Petition for Writ of Certiorari — Steven Justin Villalona, Petitioner v. United States

Supreme Court briefOct 19, 2022

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£D-r

-4

INX

No.

ORIGINAL

Supreme Court, U.S.

FILED

OCT 1 9 2022

IN THE

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

STEVEN VILLALONA

— PETITIONER

(Your Name)

vs.

UNITED STATES OF AMERICA — RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

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

PETITION FOR WRIT OF CERTIORARI

Steven Villalona, Paralegal.

Reg. No.: 55457-018

(Your Name)

FCI-1, Oakdale.

Unit, R-l., PO BOX 5000

(Address)

Oakdale, LA 71463

(City, State, Zip Code)

None

(Phone Number)

QUESTION(S) PRESENTED

1) Whether the dismissal of an independant action in equity seeking to set aside',

a judgment based on fraud on the court may be considered a "final order" un

der 28 U.S.C. § 2253(c)(1)(B)?

2) What factors should courts consider when determining whether to allow pos.t- judgment discovery under Fed. R. Civ. P. 60(d)(3)?

3) Whether a criminal defendant retains the right to have the Government correct

false testimony in a post conviction proceeding under Napue v. Ill., 360 U.S.

264 (1935)?

4) Whether the Government was obligated to provide Villalona with his attorney's

payment voucher under Giglio v. U.S., 405 U.S. 150, 154-55 (1972), during a

post-conviction proceeding'addressing counsel's ineffectiveness?

5) Who removed Villalona's attorney's payment voucher and when was it removed from

the record'in this case?

■A'

LIST OF PARTIES

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

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

United States v. Villalona, 506 F. App'x 902 (11th Cir. 2013)

Villalona v. U.S., 714 Fed. App'x. 994 (11th Cir. 2018)

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Ames True Temper. Inc, v. Myers Indus., Inc.. No. 05-CV-906,2007

U.S. Dist. LEXIS 91452, 2007JWL 4268697, at *5 (W.D. Pa. Nov. 30, 2007) « • .9Banker Mortage Company v, U.S., 423 F.2d 73, 77-79 (5th Cir.), cert, denied,

399 U,S. 927 (1970) . ,

. .* 9-10

0 # a » •> i>

•*

Giglio y. U.S,. 405 U.S. 150, 154-55 (1972). „ 6* •»

Gonzalez v. Crosby. 545 U.S. 524 (2005). . , o

. 8

4 9=10

9OO>*09»&4f0

Gonzalez v. Sec'y for the Dep't Corr.. 366 F,3d 1253, 1263 (11th Cir. 2004)

(en banc)... * rt • e €f 9

♦ ^ o *9 9 9* & {f & fi 9 &

a> & C*

P 9-10

Hazel-Atlas Glass Company v, Bartford-Empire Company. 322 U.S. 238, 245-46

(1944), , , V » i 0 V V 0 0

«> »»•/• p r f 9-10

Johnson v« Zerbst. 304 U.S. 458, 467 (1938), „ , » « (> /? « f f f f / «

t el

Morris v. Slappy. 461 U.S* 1, 13 (1983). * e> * * e *r$**e«**a .. 5

Napue v& Ill,. 360 U.S. 264, 269 (1935) * *

•*porp*0eart>t>0jt 6,

Pearson v, First NH Mortq, Corp,. 200 F„3d 30, 35 (1st Cir, 1999), , „ . 8-9

Unlv« Oil Prods. Go. v. roof Reflnj.nq Co.. 328 U*S. 575, 580 (1946), . „ 10

U.S, Timmons. 672 F*2d 1373, 1378 (11th Cir, 1982), „ ,

Villalona v. U.S.. 714 Fed. App'x 994 (11th Cir. 2018), . ,

9-0

A 10

$4,

2019 U.S. App. LEXIS 6032 (11th Cir. 2019), . 4 H - , 5

2019 U.S. LEXIS 6890 (U,S„ Nov. 12, 2019). , . tr o n p 5

White v. Nat11 Football League, no, 92-CV-906, 2015 U.S. Dist, LEXIS 1384,

2015 WL 501973, at *2 (D. Minn, Feb, 5, 2015), . „ 9%9*o990f* a <i tf 9

STATUTES AND RULES

18 U.SftC« 2701(a)*. *

4S>

3006A(d)(4)„ , , „ ,

(D)(ii)* „

e p

(d)(3). „

4 <9

t *

fee*

* «

(4)(5),

Fed,, R„ Civ* P„ 60(b) v

* t

e 9

*94

* <t

9, 10

OTHER

7 Morre's Federal Practice § 60.,36, „ . <1

* e- * & •> •>

'* #

« -10

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

.11

INDEX TO APPENDICES

APPENDIX A: Opinion of the eleventh circuit denying COA

APPENDIX B •" District court order denyi.ng reguest for relief for fraud

APPENDIX C • Eleventh circuit order denyi.ng recosideration

APPENDIX D: District court order granting reguest for payment voucher

APPENDIX E: Letter from the clerk of the court for the middle district of

Florida

APPENDIX F: Opinion from the district court denying Vilalona's motion to

vacate sentence,,

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[x] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix _JL

the petition and is

[ ] reported at

; or,

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

[X] is unpublished.

The opinion of the United States district court appears at Appendix b.

the petition and is

[ ] reported at

; or,

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

[ X] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

[ ] reported at

; or,

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

[ ] is unpublished.

The opinion of the_

appears at Appendix

court

to the petition and is

[ ] reported at

; or,

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

[ ] is unpublished.

JURISDICTION

[Xl For cases from federal courts:

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

was 05/19/2022

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

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

Appeals on the following date: 07/25/2022

, and a copy of the

order denying rehearing appears at Appendix _C

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including______

(date) on

(date)

in Application No.__ A

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

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

[ ] A timely petition for rehearing was thereafter denied on the following date:

--------------------------------- , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Fifth Amendment Due Process Clause

Si.xth Amendment right to the effective assistance of counsel

Criminal Justice Act

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STATEMENT OF THE CASE

After the eleventh circuit court of appeals affirmed his convictions for

armed drug trafficking and fifteen year prison sentence, Steven Villalona moved

in the district court to vacate his conviction and sentence, because his right

to the effective assistance of counsel, as guaranteed by the Sixth Amendment

was violated. Villalona claimed that he instructed his attorney to withdraw his

plea of guilty on January 23, 2012, during a pre-sentence interview with the

probation officer, and eight days before his guilty plea- was accepted by the

district court. Villalona contended that had his counsel moved to withdraw his

plea at that time, when he would have had an absolute right to withdraw and pro

ceed to trial, that the outcome of the proceedings would have been different.

However, the district court denied the motion without an evidentiary hearing

because it found that Villalona had not established a fair and just reason for

withdrawing the guilty plea..

On appeal, Villalona argued that the district court had abused its dis

cretion by denying the motion without an evidentiary hearing and the United

States conceded. The eleventh circuit vacated the denial and remanded for an

evidentiary hearing, because Villalona's claim

"if true," would establish a

violation of Villalona's right, and because "the record, motion, and files"

failed to conslusively show that Villalona is not entitled to relief*.. Villalona

v. U.S.

714 Fed. App'x. 994 (11th Cir. 2018)

At the evidentiary hearing held on August 15, 2018, the district court was

presented with conflicting testimony. Villalona's attorney, Mr. Hued testified

that on January 23, 2012, he was "fired" by Villalona, and that he believed

Villalona would have been filing a motion to withdraw his guilty plea through

new counsel. Mr. Hued also stated that he did not receive instruction to with

draw Villalona's plea and that he believed that Villalona did not want him to

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act on Villalona's behalf "at all." On the other hand, Villalona testified that

he expressly requested from his counsel to withdraw his guilty plea: and, that

when Mr. Hued declined to do so, because he was not paid enough money to repre

sent Villalona at trial, Villalona requested the appointment of substitute coun-:/

sel. Furthermore, Villalona stated that he was financially unable to retain pri

vate counsel to withdraw the guilty plea, so he requested for Mr. Hued to do so.

Ultimately, the district court credited Mr. Hued's testimony and denied

Villalona's motion to vacate. The district court found that Villalona "fired"

Mr. Hued on .January 23, 2012, and Mr. Hued's failure to move to withdraw the

guilty plea was reasonable because Villalona "fired" his court appointed attor1

ney. On appeal, the eleventh circuit denied VillaTona,a Certificate of Appealability and this Court denied a petition for a writ of certiorari. Villalona v.

U.S., 2019 U.S. App. LEXIS 6032 (11th Cir. 2019); Villalona v. U.S., 2019 U.S.

LEXIS 6890 (U.S. Nov. 12, 2019). See Appendix F„

Unsatisfied with the manner in which the matter was adjudicated, Villalona

investigated whether the record contained evidence of impropriety. Villalona

requested Mr. Hued's payment voucher which was entered into the record at Doc

ket entry # 98. The United States did not oppose and a Magistrate Judge granted

the request. The court found that Mr. Hued's payment voucher was "in the record."

Appendix D. However, Villalona did not receive the payment voucher, so he moved

to compel the clerk of the district court to produce the voucher, which the court

granted. In response, the clerk provided Villalona with a letter which stated

that Mr. Hued was paid "$5,758.71" and that the "original voucher is no longer

available and a copy cannot be produced." Appendix E.

In light of the amount Mr. Hued was paid and the rate in which court ap1

An indigent criminal defendant does not have a right to have a particu-:

lar lawyer represent him. See Morris v. Slappy, 461 U.S. 1, 13 (1983).

- 5 of 11 -

pointed counsels are compensated under the Criminal Justice Act, Villalona filed

an independent action ill:.equity seeking relief Jfromca final judgment based on fraud

on the court under Fed. R. Civ. P. 60(d)(3). Villalona claimed that Mr. Hued's

testimony at the evidentiary hearing - that Mr. Hued was "fired" by Villalona on

January 23, 2012, and that Mr. Hued believed that Villalona did .-not want him to

act on his behalf at all was false. Furthermore, Villalona alleged that this false

testimony was aided by the removal or concealing of Mr. Hued's payment voucher

from the record. Villalona contended that had the district court had the benefit

of Mr. Hued's payment voucher, which the court approved, the court would not have

credited.his testimony, because the payment voucher contains Mr. Hued's justifi

cations for being compensated $5,758.71, thereby negating his testimony. Villalona

requested an evidentiary hearing and leave to conduct discovery to determine who

and when was the payment voucher removed from the record in this case.

However, Villalona's request for discovery and evidentiary hearing was de

nied because Villalona did not prove his fraud on the court claim by clear and

convincing evidence. Appendix: £. Likewise, the request for relief was denied be

cause Villalona did not provide clear and convincing evidence. Appendix fi. On ap

peal, Villalona argued that the district court abused its discretion when it de

nied an evidentiary hearing and discovery because it used the wrong standard to

adjudicate the requests. The eleventh circuit denied a Certificate of Appealability

because it found that Villalona "failed to make the requisite showing." Appendix.

A. Villalona then sought a reconsideration because the COA requirement did not

apply to an independent action and, that under this Court's holding vin Napue v.

Ill.

360 U.S. 264, 269 (1935), 1-he Government should have corrected the false

testimony which was provided to the court because they had Mr. Hued's payment

voucher. However, on July 25, 2022, the court of appeals denied reconsideration.

Appendix C. Consequently, this appeal ensues.

- 6 of 11 -

REASONS FOR GRANTING THE PETITION

There are four good reasons vwhy this petition should be granted. First,

it is a crime to remove, conceal, or destroy public records in the possession

of the clerk of the court under 18 U.S.C. § 2071(a). Therefore, Mr. Hued's pay

ment voucher, which was entered into the record at docket entry 98, is public

record under the Criminal Justice Act (18 U.S.C. § 3006A (d)(4), and should

not have been removed. Indeed, the removal of the payment voucher only occurred

after the eleventh circuit court of appeals found that "Villalona's motion and

files and records of the case [failed] to conclusively show that he is entitled

to no relief[.]" Villalona v. U.S., 714 Fed. App'x. 994 (11th Cir. 2018). This

crime not only affected Villalona's ability to impeach Mr-.' Hued's : tes t imony - that

Mr. Hued was "fired" on January 23, 2012, and that Mr. Hued believed Villalona

did not want him to act on Villalona's behalf "at all," but EVERYONE WHO relies

on the judicial branch to adjudicate controversies. The destruction of these

public records to advance .■'-false' testimony not only deprived the United States

of their peace and dignity, but also Villalona's right to withdraw an involun

tary guilty plea. What is more, is that by denying this petition, this Court

leaves intact the district court's finding that Villalona, an indigent defen

dant, "fired" Mr. Hued, a court appointed attorney, eight days before Villalona's

plea ivy was accepted, when he had an absolute right to withdraw and proceed to

trial. Such a finding by the district court is in itself unlawful, because the

failure to provide Villalona with a counsel, when he could not afford to retain

private counsel, and did not waive his right to counsel, deprives the courts of

jurisdiction to convict and sentence Villalona. See Johnson v. Zerbst, 304 U.S.

458, 467 (1938).

Secondly, the Government is a party to this cause. However not only did

the United States fail to provide Villalona with his attorney's payment voucher,

- 7 of 11 -

but also failed to correct Mr. Hued's "false, testimony, in violation of Villa2

Iona's right to Due Process under Napue 'V.and Giglio . Indeed, Mr. Hued's pay

ment voucher, Criminal Justice Act form 20, contains a sworn declaration speci

fying "the time expended, services rendered," which plainly contradicts Mr. Hu- 1

ed's testimony. 18 U.S.C. § 3006A (4)(5). Given that Mr. Hued was paid $5,758.71

and the rate at which appointed counsel are compensated under the CJA, it is

plain that Mr. Hued was not "fired" on January 23, 2012, or believed that Villalona did not want Mr. Hued to act on his behalf "at all."^ The point behind dis

closing Mr. Hued's payments is to "protect the defendant's 6th Amendment rights

to the effective assistance of counsel[,]" the sole matter before the district

court on Villalona's motion to vacate conviction and sentence. Id. at (D)(ii).

Hence blithe reason Mr. Hued's payment voucher was removed from the record. Be

cause the "United States wins its point whenever justice is done its citizens

in the courts[,]" this Court should find that Due Process requires both that

the United States correct testimony known to be false and disclose impeaching

information regardless of whether it is a post-conviction proceeding.

Thirds courts are not uniform in the showing they require to grant post

judgment discovery. Some require that the movant make a "colorable" claim of

fraud, while others appear to require a prima facie showing."* Given that a complaint for "fraud upon the court" involves "far more than an injury to a single

litigant[,]" the courts cannot afford discordance in the manner in which requests

for discovery are determined-.

Therefore, this Court should pronounce a standard

by which courts may effectively weigh society's interest in the finality of judg

ments with a party's interest in a -fair determination of the controversy.

2 -Napue v. Ill., 360 U.S. 264, 269 (1935)

3 Giglio v. U.S., 405 U.S. 150, 154-55 (1972)

Transcripts of the evidentiary hearing will be supplemented.

.See e.g., Pearson v. First NH Mortg. Gorp.,. 200 F.3d 30, 35 (1st Cir.

- 8 of 11 -

Lastly, in Gonzalez7 the eleventh circuit held that a COA "is required

for the appeal of any denial of a Rule 60(b).motion for relief from judgment

in a [habeas proceeding]." Ihe court, found that "|[t]here is no reason to treat

orders denying habeas relief and subsequent orders denying motion to reopen

those earlier orders differently for purposes of the certificate of appealability

requirement and there is every reason to treat than the same." Id. at 1264. On

the other hand, although this Court in Gonzalez v. Crosby did not decide if

the eleventh circuit court of appeals’ construction of the COA requirement

was correct, the Court noted that "fraud on the habeas court" was a defect

in the integrity in the proceeding, and was not a claim attacking a prior re

solution on the merits. Id. at n.7, and n.5.

However, there is a difference between a Fed. R. Civ. P. 60(b) motion

claiming a defect in the integrity of a habeas proceeding, and an independent

action in equity to set aside a judgment for fraud on the court. In Bankers

the eleventh circuit explicated the distinction between two procedures for ob

taining relief from a final judgment under 60(b). The first is by motion which

60(b) provides "(a) the authority to;secure relief by motion, (b) the time li

mitation within which the motion must be filed, and (c) the gounds on which re

lief can be predicated. [...] No independent jurisdictional ground is necessary

because the motion is considered ancillary to or a continuation of the original

suit." Id. (Emphasis added by Villalona).

Conversely, the second procedure contemplated by Rule 60(b) is an indepen

dent action to obtain relief from a judgment, order, or proceeding. Id. "The

first saving clause specifically provides that 60(b) does not limit the power

1999); White v. Nat'l Football League, No. 92-CV-906, 2015 U.S. Dist. LEXIS

13834, 2015 WL 501973, at *2 (D. Mihh. Feb. 5, 2015); Ames True Temper, Inc, v.

Myers Indus., Inc., No. 05-CV-1694, 2007 U.S. Dist. LEXIS 91452. 2007 WL

4268697, at *5 (w.D. Pa. Nov. 30, 2007).

^Hazel-Atlas Glass Company v.Hartfdrd-Fmpire Company, 322 U.S. 238, 245-46

- 9 of 11 -

of the court to entertain such an action." (Emphasis added by Villalona). "This

action should under no circumstaces be confused with ancillary common law and

equitable remedies or their modern substitue, the 60(b) motion." (Emphasis added

by the eleventh circuit). Furthermore, the eleventh circuit cited 7 Moore's

Federal Practice § 60.36 for the premise that:

When a court grants relief from a judgment or decree by a

new trial or rehearing:, or by one of the ancillary common

law or equitable remedies or their modem substitute, a

motion, it is exercising a supervisory power of that court

over its judgment; but the original bill, or independent ac

tion, to impeach for fraud, accident, mistake or other equi

table ground is founded upon an independent and substantive

equitable jurisdiction." (Emphasis added by the eleventh cir

cuit.

As such, the matter at bar is not a motion under Fed. R. Civ. P. 60(b),

except an independent action in equity which is founded upon an independent

and substantive equitable jurisdiction. Univ. Oil Prods. Co. v. Root Refining

Co., 328 U.S. 575, 580 (1946). Therefore, the eleventh circuit's holding in

10.

Gonzalez - 'does not extend to independent actions in equity. Indeed, equitable

relief against fraudulent judgments is not of statutory creation. Hazel-Atlas,

supra, at 248. See also, U.S. v. Timmons, 672 F.2d 1373, 1378 (11th Cir. 1982)

("A court may [ * • .] entertain an independent action in equity for relief from

judgment on the basis of its independent and substantive equitable jurisdic-V .

tion."). Accordingly, it was an error to subject this cause to a COA standard.

(1944).

^ Gonzalez v. Sec'y for the Dep't of Corr., 366 F.3d 1253, 1263 (11th Cir.

2004)(en banc).

8 Gonzalez v. Crosby, 545 U.S. 524 (2005)

Banker Mortage Company v. U.S., 423 F.2d 73, 77-79 (5th Cir.), cert,

denied, 399 U.S. 927 (1970).

366 F.3d 1253 (11th Cir. 2004)(en banc)

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date: October 19, 2022

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