Petition for Writ of Certiorari — Lenroy McLean, Petitioner v. United States

?

/—

1

No.

Supreme Court U.S.

PILED

AUG 1 2 2020

IN THE

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

LENROY MCLEAN

— PETITIONER

(Your Name)

vs.

UNITED STATES OF AMERICA

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS SECOND CIRCUIT

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

PETITION FOR WRIT OF CERTIORARI

Lfi.nr_oy_Mclean-..J^J-5-24^CL54(Your Name)

805 North ave F

(Address)

Post, Tx 79356

(City, State, Zip Code)

(Phone Number)

RECEIVED

APR - 9 2021

OFFICE OF THE CLERK

SUPREME COURT. II S

QUESTION(S) PRESENTED

Question I

Whether the Government sought to diminish the likelihood of

Petitioner's finding of a Brady violation, by interjected a

manufactured declaration to mislead the machinery of the

court?

Question II

Does the Court of Appeals denial of a Certificate of Appeal

ability sanctioned the lower court's predisposition towards

the benefit of the Government, call for an exercise of this

court's supervisory power?

Question III

Did the lower courts applied the proper legal standards for

Petitioner's Equitable Tolling before such denial, which

conflicted with the decision of other Circuits?

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LIST OF PARTIES

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

[xk 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:

Attorney for the Government

1) Won S. Shin (AUSA)

U.S. Attorney's office

one St. Andrew's Plaza

New York, New York 10007

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TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

Appeal court opinion

APPENDIX B

District Court opinion

APPENDIX C

Appeal Court Re-Hearing

APPENDIX D

Letter to Judge Alvin Hellerstein

APPENDIX E

......Judge Sullivan response to letter

APPENDIX F

Letter to Russo, Government & Agent

APPENDIX G

Fraudulent Declaration (Russo)

APPENDIX H

Russo's real signature

APPENDIX I

Email to Captain

-iii-

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Passlogix Inc. v 2FA Tech. L.L.C, 708 F.supp 2d 378

383 (2nd cir 2010) ........................................................................

Shangold v Walt Disney Co. 275 Fed. Appx. 12, 73-74

(2nd cir 2008).............................................................................

Universal Oil Products Co. v United States,

328 U.S. 575, 580, 66 S.Ct. 1176, 90 L.ed 1447 (1946)

Hazel-Atlas Glass Co; 322 U.S. 238, 64 S.Ct 997,

88 L.ed 1250, 1944 Dec. Comm'r Pat. 675 ..........................

Rompilla v Beard, 545 U.S. 374, 387, 125 S.Ct. 2456,

162 L.ed 2d 360 (2005)................................................................

Bond., v Cox, 20 f.3d 697 (6th cir 1 994)..............................

Counts v Kraton Polymers, U.S. L.L.C 2006 U.S. Dist.

Lexis 65312 (S.D. Ohio Sept. 13th, 2006) ........................

Maior. v Astrazeneca, 2006 WL 2640622 (N.D.N.Y Sept

2006)

CONTINUE ON NEXT PAGE....

8

8

8

8,9,12

4,9

9

9

10

STATUTES AND RULES

Rule 60(b)(3)

Rule 60(d)(3)

5,6,7,8

11,12,14,15

5, 12

. Rule 60(c)(1).

12

28 U.S.C. § 1746 ...

10

2T U.S.C* § 846. . . . .

18 U.S.C § 924(c)...

-Fed—R-^—Gi-v-.- -P-^-S-54a4

4

4

5-

Fed R. Civ. P. §6$e)

9

OTHER

j

28 U.S.C §1?I§4

28 .U.S.C § 2106

28 U.S.C §2253(a)(2)

-iv-

CONTINUATION OF AUTHORITIES CITED

Wells v Cramer, 262 Fed. Appx 184 (11th cir 2008)......................... . .

Dopp v Franklin National Bank, 461 f.2d 873,879 (2d cir 1972)....

Pham v U.S. 317 f.3d 178 (2d cir 2003).......................................................

Newman 705 A2d 2 46 (D.C. 1 997).................................. ................... ..................

PAGES

*10

10

10

.11

11

Machibroda v U.S. 368 U.S. 487, 495 (1962)...........................

Brady v Maryland, 373 U.S. 83, 87, 83 S.Ct 1194, 10 L.ed 2d 215

(1 963)........................ ...................................... :............................. .....................

Coppa 267 f.3d 132, 135 (2d cir 2001).........................................................

Giglio v U.S. 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.ed 2d 104

(1 972) ........................................................................................ ......................................

Miller-El v Cockrell, 537 U.S. 322, 327, 123 S.Ct 1 029, 1 54 L.ed

2d 931 (2003) ...................................................................................... .........................

11

11

11

12

Barefoot v Estelle, 463 U.S. 880, 893 N.4 103, S.Ct 3383,

12

77 L.ed 2d 1 090 (1983).............................. ................................................................

Parkhurst v Pittsburg Paints Inc; 399 fed. appx 341, (10th cir 2010)-*--12

Kenner v Comm1r of Internal Revenue; 387 f.2d 689, 691 (7th cir 1968)--12

13

Liteky; 510 U.S. at 555

.,15

Forman 371 U.S. at 182

12

Anderson v New York 2012 U.S. Dist. Lexis 1 42628 (2012 SDNY)...........

Lawerence v Florida, 549 U.S. 327, 336, 127 S.Ct 1079, 166 L.ed 2d

14

924(2007) ...................

■, 1 4

Valverde v Stinson, 224 f3d 129, 133-34, (2d cir 2000)..........................

Gonzalez v Crosby, 545 U.S. 524, 535, 536, 125 S.Ct 2641, 162 L.ed

/. 14

2d 480(2005)...............................

Ackerman v U.S.; 340 U.S. 193, 199, 71 S.Ct 209, 95 L.ed 2d 207

(1 950)................

14

-Qary v Me Donough, 54r7 UrS. i9~8, ~21~0, 1~26—S-rCt T 675-, ~1-6-4-dtr-ed-2d—3-?-6~

(2006) ...............................

Greenlaw v U.S., 534 U.S. 237, 243 (2008)

14

-v-

15

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

[j^For cases from federal courts:

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

the petition and is

_ to

[ ] reported at

or,

fex! has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

^_to

[ ] reported at_____________________________ ______

. or>

Iki 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

Appendix-------- to the petition and is

[ ] reported at

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

[ ] is unpublished.

•

The opinion of the _

appears at Appendix

ny>

court

to the petition and is

[ ] reported at____

; or,

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

[ ] is unpublished.

1.

JURISDICTION

[X}[ For cases from federal courts:

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

was Mav 7 hh . 7020_______ .

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

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

Appeals on the following date: June 30th,, 2020

, and a copy of the

order denying rehearing appears at Appendix c

[ ] 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:

--------- --------- -......................randr-a-copy-of-t-he-order-denying-rehea;ri-ng-------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

Fifth Amendment to the Constitution Provides:

No person shall be held to answer for a Capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in case arising in the land or naval forces,

or in the militia, when in actual service in time of war of

public danger; nor shall be compelled in any criminal ease to

be deprived of Life, Liberty or Property without Due Process

of Law; nor shall private property be taken for public use,

without just compensation.

Sixth Amendment to the Constitution Provides:

/

In all criminal prosecutions, the accused shall enjoy the right

to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

assistance of Counsel for his defence.

Ninth Amendment to the Constitution Provides:

The enumeration in the Constitution, or certain rights, shall not

be construed to deny or disparage others retained by the people.

Fourteenth Amendment to the Constitution Provides:

All persons born to the naturalized in the United States, and

subject to the reside. No state shall make or force any law which

shall abridge the privileges or immunities of the United States;

nor shall any state deprive any person of life, liberty, or

property, without Due Process of Law; nor deny, to any person

without it's Jurisdiction the equal protection pf the law.

3

STATEMENT OF THE CASE

Petitioner was indicted back in November 5th, 2008 (U.S.D.C 08-cr789(RJS)) along with several other co-defendan'ts in a multi-count indict­

ment charging the various defendants with violations of 21 U.S.C,§ 846

and 18 U.S.C § 924(c) in the southern District of New York. Petitioner

pled not guity to the only charge against him (conspiracy) and a jury

trial was commenced on March 16th, 2009 and concluded on March 27th, 2009

where he was convicted of a violation of conspiracy to possess with the

intent to distribute five kilograms or more of cocaine.

1. Prior to the arrest of petitioner, the government instituted an appli

cation for authorization to intercept wire communications under title III

on June 26th, 2008, culminating in an order to intercept communications

under title III for two cellular phones used by co-conspirators. During the

course of the wire interception period, 13, 975 calls were intercepted by

law enforcement agents. Only one call intercepted on July 11th, 2008 invol­

ved the petitioner, such was interpreted by the DEA to be regarding drugs.

Ergo, there was no trial preparation by counsel (Jason Russo), no motion

filed and counsel simply flew by the seat of his pants.

Such failure of petitioner trial counsel to undertake the proper steps to

receive the government case file was almost certainly deficient. Rompilla

v. Beard, 545 U.S 374, 387, 125 S.ct 2456, 162 L.ed 2d 360 (2005) ("it is

the duty of the lawyer to conduct a prompt investigation of the circumstances "of the case...TKe“InvestIgation “should always include efforts to

secure information in the possession of the prosecution and law enforce­

ment authorities"(quoting the ABA standards)).

A. Title III requested was made to the Honorable Sidney H. Stein of the

Southern District of New York, a 30 day order was granted, but was never

filed and/or docketed in case #08-cr-789(RJS)[as required by DOJ.poligy

and statue].

BOn or about July 15th, 2008, the government commenced another appli­

cation for authorization to intercept wire communications and submitted

the application to the Honorable Laura Taylor Swain with the Southern

4

District of New York, which was granted for a 30 day period. Again, no

docketed entry under case #08-cr-789(RJS)[nor can this order or applicat­

ion or affidavit be found].

C. On June 7th, 2017, Petitioner sent a request to Judge Alvin K. Heller

stein seeking the law enforcement affidavit filed in support of the title

III he had granted posted the above reference-such was required to be kept

and produced under statutory and DOJ policy and procedure. Subsequently,

Judge Hellerstein responded on the face of the request "denied without pre­

judice. Appl'n should be made to Judge Sullivan, the judge presiding over

appellant's trial 6-13-17". See Appx. D

Apparently, Judge Hellerstein forwarded petitioner's request to judge

Sullivan-by the 16th of June 2017, Judge Sullivan responded as well on the

back of the document "The court is not in possession of the documents

referred to in petitioner's, nor is it in possession of any information

about where the document might be. A copy of this letter request will be

forwarded to defense counsel and the government". See Appx. E

D. On or about August 1st, 2017, Petitioner, incompliance with jucjqe

,

Sullivan's instruction that "petitioner is free to contacted the govern­

ment, former counsel (Jason Russo) and the agent via certify U.S. mailhis due diligence proven futile. See Appx. F

2. Petitioner obtained a declaration of a Peter C. Sprung a trial attorney in the criminal division for the U.S. Department of Justice-his declaration explains the title III process, the data bases, records and document

maintained by the Department of Justice, pertaining to title III wiretaps.

Petitioner then filed a motion under rule 60(b)(3) and/or (d)(3) on the

17th of January 2018 with the assertion of the government pierpetrated "mis

coTrdrrct am d—irraud^'^upcm—the-comrt-dura-nq—his—trial—and—atta-ehed—Peher—---Sprung declaration with detail information of the whereabouts and/or stor­

age of (June226ih & July 15th 2008) database, records and documents should

be. The District court's ordered thfe government to respond by March 29th,

2018-approximately,2mtfi; post petitioner's filing of motion for relief

pursuant to rule 60(b)(3) and/or (d)(3). Case #12-cv—1954; Doc #21).

3. On the 24th of April 2018, Petitioner moved to entering a default

judgment pursuant to Fed. R. Civ. P. 55(a) which was entered into his

criminal docket instead of the civil docket-Petitioner filings within the

district court was convoluted between both his criminal and civil case

5

numbers such as to incite ill will. (See Doc. entry #374 (08-cr-789(RJS))

An extension of time mysteriously appeared in the docket (#34) for the

Government to response, some four and a half months later (April 12th,

2018)-during the government response a declaration of petitioner's former

trial counsel (Jason Russo) was attached. The Russo's declaration was

undated and bare-a-forged signature, the fraudulent document was made to

look genuine with the intent to deceive petitioner and the court's. See

Appx. G

4. Petitioner immediately filed another motion pursuant to rule 60(b)

and/or (d)(3) notice of fraud on the court and requested for the court's

to order the government to show cause for the fraudulent document entered

into the records (Doc #38 and #377).

By the 18th of April 2018, Petitioner filed a motion seeking permission

to reply to the' government erroneous response and the district court refuse

to acknowledge such and denied both of Petitioner's motions-and order the

clerk to "terminate the motions pending at docket #'s 23 & 25 in case No.

12-CV-1954 and docket #'s 359 & 362 in case no. 08-cr-789" by the 8th of

May 2018 without any certificate of appealability (COA).

5. The District court alleged that petitioner prove was six years old

and individuals signature changes through out the years-Petitioner set out

to prove the court's ruling was erroneous, because a permutation of Russo

signature incite ill will within the machinery of the court. See Appx H

Amid of petitioner's extensive search for material evidence of present

signature(s) of Russo-he was illegally apprehended and placed into a

special housing unit (SHU), his legal material was confiscated approximate

dry—sirx—months—(rj-an-;—3-1-s-tr-thru—June—2-6-fch—2-0-19-)—-H3uri-ng—Wri-s—time—period------petitioner took it upon himself to put the district court on notice of the

goverojeartt impediment. (Doc #388) ■

6. Upon petitioner's released from the SHU (without any incident report)

they had misplaced and confiscated his legal material with the additional

evidence needed of the forged declaration of Russo. By the 16th of October

2019 Petitioner retrieved the additional evidence again and filed a motion

to re-open his rule 60(b) which was subsequently denied has been untimelyhence, petitioner had demonstrated upon the court's, the reason he should

be granted equitable tolling for the five and a half months spent in the

6

n

\r.

SHU, where his legal materials been confiscated that had hampered his

filing which was any;fault of his.

In addition to denying petitoner's motion to re-open his rule 60{b) motion

the district court also decline to issue a certificate of appealability

and a timely notice of appeal was filed. His petition to the Court of

Appeal seeking a COA was denied to penumbras the fraudulent document

(Russo Decl), the reason for a writ of certiorari which seeks review of

the denial of petitioner's application for a COA by the courts.

7

REASONS FOR GRANTING THE PETITION

Question I

Whether the government sought to diminish the likelihood of

Petitioner's finding of a brady violation, by interjected a

manufactured declaration to mislead the machinery of the

court

The government sought to diminish petitioner's concession by submit­

ting an undated fraudulent document to conceal wiretap applications (June

26th & July. 15th, 2008) that had been wrongfully witheld during his trial,

evidence of such were essential to a a fair and proper consideration of the

merits of petitioner's Rule 60(b) motion presented to the courts.

Petitioner believed not only that the government had concealed the wiretaps

application, but also that the attorneys had acted intentionally to hide

svidence that was damaging to themself—making it impossible for petitioner

to challenge the assertion of privilege. These accusations track the alle­

gations in petitioner proposed Rule 60(b) claims that the government "in­

tentionally" witheld certain key documents from the trial that should have

been produced in discovery.

Specifically, "[A] fraud on the court' ocur where it can be demonstrated,

and convincingly, that a party has sentiently set in motion some

unconscionable scheme calculated to interfere with the judicial system's

ability impartially to adjudicate a matter by improperly influencing the

trier or unfairly hampering the presentation of the opposing party's claim

or defense. See, Passlogix Inc. v 2FA Tech. LLC, 708 f.supp 2d 378, 383

(2nd cir 2010).

Significantly, courts within the second circuit have dismissed cases

upon determining the actions were based on forged documents or fabricated

evidence. See Shangold v Walt Disney Co. 275 Fed. Appx 72, 73-74 (2nd cir

2008); See also Universal Oil Products Co. v United States 328 U.S. 575,

580, 66 S.ct 1.176, 90 L.ed 1 447 (1 946) ( "The inherent power of a federal

court to investigate whether a judgment was obtained by fraud is beyond

question"(citing Hazel-Atlas Glass Co; 322 U.S. 238, 64 S.ct 997, 88 L.ed

1250, 1944 Dec. Comm'r Pat. 675)).

Petitioner put emphasis on the fact that regardless of whether or not

the government buried the wiretap application within the case file, refer­

ence as a ploy-those who managed the government's case knew of the wiretap

8

applications, chose to not entered such into the docket, wrongfully with­

held it at trial and willfully entered a fraudulent declaration of petit­

ioner's trial counsel (Russo) to deceive the petitioner. Here, petitioner

could have found the wiretap application if he had been more diligent but,

rather, unthinkable that he would have sought the middle ground between

complete suppression and complete disclosure that an artfully disguised

document can provide.

Ergo, [there was no trial preparation by counsel (Russo), no motion

filed and Russo simply flew by the seat of his pants. Such failure of

petitioner's trial counsel to undertake the proper steps to receive the

government's case file was almost certainly deficient. See Rompilla v.

Beard, 545 U.S. 374, 387, 125 S.ct 2456, 162 L.ed 2d 360(2005)("It is the

duty of the lawyer to conduct a prompt investigation of the circumstances

of the case....The investigation should always include efforts to secure

information in the possession of the prosecution and law enforcement

authorities" (quoting ABA standards)).].

As the Supreme court noted in Hazel-Atlas Glass Co. v Hartford Co.

322 U.S. 238, 246, 88 L.ed 1250, 64 S.ct 997, reh'g denied, 322 U.S. 772,

88 L.ed 1596, 64 S.ct 1281(1944), a case that also involved an alleged

fraudulent document: even if Hazel did not exercise the highest degree of

. diligence, Hartford's fraud cannot be condoned for that reason alone.

Tampering with the administration of justice in the manner indisputably

shown here involves far more than an injury to a single litigant.

«

UNDATED DECLARATION

The government's purported declaration fails, because of the statue

given----xequixemeTrt to sutrsiri t u t e forr an

under the penalty of perjury and dated. Even if the court construes the

government "affidavit" to be a declaration, the declaration does not meet

the requirement as well. See Bonds v Cox, 20 F3d 697(6th cir 1994)(refusing

to consider declarations which although subscribed under penalty of perjury

were not dated as required by statue); See also Counts v Kraton Polymers.,

U.S. L.LC No. 2:05-cv-124, 2006 U.S. Dist. Lexis 65312 (S.D. Ohio Sept. 13,

2006)(it is appropriate to substitute a declaration for a Fed. R. Civ. P

56(e) affidavit, but „i;tjte just permissible to present an undated declaration

that lacks a discernible date of signing as summary judgment evidence).

9

)

Declarations must to be considered as evidence, by signed, dated and

if executed within the United States, include a statement attesting that

"under penalty of perjury". See Maior v Astrazeneca, 2006 WL 2640622 at

*6 (N.D.N.Y. Sept. 13th, 2006)(holding undated declaration inadmissable).

See also Wells v Cramer, 262 fed. appx. 184, 2008 WL 110088 at *3 (11th

cir 2008)(stating "Federal law...does not provide an alternative to making

a sworn statement, but requires that the statement include a handwritten

averment, signed and dated, that the statement is true under the penalties

of perj ury") .

The Russo's declaration (appx G) does not comport with the federal rules

to be considered as evidence in this matter and refused was to allowed

y

petitioner to litigate such-similarly, under 28 U.S.C. § 1746 a declaration

submitted "under the penalty of perjury and dated" is admissible in lieu

/

of a sworn affidavit on a motion for summary judgment. When the lower court

has left factual issues such as assertion of fraudulet document with undated

declaration used as evidence against petitioner unresolved, such demonstrate

that the government have improperly influenced this court in its decision

by a preordinated, cunning, unconscionable plan or scheme of defense based

upon a great deal of misrepresentation and misconduct.

In short, the record here has establish that the district court erred not

requiring proof of Russo's signature and/or complicity in the government

manufacture declaration to mislead the machinery of the court,without an

evidentiary hearing. See Dopp v Franklin National Bank, 461 f.2d 873, 879

(2nd cir 1972)("a judge should not resolve a factual dispute on affidavits

or depositions, for then he is merely showing a preference for "one piece

of paper to another"".). See also Pham v United States., 317 F.3d 178 (2nd

cir 2003)("Precedent of the United States Court of Appeals for the Second

ei-roudrt-eHrs-appr-oves—of—s-uinma-ry—diirsm-fs-isai—o-f—petirtion-s--where—faetu-ai—iss-aes----

exits, but it permit a "middle road" of deciding disputed facts on the

basis of written submissions").

Opinions from Circuit Courts in all eleven circuit held that the solemn

testimony, under oath, judged for credibility by the fact finders, is more

persuasive than affidavits recanting earlier testimony. Thus, a trier of

facts can be evaluated... 1) the testimony of Russo and the explanation of

the wiretap warrants; 2)Petitioner1s assertion of the fraudulent declarat­

ion and 3) make a determination as to credibility via an evidentiary hear­

ing, such woaidthsvssddisintegated before the courts. Sherlock Holmes once

said "...when you eliminated the impossible, whatever remains, however

10

a

improbable must be the truth".

A hearing was necessary to assess the credibility of witnesses, because

"credibility determination cannot be based on affidavits or countered by

conclusory statements, but maybe resolved only by recourse to a full evid

entiary hearing. (Quoting Newman 705 A.2d 246 (D.C. 1997)). See also Machibroda v United States, 368 U.S. 487, 495 (1962)(A district court, however

must grant an evidentiary hearing if the petitioner "alleges facts that if

proven, would entitle him to relief").

BRADY VIOLATION

Petitioner's trial counsel could not have uncovered the suppression

of the material evidence that has now been exposed after more than a decade,

as a result of Peter C. Sprung declaration-because the government had

hitherto concealed them. The lack of access to these material evidence

(wiretap application) had seriously impeded petitioner's ability to raise

argruments of a brady violation. As articulated in Brady and its progeny,

the government is required to disclose "evidence favorable to an accused...

where the evidence is material, either toguilt or to punishment" See

Brady v Maryland, 373 U.S. 83, 87, 83 S.ct 1194, 10 L.ed 2d 215 (1963);

also see Copa, 267 F.3d 132, 135 (2nd cir 2001)(citing Giglio v United

States, 405 U.S. 150, 154, 92 S.ct 763, 31 L.ed 2d 104 (1972)) This duty.to

disclose favorable evidence includes "not only exculpatory material, but

also information that could be used to impeach a key government witness".

The government attorneys in this case intentionally witheld information,

offered into evidence an intentionally misleading document demonizing the

the process of petitioner's Rule 60(b), it can hardly be argued that such

—acrti-on—do—not—eonstirtute-^ira-ud—on—-the—eou-rt—tmder-iSui-e—---------------------------

11

Question II

Does the Court of Appeals denial of a Certificate of

Appealability sanctioned the lower court predisposition

towards the benefit of the Government, call for an exer­

cise of this court's supervisory power

This court should grant this petition for writ of certiorari because

of the lower court's; 1) interpretation of the statute of limination re­

garding fraud on the court and 2) the government brought into the case a

fraudulet document that went to the heart of the case. Petitioner had pre­

sented overwheling evidence that the declaration was forged and undated-the

government had intentionally put forward this manufactured evidence and

committed a fraud on the court. To be entitled to a COA, this court has

stressed that "the decision to grant a COA is a "threshold inquiry" into

whether "jurist of reason" could disagree with the district court's resolu­

tion ...or the jurist could conclude the issue presented are adequate to

deserve encouragement to proceed further". See Miller-EL v. Cockrell, 537

U.S. 322,327, 123 S.ct 1029., 154 L.ed 2d 931 (2003); See also Barefoot;; v.

Estelle, 463 U.S. 880, 893. N4. 103 S.Ct 3383, 77 L.ed 2d 1090 (1983).

Here, the District court had denied petitioner's Rule 60(b) motion and

COA, because it determined that the motion was untimely-Typically, motions

to set aside judgments are subjected to a one year bar (Rule 60(c)(1)). If

however, a plaintiff alleges that a fraud was committed against the court,

there is no such bar. Rule 60(d)(3) thus allows claimants to escape Rule 60

(c)(1) one year statute of limitations imposed on Rule 60(b)(3) motion for

fraud , and allege fraud on the court regardless of the passage of time. S

See Parkhurst v. Pittsburg Paints Inc., 399 Fed. Appx 341, 2010 WL 4069430

at 1(10th cir 2010); Therefore, there is no statue of limitations.for

bringing a fraud upon the court claim. Hazel-Atlas Glass Co. v HartfordEmpire Co. 322 U.S. 238, 244, 64 S.Ct 997, 88 ~L.3d 1250, 1~97r?nDle^~T^mm'r

Pat. 675(1944); See also Kenner v Comm'r of Internal Revenue, 387 F.2d

689, 692 (7th cir 1968)("A decision produced by fraud on the court.is not

in essence a decision at all and never becomes final").

Petitioner's COA should have been granted, because his Rule 60(b)

motion was brought pursuant to subsections (b)(3) and (d)(3) of the Rule.

The time limitation cited by the District court does not apply to a motion

made under these subsections, which may be brought a,t anytime.

See Anderson v New York No. 07-cv-9599, 2012 U.S. Dist Lexis 142628, 2012

WL 4513410, at *4(S.D.N.Y. 2012)

12

In Liteky, this court stated that the "judges opinions or comments must

demonstrate such high degree of favoritism or antagonism as to make fair

judgment impossible. Liteky, 510 U.S. at 555.

Here, Petitioner was defy with a systematically abused of the judicial

process in order to make it difficult and/or impossible for him to surpass

the COA standards

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Question III

Did the lower courts applied the proper legal standard for

Petitioner's Equitably Tolling before such denial, which

conflicted with the decision of other Circuits

Out of an abundance of caution, Petitioner avers that lack of access

to his legal material constituted extraordinary circumstance beyond his

control, when he was illegally apprehended and placed into an administrat­

ive segregation. This Supreme court has held that, under "extraordinary

circumstances" court's may apply equitable tolling if the prisoner was

prevented from filing a time petition by circumstances beyond her control

and she demonstrated due diligence in pursuing her claim. See Lawerence v

Florida, 549 U.S. 327, 336, 127 S.Ct 1079, 166 L.ed 2d 924(2007); See also;.

Valverde v Stinson, 224 F.3d 129, 133-34(2d cir 2000) where prison official

intentionally obstruct a [Plaintiff^s] ability to file his [complaint] by

confiscating his legal papers.

Lack of access to Petitioner's own legal materials must be coupled

with due diligence to warran equitable tolling-In Petitioner's motion to

reopen Rule 60(b), he had demonstrated his due diligence by putting the.

court's on notice while housed in segregation (Doc #388; 08-cr-789) and

upon his released from such, his legal material was misplaced. See Appx I

Petitioner had faced a host of procedural obstacles to have the lower

courts consider his Rule 60(b) petition, he might have properly raise a

claim for relief pursuant to Rule 60(b). See Gonzalez v Crosby, 545 U.S.

524, 535-536, 125 S.Ct 2641, 162 L.ed 2d 480(2005), to obtain such relief

he must demonstrate both the motion's timeliness and more significant, ■;

that I !« extraordinary circumstance' justif[y] the reopening of a final

judment"ld., at 535, 125 S.Ct 2641, 162 L.ed 2d 480{quoting Ackerman v

United States, 340 U.S. 193, 199, 71 S.Ct 209, 95 L.ed 2d 207(1950)).

B.

Furthermore, the Government was never given a chance to calculated

the amount of untolled time that had passed and/or conceded that the

motion to reopen Petitioner's Rule 60(b) was untimely, because the District

court identified the supposed error, rasied the issue sua sponte and

dismissed the motion. This court made it clear in Day v. Me Donough, 547

U.S." 198, 2T0, 126. S:.:Ct 1675, 1 64 L.ed 2d 376 (2006) ( [B]efore acting on its

own initiative, a court must accord the parties fair notice and an

14

opportunity to present their positions). Greenlaw v U.S. 534 U.S. at 243

Here, Petitioner was illegally placed into segregation for a substanial

period of time-his confiscated legal materials constituted "misconduct on

the part of the Correction Officer" and this misconduct prevented him from

filing his motion to reopen Rule 60(b) within the one year [period of]

limitation supposedly.

there was no evidence in the record that rebutted these assertions and if

"the underlying facts or circumstances relied upon by a Plaintiff maybe a

proper subject of relief, he ought to be afforded an opportunity to test

his claim on the merits". Forman, 371 U.S. at 182.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

T7

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Date:

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