Petition for Writ of Certiorari — Pedro Alvarado, Petitioner v. United States

IN THE UNITED STATES SUPREME COURT

1-66-46

UNITED STATES OF AMERICA

Respondent / Appellee

Supreme Court, U.S.

FILED

DEC 1 6 2021

V.

OFFICE OF THE Cl FRK

PEDRO ALVARADO

Petitioner / Appellant

PETITION FOR WRIT OF CERTIORARI TO THE FIFTH CIRCUIT

COURT OF APPEALS

CAUSE NO 20-40361

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS,

MCALLEN DIVISION, HONORABLE JUDGE CRANE PRESIDING

CAUSE NO. 7:17-CV-104

Pedro Alvarado

Reg. No. 16458-379

P.O. Box 26020

Beaumont, TX 77720

pro se

QUESTIONS PRESENTED FOR REVIEW

I. WHETHER, IN LIGHT OF THE COURT'S RULING

IN BORDEN V. UNITED STATES, 593 U.S.

____ (2021), ALVARADO'S CONVICTION UNDER

18 U.S.C. §111(a) AND (b) QUALIFIES AS A

VIOLENT CRIME UNDER 18 U.S.C. §924(c)?

II. WHETHER THE TRIAL COURT'S SUA SPONTE

ASSERTION OF THE AFFIRMATIVE DEFENSE OF

"INEVITABLE DISCOVERY" VIOLATES THIS

COURT'S PRONOUNCEMENT IN GREENLAW V.

UNITED STATES, 554 U.S. 237, 243-244, 128

S.CT. 2559, 171 L.ED, 2D 399 (2008)?

III.

WHETHER THE USE OF A RUSE, IN ORDER TO

OBTAIN CONSENT TO SEARCH A HOME, UNDER

THE CIRCUMSTANCES AT BAR, VIOLATES THE

FOURTH AMENDMENT OF THE UNITED STATES

CONSTITUTION?

IV.

WHETHER IN LIGHT OF THE ISSUES IN THIS

CASE, JURISTS COULD DISAGREE WITH THE

DISTRICT COURT'S RESOLUTION OF ALVARADO'S

CONSTITUTIONAL CLAIMS UNDER SLACK V.

MCDANIEL, 529 U.S. 473, 484 (2000), AND

MILLER-EL V. COCKRELL, 537 U.S. 322, 336

(2003), AND WHETHER COA SHOULD ISSUE?

RELATED PROCEEDINGS / OPINIONS BELOW

Before the Court of Appeals for the Fifth Circuit Causes:

iinitpri st-atps v. i Pedro Alvarado, Cause No. 20-40361; Cause

No. 2021 U.S.-Dist. LEXIS 187237; Pedro Alvarado v. United

states of America, United States District Court for the

Southern District* of Texas, McAllen Division, Honorable

Ricardo Hinojosa,| presiding

U.S.D.C. Caus'e No. 7:17-cv-104

Crim. No. 7:12-cr-01136-(l)

I

United States v. Arnoldo Alvarado, Cause No. 20-40523

U.S.D.C. Cause No. 7:17-cv-llO

Crim. No. 7:12-cr-01136-(2)

Remaining citations are not available on the legal data base used

by the BOP.

These two cases have been filed seeking a Petition for

Alvarado

Certiorari to the Fifth Circuit Court of Appeals, Pedro

*

is the father and co-defendant of Arnoldo Alvprado

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TABLE OF CONTENTS

Questions Presented....

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Related Proceedings....

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. Table of Contents......

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Table of Authorities ,,,

V

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: Statement of Jurisdiction............

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Constitutional Provisions / Statutes

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Statement of Facts....

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Summary of Argument...

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Argument................. ..

I. "WHETHER/ IN LIGHT OF THE COURT'S RULING IN

BORDEN V. UNITED STATES, 593 U.S. _____

(2021), ALVARADO'S CONVICTION UNDER 18 U.S.C.

§111 (a) AND (b) QUALIFIES AS A VIOLENT CRIME

.12

UNDER 18 U.S.C. §924(c)?"................................

II WHETHER THE TRIAL COURT'S SUA SPONTE ASSERTION

OF THE AFFIRMATIVE DEFENSE pF 'INEVITABLE

DISCOVERY' VIOLATES THIS COURT'S PRONOUNCEMENT

IN GRFENLAW V; UNITED STATES, 554 U.S. 237,

243-244, 128 S.iCT. 2559, 171 L.ED. 2D 399 (2008)?".. .17

III "WHETHER THE USE OF A RUSE, IN ORDER TO OBTAIN

CONSENT TO SEARCH A HOME, UNDER THE

CIRCUMSTANCES .AT BAR, VIOLATE^ THE FOURTH

.19

AMENDMENT OF THE1 UNITED STATES CONSTITUTION?"..

IV. "WHETHER IN LIGHJ OF THE ISSUES IN THIS CASE,

JURISTS COULD ^DISAGREE WITH [HE DISTRICT

COURT'S

RESOLUTION

OF

THE '5 ALVARADOS'

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CONSTITUTIONAL CLAIMS UNDER SLACK V. MCDANIEL,

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529 U.S. 473, 484 (2000), AND MILLER-EL V.

COCKRELL, 537 U.S. 322, 336 (2003), AND COA

...28

SHOULD ISSUE?"................................................

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Prayer................

Signature Page....:

Appendix..............

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TABLE OF AUTHORITIES

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UNITED STATES SUPREME COURT

Rnrdon v. United States, 593 U.S.

... .11, 12, 13, 14, 16, fn.8

____ (2021)..........

Dav {/■ McDonough, 547 U.S. 198, 209,

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127 S.Ct. 1625, 164 L.Ed. 2d 376! (2006)....

Florida v. Jimeno, 500 U.S. 248, 251,

111 S.Ct. 1801, 1803-04, 114

.20, 22

L.Ed. 2d 297 (1991)......................................

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Greenlaw v. United States, 554 U.S. 237,

243-244, 128 S.Ct. 2559, 171 L.Ed.

2d 399 (2008)...............................................

Johnson V. United States, 576 U.S. 591 (2015)..

Leocal v. Ashcroft, 543 U.S. 1, 2, 5 (2004)...

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12, 17, 19

.. .15

...... 11, 13

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Lewis v. United States, 385 U.S. 200,

208-09, 87 S.Ct. 424, 17.L.Ed.

2d 312 (.1966).............. .................... ..........

Mi 1 ler-El vi Cockrell, 537 U|.S. 322,

336 (2003)....

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. ...125 28

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........ 23, 26, 27

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Sessions v. Dimaya,

584 U.S. \

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(2018)

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.. ,, .22

ill'iilllliiliiiliilliit

Schnecklothlv, Bustamonte, 412 U.S

218, 225, 36 L.Ed. 2d 85ft, 93

S.Ct. 20.41

(1973)....................

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Slack v. McDaniel, 529 U.S. 473,

484 (2000)..........

Spano v. New York, 360 U.S. 315,

320-21 (1959).......................

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...12, 28

26

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United States v. Davis, 139 S.Ct. 2319 (2019),,,,..

United States v. Feola, 420 U.S,' 671,

684-86, 95 S.Ct. 1255, 43 L,Ed.

2d 541 (1975)...........

Wood v. Milvard, 566 U/S. 463,

132 S.Ct. 1826, 183>3, 182

L.Ed. 2d 733, 743 (2012)...

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17, 19

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UNITED STATES COURT OF'APPEALS

Latimer v. Roaring Tav Z, Inc 601 F,3d

1224, 1239 (11th Cir. 2010)

S.E.C, v. ESM Gov't Sec Inc., 645

F.2d 310, 316-18 (5th Cir.

Unit B May 1981).............

United States v. Alvarado, 630 F.App'x

271, 272-73 (5th Cir. 2015)............

United States v. Ama, 684 Fed, App'x,

730, 740-41 (10th Cir. 2017)...........

United:States v. Arrington, 309 F.3d

401, 45-46 (U.S. App. D.C.)

(DlC, Cir. 2002),,,.

United-States v. Bosse, 898 F.3d

113, 115 (9th Cir. 1990)......

* United States v. Escamilla, 852

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• F.3d 474, 481 (5th Cir. 2017)

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\ United States v. Hardin, 539 F.3d

404,1424-25 (6th Cir. 2008),.

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\United States v. Harrison, 632

F.3d 1273 (10th Cir, 2011).,\.

\

United States v. Johnson, 310 F.3d

554, 556 (7th Cir. 2002).,,

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...16

VI

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United States v. Kimes, 246 F,3d

8*00, 807 (6th Cir. 2001)......

United States v. 'Little, 753 F,2d

1420, 1438 (9th cir. 1984)..

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■United States v. 'Mann/ 899 F,3d

. -901, 908 (10th Cir. 2018)........

:United States v.? Mendez, 431 F,3d ■

420 (5th Ciri, 2005)........

United States v. Pam, 867 F.3d

1191, 1203 (10th Cir. 2017)........

United States v. Prudden, 424 F.2d

1021; 1032 (5th Cir. 1970)........

United States v. Rafidi, 828 F.3d

437, 445 (6th Cir. 2016)

United States v. Spivey, 861 F.3d

1207, 1214 (11th Cir. 2017)...

United States v. Turpin, 707 F.2d

332, 334 (8th Cir. 1983)........

United States v.Twell, 350 F.2d

297, 300 (5th Cir. 1077)......

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United States '=v, Watzman,! 486 F.3d

1004, 1007 (7th Cir. 2007)........

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■ United States v. Gerardo, 7!43

F.Supp. 152,

154 (E.D.N.Y.

1990)

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UNITED STATES DISTRICT COURT

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United States v. Montes-Reves, 547

\ F.Supp. 2d 281 (S.D.N.Y, 2008) v

United States v. SWeat, 2021 U.S.

Dist. LEXIS 132909* at 11

(Maryland, July 16, 2021)......

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........ 20, 26

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United States v. Hernandez-Juarez,

2009 U.S. Dist, LEXIS 22031 *10

(West. Dist. Tex, 2009)......

United States v. Person, 599 F.Supp. :

2d 606................ .......................... i

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.. .21

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STATE COURTS

!

Krause v. Commonwealth, 206 S.W.

3d 922, 926 (Ky. 2006).,....

People v. Daughter/, 161 Ill.

App. 3d 394, 374 N.E. 228,

233, Ill. Dec. 762

(Ill. App. Ct. 1987)...........

People v. Jefferson, 43 A.D.

2d 112, 350 N.Y.S, 2d 3,

4 (N.Y. App. Div. 1973)......

STATUTES

18 U.S.C. §2.....................

18 U.S.C. §l-ll(a) and (b).

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18 U.S.C. §§924(c); 924(e)...

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.1.,..7, 8, 15, 16) 17

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i1 .7, 8, 13, 16, fn.5

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21 U.S.C. §841(a)(1) and 841(b)(1)(A).

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21 U.S.C. §846....

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...... ..7, 8, fn.3, fin.6

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...[.. .7, 8, fn.3, fn.6

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\ • 28 U.S.C. §455

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28 U.S.C. §1254

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28 U.S.C. §12911

28 U.S.C. §2255(d)(f)

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Fed. R. Civ. P. Rule 12(b)......

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Fed. R. Civ. P. Rule 15(a)...

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.. .18

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Fed. R. Civ. P. Rule 8....... .*...

Fed. R. Civ. P. Rule 56............

Fed. R.Civ. P. Rule 71(a)(4)(A)

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RULES ;

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Rule 12 of the Rules Governing Section 2255 ..

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U.S.S.G.

United States Sentencing Guidelines §2K2.4(b).

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. ,.:'.18, fn.5

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TREATISES, LAW REVIEW

2 Wayne R. LaFave, et al

Criminal Procedure §3.10(c)

(4th Ed. 2017)

4 Wayne R. LaFave, Search and

Seizure: A Treatise on the

Fourth Amendment, §8.2(n)

(5th Ed. 2017)

Trespass and Deception, 2015

B.Y.U.L. Rev.

359, 381-82 ;

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STATEMENT OF JURISDICTION

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2)

On June 28, 2021, Arnoldo Alvarado's Motion for

a Certificate of Appealability was denied (See

Appendix).

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On September y'l 2021, ; Arnoldo Alvarado's

petition for rehearing

en ;banc was denied (see

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Appendix),

3)

Jurisdiction is conferred on this Court

pursuant to Rule 12 of the Rules Governing

Section 2255 procedings; Rule 10 of the Rules

and the Supreme Court of the United States,- and

28 U.S.C. §1254.

4) The Appellate Court had jurisdiction pursuant

to 28 U.S.C. §2255(d)(f), 1291.

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CONSTITUTIONAL PROVISIONS

18 U.S.C. §111(a) and (b)

18 U.S.C, §924(C)(1)(A); §924(c)(3)

18 UiS.C. §924(e)(1)i (2)(B)

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28 U.S.C. §1254

28 U.S.C. §1291

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28 U.S.C. §2255(d) and (f)

Rule 12 of the Rules Governing Section 2255 Procedings

Rule 10 of the Rules of the Supreme Court of the United States

Federal Rules of Civil Procedure 8(a); (b)(1); (6)

Federal Rules of Civil Procedure 56(a); (c)(1); (2)

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CONSTITUTIONAL PROVISIONS / STATUTES

18 U.S.C. §lll(a) and (b)

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(a) In general. Whoever—

(1) forcibly ;assaults, resists, opposes,

impedes, Intimidates, or i interferes with

any person designated in'* person 1114 of

this title 118 USCS §11141 while engaged

in or on account of the performance of

official duties; or

(2) forcibly assaults or intimidates any

person who formerly served as a person

designated in section 1114 [18 USCS §11141

on account of the performance of official

duties during such person's term of

service,

shall, where the acts in violation of this section constitute

only simple assault, be fined under this title |or imprisoned npt

more than one year, or both, and where such act$ involve physical

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contact with the victim of that assault or the;intent to commit

felony, be fihed under this title or imprisoned not more than|8

years, or both.

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(b) Enhanced penalty. Whoever, in the commission

of anj[ acts described in subsection (a), uses

a deadly or dangerous weapon (including a

weapon\ intended to cause death or dangeV but

that flails to do so by reason of a defective

component) or inflicts bodily injury, shall be

fined under this title or imprisoned not more

than 20 years, or both.

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18 U.S.C. §924(c)(l)(A); 924(c)(3)

(cMl'MA) Except to the extent that a greater

minimum sentence is otherwise provided

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by this subsection or by any other

provision of law, any persqn who, during

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and in relation to any crime of violence

or drug

trafficking crime (including a crime of

violence or drug trafficking crime that

provides for an enhanced punishment if

committed by the use of a deadly or

dangerous weapon or device) for which

the person may be prosecuted in a court

of the United States, uses or carries a

firearm, or who, in furtherance of any

such crime, possesses a firearm, shall,

in addition to the punishment provided

for such crime of violence or drug

trafficking crime—

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be sentenced to a term of

imprisonment of not less than 5

years;

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fii) if the firearm is brandished, be

sentenced v to a' term of

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• imprisonment of not less than 7

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years; and

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if the firearm is discharged, be

to a term of

sentenced

imprisonment of not less than 10

years.

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(3) For purposes of this subsection the term

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"crime of violence" means an offense that

is a felony and—

(A) has an element the use, attempted use, or

threatened use of physical force against

the person or property of another, or

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(B) that by its nature,

involves a

substantial irisk that physical force

against the person or property of another

may be used in the course of committing

the offense,

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(e)(1)

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In the case of a person who violates

section 922(g) of this title 118 USCS

§922(g)1 and has three previous

convictions by any court referred to in

section 922(g)(1) of this title 118

USCS §922(g)(1)! for a violent felony

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or a serious drug offense, or both,

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committed on occasions different from

one another, such person shall be fined

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under this title and imprisoned not

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less than fifteen years,

and,

notwithstanding any other provision of

law, the court shall not suspend fhe

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sentence of, or grant a probationary

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sentence to, such person with respect

\ to the conviction under section 922(g)

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i 118 USCS §922(g)l.

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(2) As used in\this subsection—

(B) the term "violent felony" means

by

punishable

crime

any

imprisonment for a term exceeding

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one year, or any act of juvenile

delinquency involving the use or

carrying of a firearm, knife, or

destructive device that would be

punishable by imprisonment for

such term if committed by an adult •

that—

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Ci) has as an element the use,

attempted use, or threatened

use of physical force against

the person of another; or

(ii)

is burglary,

arson,

or

extortion, involves use of

explosives,

or otherwise

involves

conduct

that

presents a serious potential

risk of physical injury to

another;

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§1254. Courts of appeals; certiorari;

certified questions

Cases in the courts of appeals may be reviewed by the Supreme

Court by the following methods: i

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(1) By writ of certiorari

granted upon the

. petition of any party to any.civil or ^criminal

case, before or after rendition of judgment or

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decree;

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(2) By certification at any time by a cdurt of \

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appeals of any question of law in any civil or

criminal case as to which instructions are

desired, and upon such certification the

Supreme Court may give binding instructions or

require the entire record to be sent up for

decision of the entire matter in controversy.

XLV_

§1291. Final decisions of,district courts

The courts of appeals (other than the United States Court of

Appeals for the Federal Circuit) shaljl have jurisdiction of

appeals from all final decisions of thef district courts of the

United States District Court for the District of the Canal Zone,

the District Court of Guam, and the District Court of the Virgin

Islands, except where a direct review may be had in the Supreme

Court. The jurisdiction of the United States Court of Appeals

for the Federal Circuit shall be limited to the jurisdiction

described in sections 1292(c) and (d) and 1295 of this title [28

USCS §§1292(c) and (d) and 12951.

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§2255. Federal custody; remedies on motion attacking sentences

(a) A prisoner in custody under sentence of a

court established by Act of Congress claiming

the right to be released upon the ground! that

the sehtence was imposed in violation ojf the

Constitution or laws of the United Statejs, or

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that the court was without jurisdiction to

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impose'!such sentence, or that the senteneb was

in excess of the maximum authorized by law, or

is otherwise subject to collateral attack,; may

.move the court which imposed the senteneb. to

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vacate,^set aside or correct the sentenced

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the case'^ conclusively show that the prisoner

is entitled to no relief, the court shall

cause notice thereof to be served upon the

United States attorney, grant a prompt hearing

thereon, determine the issues and make

findings of fact and conclusions of law with

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respect thereto, If the court finds that the

judgment was rendered without jurisdiction, or

that the sentence imposed was not authorized

by; law or otherwise open to collateral attack,

or; that there has been such a denial or

infringement of the constitutional; rights of

tlie prisoner as to render the: judgment

vulnerable

to collateral attack, the court

<

shall vacate and set the judgment aside and

shall discharge the prisoner or resentence him

or grant a new trial or correct the sentence

as may appear appropriate.

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(c) A court may entertain and determine such

motion without requiring the production of the

prisoner at the hearing.

(d) An appeal may be taken to the court of appeals

from the order entered on the motion as from

the final judgment on application for a writ

of habeas corpus.

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(e) An application for a writj of habeas corpus in

behalf of 1 a prisoner who is authorized to

apply for relief by motiion pursuant to this

section, shall not be entertained if it

appears that the applicant\has failed to apply

• for relief,;i by motion, to' the court which

sentenced hfm, or that suo{h court has denied

him relief, iunless it also appears that the

remedy by motion is inadequate or ineffective

to test the legality of his 'detention.

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(f) A 1-year period of limitation shall apply to a

motion under this section, The limitation

period shall run from the latest of—

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(1) the date on which the

conviction becomes final;

judgment

of

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(2) the date on which the impediment to making

a motion createdjby governmental action in

violation of the Constitution or laws of

the United States is removed, if the

movant was prevented from making a motion

by such governmental action.

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(3) the date on which the right asserted was

initially recognized by the Supreme Court,

if that right has been newly recognized by

the Supreme Court and made retroactively

applicable to cases on collateral review,or

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(4) the date on which the facts supporting the

claim or claims presented could have been

discovered through the exercise of due

diligence.

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Rules Governing §2255

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Rule* 12. Applicability of the Federal Rules of Civil Procedure

and the Federal*,i Rules of Criminal Procedure

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The Federal\Rules

of

Civil

Procedure

and

the

Federal

Rules.of,

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Criminal Procedure, to the extent that they are not inconsistent'

with any statutory provisions or these rules, may be applied to a

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proceeding under these rules.

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xvii

Federal Rules of Civil Procedure

Rule 8, General Rules of Pleading

(a) Claim for Relief. A pleading that states a

claim for relief must contain:

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(1) a short and/ plain statement of the grounds

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for the court's jurisdiction, unless the

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court alreiady has jurisdiction and the

claim needs no new jurisdictional support;

;

(2) a short and plain statement of the claim

showing that the pleader is entitled to

relief; and

(3) a demand for the relief sought, which may

include relief in the alternative or

different types or relief.

(b) Defenses; Admissions and Denials.

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(1) In General. In responding to a pleading,

a party must:

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(A) state in short ^and plain terms its

defenses to each claim asserted

against it; and \

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• (B) admit or deny the\allegations assertedagainst it by an opposing party. '

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B ]

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An

(6) Effect of Failing to Deny

allegation—other than one relating to the

amount of damages—is admitted if a

responsive pleading is required and the

xviil

allegation is not denied, If a responsive

pleading is not .required/ an allegation is

considered denied or avoided. f

Rule 56. Summary Judgment

F

(a) Motion for Summary Judgment or Parjtial Summary

Judgment. A party may move for summary

judgment/ identifying each claim jpr defense—

or the part of each claim or defense—on which

summary judgment is sought. The court shall

grant summary judgment if the movant shows

that there is no genuine dispute as to any

material fact and the movant is entitled to

judgment as a matter of law. The court should

state on the record the reasons for granting

or denying the motion.

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(c) Procedures.

5

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(2) Objection That a Fact Is Not supported

liv Admissible Evidence. A party may

object that the material cited ^to

support or dispute a fact cannot pe

presented in a form that would f>e

admissible in evidence.

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xix

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STATEMENT OF THE CASE

~Z-2

A. The Underlying Criminal Charge

At approximately 1:30 a.m several HSI agents, including

Special Agent Kelton ! Harrison, arrived and established a

/

perimeter around the general area of the tractor trailer In its

opinion on Movant's dirrect appeal, the Fifth Circuit described

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what happened next:

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Around 3:00 am

. [an individual named]

Rene Garcia—who was allegedly casing the

area in preparation for a drug heistcontacted Pedro [Alvarado] and informed him

that a suspicious vehicle was parked under a

tree on the Alvarado family's property.

Pedro told [his son! Arnoldo, then 18 years

old, and his other son Marques, then 16

years old, to join him to investigate.

Arnoldo and Marques each retrieved a gun and

the three got into Pedro's pickup trifjck and

i

drove down the road towards the suspicious

vehicle.

The suspicious vehicle was

actually the unmarked Jeep of Special! Agent

Kelton Harrison, who was parked with his

engine on and his lights off conducting an

undercover stakeout as part of an ongoing

Homeland Security investigation.

Agent

Harrison testified that, upon seeing Pedro's

pickup truck slowly approaching, he

attempted to leave the property, but helsoon

heard shots ring out and felt the impact of

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^ The Statement of the Case is drawn, in part, from the Magistrate's rendition of facts, attached

in the Appendix in total.

2

lo distinguish between the Alvarados, Pedro (father) and Arnoldo (son) are identified by first

name. The facts .'re drawn from multiple sources, including Movant's Presentence Investigation

Report (PSR), the suppression hearing held on April 10, 2013, the trial held March 17-21, 2C!U-,

the sentencing heating held June 5, 2014, and the opinion from the Fifth Circuit Court of Appeals

affirming Movant's conviction and sentence. (See Cr. Docket Nos. 471, 527-28, 530-33, and 589.)

1

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bullets on both sides of his vehicle. As he

accelerated in an attempt to escape, another

truck, later discovered to be driven by

[Rene! Garcia and his cocbnspirators,

blocked his Jeep from leaving.

Agent

Harrison was able to get aroiind Garcia's

truck and drive off the property and onto

Route 493, but the Alvaradosj and Garcia

continued to pursue Agent Harrison for about

three miles. It is undisputed that Arnoldo

and Marques continued to shoot their

firearms, but there is conflicting testimony

about whether the Alvarados fired at

Harrison's Jeep once they left their

family's property: Arnoldo testified that

after Harrison pulled onto Route 49 he only

shot into the air in attempt to scare the

driver away. Ultimately, Agent Harrison's

truck was struck by approximately 12

bullets, one of which struck the agent in

the bafck. Agent Harrison continued north on

493 until he came to a T-intersection, where

his vejhicle hit a fence and crashed into a

field.j Agent Harrison ran from his vehicle

and hi‘d in a brush of trees for a short

period, then crawled back to his vehicle and

called 'for help.

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United States v.

2015).3

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lvarado, 630 F. App'x 271, 272-73 (5th Cir.

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3 As the Fifth Circuit noted, Agent Harrison was initially parked under a tree that was on

property owned by Alvarado's reletaive:

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More specifically, Pedro was informed that a suspicious vehicle was

parked under a tree near Arnoldo and Marques's aunt's house, at the

intersection of 11th Street (Cemetary Road) and Route 493 in

Hargill, TX, which is approximately a quarter mile from the.

Alvarado's home. Marques testified that the aunt had moved away

and left the house in his family's care.

Id. at 272 n.l.

Docket No. 589).

The Fifth Circuit's ruling is also docketed in Arnold's criminal case.

(Cr.

2

Agent Olivarez, along with about 13 other HSI agents and a

Texas state trooper, arrived at the Alvarado residence? at around

i

noon! on July 3. (Id. at 73-75, 94.) Agent Olivarez,

several

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[heavily armed! HSI agents, and the trooper approached the gate

to the property, while the other agents waited across!the street.

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(id. at 76, 94-95.) Arnoldo and Marques came to the locked gate

and the officers identified themselves. (Id. at 76.) The agents

asked for consent to search "the house and the property." (Id.)

Arnoldo and/or Marques then went to retrieve their father, Pedro.

(Id.) When Pedro came out to the gate, the officers again

identified themselves and Agent Olivarez asked Pedro for consent

to search his property. (Id. at 77.) Agent Olivarez told Pedro

they had information that there were illegal aliens inside his

home, even though this was not true and was a ruse to obtain

4

Pedro's consent to search Ipis property. (Id.) Pedro replied

that he had two illegal aliens inside his home, and Agent

:

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^ During the suppression hearing, Agent Olivarez was candid that the request to search based on

the presence of illegal aliens was a ruse:

MR. ALANIZ:

Okay. And so what happens when he goes and—when this young

man gets his father?

AGENI OLIVARES:

MR. ALANIZ:

His dad comes out.

We identified ourselves again. He

states his name is -.Pedro. I asked him for consent of his—

of the—his property as well.

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Did you tell him why you were there?

AGENI OLIVARES:

No, sir.

MR. ALANIZ:

Did you give him any ^information about-did you have a ruse

to get into—to try to get into the property?

AGENT OLIVARES:

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Yes, sir. I told him we had information there's illegal

aliens inside his property.

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!!'. AMR'.!ALANIZ:

Okay.

That was not true.

AGENT OLIVARES:

Correct.

MR. ALANIZ:

Okay,

So when you tell him that, what does he say?

3

Olivarez again asked for consent to search the Alvarado

residence, (id. at 78.) Pedro then gave verbal consent to

search his house, opened the gate, and informed the officers that

the illegal aliens werfe

most likely in the attic, (id.) The

I

agents entered the home and found two undocumented aliens in the

attic, just as Pedro had

predicted, (id.)

I<

After the aliens were removed from the Alvarado residence,

the agents performed a quick protective sweep of the home. (id.

at 79.) No items were recovered during the protective sweep,

(id. at 79, 95.) Agent Olivarez and the rest of the agents then

exited the home and stood outside guarding the Alvarados. (id.

at 95.) Agent Olivarez told Pedro that he was being detained for

harboring aliens, (id. at 78-79, 96.) Agent Olivarez then asked

Pedro if an individual named Rene Garcia lived at Pedro's home,

(id. at 79.) Pedro said no but stated that he "knew of Rene

Garcia that lived up the road." (id.) Pedro ^ave Agent Olivarez

directions to Garcia's house. (id.) At "hat point, Agent

Olivarez left some agents at the Alvarado residence and he, along

with some other agents, went to Garcia's purported residence,

(Alvarados remained under arrest.^

\ (id. at 80.)

One of the people found at. the new residence identified

himself as Rene Garcia. (Id. at 82.) Agent Olivarez asked

1»

AGENT OLIVARES:

He states that he does have two illegal aliens inside his

house.

1

MR. ALANIZ:

And does that—at that point, do you ask for oral consent?

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[Agent Olivarez also testified # the suppression hearing that he had no probable cause or

reasonable suspicion to be at the Alvarados1 residence.]

AGENT OLVIVARES:

Correct.

MR. ALANIZ:

Okay.

say?

AGENT OLVIARES:

He gives us consent and he opens the gate.

And when you asked him for consent, what does he

(Cr. Docket No. 534, Suppression Hrg. Tr., at 77-78; note that the suppression hearing transcript

spells the agent's name "Olivares," while elsewhere in the record his name is spelled "Olivarez.")

4

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Garcia if he knew why the agents were there and Garcia replied,

"Yes, probably because of the shooting last night." (Id.)

Garcia proceeded to tell Agent Olivarez jthat the previous night

he observed several suspicious vehicles (around the neighborhood

and that he had also observed a suspicious vehicle near his

friend "Pete's" house. (Id.) "Pete" was later identified as

i

Pedro Alvarado. (Id. at 82-83.) Garcia stated that he had

called Pedro and told him that there was a "suspicious vehicle"

by his home. (Id. at 83.)

HSI Special Agent Victor Hugas was one of the agents who was

present at Garcia's home. (Id. at 105.) Agent Hugas learned

that "the individual down the street, Pedro at a house where they

had already been, that he was—that him and his sons were

involved or had knowledge of the shooting." (Id. at 105-106.)

Agent Hugas and about other five other agents went from Garcia's

residence to the Alvarado residence "just to make sure that the

individuals were' still there and that it was secure." (Id. at

106, 1-49.)

Agent Hugas arrived at the Alvarado residence "sometime after !

lunchtime" and was informed by other agents that they had cleared \

the house "for^ bodies" (the illegal aliens) but had not

thoroughly searched it. (Id, at 109, 110.) Agent Hugas--who was \

wearing "full raid gear" [heavily armed! with "all of [HSI'si

!

markings on it"—then approached Pedro, who was standing next to

the front door of the house. (Id. at l\)7, 110.) Arnoldo and

Marques were detained "right next to" Pedro at the front door and

were sitting on what appeared to be "the rear seat of

a

minivan!.]" (Id. at 108.) Agent Hugas identified himself and

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‘asked Pedro if he was the owner of the residence, which Pedro

confirmed. * (Id. at 110.)

Agent Bugas then asked Pedro if he had any weapons or guns in

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the home, and Pedro responded that he did not. (Id. at 110-111.)

I agents at the house had previously

~ done only

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Because the

protective sweep, Agent Hugas asked Pedro if he would consent to

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a search of his home. (Id. at 110-111.) Pedro verbally

consented to a search of his home and also signed a written

consent-to-search form. (id, at 111.)

Agent Hugas and two or three other agents then entered the

Alvarado residence. (Id, at 112.) One of the agents saw "some

rounds" on a table in the foyer. (Id.) Agent Hugas and another

agent entered a different room and found some more rounds in a

closet, as well as a 9mm magazine and 9mm rounds inside a

dresser. (See id. at 112, 155-156.) Upon the discovery of these

items, and before completing, a moHe thorough search, Agent Hugas

directed all the agents to leave tie house. (Id, at 112.) After

exiting the house, Agent Hugas confronted Pedro about the

ammunition found in the house and asked whether Pedro owned a

pickup truck. (Id. at 113.) Pedro

told Agent Hugas that he

v

wanted to speak .to him in private about why the agents were

there, (id. at 114-115.) Agent Hugas then contacted the FBI

command center and was instructed tty bring Pedro to the command

center so that the interview could take place at the FBI office,

(id. at 116-117.)

Agent Hugas transported Pedro to the FBI office; other law

enforcement agents transported Arnoldo and Marques separately to

the FBI office for questioning, (id. at 118, 126.) AT the FBI

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office, Arnoldo waived his Miranda rights-and gave a statement

admitting his role in pursuing and firing shots , at Agent

*

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Harrison's vehicle, An FBI team later conducted a mone thorough

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search of the Alvarado residence and found a 9mm pistol and a .22

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caliber rifle hidden in the attic

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B. Criminal Proceedings

1

On July A, 2012, Arnoldo and Pedro were named in a criminal

complaint filed in the Southern District of Texas, McAllen

Division.5 (Cr. Docket No. 1.) Arnoldo was charged with assault

of a federal agent in violation of 18 U.S.C. §§lll(a)(l), and

111(b), and 18 U.S.C. §2, and unlawful use of a firearm during

and in relation to a crime of violence in violation of 18 U.S.C.

§§924(c)(1)(A), 924(c)(1)(A)(iii), and 18 U.S.C. §2. (Id.)

On July 24, 2012, a federal grand jury returned a three-count

indictment charging Arnoldo and Pedro with: (1) attempted murder

!

of a federal agent in violation of 18 U.S.C. §§1114(3), 1113 and

18 U.S.C. §2; (2) assault on a federal agent in violation of 18

U.S.C. §§111(a)(1), 111(b), apd 18 U.S.C. §2; and (3) unlawful

use of a firearm during and in relation to a crime of violence in

violation of 18 U.S.C. §§924|(c)(1), 924(c)(l)(A)(iii), and 18

U.S.C. §2. (Cr. Docket No. 23.\) On April 30, 2013, a four-count

third superseding indictment was filed charging Arnoldo and Pedro

on counts 1-3 with the samel crimes alleged in the initial

indictment.

(See Cr. Docket No. 240.) The superseding

indictment also included a fourth count charging Rene Garcia and

■* Marques, was 16 years old at the time he and Arnoldo fired shots at the agent.

prosecuted in state court.

Marques was

7

others, including David Olivarez (not to be confused with HSI

Special Agent Adrian Olivarez),

for their role in the attempt to

%

steal a load of over 1,000 kilograms of marijuana on the night of

6

the shooting. The Alvarados' case was randomly assigned to U.S.

District Judge Randy Crape.

Prior to trial, courjsel(s) for the Alvarados filed a motion

to suppress, seeking to exclude (among other things) all the

evidence seized by law enforcement from the Alvarado residence

and statements made by Arnoldo on July 3, 2012. (See Arnoldo's

Cr. Docket No. 48, and Pedro's Cr. Docket No. 47.) On April 10,

2013, the District Court held a suppression hearing during which

eight witnesses testified. (See Cr. Docket Minute Entry for

4/10/2013; Cr. Docket Nos. 280, 534.) After considering the

evidence presented at the hearing, the Court found that Pedro

voluntarily gave consent to search his home and denied the motion

to suppress. (See Cr. Docket No. 534, Suppressing Hrg. Tr at

163, 220-221.)

The Alvarados pled not guilty and proceeded to trial.

'Arnoldo took the stand at trial and testified that in the early

yiorning hours of July 3, 2012, his father (Pedro) ^woke him up and

'told him to grab his gun. Arnoldo admitted that lie shot at Agent

Harrison's Jeep with a 9mm pistol as Pedro chased the Jeep with

his

truck, although Arnoldo claimed that he did so^essentially

in

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self-defense.

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)

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Ihe fourth count of the third superseding indictment charged Rene Garcia, Julio Armando Davila,

Arnoldo Adan Davila, Miguel Angel Romo, and David Olivarez with conspiracy to possess with intent

to distribute over 1,000 kilograms of marijuana in violation of 21 U.S.C. §§846, 841(a)(1) and

841(b)(1)(A). (See Cr. Docket No. 240.)

8

On March 21, 2014, the jury-found Arnoldo and Pedro guilty as

to Counts Two and Three of the third superseding indictment,7

(Cr. Docket Minute Entry for 3/12/2014.);t The District Court

ordered the Probation Office to prepare I a Presentence Report

t

Investigation (PSR). The PSR calculated Arnoldo's base offense

at 14, which was enhanced 7-levels because the victim (Agent

Harrison) sustained a permanent or 1 i'fe-threatening bodily

injury. Movant also received a 2-level enhancement because he

was convicted under 18 U.S.C. §111(b), thus bringing his total

offense level to 23. The PSR calculated Arnoldo's criminal

8

history at category I, which resulted in a Guidelines

imprisonment range of 46 to 57 months for Count Two. The PSR

noted that pursuant to 18 U.S.C. §924(c)(l)(A)(iii) and U.S.S.G.

§2K2.4(b), the Guidelines range for imprisonment for Count Three

was 120 months, which was the statutory minimum sentence that

must run consecutively to the sentence imposed in Count Two.

The Alvarados filed a direct appeal of their convictions and

sentences, arguind that (1) the District Court erred by declining

to charge the jury with a self-defense instruction, (2) the

District Court ^violated his Sixth Amendment right of

confrontation when\it refused to allow cross-examination of Agent

Harrison on the issue of the federal agents' "bungled operation";

and (3) the District Court erred when it orverruled his objection

i

to the instruction iVi the jury charge that he need not have known

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^ The jury was unable to reach a unanimous verdict on Count One, which the Government later

dismissed. (Cr. Docket Nos. 483, 484.)

8 Arnoldo did not have any criminal history points. Pedro's sentence was 10 years under 18

U.S.C. §lll(b) and 10 years under 18 U.S.C. §924(c)(l)(A)(iii) to run consecutively.

9

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he was assaulting a federal agent, The Fifth Circuit rejected

the Alvarados' challenge to their convictions and sentence and

affirmed thej District Court's judgment on November 12, 20,15.

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(Cr. Docket |Nos. 588, 589.) Arnoldo filed his §2255 motion* on

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March 17, 2017. Pedro's was filed simultaneously.

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C. The Alvdrados' Allegations and the Government's Response I

The Alvarados assert two grounds for relief in their §2255

motion. 9 First, Alvarado claims that their appellate counsel

provided ineffective assistance when he failed to challenge the

District Court's ruling that Pedro's consent to search the

Alvarado residence was voluntary. (Docket No. 1, at 1, 18-44.)

Second, Alvarado claims that both their trial and appellate

counsel were ineffective for failing to move to recuse U.S.

10

District Judge Randy Crane under 28 U.S.C. §455. (Id. at 4, 4547.)

Respondent United States has filed a motion for summary

judgment, arguing that Alvarado's claims lack merit and should be

filed both a response

dismissed. (Docket No. 7.) The Alvarados

*

and a reply to the Government's summary judgment motion. (See

Docket Nos. 11, 12.)

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In addition, on July 15, 2019, land on August 7, 2019, the

Alvarados filed documents titled "Notice of New and Controlling

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Pedro Alvarado was charged, tried, and convicted along with Arnoldo. Pedro has filed his own

§2255 motion.

See Pedro Alvarado v. United States, Case No. 7:17-cv-104 (S.D. Texas, McAllen

Div.) Pedro's §2255 motion’ and related" "filing’s" "are nearly word-for-word the same as Arnoldo's

motion and filings, except that Pedro asserts an additional claim that does not apply to Arnoldo.

The Magistrate has filed a report and recommendation addressing the claims asserted by Pedro,

which (not surprisingly) is very similar to this report. (See Case No. 7:17-cv-104, Docket No.

16.)

In its motion for summary judgment, the Government construes this claim as the Alvarados

asserting that their counsel provided ineffective assistance for failing to argue that both the

district court judge and the prosecutor should have been recused.

In their response, the

Alvarados clarify that they did not raise any issue about the prosecutor in their §2255. (Docket

No. 12, at 15.)

10

Authority" and a "Motion for Leave to Brief Davis." (Docket Nos.

In those pleadings, Movant essentially requests

16, 19.0

permission to amend his §2255 motion to include a new claim based

on the Supreme Court's recent decision in United States v. Davis,

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139 S.Ct. 2319 (2019). Respondent filed an oppositiob to the

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attempted amendment. (Docket No. 18.)

The trial court adopted the Recommendation and Report of the

Magistrate (R&R attached in appendix) and denied a Certificate of

ii

Appealability (COA). Both Alvarados timely appealed.

The Fifth Circuit denied COA for both Alvarados. Both

Alvarados moved for en banc consideration, raising the

Magistrate's sua sponte assertion of the affirmative defense of

inevitable discovery (see appendices) and consideration of Borden

(2021) which issued while the

v. United States, 593 U.S.

).

denial of the COA was pending. (See Appendix _

and

The Fifth Circuit denied en b&nc consideration. (See Appendix

.)

and

This Petition for Certiorari follows.

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SUMMARY OF ARGUMENT

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In Borden v. United States, this Court held that crimes with

the mens rea of "recklessness" \wi 11 not support an enhancement

under 18 U.S.C. §924(e). Because the language of 18 U.S.C.

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§924(e) and 18 U.S.C. §924(c) are substantively identical (See

United \States v. Davis), a crime with the mens \ rea of

recklessness will not support an 18 U.S.C. §924(c) charge.

^ The Alvarados timely filed specific objections to the Magistrate's Report and Recommendation,

raising all the issues following, save Borden v. United States ruling regarding recklessness,

which had not been issued at the time of the Magistrates R&R. (See Appendix.)

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Alvarado's underlying offense, 18 U.S.C. §111(a) and (b), can

be committed recklessly -and are, therefore, unavailable to

support a secondary conviction under §924(c).

In Greenlaw v. United States, this Court established the

i

limits of a trial court/, sua soonte, asserting a waived (by

omission) affirmative defense to that of "statute of

limitations."

Here, the Magistrate, sua soonte, raised

inevitable discovery, an affirmative defense, to justify a ruse

used by the Government to obtain consent to search in violation

of the Fourth Amendment,

The Government's use of a ruse, in order to obtain consent to

search a home, in a rural South Texas environment, close to the

border, violates the Fourth Amendment of the United States

Constitution.

Reasonable jurists, on considering the issues in this case,

cjould disagree and a Certificate of Appealability should have

issued under Slack v. McDaniel, 529 U.S. 473, l»84 (2000) and

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

ARGUMENT

I:\ The United States Court of Appeals has denied\ an important

question of federal law that has not been, but should be, settled

by this Court. The question is:

1\.

I\

"WHETHER, IN LIGHT OF THE COURT'S RULING IN

BORDEN V. UNITED STATES, 593 U.S. ____

(2021), ALVARADO'S CONVICTION UNDER 18 U.S.C.

§111(a) AND (b) QUALIFIES AS A VIOLENT CRIME

UNDER 18 U.S.C. §924(c)?"

12

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In Borden, Justice Kagan, writing fpr a four justice

plurality, found that mere recklessness did not suffice to

I

constitute a "violent felony" under the Armed! Career Criminal Act

(ACCA) found at 18 U.S.C. §924(e)(2)(B)(i), j"The phrase 'against

another/ when modifying the 'use of fortie,' demands that the

perpetrator direct his action at, or target, another individual.

Reckless conduct is not aimed in that prescribed manner." Borden

v. United States, 141 S.Ct. 1817, 1825 (2021) (plurality

The Court reasoned that modern criminal statutes

opinion)

require one of four basic types of mental states "in descending

order of culpability: purpose, knowledge, recklessness, and

negligence." The Court further in Leocal v. Ashcroft, 543 U.S.

1, 2, 5 (2004), found that negligent conduct did not evince a

culpable enough state of mind to satisfy the definition of "crime

of violence" undeij 18 U.S.C. §16(a), "a statutory definition

relevantly identical to ACCA's relements clause." Borden, 141

S.Ct. at 1824.

(2019), and

In United States v. Davis, 588 U.S.

(2018), the Court discussed the

Sessions v. Dimaya,584 U.S.

similarity of the ’residual clause of 18 U.S.C. §924(c) and 18

U.S.C. §16(b) (respectively) to residual clause held

unconstitutionally vague in Johnson v. United States, 576 U.S.

i

591 (2015). The Court held the residual clause(s) in §924(c) and

\

16(b) to be unconstitutionally vague

The force clause in 18 U.S.C. §924(e)(2)(B)(i) discussed in

Borden is identified to the force clause in 18 U.S.C.

§924(c)(3)(A). See below:

13

\

\

\

§92A(e)(2)(B)(i)

"the’term 'violent felony' ... that—

i

(f) has an element the use, attempted use,

I or threatened use of physical force

against the person of another; or"...

i

i

§924(c)(3) "For purposes of this subsection

the term 'crime of violence' means an offense

that is a felony and—

uj (A) has an element the use, attempted use,

or threatened use of physical force

against the person or property of

another, or"

\

\

As the District Court found in United States v. Sweat, 2021

U.S. Dist. LEXIS 132909* at 11 (Maryland, July 16, 2021): "Thus,

after Borden a crime requiring only recklessnes cannot be a

predicate under the elements clause of §924(e), or, by extension,

11924(c), although the precise reasons is not resolved." This

!

Court's holding in Borden, therefore, logically extends to

§924(c)(3)(A).

t

In this case, the underlying statute at issue is 18 U.S.C.

\

§111(a) and (b). The text of "section 111(a)(1) contains four

distinct elements; the Government must, show that the defendant

\

(1) forcibly (2) assaulted, resisted, opposed, impeded,

intimidated, dr interfered with (3) a federal officer (4) in the

performance of his duties." United States v. Kimes, 246 F.3d

800, 807 (6th Cir. 2001) (emphasis added), To establish a

violation of §111(b) the Government must prove a violation of

ii

14

■ §111(a) in addition to the use of a deadly or dangerous weapon or

the inf 1 ict[ion! [of] bodily iniurv." United States v. R-afidi,

t

829 F.3d |437, 445 (6th Cir. 2016) (emphasis added)

i

In determining whether a §111(a) and (b) offense qualifies as

i violence the Courts apply a "categorical app/roach."

1

a crime jof

United States v. Pam, 867 F.3d 1191, 1203 (10th Cir. 20lb, In

l

i

other words, courts look only to the elements that must be proven

to convict a person under §111 (a) and (b) in the abstract, "and

not to the particular facts underlying" Alvarado's actual

conviction for that offense. Id. (internal quotation marks

omitted). For 18 U.S.C. §111 (a) and (b), Courts have held that

the statute contemplates multiple possible offenses and use the

modified categorical approach. See United States v. Ama, 684

Fed. Appx. 736, 740-41 (10th Cir. 2017) (Government conceded that

§111 as a whole is not categorically a violent felony and that a

modified categorical approach japplies to determine whether

§111(a) and (b) qualifies as a violent felony) (see collection of

cases).

As Courts have previously ‘ determined recklessness is a

sufficient mental state to convict under 18 U.S.C. §111(a) and

(b). (See discussion in United\states v. Mann, 899 F.3d 898,

901-908 (10th Cir. 2018) (discussing enhancement under 18 U.S.C.

§113 and 924(c) and analogizing §ll|l(a) and (b)) Section 111(a)

*

and (b) do not support a §924(c) conviction.

Title 18 U.S.C. §§111(a) and (b) are general intent crimes.

See United States v. Feola, 420 U.S. 671, 684-86, 95 S.Ct. 1255,

43 L.Ed. 2d 541 (1975) ("[Section! Ill cannot be construed as

embodying an unexpressed requirement that an assailant be aware

i

15

that his victim is a federal officer ... [Ain actor must’

entertain merely the criminal intent to do the acts therein

specified.")

Some courts?of appeal to have addressed whether

i

§111(b) has a specific intent requirement, decided that it does

not contain a specific intent requirement. United States v.

Johnson, 310 F.3d 554, 55(6 (7th Cir. 2002) ("[Section] 111(b)

1

does not require proof of intent to injure."); United States v.

Arrington, 309 F.3d 40, 45-46 U.S. App. D. C. (D.C. Cir. 2002)

(rejecting the argument that the actor must "intentionally use

the object as a weapon" and holding that §111(b) simply requires

the "intent to use the object" in the committing one of the acts

in §111(a), and that "the object be used in a deadly or dangerous

manner" (emphasis omitted)). These collectively allow a mens rea

of recklness.

Here, the relevant inquiry is the language of the force

clause--whether the offense necessarily involves the "use,

attempted use, or threatened use of physical forcL against the

person or property of another." 18 U.S.C. §924(cj) (3) (A). "If

any—even the latest culpable—of the acts criminalized do not

entail

that kind of force, the statute of conviction

does not

i

*

categorically match the federal standard, and so cannot serve as

"a predicate offense for purposes of §924(c)(3)(A)." * Borden, 141

S.Cti. at 1822.

*\

!

Section 111(b) can be committed in one of two ways. First,

\

the elements of a §111 (a) can be committed with a deadly or

dangerous weapon; or, second, an action in violation of §111(a)

that inflicts bodily injury. By way of example, a United States

Park Ranger seeks to make an arrest of a defendant. The

16

defendant resists arrest and the' Park Ranger falls off of a

< narrow trail in the National Park and sustains bodily injury.

I This example meets all elements of 18 U.S.C. j §111(a) (forcibly

; resisting a Park Ranger in the performance ofjhis duties, and of

' 18 U.S.C. §111(b) resulting in bodily injury. /The "infliction of

bodily injury" occurred when the defendant was reckless as to the

outcome resulting from his resistance, but was without intent for

the Park Ranger to be injured and without the use of a deadly

weapon.

Because circumstances exist under which 18 U.S.C. §111(a) and

(b) can be committed recklessly, the Alvarados should have been

permitted a COA and an opportunity to brief at the Fifth Circuit.

t

;

II. The Court of Appeals for the Fifth Circuit has permitted the

district court to depart from the accepted and usual course of

judicial proceedings as to call for the exercise of this Court's

1

supervisory powers. The question is:

"WHETHER THE TRIAL COURT'S SUA SPONTE

ASSERTION OF THE AFFIRMATIVE DEFENSE OF

'INEVITABLE DISCOVERY' VIOLATES THIS COURT'S

PRONOUNCEMENT IN GREENLAW V. UNITED STATES,

55A U.S. 23*7, 243-244, 128 S.CT..2559, 171

L.ED. 2D 399\(2008)?"

\

Greenlaw v. United \states,

instructs that Courts do not have

\

"carte blanche to depart from the principle of ,party

presentation

\

basic to our adversary system." 554 U.S. at 243-44. C.f. Wood

v. Milyard, 566 U.S. 463, 132 S.Ct. 1826, 1833, 182 L.Ed. 2d 733,

743 (2012)

' ~~ 1

\

17

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!

I'n the underlying suit, the Magistrate raised, sua soonte,

the affirmative- defense of inevitable discovery. Pre-trial, *

Alvarado had objected to the Government's use of a Ruse to obtain I

consent to search. The Government did not raise inevitable i

discovery pre-trial, or during its brief in response to!

Alvarado's counsel's failure to raise the improper Fourth,

Amendment search on appeal (appellate counsel was different from

trial counsel) as one (1) ground in support of his ineffective

assistance of counsel (§2255).

The Federal Rules of Civil Procedure "govern the procedure in

all civil actions and proceedings in the United States District

Courts," Fed. R. Civ. P. 1, "to the extent that the practice in

[§22551 proceedings ... is not specified in a federal statute ...

or the rules Governing Section 2255 cases [("§2255 Rules" or

§2255R")1, "Fed. R. Civ. P. 71(a)(4)(A). Similarly, §2255 Rule

12 expressly authorizes application of! Federal Rules of Civil

!

Procedure to a §2255 proceeding "to thej extent that they are not

inconsistent with any statutory provisions or [the §2255 Rules!."

Fed. R. Civ. P. Rule 8(c) governs the pleading of affirmative

defenses. It requires a party to "affirmatively state any

avoidance or affirmative defenses." Fed.\R. .Civ, P. 8(c). .

If a party fails in its answer to assert an affirmative

defense identified in Fed. R. Civ. P. 8(c), the party forfeits

* 12

the defense. Fed. R. Civ. P. 12(b), 15(a)

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ii.

*

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12

In Alvarado's reply to the Government's response to his §2255 petition, Alvarado noted that

the Government's argument appeared to rely on the inevitable discovery affirmative defense, but

pointed out that the Government did not raise the affirmative defense in the trial court below

(pre-trial or otherwise). Nowhere did the Government raise properly the affirmative defense of

"inevitable discovery" and Alvarado has consistently objected to its consideration.

18

Here/ not only does the Magistrate deviate from Supreme Court

precedent, -the Magistrate also expands the statute and standing

of the Government as a party to the proceedings by sua sponte

I

!

arguing an faffirmative defense not raised by the Government, and

not contained in the limited exception discussed in Defy v.

s

McDonough, S 547 U.S. 198, 209, 126 S.Ct. 1625, 164 L,Ed. 2d 376

. to

(2006) (we hold that district courts are permitted

habeas petition).

consider, sua sponte, the timeliness of a

The issue of district courts' unlimited consideration of

affirmative defenses, sua sponte, not contained in the limited

exception of Wood and Day should not be permitted. See Latimer

v. Roaring Tav Z, Inc 601 F.3d 1224, 1239 (11th Cir. 2010)

("Courts generally lack the ability to raise an affirmative

defense, sua sponte.") (citations, quotations, and alternatives

omitted)13

The Alvarados should have been allowed to brief at the

appellate court the Magistrate's sua sponte assertion of an

affirmative defense of inevitable discovery in violation of

1

judicial standards and Greenlaw.

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III. The trial court and the appellate court, through the

Magistrate's adoption of the use of\ a ruse to obtain consent has

13 Here the Government filed a botched response. Both Pedro Alvarado and Arnoldo Alvarado filed

similar §2255 petitions. The Government did not respond at all to some issues and merely copied

their response for the two (2) Alvarados. (Pedro raised some similar and some different issues.)

"USSS** ‘^SSSSS.

Government.

^

\

19

decided an important question in a way that conflicts with

relevant decisions of this Court The question is:

i

"WHETHER THE USE OF A RUSE, IN ORDER TO

OBTAIN CONSENT TO SEARCH A HOME, UNDER THE

CIRCUMSTANCES AT B!AR, VIOLATES THE FOURTH

AMENDMENT OF THE UNITED STATES CONSTITUTION?"

In United States v, Mendez, 431 F,3d 420 (5th Cir. 2005), the

Fifth Circuit stated that "itlhe standard for measuring the scope

of .., consent under the Fourth Amendment is that of 'objective'

reasonableness—what would the typical reasonable person have

understood by the exchange between the officer and the suspect?"

Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04,

114 L.Ed. 2d 297 (1991). And while objective reasonableness is a

question of law, "factual circumstances [like the location of the

incident, in remote South Texas near the border (See United

States

I v. Escamilla, 852 F.3d 474, 481 (5th Cir. 2017)! (BrignoniPonci factors) which can contribute to reasonable suspicion

[a 1 though agents confessed they had none for this rule! to look

\

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for illegal aliens in a vehicle stop (1) the area's proximity to

the border; (2) the area's characteristics; [ 1 [hfere, rural

\

natural\ .. . (4) the agents ' previous experience witr| criminal

activity, etc.)] are highly relevant when determining what the

reasonable

person would have believed to be the outer bounds of

s

the consent that was given." 431 F.3d at 426 (internal citation

omitted).

In United States v. Montes-Reves, 547 F.Supp. 2d 281

(S.D.N.Y. 2008), the Court considered the fabrication of exigent

circumstances with a ruse at Montes' hotel room where the DEA

20

agents lied saying they were looking for a little girl. What

,Montes-Reyes did not know of at that time, however,

was that

s

*

fAgent Luna was a DEA agent and not a police officer, and that he

was not looking for a little girl; rather, he jwished to search

/ Montes-Reyes7 room for evidence of drug dealing, and had

determined to use this ruse to obtain Montes-Reyes7 consent to

search the room.

Id. at 284. Using a totality of the

circumstances, the Court found that the verbal consent given by

Montes-Reyes was not voluntarily given because a "false claim of

a missing child is precisely the kind of 'extreme7

misrepresentation of investigatory purpose by which a person is

7deprive[d 1 ... of the ability to make a fair assessment of the

need to surrender his privacy. / // Id. at 291. (emphasis added).

This is on all four corners with the Alvarado situation.

In United States v. Hernandez-Juarez, 2009 U.S. Dist. LEXIS

22031 *10 (West. Dist. Tex. 2009), the Court concluded that

"ivliewing the totality of all the circumstances, the ICE agents

entered the most private of spaces, a home, without a warrant and

• with only a hunch lagertts herein testified to no probable cause

and no reasonable suspicion—or any reason to be at the Alvarado

home! that the person Ifhey were looking for would be inside."

[Here, looking for Rene^Garcia.] "The questioning of a female

American citizen with a nursing infant indicates that the agents

used their fraudulent entry for the purposes of a general round

\

\

up once they realized that Junior was not in the premises."

In the case at bar, the Magistrate, in his analysis did not

consider the bulk of the facts to include:

21

\

»

* Alvarados' property location near

the border in rural Texas, a

notorious

illegal

alien

trafficking

area;

i

i

* The size and shape of the Alvarado

property--a home and out buildings in a

gated [and fenced property set approximately

150 feet from the highway. After using the

ruse to enter the property, the Alvarados

[the agents testified at the hearing] were

never free to leave, were separated from

each other, and restrained in their

movements.

s

j

The officers never left the property, but

rather restrained the movements of Pedro,

Arnoldo, and Marques (under arrest).

\

These are material under "reasonable person" analysis of

I

Mendez, supra, and Jimeno, supra, and they were completely

discounted. Further, the Magistrate selected thematic facts

(facts that supported his narrative) rather

than applying the

i

totality of the situation and facts.

In Lewis v. United States, 385 U.S.\200, 208-09, 87 S.Ct.

424, 17 L.Ed. 2d 312 (1966), the Supreme^Court held that "tilt

has long been acknowledged ... [that! the Government is entitled

to use decoys and to conceal the identity of its agents."

(citations and foptnote omitted); Id. at 210. But the right to

deceive, however, is not unbounded. "The various protections of

the Bill of Rights ... provide checks upon such official

deception for the protection of the individual." Id. at 209.

One such limitation is where the government agents' deceptive

22

\

tactics prevent an individual from making "an essentially free

and unconstrained choice" to forego the constitutional protection

of a warrant,.* Schneckloth v, Bustamonte, 412 U.S. 218, 255, 56

L.Ed. 2d 854, 93 S.Ct, 2041 (1973).

The dynamic in the Alvarado case is substantially different

when "policfe officers identify themselves as such but

misrepresent ^their purpose." Because citizens will respond to

law enforcement (especially in remote and rural Texas) with a

sense of obligation and presumption of trustworthiness, multiple

courts have held that facially consensual searches to be invalid

where the "consent" was elicited through officers' lies about the

United

nature and scope of their investigations. See e.g

States v. Bosse, 898 F.3d 113, 115 (9th Cir. 1990) (per curiam)

("A ruse entry when the suspect is informed that the person

seeking entry is a government agent but is misinformed as to the

purpose for which the agent seeks eptry cannot be justified by

. acquired by

cosnent.") Id. at 115 (stating that "entry

affirmative or deliberate misrepresentation of the nature of the

Govenrment's investigation" violates the Fourth Amendment)

(quoting United States v. Little, 753^ F.2d 1420, 1438 (9th Cir.

1984); S.E.C. v. ESM Gov't Sec., Inc.L 645 F.2d 310, 316-18 (5th

Cir. Unit B May 1981) ("When a government agent presents himself

to a private individual, and seeks thajt individual's cooperation

based on his status as a government agent, the individual should

be able to re^ly on the agent's representations."); United States

v. Twell, 550 F.2d 297, 300 (5th Cir. 19/7) (finding consent

■

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23

vitiated by misrepresentation was civil, not criminal); People v. Daughterv, 161 ILL. App. 3d 394, 374 N.E. 228, 223, 112 ILL.

Dec. 762 (ILL. App. Ct. 1987) (Cohene, as here, the law

enforcement officer without a ^warrant uses his official position

of authority and falsely claims that he has legitimate police

(

business to conduct in order to gain consent to enter the

premises when, in fact, his real reason is to search inside for

evidence of a crime, we find that this deception under the circum­

stances is so unfair as to be coercive and renders the consent

invalid"); c.f. United States v. Watzman, 486 F.3d 1004, 1007.

(7th Cir. 2007); United States v. Turpin, 707 F. 2d 332, 334 (8th

Cir. 1983) (upholding lawfulness of consent search, but stating

that "[mlisrepresentations about the nature of an investigation

may be evidence of coercion"). This is exactly what the agents

did here, used a ruse, "We are looking for illegal aliens, can

you help us?"

!

Courts are further troubled by the public policy

implications. "Courts troubled by agents' lies about the searches

they keek to conduct have worried that condoning such falsehoods

'would obliterate citizens' widely shared social expectations

that jthey may place some modicum of trust in thej words of

government officials acting as such,' with that lack\of trust

providing 'catastrophic consequences'." Parson, 599 F.Supp. 2d

I

i

at 606,1 The Fifth Circuit observed that private individuals have

"the right to expect that the government, when acting in its own

name, will behave honorably." ESM Gov't Serv., Inc., 645 F.2d

at 316. (We think it clearly improper for a government agent to

gain access ... which would otherwise be unavailable to him by

\

h

24

involving the private individual's trust in his government, only

to betray that trust.) Id, See also Parson, 599- F.Supp, 2d at

606 ("Society expects that law enforcement officers who present

!

i

themselves and show badges will be honest and forthright with the

i

community that they serve.")

i

8

The Eleventh Circuit in United States v. Sbivev,

861 F.3d

:.207, 1214 (11th Cir. 2017) (Acknowledged that "fraud, deceit, or

trickery in obtaining access to incriminating evidence can make

an otherwise lawful search unreasonable.") (quoting United States

v. Prudden, 424 F.2d 1021, 1032 (5th Cir. 1970).

The jury was hung on one (1) charge, and had the evidence

been excluded, as no other exception was even argued by the

Government (i.e

inevitable discovery, etc.), the high

probability was that the case would have been resolves

differently on at least one (1) other count.

In discussing the Court's general consensus on the types of

deception used by lying police, the Spivey Court noted that "when

an officer lies about the existence of exigent circumstances

[presence of illegal alrens in a residence!,14 he also suggests

that the occupant has no^right to resist and may face immediate

danger if he tries. Spivey, 861 F.3d at 1213 (citing United

\

States v. Harrison, 639' F.3d 1273 (10th Cir. 2011) (agents

l

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^

In the Rio Grande Valley (totality!of circumstances) Border Patrol vehicles are ubiquitous.

One of the major points of entry of illegal aliens is across the Texas-Mexico border. The United

States is building a wall/fence to stem the tide of illegal immigrant crossings. ICE agents,

Border Patrol agents, along with DEA agents, Customs officials, and local police are constantly

pursuing illegals across farms, ranches, back yards, and into houses. While the presence of

illegal aliens north of the Hwy 77 and Hwy 281 check points might reasonably be argued to not be

exigent circumstances, below those two (2) check points, the search for illegal aliens and the

drugs or human trafficking involved therewith, is exigent circumstances (the U.S. has deployed

tens of thousands of troops along the border to stop the "invasion" of aliens).

25

falsely 'claimed a bomb was planted in an apartment); 'MontesReyes, supra, (false statement to search for missing girl);

Krause v, Commonwealth, 206 S.W. 3d 922, 926 (Ky. 2006) (false

report of rape occurring on the premises); People v. Jefferson,

/

43 A.D. 2d 112, 330 N.Y.S. 2d 3, 4 (N.Y. App. Div. 1973) (per

curiam) (possible pas leak); c.f. United States v. Hardin, 539

F.3d 404, 424-25 (6th Cir. 2008) (non-existent water leak),

The pantheon of lies told, apparently, by police is infinite.

This Court has weighed in on dishonorable police conduct. It

also turns on the deep-rooted feeling that the police must obey

the law while enforcing the law; that, in the end, life and

liberty can be as much endangered from illegal methods used to

convict tin this case, to gather evidence! those thought to be

criminals as from the actual criminals themselves." Soano v. New

York, 360 U.S. 315, 320-21 (1959).

More recently, Courts have noted this under the public policy

paradigm. Montes-Reves, 547 F. Supp. 2tj at 288 n.10 ("the

potential public policy hazard created wheiji police officers make

false claims of exigent circumstances")*; United States v.

Girardo, 743 F. Supp. 152, 154 (E.D.N.^Y. 1990) (Emergency

warnings cannot be trusted (whether they bfe law abiding or law

breaking)); see also Krauze, 206 S.W. 3d aV 926 (if the court

i

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i

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i

v

\

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\

sanctioned ruse of false report [here, of illegal aliens! of a

young girl's rape, "citizens would be discouraged from 'aiding to

the utmost of theiV ability in the apprehension of criminals'

since they would have no way of knowing whether their assistance

was being called upon for the public good or for the purpose of

incriminating them" (quoting from Schneckloth, 412 U.S. at 243)).

26

\

‘Academia has recognized this pernicious practice, Laurent

Sacharoft, Trespass and Deception, 2015 B.Y.U.L. Rev. 359, 381-82

(discussing the "line of cases" in which "police lie in such a

!

way that the resident feels no choice but to allow the search");

see also 4 Wayne R. LaFave, Search and Seizure: A Tretise on the

f

?

Fourth Amendment,

§8.2(n) (5th ed, 2017) (noting that "Itltte

l

1

critical fact in Jefferson [the gas leak ruse) ... was that the

police in effect deprived the defendant of a free choice in

deciding whether to surrender his privacy, for they made it

falsely appear that a failure to permit entry might result in

injury to persons or property").

While the "fact specific" nature of the analysis from the

totality of the circumstances test is still the law within this

murky area of analysis concerning consents [to search! obtained

by deception as to purpose, it is certainly much less clear than

the Magistrate intimated and appellate counsel should have

pursued it. A Search and Seizure!, §8.2(n), Courts have

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t

s

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uniformly recognized that the Fourth j\mendment is violated when

consent is obtained through police lies conveying or implying

exigent circumstances to necessitate the search. See Bumper, 391

U.S. at 548-49 (stating that the Government's burden of proving

\

that consent was "freely and voluntarily given" "cannot be

discharged by showing no more than acquiescence to a claim of

t

lawful authority"); See also 4 Search and Seizure, §8.2(n)

(noting that "tolne factor very likely to produce a finding of no

consent under Schneckloth voluntariness test is an express or

implied false claim by the police that they can immediately

proceed to make the search in any event" (footnotes omitted,

27

emphasis added) [exactly what happened here]; 2 Wayne R. LaFave

et al

Criminal Procedure §3,-10(c) (4th ed. 2017) (consent

obtained by means of "extreme" misrepresentations that allow no

meaningful option to refuse "should not be considered valid").

i t

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S

IV.

WHETHER IN LIGHT OF THE ISSUES IN THIS CASE,

JURISTS COULD DISAGREE WITH THE DISTRICT

COURT'S RESOLUTION ‘ OF THE ALVARADOS'

CONSTITUTIONAL CLAIMS UNDER SLACK V.

MCDANIEL, 529 U.S. 473, 484 (2000), AND

MILLER-EL V. COCKRELL, 537 U.S. 322, 336

(2003), AND COA SHOULD ISSUE?

To show that a Certificate of Appealability should issue

under 28 U.S.C. §2253(c), Alvarado need only make a substantial

showing that jurists of reason could disagree with the district

court's resolution of his constitutional claims. See Miller-El,

537 U.S. 322 (2003). Courts of Appeal ask only if the district

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court's decision was debatable. Id.; see also Bradshaw v.

Estelle, 463 U.S. 880, 893 n.4 (1983). A determinatior related

to a Certificate of Appealability is a separate proceeding, one

distinct from the underlying merits." Miller-El, 537 U.S. at

342, citing Slack v. McDaniel, 529 U.S. 473, 481 (2000). \.

Alvarado

need not show that his "appeal will succeed,"

and

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the Court here should not deny him a Certificate of Appealability

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just because this Court might believe he will not shows he is

entitled to relief under §2254. \ See Miller-El, 537 U.S. at 337.

Alvarado must simply demonstrate "a substantial showing of the

denial of a constitutional right." 28 U.S.C. §2253(c)(2). In

this case, that right is to effecting assistance of counsel

pursuant to the Sixth Amendment of the United States

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Constitution.

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PRAYER

For these reasons, Alvarado requests full briefing and on

review of same, Certiorari issued to the United States Court of

Appeals for the Fifth Ciicuit, i Alvarado requests such other and

additional relief to which he may be entitled,

f

Respec/fmly submitted,

Pedro Alvarado

Reg. No. 16458-379

P.0. Box 26020

Beaumont, TX 77720

pro se

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