Petition for Writ of Certiorari — Leonard Glen Overmyer, III, Petitioner v. United States

No.

Supreme Court, U.S.

FILED

IN THE

FEB 2 6 2021

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

— PETITIONER

(Your Name)

vs.

Uh>'^c4

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

U- S. C Cor -f ef

for -fie

£'*7dtrcvl-f'___________

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

PETITION FOR WRIT OF CERTIORARI

(Your Name)

IU

(Address)

/m

(City, State, Zip Code)

<2*/- $71- &8!£L

(Phone Number)

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Question(s) Presented

Whether a Defendant should be allowed to seek a reduction of, or discharge from,

an imposed supervised release after being improperly sentenced, and receiving

ineffective counsel, which resulted in an additional ~ year of confinement and

extended supervision?

LIST OF PARTIES

M 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:

RELATED CASES

A

TABLE OF CONTENTS

1

OPINIONS BELOW

JURISDICTION..............................................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

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APPENDIX B

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APPENDIX C

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APPENDIX D Cofle^

APPENDIX E

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APPENDIX F ATTAcHM(v/r C<fy of Supfr-f Uvrt/i f

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TABLE OF AUTHORITIES CITED

Cases and Statues include those mentioned in the “Reasons for Granting the Petition”

Michigan Hunting Regulations 312.10(h)

US v. Hayford, No. CR-06-27-B-W

U.S. v Lemieux, 462 F. Supp. 2d 78 (2006)] at 86

US V Waggoner, 103 F. 3d 724, 726-727 (6th Cir 1997)

US V Shell, 972 F..2d 548, 552 (5th Cir. 1992)]

As well as those cited from the original Petition for Panel Rehearing filed 11-17-2020 Case

19-2448; and Brief filed 04/06/2020; Copies as enclosed within listed Appendix:

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TABLE OF AUTHORITIES

f

Cases

Gallv. United States,

552 U.S. 38, 128 S. Ct. 586 (2007)

3

Raines v. United States,

898 F. 3d 680 (6th Cir. 2018)

6

Winn v. Renico,

175 Fed. Appx. 728 (6th Cir. 2006)

6

United States v. Jones,

659 Fed. Appx. 234 (6th Cir. 2016)

5,7

United States v. Johnson,

529 U.S. 53, 120 S. Ct 1114(2000)

5,7

United States v. Overmyer,

No. 19-2448, _ Fed. Appx. _, 2020 WL 6483124 (6th Cir., Nov. 4, 2020). 1, 4, 7

Statutes

18 U.S.C. § 3624(3)

4

18 U.S.C. § 3853(e)(1)

6

18 U.S.C. § 3853(e)(2)

5,6

Federal Rules of Appellate Procedure

Federal Rule of Appellate Procedure 32(a)(7)(C)

9

Federal Rule of Appellate Procedure 40

1

United States Sentencing Guidelines

U.S.S.G. § 2K2.1 ................................

2

U.S.S.G. §2K2.1(b)(2)

3

n

Case: 19-2448

Document: 14

Filed: 04/06/2020

Page: 4

/

TABLE OF AUTHORITIES

Federal Cases

Gall v. United States, 552 U.S. 38, 128 S. Ct. 586 (2007) .........................

6, 15

United States v. Buss, 928 F.2d 150 (5th Cir. 1991) ....................

9, 10

United States v. Choice, 201 F.3d 837 (6th Cir. 2000)...............................

14

United States v. Jackson, 635 F.3d 205 (6th Cir. 2011).............................

6, 14

United States v. Overmyer, No. 18-2222, Order (6th Cir., Aug. 15, 2019)

4

United States v. Prator, 939 F.2d 844 (9th Cir. 1991) ...............................

9

United States v. Shell, 972 F.2d 548 (5th Cir. 1992) .................. ;.............. 11, 14, 15

United States v. Waggoner, 103 F.3d 724 (8th Cir. 1997) ........................

11, 12

Federal Statutes

7

18 U.S.C. § 922(a)(6)

7

18 U.S.C. § 922(c)

7

18 U.S.C. § 922(d)

7

18 U.S.C. § 922(e)

7

18 U.S.C. § 922(f)

3

18 U.S.C. § 922(g)

7

18 U.S.C. §922(m)

7

18 U.S.C. § 922(s)

7

18 U.S.C. § 922(t)

m

Case: 19-2448

Document: 14

Filed: 04/Ub/zu^u

r a.y'-- ~

.....7

18 U.S.C. § 922(x)( 1)...........

....... 7

18 U.S.C. § 924(a)(1)(A) ....

..7

18 U.S.C. § 1715..................

...1

18 U.S.C. § 3231..................

....15

18 U.S.C. § 3553(a)(1).......

.... 1

18 U.S.C. § 3742.......................

28 U.S.C. § 1291.......................

....3

28 U.S.C. §2252A(a)(l)........

Sentencing Guidelines

...... 5

U.S.S.G. § 2K2.1 ................................................... ....6

U.S.S.G. § 2K2.1(a) ...................................................

......8

U.S.S.G. §2K2.1(b)(l) .............................................

iii, 2, 4, 5,7, 8,10,11,12,15

U.S.S.G. §2K2.1(b)(2) ............................................

Federal Rules of Appellate Procedure

Federal Rule of Appellate Procedure 32(a)(7)(C) ....

.... 17

Sixth Circuit Rules

..... 16

Sixth Circuit Rule 30(g)(1)(A)................................

.... 17

Sixth Circuit Rule 32(a).........................................

....v

Sixth Circuit Rule 34(a) .........................................

IV

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:

to

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

the petition and is

; or,

[XI reported at Ase /uo,

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

[ ] is unpublished.

to

The opinion of the United States district court appears at Appendix

the petition and is

AJO, /!/9~Ch-<?oo6^-1

; or,

[X] reported at

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

[ ] is unpublished.

[ ] For cases from state courts:

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

to the petition and is

Appendix

; or,

[ ] reported at

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

[ ] is unpublished.

The opinion of the —

appears at Appendix

court

to the petition and is

; or,

[ ] reported at

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

[ ] is unpublished.

1.

JURISDICTION

[ ] For cases from federal courts:

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

was

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

(XI A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: AfoV, 3ot ZpZo

, 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).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The 5™ Amendment rights of due process.

Clarification of the Sporting Purpose Provision of USSG & 2K2.1(b)(c)

?

STATEMENT OF THE CASE

An improper use of the Concurrent Sentence Doctrine was applied in an appeal to a

significant procedural error in improperly calculating the Sporting Purposes Provision of

USSG & 2k2.1(b)(c) resulting in additional confinement (~year) and extending imposed

supervision.

REASONS FOR GRANTING THE PETITION

Determining the merits of the Appeal would align the findings of various Circuit Courts to

be more consistent in applying the Sporting Purpose provisions, as conflict with the

application of this provision exists between all Appellate Circuits. (The Sixth Circuit Appellate

Court also denied Oral Arguments that would have highlighted many of these conflicting legal issues).

Also the District Court’s lack of clear direction from the Sixth Circuit on application of the

Sporting Purpose Provisions resulted in a significantly higher sentence than would have

otherwise been imposed, affecting 5th Amendment rights and extending the time of

probation.

Finally, a multitude of Appointed Counsel was often ineffective in addressing issues in

Court. Initial Counsel caused a court delay and withdrew from representation because of

his caseload, later counsel never showed and had a last moment substitute in court who

missed challenging key provisions and was confused during proceedings. The last counsel

appointed, (fifth representative in two years) never met in person for any prior reviews,

even after a year, and also withdrew representation at conclusion due to conflict of interest.

Further Notations: Throughout previous proceedings the Defendant repeatedly requested to review

legal work before it was submitted to the court. Most often, this was never done, or when it happened,

was far after-the-fact of proceedings, even though it was pre-dated. Defendant was frequently transferred

throughout Michigan and Chicago with no legal files, or many that had been misplaced, and almost no

means to contact counsel. When letters were sent, given with five different representatives in two years’

time, and though there were many useful points made, much of the concerns were not addressed in any

way. Often missing key points, repeating negative biases from the PSI on Defendant’s paperwork, last

minute and rushed meetings, and not even including responses to the Government’s memorandums. The

latest key point being, that whether or not Defendant would petition to be discharged earlier from

Probation, OR that the full terms of Probation would remain, a proper review of the law for the sentence

as given could have an immediate effect in that the time otherwise incarcerated would have already been

applied against the overall probation period! Thus, Defendant was not only enslaved a year longer than

may have been legitimate if given a proper review, but that this time was also not applied to the Probation

period in any way. Thus counsel failed to show how a resentencing would demonstrate that an added year

of incarceration not only was of legal and emotional significance (loss of mother and other family during

that time period, significant injury at MCC), but that this added time did indeed impact the overall

sentence in that it now extends probation another year. Thus, the concurrent sentence doctrine has been

misused, 5th Amendment Rights of due process were repeatedly violated, and Civil Liberties have been

utterly marginalized. {Relevant sentencing factors US V Conaster, 514 F. 3d 508, 520 (6th Cir. 2008)}.

The counsel that the Defendant was given never addressed concerns about: how the PSI was written, how

his son had acknowledged a miscommunication between them but that Defendant had never asked his son

to lie; (The Probation Officer had separated his son and waved handcuffs at him to intimidate, despite their

being forthright and cooperative, as they were working on a church flyer at the time); that the hunting rifles

were amongst a pole bam at a separate address, stored full of farming and sporting gear but all were enclosed

cased per Michigan Hunting Regulations 312.10(h) law, including one that had combination locks! As they

were intended to be passed on to other relatives that spring; that the alleged “tip” had stemmed from a

contending supervisor at a recent job interview, as Defendant had been spending considerable time

interviewing (See MI Works support letter).

The Government’s use of “Specific” conditions, a term that doesn’t exist, - you have either Standard or

Special conditions, the later being what the Waggoner case was under, and was repeatedly distinguished

by the Government in his case, - as opposed to Defendant’s “Standard” Conditions, which are the same as

everyone who is under Federal probation.; (See US v. Hayford, No. CR-06-27-B-W, “Unlike Waggoner,

there were no probation conditions different from the general prohibitions of criminal law and [the

Hayford] Court found that the defendant was entitled to the sporting purpose exceptions.” [U.S.S.G.

2K2.1 (b) (2).) The Government also back-tracking on their initial acknowledgments that the rifles were

ONLY used for hunting, and trying to make an illogical issue over the term “soley”? The Government

completely mislead the use of the Lemieux case findings [U.S. v Lemieux, 462 F. Supp. 2d 78 (2006)] at

86 amid page 4 of their Remand Response, leaving out the most important part of that paragraph:

“however, as has been mentioned, the court imposing the probation is fully capable of imposing a

separate penalty for the violation of its probation conditions, tailoring the sanction to meet the nature of

the breech.” Thus, the conclusion given in that actual case entitled Lemieux to the sporting purpose, even

when he was far more culpable that Overmyer (Defendant) as Lemieux had actively falsified a firearm

purchase, had a domestic assault violation, and had an inventory of 8 rifles plus an actual hand-gun! And

the Sentencing Commission’s follow-up footnote #7 went on to state: “The Governments reliance on

Waggoner is misplaced...” s No. 18-2222 Original Brief and Argument for Appellant-Petitioner of

February 11, 2019, District Court No. 1:18-cr-83-01 See details. {US V Waggoner, 103 F. 3d 724, 726727 (6th Cir 1997)} As had been noted, In the No. 18-2222 Original Brief and Argument for AppellantPetitioner of February 11,2019, District Court No. 1:18-cr-83-01 “Waggoner was distinguishable as that

defendant had illegally USED the relevant firearm.” Also, the domestic violence accusation made on page

8 of the December 9, 2019, Remand Hearing were completely unfounded as well as several out of context

accusations, while Ms. Tosic, who filled in at the last moment, seemed to be confused at times, (See

Court transcript Case l:18-Cr-00083-PLM, ECF No. 49 filed 02/11/20 Page id .265 18 PAGES), and the

quick re-entry to a half-way house that the judge recommended never happened.

There were many cases that the Defendant tried to bring up with counsel over those two years of

incarceration, and over the last year, that could have also been incorporated into legal arguments such as

Stewart, Gains, Maas, and more of Shell, [US v Shell, 972 F..2d 548, 552 (5th Cir. 1992)] Buss, Mojica,

which were all far more culpable yet received the sporting use reduction, and in Mendoza-Alvarez where

“... the Court interpreted “use” under USCS 924 @(1) to mean “Active employment” thus an “Otherwise

unlawful use under US sentencing Guidelines Manual 2k2.1(b)(2) must be some action similar to

‘unlawful discharge..and the fact that in the Baker case, (that Judge Maloney initially relied on to deny

the collection status), was based on a domestic disturbance call that not only involved a stored shot gun

broken down in three sections within the house but also two handguns; and Baker also made a false

statement on an ATF form in connection to one of the gun purchases. {Vrs Overmyer (Defendant) encased

hunting rifles for generations, that had not been used or discharged, one leather case being custom engraved

with Great Grandfather’s name embroidered, another in a Cabela’s type combo locking case, all cleaned,

oiled, with expensive scopes and obviously TREASURED}. The purposeful omission by the Government

in the report of only noting “they were covered with a towel” and in not providing images of the actual

hunting cases that they confiscated, mislead both courts. They also misidentified an antique rifle several

times, (which Defendant was not given an alternative “firearm expert” to challenge, as it had never been

fired in his lifetime, and was previously dated before WWI), and as noted by Mr. Carron on page 16 of the

original February 2019 Appeal, “There was nothing in their manner of storage inconsistent with being

retained for [family] collection purposes..”

The Government’s Resentencing Memorandum response on 12/03/19 PageID.243 claim in using the term

“hiding,” rather than winter storage of Sporting & Agricultural gear (as that was all it was, and any jury

would see that), and that, “most hunters keep valuable firearms safe and secure inside their homes” is not

only a socioeconomic bias towards poorer, subsistence sportsman (as many Northern MI homes have

sporting gear in pole buildings), but makes no logic in comparison to many other legal cases prosecuted by

the Government for having firearms within the home? (Adjacent house did not have a basement or even a

dinning area.)

Defendant’s Sentencing Memorandum On Remand Following Appeal Case l:18-cr-00083-PLM ECF

No. 42 filed 12/02/19 Page ID.218 [17 pages] Also, ECF 42-1 filed 12/02/10 4 pages attached, family

were avid outdoorsman for five generations (Page 4 of 17)... firearms were consistent with sporting

rifles, page 5, and the Governments own discovery misled because brother-in-law had even stated

Overmyer’s son wanted rifles back for deer hunting: pg 6 of 17,. (See United States v Mojica, 214 F .3d

1169 (10th Cir. 2000) [Sporting purpose reduction applied where defendant constructively possessed

firearms that his brother used for hunting.] Moreover, no unlawful discharge or use of firearms occurred

(ECF No. 36, Sentencing Transcript, PageID.164).

Also, despite repeated requests and letters for further review, the latest counsel appointed, for over a year,

never met in person and never reviewed anything he filed ahead of time with Defendant for comment, not

even by phone or email. He also withdrew, due to conflict of interests, as appointed attorney when the

ineffectiveness received during many of the past proceedings was put in writing. Thus, this filing without

any financial or legal help whatsoever.

1

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Zoai