Petition for Writ of Certiorari — Ziyad Yaghi, Petitioner v. United States

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No.

Supreme Court, U.S.

FILED

SEP 2 2 2£23

IN THE

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

ZIYAD YAGHI,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Mr. Ziyad Yaghi

Pro se Petitioner

Reg;, No. 51771-056

F.C.I. Ray Brook

Post Office Box 900

Ray Brook, New York 12977

TABLE OF CONTENTS

Page

Opinions Below

1

Jurisdiction

1

Constitutional and Statutory

Provisions Involved

2

Statement of the Case

3

Reasons for Granting the Writ

5

Conclusion

INDEX TO APPENDICES

Appendix A

la

Appendix B

lb

Appendix C

1c

Appendix D

Id

i

TABLE OF AUTHORITIES CITED

Page

Cases

1. Barefoot v. Estelle,

463 U.S. 880 (1983)

8

2, Buck v. Davis,

580 U.S.

(2017)

8

3• Erickson v. Pardus,

551 U.S. 89 r2007l

6

4. Gideon v. Wainwright,

372 U.S. 335 (1953)

5

5. Haines v. Kerner,

404 U.S. 519 fl972)

6

6. Johnson.v._Zerbst,

304 U.S. 458"Tl938)

5

7 « Lafler v. Cooper,

566 U.S. 156(2012)

5

8. Lambright v. Stewart,

220 F.3d. 1022 (9th Cir. 2000)

8

9. Lawrence v. Chater,

516~U.S. 163 (1996)

5

10. Mathews v. Eldridge,

424 U.S. 319 (1976)

8

11. Miller-El v._Cockrell,

537 U.S. 322 (2_003)

8

12. Missouri v. Frye,

566 U.S. 131 (2012)

5

13. Morris v. Woodard,

279 F.3d. 775 (9th Cir. 2000)

8

14. Ohio Adult Parole Authority v. Woodard,

573 U.S. 272 ”("1998)

”

9

15. Padilla v. Kentucky,

599 U.S. 356 (2010)

6

16. -Ra in e s.v v~ U ni t e d^' S' tapes ,

ii

TABLE OF AUTHORITIES (Con't)

Page

Case

16. Raines v._Unit_ed States ,

423 F.2d. 526 (4th Cir. 1970)

7

17. Slack v. McDaniel,

529 U.S. 472 (2000)

8

18. Tennard v. Dretke

524”u7sr 274 (2005)

8

19. United States v. Cronic,

466 U.S. 648T1984)

8

20. United States v. Magini,

¥73 F . 2d.. 261 (~4th Cir. 1992)

6

21. United States v. Mitchell,

484 Fed. Appx. 744 (4th Cir. 2012)

7

22. United States v. Mitchell,

54f Fed. Appx. 286 (4th Cir. 2013)

7

23. United States v. Robinson,

238 Fed. Appx. 954 (4th Cir. 2007)

6

24. United States v. Woodard,

748 Fed. Appx. 498 (4th Cir. 2018)

7

iii

QUESTION(S) PRESENTED

Whether this Court should GVR the lower court's

decision denying a Certificate of Appehlability

m this case- because its denial violates principies of Due Process of law inherent in Petitioner's

Sixth Amendment right to the effective Assistance

of counsel related to the plea process

IN THE

SUPREME COURT OF THE

UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue

to review the judgment below.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fourth

Circuit appears at Appendix A to this petition and is unpublished.

The opinion of the United States District Court for the Eastern

District of North Carolina appears at Appendix B and is unpublished.

JURISIDICTION

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

case was

A timely petition for rehearing was denied by the United States

Court of Appeals for the Fourth Circuit on April 28, 2020, and a

copy of the order denying rehearing appears at Appendix C.

The jurisdiction of this Court is invoked under 28 U.S.C. Sec­

tion 1254(1).

- 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States ^Constitution, Amendment V

Due Process

United States Constitution, Amendment VI - Right to Counsel

Title 28 U.S.C. §2253(c)

Title 28 U.S.C. §2255

- 2

STATEMENT OF THE CASE

On October 2,

2015, petitioner filed a pro se motion under 28

U.S.C. §2255 challenging his conviction and sentence in the United

States District Court for the Eastern District of North Carolina.

Several days later, an attorney filed a notice of appearance in the

case, and subsequently filed a memorandum supporting collateral re­

lief by leave of the court.

The government filed its opposition, in the form of a motion to

dismiss, or in the alternate, for summary judgment, along with an

appendix. Included with its opposition was a declaration from this

petitioner's trial attorney. Contained in trial counsel's declara­

tion was a misstatement concerning the plea offer presented by the

government. Consequently, due to a serious disagreement with his

habeas attorney, petitioner moved to discharge counsel and to pro­

ceed pro se.

The magistrate subsequently issued a report and recommendation

(R&R) to which pe"titroner timely objected to filing therewith his

very own declaration countering that of his trial counsel's. In the

declaration filed by petitioner, he specifically contradicted that

of his trial counsel averring thatcontent of the conversation be­

tween h'im and petitioner concerning the government's plea offer did

not include.! requiring him . to enter a plea with the government

without also cooperating.

The district court granted the government's motion for summary

judgment and denied petitioner's §2255 motion without resolving

the conflicting facts in the competing declarations of petitioner

and his counsel. (See Appendix B). The district court similarly

3

found that a certificate of appealability (COA) was not warranted

under this Court's Miller-El standard

and declined to issue a COA

in petitioner's case, (id..).. Petitioner filed a timely notice of

appeal in the district court, and acquired the assistance of coun­

sel in seeking a COA in the Fourth Circuit court of appeals.

In the informal brief filed by counsel, petitioner sought a COA

for the specific issue pertaining to the ineffective assistance of

his trial counsel, for failing to accurately communicate the terms

of the government's plea offe£~, along with two other ineffective

issues.

Acknowledging the need for a COA, a panel of the Fourth Circuit

issued a per curiam opinion that blanketly denied petitioner a COA

by a simple recitation of the general standard necessary for ob­

taining a COA. The appellate panel simply stated that after having

conducting an independent review of the record, it concluding that

petitioner had not made the requisite showing. (See Appendix A).

Petitioner moved for rehearing with suggestion for rehearing en

banc,-based on the panel decisions usurpation of his due process

rights to an opportunity to be heard by blanketly denying him a

COA. Rehearing was denied on April'28, 2019^" by the panel of appel­

late judges assigned to hear the case; (see Appendix C), and now

petitioner seeks certiorari review by this Court.

1

This Court issued an Order on March 19, 2020 extending the time

in which litigants for 90 days up to 150 days due to the COVID-19

pandemic; see Supreme Court Order Lexis 1643, making petitioner's'

petition for a writ of certiorari in this case timely if filed on

or before September 23, 2020. (See Appendix D).

4

REASON FOR GRANTING PETITION

This Court should GVR the lower court's decision

denying a Certificate of Appealability in this

case because its denial violates principles of

the Due Process of law inherent in Petitioner's

Sixth Amendment right to the Effective Assistance

of counsel related to the plea process.

It is long recognized that this Court has the power to grant,

vacate and remand (GVR) to a lower court its decision essentially

when it may be shown that such decision may have been made without

consideration of law established by this Court'. See e.g., Lawrence

v. Chater, 516 U.S. 163, 170 (1996)(reasoning that a GVR order may

issue when recent events cast substantial doubt on the correctness

of the lower court's summary disposition).

A criminal defendant has long enjoyed the right to the effec­

tive assistance of counsel under the Sixth Amendment. Gideon v.

Wainwright, 372 U.S. 335, 343 (1963)(quoting Johnson v. Zerbst,

304 U.S. 458 (1938)(stating the Sixth Amendment "stands as a con­

stant admonition that if the constitutional safeguards it provides

be lost, justice will not be done")).

This Court has extended the Sixth Amendment right to the plea

bargaining process, when a defendant does not accept a plea and

proceeds to trial. See Lafler v. Cooper, 566 U.S. 156, 163 (2012);

Missouri v. Frye

566 U.S. 131, 145 (2012). In this case, petition­

er did iust that i.e., rejected a favorable plea offer due to his

counsel's misrepresentation of the contours of the plea offered by

the government. Consequently, the actual plea offer which did not

include petitioner being required to cooperate as counsel had in­

formed petitioner he would have to do, was not revealed until his

5

attorney submitted a declaration for the government that it provid2

ed along with its answer to his §2255 motion.

Based on this revelation, petitioner filed a declaration of his

own along with his objection to the magistrate judge's report and

recommendation (R&R). However, the lower court simply did not ad­

dress the conflicting declarations of petitioer and his counsel.

Significantly, an issue similar to petitioner's was previously ad­

dressed by Fourth Circuit court of appeals. See United States v.

Robinson, 238 Fed. Appx. 954 (4th Cir. 2007).

In Robinson, the defendant presented a claim that his attorney

"failed to communicate a plea offer" which included an advantegous

factual proposal, that was not "explicitly raised...for the first

time"

until defendant's response to counsel's addfidavit filed in

"his objection to the magistrate judge's recommendation." Robinson,

at 954. The Robinson panel granted him a COA on this very issue,

then later vacated and remanded the issue to the district court

for further proceedings. Id.

Following long established Fourth Circuit law, the panel recog­

nized that "when a movant presents a colorable Sixth Amendment

claim showing disputed facts involving inconsistencies beyond the

record a hearing is mandated. _Id. (citing United States v. Magini,

2

Because petitioner was represented by counsel, he was prevent­

ed from initially challenging this revelative declaration by trial

counsel, until he discharged habeas counsel and proceeded in a pro

se capacity. Importantly, without the assistance of counsel, peti­

tioner was entitled to have his pleadings liberally construed. See

Haines v. Kerner, 404 U.S. 519 (1972); Erickson v. Pardus, 551 U.S.

¥9 (2009).

6

973 F.2d. 261 (4th Cir. 1992); Raines v. United States, 423 F.2d.

526, 530 (4th Cir. 1970)("There will remain...a category of peti­

tions, usually involving credibility, that will require an eviden­

tiary hearing in open court")).

Moreover

this principle has been recognized by the Fourth Cir-

cuit in other unpublished cases following this Court's decision in

Lafler v._Cooper

supra and Missouri v. Frye. See United States v.

Mitchell, 541 Fed. Appx. 286 (4th Cir. 2013) and United States v.

Woodard, 748 Fed. Appx. 498 (4th Cir. 2018).

In Mitchell, the Fourth Circuit granted a COA and remanded the

case for an evidentiary hearing to determine if counsel "fully con­

veyed to defendant] his options to plead guilty. See United States

v. Mitchell, 484 Fed. Appx. 744 (4th Cir. 2012). Following remand,

"the district court found that counsel had suffi ciently informed

{defendant] regarding his plea options, specifically an option to

plead guilty without cooperation with the Government." Mitchell,

/

541 Fed. Appx. 286. On a subsequent appeal, the Fourth Circuit af­

firmed the district court decision following an evidentiary hear­

ing, in which the defendant was given the opportunity to prove his

claim. Id.

In Woodard, the Fourth Circuit again granted a COA, vacating

and remanding the case on similarly consistent grounds concerning

an ineffective assistance claim based on plea negotiations, and

whether an evidentiary hearing was required. . See Woodard, supra.

Certainly, the contours of petitioner's ineffective assistance of

counsel claim in the lower courts, and the contrary ruling in the

Fourth Circuit implicates serious due process concerns.

This Court has long established that the due process concerns

7

contains the fundamental requriements of notice and the opportunity

to be heard.See Mathews v. Eldridge, 424 U.S. 319 (1976). Under

the circumstances of this case

it cannot be confidently said that

petitioner was afforded the due process of law in this case at vary­

ing stages of his criminal prosecution and collateral review process.

Especially when, in the lower rung of the ladder of the postconvic­

tion process, the law as established by this Court and followed by

lower courts explicitly support— in the least his obtaining a COA

under the modest Barefoot standard. See Morris v. Woodford, 279

F.3d. 775, 781 (9th Cir. 2000)(any claims that satisfy th[e] modest

standard must receive a COA)(quoting Lambright v. Stewart, 220 F.3d.

1022, 1027 (9th Cir. 2000)).

This Court has long assured and repeatedly admonished lower ap­

pellate courts for sidestepping or trampling upon the COA process

necessary to appeal the denial of habeas related motions under the

exceedingly low standard. See Barefoot v. Estelle, 463 U.S. 880,

n. 4 (1983)(setting the standard necessary to obtain a CPC and as­

suring that no demonstration of prevailing needed to appeal); see

also, Slack v. McDaniel, 529 U.S. 472 (2000)(applying the Barefoot

standard to the ADEPA new COA requirement); Miller-El v. Cockrell,

537 U.S. 322 (2003)(admonishing lower courts for using the COA to

denial appeals without jurisdiction); Tennard v. Dretke, 524 U.S.

274 (2005)(rejecting courts paying lipservice to principles which

apply to addressing the COA inquiry); Buck v. Davis, 580 U.S. ____

3

A litigants right to be notified of certain matters associated

with the loss of liberty at the hands of the government, necessari­

ly include being correctly informed during the plea negotiation pro­

cess. See United States v._Cronic, 466 U.S. 648, 650 (1984); Padilla

v. Kentucky, 559 U.S. 356, 373 (T010)

8

(2017)(reaffirming that at the COA stage the only question is whe­

ther an applicant meets the Barefoot standard).

It is clear that in this case, the trend

of violating a habeas

litigant's due process rights in the postconviction process must be

squarely addressed; see Ohio Adult Parole Authority v. Woodard, 523

U.S. 272, 293 (1998)(Stevens, J., concurring in part, dissenting in

part)(stating that when postconviction proceedings are established

"these proceedings must comport with due process"), and his opport­

unity to be heard must be restored through this Court's GVR power.

Therefore, based on teh foregoing petitioner seeks this Court to

grant this petition, vacate the Fourth Circuit's denial of a COA,

and remand the case to the lower court to address his Sixth Amend­

ment claim of ineffective assistance of counsel in the plea context

consistent with the law. Due to the fact that failing to do so vio­

lates clearly established due process principles which support this

petitioner's opportunity to be heard under the Sixth Amendment on

the effective assistance of counsel during the plea process.

CONCLUSION

This petition for writ of certiorari should be granted, and the

case GVR'd to the lower appellate court.

Respectfully submitted

Mr. Ziyad Yaghi

Pro se Petitioner

Reg. No. 51771-056

F.C.I. Ray Brook

Post Office Box 900

Ray Brook, New York 12977

9