Petition for Writ of Certiorari — Glen Campbell, Petitioner v. J. LaManna
Supreme Court briefNov 4, 2021
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OFFICE OF THE CLERK
SUPREME COURT II
No.
IN THE
SUPREME COURT OF THE UNITED STATES
GLEN CAMPBELL,
PETITIONER.
V.
LA MANNA,
RESPONDENT.
On Petition For Writ Of Certiorari
To The Supreme Court Of The United States
PETITION FOR WRIT OF CERTIORARI
.? .
Glen
Campbell
11A5427 Pro Se
Coxsackie Corr.
Po Box: 999
Coxsackie NY 12051
QUESTIONS PRESENTED
1). Whether the District Court overlooked Constitutional Claims and
Cause and Prejudice.
2). Whether petitioner was intitled to an Evidentiary Hearing due
to Counsel's failure to Acknowledge nor Deny Constitutional Rights.
3).
Whether
the
United
States
Court
of
Appeals
Overlooked
Constitutional violations.
4).
Whether
Petitioner's
Sixth Amendment was violated due to
counsel's cumulative misrepresentation.
5). Whether Prosecutorial Misconduct is procedurally barred due to:
(A). The showing of off and on the record violations, (b) The
showing of Cause and Prejudice, (c) Rule 470.05(c) of the Criminal
procedure law.
list OF PARTIES
ji All parties appear in the caption of t
on the cover page.
^ ^ ^ ^cover page-^ ^ hstpf
1
Wh°Se
petition is as follows:
[J.
ivTABLE OF AUTHORITIES
CASES:
Chapman v. California, 386 U.S. 18 (1967)...
18
Cotto v. Herbert, 331 U.S. F.3d 217 (2003)..
13
cuyler v. Sullivan, 466 U.S. 335 (1980)......
12
Estelle v. Williams, 425 U.S. 501 (1976)....
18
Gideon v. Wainwright, 372 U.S. 335 (1963)...
9, 15
Giglio v. Unit®! States, 405 U.S. 150 (1972)
19
Johnson v. Zerbst, 304 U.S. 458 (1938)......
15
Kiranelman v. Morrison, 477 U.S. 365 (1986)..
11, 15
Lafler v. Cooper, 566 U.S. 132 (2012)........ .
11
Lee v. Kemma,’534 U.S. 362 (2002)...................
14
McMann v. Ridhardson 397 U.S. 759 (1970)....
11, 15
Napue v. Illinois, 360 U.S. 264 (1959)...... .
19
Olden v. Kentucky, 488 U.S. 227 (1988)........
12
People v. Canales, 33 Misc.3d 1222 (2011)...
14
Powell v. Alabama, 287 U.S. 45 (1932).........
15
Raheem v. Kelly, 257 F.3d 122 (2001)...........
10
Rock
v.
Arkansas,
483
U.S.
44
(1987)
Stone v. Powell, 428 U.S. 465 (1976)................. ........................
Strickland v. Washington, 466 U.S. 668 (1984)...................... .
11
10
9, 15, 16
Townsend v. Sain, 372 U.S. 293 (1963)..........................................
10, 20
United States v. Agurs, 427 U.S. 97 (1976).................................
19
United States v. Morrison, 449 U.S. 361 (1981)............................
12
United States v. Cronic, 466 U.S. 648 (1984)...............................
13, 15
Wilson v. Mazzuca, 570 U.S. 490 (2009).........................................
12
Williams v. Taylor 529 U.S. 420 (2000)...................... ..................
14
Williams v. Twomey, 510 F.2d 634, 640 (CA7), Cert, denied Sub Nora.
Sielaff v. Williams, 423 U.S. 876 (1975)....... .......... ................
STATUES:
13
28. U.S.C. § 2254(1)
1
OTHER AUTHORITIES:
CODE OF PROFESSIONAL RESPONSIBILITY................
18
ABA MODEL RULES OF PROFESSIONAL CONDUCT (1993)
18
DR 7-106.........................................................
18
MODEL RULES 3.4(e).........................................
18
§ 3-5.8...................... ........ ...................... .
19
ii TABLE OF CONTENTS
TABLE OF AUTHORITIES
iv
OPINIONS BELOW
1
JURISDICTION
!
CONSTITUTIONAL PROVISIONS INVOLVED
1
STATEMENT OF THE CASE
1
THE CRIME
1
PRE-TRIAL HEARING
2
THE TRIAL
4
440.10 MOTION
8
HABEAS CORPUS MOTION
8
UNITED STATES COURT OF APPEALS
9
SUMMARY OF ARGUMENT
9
ARGUMENT
15
I. THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION GUARANTEES
THE RIGHT TO THE ASSISTANCE OF COUNSEL
15
A. STRICKLAND'S PREJUDICE PRONG............................................
15
B. COUNSEL'S INEFFECTIVENESS CONSTITUTES CAUSE AND PREJUDICE
FOR ANY PROCEDURAL DEFAULT.......... ..................... ..........................
17
II. THE PROSECUTION'S CALCULATED, UNPROFESSIONAL AND INFLAMMATORY
CLOSING ARGUMENT AND MISCONDUCT ROBBED THE PETITIONER OF THE
FUNDAMENTAL FAIRNESS REQUIRED BY DUE PROCESS AND THE 14 AMENDMENT
17
A. MR. CAMPBELL WAS DENIED FUNDAMENTAL FAIRNESS IN THE
DETERMINATION OF HIS GUILT OR INNOCENCE.......................................
18
B. CLEARLY ESTABLISHED FEDERAL LAW ON A CONVICTION OBTAINED
THROUGH USE OF FALSE EVIDENCE........ ........................... .
19
III. AN EVIDENTIARY HEARING SHOULD OF BEEN HEID...........................
20
CONCLUSION
20
OPINIONS BELOW
The Opinions of the state court of Nassau County, The District for the Eastern
District of New York, and The United States Court of Appeals for the Second
Circuit are all unreported and submitted (Exhibit 1).
JURISDICTION
The Decision of Nassau State court was entered on April 14, 2014, The 440.10
decision was entered on July 11, 2019, The Final judgement of Nassau was entered
on December 18, 2014, The Decision of the Eastern District was entered on
December 18 , 2020, The decision of the United States Court of Appeals was
entered on August 23, 2021. This Court’s jurisdiction rests on 28 U.S.C. § 2254,
1254 (1).
CONSTITUTIONAL PROVISIONS INVOLVED
This Case involves the Sixth Amendment to the Constitution of the United States,
Which provides in relevant part: "In all Criminal proceedings, the accused shall
enjoy the right • « « to have the assistance of counsel for his defense"; and the
Fourteenth Amendment, Which provides in relevant part: ”[N]or shall any State
Deprive any person of life, liberty, or property, without Due process of Law."
STATEMENT OF THE CASE
The Crime:
On November 19, 2010 Nassau Police Department got a call about a
possible robbery in progress. The Description given was Three Male
Black’s wearing Black Jeans and Black Hoody’s, and One possibly
wearing a Tan or White Hoody. A couple of miles away at a Woodbury
Country Club
Glen Campbell, a Black Male, wearing a Grey Sweater,
Green Jeans and Red Sneakers was stopped and Handcuffed for 45
Minutes pending an On-Scene Show Up. Minutes later a Black Jacket
and Baseball hat was placed on top of the Patrol car. Two witnesses
was brought to identify Mr. Campbell. The Two witness were unable
to identify even with the items placed on Mr.
Campbell.
Mr.
Campbell was still arrested and taken to the precinct where he was
tricked helping officers and then charged with the crime.
(1)
PRE-TRIAL HEARING:
A Pre-Trial Hearing was held where numerous Officer's testified
including arresting officer Molinelli. The following was stated:
Q. In the description that you received over the transmission, did he match any
of that description?
A. No, because it just said-well, except for the male black part. It was either
a white pullover or a black pullover.
Q. So other than him being a male black, he didn't match anything?
A. Correct.
(HT-Hearing Transcript at 102, Exhibit 2).
Q. So let me take a step back for a second. You get out of your vehicle. Did you
pull your weapon at the time?
A. I do when I saw him.
Q. You did when you saw him. And would it be fair to say that MR. Campbell was
not free to leave at that point?
A. Oh yeah he wasn't free to leave.
(HT. 103-104).
The petitioner was immediately arrested and held for at least a
half hour before any attempt to determine if he was the right
person detained. The testimony goes as follows:
Q. He was handcuffed?
A. Yes.
Q. Placed in the vehicle at this point?
A. Yes.
Q. And this is a radio patrol car, correct?
A. Yes, it is.
Q. How much time elapsed between that point and the tin® when two witnesses were
brought over for the showup?
A. I'm going to say it was a while, probably a little more than a half hour.
(HT. 109).
Officer Molinelli then admitted that no one identified petitioner:
Q. Good afternoon, Officer. Just to continue sort of where we left off, you
mentioned that there were two witnesses neither of them who identified Mr.
Campbell correct?
A. Correct.
(HT. 116).
0v. Once the showup was completed, what happened regarding Mr. Campbell?
(2)
A. After the second show-up, actually he was transported to the Second Precinct.
Q. So the entire arrest of Mr. Campbell, Just so I'm clear, you don't have a
description of him, is that right?
A. Well except for the male black, right.
Q. Other than him being a male black in the back of a Country Club, there's no
other description, correct?
A. Well, except for the black hoody and white hoody.
Q. But he's not wearing either of those?
A. No.
Q. In fact do you recall what he's wearing?
A. Yeah. He had like a grayish sweater went over hisQ. And that did not match any of the description you received over the
transmission?
A. Right*
(HT. 118-119).
Petitioner then advised counsel that he wanted to testify so that
he may tell the judge facts of the illegal arrest and rebut the
statement that was read of Michael Mohammed with an affidavit that
was given to the petitioner from Michael Mohammed stating that he
lied. And Counsel declined to let petitioner testify or tell him
that it was his right. A Plea offer of 12 years was offered and
petitioner wanted to accept it for the sake of his children and
counsel persuaded petitioner to not accept it by stating he could
get an even lessor offer and that he knows the judge and she loves
his jokes. Counsel never stated on record the pros and cons of the
offer like Mr. Haber attorney for Jose Fuertes did on record.
(HT. 4-5, 6).
At the end of the hearing the court erred and stated in it's
findings of fact, that Molinelli saw the defendant wearing a "gray
sweater/hoody" Which is not how the witness described the garment.
The Court concluded that the defendant fit [] a general description
of one of the perpetrators" without explanation, and did not cite
arresting
gender,
officer
Molinelli's
admission,
except
for
race
and
he did not match the description molinelli received.
(3)
Counsel never objected or challenged this decision nor at the end
of trial to preserve this right for appellate review.
THE TRIAL:
During the trial Counsel continued to make crucial errors that
prejudiced
the
petitioner
and
trial.
Petitioner
came
across
impeachment evidence from Adam Yusuf which showed the District
Attorney's Key witness lying and implicating the petitioner as her
assailant on another trial. When counsel was confronted and asked
why didn't he know about this valuable information, he stated don't
worry and that we can use this towards our advantage for the jurors
and hold the District attorney accountable for withholding Brady
Material. The Prosecution's Key witness Samina Kahn testified to
the following:
Q. And eventually there was a trial on another individual that was invloved,
correct?
A. Yeah.
Q. And you testified at that trial as well?
A. Yes.
Q. And at that trial, in order to prepare for it, did you meet with either the
officer or an assistant district attorney?
A. Yeah.
Q. And you went through your testimony again, correct?
A. Right.
Q. And they showed you the video again, correct?
A. They didn't show the video that time*
Q. But they showed still pictures, these pictures, correct?
A. Yeah.
Q. So you had an opportunity to review these pictures in the past right?
A. Yeah.
Q. And when you met with that assistant district attorney and reviewed these
photos, did they discuss with you who they thought that person was?
A. No.
Q. They didn't give you a name to that person?
A. No.
Q. Did the police officers that you met with, did they ever give a name to that
(4)
person wearing that jacket in that photograph?
A. No, they never gave a name.
(T.T.-Trial Transcript 710-711, Exhibit 3).
Impeachment Evidence Goes As Follows:
Q. Samina, I am going to ask you to look at what has been marked as people's 42
and 43 for identification. Do you recognize those?
A. Yes. He was the man who came into my room.
Q. Are those photographs, correct?
A. Yeah.
Q. Those are photographs of who?
A. Glen Campbell.
Q. You said he was the individual who did what?
A. Who came into my room and took me downstairs.
(Adam Yusuf T.T. 495-496).
Counsel never used this valuable information to impeach the witness
nor did the District Attorney correct this when she admitted to
having this information:
MS. LEWISOHN: Judge, we have the transcript from the Aadam Yusuf Trial.
(T.T. 1612, 21-22).
Counsel's error in not allowing petitioner to testify at pre-trial
resolved
in petitioner being questioned about knowing Michael
Mohammed and the Courts refusal of the Affidavit. When Counsel was
questioned by the courts pertaining to the affidavit, he lied to
the courts
stating that it was turned over a long time when
petitioner had the only copy (T.T. 16lJ^, 1-20, exhibit 4). Counsel
then
stated
the prosecutor opened the
door and that Michael
Mohammed should be brought in, instead of investigating and using
him as a key witness for the defense(T.T. 1614, 6-25, 1615).
Counsel then withheld another affidavit and the prosecutor told
counsel that he pretended that he didn't have it (T.T. 1630).
Counsel then failed to investigate a video that was blurry and
retain a professional specialist to determine such and instead
allowed Four officers to testify that it was there opinion that the
(5)
petitioner was on the footage without objecting to this testimony
(T.T. 1028-31, 1099, 1134, 1148, 1153, 1165-66, 1175-76, 1181-82,
Exhibit 5).
Counsel then opened the door for the District Attorney to Question
the
defense
witness
on
a
crime
for
which
he
was
currently
incarcerated for pending trial, which led to the witness invoking
his Fifth Amendment. The Jurors were excused in order for this
witness to enter the court room to be fair to the defense and to
keep the fact that he was incarcerated and not cast judgment before
he testified (T.T. 1460, 23-25, 1461, 1-5, 1474, 23-25, 1475-14761477, 1-4, Exhibit 6).
Counsel then went as far to undermine confidence by cracking jokes
on the evidence being submitted by the prosecutor. The record goes
as follows:
MS. GURRIERI: Your Honor, at this tin® I'd ask to move them into evidence as
People's 5 and 6.
THE COURT: Mr. Hardy, would you like to look at than?
Mr. Hardy: The CDs, sure.
THE COURT: Then let me know if you have an objection.
Mr. Hardy: Judge, they look like CDs.
THE COURT: Any objection, counselor?
Mr. Hardy: No, your Honor.
After
the
court
room
erupted
into
laughter
from
counsel's
unprofessional joke. Petitioner advised counsel to do not do it
again, which counsel ignored petitioner and did it again:
Q. Does this phone appear to be in the sane or substantially the same condition
as it was when you searched on March 5th of 2011?
A. Yes.
MS. GURRIERI: Your Honor, at this time I ask that it be moved into evidence.
THE COURT: Mr. Hardy, would you like to look at it?
Mr. Hardy: Can I make a call from it?
THE COURT: No, you may not.
Once again the court bursted into laughter.
(6)
V
(T.T. 738, 950, 18-25, 951, 1-8, Exhibit 7).
Counsel then made a harsh remark which caused the jurors to shake
there heads and look at the petitioner like he was guilty:
Q. Did you see that person reach into his back to pull out a weapon?
A. I don't recall.
Q. But you stood here for an hour and watched those videos.
A. I'd have to watch than all again to look for that particular detail.
Q. I won't put us through that misery.
The court then had to intervene, and show the clip because counsel
was not prepared and allow the witness to see the fopotage (T.T.
751, 25, 752, 1-7, 752, 8-18, 754).
During the People's Summation counsel allowed the prosecution to
negatively
affect
the outcome of
the trial which resulted in
prejudice. The prosecution denigrated the petitioner by repeatedly
telling the jurors that the petitioner and his witnesses made up
stories and lies. Counsel never made one effort to object (T.T.
1707, 7-9, 1707, 19-21, 1708, 9-10, 1709, 1-10, 1710, 22-23, 1713,
5-9, Exhibit 7).
Counsel then went as far as to allow the prosecution to make an
improper comment while pointing at the petitioner stating: "Look at
his hole in his ear" to show the jurors that the person on
surveillance who they couldn't identify wore earrings and the
petitioner had a hole in his ear. No earring was submitted into
evidence against the petitioner and counsel made no effort to
object ( T.T. 1689).
Counsel did however object when the prosecutor misstated evidence
and stated that a jacket belonged to the petitioner when no such
evidence existed.
The court told the jurors that it was there
recollection if any witness testified to such. The Prosecutor then
continued its onslaught stating the jacket was found in a kitchen
near the petitioner numerous times to link the petitioner to the
(7)
jacket. Counsel sat and watched as this onslaught tainted the trial
(T.T. 1685, 16-24, 1686, 1-3, 1686, 12-19, 1687, 12-19, 1692, 14-17
exhibit 8).
440.10 Motion:
Petitioner filed a 440.10 motion on ineffective assistance of
counsel and prosecutorial misconduct with the Trial Court and
requested that Counsel submit an affidavit under Murray v. Carrier,
477 U.S.
478
(1986),
or hold an Evidentiary hearing.
Counsel
submitted an affirmation acknowledging only three issues but failed
to address or acknowledge nor deny petitioner's' remaining claims.
The Court then took it upon themselves to answer for counsel
without providing an evidentiary hearing ( See Decision exhibit
1)(Affirmation Exhibit 9).
And in its decision it used 440.10(2)(c) to deny prosecutorial
misconduct except mitigating evidence and failed to acknowledge
470.05(2) of the Criminal Procedure Law. The Court stated that
petitioner failed to show that the prosecutions witness was lying
but never acknowledged the impeachment evidence submitted nor the
prosecution acknowledgment in having these documents T.T. 1612, 2122 Exhibit
10).
Petitioner
then
filed
for
a
leave with the
Appellate Division and enclosed a letter requesting a new Judge
wbich was denied (Se'e. Letter and Affidavits exhibit 10).
HABEAS CORPUS MOTION
Petitioner filed a Habeas Corpus Motion through counsel which was
denied without the chance to submit a Traverse Brief and overlooked
on Cause and Prejudice
and
Ineffective Assistance of
counsel
without an Evidentiary Hearing. The District court overlooked that
Counsel failed to respond to all crucial allegations and a hearing
should of been held under Townsend v. Sain, 372 U.S. 293 (1963) to
determine Constitutional Violations.
■
*
'
'
(8)
UNITED STATES COURT OF APPEALS
The Court of Appeals denied the petitioner's appeal stating that
petitioner failed to show a Constitutional Violation overlooking
petitioner's claims.
SUMMARY OF ARGUMENT
On September 17, 1787 Benjamin Franklin saw a Half Sun carved in
the back of the Presidents chair. He worried about the meaning of
that Sun. "Was it setting on the American Republic?" As Delegates
lined up to sign the Constitution, he knew the answer. "Now at
length, I have happiness to know it is a rising-and not a setting
Sun." We as Americans are that rising Sun and we can rise above
problems through time when we come together as a whole. And to
allow
the
Constitutional
Violations
of
the
petitioner
to
go
uncorrected, would be a cloud blocking out that Sun.
Fifty-eight Years ago, This Court held it to be "an obvious truth"
that no criminal defendant could be "assured a Fair Trial" without
the assistance of counsel and required the states to provide an
attorney to "ant person haled into court, who is too poor to hire a
lawyer." Gideon v.
Wainwright,
372 U.S.
335,
344 (1963).
Two
decades later, in Strickland v. Washington, 466 U.S. 668 (1984),
this Court, reinforcing Gideon, held that a Constitutional right to
counsel includes not simply a right to a lawyer, but a right to
"effective representation" by that
lawyer in the adversarial
system. In Strickland, this Court adopted a two-part test: (i) "the
defendant must show that counsel's performance was deficient;" i.e.
"that counsel;s representation fell below an objective standard of
reasonableness," id. at 687-88, and (ii) "[t]he defendant must show
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694.
If the lower Court's decision is allowed to stand, the "obvious
(9)
truth[s]" embodied in Gideon and Strickland
truths that have
become the bedrock of our criminal justice system in which the
great majority of defendants are indigents represented by appointed
counsel will stand on fragile ground.
In the present case No
witnesses identified Petitioner at the Crime scene, despite so, he
was held in police custody solely because he is black, and a crime
had been committed by several black men in the community. The
police placed articles of clothing they found on a car, and the
witness identified the clothing. Not Petitioner. The clothing did
not belong to Petitioner now were they associated with Petitioner
at any time. No DNA came back to petitioner. In Raheem v. Kelly,
257 F.3d 122 (2d Cir. 2001), the United States Second Circuit of
New York reversed a murder conviction on the basis of an unreliable
identification despite other evidence of guilt. Like Raheem, the
witness in the case at bar identified clothing and not petitioner.
Therefore, the police had no probable cause to seize, arrest or
detain petitioner. Counsel's failure to present Petitioner himself
as a witness at pre-trial doomed the defense to failure. Petitioner
did not receive a full and fair hearing in the state court and the
district
court
should
of
held
a
hearing
under
Townsend
v.
Sain, 372 U.S. 293 (1963). In Stone v. Powell, 428 U.S. 465 (1976),
the United State Supreme Court limited 28 U.S.C. 2254 and held:
Where a state court defendant had a full and fair hearing on a 4th
Amendment probable cause claim no habeas corpus would be granted.
On the contrary, Petitioner could of satisfied this threshold and
provide clear and convincing evidence and the attorney's failure to
call petitioner to the witness stand to provide affidavits violated
his constitutional rights under the 6th and 14th Amendments.
First, Petitioner had direct Knowledge about the events, and could
have provided detailed information about the stop and seizure of
(10)
his person. The failure to present Petitioner’s version of the
events violated his fundamental right to a full and fair hearing.
See e.g. McMann v. Richardson, 397 U.S. 759 (1970); Kimmelman v.
Morrison, 477 U.S. 365 (1986). And the decision by the state court
stating the petitioner matched a General description and wore a
sweater/Hoody when no one testified to such clearly shows counsel's
error in not allowing petitioner to do so.
In Rock v. Arkansas
right
483 U.S. 44, (1987)
this Court held: The
to testify in a criminal proceeding is fundamental and
Petitioner has the authority to decide when and if he/she is going
to testify under the advisement of competent counsel.
Here
counsel simply ignored Petitioner's right to testify
by
unilateral action in deciding to end the suppression hearing.
During Plea negotiations a 12-year plea offer was presented by the
People. Petitioner immediately advised the attorney that the plea
was acceptable to him. Only to have counsel advise that the plea
will come down once the co-defendant's case was severed. Therefore,
the plea offer wasn't a good one at the moment.
In Lafler v. Cooper, 566 U.S. 132 (2012)(Scalia, J, dissenting):
"If a plea bargain has been offered, a defendant has the right to effective
assistance of counsel in considering whether to accept it. If that right is
denied, prejudice can be shown if loss of the plea opportunity led to a trial
resulting in a conviction on more serious charges of imposition of a more sever
sentence.
Here a 12-year plea offer was made. Counsel misled the Petitioner
that a lesser offer would be made. At no time did the attorney
advise his client that the offer would go up if he didn't accept
the plea as co-defendant's counsel did on the record. Also that he
would be exposed to a 25 year sentence if found guilty.
The Lafler court wisely noted that
(11)
the Sixth Amendment remedy
should be "tailored to The injury suffered from the constitutional
violation
and
should not
unnecessarily
infringe
on
competing
interest." United States v. Morrison, 449 U.S. 361, 364 (1981).
Thus, a remedy must "neutralize the taint" of a constitutional
violation, Id. at 365, while at the same time not grant a windfall
to the defendant or needlessly squander the considerable resources
the State properly invested in the prosecution.
Defense counsel failed to prepare Sydney Ragbirsingh before calling
him to the stand. Or, move in a motion in limine to limit the
people from cross-examining Ragbirsingh on pending cases. Counsel
should
have
Ragbirsingh's
known
to
pending
exclude
criminal
the
prosecutor
accusation
to
from
using
undermine
his
credibility. Ragbirsingh's presumption of innocence was undermined
by counsel’s failure to object to the People's antics during trial
and went as far as opening the door to the line of questioning. As
in Wilson v.
Mazzuca,
570 F.3d 490 (2009) Counsel failed to
understand that by eliciting this testimony, he would open the door
to the witness criminal history. This was poor lawyering and
deathamentle to the petitioner's witness and case. This Court has
’lie Id
in
Cuyler
v.
466
Sullivan,
U.S.
335
(1980),
that
a
right and the constitution guarantees an accused "adequate legal
assistance. Counsel fell well below the standards of Strickland
when he failed to investigate witnesses
and evidence to determine
if the video was admissable.
The Lower Courts failed to recognize that counsel withheld evidence
Three times in the means of affidavits, and impeachment evidence
which was a constitutional violation.
This Court in Olden v.
Kentucky, 488 U.S. 227, 231 (1988), stated The Constitutional right
to confront a witness Generally includes the right to impeach and
discredit
the
states
witnesses.
(12)
The
Second
Circuit
has
also
acknowledged the right of cross-examination is one of the most
firmly established principles under Supreme Court Law (see Cotto v.
Herbert, 331 F.3d 217, 248 (2d Cir. 2003).
Counsel's joking mannerism and harsh statement clearly violated the
Strickland test that this court has implicated and this court in
Jones v.
Barnes,
463 U.S.
745 (1983)(Brennan, J.,
dissenting)
clearly states "To satisfy The Constitution, Counsel must function
as an advocate for the defendant, as opposed to a friend of the
court)." The events clearly shows that the petitioner was amounted
to not having the guided hand of counsel as this court mandates
under the Sixth Amendment. A Great American Second Circuit Judge
once written: "While a criminal Trial is not a Game in which the
participants are expected to enter the ring with a near match in
skills,
neither
is
it
a
sacrifice
of
unarmed
prisoners
to
gladiators." United States ex rel. Williams v. Twomey, 510 F.2d 634
640 (CA7), cert, denied Sub Nora. Sielaff v. Williams, 423 U.S* 876
(1975).
Counsel caused the petitioner procedural default by not objecting
throughout the course of pre-trial and trial phase and opinion
testimony which prejudiced the outcome of trial and petitioner in
not being able to get appellate review on meritorious issues.
Counsel allowed the prosecutor to prejudice the petitioner with
summations. These errors was crucial to the Strickland test and
what this court stated in United States v. Gronic, 466 U.S. 648,
656-657 (1984). An attorney error during trial and Direct review
may provide cause to excuse a procedural default; if the attorney
appointed by the state to pursue the direct appeal is ineffective,
the state prisoner has been denied fair process and the opportunity
to comply with the state's procedures and obtain an adjudication on
(13)
the merits of his claim. Martinez v. Ryan, 566 U.S. 1 (2012). The
State Court's reliance on §440.10(2)(c) to bar Petitioner's claim
represents an "extorbitant application" of the state rule. Lee, 534
U.S. at 376, 122 S.Ct.
877. The District Court thus erred by
deferring to the State Court's determination that petitioner's
Prosecutorial claim was procedurally barred and by denying his
§2254 petition on that basis. CPL 470.05 bars a defendant from
raising unexhausted claims on direct appeal and 440.10 is the
avenue mandated to exhaust such claims. This Court has observed
that "a failure to develop the factual basis of a claim is not
established unless there is lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner's counsel.
"Williams v. Taylor, 529 U.S. 420, 432, (2000). The "exorbitant
application of a generally sound rule renders the state ground
inadequate" and will not prevent a federal court's consideration of
the federal question presented. Lee v. Kemma, 534 U.S. 362, 376
(2002).
Under
CPL
with
compliance
circumstances.
470.05
the
the
rule
case
law
demanded
in
state
was
indicated
the
that
specific
In People v. Canales, 33 Misc.3d 1222 (a)(2011)
Judge Joel M. Goldberg, J. Best said that: "There may be some level
of Prosecutorial Negligence that would satisfy the requirements of
440.10(l)(b) and if not Protected by CPL 440.10(l)(b), then CPL
440.10(1)(h)
would
nevertheless
under
Federal
and
State
Constitutional Due Process provisions protect a defendant from
negligent misrepresentations of an incompetent prosecutor.
Furthermore, the failure of the prosecution in allowing its witness
to testify falsely was not ruled as prosedurally barred.
Finally,
The
Cumulative
error s
by
Counsel
Caused
Prejudice
Throughout representation and doomed the petitioner for failure and
Surpasses the Strickland test.
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ARGUMENT
THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION GUARANTEES THE RIGHT TO
THE ASSISTANCE OF COUNSEL.
The right to the assistance of counsel, guaranteed by the Sixth
Amendment to the United States Constitution, forms the very heart
and soul of our Federal Criminal Justice system because it protects
"the fundamental right to a fair trial." Strickland v. Washington,
466 U.S. 668, 684 (1984), citing Powell v. Albania, 287 U.S. 45
(1932),
Johnson
v.
Zerbst,
304
U.S.
458
(1938);
Gideon
v.
Wainwright, 372 U.S. 335 (1963). However, the representation must
be effective to fulfill the Constitutional necessities of the Sixth
Amendment. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970);
Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). Effective lawyers
are "essential because they are the means through which the other
rights of
the person on trial are secured." United States v.
Cronic, 466 U.S. 648, 653 (1984). The defense of criminal cases,
where a person's life and liberty are at stake, requires an allconsuming commitment to the client.
Glen Campbell was denied this quality of commitment when trial
attorney failed to investigate evidence and witnesses, object to
opinion
testimony,
pre-trial
summations
decision,
prosecutor
misconduct, withheld affidavits, impeachment evidence, joking and
unprofessional conduct, opened the door, plea bargaining, and harsh
remark.
And
complaint,
now
he
has
been
precluded
from
asserting
that
grounded in the Sixth Amendment, because the Lower
Court, District, and United States Court of Appeals overlooked the
Ineffective Assistance of Counsel without holding an Evidentiary
Hearing.
A. STRICKLAND'S PREJUDICE PRONG:
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The legal test for determining whether one has been sufficiently
prejudiced by the ineffectiveness of his counsel is set forth in
Strickland v. Washington, 104 S.Ct. 2052 <1984). While "[i]t is not
enough
for
the
defendant
to
show
that
the
errors
had
some
conceivable effect on the outcome of the proceeding," he "need not
show that counsel's deficient conduct more likely than not altered
the outcome in the case." 104 S.Ct. at 2067-68.
The result of a proceeding can be rendered unreliable, and hence
the proceeding itself unfair, even if the errors of counsel cannot
be shown by a preponderance of the evidence to have determined the
outcome.
« • • The
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
sufficient to undermine confidence in the outcome.
104 S.Ct. at 2068.
In the circumstances of this case, From the point of arrest, the
People never had a seal tight case against the petitioner. There
was no DNA, No witnesses, Nor evidence to show the petitioner
engaged in the crime. The people used any and everything they could
get there hands on to make a case. (1) Controlled phone calls of
the defendant trying to help Nassau police Department apprehend the
culprits. (2) Surveillance which showed no faces and blurry. (3)
Testimony of non professional officers voicing their opinions. (4)
And a phone conversation with the petitioner and brother and wife
going over
there
testimony,
The errors of
counsel undermined
confidence and weakened the defense and strengthen the people's
case , To seal the deal, the people was permitted to go beyond the
four corners in summation's while counsel sat and watched.
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If
counsel would of: (1) Impeached the Key Witness, (2) Objected to opinion
testimony, (3)Investigated the Evidence, (4) Refrain from opening the door, (5)
Show professionalism, (6) Refrain from harsh remarks, (7) Investigate Michael
Mohammed and produce his statement, (8) Object to crucial Summations, (9) obtain
a specialist to determine video.
The outcome would of probably be different and fair.
B. COUNSELS INEFFECTIVENESS CONSTITUTES CAUSE AND PREJUDICE FOR ANY PROCEDURAL
DEFAULT.
If Prosecutorial Misconduct is deemed prohibited, then it's only
prohibited because of counsel's ineffectiveness. If counsel would
have hot been ineffective in failing to object, petitioner would
have succeeded in prosecutorial misconduct and pre-trial decision
which was not contrary to the evidence. Counsel was more concerned
in being a comedian than a professional attorney. This deficient
performance prejudiced the petitioner by not having the meritorious
issue judicated on direct review depriving the petitioner and the
courts. Not only did this hurt the petitioners chance on appeal,
but it hurt the case as well. Every single issue not objected to,
has been over turned by every court in this state.
II. THE PROSECUTION'S CALCULATED, UNPROFESSIONAL AND INFLAMMATORY CLOSING
ARGUMENT AND MISCONDUCT ROBBED THE PETITIONER OF THE FUNDAMENTAL FAIRNESS
REQUIRED BY DUE PROCESS AND THE 14th AMENDMENT.
There is no dispute about the nature of the prosecution’s conduct;
The Closing Arguments made by the prosecutor in this case has been
condemned by every judge who has looked at them. They have never
been defended by the state as proper. These arguments flouted every
rule of professional conduct recognized by the organized bar. They
were calculated to divert the jury's attention from the central
factual issues
in the case,
especially
the
issue whether
the
prosecution's problematic DVD evidence was sufficiently persuasive
to convict the petitioner. Crafted to evoke passion and inflame
.. (17)
prejudice, these arguments violated petitioners most basic rights:
to a fundamentally fair and reliable determination of his guilt or
innocence.
"The actual impact of a particular practice on the judgment of
jurors cannot always be fully determined. But this Gourt has left
no doubt that the probability of deleterious effects on fundamental
rights calls for close scrutiny. Estelle v. Williams, 425 U.S. 501,
504
(1976).
Because
the
prosecutions
improper
arguments
were
designed and likely to affect the reliability of the fact finding
process,
they
prejudice.
In
introduced
such
a
more
case,
the
than
a
probability
State
demonstrate beyond a reasonable doubt
should
that
be
of
actual
required
the arguments
to
were
harmless, Chapman v. California, 386 U.S. 18 (1967), if it asserts
that they were. Here, the state has shown none of the sort.
A. MR. CAMPBELL WAS DENIED FUNDAMENTAL FAIRNESS IN THE DETERMINATION OF HIS
GUILT OR INNOCENCE.
Jhere is no doubt. The calculated, inflammatory argument of the
prosecution
in
this
case
did
more
than
draw
the
universal
condemnation of this court. It violated the specific prohibitions
embodied in the law of every state and the District of Columbia,
for
each
state
has
adopted
either
the
Code
of
Professional
Responsibility or the new ABA Model Rules of Professional Conduct
(1993). The Code provides that:
In appearing in his professional capacity before a tribunal, a lawyer shall not:
(1) State or allude to any matter that he has no reasonable basis to believe is
relevant to the case • • •
(2) Assert his personal knowledge of the facts in issue, except when testifying
as a witness.
(3) Assert his personal opinion as to the justness of a cause, as to the
credibility of a witness...or as to the guilt or innocence of the accused • • *
DR 7-106(c). These prohibitions have been carried forward without charge in the
Model Rules, Rule 3.4(e). The ABA Standards for Criminal Justice provide:
l(18).
.d
(a) The prosecutor may argue all reasonable inference from evidence in the
record. It is unprofessional conduct for the prosecutor intentionally to
misstate the evidence or mislead the jury as to the inferences-it might draw.
(b) It is unprofessional conduct for the prosecutor to express his or her
personal belief or opinion as to the truth or falsify of any testimony or
evidence or the guilt of the defendant.
(c) The prosecutor should not use arguments calculated to inflame the passions
or prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from
its duty to decide the case on the evidence, by injecting issues broader than
the guilt or innocence of the accused under the controlling law, or by making
predictions of the consequences of the jury’s verdict.
(e) It is the responsibility of the court to ensure that final argument to the
jury is kept within proper, accepted bounds.
id. § 3-5.8.
The prosecutor in this case flouted each and every one of these
proscriptions:
She
officers,expressed
asserted
personal
personal
opinions
opinions
on
the
from
police
petitioner
and
witnesses that they was lying, misstated evidence numerous times.
B. CLEARLY ESTABLISHED FEDERAL LAW ON A CONVICTION OBTAINED THROUGH USE OF FALSE
EVIDENCE.
Supreme court holdings have long "established that a conviction
obtained through use of
representatives
of
the
false evidence,
State,
must
known to be such by
fall under
the Fourteenth
Amendment." Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3
L.Ed.2d 1217 (1959); see also United States v. Agurs, 427 U.S. 97,
(1976); Giglio v. United States
405 U.S. 150 (1972). "The same
results obtains when the State,
although not soliciting false
evidence, allows it to go uncorrected when it appears." Napue, 360
U.S. at 269. This court held in Giglio v. United States, 405 U.S.
150 (1972), that even though the specific prosecutor on the case
did not have knowledge of the facts giving the lie to a prosecution
(19)'
,v-
witness's testimony at trial, he was charged with the knowledge of
another prosecutor because a prosecutor's office has a duty to
"insure communication of all relevant information on each case to
every [prosecutor] who deals with it." 405 U.S. at 154. As in this
case the prosecutor had trial transcripts of Adam Yusuf's trial and
should of known it's key witness was testifying falsely.
III. AN EVIDENTIARY HEARING SHOULD OF BEEN HELD.
In this Case Counsel failed to acknowledge allegations against him
nor deny them, therefore an evidentiary hearing should of been held
under
Tonsend v.
Sain,
372
U.S.
293
(1963).
The
petitioner
submitted facts on and off the record and the District Court should
of held a hearing when counsel failed to deny or acknowledge the
allegations against him on ineffective assistance of counsel.
CONCLUSION
For the reasons above the lower courts decision should be reversed
and the least an evidentiary hearing be held or a new trial ordered
where the petitioner can enjoy the fair and full litigation of his
Constitutional Rights.
The Petition for a Writ of certiorari should be granted.
Respectfully submitted;
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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.