Petition for Writ of Certiorari — Rafael Humberto Celaya Valenzuela, Petitioner v. United States

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No.

FILED

JUL 2 7 2022

IN THE SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

SUPREME COURT. U.S,

RAFAEL HUMBERTO CELAYA VALENZUELA,

Petitioner

i

v.

UNITED STATES,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

PETITION FOR WRIT OF CERTIORARI

RAFAEL HUMBERTO CELAYA VALENZUELA, in pro se.

Federal Inmate Number: 12758-049

FEDERAL CORRECTIONAL INSTITUTION

HERLONG, CA. 96113-0800

July, 27, 2022.

RECEIVED

AUG -2 2022

QUESTIONS PRESENTED

1.- Did the Court of Appeals for the first Circuit err when it denied request

for certificate of appealability(C.O.A.), where petitioner sought review of

the District Courts failure to resolve all claims (I.A.C.) raised in his

§2255 motion as ruled (en banc) in the 11th. Circuit's CLISBV V. JONES (a re­

quirement of district courts to resolve all claims raised in a § 2255) ?

If so, should this H. Court exercise its supervisory powers to bring uniformity

to circuit courts, regardless of whether those claims are granted or denied.?

2.- Has the Supreme Court of the United States overturned its own precedent in

BUCK V. DAVIS , 137 S.Ct. 759 (2017)(Holding that appellate courts limit its

examination at the Certificate of appealability (C.O.A.) stage to a threshold

inquiry into the underlying merit of the claims, and ask only if the district

courts decision was debatable).? If so, did the court of appeals for the first

circuit err by exceeding the limited scope of a C.O.A. analysis, when it denied

petitioner's request for C.O.A.?

I

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

8

Adelman v. Zant, no. 90-8981 (llth Cir 1990) ...........................

7

Bailey v U.S., 516 U.S. 137 (1995) ...................................

11

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

5,7,8

Clisbyv. Jones, 960 F.2d 925 (1992)(en banc).,.....................

6

Haines v. kerner, 484 U.S. 519 (1972)....,..................... .........

8

Heffield v. United States, case no. 17-14480 (llth Cir 2019)••

10

Krulewi.tch, 69 S.Ct. at 720 n,3 ,........ ............... •••...........

Lindsey v. Smith, 820 F. 2d 1137 (llth Cir 1985) cert, denied,

489 U.S. 1059, 109 S.Ct. 1327, 103 L.Ed. 2d 595 (1989)...........

Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003)..................

Rhode v. United States, 583 F. 3d 1289, 1291 (llth Cir 2009)

(per Curiam)

Smith v. Zant, 887 F.2d 1407 (llth Cir 1989)(en banc)........ ,.

Strickland v. Washington, 466 U.S. 668 (2003)........................

Tennard v. Dretke, 542 U.S. 274, 283 (2004)...........................

United States v. Brown, 117 F. 3d 471, 475 (llth Cir 1997)...

United States v. Luisi, 482 F. 3d 43, 59 (1st. Cir 2007) •••,■•

United States v. Russell, 411 U.S. 423 , 432 (1973) •••••.------- *

United States v. Twiqg, 588 F. 2d 373, 380-81 (3rd. Cir 1978)

Wilson v. Kemp, 777 F. 2d 621 (llth Cir 1985) cert, denied,

4/6 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed. 2d 703 (1986)............

STATUTES AND RULES

21 U.S.C § 846

28 U.S.C § 2253

28 U.S.C § 2255

OTHER

Black's Law Dictionary 10th Edition.

Federal Criminal Procedure.

Merriam-Webster1s Dictionary.

II

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11,12

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TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

2

STATEMENT OF THE CASE

3

REASONS FOR GRANTING THE WRIT

5

CONCLUSION

12

INDEX TO APPENDICES

APPENDIX A - First Circuit'Court's orders denying C.O.A and petition for

Rehearing and/or.Rehearing en banc.

APPENDIX B - District Court order denying relief under § 2255.

APPENDIX C - DOJ/FBI VERBATIM TRANSLATION Investigation of recorded

meeting on 5/31/2012 18:20 hrs.

APPENDIX D - FEDERAL GRAND JURY PROCEEDINGS TRANSCRIPTS PGS, 2-9.

APPENDIX E - Transcript of Trial before the Honorable Judge Joseph LaPlante

day 2, FBI lead Agent Tucker Heap Testimony pgs. 41,42, 43.

APPENDIX F - Copy of Motion for Leave to Proceed in forma pauperis.

Copy of order appointing attorney.

CERTIFICATE / PROOF OF SERVICE.

Ill

PETITION

Rafael Humberto Celaya Valenzuela, in pro se, respectfully petitions for

a Writ of Certiorari to review the judgement of The United States Court of Appeals

for the First Circuit denying petitioner's request for Certificate of Appealability

from the United States District Court for the District of New Hampshire order * denying

his Motion for Habeas Corpus §2255.

OPINION BELOW

The judgement/order from the United States Court of Appeals for the Firts

Circuit is attached hereto as Appendix A. The Court of Appeals for the First Circuit

denied petitioner's request for Certificate of Appealability from the United States

District Court for the District of New Hampshire denial of petitioner's motion for

Habeas Corpus §2255.

JURISDICTION

After the order from the United States District Court for the District of

New Hampshire denying petitioner motion for Habeas Corpus § 2255, petitioner filed

a request for Certificate of appealability in the United States Court of Appeals

for the Firts Circuit, the judgement of this Court denying the issuance of C.O.A.

was entered on April 7, 2022, petition for Rehearing and/or Rehearing en banc was

filed on 5/13/ 2022 after an extention of time request for this matter was granted.

The First Circuit panel and a majority of the active judges of this court not having

voted that the case should be heard en banc; this petition was denied on June 06 2022.

Now this petitioners being filed within the ninety (90) days required by USSC rule

13.3. Jurisdiction in this Court is invoked under 28 U.S.C. § 1254 (1).

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

FIFTH AMENDMENT:

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases arising,

in the land or naval forces, or in the militia, when in actual service in time

of war or public danger, nor shall any person be subject for the same offense to be

subject for the same offense to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against himself, Nor be deprived

of life, liberty, or property, without due process of law; nor shall private pro­

perty be taken for public use, without just compensation.

SIXTH AMENDMENT:

In all criminal prosecutions, the accused shall enjoy the right to a speedy trial,

by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be

Informed of the nature and cause of the accusation; to be confronted with the wit­

nesses against him; to have compulsory process for obtain witnesses in his favor,

and to have the Assistance of Counsel for his defence.

2

STATEMENT OF THE CASE

On or about 9/25/2018 Mr. Celaya Valenzuela submitted an instant motion

seeking post conviction relief pursuant to 28 U.S.C. § 2255, He raised four (4)

claims of Ineffective Assistance of Counsel (IAC). Only claimsoneeand claim two

are at issue here, very briefly put:

1) Claim One— For "Counsels failure to file a motion to dismiss the

indictment for 'Outrageous government conduct';" and

2$ Claim two - For "Counsels failure to file a motion to dismiss the

indictment on the basis of 'VAGUE STATUTE 21 U.S.C. § 846.'"

See § 2255 motion wbibh is part of the record.

On or about 12/12/2018 (one week after their response was due) the government

filed its "Objection to defendant's § 2255 motion."

On or about 1/11/2019, petitioner filed his reply to government's response

(relevant to this issues), that the government failed to respond specifically to

claims one and two.

On or about 3/25/2020, petitioner filed a motion for Judicial notice and request

for judgement on the pleadings.

On or about 9/10/2021 (35 and one half months later) the United States District

court denied petitioner request for relief under § 2255, based on TWO of Mr. Celayavalenzuela's Four (IAC) claims for relief, and also denying C.O.A. See Order denying

motion for judgement on the pleadings attabhed.

On or about 9/21/2021, Mr. Celaya Valenzuela filed a notice of Appeal from the

district court's denial of C.O.A.

On or about 11/9/2021, Mr. Celaya Valenzuela filed his request for issuande of

certificate of appealability in the First Circuit Court of appeals, wlthihrihis request

Mr. Celaya Valenzuela informed the Court of appeals that the government failed to

respond those two claims (one and two) the district court in its denial allowed this

error to occur, see order denying § 2255 appended.

3

On or about 4/07/2022, The court of Appeals for the first circuit denied

C.O.A., concluding "That the district court's Resolution of petitioner's claim[s]

was neither debatable nor wrong..."

On or about 5/09/2022, Mr. Celaya Valenzuela filed for "Panel Rehearing and/or

rehearing en banc." within this motion/request to the court of appeals for the first

circuit, Mr. Celaya Valenzuela request that the court upon making its ruling, consider

1) The 11th Circuit's Clisby v. Jones, 960 F.2d 925 (1992)(en banc), directing district

court's to Resolve all claims for relief raised in a petition for Habeas Corpus prior

to granting or denying relief; and Supreme Court's Buck v. Davis (No,15-8049)(5th circ.

feb. 22,2017). where the C.O.A. statute set for a two step process: An initial deter­

mination whether a Claim is reasonably Debatable** and then if it is, an appeal in

the normal course.

On or about 6/6/2022, the court of appeals for the first circuit denied panel

Rehearing and Rehearing en banc.

4

REASONS FOR GRANTING THE PETITION

THIS HONORABLE COURT SHOULD GRANT CERTIORARI TO

CLARIFY THE FOLLOWING ISSUES OF LAW.

Question No. 1

Did the Court of Appeals for the First Circuit err when it denied request

for Certificate of appealability (COA), where petitioner sought review of the

district courts failure to Resolve all claims (IAC) raised in his §2255 motion

/

as ruled (en banc) in the 11th. Circuit's Clisby v. Jones (a requirement of dis­

trict courts to Resolve all claims raised in a §2255)? If so, should this Honorable Court excercise its Supervisory powersito bring uniformity to circuit courts

regardless of whether those claims are granted or denied.?

Appellate Court's order's.

The Court of appeals for the first circuit concluded that "The district

courtis Resolution of petitioner's claims was neither debatable nor wrong and

that petitioner therefore has failed to make a substantial showing of a Constitutional Right... II II The application for C.O.A. is denied, and the appeal is ter­

minated;" followed by a denial of petition for rehearing and/or rehearing en banc.

See order appended.

FACTS IN SUPPORT OF ARGUMENT.

Petitioner, in his last recourse for remedy, pleads before this H. Court,

expressing with sound reasoning "Why the court of appeals for the first circuit

is wrong."

Petitioner's first issue focuses on "The'Resolution of all claims' for relief

in a petition for Habeas Corpus, regardless of whether relief is granted or denied;"

emphasis on "Resolution'.'

5

Petitioner raided foufy(4) separate cognizable claims of Ineffective

assistance of counsel (IAC) and requested liberal construction under Haines v.

Kerner, 484 U.S. 519 (1972),(see §2255 motion part of record).the district

court after reviewing the motion (as set forth in. §2255 rules)

Ordered the

government to answer within (60) days, see order appended, the government,

however, answered to only two of the four IAC claims raised by petitioner, spe­

cifically claim ONE and claim TWO. See government response, part of the record.

Petitioner in his reply to government response, once again, requested

liberal construction of his pleadings and informednthe district court that the

government Failed to answer claim one and claim two. See petitioner's reply to

government response appended. Aproximately/14 months after petitioner's reply

brief, with NO decision from the district court, petitioner filed on 3/25/2020

a motion for Judicial Notice of Judicial opinions and request for judgement on

the pleadings, reinforcing those TWO unanswered claims (One and Two). See motion

for judicial notice and request for judgement on the pleadings, part of the record.

Aproximately 17 months later the government filed a response to petitioner's

motion for judicial notice and request for judgement on the pleadings, where they

argued that petitioner "raises some aditional claims that did not appear in the

§2255 motion..." This is NOT true, See §2255 motion claims one and two, in con­

junction with Judicial notice and judgement on the pleadings, part of the record.

The district court on 9/10/2021, without an opinion, in a single page text

order denied petitioner's relief under §2255. In relevant part of the issue of

"the Resolution of all claims" the district court acknowledge the "Movant has

requested that the court Resolve the case on the written filings..." which-neverhappend; because, the final order from the district court denying petitioner's

motion under §2255 relied "In the prosecutions responsive filings..." See district

court's order denying >§2255 and declining to issue a C.0.A • ) appended.

6

Petitioner, on 11/09/2021 filed a request for issuance of C.O.A. in the

United StatessCSurt of Appeals for the first circuit, requesting once again

liberal construction of pleadings.

Within this request for C.O.A. petitioner informed: the appellate court that

the district court in its order denying relief based his decision on the prose­

cution's responsive filings, which allowed petitioner's IAC claims (one and two)

to go unresolved.

On April/07/2022, the court of appeals for the first circuit denied request

for C.O.A • 9 with NO opinion, in a one page judgement, concluding "That the district

courts Resolution of petitioner's claims was neither debatable nor wrong..."

The-Resolution-of petitioner's-claims, is the issue here.

Based on "The ordinary meaning of the word," See Bailey v U.S., 516 U.S. 137

(1995) "Merriam-Webster1s dictionary":

Resolve: To find an answer to: Solve; To reach a firm decision about: decide.

Resolution:The act of process of resolving; The action of solving, also solution

The quality of being resolute: Determination.

The words Resolve & Resolution (Synonimous with one another) were used by both

the district court and the appellate court in their conclusion, when they denied

petitioner's request for relief, see both denial's appended.

Petitioner in a compelling argument cite's the 11th. Circuit's Clisby v Jones,

960 F.2d 925 (1992)(en banc) Holding that:

"until [federal habeas] proceedings have been concluded, they cast

doubt on a petitioner's conviction and interfere with the state's

administration of its correction program. Our procedures for hand­

ling habeas petitions are designed, in part to minimaze such dis­

ruption... and we emphasize the importance of litigating all peti­

tioner's claims in one Habeas proceeding, both at the trial and appellate levels.

7

We are disturbed by the growing number of cases in which we are

forced to remand for consideration of issues the district court

chose Not to resolve, see e.g. Alderman v Zant, no. 90-8981 (11

cir.1990); Smith v Zant, 887 F.2d 1407 (11th cir. 1989)(en banc)

Lindsey v.Smith, 820 F.2d 1137 (11th cir. 1987) cert, denied,489

U.S. 1059, 109 S.Ct.1327, 103 L. Ed. 2d 595 (1989); Wilson v kemp

777 F. 2d 621 (11th Cir. 1985), cert, denied 4/6 U.S. 1153, 106

S.Ct. 2258, 90 L.Ed. 2d 703 (1986), etc."

In a recent appeal in the 11th. circuit the court held:

II I

Under well settled principles in this circuit, pro se applications

for post-conviction relief are to be liberally construed.1 United

States v Brown, 117 F. 3d 471, 475 (11th Cir.1997). And under Clisby,

district courts are to resolve all claims for relief raised in a

petiton for writ of habeas corpus,'regardless [of] whether habeas

relief is granted or denied.1 960 F.2d at 936; see Rhode v United

States, 583 F. 3d 1289, 1291 (11th Cir. 2009)(per Curiam)(holding that

Clisby applies to motions to Vacate under 28 U.S.C. §2255).

When district court..has Overlooked a claim, our practice is to Vacate

the judgement without prejudice and remand the case for consideration

of that claims, 01isby, 960 F.2d at 938." See Heffield v United States,

case no. 17-14480 (11th cir. 2019.

" A Substantial Showing of the denial of a Conatitutional Right "

According to the federal criminal procedure, the indictment may contain flaws

warranting dismissal or further clarification; such challenges requires through

knowledge of the pertinent law and may be lost if not timely raised (as what occured

here), upon receipt of the charged document, each count should be carefully examinated to determine whether it is subject to dismissal or, in the alternative, may be

subject to the filing of a bill of particulars in order to learn in greater detail

the nature of the prosecution's allegations; petitioner states that after carefull

review of his docket there were NO filings of any pre-trial challenges to the in­

dictment nor filing of a bill of particulars.

Pre-trial challenges to the indictment include but not limited to Notice of the

charges, prevention of double jeopardy, in felony cases- assurance that the accused

is tried on such charges as the Grand Jury has return, Inadequacy of the essential

elements, and governmental misconduct violating Due process- where the conduct of

law enforcement officials may be so Outrageous that Due process principles would bar

the government from invoking Judicial process to obtain conviction, see United8

States v. Russell, 411 U.S. 423,432 (1973); U.S. v Twigg, 588 F.2d 373, 380-81

(3rd Cir. 1978); and U.S. v Luisi, 482 F.3d 43,59 (ISt. Cir. 2007).

Claim one: "Counsels failure to file a motion to dismiss the indictment oh

the basis of 'Outrageous government conduct;"1

Petitioner,in preparation of this claim, came across of the most Telling sta­

tements made by one of the undercover agents (UCE) during a recorded meeting...

"We organize everything." see U.S. DOJ FBI investigation " Verbatim translation of

meeting on 5/31/2012 18:20 hrs.(defendants exhibit (H)) Appended.

The time and place for all the meetings were conceived and contrived by the

government from the beginning, including the initial introduction by Paid government

informant Alejandro Mourino (CHS); and after years of investigation, the end result,

Not a scintilla of evidence that petitioner engaged to commit the crime as charged

in the indictment, and the proof was established at Trial when the lead FBI agent

Tucker J. Heap testifies that petitioner had NO involvement with the drugs related

to this case as charged in the indictment. See Trial transcript- day two FBI agent

Tucker J Heap Testimony, pg. 42. appended.

Parallel to Russel,Twigg, and Luisi, the government here, involved itself so

directly and continuosly over such a long period of time in the Creation and mantanance of criminal operations, adding insult to injury, the undercover agent in

Luisi, (Michael McGowan), is the same agent in the instant case.

This is a clear showing of "Police overinvolvement in the crime reaching a

demostrable level of * Outrageousness" that should have barred the conviction."

Defense counsel had all the transcripts of these "recorded meetings in their

possession well before the trial started (24 months window). Yet, it appears there

was no investigation into the Grand jury transcripts "Which confirms" that the

government did in fact Organize/plan this entire criminal operation from start to 9

finish. See Transcript of Federal grand jury proceedings pgs. 8-9. appended.

Counsel failed here at the pre-trial stage to move the court for a dismissal

based on'this governmental misconduct, as illustrated above, pursuant to Federal

Criminal procedure.

CLAIM TWO: "COUNSEL FAILURE TO FILE A MOTION TO DISMISS THE INDICTMENT ON THE

BASIS OF *VAGUE STATUTE* 21 U.S.C. § 846

§ 846 ATTEMPTS AND CONSPIRACY: Any person who attempts to connift any

offense defined in this subchapter shall be subject to the same penal­

ties as those prescribed for the offense, the commission of which was

the object of the attempt or conspiracy.

Under the plain reading of 21 U.S.C. §8465 the statute is VAGUE on its face

because: 1)•Fai1 to provide "Fair Notice"; and 2) Lacks the means rea element;

and when a statute is unclear deprives ordinary people Fair warning about what the

law demands of them."[N]o intelligible definition of Conspiracy has yet been established"

Krulewitch, 69 S.Ct. at 720 n.3

Vagueness doctrine-base on the due process clause.-Requirinq that

under arcrimihal statute states explicity and definitely what act

are prohibited or restricted, so as to provide Fair warning and preclude arbitrary enforcement. (Black* s_Law)

Both of this claims that went;Unresolved (one and two) in petitioner's § 2255, are

cognizable (IAC) claims that deserve consideration because they are the most funda­

mental challenges that any "Effective attorney" should undertake on behalf of def­

endant not just at trial, but at the pre-trial-stage-where defense counsels Investi­

gation of the case initially begins, in preparation for pre-trial challenges: Fourth

amendment, discovery, custodial, identifications, preliminary challenges, grand jury,

and indictments etc. The sixth amendment guarantees the Right to "Effective assistan­

ce of counsel" in a criminal prosecution .to obtain a reversal of conviction the

defendant must prove that 1) Counsel's performance "fell below an objective standard

of reasonableness"(There was nothing strategic .in not making these fundamental pre10

As the Supreme Court held on Miller-El, the threshold nature of C.O.A. inquiry

"would mean very little if appellate review were denied because the prisoner did not

convince a Judge, or, for that matter, three Judges, that he or she would prevail."

Miller-El, 537 U.S.- 322 at 337. In Mr. Celaya Valenzuela's case however, that is

exactly what the panel did. See order's denying C.O.A. and rehearing and/or rehearing

en banc appended.

Mr. Celaya Valenzuela filed a motion in the first circuit seeking a certificate of

appealability, so that may appeal the district court's, denial of his § 2255 motion.

The panel however, determined that Mr. Celaya Valenzuela had indeed, provided effective

assistance of counsel because they were Bar members in good standing. Thus, the panel

concluded that Mr. Celaya Valenzuela should be denied a C.O.A. because the appeal was

meritless.

The panel impermissibly sidestepped the C.O.A. inquiry in this manner by denying

relief because the subsequent appeal would be meritless. The panel assessment of the

merits is patently wrong. The panel could not possibly resolve the merits of an appeal

based solely on a motion seeking a certificate of appealability. Moreover, without the

issuance of C.O.A. and the 0.•Court's1 record before the panel

the panel was without

Jurisdiction to determine the merits of the appeal.

CONCLUSION.

Therefore, for all this well pleaded facts, reasons and issues of law in support

of this petition, petitioner prays that 'at Writ of Certiorari should be granted.

RespectfuUyVsutimi tted'.

DATE: July,27,2022.

RAFAEL HUMBERTIKCELAM VALENZUELA

12