

Respondent

Gregory Layne Kennedy

United States Attorney

Respondent

Jerry Lynn Rushing

Assistant United States Attorney

Respondent

CORPORATE DISCLOSURE STATEMENT

Petitioner/Applicant filing brief is not a non-governmental

corporation.

Corporate disclosure statement is inapplicable.

TABLE OF AUTHORITIES CITED

Page(s)

Cases

Bankers Life & Casualty Co. v. Holland,

346 U.S. 379, 383, 99 L.Ed. 106,

74 S.Ct. 145 (1953) ......................

Brown v. Gilmore,

533 U.S. 1301 , 1303 (2001 )

Buck v. Davis,

580 U.S.

, 137 S.Ct. 759, 197 L.Ed.2d (2017) ...

Ex Parte Fahey,

332 U.S. 258, 259, 67 S.Ct. 1558,

91 L.Ed. 2041 (1947)

......................

Gomillion v. Lightfoot,

364 U.S. 399 (1960)

Hoskins v. Berkin Van Lines,

343 F.3d 769, 775-76 (5th Cir. 2003)

Kerr v. United States District Court for

the Northern District of California,

426 U.S. at 403, 96 S.Ct. 219 (1976)

13, 14

Ohio Citizens for Responsible Energy, Inc, v. NRC,

479 U.S. 1312, 1313, 107 S.Ct. 682,

93 L.Ed.2d 969 (1986) . . ..................

Roche v. Evaporated Milk Ass^i,

319 U.S. 21, 26, 63 S.Ct. 938,

87 L.Ed. 1185 (1943)

....

Rosales-Mireles v. United States,

ii, v, 6, 12, 13, 16

2018 BL 214344, U.S • / No. 16-9493 (6-18-2018) 17, 20, 23, 29

Stokes v. Southwest Airlines,

887 F.3d 199 (April 5, 2018)

United States v. Alcantar,

773 F.3d 143, 146 (5th Cir. 2013)

United States v. Boche-Perez,

775 F.3d 327, 334 (5th Cir. 2014), quoting

Tech Automation Serv's Corp. v. LibertySurplus Ins. Corp 1/ 673 F.3d 399, 405

(5th Cir. 2012)

United States v. Brown,

2019 U.S. Appx. LEXIS 15168 (May 22, 2019)

. . 19, 28

X»

Cases (cont'd)

Page(s)

United States v. Campos,

922 F.3d 686 (April 30, 2019)

19, 28

United States v. Douglas,

No. 17-30884 (5th Cir. 2018)(Dec. 12, 2018)

17, 18

United States v. Frescas,

932 F.3d 324 (July 29, 2019)

19, 28

United States v. Kirk,

528 F.2d 1257, 1063 (5th Cir. 1976), as

supplemented, 854 F.3d 284 (5th Cir. 2017)

. 19, 20

United States v. Lovely,

776 Fed. Appx. 262 (Sept. 4, 2019)

. 19, 28

United States v. Perez-Mateo,

926 F.3d 216 (June 10, 2019)

19, 28

United States v. Reado,

776 Fed. Appx. 261 (Sept. 4, 2019)

19, 28

United States v. Sedberry,

768 Fed. Appx. 199 (April 11, 2019)

19, 28

United States v. Tanksley,

848 F.3d 347, 350 (5th Cir.)

19, 20

United States v. Trujillo,

502 F.3d 353, 356 (5th Cir. 2007)

United States v. Waldrip,

2019 U.S. Appx. LEXIS 23789 (Aug. 9, 2019)

19, 28

Will v. United States,

389 U.S. 90, 95, 88 S.Ct. 269,

19 L.Ed.2d 305 (1967) ....

15, 16

Statutes

3, 5

18 U.S.C. § 1607(a)(1)

28 U.S.C. § 1331

28 U.S.C. § 1651

, iv, vi, 4, 22

ii, yii, ,4, 11 , 15

28 U.S.C. § 1651 (a)

xii

Page(s)

United States Constitution

Article VI Paragraph II

ii, 3, 11, 14, 17, 18, 29

Fifst Amendment

ii, 3, 5, 11, 14, 18, 21

Fifth Amendment

3, 11, 14, 15, 18, 21

Ninth Amendment

iii, 4, 29

Rules

Federal Rules of Criminal Procedure 52(b) —

ii, 5-9, 11-16, 18, 22, 27, 29

Plain Error

Federal Rules of Appellate Procedure 2—

Suspension of Rules .......

5, 21, 22, 25

United States Supreme Court Rule 10(a)

v, 1, 4

United States Supreme Court Rule 10(c)

v, 4

United States Supreme Court Rule 20.1

vi, 1, 4, 26

United States Sentencing Guidelines

ii, 6, 12, 15, 17, 18, 20, 22, 26

U.S.S.G

xiii

INDEX OF APPENDICES

Page(s)

Judgment of United States District Court of Appeals

for the Fifth Circuit (dismissing appeal) #19-60185

Document #00515221590 (12-3-2019)

......................

Order of United States District Court of Appeals

for the Fifth Circuit (dismissing appeal) #19-60185

Document #00515221563 (12-3-2019)

...............................

2-3

Order and Opinion of the United States District

Court for the Southern District of Mississippi,

Eastern Division, Criminal No. 4:01-CR-8-CWR, Appeal

No. 19-60185, Document No. 652 (8-1-2019)(denying

IFP)....................................................................................................

4-8

Opinion and Order of the United States District

Court for the Southern District of Mississippi,

Eastern Division, Criminal No. 4:01-CR-8-CWR, Appeal

No. 19-60185, Document No. 645 (6-11-2019)(Frye has

shown good cause/excusable neglect)

........

9-12

Opinion and Order of the United States District

Court for the Southern District of Mississippi,

Eastern Division, Criminal No. 4:01-CR-8-CWR,

Document No. 638 (Motion to Correct Imposition of

Sentence of Imprisonment Under 18 U.S.C. § 3582(b)(2)

denied/permission required to file any additional

pro se motions)(2-12-2019 )....................................................

13-20

Application for Leave to Appeal Pursuant to F.R.

Crim.P. 52(b) Plain Error filed by Applicant/

Petitioner Frye, Appeal No. 19-60185, Docketed

unsigned 3-22-2019, Docketed signed 4-1-2019,

construed by U.S. Court of Appeals for the Fifth

Circuit as a Notice of Appeal

21-38

Judiciary Notice based on Application for Leave to

Appeal Pursuant to F.R. Crim.P. 52(b)—Plain Error

filed by Applicant/Petitioner Frye, received

4-1-2019, no action taken by U.S. Court of Appeals

for the Fifth Circuit .........................................................

39-40

Motion for Leave to Proceed on Appeal In Forma

Pauperis filed by Applicant/Petitioner Frye in the

U.S. District Court for the Southern District of

Mississippi, Eastern Division, 6-18-2019 ..................

U.S. Court of Appeals for the Fifth Circuit, Dis

missal of Appeal (7-3-2019)

.......................... ....

xiv

Page(s)

1.(1) Memorandum from U.S. Court of Appeals for the

Fifth Circuit, Matter was dismissed in error,

7-3-2019, the court has reinstated this appeal,

dated 7-8-2019....................................... ..........................

Motion for Leave to Appeal In Forma Pauperis by

Applicant/Petitioner Frye in the U.S. Court of

Appeals for the Fifth Circuit, ■ idated 8-9-2019

. . 44-49

Brief on Appeal by Appellant filed 8-9-2019,

Docketed 8-21-2019 ................................................

50-72

Notice from U.S. Court of Appeals for the Fifth

Circuit cancelling Appellee's Brief deadline

dated 8-22-2019 .................................................................

Motion for Leave to Supplement by Appellant Frye

filed November 26, 2019. P.S.R. Offense Level

Computations Exhibit Attached . . ...........................

74-78

Notice from U.S. Court of Appeals for the Fifth

Circuit received Motion for Leave to Supplement,

No action taken .... ................................................

Motion to Suspend Any Appellate Rules and Expedite

a Plain Error Decision for Good Cause and To Prevent

a Manifest Injustice Pursuant to F.R.App.P. 2—

Suspension of Rules by Appellant Frye, filed

12-10-2019 ...................................................................................

80-83

Notice from U.S. Court of Appeals for the Fifth

Circuit, Received Judicial Notice and Motion to

Suspend Any Appellate Rules and to Expedite a

Plain Error Decision for Good Cause and to Prevent

a Manifest Injustice, No action taken 12-17-2019 . .

First Amendment to the United States Constitution . .

Fifth Amendment to the United States Constitution . .

Article VI Clause II of the United States Constitution

Seciton 1607(a)(1) of Title 2 of the United States Code .

Section 1651(a) of Title 28 of the United States Code . .

Federal Rules of Criminal Procedure 52(b) ...............................

Federal rules of Appellate Procedure 2

United States Supreme Court Rule 20 ... .

United States Court of Appeals Docket Record

.87

JURISDICTIONAL STATEMENT

This Court has jurisdiction to proceed pursuant to the

authority provided by 28 U.S.C. § 1331 and United States Supreme

Court Rule 10(a) and 20.1.

The Judgment/Decision to be reviewed was entered on December

3, 2019: See Appendix #B, pages 2-3.

Also, the orders to take no

action entered December 3, 2019 and December 16, 2019.

Appendix #N, page 70, and Appendix #P, page 84.

See

CITATIONS OF LOWER COURT DECISIONS

The decisions of the United States Court of Appeals for the

Fifth Circuit and the United States District Court for the Southern

District of Mississippi, Eastern Division, are- detailed in the

Written Orders attached to this petition (see Appendix).

USDC Order Dated 6-11-2019

Defendant has shown good cause

See Appendix #D

USCA Clerk Order Dated 7-3-2019

Dismissing Appeal

See Appendix #I

USCA Clerk Order Dated 7-3-2019

Reinstating Case

See Appendix #1(1)

USDC Order Dated 8-1-2019

Denying IFP

See Appendix #D

USCA Order Dated 12-3-2019

Denying IFP/Dismissing Appeal

See Appendix #B

USCA Document Received Dated 12-3-2019

Supplement/Exhibit Pursuant to Rule 15(d).

No action taken

See Appendix #N

USCA Document Received Dated 12-16-2019

Motion to Suspend Rules Pursuant to FRAP 2.

No action taken

See Appendix #P

CONTROLLING PROVISIONS, STATUTES, AND REGULATIONS

The First Amendment to the United States Constitution provides:

Congress shall make no law respecting an establishment of

religion or prohibiting the free exercise there-of; or

abridging the freedom of speech, or of the press, of the

right of the people to peaceably assemble, and to petition

the government for a redress of grievance.

Section 1607(a)(1) of Title 18 of the United States Code provides:

§ 1607 Rules of Construction

(A) Constitutional Rights. Nothing in this Act shall be

construed to prohibit or interfere with:

(1) The right to petition the government for redress

of grievance;

(2) The right to express a personal opinion; or

(3) The right to association.

Protected by the First Amendment to the U.S. Constitution.

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital, or other

wise infamous crime, unless on a presentment dr indictment

of a grand jury, except in cases arising in the land or

naval forces, or in the militia, when in actual service in

time of war or public danger; nor shall any person be sub

ject for the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use without just com

pensation.

Article Six, Clause II, to the United States Constitution provides:

This Constitution, and the laws of the United States which

shall be made in pursuance thereof; and all treaties made,

or which shall be made, under the authority of the United

States shall be the supreme law of the land; and all' judges

in every state shall be bound thereby, anything in the

Constitution or laws of any state to the contrary notwith

standing.

Procedural Due Process provides:

The minimal requirements of Notice and a Hearing guaranteed

by the Due Process Clause of the Fifth and Fourteenth

Amendments of the United States Constitution, especially

if the deprivation of life, liberty, or property interest

may occur.

The Ninth Amendment to the United States Constitution provides:

That the enumeration in the U.S. Constitution, of certain

rights, shall not be construed to deny or disparage others

retained by the People.

Seciton 1651(a) of Title 28 of the United States Code provides:

§ 1651

Writs

(a) The Supreme Court and all courts established by Act of

Congress may issue all writs necessary or appropriate in

aid of their respective jurisdictions and agreeable to the

usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a

Justice or Judge of a court which has jurisdiction.

Rule 10(A) of the United States Supreme Court provides that

... The following, although neither controlling nor fully

measuring the Court's discretion, indicate the character

of the reasons the Court considers:

(a) A United States Court of Appeals has entered a decision

in conflict with the decision of another United States

Court of Appeals on the same important matter; has decided

an important federal question in a way that conflicts with

a state court of the last resort; or has so far departed

from the accepted and usual course of judicial proceedings,

or sanctioned such a departure by a lower court, as to call

for an exercise of this Court1s supervisory power.

Rule 10(c) of the United States Supreme Court Rules provides that:

... The following, although neither controlling nor fully

measuring the Court's discretion indicate the character of

the reasons the Court considers:

decided an important question of federal law that has not

been, but should be, settled by this Court, or has decided

an important federal question in a way that conflicts with

relevant decisions of this court.

Rule 20.1 of the United States Supreme Court Rules provides:

Rule 20.

Procedure on Petition for an Extraordinary Writ

.1) Issuance by the court of an extraordinary writ authorized

by 28 U.S.C. § 1651(a) is not a matter of right, but of dis

cretion sparingly exercised. To justify the granting of any

such writ, the petition must show that it will be in aid of

the Court's appellate jurisdiction, that exceptional circum4

stances warrant the exercise of this Court's discretionary

powers, and that adequate relief cannot be obtained in any

other form or from any other f court.

Federal Rules of Appellate Procedure 2 provides:

Rule 2 Suspension of Rules

On its own or a party's motion, a Court of Appeals may—to

expedite a decision or for other good cause—suspend any

provision of these rules in a particular case and order

proceedings as it directs except as otherwise provided in

Rule 26(d).

Federal Rules of Criminal Procedure 52(b) provides:

Rule 52 Harmless and Plain Error

(B) Plain Error—A plain error that affects substantial

rights may be considered even though it was not brought to

the court's attention.

Section 1607(a)(1) of Title 18 of the United States Code provides:

§ 1607 Rules of Construction

(a) Constitutional Rights.—Nothing in this Act shall be

construed to prohibit or interfere with:

(1) The right to petition the government for redress

of grievance;

(2) The right to express a personal opinion; or

(3) The right to association.

Protected by the First Amendment.

STATEMENT OF THE CASE AND GOVERNING FACTS

On April 21, 2005, U.S. District Court Judge William H. Bar

bour, in the U.S. District Court for the Southern District of

Mississippi, imposed a sentence on Petitioner/Applicant Frye for

the crime of carjacking, 18 U.S.C. § 2119(3), etc., which took

place on April 3, 1999.

Petitioner/Applicant Frye's sentence is supported by imper

missible factors which incorrectly allowed the assignment of

Career Offender status, resulting in United States Sentencing

Guidelines miscalculations of the U.S.S.G. Sentencing Table in

both the Criminal History category and the Offense Level, which

are clear plain error that affect Petitioner/Applicant Frye's sub

stantial rights.

After the pronouncement of this U.S. Supreme Court holding in

Rosales-Mireles v. U.S,, 2018 BL 214344 U.S., No. 16-9493 (6-182018), Petitioner-Applicant Frye made diligent attempts to receive

a plain error review from the fifth Circuit Court of Appeals.

Frye attempted to receive an appellate plain error review by filing

a notice of appeal on 7-13-2018 based on 18 U.S.C. §§ 3742, 3742

(a)(2), Federal Rules of Criminal Procedure 52(b), and 18 U.S.C.

§§ 3742(F)(1) and (F)(2).

Petitioner/Applicant Frye diligently

pursued this appeal, even attempting to receive a hearing en banc

upon this appeal's dismissal because the provisions of F.R.Crim.P.

52(b) were clearly held by this Court to be sufficient to receive

a Plain Error review, although § 3742 was relied upon in error by

Petitioner/Applieant Frye.

Petitioner/Applicant Frye subsequently filed a motion pursuant

to § 3582 seeking correction of sentence upon Plain Error review,

which was dismissed by the U.S. District Court and that dismissal

order attempted to sanction Petitioner/Applicant Frye by ordering

pre-approval by the court for any subsequent filings.

On 3-22-2019, Petitioner/Applicant Frye filed an Application

for Leave to Appeal Pursuant to F.R.Crim.P. 52(b), which was construed by the court clerk as a Notice of Appeal.

Petitioner/

Applicant Frye was advised by Clerk Rebecca Leto that the appli

cation had been unsigned.

On 4-1-2019, Petitioner/Applicant Frye resubmitted a signed

Application for Leave to Proceed on Appeal Pursuant to F.R.Crim.P.

52(b) with a Judicial Notice which made it unequivocally clear

that the appeal was based on F.R.Crim.P. 52(b) seeking a Plain

Error review, annexed thereto.

(See: Application for Leave to

Proceed on Appeal Pursuant to F.R.Crim.P. 52(b) Plain Error,

Appendix #F, pages 21-38, and #G, pages 39-40.)

A review of the court-docketed record shows that no action

will be taken at this time on the judiciary notice received because

the case is under jurisdictional review.

Docket Entry dated 4-1-

2019 (See: Docket Record, Appendix Y, page 93).

On 4-12-2019, the U.S. Court of Appeals Order issued stating

that Petitioner/Applicant Frye was to provide a showing of Good

Cause/Excusable Neglect, for the untimely Notice of Appeal or the

appeal would be dismissed.

This notice of the deadline to show

cause was received by Petitioner/Applicant Frye with only six (6)

days remaining before the court-imposed deadline.

(See: Docket

Record Notice/Order to Show Cause, Apprendix #Y, page 93.)

Upon completing a hasty response, Petitioner/Applicant Frye

made it clear that the response provided was a showing of good

cause for the Application for Leave to Proceed on Appeal Pursuant

to F.R.Crim.P. 52(b)—Plain Error, Docketed #1 9-60185 (See: Docket

Entry Response to Show Cause Order, Appendix #Y, page 93).

On 6-11-2019, U.S. District Court Order was issued, which

determined that Petitioner/Applicant Frye had shown good cause/

excusable neglect for the failure to file a timely appeal.

(See:

Docket Record District Court Order dated 6-11-2019, Sppendix #Y,

page 93.)

On 7-3-2019, Fifth Circuit U.S. Court of Appeals Deputy Clerk

Rebecca Leto dismissed Petitioner/Applicant Frye's appeal pursuant

to Fifth Circuit Rule 42 for failure to pay fee, even though the

motion to proceed in forma pauperis and all required supporting

financial affidavits were filed and docketed on 6-18-2019.

(See:

Notice dated 7-3-2019, Appendix #1, page 42.)

After confirming docketed motion requesting leave to proceed

in forma pauperis being previously filed and docketed, Deputy

Clerk Rebecca Leto reinstated appeal and issued Notice.

(See:

Notice dated 7-3-2019, Appendix #1(1), page 43.)

On 8-1-2019, U.S. District Court Order issued denying Peti

tioner/Applicant Frye's jLn forma pauperis status, stating that

appeal was not taken in good faith and, therefore, frivolous.

(See: Court Order dated 8-1-2019, Appendix #C, pages 4-8.)

On 8-9-2019, Briefing Notice was issued and Appellant's Brief

due 9-11-2019, Motion to Proceed In Forma Pauperis was submitted

by Appellant on 8-14-2019.

Petitioner/Applicant Frye filed Brief

for Appeal Pursuant to F.R.Crim.P. 52(b) Plain Error on 8-24-2019.

(See: Applicant's Brief on Appeal dated 8-24-2019, Appendix #K,

pages 50-72.)

On 11-26-2019, Petitioner/Applicant Frye, using due diligence,

obtained a copy of the Offense Level computation from the Pre

sentencing Report showing, on the record, that the specific

sentencing enhancement error was based on an unauthorized and

impermissible Career Offender enhancement, which resulted in an

excessive Criminal History enhancement of 3-4 levels, and an

Offense Level increase of 25 levels.

clear result of plain error.

These enhancements are a

This Presentence Report record was

annexed to a Supplement filed on 11-26-2019 pursuant to Fed.R.

Crim.P. 15(d).

(See: Supplement dated 11-26-2019, Appendix #M,

pages 74-78.)

On December 3, 2019, the Fifth Circuit Court of Appeals issued

an order denying in forma pauperis status and dismissing the

appeal, stating "Because Frye has not shown that he will raise a

nonfrivolous issue on appeal, his motion to appeal IFP is denied

and the appeal is dismissed."

(See: USCA Order dated 12-3-2019,

Appendix #B, pages 2-3.)

On December 3, 2019, the Fifth Circuit Court of Appeals stated

in writing that the court had received the Petitioner's Motion to

Supplement and "in light of the court's opinion of this date, we

are taking no action on this motion."

(See: USCA Notice dated

12-3-2019, Appendix #N, page 79.)

On December 10, 2019, instead of filing a Motion for Panel

Rehearing or Hearing En Banc, Petitioner/Applicant Frye filed a

Judicial Notice and Motion to Suspend Any Appellate Rules in Appeal

Proceedings #19-60185 and to Expedite a Plain Error Decision for

Good Cause and to Prevent a Manifest Injustice Pursuant to Rule 2

(Suspension of Rules) of Federal Rules of Appellate Procedure.

This Rule, by definition, would allow Petitioner/Applicant Frye

to finally receive a Plain Error decision.

(See: Motion to Suspend

Rules and Expedite a Plain Error Decision dated 12-10-2019,

Appendix #0, pages 80-83.)

On December 17, 2019, the U.S. Court of Appeals for the Fifth

Circuit sent notice that stated "We have received your Judicial

Notice and Motion to Suspend Any Appellate Rules and Expedite a

Plain Error Decision for Good Cause and to Prevent a Manifest

Injustice Pursuant to Rule 2, in light of the Court's opinion"of

12-3-2019 we are taking no action on the documents."

(See: USCA

Notice dated 12-17-2019, Appendix #P, page 84.)

Petitioner/Applicant Frye's due diligence is expressed in

this instant extraordinary writ which is required in this exigent

circumstance where the lower courts are unwilling to provide relief

of a plain error decision which affects Petitioner/Applicant Frye's

substantial rights, where to provide relief will prevent a manifest

injustice from occurring is indisputably Clear.

This will be

demonstrated specifically in the Argument section of this instant

petition.

ARGUMENT

EXTRAORDINARY RELIEF IS WARRANTED PURSUANT TO 28 U.S.C. §

1651(a).

1 )

Supporting Law to the Facts

Here, Petitioner/Applicant contends that extraordinary relief

is warranted pursuant to 28 U.S.C. § 1651(a) due to the critical

and exigent circumstances caused by the lower court's usurpation

and abuse of discretion of the Plain Error standards announced in

this U.S. Supreme Court and in their court (Fifth Circuit Court of

Appeals).

Petitioner/Applicant Frye contends that Article VI Clause II

of the United States Constitution and Congress-enacted Federal Rule

of Criminal Procedure 52(b)—Plain Error, required the lower courts

to apply the stare decisis doctrine-to petitioner's case.

Article

VI Clause II states that the United States Constitution and the

laws of the United States, which shall be made in pursuant thereof,

and all treaties made, or which shall be made, under the authority

of the United States, shall be the supreme law of the land, and all

judges in every state shall be bound thereby, anything in the Con

stitution or laws of any state to the contrary notwithstanding.

Petitioner asserts that the record of facts support his claim

that the lower courts (Fifth Circuit Court of Appeals and the U.S.

District Court for the Southern District of Mississippi) in Peti

tioner/Applicant Frye's case are contrary and inconsistent to

Article VI Clause II, First Amendment, and Fifth Amendment.

Article VI Clause II states: "The Supreme Law of the land, and all

judges in every state, shall be bound thereby, the Constitution or

laws enacted by Congress."

Here, Petitioner/Applicant Frye asserts

that the record of facts reflects that the lower courts are bound

by well-established law, to provide a plain error review in Peti

tioner/Applicant Frye's case.

Record of Facts

Petitioner/Applicant Frye diligently filed unsuccessfully

requests for a plain error review:

On 4-1-2019, the U.S. Court of Appeals for the Fifth Circuit

received and docketed Petitioner/Applicant Frye's Application for

Leave to Proceed on Appeal Pursuant to F.R.Crim.P. 52(b)—Plain

Error and was assigned Appeal No. 19-60185.

According to the standards of F.R.Crim.P. 52(b), the Court of

Appeals failed to acknowledge the substantial rights of Petitioner/

Applicant-Frye that were clearly being deprived.

Specifically:

The right to petition the Fifth Circuit Court of Appeals for

a Plain Error analysis of the incorrect application of the United

States Sentencing Guidelines based on this U.S. Supreme Court's

decision in Rosales-Mireles v. U.S 1/ 2018 BL 214344, U.S • / No. 169493 (6-18-2018).

In Petitioner/Applicant Frye's case, the incor

rect application of the U.S.S.G. is clearly identical to RosalesMireles (cited above).

The Fifth Circuit Court's failure to apply a Plain Error

review to Petitioner/Appliant Frye's case also deprived Frye of

his Fifth Amendment procedural due process right, which required

the Fifth Circuit Court to afford Frye an entire appellate proceeding, including a Plain Error analysis, due to the clear plain error

of the incorrect application of the U.S.S.G.

The Fifth Circuit Court of Appeals failed to adjudicate

the clear plain error in Applicant/Petitioner Frye's

case, on the merits. Instead, the court dismissed

Frye's entire appellate proceedings by way of improper

and unreasonable use of appellate rules. The Fifth

Circuit Court then stated, "Because Frye has not shown

he will raise a non-frivolous issue on appeal, his Motion

to Appeal In Forma Pauperis is denied and the appeal is

dismissed.

(See: Court Order dated 12-3-2019, Appendix B,

pp. 2-3).

Petitioner/Applicant Frye maintains that based on this U.S.

Supreme Court's holdings in Rosales-Mireles v. U.S., supra, the

Fifth Circuit Court's order is clearly improper and unreasonable.

This U.S. Supreme Court held that "a miscalculation of a Guideline

sentencing range that has been determined to be plain and to affect

a defendant's substantial rights calls for a Court of Appeals to

exercise its discretion under F.R.Crim.P. 52(b) to vacate the sen

tence in the ordinary case."

The above facts are one of the many reasons that Petitioner/

Applicant Frye is seeking this Court's clearly warranted injunctive

relief.

Necessity of extraordinary writ.

Petitioner/Applicant Frye is aware that the extraordinary writ

is one of the most potent weapons in the judicial arsenal, and three

conditions must be satisfied before it may issue.

See Kerr v. U.S.

District Court for the Northern District of California, 96 S.Ct.

219 (1976).

The first condition is "that the party seeking issue of the

writ must have no other adequate means to attain the relief he

desires."

This condition is designed to insure that the writ

will not be used as a substitute for the regular appeal process.

Here, Petitioner/Applicant Frye relies on the facts cited

above to satisfy the first condition, whereas Petitioner/Applicant

Frye requests that this United States Supreme Court enjoins the

enforcement of duly-enacted laws, and Congress-enacted federal

statutes is the extraordinary circumstnaces that is reserved for

the rarest cases, such as this case.

The Petitioner/Applicant is

forced to reiterate the continual usurpation of powers and the

abuse of discretion of the United States Court of Appeals for the

Fifth Circuit panel's decision.

(See: Appendix B, pp. 2-3. United

States Court of Appeals for the Fifth Circuit panel's entire deci

sion, which is a misapplication of Article VI, Clause II, of the

United States Constitution, the First Amendment of the United

States Constitution, the Fifth Amendment of the United States

Constitution, and the intent of Congress-enacted Federal Rules of

Criminal Procedure 52(b), which amounts to a miscarriage of justice

warranting extraordinary relief from this U.S. Supreme Court.

Petitioner/Applicant Frye requests a grant of this United

States Supreme Court's equitable power as a failsafe to be used

in this case, only because of the critical exigent circumstances

manifested by the United States Court of Appeals for the Fifth

Circuit panel's decision in this matter.

The second condition that the petitioner/applicant will satisfy

is "the burden of showing that petitioner's right to issuance of

the writ is clear and indisputable."

See: Kerr, 426 U.S. at 403.

Here, Petitioner/Applicant Frye contends that the rights pro

vided by Article VI, Clause II, of the United States Constitution,

petitioner/applicant's First Amendment right to petition the

government for redress of grievance, and petitioner/applicant's

Fifth Amendment right to procedural due process of law (right to

appeal an incorrect application of the U.S.S.G. pursuant to the

Congress-enacted federal statute F.R.Crim.P. 52(b).

Petitioner/Applicant Frye respectfully asserts that the pro

vided supported facts provide clear example of the United States

Court of Appeals for the Fifth Circuit panel's impediment of the

petitioner/applicant's relied upon United States Constitutional

rights warranting the issuance of the requested extraordinary

relief by this United States Supreme Court.

Petitioner/Appellant Frye will satisfy the third condition by

showing that the writ ifi appropriate under the circumstances.

Petitioner/Applicant Frye is aware that the extraordinary writ

against.a lower court is codified at 28 U.S.C. § 1651(a) [28 U.S.C.

§ 1651(a)]: "The Supreme Court and all courts established by Act

of Congress may issue all writs necessary or appropriate in aid

of their respective jurisdictions and agreeable toithe usages and

principles of law."

This is a "drastic and extraordinary" remedy

"reserved for really extraordinary causes."

Ex Parte Fahey, 332

U.S. 258, 259-60, 91 L.Ed. 2041, 67 S.Ct. 1558 (1947).

"The tra

ditional use of the writ in aid of appellate jurisdiction both at

common law and in the federal courts has been to confine [the lower

court against which extraordinary writ is sought] to a [124 S.Ct.

2587] lawful exercise of its prescribed jurisdiction."

Roche v.

Evaporated Milk Ass'n. 319 U.S. 21, 26, 87 L.Ed. 1185, 63 S.Ct. 938

(1 943 ).

Although courts have not "confined themselves to an arbi

trary and technical definition of jurisdiction," Will v. U.S., 389

U.S. 90, 95, 19 L.Ed.2d 305, 88 S.Ct. 269 (1967), "only exceptional

circumstances amounting to a judicial 'usurpation of power'," ibid.,

or a "clear abuse of discretion," Bankers Life & Casualty Co. v.

Holland, 346 U.S. 379, 383, 98 L.Ed. 106, 74 S.Ct. 145 (1953),

"will justify the invocation of this extraordinary remedy."

Will,

389 U.S. at 95, 19 L.Ed.2d 305, 88 S.Ct. 269.

Here, in this case, it is necessary for this United States

Supreme Court to issue the extraordinary writ to restrain the lower

court (United States Court of Appeals .for the Fifth Circuit) from

seriously affecting the fairness, integrity, and public reputation

of judicial proceedings, by their improper and unreasonable denial

of Petitioner/Applicant Frye's entire appellate proceedings pursuant to F.R.Crim.P. 52(b).

Petitioner/Applicant Frye also relies

on this United States Supreme Court's decision in Rosales-Mireles

v. U.S., 2018 BL 214344, U.S • t No. 16-9493, 6/18/2018.

This United States Supreme Court has repeatedly reversed

judgments for plain error on the basis of inadvertant or uninten

tional errors of the court or the parties below (the United States

Court of Appeals for the Fifth Circuit).

Petitioner/Applicant Frye relies upon and quotes Supreme Court

Justice Neil M. Forsch: "What reasonable citizen wouldn't bear a

rightly diminished view of the judicial process and its integrity,

if courts refused to correct obvious errors of their own devise

that threaten to require individuals to linger longer in federal

prison than the law demands."

Here, the United States Court of Appeals for the Fifth Circuit

panel's refusal to correct obvious errors of their own devise does

not threaten but forces the petitioner/applicant to linger in

federal prison longer than a correct application of the United

States Sentencing Guidelines and the law demands.

II.

United States Court of Appeals for the Fifth Circuit's

Judicial Usurpation of Power and Abuse of Discretion

Supporting Laws to the Facts

In this matter, Petitioner Frye relies on the facts and laws

that are clearly in conflict with the United States Court of

Appeals for the Fifth Circuit panel's erroneous decision, which

supports Petitioner/Applicant Frye's claim of the Fifth Circuit

panel's "usurpation of power" and "abuse of discretion."

The following are the actual legal facts, which demonstrate

the U.S. Court of Appeals for the Fifth Circuit's usurpation of

power and abuse of discretion.

Article VI, Clause II, of the United States Constitution

binds every court in the United States and judge thereof to the

supreme law of the land.

The laws of the land that Petitioner/

Applicant Frye is relying on are:

Rosales-Mireles v. U.S., 2018 BL 214344, U.S., No. 16-9493,

6/18/2018, which is in conflict with the U.S. Court of

Appeals for the Fifth Circuit panel's decision for the

reasons cited above.

Stokes v. Southwest^ Airlines, 887 F.3d 199 (April 5, 2018),

which states in pertinent part: "this circuit abides by the

rule of orderliness, under which a panel of the court cannot

overturn a prior panel decision absent an intervening change

in the law, such as by a statutory amendment or the Supreme

Court . • •

United States v. Douglas, No. 17-30884, 5th Circuit (December

12, 2018).

The United States Court of Appeals for the Fifth

Circuit ordered that Douglas' sentence be vacated and re

manded the case to the district court for resentencing,

finding that the district court's miscalculation of Douglas'

sentencing range constitutes plain error (420-months sentence

was 93 months higher than the top of the guideline range).

Petitioner respectfully asserts that a proper plain error

review of Petitioner/Applicant Frye's sentence would give example

of unauthorized Career Offender status and enhancements and in

correct application of the Sentencing Guidelines, resulting in

plain error that incorrectly and unlawfully sentences the peti

tioner/applicant to a error in sentence length much greater than

that of the Douglas case.

As United States v. Douglas is a very

recent ruling and provided the type of relief that the petitioner/

applicant is seeking, the United States Court of Appeals for the

Fifth Circuit panel's decision in Douglas is in conflict with the

panel's ruling in petitioner/applicant's appellate proceedings.

This U.S. Supreme Court's granting of an extraordinary writ is

necessary to prevent the abuse of discretion and usurpation of power

that denies Petitioner/Applicant Frye access to the relief provided

by Congress-enacted Federal rule of Criminal Procedure 52(b),

Article VI Clause II, petitioner/applicant's First Amendment right

to redress, and Fifth Amendment right to procedural due process.

In the Douglas case, it is clear that the Fifth Circuit Court

of Appeals is capable of providing a plain error review/analysis

and making a ruling consistent with the Congress-enacted Federal

Rule of Criminal Procedure 52(b)—Plain Error.

Although the Fifth Circuit Court of Appeals did not make a

ruling consistent with established precedent and this U.S. Supreme

Court's holdings in Petitioner/Applicant Frye's case, the evidence

of conflicting decisions is made clear in the following recent

cases where the Fifth Circuit Court of Appeals has made rulings

consistent with Federal Rule of Criminal Procedure 52(b).

See:

United States v. Lovely, 776 F.ed Appx. 262 (Sept. 4, 2.019);

United States v. Perez-Mateo, 926 F.3d 216 (June 10, 2019);

United States v. Frescas, 932 F.3d 324 (July 29, 2019);

United States v. Waldrip, 2019 U.S. Appx. LEXIS 23789

August 9, 2019);

United States v. Sedberry, 768 Fed. Appx. 199 (April 11, 2019);

United States v. Campos, 922 F.3d 686 (April 30, 2019);

United States v. Brown, 2019 U.S. Appx. LEXIS 16168 (May 22,

2019);

United States v. Reado, 776 Fed. Appx. 261 (Sept. 4, 2019);

Furthermore, to support Betitioner/Applicant Frye's claim of

usurpation of power and abuse of discretion, the Fifth Circuit

Court of Appeals stated in United States v. Tanksley, 848 F.3d 347,

350 (5th Cir.), emphasis added, quoting United States v. Kirk, 528

F.2d 1057, 1063 (5th Cir. 1976), as supplemented, 854 F.3d 284

(5th Cir. 2017): "When the Supreme Court 'expressly or implicitly'

over-rules one of our precedents, we have the authority and obli

gation to declare and implement this change in the law • • . Such a

change occurs, for example, when the Supreme Court disavows the

mode of analysis on which our precedent relied."

See, e.g., id.,

at 350-52 (finding precedent abrogated where a recent Supreme Court

opinion "instructed courts on how to perform the relevant analysis

in a way that unequivocally resolve[d] the case").

Here, Petitioner/Applicant Frye respectfully asserts that the

U.S. Court of Appeals for the Fifth Circuit panel's decision pre

termits this U.S. Supreme Court's decision in Rosales-Mireles,

which clearly disavows the mode of analysis used by the Fifth Cir

cuit Court of Appeals when reviewing issues of plain error,

The

precedents established in United States v. Tanksley and United

States v. Kirk, supra, give clear example of the U.S. Court of

Appeals for the Fifth Circuit established precedents which instruct

the Court of Appeals on how to perform the relevant change in

analysis.

The Fifth Circuit panel's decision is again in conflict

with their own precedents and impedes the petitioner/applicant's

attempt to receive correction of the plain errors that seriously

affect the fairness, integrity, or public perception of judicial

proceedings.

Petitioner/Applicant Frye asserts that this is not

only an abuse of discretion but evidence of usurpation of power by

the U.S. Court of Appeals for the Fifth Circuit Court of Appeal

panel.

Petitioner respectfully asserts that numerous additional pre

cedents exist, such as United States v. Trujillo, 502 F.3d 353,

356 (5th Cir. 2007), where it states that the U.S. Court of

Appeals for the Fifth Circuit reviews the district court's inter

pretation or application of the Sentencing Guidelines de novo and

its factual findings for clear error; United States v. Boche-Perez,

755 F.3d 327, 334 (5th Cir. 2014), quoting Tech Automation Servs.

Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir.

2012), asserting the Fifth Circuit Court of Appeals abides by the

rules of orderliness, Hoskins v. Berkin Van Lines, 343 F.3d 769,

775-76 (5th Cir. 2003), giving the court instruction when the U.S.

Supreme Court shifts the focus of analysis; United States v.

Alcantar, 733 F.3d 143, 146 (5th Cir. 2013), requiring an inter

vening change in analysis must be unequivocal.

The U.S. Court of Appeals for the Fifth Circuit panel's con

flicting decision is a clear example of not only an abuse of

discretion but also evidence of usurpation of power, which has

denied Petitioner/Applicant Frye his constitutional rights as well

as Supreme Court doctrines and rights afforded by Congress-enacted

federal statutes, amounting to extraordinary circumstances that

require the relief only afforded by this U.S. Supreme Court's

extraordinary writ.

Petitioner/Applicant Frye diligently attempted to invoke his

First and Fifth Amendment rights in appellate proceedings on

December 10, 2019, by filing a "Motion to Suspend Any Appellate

Rules in Appeal Proceeding #19-60185 and to Expedite a Plain Error

Decision for Good Cause and to Prevent a Manifest Injustice Pur

suant to Federal Rules of Appellate Procedure 2—Suspension of

Rules."

The Fifth Circuit Court of Appeals again unjustly decided

to take no action on this motion, resulting in a clear deprivation

of Petitioner/Applicant Frye's procedural due process as to a com

plete appeal proceeding.

The diligent efforts of Petitioner/Applicant Frye to obtain

a plain error review/decision are:

Petitioner/Applicant Frye filed an Application for Leave to

Proceed on Appeal Pursuant to F.R.Crim.P. 52(b) Plain Error

dated 4-1-2019;

Petitioner/Applicant Frye filed a Judicial Notice annexed to

his Application for Leave to Proceed on Appeal Pursuant to

F.R.Crim.P. 52(b) Plain Error dated 4-1-2019;

Petitioner/Applicant filed a Motion to Show Cause why Untimely

Appeal Based on Plain Error Should Be Timely Due to Excusable

Neglect;

Petitioner/Applicant Frye filed a Motion to Proceed In Forma

Pauperis Based on Plain Error in U.S. District Court;

Petitioner/Applicant Frye filed an Appeal of Denial of In

Forma Pauperis Seeking Plain Error Review;

Petitioner/Applicant Frye filed a Brief on Appeal Pursuant to

F.R.Crim.P. 52(b) Plain Error.

Petitioner/Applicant Frye filed a Notice of Appeal of U.S.

District Court's Denial of In Forma Pauperis for Plain Error.

Review on Appeal;

Petitioner/Applicant Frye filed a Supplement to Brief with

Exhibits of Plain Error from Record of P.S.R. annexed thereto;

Petitioner/Applicant Frye filed a Motion to Suspend Rules to

Expedite a Plain Error Decision and Prevent Manifest Injustice

Pursuant to Federal Rules of Appellate Procedure 2—Suspension

of Rules;

Petitioner/Applicant Frye filed the instant Extraordinary Writ

Pursuant to 28 U.S.C. § 1651, after receiving Mandate of Dis

missal of Appeal, where appellate court state that the decision

to dismiss the appeal was based on the record and the briefs

filed.

This showing of Petitioner/Applicant Frye's diligent attempts

to receive a plain error review and decision is in conflict with

the lower court's decisions, in light of the record of facts, and

the briefs filed.

The record clearly demonstrates that Petitioner/

Applicant Frye was given a Career Offender status and enhancements

without having the two prior convictions required by the U.S.S.G.

and Congress, which resulted in plain error that resulted in an

incorrect application of the U.S.S.G. Sentencing Table, specifi22

cally an incorrect Criminal History category as well as an incor

rect Offense Level.

The lower court, in its mandate (see: Appendix #A) also

stated that the decision to dismiss was based on the briefs filed.

This statement is also in conflict with the facts and has deprived

Petitioner/Applicant Frye of his substantial right to procedural

due process.

All of the briefs filed in this appellate proceeding

(#19—60185) have been filed by Petitioner/Applicant Frye and are

provided in this petition's appendix.

Every brief/motion filed by

Petitioner/Applicant Frye has requested a Plain Error review and

decision and has given clear indication of the clear plain error.

The lower court's admission of their decision dismissing the appeal

being based on the record and briefs filed is an assertion that a

Plain Error review was made by the court.

If this is to be taken

as fact, at the very least, the Plain Error described in the briefs

have been made aware to the court.

The decision to dismiss Peti

tioner/Applicant Frye's appeal is in conflict with this Court's

holdings in Rosales-Mireles v. U;S 1/ supra, and numerous Fifth

Circuit holdings where decisions correcting plain errors that

affect appellants' rights have been made or remanded back to the

district court for resentencing.

To dismiss Petitioner/Applicant

Frye's appeal seeking Plain Error review when admitting to review

ing the briefs and record is allowing a plain error that affects

Petitioner/appellant's substantial rights to go uncorrected, which

is what this U.S. Supreme Court considers abuse of discretion.

The Fifth Circuit Court of Appeals denied Petitioner/Applicant

Frye's substantial right to redress the government for grievance

and declined to have the Government/Appellee respond to petitioner/

applicant's brief,

Because the error is plain and clearly esta-

blished on the record, Petitioner/Applicant Frye asserts that any

response by Appellee would have been conceding that the plain

error did exist, as there is no legal position ethically available

to support a defense that allows a plain error causing this great a

loss of liberty to remain uncorrected.

Petitioner/Applicant Frye asserts that the lower courts acted

outside of their role as mediator and assumed the position of

adversary and, in doing so, abused their discretion in numerous

ways:

The lower courts' actions denied Petitioner/Applicant Frye's

procedural due process;

The lower courts' actions denied Petitioner/Applicant Frye's

right to redress the government for the clearly asserted plain

error grievance;

The lower courts' actions denied Petitioner/Applicant Frye

the right to due process by not allowing the Government/Appellee

to respond to the assertion of plain error that affected Frye's

substantial rights;

The lower courts' actions, specifically the decision to take

no action on the motion to supplement which provided the court

with the portion of the record (the presentencing recommendation

which was adopted by the sentencing court, showing the incorrect

and unwarranted application of the Career Offender status and

enhancements), which gave clear indication of where the plain

error is located in the record and how it was incorrectly applied,

deprived Petitioner/Applicant Frye of his substantial rights;

The lower courts' actions/ specifically the decision to take

no action on the "Motion to Suspend All Rules to Expedite a Plain

Error Decision to Prevent a Manifest Injustice from Occurring

Pursuant to Federal Rt ules of Appellate Procedure 2 Suspension of

Rules" deprived Petitioner/Applicant Frye of his substantial rights

and allowed the manifest injustice to remain uncorrected, this

decision was an abuse of discretion;

The lower court abused its discretion by using conflicting

applications of well-established legal precedents after having

evidence of clear plain error which affected Petitioner/Applicant

Frye's substantial rights, but took no action to correct that

clear plain error and allowing a deprivation of substantial rights

and the manifest injustice to remain uncorrected;

The lower courts' decision to take no action to correct the

clear plain error, and consider Petitioner/Applicant Frye's attempt

to redress as frivolous and threaten to place sanctions on Peti

tioner/Applicant Frye for seeking a Plain Error decision, and to

take no action on the Motion to Suspend the Rules to Prevent a

Manifest Injustice from Occurring give example of their lack of

fairness and questions the integrity and public reputation of

these judicial proceedings;

The Fifth Circuit Court of Appeals' actions and decisions do

not just affect Petitioner/Applicant Frye's substantial rights;

they give example of the lower courts' usurpation of power and a

lack of fairness and judicial integrity, which results in a nega

tive public perception of judicial proceedings.

The above-listed facts support Petitioner/Applicant Frye's

assertion that relief in any other form and from any other court

is unavailable and this U.S. Supreme Court's injunctive relief is

warranted.

This is not an appeal of the lower courts' decision or

a Petition for Writ of Certiorari, as Petitioner/Applicant Frye

respectfully asserts that this Court based Petitioner/Applicant

Frye's request for injunctive relief on the irrepairable conse

quences/damages that will occur without the aid of this Court's

power pursuant to U.S. Supreme Court Rule 20.

The lower courts

refusal to make a plain error decision, even

while stating that dismissal of the appeal was based on the record

and briefs filed, is an abuse of discretion.

The briefs filed (see: Appendix) all clearly asserted that a

miscalculation of the U.S.S.G. has occurred that clearly affect

Petitioner/Applicant Frye's substantial rights.

The Supplement

(on which the court took no action) clearly provides as an exhibit

the P.S.R. sentencing calculation showing the flawed Government

recommendation used at sentencing to give Petitioner/Applicant

Frye the unauthorized Career Offender status and unwarranted

enhancement of the Criminal History category and Offense Level.

This confirmation by the Court that the Briefs and Record

were used to determine the dismissal of appeal decision confirms

clearly the Fifth Circuit Court's abuse of discretion, the Fifth

Circuit Court's conflicting use of well-established law, the usurp

ation of the U.S. Supreme Court's power and authority as well as

the usurpation of Congress-enacted U.S.S.G. authority by allowing

Appellee's unauthorized recommendations to Appellant's sentencing

remain uncorrected and a manifest injustice to occur and continue.

The unavailability and unsuitability of any other form of

relief from any other court make this instant Petition for Extra

ordinary Writs Injunctive Relief warranted, required, and necessary

here and now.

Here, Petitioner/Applicant Frye contends that the critical

and exigent circumstances described above demonstrates, according

to the standards announced in Ohio Citizens for Responsible Cities,

Inc, v. NIC, 479 U.S. 1312, and Brown v. Gilmore, 533 U.S. 1301

(2001), that this instant petition warrants this Court's injunctive

relief.

Petitioner/Applicant Frye is aware that this U.S. Supreme

Court's injunctive power is to be used sparingly and used only in

the most critical and exigent circumstances.

To further support

Petitioner/Applicant Frye's request for injunctive relief, Peti

tioner/Applicant Frye provides this U.S. Supreme Court with these

further facts.

In this instant petition, Petitioner/Applicant

Frye asserts that the critical and exigent circumstances, which

warrant this Court's injunctive relief, include that the statute

F.R.Crim.P. 52(b) is clearly constitutional.

However, the lower

court has consistently disregarded the constitutionality of F.R.

Crim.P. 52(b).

Petitioner/Applicant Frye respectfully maintains that the

exigent circumstances in his case are that the Fifth Circuit Court

of Appeals and the U.S. District Court are again incorrectly inter

preting F.R.Crim.P. 52(b) and trying to set an unduly burdensome

standard of plain error on the Petitioner/Applicant.

Discrimination

Discrimination is the effect of a law or established practice

(plain error) that confers privileges on a certain class (federal

inmate) because of race, age, sex, nationality, religion, or

handicap.

Petitioner/Applicant Frye asserts that the discrimination in

the instant case exists because the Fifth Circuit Court has repeat

edly conducted a plain error review and decision in the following

recently decided cases, during the same time period as Petitioner/

Applicant's filings.

See: United States v. Lovely, 776 Fed. Appx.

262 (Sept. 4, 2019); United States v. Perez-Mateo, 926 F.3d 216

(June 10, 2019); United States v. Frescas, 932 F.3d 324 (July 29,

2019); United States v. Waldrip, 2019 U.S. Appx. LEXIS 23789 (Aug.

9, 2019); United States v. Sedberry, 768 Fed. Appx. 199 (April 11,

2019); United States v. Campos, 922 F.3d 686 (April 30, 2019);

United States v. Brown, 2019 U.S. Appx. LEXIS 15168 (May 22, 2019);

and United States v. Reado, 776 Fed. Appx. 261 (Sept. 4, 2019).

These cases adjudicated by the Fifth Circuit Court of Appeals

clearly give example of the Fifth Circuit's discriminatory prac

tices when viewed in respect to the Fifth Circuit Court's decision

as to Petitioner/Applicant Frye which clearly affect Petitioner/

Applicant Frye's substantial rights, the fairness, integrity, and

public reputation of judicial proceedings.

The Fifth Circuit Court of Appeals' order of dismissal based

on a finding that Petitioner/Applicant Frye's appeal was frivolous

is another form of discrimination and abuse of discretion, because

of the Fifth Circuit Court of Appeals' failure to exercise sound

reasonable and legal’ decision making, the Fifth Circuit Court's

adjudication failed to show that a plain error review and decision

was without merit, by stating that Petitioner/Applicant Frye's

request for a plain error review was not serious or had no chance

of winning.

This is contrary to all established holdings by this

U.S. Supreme Court, the Fifth Circuit Court of Appeals, and a

majority of other Circuits.

In Gomillion v. Lightfoot, 364 U.S. 399 (1960), the U.S.

Supreme Court held that "One must be ever aware that the Constitu

tion forbids sophisticated as well as simple modes of discrimina

tion .. .

Petitioner/Applicant maintains that the Fifth Circuit Court

of Appeals has totally and repeatedly, in their discriminatory

decisions, disregarded and violated the Ninth Amendment of the

United States Constitution, as well as Article Six Clause Two of

the United States Constitution.

A review of Rosales-Mireles v.

U.S., supra, and Buck v. Davis, 580 U.S.

, 137 S.Ct. 759,

197 L.Ed.2d 1 (2017), shows that the Fifth Circuit Court of Appeals

has disparaged the retained constitutional rights of Petitioner/

Applicant Frye, and failed to acknowledge that they are bound ft/

anything in the Constitution or laws of the Supreme Law of the

Land.

This United States Supreme Court's injunctive relief is

required because this Court held that "Federal Rule of Criminal

Procedure 52(b) strikes a careful balance between judicial effi

ciency and the redress of injustice."

supra, at 397.

Rosales-Mireles v. U.S

CONCLUSION

For the reasons stated above, Petitioner/Applicant Frye prays

that this Honorable U.S. Supreme Court grant this extraordinary

writ seeking mandamus and injunctive relief, to prevent the United

States Court of Appeals for the Fifth Circuit's continuous usurp

ation of power and abuse of discretion, thereby ending a manifest

injustice.

In this case, Petitioner-Applicant Frye respectfully

requests that the decision of the Fifth Circuit Court of Appeals,

dismissing Petitioner-Applicant Frye's appeal, be vacated,

remanded, and instruction be given for plain error review and

resentencing.

Done this 13th day of February, 2020.

Res

ctfully submitted,

J^mes Ernest Frye, r.

FCC Coleman/USP-2

P.O. Box 1034

Coleman, FL 33521 -1034

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.