Petition for Writ of Certiorari — Owen McCants, Petitioner v. Steven Silva

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o

No:

i

IN THE

SUPREME COURT OF THE UNITED STATES

Owen McCants

— PETITIONER

(Your Name)

vs.

Massachusetts

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Massachusetts Appeals Court

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Owen McCants

(Your Name)

MCI-Norfolk, Box 43,

(Address)

Norfolk, MA 02056

(City, State, Zip Code)

(Phone Number)

received

NOV 1 8 2020

SUPRE^CQlfpr1-^^

QUESTION(S) PRESENTED

#1 :

WHETHER THE TRIAL COURT, APPEALS COURT, AND

SUPREME JUDICIAL COURT ABUSED THEIR DISCRETION?

pp. 8-10

#2:

WHETHER THE EXCLUSION OF THE DEFENDANT FROM

THE PRETRIAL CONFERENCE VIOLATED FEDERAL LAW?

pp. 10-1 3

§3:

WHETHER THE MUGSHOT PRESENTED TO THE JURY

WAS SUGGESTIVE IN VIOLATION OF FEDERAL LAW?

#4:

pp. 13-14

WHETHER THE SUFFICIENCY OF THE EVIDENCE SHOULD

HAVE RESULTED IN A REQUIRED FINDING OF NOT GUILTY?

pp. 15-18

§5:

WHETHER THE PETITIONER'S TRIAL AND APPELLATE

COUNSELS WERE INEFFECTIVE AS A MATTER OF LAW?

pp. 19-20

#6:

WHETHER THE PROSECUTOR'S OPENING AND CLOSING

STATEMENTS PROHIBITED THE PETITIONER FROM

RECEIVING A FAIR TRIAL?

pp. 20-22

LIST OF PARTIES

[ ] All parties appear in the caption of the case on the cover page.

All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

Nelson Alves - Superintendent, MCI-Norfoik

(Formerly Steven Silva, who has retired)

RELATED CASES

TABLE OF AUTHORITIES CITED

Page Number

CASES

United States Supreme Court

Berger v. U.S., 295 U.S. 78 (1935)

20

Boumediene v. Bush, 553 U.S. 723 (2008)

9

Brewer v. Willisma, 430 U.S. 387 (1977)

12

Coleman v. Thompson, 501 U.S. 722 (1991)

16

Douglas v. California, 372 U.S. 353 (1963)

20

Dusky v. U.S., 362 U.S. 402 (1960)

13

Evitts v. Lucey, 469 U.S. 387 (1985)

20

Gideon v. Wainwright, 372 U.S. 335 (1963)

12

Gilbert v. California, 388 U.S. 263 (1967)

14

Herrera v. California, 506 U.S. 390 (1993)

18

Hill v. U.S., 368 U.S. 424 (1962)

22

House v. Bell, 547 U.S. 516 (2006)

18

Jackson v. Virginia, 443 U.S. 307 (1979)

1 7-1 8

Kentucky v. Stincer, 482 U.S. 730 (1987)

11

Kirby v. Illinois, 406 U.S. 682 (1972)

12

Marshall v. Lonberger, 459 U.S. 422 (1983)

10

Martinez v. Court of Appeal of Cal,

Fourth App. Dist., 528 U.S. 152 (2000)

20

McQuiggin v. Perkins, 569 U.S. 383 (2013)

9

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

9

Miller v. Fenton, 474 U.S. 104 (1995)

9

Murray v. Carrier, 477 U.S. 478 (1986)

17

Neil v. Biggers, 409 U.S. 188 (1972)

14

ii

TABLE OF AUTHORITIES CITED CONT I

Page Number

CASES

North Carolina v. Rice, 404 U.S. 244 (1971)

8

Penson v. Ohio, 488 U.S. 75 (1988)

19

Powell v. Alabama, 287 U.S. 45 (1932)

11

Reed v. Farley, 512 U.S. 339 (1994)

22

Smith v. Massachusetts, 543 U.S. 462 (2005)

15

Snyder v. Massachusetts, 291 U.S. 97(1934)

10

U.S. v. Gonzalez-Lopez, 548 U.S. 140 (2006)

12

U.S. v. Wade, 388 U.S. 218 (1967)

11

Wainwright v. Sykes, 433 U.S. 72 (1977)

16

Williams v. Taylor, 529 U.S. 362 (2000)

22

Ylst v. Nunnemaker, 501 U.S. 797 (1997)

17

Federal Court

Barnes v. U.S.,365 F.2d 509 (1966)

14

Bigelow v. Williams, 367 F.3d 562 (2004)

14

Brown v. Palmer, 441 F.3d 347 (2006)

18

Clemons v. Delo, 124 F.3d 944 (1997)

16

Coleman v. Dretke, 395 F.3d 216 (2004)

16

Dumas v. Kelly, 418 F.3d 164 (2005)

17

Henry v. Poole, 409 F.3d 48 (2005)

22

Jackson v. Amaral, 729 F.2d 41 (1984)

17

Levasseur v. Pepe, 70 F.3d 187 (1995)

9

iii

TABLE OF AUTHORITIES CITED CONT

CASES

Page Number

Norton v. Spencer, 351 F.3d 1 (2003)

16

U.S. v. Fosher, 588 F.2d 207 (1978)

14

U.S. v. Leggett, 162 F.3d 237 (1998)

13

U.S. v. Morrison, 153 F.3d 34 (1998)

13

U.S. v. Wihbey, 75 F.3d 761 (1996)

21

Statutes, Rules & Other

U.S. Const, amend. VI

12

U.S. Const, amend XIV

20

28 U.S.C. §2253(c)(1)

8

28 U.S.C. §2254(c)

9

28 U.S.C. §2254(d)(1)

22

28 U.S.C. §2254(e)(1)

10

Mass.R.Crim.P. 25(a)

19

Note:

Prisoners at MCI-Norfolk are not allowed copies

of statutes, rules, amendments or caselaw, per

the order of the Librarian.

iv

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

4-7

REASONS FOR GRANTING THE WRIT

8-22

22

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

Mandate and Judgment (First Circuit)

APPENDIX B

Motion For Certificate of Appealability

APPENDIX C

LEAVE TO PROCEED INDIGENT AND FOR COUNSEL

APPENDIX D

ORDER DISMISSING PETITION (DISTRICT COURT)

APPENDIX E

APPEALS COURT DECISION No. 2017-P-1243

APPENDIX F

DECISION AND ORDER - NEW TRIAL MOTION

APPENDIX G

CIVIL DOCKET SHEET

APPENDIX H

AFFIDAVIT IN SUPPORT OF MOTION-NEW TRIAL

APPENDIX I

PETITION FOR WRIT OF HABEAS CORPUS

APPENDIX J

MEMORANDUM - MOTION FOR NEW TRIAL

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ^ For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix _A

the petition and is

to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

The opinion of the United States district court appears at Appendix _Q.

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

is unpublished.

[k ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix E____ to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

j* ] is unpublished.

The opinion of the_

appears at Appendix

court

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

to

JURISDICTION

[x] For cases from federal courts:

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

was

September 14, 2020

[x] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: ____________

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including_______

(date) on

(date)

in Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

[ ] A timely petition for rehearing was thereafter denied on the following date:

______________________ , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

-2-

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. Constitution, Amendment 6

U.S. Constitution, Amendment 14

28 U.S.C. §2253(c)(1)

28 U.S.C. §2254(c)

28 U.S.C. , §2254(d).(1 )

28 U.S.C. §2254(e)(1)

Mass.R.Crim.P. 25(a)

-3-

STATEMENT OF THE CASE

The defendant (hereinafter "petitioner"), was

indicted by the Suffolk County Grand Jury on April 3,

1974, charged with rape and armed robbery.

Trial was conducted in Suffolk Superior Court from

November 6, 1974 - November 12, 1974.

A jury found the

petitioner guilty of both charges and he was sentenced

to two (2) concurrent terms of 10-20- years at Walpole,

to be served from and after any sentence then being

served.

On December 29, 1973, between 11:15 p.m. and 11:30

p.m., the complaining witness (CW) returned from her job

at the Boston Floating Hospital to her apartment at 103

Gordon

Street, Brighton.

As she approached the en­

trance to her apartment building, she observed a person

attempting to unlick the inner security door.

CW be­

lieved the man to be a resident of the building and offered

to open the door.

The person then followed CW into the

stairwell area, which was illuminated by overhead lights.

When CW started up the stairs, the man followed

her.

That area was also well lit.

-4-

The man conversed

with CW as he followed her.

He asked whether she lived

alone and whether her "boyfriend was presently in the

apartment?"

CW was looking at and talking to the man

as she climbed the stairs.

CW became apprehensive because she realized the

man was not a resident of the apartment building, so

he was questioning her about the rent costs.

At trial, CW testified she looked at his face, his

hair, and his jacket.

She made a positive identifi-

cation that the petitioner was her attacker.

She

again identified the petitioner in court at trial.

CW testified that as she approached her apartment

she told the man that her boyfriend was inside and she

then attempted to enter the apartment as quickly as

possible.

The man pushed her back, showed her a knife,

and forced his way into her apartment.

CW screamed as a struggle ensued.

The man spun

her around, held the knife to her throat, telling her

to shut up.

He then forced her into the bedroom where

he placed a bodysuit over her face, and tied it behind

her head.

-5-

After the man pulled CW into her roommate's bed­

room he searched through the bureau drawers for money.

He then ordered her to remove her clothes, and to lie

down.

Then man then raped CW.

The man ransacked the apartment, returned to the

bedroom and raped CW again.

He removed her wristwatch.

The man continued to search the apartment at the same

time threatening to injure CW if she did not tell him

where the valuables were located.

After CW told the man where the valuables were

located he raped her again.

As he left, the man told

CW to not look at his exit as he left and don't call

the police.

CW untied herself, telephoned her parents, who

immediately called\the police.

The police found that

\

$80.00 in cash, a personal check, the wristwatch, and

an electric hairdryer \were stolen.

\

CW was taken by the police to the Massachusetts

General Hospital where she was examined by a physician,

Dr. Willitm T. Thorpe; who created a medical report.

At trial, defense counsel stipulated to the report.

-6-

Detective Michael Murphy showed eleven (11) photo­

graphs to CW, from which she selected a front/side view

picture of the defendant, Owen McCants, as the man who

raped and robbed her.

At trial, Detective Murphy was shown a photograph

of the petitioner by the Assistant District Attorney.

Murphy stated, "That's the one."

In showing the photo to the jury, the court ordered

the numbers on the police fron/side view photo to be

removed.

There was no objection by the petitioner's

attorney.

The court instructed the jury they were to

draw no unfavorable inference against the petitioner in

that it was the Commonwealth's police who had possession

of the photograph.

The petitioner^ for his defense, presented four

\

(4) alibi witnesses.

Each and every witness testified

they were with the petitioner at the time of the assault

\\

on the complaining witne'ss, and the robbery.

The petitioner filed a Motion For New Trial with

a Memorandum Of Law IN Support Of Motion For New Trial,

which appears herein at [Appendix J]

-7-

Reasons For Granting The Petition

When the petitioner sought a Certificate Of

Appealability pursuant to 28 USC §.2253 ( c) (1 ), in

order to appeal the .decision of the Massachusetts

District Court, Sorokin, D.J • f which ruled the peti­

tioner is. procedurally barred from Habeas Corpus relief,

[Appendix D, pp. 1-6], he was denied by the

First Circuit Court of Appeals. [Appendix A, p. 2]

The denial was not on the merits of the issues

presented.

In the motion to the First Circuit to provide a

COA, the petitioner presented the following issues:

:

WHETHER THE TRIAL COURT, APPEALS COURT, AND SUPREME

JUDICIAL COURT ABUSED THEIR DISCRETION?

The petitioner cited North Carolina v. Rice,

404 U.S. 244, 247 (1971) for the rubric that he has

standing to challenge the conviction despite the sen­

tence is already served. [Appendix B, pp. 4-5]

That the AEDPA has caused the statute of limitations

to expire, the petitioner overcomes the procedural bar

-8-

based on his innocence. . McQuiggin v. Perkins, 569

U.S. 383, 386 (2013) [Appendix B, p. 5]

On the District Court level, on habeas corpus,

he moved for the appointment of counsel, to no avail.

[Appendix C, p. 3]

The petitioner argued below and argues here that

the presumption of the State's correctness has been

trampled upon, [citing] Miller v. Fenton. 474 U.S. 104,

114 (1995), on mixed questions of fact and law. See,

Levasseur v. Pepe, 70 F.3d 187, 191 (Ca 1 1995)[Appendix B, p. 7]

An inopportune abrogation by the First Circuit

was the failure to allow the development of ttie facts

on the lower levels, encompassing all prior claims and

proceedings.

The petitioner cited Boumediene v. Bush.

553 U.S. 723, 790-791 (2008)[Appendix B, p. 8]

Based on the State Court lucubration [Appendix E]

the Court determination of factual issues were rebutted

by clear and convincing evidence. 28 USC §2254(c),

Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)(pre­

sumption of correctness overcome by petitioner)

-9-

The Supreme Court has applied the §2254(e)(1)

presumption of correctness to State Courts' factual

findings regarding juror exclusion for cause, juror

partiality, witness identifications, competency to

stand trial, competency to waive post-conviction pro­

ceedings, culpability, and the validity of parties

peremptoray challenges. The presumption of correctness

does not apply to "questions of law," Miller, 474 U.S.

at 114, or "mixed questions of law and fact."

The presumption of correctness does not apply

to State Court conclusions regarding the voluntariness

of a so-called "waiver."

The questions in this peti­

tion cannot be afforded that presumption as the State

Court does not credit the petitioner's Affidavit.

[Appendix H]

This was a question of Federal Law.

It is not subject to AEDPA, §2254(d)

Marshall v.

Lonberger, 459 U.S. 422, 431 (1983)

#2:

WHETHER THE EXCLUSION OF THE DEFENDANT FROM

THE PRETRIAL CONFERENCE VIOLATED FEDERAL LAW?

Snyder v. Massachusetts, 291 U.S. 97, 105-106

(1934) controls this claim.

The Pretrial Conference,

when Snyder is applied, is a critical stage

-1 0-

of the trial proceedings. [Appendix B, p. 9]

The

United Sties Supreme Court held there is no distinction

between the trial and the pretrial, pursuant to the

Due Process Clause of the Fourteenth Amendment. [Appen­

dix B, p. 9]

The right to assist counsel in his own defense

is paramount to a fair criminal proceeding. Kentucky

v. Stincer, 482 U.S. 730, 745 (1987)

In Powell v. Alabama, 287 U.S. 45 (1932) the Court

held the period from arraignment to trial, "...is

perhaps the most critical stage of the proceedings."

[Appendix B, p. 11]

In United States v. Wade, 388 U.S. 218, 224

(1967) the Supreme Court held that the Sixth Amendment

right to counsel attaches to "critical stages" of

pretrial proceedings.

The Pretrial Conference must

be a critical stage because the petitioner had the

right to assist his attorney.

Not being allowed to participate in the Pretrial

Conference is a structural defect in the trial process,

-11-

the remedy for which is to vacate the conviction.

United States v. Gonzalez-Lopez, 548 U.S. 140, 147148 (2006)

The right to assist counsel for his defense by

participating in the Pretrial Conference is a consti­

tutional one.

U.S. Const, amend. VI, Gideon v.

Wainwright, 372 U.S. 335, 342 (1963)

It was, therefore, a jurisdictional prerequisite

to allow the petitioner to be at the Pretrial Conference

in order to assist his counsel for various procedures

therein; alibi; stipulations; discovery; possible

plea deals, etc.

The right to counsel attaches in a criminal

prosecution after the very first initiation of the

adversarial judicial proceedings.

Kirby v. Illinois,

406 U.S. 682, 689 (1972)(Plurality Opinion); Brewer

v. Williams, 430 U.S. 387, 404 (1977)(right to counsel

does not depend on a request from the defendant)

The petitioner has the unmitigated right under

Sixth and Fourteenth Amendments to assist his lawyer,

-1 2-

at the least with the facts of the case at the Pretrial

Conference. United States v. Morrison, 153 F.3d 34, 4647 (CA 2 1998)(defendant was able to assist counsel

in his defense), United Sit'ates v. Leggett, 162 F.3d

237, 242 (CA 3 1998)(same) [citing] Dusky v. United

States, 362 U.S. 402 (1960)(Per Curiam)

#3:

WHETHER THE MUGSHOT PRESENTED TO THE JURY

WAS SUGGESTIVE IN VIOLATION OF FEDERAL LAW?

The First Circuit did not rule on the merits of

the claim.

The argument, presented in [Appendix B,

pp. 12-15] are significant in i.thisr case- of racial" profiling, where an Afro-American male is accused of

assaulting a Caucasian woman.

The bias in this case presented to the jury

permeated from the First Circuit of Appeals, all the

way down to the arrest, the photo array, the mugshot,

and that mugshot in the possession of the jurors.

The petitioner's mugshot photo looked like a Wanted

Poster. [Appendix B, p. 15]

The petitioner challenged unnecessary-suggestive

procedures which occurred prior to trial, when the

showing to the complaining witness a mugshot photo

-1 3-

array began the process, Kirby v. Illinois, 406 U.S.

682, 690-691

(1972)(Due process standard governs ident­

ification procedure, and during the trial, which led

to mistaken identification) Neil v. Biggers, 409 U.S.

188, 198 (1972)

\

Here, showing the jury mugshots was impermissably

suggestive, especially where a 5-year-old could see

the booking number was "taped over." Bigelow v. Williams,

367 F.3d 562, 576 (CA 6 2004)(In-court identification

given under "classically suggestive setting," where

big, loud / i conversation at sidebar, followed by Clerk

cropping photos, etc.)

The State's presentation of a sideface, frontface

mugshot was prejudicially suggestive. United States

v. Fosher, 588 F.2d 207 (CA 1 1978)

The photos were obvious, that they were mugshots

taken from the police files, there was an irrebuttable

presumption the petitioner had been in trouble with

the police prior to the trial. Barnes v. United States,

365 F.2d 509, 510-511

(1966); Gilbert v. California,

388 U.S. 263 (1967)

-1 4-

#4:

WHETHER THE SUFFICIENCY OF THE EVIDENCE

SHOULD HAVE RESULTED IN A REQUIRED FINDING

OF NOT GUILTY?

The First Circuit excused itself from review,

eschewing this claim, not on the merits, but because

in a cursory manner, the Court invoked a procedural

bar, which was an abuse of discretion.

After much hemming and hawing [Appendix B, pp.

16-17] the State Trial Court never ruled on the Re­

quired Finding of Not Guilty (RFNG).

This violated

Supreme Court precedent. Smith v. Massachusetts, 543

U.S. 462, 467 (2005)[Appendix B, pp. 18-20]

This is another structural defect in the trial

process.

The conviction must be vacated.

Under §2254(e)(1), a State Court's determination

of a factual issue is presumed correct and may be

rebutted only by "clear and convincing" evidence.

Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)

(presumption of correctness overcome when district

Court "accepted without question the State Court's

evaluation of the demeanor of the prosecutors and

-1 5-

jurors in the petitioner's trial); Norton v. Spencer,

351 F.3d 1, 6-8 (CA 1 2003)(presumption of correctness

overcome by clear and covincing evidence that State

Court failed to consider e\aLuating defense affidavits,

here, the petitioner's affidavit, [Appendix H])

If the petitioner has failed to present a par­

ticular claim before State Courts in the manner pre­

scribed by the State's procedural rules, a federal

Court will generally refuse to consider that claim on

habeas review. Wainwright v. Sykes, 433 U.S. 72 (1977)

(failure to make timely objection at trial)

However, where the State has ruled on the merits,

[Appendix E], Coleman v. Dretke, 395 F.3d 216, 220

(5th Cir. 2004)(petitioner adequately presented State

claims to Appeals Court and Supreme Judicial Court),

Accord, Clemons v. Delo, 124 F.3d 944, 953-955 (CA 8

1 997)

On the sufficiency of the evidence, the peti­

tioner has demonstrated the actual violations of feferal

law and the District Court's failure to review the

claims has resulted in a fundamental miscarriage of

justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991)

-1 6-

The conviction of the innocent petitioner violated

federal law because the petitioner had a solid alibi.

Murray v. Carrier, 477 U.S. 478, 495 (1986)

The cause to overcome the procedural bar, amongst

other issues, was the ineffective assistance of counsel

in violation of the Sixth Amendment. Carrier, 477 U.S.

at 488.

This is not even a "close call," because on the

RFNG the attorney allowed the Court to not rule on

the Mass.R.Crim.P. 25(a) motion. Smith, 543 U.S. at

474.

Here, in the last State Court, the Appeals Court,

when the federal claims were ignored by that Court, the

District Court should have ruled on the petitioner's

claims. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1997);

Jackson v. Amaral, 729 F.2d 41, 44 (CA 1 1984)

The Commonwealth of Massachusetts was not pre­

judiced by the delay in filing the original motion, and

it did not claim "laches." Dumas v. Kelly, 418 F.3d

164, 167-168 (CA 2 2005)

The standards in Jackson v. Virginia are clear.

-1 7-

"...Whether after viewing the

evidence in the light most

favorable to the prosecution,

any rational trier of fact

could have found the essential

elements of the crime beyond

a reasonable doubt."

Jackson, 443 U.S. at 319; Brown v. Palmer,

441 F.3d 347, 351 (CA 6 2006)(Due Process violated

because facts could only reasonable to establish that,

based on a faulty identification, the petitioner had

an alibi, and could not have been at the scene of the

crime)

The petitioner's alibi, never corroborated by

the petitioner's attorney, bringing in the waitstaff

from the various nightclubs the two couples attended

that night, is clear and convincing evidence of the

petitioner's actual innocence. Herrera v. Collins,

506 U.S. 390, 400 (1993); House v. Bell, 547 U.S. 516,

555 (2006)

The standard here is controlled by Carrier,

477 U.S. at 495.

-1 8-

#5:

WHETHER THE PETITIONER'S TRIAL AND

APPELLATE COUNSELS WERE INEFFECTIVE

AS A MATTER OF LAW?

The facts in the case show the petitioner's

counsel, a fledgling attorney, flubbed the Trial

Rule, Mass.R.Crim.P. 25(a), RFNG.

The attorney failed to present the security staff

the waiters and waitresses from the nightclubs attended

by the petitioner, his girlfriend and the two other

accompanying couple.

This was a significant flaw in

the representation.

The attorney failed to file a Motion To Suppress

the so-called identification by the complaining witness,

and he cited Neil v. Biggers, 409 U.S. 188, 198 (1972)

[Appendix B, p. 22], and cases cited.

An indigent defendant has the Constitutional right

to

appointed counsel on appeal, where the appeal is

of right. Penson v. Ohio, 488 U.S. 75, 85 (1988)(Court

erred in denying indigent defendant representation during

appeal as of right after trial counsel withdrew be­

cause defendant lacked representation during the de­

cision-making process)

Also, the appellate attorney

-1 9-

must be truly effective. Evitts v. Lucey, 469 U.S.

387, 396 (1985); Douglas v. California, 372 U.S. 353,

355-356, 357 (1963)(Same)

The right to (an effective) appeal is solidified

by the Due Process and^. Equal Protection Clauses of the

Fourteenth Amendment. Martinez v. Court of appeal of

Cal, Fourth app. Dist., 528 U.S. 152, 160 (2000)

#6:

WHETHER THE PROSECUTOR'S OPENING AND

CLOSING STATEMENTS PROHIBITED THE

PETITIONER FROM RECEIVING A FAIR TRIAL?

The prosecutor stated the only evidence in the

case was from the mouth of his witnesses. [Appendix B,

p. 23]

The prosecutor, in his closing, vouched for the

credibility of the complaining witness.

His appeal for sympathy from the jury by stating:

"I want you to be fair to all those good people out

in Suffolk County like yourselves that are walking

in and out of doorways." [Appendix B, pp. 24, 25]

The jury was all-white. The petitioner cited Berger

v. United States, 295 U.S. 78, 88 (1935)

-20-

The United States Supreme Court stated in

Berger, ante, the prosecutor's duty is to seek

justice.

Id., 295 U.S. at 88.

The prosecutor should prosecute with "earnestness

and vigor," but may not use "improper methods calcu­

lated to cause an improper conviction."

The prosecutor's closing argument in the case

at bar about "safe to walk the streets at night,"

in a racially infested Boston, Massachusetts, with

an Afro-American defendant and a Caucasian witnessvictim is a recipe for disaster. United States v.

Wihbey, 75 F.3d 761, 773 (CA 1 1996)

The Abuse of Discretion:

The First Circuit Court of Appeals issued a

"Mandate." [Appendix A, p. 1]

That Court's mandate

is that the District Court should have been allowed

to entertain the Application For A Writ of Habeas

Corpus because the petitioner's conviction violated

the Constitution, laws, or Treaties of the United

States.

The First Circuit, Tornella, J., forgot that

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relief for violations of federal law by the State

will be granted if the State's violation(s) rise to

the level of a fundamental defect which resulted in

a complete miscarriage of justice, and was inconsistent

with fair procedure. Reed v. Farley, 512 U.S. 339,

348 (1994) [quoting] Hill v. United States, 368 U.S.

424, 428 (1962)

The State decision [Appendix E] was contrary to,

or involved an unreasonable application of cterly

established Federal Law as determined by the United

States Supreme Court.

See, 28 U.S.C. §2254(d)(1), Williams v. Taylor,

529 U.S. 362, 405 (2000); Henry v. Poole, 409 F.3d

48, 71

(CA 2 2005)(alibi problems - compromised fair

trial)

Conclusion

The petition for a writ of certiorari should

be granted.

Respectfully submitted,

/s/ Owen McCants

Owen McCants, Pro Se

Box 43,

Norfolk, MA 02056

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November 10, 2020