Petition for Writ of Certiorari — Misael Cordero, Petitioner v. Jonathan Gramp, Administrator, East Jersey State Prison

Supreme Court briefNov 4, 2021

Ask Donna

What actually matters in this document.

Text

.*■

No.

V -fig

IN THE

FILED

Supreme Court of the United States

NOV 0 h 2021

S>UPREEM°FCCyURTLN

MISAEL CORDERO,

;

/■

Petitioner,

ADMINISTRATOR EAST JERSEY STATE PRISON, ET AL.,

Respondents.

On Petition for Writ of Certiorari

To The United States Court of Appeals

For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

Misael Cordero, pro se

#257533/SBI#551325 B

East Jersey State Prison

Lock Back R

Rahway, New Jersey 07065

v ft•

■’*

• ->

QUESTIONS PRESENTED

1. Which divided Courts of Appeals are correct: the Eleventh, Fifth and

Second Circuits holding that a due process violation occurs when the government

knowingly uses false testimony even if the defense knows of the false testimony,

or the Fourth, Seventh and District of Columbia Circuits holding that if the defense

is aware of the false testimony no due process violation occurs?

2. Which divided Courts of Appeals are correct: the Ninth and Third Circuits

holding that the actual prejudice Brecht standard does not apply to perjuredtestimony in habeas corpus cases, or the First, Sixth, Eighth, and Eleventh Giicuits

holding the opposite?

3. Can defense attorneys allow the government to knowingly use false

testimonies to convict their clients without violating their clients’ right to effective

representation under the Sixth Amendment?

4. When criminal defense attorneys provide deficient representation during

plea negotiations that prevent the plea negotiations to materialize into plea

agreements that would have resulted in sentences lower than the ones received

after trial, have they violated their clients’ Sixth Amendment right, and what would

be the remedy?

•w

LIST OF PARTIES

Misael Cordero, Petitioner

Robert Chetirkin, Administrator of East Jersey State Prison

Andrew J. Bruck, Attorney General of New Jersey

TABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF PARTIES

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION........................... ....................................... *.............

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I. Two Distinct Splits Exist Among Some United States Courts

Of Appeals, (1) Whether A Due Process Violation Occurs

When The Government Knowingly Uses A False Testimony Known To The Defense - To Secure A Conviction, And (2)

Whether The Actual Prejudice Brecht Standard Applies To

Perjured-Testimony In Habeas Cases.........................................

II. The Defense Admitted That It Provided Ineffective Legal

Representation During Plea Negotiations That Prevented

Petitioner From Resolving This Case Via A Plea Deal And

Receive A sentence Lower Than the Life Sentence He Ended

Up With...... ....................... ................ ..........................................

III. Incorrect Translations Are Violating Defendants’

Constitutional Rights To Due Process For Lack Of

Clearly Established Federal Law.............. ..............................

IV. The Sixth Amendment Right To An Impartial Jury Was Not

Afforded In This Case...............................••••............................

CONCLUSION

iii

INDEX TO APPENDICES

APPENDIX A Last Opinion of Federal Court of Appeals

APPENDIX B Last Opinion of the District Court

APPENDIX C First Opinion of Federal Court of Appeals

APPENDIX D First Opinion of the District Court

APPENDIX E Excerpt of Petitioner’s Brief filed in the District Court

APPENDIX F Reports from the 1992 investigation in this case

TABLE OF AUTHORITIES CITED

Page Number

Cases

Alvares v. Warden, 2019 U.S. Dist. LEXIS 57594

Bisaccia v. Attorney General 623 F.2d 307 (1980).

Brecht v. Abrahamson, 507 U.S. 619 (1993)

passim

Buck v. Davis, 137 S. Ct. 759 (2017)

Demarco v. United states. 928 F.2d 1074 (11th Cir. 1991)

Donnelly v. DeChristoforo, 416 U.S. 637 (1974)

Gielio v. United States, 405 U.S. 150 (1972)

Gildav v. Callahan, 59 F.3d 257 (1st Cir. 1995)

Haskell v. Superintendent Green SCI, 866 F.3d 139

(3d Cir. 2017)

Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005)

Jae Lee v. United States, 2017 US LEXIS 4045

Labb v. United States, 218 F.2d 538 (5th Cir. 1955)

Lafler v. Cooper, 566 U.S. 156 (2012)

Miller v. Pate, 386 U.S. 1 (1967)........

Missouri v. Frye, 566 U.S. 134 (2012)

12,16

Mooney v. Holohan, 294 U.S. 103 (1935)

Napue v. Illinois, 360 U.S. 264 (1959)

Pvle v. Kansas. 317 U.S. 213 (1942)...

TABLE OF AUTHORITIES CONTINUES

Page Number

Cases

Rosencrantz v. Lafler, 568 F.3d 577 (6th Cir. 2009)

Ross v. Heyne, 638 F.2d 979 (7th Cir. 1980)

Ross v. Oklahoma, 487 US 81 (1988)

Trepal v. Sec'v. Florida Deo't of Corn, 684 F.3d 1088

(11th Cir. 2012)..................................... .........................

Shnewer v. United States, 2016 U.S. Dist. LEXIS 28891

(D.N.J., Mar. 7, 2016).............................................. •••••••

14,15

United States v. Agurs, 427 U.S. 97 (1976)......'........... ••

United States v. Clay, 720 F.3d 1021 (8th Cir. 2013)

United States v. Iverson, 208 U.S. App. D.C. 364,

648 F.2d 737 (D.C. Cir. 1981).................... ....................

United States v. Meinster, 619 F.2d 1041 (4th Cir. 1980)

United States v. Sanfilippo, 564 F.2d 176 (5th Cir. 1977)

4,5

United States v. Valentine, 820 F.2d 565 (2d Cir. 1987)

United States ex rel. Washington v. Vincent, 525 F.2d 262

(2d Cir. 1975), cert, denied, 424 U.S. 934 (1976)

TABLE OF AUTHORITIES CONTINUES

STATUTES

28 U.S.C. § 1254(1)

28 U.S.C. § 2253

Anti-Terrorism and Effective Death Penalty Act of 1996

OTHER

United States Constitution, Amendment VI

United States Constitution, Amendment XIV

vii

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner humbly prays that a writ of certiorari be issued to review the

major claims of constitutional violations involve in this case.

OPINIONS BELOW

The unpublished opinions of the United States Court of Appeals for the

Third Circuit appear as Appendices A and C, attached to this petition.

The Opinions of the United States District Court appear as Appendices B

and D, attached to this petition.

JURISDICTION

The last date on which the United States Court of Appeals for the Third

Circuit decided a claim on this case was September 8, 2021. (Appendix A).

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Six Amendment right to a fair trial, an impartial jury, and to efficient

representation during plea negotiations and trial.

The Fourteenth Amendment right to due process, not to be convicted by

false testimony.

The Fourteenth Amendment right to due process, not to be prejudiced by

errors made by court appointed interpreters.

STATEMENT OF THE CASE

The Government knowingly used two false testimonies to secure the

conviction. The record is unclear as to whether the defense was aware of the false

testimony from one of the detectives, which was used by the Government m its

summation. But the record clearly shows that the defense was aware of the false

testimony from Petitioner’s co-defendant and still let the Government use it against

Petitioner. Some United States Courts of Appeals are divided as to whether the

intentional use of false testimony by the government constitutes a due process

violation, when the defense too is aware of the false testimony . There is also a

division among some United States Courts of Appeals as to whether the actual

prejudice standard addressed by this Court in Brecht v. Abrahamson , 507 U.S.,619,

637-38 (1993) applies to perjured-testimony in habeas cases. No Certificate of

Appealability (“COA”) was granted on the false-testimony claims despite meeting

the COA requirements established by this Court. This case involves a two-fold

claim of deficient legal representation during plea negotiations. The first aspect of

the claim is that Petitioner would have used 3,247 days of gap-time credit, as well

as the fact that five counts of the seven-count indictment were time-barred, to

negotiate a plea deal that he would have accepted had counsel not failed to advise

him about these two important facts. No COA was ever granted on this aspect of

the claim.

The second aspect of the plea-claim is that had Petitioner been advised of

these two facts he would have accepted one of the oral plea offers proffered by the

Government. Two COAs were granted on this second aspect of the claim. But

even though the defense admitted that its errors prevented the plea negotiations to

materialize into a plea agreement that would have resulted in a sentence lower than

the life sentence given to Petitioner after trial, no prejudice was found. The tiail

court overruled the defense’s objections and allowed two jurois to deliberate even

though their partiality was exposed by another juror. Court appointed interpreters

conceded making errors in translating the testimony of a government s witness, but

no corrections were made and the defense’s motion for a mistrial was denied.

REASONS FOR GRANTING THE PETITION

I. Two Distinct Splits Exist Among Some United States Courts Of Appeals,

(1) Whether A Due Process Violation Occurs When The Government

Knowingly Uses A False Testimony - Known To The Defense - To Secure

A Conviction, And (2) Whether The Actual Prejudice Brecht Standard

Applies To Perjured-Testimony In Habeas Cases

A. The First Split

On multiple occasions this Court has held that the Government is prohibited

from knowingly using false evidence to obtain criminal convictions because it is

fundamentally unfair to the accused where the prosecution s case includes peijured

testimony and the government knew, or should have known, of the perjury. Giglw

v. 'United States. 405 U.S. 150, 153 (1972); Name v. 'Illinois, 360 U.S. 264, 269

(1959); Pvlev. Kansas, 311 U.S. 213, 216 (1942); Mooney v. Holohan, 294 U.S,

103,112(1935). United States v. Asurs, 427 U.S. 97, 103 (1976). Butthe

question as to whether this Court’s prohibition also applies to cases in which the

defense is aware of the false testimony remains in dispute, and theie is a split

amo ng some United States Courts of Appeals on this issue. According to the

Eleventh, Fifth and Second Circuits if the defense is aware of the false testimony

but does not object to it, that does not neutralize the due process violation

especially if the. government uses the false testimony during summation. See

Demarco v. United states, 928 F.2d 1074 (11th Cir. 1991); United States, y,

Sanfilipyo, 564 F.2d 176 (5th Cir. 1977); United States v. Valentine, 820 F.2d

■ 565 (2d Cir. 1987); United States ex rel. Washington v. Vincent, 525 F.2d 262 (2d

Cir: 1975), cert, denied, 424 U.S. 934 (1976). But according to the Court of

Appeals from the District of Columbia, the Seventh and the Fourth Circuits, there

is no violation of due process resulting from the government knowingly presenting

a false testimony if defense counsel is aware of it and fails to object. See United

States v. Iverson\ 208 U.S. App. D.C. 364, 648 F.2d 737 (D.C. Cir. 1981); Rossv^

Hevne, 638 F.2d 979 (7th Cir. 1980), and United States v. Meinster, 619 F.2d

1041 (4th Cir. 1980).

B. The First False Testimony

Here, the Government’s case depended on the testimony of its two main

witnesses hereinafter Cynthia and Santiago. Without their testimonies, theie could

have been no indictment and no evidence to carry the case to the jury. The

Government’s theory was that the detectives interrogated Cynthia in 1999 to see it

she had any information concerning an unrelated ,homicide. But that Cynthia

vo luntarily informed the detectives about this homicide instead in which she

inculpated the Petitioner, and stated that Santiago could have been involved as

well. Petitioner’s defense consisted of attacking Cynthia s and Santiago s

credibility because Cynthia is a drug addict with a criminal record who was

accusing Petitioner with facts given to her by the detectives, and Santiago has a

documented history of blaming others for his crimes as well as a criminal record.

During cross-examination, Cynthia finally confessed that when the detectives

confronted her in 1999 they told her that the victim in this case had been shot, in an

apartment during a drug deal with Petitioner, and threatened to charge her with an

unrelated murder and with taking her kids away if she did not cooperate with them.

Cynthia also attested that she was not permitted to talk to a lawyer. The first of the

three statements memorializing Cynthia’s interrogation shows that the detectives

began interrogating her at 11:30 A.M., the Miranda warnings were given to

Cynthia after her statement had ended at T. 10 P.M., and Cynthia signed the

Miranda waiver form at 1:15 P.M. (T. 4/23/02 at P.144 L.20-23; T. 4/24/02 at P.73

L.l-17; T. 5/1/02 at P.75 L.1-9). To mitigate the damage caused by Cynthia’s

confession a detective testified after her and asserted, falsely, that prior to talking

to Cynthia in 1999 he knew nothing about this homicide and had no information to

give her concerning this homicide. The detective also attested that he had never

reviewed a file on this case because no file existed prior to 1999, and that the only

file involving this homicide is the one generated by him in 1999. (T. 4/30/02 at

P.85 L. 11 to P.86 L.2). The Government then emphasized to the jury during

summation that it would have been impossible for the detective to have given

information to Cynthia about this homicide, because according to the detective

prior to 1999 no information nor file existed concerning this homicide:

[Government’s Summation]: The detective told you on the stand that

he did not even know that Elias Lopez existed or that he was dead. And I

think it’s important that she brought it up. That she told the detective. [].

I mean, the implication is that the State told this witness- -the witness how

to testify and gave them the information. The detective testified-and you

have to decide who you believe here-that he didn’t know anything about

that homicide. She brought it up, if the detectives are telling her what to say,

then you have to decide where are the detectives getting this information

from. (T. 5/8/02 at P.123 L. 17 to P.124 L. 19).

The detective’s testimony as well as the Government’s argument to the jury

are clearly and unequivocally false and the Government was aware of the

falsehood. Indeed, the Government was in possession of three reports from a 1992

investigation of this homicide. According to these 1992 reports, the victim had

been shot in the head by Petitioner in an apartment in Newark, New Jersey during

a cocaine deal. Therefore the detective did have information regarding this

homicide prior to taking to Cynthia in 1999, and could indeed had giving it to her.

(Appendix F). It is unclear whether trial counsel was in possession of the 1992

reports prior to trial. When asked at the state evidentiary hearing, trial counsel

testified that he has no knowledge about the existence of the 1992 reports and

evaded giving an answer as to why the Government was allowed to use the

detective’s false testimony to destroy Petitioner’s defense and convict him. (T.

6/27/08 at P.27 L.17 to P.28 L.24, P.36 L.12 to P.39 L.23). Petitioner was

provided with the 1992 reports after the trial in this case was over. The

Government provided the reports together with the discovery of another case that

was tried subsequent to this one. This false-testimony argument was not addressed

by the state courts, nor the District Court, nor the Third Circuit Court of Appeals

even though it was raised by Petitioner pro se in all those courts. Petitioner raised

it asserting a due process violation and labeled it under ineffective assistance of

counsel. (See Appendix E at Prejudice Caused by Counsel’s Ineffectiveness, Part

Two).

C. The Second False Testimony

The detectives confronted Santiago and alleged to him that Cynthia had

inculpated Petitioner and himself in this homicide. Santiago gave a statement to

the detectives saying that a guy named Jose Caraballo committed this homicide by

shooting the victim in the head because Petitioner paid him to do it, and that

Caraballo died of AIDS soon after. As a result of Cynthia’s and Santiago’s

allegations, Petitioner was indicted under Indictment Number 00-6-1614. Based

on some concerned members of the Prosecutor’s Office, Cynthia was given several

polygraphs regarding her story involving the Petitioner in this homicide, and she

failed them all. As a result, Santiago too was asked to take a polygraph. But to

avoid taking the lie detector test Santiago changed his story which caused the

dismissal of Indictment Number 00-6-1614 against Petitioner. In his new

statement, Santiago alleged that he shot and killed the victim because Petitioner

paid him to do it. But Santiago never took the polygraph. The Government

presented Santiago’s new story to a Grand Jury in front of which Santiago and a

detective testified that "a polygraph was the reason why Santiago changed his

story.” Petitioner was re-indicted under Indictment Number 00-12-3513. (T.

12/15/00 at P.15 L.22 to P.16 L.7).

At trial, to avoid mentioning the word polygraph to the jury, the Government

and the defense agreed that Santiago was going to testify that he changed his story

because the detectives confronted him with additional information. So the trial

court instructed Santiago accordingly. But when asked by the Government why he

changed his story, Santiago testified falsely to enhance his credibility and told the

jury that "he changed his story because he became a bom again Christian and God

gave him the courage to tell the truth." (T. 4/24/02 at P.190 L.9 to P.191 L.3, T.

4/25/02 P.3 L.5 to P.4 L.2, P.9 L.l-11). The Government did not correct

Santiago’s religious testimony although knowing that it was completely false.

Neither did the defense even though trial counsel’s position was that Santiago was

a liar who could not be believed. Moreover, the defense was also aware that even

the use of tme religious testimony to enhance credibility is prohibited under New

Jersey Rule of Evidence 610, which makes it a bigger unsound decision not to

correct the false religious testimony. Evidentiary errors in state cases aie

considered to be of constitutional proportion and cognizable in federal habeas

corpus proceedings if, like in the present case, the errors deprive a defendant of

fundamental fairness in his criminal trial. Donnelly v. DeChristoforo, 416 U.S.

637, 642-43 (1974). This false-testimony argument was addressed halfway by the

state courts and the District Court. The false part of it was overlooked by said

courts, and it was addressed only as a violation of New Jersey Rule of evidence

610, but was found to be a sound strategic decision by trial counsel even though it

violates the due process doctrine, affected the fairness of the trial, and it is

antithetical to many precedents from this Court. (See Appendix E at Prejudice

Caused by Counsel’s Ineffectiveness, Part Three; Appendix D at 6-7).

The defense exacerbated the prejudice caused by Santiago’s false religious

testimony by failing to ask the trial court to instruct the jury that Santiago’s guilty

plea may not be used as substantive evidence of Petitioner's guilt. Prior to the

1996 Anti-Terrorism and Effective Death Penalty Act (“AEDPA ), under

precedents from the Fifth and Third Circuit Courts of Appeals it is a violation of

due process to use a co-conspirator's guilty plea as substantive proof of a

defendant's complicity in a conspiracy without cautionary instruction. But after the

enactment of the AEDPA it is unclear if state juries are constitutionally permitted

to use a defendant's guilty plea as substantive proof of a co-defendant’s guilt.

Bisaccia v. Attorney General, 623 F.2d 307 (1980), citing Labbv. United States^

218 F.2d 538 (5th Cir. 1955).

It must be emphasized that the jury requested a readback of the entire

testimony of Cynthia and Santiago. Only then, the jury returned with a guilty

verdict. Therefore without the two false testimonies the jury would have not

convicted the Petitioner. In fact, during sentencing the Judge stated on the record

“T impose a sentence based upon my assumption that the jury verdict is the correct

one. What I would do if I had been a juror, who knows. Obviously, for example,

on the possession of a weapon by a convicted felon which was tried before me

non-jury I came to a different conclusion as to the ultimate charge of actual

possession than the jury did.” (T. 7/31/2002 at P.83 L.ll-17).

In sum, both false testimonies secured a conviction that according to

multiple precedents from this Court cannot stand. See Miller v. Pate, 386 U.S. 1,7

(1967), holding that "the Fourteenth Amendment cannot tolerate a state criminal

conviction obtained by the knowing use of false evidence."

D. The Second Split

There is another split among some United States Courts of Appeals as to

whether the “actual prejudice” Brecht standard applies to perjured-testimony cases

in habeas context. Brecht v. Abrahams on, 507 U.S. 619, 637-38 (1993). In 2017

the Third Circuit Court of Appeals addressed this split extensively and joined the

Ninth Circuit’s holdings that the “actual prejudice” Brecht standard does not apply

to perjured-testimony cases in habeas context. See Haskell v. Superintendent Green

SCI 866 F.3d 139, 150 (3d Cir. 2017); Haves v. Brown, 399 F.3d 972, 984 (9th

Cir. 2005). The Third Circuit differed from the First, Sixth, Eighth, and Eleventh

Circuits’ holdings that the “actual prejudice” Brecht standard does apply to

perjured-testimony in habeas corpus cases. See Gildavv. Callahan, 59 F.3d 257,

268 (1st Cir. 1995); Rosencrantz v. Lafler, 568 F.3d 577, 587-90 (6th Cir. 2009);

United States v. Claw 720 F.3d 1021, 1026-27 (8th Cir. 2013); Trepal v. Sec^

Florida Dev't of Corr., 684 F.3d 1088, 1111-13 (11th Cir. 2012).

Due to these two splits and the fact that this Honorable Court has repeatedly

ruled that the presentation of known and false evidence is incompatible with the

rudimentary demands of justice, Petitioner humbly prays that this petition be

granted. Or, at the minimum, that this case be remanded to the Third Circuit Court

of Appeals' to address this claim since that court declined to issue a COA even

though this claim meets the COA standard reconfirmed by this Court in Buck v.

Davis, 137 S. Ct. 759 (2017).

II. The Defense Admitted That It Provided Ineffective Legal Representation

During Plea Negotiations That Prevented Petitioner From Resolving This

Case Via A Plea Deal And Receive A sentence Lower Than the Life

Sentence He Ended Up With

This case presents a different question than the one answered by this

Honorable Court in Missouri v. Frye, 566 U.S. 134 (2012), and Lafler v. Cooper,

566 U.S. 156 (2012). Those cases involved defendants who alleged that, but for

their attorneys’ errors, they would have accepted a formal plea deal. But it still

unclear whether Frye and Cooper provide additional means for demonstrating

prejudice arising from the deficient performance of lawyers during plea

negotiations. Here, for example, the defense admitted that its errors prevented the

plea negotiations to materialize into a plea agreement that would have resulted in a

sentence lower than the life sentence given to Petitioner after trial. (T. 10/16/18 at

P.42 L. 14-24, P.43 L.8-13, P.56 L.3 to P. 57 L.8, P.81 L.17-23, P.98 L.3-5).

Accordingly, the facts and circumstances of this case show that even though no

formal plea agreement was reached due to counsel’s deficient performance during

the negotiations, a reasonable probability still existed that the case would have

been resolved via a plea agreement had counsel not erred. Now the main question

is what would be the appropriate remedy for such Sixth Amendment violation.

A somewhat similar scenario was presented to this Court in Jae Lee v.

United States. 2017 US LEXIS 4045, where Lee argued to this Court that he could

show prejudice because had his attorney advised him that he would be deported if

he accepted the government's plea offer, he would have bargained for a plea deal

that did not result in certain deportation. But this Court did not address this

argument because it found that Lee showed prejudice based on the reasonable

probability that he would have gone to trial. In this case, close to seven years into

a 50-year sentence for drug convictions Petitioner was charged as an accomplice

with first degree murder, first degree felony murder, second degree conspiracy to

commit murder, first degree robbery, second degree conspiracy to commit robbery,

third degree possession of a weapon, and second degree possession of a weapon.

The defense as well as the Government failed to realize that all counts - except for

the murder and felony murder counts - were time barred by the statute of

limitations. They also missed the fact that Petitioner was entitled to 3,247 days of

gap time credit. (Appendix B at 2 & 14). Plea negotiations were conducted that

did not materialize into a plea agreement, even though the Government and

Petitioner were willing to resolve the case via a plea deal. The reason why no plea

agreement was reached is because Petitioner was not advised that he was entitled

to 3,247 days of gap time credit that would have reduced the back number of a plea

deal, nor that he did not have to plead guilty to the non-murder counts for they

were time barred. (Appendix A at 6-7, footnote 4).

Petitioner raised a two-fold plea argument. First, Petitioner argued that he

would have used the statute of limitations and the gap time credit to negotiate and

accept a plea deal - as he did in a subsequent case - more favorable than the life

sentence he received after trial. The District Court denied this, aspect of

Petitioner’s claim and no COA was ever issued. (Appendix E at Prejudice caused

by Counsel’s Ineffectiveness, Part One; Appendix D at 6). However, since then,

the District Court of New Jersey has emphasized that a split exists among some

district courts around the country as to whether if a defense counsel errs during

plea negotiations and the defendant can establish that a plea agreement would have

resulted if not for defense counsel’s error, there is no reason why the usual twopart Strickland test should not be applied. See Shnewerv. United States, 2016 U.S.

Dist. LEXIS 28891 (D.N.J., Mar. 7, 2016), at number 58.

Petitioner’s second aspect of the plea-argument is that he would have taken

one of the oral plea offers that were proffered by the Government during the plea

negotiations, if not for defense counsel’s errors. Two COAs were granted by the

Third Circuit Court of Appeals on this second aspect of Petitioner’s plea claim.

(Appendix A at 3; Appendix C at 3). But this second argument was ultimately

denied by the District Court and affirmed by the Third Circuit Court of Appeals

despite transcripts showing that plea negotiations were conducted during which all

efforts were made to resolve this case other than with a trial. The courts below

required documentation memorializing what exactly occurred during the plea

negotiations in order to find prejudice. Which is an impossible requirement to

meet because the defense as well as the Government made it clear that in homicide

cases plea offers were first made orally, and reduced to writing only after the

defendants had agreed.to accept the oral plea offers. Therefore there is no

documentation memorializing what exactly occurred during the plea negotiations

because no plea agreement was reached, and neither the defense nor the

Government have a recollection of any specific oral plea offer due to the pass of

time. (Appendix A at 4). This Court has repeatedly expressed the importance of

adequate legal representation during plea negotiations, particularly because ninetyfour percent of all criminal state cases are resolved via plea deals. This reality

calls for as much guidance as possible from this Court on legal representation

during plea negotiations. Indeed, this Court emphasized in Missouri v, Frve, 566

U. S. 134 (2012) that criminal defendants require effective counsel during plea

negotiations because anything less might deny a defendant effective representation

by counsel at the only stage when legal aid and advice would help him. (citations

omitted). For all these important reasons, Petitioner humbly prays that certiorari

be granted to address the two aspects of this issue as well.

III. Incorrect Translations Are Violating Defendants’ Constitutional Rights

To Due Process For Lack Of Clearly Established Federal Law

In this case, a State witness was asked by the Government if he had any

conversations with Petitioner or Santiago concerning this case. The witness was

)

testifying through two interpreters because he only spoke Spanish. The witness

said to the interpreters that he told Santiago that he thought Santiago was going to

kill him. And that he (Santiago) replied that if he did not say anything he

(Santiago) was not going to kill him, but that he (Santiago) would kill him and the

owners of the house where the body was buried if the witness said anything. But ,

the interpreters changed the word he to they during the translation which conveyed

to the jury that Petitioner was involved in the threat made against the witness and

the owners of the house. The defense objected. The interpreters proposed a

review of the videotape out of the presence of the jury, which was granted. The

interpreters reviewed the videotape and agreed that “a correction should be made

for the jury.” The court ordered the interpreters to review the corrections with the

defense, and after doing so, the interpreters once again informed the court that

“they are satisfied that corrections were warranted.” But due to a family

emergency with one of the jurors the corrections were postponed until the next

court day. (T. 4/18/02 at P.68 L.15 to P.75 L.15, P.82 L.13 to P.88 L.13).

The next court day, instead of making the corrections the interpreters

changed their minds. Petitioner moved for a mistrial arguing denial of a fair trial,

but the motion was denied. (T. 4/23/02 at P.15 L.12 to P.16 L.17, P.18 L. 15-17,

P.18 L. 18 to P.19 L.5). Although this Court has not yet recognized a specific

constitutional right to a court-appointed interpreter, improper denial of an

interpreter could still violate clearly established federal law. See A hares v.

Warden, 2019 U.S. Dist. LEXIS 57594, at Number 475. But erroneous

interpretations make trials fundamentally unfair and there is no way for defendants

to obtain relief from said constitutional violations. In fact, in this case the District

Court ruled that this claim does not warrant habeas relief because there is no

clearly established federal law from this Court on this kind of claims. (Appendix D

at 10-11). Interpreters are use in thousands of trials and other legal proceedings in

this Country yearly, and faulty interpretations that violate due process and fair

trials should not be permitted.

IV. The Sixth Amendment Right To An Impartial Jury Was Not Afforded

In This Case

The defense made eight unsuccessful challenges for cause. The defense’s

request to make additional questions to one of the eight jurors was denied. The

defense dismissed all eight jurors using peremptory challenges, and subsequently

spent all the remaining peremptories. The defense objected about the empaneled

jury with concerns of partiality and asked for four additional peremptories, but the

request was denied. After the jury was sworn and the first State witness had

testified, a juror exposed the partiality of two of the selected jurors. The tellingjuror advised the court that the two jurors were obsessed with television court

shows and that they relish harsh treatment of defendants, “even though that person

might have been innocent.” The defense motioned to discharge the jury, but the

motion was denied. The claims made by the telling-juror were confirmed during

voir dire. The defense motioned to dismiss the two bias jurors, but said motion

was denied as well. Yet, the trial court dismissed the telling-juror instead, over the

objection of the defense. One of the two bias jurors deliberated in this case. (T.

4/9/02 at P. 187 L.17 to P.188 L.5, P.190 L.24 to P.191 L.l, P.192 L.9-16; T.

4/10/02 P.9 L.21 to P.10 L.3, P.59 L.20 to P.62 L.10).

It is settled by precedents from this Court that any claim that the jury was

not impartial must focus on the jurors who ultimately sat. Ross v. Oklahoma, 487

US 81, 86 (1988)(and cases cited). Here, at least one of the jurors who deliberated

expressed bias and the defense made more than one cause challenge without

success. The record also shows that the two exposed jurors demonstrated

partiality, and that the defense objected about the composition of the jury before it

was sworn. In short, the Sixth Amendment right to an impartial jury was not

afforded in this case as required by precedents from this Honorable Court.

CONCLUSION

For the constitutional reasons presented herein, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

By:

Date: /A J - <3 j

^caa./.

:L CORDERO

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.