Petition for Writ of Certiorari — Reza Ahmadi, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefJun 26, 2023

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Supreme""Court" uA

FILED

JUN 2 6 2023

NO.

nPPiCE OF THE CLERK

In The

Supreme Court of tlje fHnftet) &tate

REZA AHMADI

Petitioner,

BOBBY LUMPKIN, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Reza Ahmadi, pro se

7302 Wooded Valley Dr.

Houston, Texas 77095

ahmadiray@yahoo.com

713-515-6149

RECEIVED

JUL 0 6 2023

OFFICE OF THE CLERK

SUPREME COURT. U.S.

QUESTIONS PRESENTED

1. Does a court contravene Johnson u. Williams, 569

U.S. 289 (2013), evade application of Trevino v.

Thaler, 569 U.S. 413 (2013), and depart from the

accepted and usual course of judicial proceedings,

when it holds in one opinion that an ineffectiveassistance claims was unexhausted and procedurally

defaulted, then holds in a second opinion in the same

case that the same claims was decided on the merits,

and the only reason for revisiting the claims was this

Court’s recognition of a narrow path to overcome the

procedural default after final judgment?

2. Does a court contravenes Gonzalez v. Crosby, 545

U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005),

and depart from the accepted and usual of judicial

proceedings, when it holds in one opinion that

"[A] Rule 60(b) motion in a §2254 case is not to be

treated as a successive habeas petition because the

petitioner challenges the district court procedural

without analysis of the grounds underlying

constitutional claims, then holds in a second opinion

in the same case that the habeas petition is an

second or successive?

TABLE OF CONTENTS

QUESTION PRESENTED............................

TABLE OF AUTHORITIES..........................

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW.......................................

JURISDICTION.............................................

STATUTORY PROVISIONS INVOLVED....

STATEMENT OF THE CASE.......................

REASONS FOR GRANTING WRIT............

I. The Decision Below Contravenes Johnson u.

Williams and Wreaks Havoc on the Exhaustion

Doctrine and Rules for Review Under § 2254(d)..... 17

A. The conclusion that the unexhausted

claim was adjudicated conflicts with

Johnson v. Williams........................................ 17

B. The decision to treat the unexhausted

claim as adjudicated offends other

ground rules of federal habeas review......... 19

C. Ahmadi’s Strickland -based

ineffectiveness claims were unexhausted

and procedurally defaulted............................ 20

II. The Decision below Contravenes the doctrine in

Gonzalez, 545 U.S. at 532 that distinguishing

situations in which “a Rule 60(b) motion attacks, not

the substance of the federal court’s resolution of a

claim on its merits, but some defect in the integrity of

the federal habeas proceedings.” Should not be

construed as a successive petition

A. The Fifth Circuit ruling on Ahmadi’s 60(b)

motion as successive petition contravenes

with earlier opinion in the same case that

the motion was challenging procedural

without analysis of the grounds underlying

constitutional claims...................................... 23

B. The Fifth Circuit ruling Contravenes with

this Court and its own precedents, the

dismissal was an abuse of discretion.......... 25

III. The Fifth Circuit’s Decision Undermines the

Legitimacy, Reliability, and Stability of Judicial

Processes .................................................................... 34

CONCLUSION.......................................................... 40

CERTIFICATE OF SERVICE................................. 1-c

CERTIFICATE OF COMPLIANCE........................ 2-c

APPENDICES

iii

TABLE OF AUTHORITIES

Cases

Adams u. Thaler, Director, No. 12-7Q011 (5th Cir.

2012)........................................................................... 26

Ahmadi u. Thaler, Civil No. B-11-224, (S.D. Tex.

Jan. 24, 2013), in Ahmadi v. Stephens, 136 S. Ct.

1672 (2016); No. 15-1023 [App. D. at 28a] ............ 22

Ahmadi v. Stephens, No. 14-40747 (5th Cir. 2015)

in Ahmadi u. Stephens, 136 S. Ct. 1672 (2016);

No. 15-1023 [App. B. at 2a-4a]

8, 18

Brady v. Maryland, 373 U.S. 87 (1963)...............

Buck u. Davis, 137 S. Ct. 759, 774 (2017)............

Christianson v. Colt Indus. Operating Corp., 486

U.S. 800, 816 (1988) (internal quotation marks

and citation omitted)..............................................

Cullen v. Pinholster, 563 U.S. 170 (2011),...........

Cullen v. Pinholster, 563 U.S. 170, 186 n.10

(2011)........................................................................

cf. Gallow v. Cooper, 570 U.S. 933 (2013)............

Ex Parte Calderon, 309 S.W.3d 64 (Tex. Crim. App.

2010)............................................................................. 5

Ex Parte Billy Fredrick Allen, 2009 WL 282739 (Tex.

Crim. App. 2009)..........................................

Gonzalez v. Crosby, 545 U.S. 524,125 S.Ct.

2641,2647-48,162 L.Ed.2d 480 (2005).......

22, 37

Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641

162 L.Ed.2d 480 (2005)

22, 24, 27

Giglio v. United States, 405 U.S. 150, 153-54

(1972)........................................................................... 4

Ham u. State, 760 S.W.2d 55 (Tex. App. - Amarillo

1988, no pet.).............................................................. 5

Hernandez v. Thaler, 630 F.3d 420, 428

(5th Cir. 2011)............................................................ 32

Harrison v. Byrd, 765 F.2d 501, 503 (5th Cir.

1985) (citation, emphasis, and internal

quotation marks omitted)......................................... 32

Johnson v. Williams, 568 U.S. 289, 301 (2013) ,..... 17

Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059,

138 L.Ed. 2d 481 (1997)........................................... 26

Lonchar v. Thomas, 517 U.S. 314, 324 (1996)....... 38

Martinez u. Ryan, 566 U-S. 1 (2012)........................ 8

Miller-El v. Cockrell, 537 U.S. 322 (2003).............. 35

Messenger v. Anderson, 225 U.S. 436, 444 (1912)

(Holmes, J.); accord Musacchio v. United States,

136 S. Ct. 709, 716 (2016)........................................ 36

Rocha v. Thaler, 619 F.3d 387, 399 n. 26 (5th

Cir. 2010).................................................................... 28

Schlup v. Delo, 513 U.S. 298, 327 (1995)................ 15

Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct.

9, 11

1595, 146 L.Ed.2d 542 (2000)

Slack v. McDaniel, 529 U.S. 473, 483 (2000) (“The

writ of habeas corpus plays a vital role in

protecting constitutional rights”)............................ 38

Stewart u. Martinez-Villareal, 523 U.S. 637,

643-45 (1998)....................................................... 24

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. at

2064 ,80 L.Ed.2d 674 (1984)..................................... 4

Trevino v. Thaler, 569 U.S. 413 (2013).................... 8

United States v. Nkuku, 602 F. App'x 183 (5th Cir.

2015)........................................................................... 28

United States v. Brown, 547 F. App’x 637, 641

(5th Cir. 2013) (unpublished) (citing Gonzalez,

545 U.S. at 532 nn.4-5)............................................ 32

United States v. United States Smelting Ref.

& Mining Co., 339 U.S. 186, 198 (1950)................. 36

Williams v. Thaler, 602 F.3d 291, 305 (5th Cir.

2010)........................................................................... 27

Miscellaneous

138 S. Ct. 1080, 1095 (2018) .................................... 35

138 S. Ct. at 1905 (quoting with alterations

Id. at 532, 125 S.Ct. 2641 (footnote omitted)........ 38

Id. at 485-86, 127 S.Ct. 2842 ................................... 12

Id. at 532, 125 S. Ct. 2641 (footnote omitted).... 23, 24

Id. at 532 n. 4, 125 S. Ct. 2641 ................................ 24

Id. at 532, 125 S.Ct. 2641 (footnote omitted)........ 27

Id. at 532 n. 4, 125 S.Ct. 2641 ................................. 27

Id. at 1906 .................................................................. 36

Buck, 137 S. Ct. at 778 (noting that the Fifth

Circuit “failed even to mention the racial evidence

in concluding that Buck’s claim was ‘at least

unremarkable as far as [ineffective assistance]

claims go.’”).............................................. ,................. 35

Coleman, 501 U.S. at 750 ...............................

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

Gonzalez, 545 U.S. at 532 ..............................

Gonzalez, 545 U.S. at 531-32 ........................

Hernandez, 630 F.3d at 428 ...........................

In re Turner, 101 F.3d 1323 (CA9 1997)......

Martinez...........................................................

Martinez-Villareal, 118 S.Ct. at 1620-21 .....

.... 26

Molina-Martinez u. United States, 136 S. Ct.

1338, 1343 (2016))..........................................

Pinholster................................................... ......

Rosales-Mireles

Rosales-Mireles, 138 S. Ct. at 1908).........

Schlup.........................................................

Slack, 529 U.S. at 484, 120 S. Ct. at 1604

Strickland...................................................

19, 20

Trevino

Williams

18, 20

Williams, 602 F.3d at 302 (quoting Gonzalez,

545 U.S. at 531-32).........................................

Zapata-Rosa, 12 F.3d at *2.............................

Statutes

28 U.S.C. § 1254(1)

28 U.S.C. § 2254 ...

1, 2, 10, 14, 15, 17, 24, 26

28 U.S.C. § 1254(a).................................

2, 12, 14, 34

28 U.S.C. § 2254(b).................................

.......... 2, 18

28 U.S.C. § 2254(b)(1)(A) .....................

28 U.S.C. § 2254(d).................................

3, 19

28 U.S.C. § 2254(d)(1) ..........................

28 U.S.C. § 2244(b)................................

. 9, 39

28 U.S.C. § 2244(b)(1)...........................

10, 34

18 U.S.C. § 3599(f)................................

Tex. Code Crim. Proc. art. 11.07, § 4(a)

13, 14

Tex. Code Crim. Proc. art. 11.07, § 4(c)

Rules

F. R. C. P. 60(b)..1, 8, 16, 19, 22, 23, 24, 25, 26, 27, 32

F. R. C. P. 60(b)(4)

10, 26

F. R. C. P. 60 (b)(6)

10, 26

Other Authorities

Bowers & Robinson, Perceptions of Fairness and

Justice: The Shared Aims and Occasional Conflicts

of Legitimacy and Moral Credibility, 47 Wake

Forest L. Rev. 211 (2012) ......................................... 39

Treatises

Bryan Garner et al., The Law of Judicial Precedent

(2016)

VUl

PETITION FOR WRIT OF CERTIORARI

Petitioner, Reza Ahmadi respectfully prays that a

writ of certiorari issue to review the April 10, 2023,

judgment of the United States Court of Appeals for

the Fifth Circuit affirming the district court dismissal

of Ahmadi §2254 petition as successive because his

prior FRC P 60(b) was successive.

OPINIONS BELOW

On May 25, 2022, the United States District Court for

the Southern District of Texas (K. Ellison), issued an

order dismissing Ahmadi §2254 petition as successive

because his prior FRC P 60(b) was successive. App. 57 1 On December 22, 2022, the United States Court of

Appeals for the Fifth Circuit affirmed the district

court’s order. App. 3, 4 On April 10, 2023, the United

States Court of Appeals for the Fifth Circuit DENIED

petition for rehearing en banc App. 1, 2

l. Citations to App.

petition.

1 | Page

refer to the appendix submitted with this

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1). The final judgment of the United States

Court of Appeals for the Fifth Circuit was entered on

April 10, 2023. This petition is timely filed.

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 2254 provides:

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf

of a person in custody pursuant to the

judgment of a State court only on the ground

that he is in custody in violation of the

Constitution or laws or treaties of the United

States.

(b) 28 U.S.C. § 2254(b) provides:

(b)(1) An application for a writ of habeas corpus

on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

unless it appears that—

(A) the applicant has exhausted the

remedies available in the courts of the

State; or

2| Page

(B) (i) there is an absence of available

State corrective process; or

(ii) circumstances exist that render such

process ineffective to protect the rights of

the applicant.

(2) An application for a writ of habeas corpus

may be denied on the merits,

notwithstanding the failure of the applicant

to exhaust the remedies available in the

courts of the State.

(3) A State shall not be deemed to have

waived the exhaustion requirement or be

estopped from reliance upon the requirement

unless the State, through counsel, expressly

waives the requirement.

28 U.S.C. § 2254(d) provides:

(d) An application for a writ of habeas corpus

on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings unless

the adjudication of the claim—

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

3 | Page

clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

STATEMENT OF THE CASE

Ahmadi filing this Writ of Certiorari, claiming that he

is actually innocent and would not have been

convicted but for the constitutional violations; Ahmadi

has presented “Newly Discovered Evidence,” that was

unavailable at trial due to prosecutorial misconduct

and trial counsel’s ineffectiveness; Ahmadi conviction

should have been vacated years ago based on this

Court’s decision in Brady v. Maryland, 373 U.S. 87

(1963)(“The duty to disclose exculpatory evidence is

applicable even in the absence of a request by the

defendant, and it encompasses impeachment material

as well as exculpatory evidence.”) And in Giglio v.

United States, 405 U.S. 150, 153-54 (1972)(“the state

knowingly relied on false testimony by its key

witnesses) in violation of Giglio. And in Strickland u.

Washington, 466 U.S. 668, 104 S. Ct. at 2064 ,80

L.Ed.2d 674 (1984)( First, counsel made errors so

4| Page

serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth

Amendment. Second, the defendant showed that the

deficient performance prejudiced the defense.)

The Newly Discovered Evidence demonstrates that

Ahmadi was wrongfully convicted. This evidence

includes: [exculpatory evidence of “HP’s contract;”

“IBM Warranty Claims For Review;” and “Intelligent

Interface, “I.I.,” Lockbox Account;” which were

suppressed by the prosecution before trial.] 2 And the

recantation of two state’s main witnesses who falsely

testified that Ahmadi committed fraud.] 3 The

conviction was also obtained due to the assistance

counsel deficient performance ... in failing to

investigate and uncover said false statement- HP’s

representative, Ms. Jenny Theiss; AND St. Agnes

Ham v. State, 760 S.W.2d 55 (Tex. App. - Amarillo 1988,

no pet.): Prosecution withheld doctors’ report which

supported defense position and refuted prosecution.

The Court of Criminal Appeals found such a recantation

credible and in light of this “Newly Discovered Evidence”

habeas corpus was granted on actual innocence and the

verdict was set aside. See Ex Parte Calderon, 309 S.W.3d

64 (Tex. Crim. App. 2010)

5 | Page

high School’s representative, Ms. J. Meyer; under

oath .... Counsel’s failure to rise newly discovered

evidence — to investigate and present or request

exculpatory evidence of HP’s contract; IBM Warranty

Claims For Review; and I.I.’s lockbox account

favorable to the accused....at trail, in prosecution for

theft, due to his unfamiliarity with law, prejudiced

petitioner. 4 A jury found Ahmadi guilty as charged

(CR -58, RR IX-4) 5 The jury assessed punishment at

confinement for seven years in the TDCJ-CID, plus a

$5000 fine (CR-65). State v. Reza Haghigi Ahmadi,

Case No. 1118773 On July 03, 2008; the trail counsel,

Easterling, was appointed by State to represent

Ahmadi on direct appeal (Doc. 12-7, pg. 34). 6

See Ex Parte Billy Fredrick Allen, 2009 WL 282739 (Tex.

Crim. App. 2009) (subsequent writ of habeas corpus

entitled Allen to relief where the Schlup claim implicated

actual innocence through ineffective assistance of counsel

because counsel failed to raise newly discovered evidence

- that the victim identified a different attacker - in a

motion for new trial)

“CR” refers to the “clerk’s record” and “RR” refers to the

“reporter’s record”—the transcript of proceedings at trial.

“Doc” refers to documents that state released for federal

habeas review on 1/31/2012.

6 | Page

Ahmadi gave timely notice of appeal (CR-70).

On January 28, 2010 on appeal Ahmadi’s conviction

was affirmed. Ahmadi u. State, No. 14-08-00584-CR,

2010 WL 307909 (Tex. App. Houston [14th Dist.]

2010, pet. refd). His discretionary review was refused

in October of 2010. Ahmadi v. State, PDR No. 431-10.

On June 10, 2011 Ahmadi, pro se, filed his initial

State Application for writ of habeas corpus Cause No.

111877-A challenging his conviction. On September 4,

2011. Texas Court of Criminal Appeals denied

Ahmadi’s Application See Ahmadi v. Stephens, 136 S.

Ct. 1672 (2016); No. 15-1023 [App. E]. On November

3, 2011, Ahmadi pro se filed his first Petition for Writ

of Habeas Corpus in federal court pursuant to 28

U.S.C. §2254. On January 24, 2013, the Magistrate

Judge issued a report and recommendation and the

district court (Andrew S. Hanen) affirmed that:

“As to the first claim, it was considered by the

state court and found to be meritless. The state

court’s resolution of this claim was not

unreasonable.” However, AHMADI FAILED TO

RAISE THE FINAL FIVE CLAIMS (2, 3, 4, 5,

and 6) IN THE STATE COUERTS AND NOW

IS PROCEDURALLY BARRED FROM DOING

SO. THESE CLAIMS ARE PROCEDURALLY

DEFAULTED AND CANNOT BE

CONSIDERED BY THE COURT. Accordingly,

7 | Page

the Court recommends that Thaler’s Motion for

Summary Judgment should be granted.

See Ahmadi v. Thaler, Civil No. B-ll-224, in Ahmadi

v. Stephens, 136 S. Ct. 1672 (2016); No. 15-1023 [App.

D. at 6a, 7a] and [App. C. at 5a]

On July 31, 2015 the Fifth Circuit holding that:

“Reza Ahmadi, moves for a certificate of

appealability (“COA”) to appeal the dismissal of

his 28 U.S.C. §2254 application challenging his

conviction of theft... Ahmadi claims that the

DISTRICT COURT IMPROPERLY

DETERMINED THAT ALL BUT ONE OF HIS

CLAIMS WERE UNEXHAUSTED AND

PROCEDURALLY BARRED. He further posits

that trial counsel was ineffective for failing to

object to statements made by the court during

vire regarding reasonable doubt. Consequently,

the motion for a COA is DENIED.”

See Ahmadi v. Stephens, No. 14-40747 (5th Cir. 2015),

in Ahmadi v. Stephens, 136 S. Ct. 1672 (2016); No. 151023 [App. B. at 2a-4a]

On April 18, 2016 this Court DENIED Ahmadi’s Writ

of Certiorari See Ahmadi v. Stephens, 136 S. Ct.

1672 (2016); No. 15-1023.

On July 07, 2016, relying on the district and circuit

courts’ findings of default, and this Court’s decisions

in Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v.

Thaler, 569 U.S. 413 (2013), Ahmadi filed a motion for

relief from the judgment under Federal Rule of Civil

8 | Page

Procedure 60(b). App. 23-50 Challenging procedural

default and fraud on the court. Because Ahmadi

presented ineffective counsel in his initial §2254; in

his motion 60(b) he also argued that: “In cases like

this, where the case involves a procedural ruling of

the district court, a COA may only issue if "the

prisoner shows, at least, that jurists of reason would

find it debatable whether the petition states a valid

claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the

district court was correct in its procedural ruling."

Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595,

146 L.Ed.2d 542 (2000)” App. 43, 44

On July 26, 2016, the district judge(Andrew S. Hanen)

holds in a second opinion in the same case that:

“Ahmadi’s motion 60(b) CONSTITUTED A

SUCCESSIVE PETITION for habeas relief

under 28 U.S.C. § 2244(b)... Accordingly, the

Court ORDERS that the motions for relief from

judgment - be denied without prejudice to

refilling....”

App. 21, 22

On August 03, 2017, the Fifth Circuit holds that:

“Reza Ahmadi, formerly Texas prisoner #

1713862, moves this court for a certificate of

appealability (COA) to appeal the district

9 | Page

court’s denial of his motion for relief from

judgment under Federal Rule of Civil

Procedure 60(b)(4) and (b)(6), arguing that the

district court improperly construed his motion

as an unauthorized successive 28 U.S.C. § 2254

application... Consequently, his motion for a

COA is DENIED.

App. 19, 20

With no other alternatives Ahmadi filed a Motion for

an order authorizing the United States district court

to consider a successive 28 U.S.C. §2254 application.

On August 030, 2018, the Fifth Circuit affirms the

district court decision ORDERED that motion for

authorization to file a successive § 2254 is DENIED.

The Fifth Cir. further noting that:

Ahmadi’s ineffective assistance of counsel

claims related to the HP contracts, Sister Helen

Mayer’s testimony, and the criminal record of a

state witness WERE RAISED IN HIS INITIAL

§2254 APPLICATION. Thus, we do not

consider them. See 2244(b)(1).

App. 17, 18

On June 24, 2919, Ahmadi filed his second round of

federal habeas corpus in district court with the

submission of the “Newly Discovered Evidence,”

claiming that he is actually innocent and would not

have been convicted but for the constitutional

10 | P age

violations. On July 26, 2019, the U.S. district court

dismissed without prejudice for lack of jurisdiction

because Ahmadi is not in “custody” pursuant to the

federal habeas status. App. 12-16

Ahmadi appealed the district court decision.

On the appeal, Ahmadi argued along other things that

this Court in Slack v. McDaniel, 529 U.S. 473, 485-87

(2000) (holding that a second habeas petition is not

successive if the initial habeas petition was dismissed

for failure to exhaust); This Court Slack v. McDaniel,

529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000),

concluded that “[a] habeas petition filed in the district

court after an initial habeas petition was un

adjudicated on its merits and dismissed for failure to

exhaust state remedies is not a second or successive

petition.” This Court further held that “When the

district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying

constitutional claim, a COA should issue (and an

appeal of the district court’s order may be taken) if

the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a

valid claim of the denial of a constitutional right, and

that jurists of reason would find it debatable whether

11 | P a g e

the district court was correct in its procedural ruling.

Id. at 485-86, 127 S.Ct. 2842; See Brief of Appellate

(5th Cir. No. 19-20598 at 46)

On June 11, 2020, the Fifth circuit holding that:

Although Ahmadi’s sentence was fully

discharged in 2018, prior to filing the instant §

2254 petition in 2019, he argues that the

district court’s procedural ruling was incorrect

because he satisfies the “in custody”

requirement of § 2254(a)...WHEN, AS HERE.

THE DISTRICT COURT’S DENIAL OF

RELIEF IS BASED UPON PROCEDURAL

WITHOUT ANALYSIS OF THE GROUNDS

UNDERLYING CONSTITUTIONAL CLAIMS.

...The Fifth Circuit further DENIED COA

holding that: “This ruling is without prejudice

to Ahmadi’s ability to petition for a writ of

coram nobis, which “provides a way to

collaterally attack a criminal conviction for a

person . . . who is no longer ‘in custody’ and

therefore cannot seek habeas relief.”

App. 9-11

On January 20th, 2022 Ahmadi went back to the state

court and filed his first subsequent habeas application

in 337 district court of Harris County, Texas; SHCR 1298 7 with submission of “Newly Discovered

“SHCR” refers to the state habeas clerk’s record, as

transmitted to the Court of Criminal Appeals.

12 | P a g e

Evidence” SHCR 77-298 exhausting all his eight

claims, collaterally attacking his 2008 conviction. He

argued that Article 11.07, § 3(c), now explicitly

provides that "confinement means confinement for

any offense or any collateral consequence resulting

from the conviction that is the basis of the instant

habeas corpus." On February 8th, 2022 State filed

STATE’S ORIGINAL ANSWER, stating that: [“The

instant writ application was filed after the final

disposition and denial of the application’s previous

writ application, cause nos. 111877-A. Although the

applicant claims the instant application is based on

newly-discovered information, by his own admission,

the record upon which he is relying was released on

January 31, 2012 Writ App. at 4. Accordingly, the

applicant fails to include sufficient facts establishing

the factual or legal basis for the claims were

unavailable, or that, by a preponderance of evidence,

no rational juror could have found the applicant guilty

beyond a reasonable dount. Tex. Cod Crim. Proc. Ann.

Art 11.7, §4(a). For all of the forgoing reasons, the

instant writ application should be DISMISSED.”]

SHCH 301-306. Here, the Habeas Judge [did] not sign

13 | P a g e

the STATE’S PROPOSED FINDINGS OF FACT.

CONCLUSIONS OF LAW AND ORDER; SHCH 330-332

On the other hand, on March 17th, 2022 the 337th

District Court of Harris County, District Clerk issued

the CERTIFACTE OF IN_CUSTODY, stating that: “the

Applicant Ahmadi, Reza Haghigi, is in the custody of

the Texas Department of Criminal Justice-ID.” SHCR

373. Thus, Ahmadi has satisfied the “in custody”

requirement of § 2254(a)

On April 13th, 2022 The CCA imposed procedural

limitation, “dismissing without written order this

subsequent application for a writ of habeas corpus.

TEX CODE CRIM. PROC. Art. 11.07, Sec. 4(a)-(c) ”

App. 8

Upon exhausting all his state remedies Ahmadi

returned to federal court and presented the same

eight claims in his §2254 petition.

Ahmadi in his §2254 petition argued that the CCA

dismissal violated the most fundamental protection of

the Due Process Clause, the protection against

arbitrary state action. Because he met both § 4(a)(1) &

(2) criteria. Ahmadi asserted that the trial records

and other discovered evidence were unavailable to

him when he first filed his initial state application

14 | P a g e

cause nos. 111877-A on June 2011, as state released

some of the records for federal habeas review on

1/31/2012. Ahmadi further argued that the claims

could not have been previously raised because it was

not available or small portion of that evidence was

previously available or otherwise procedurally barred

may nonetheless be considered by this court because

compelling newly discovered evidence demonstrates

that Ahmadi is actually innocent. Based on

substantial new evidence not available at trial, “it is

more likely than not that no reasonable juror would

have found [Ahmadi] guilty beyond a reasonable

doubt” of the crimes for which he was convicted.

Schlup u. Delo, 513 U.S. 298, 327 (1995). This Newly

Discovered Evidence, discussed in detail in his §2254

petition, raises doubt about Ahmadi’s guilt “sufficient

... to undermine confidence in the result of the trial.”

Id. at 317. As such, this Court should find that

Ahmadi has satisfied his burden under Schlup, and

has opened the “gateway” for this Court to consider

the merits of his constitutional claims.

On May 31, 2022 the district court ruling that:

“Petitioner’s ensuing Rule 60(b) motion was

dismissed as an unauthorized successive

15 | P age

habeas petition.”... “The Court notes, however,

that the PETITION REMAINS AN

AUTHORIZED SUCCESSIVE OR SECOND

HABEAS PETITION over which it lacks

jurisdiction.” App. 5-7

On December 22, 2022 the Fifth Cir. Court of Appeals

holding that;

“Reza Ahmadi... moves this court for certificate

of appealability (COA) to appeal the dismissal

of his 28 U.S.C. §2254 petition, wherein he

sought to challenge his conviction for theft ... as

an unauthorized successive 2254 petition. He

argues that his PETITION IS NOT

SUCCESSIVE

BECAUSE

HIS

PRIOR

FEDERAL RULE OF CIVIL PROCEDURE

60(b) MOTION WAS NOT SUCCESSIVE....

Consequently, his motion for a COA is

DENIED. Ahmadi is WARNED that the filing

of frivolous, repetitive, or otherwise abusive

challenging his conviction or confinement will

invite the imposition of sanctions, which can

include dismissal, monetary sanctions, and

restrictions on his ability to file pleadings in

this court and any court subject to this court’s

jurisdiction.”

App. 3, 4

On April 10, 2023 Fifth Circuit rehearing en banc was

DENIED See. App. 1, 2

16 | P a g e

REASONS FOR GRANTING THE WRIT

I. The Decision Below Contravenes Johnson v.

Williams and Wreaks Havoc on the Exhaustion

Doctrine and Rules for Review Under § 2254(d).

The court below treated an ineffective-assistance

claims that had not been fairly presented to the state

courts as having been adjudicated on the merits by

those courts. That conclusion is in direct

contravention of this Court’s decision in Johnson v.

Williams, 568 U.S. 289, 301 (2013), which controls the

determination of when a claim is “adjudicated on the

merits.” The opinion’s elision of an unexhausted claim

and a claim adjudicated on the merits wreaks havoc

on the well-wrought rules developed to channel

federal habeas review under § 2254.

A. The conclusion that the unexhausted

claim was adjudicated conflicts with

Johnson v. Williams.

When the Fifth Circuit revisited Ahmadi’s

ineffectiveness claim in 2018, it ran afoul of Williams.

The court held that Ahmadi’s ineffectiveness claim

based on Strickland was adjudicated on the merits,

the claims,” WERE RAISED IN HIS INITIAL §2254

APPLICATION. Thus, we do not consider them. See

17 | P a g e

§2244(b)(l). App. 18 At the same time, the Fifth

Circuit reiterated its 2015 prior “holding [that]

HIS CLAIMS WERE UNEXHAUSTED AND

PROCEDURALLY BARRED See Ahmadi u. Stephens,

No. 14-40747 (5th Cir. 2015), in Ahmadi v. Stephens,

136 S. Ct. 1672 (2016); No. 15-1023 [App. B. at 2a-4a]

Under the circumstances here, these statements

cannot both be true under Williams: a claim cannot be

both unexhausted and adjudicated on the merits. The

distinction Williams draws between raised (and

presumptively adjudicated) claims and unraised (and

presumptively un-adjudicated) claims marks an

especially important fault-line in federal habeas

corpus law. See, e.g., Cullen v. Pinholster, 563 U.S.

170, 186 n.10 (2011) (“. . . we do not decide where to

draw the line between new claims and claims

adjudicated on the merits. . . ”); cf. Gallow v. Cooper,

570 U.S. 933 (2013) (Breyer, J., statement respecting

denial of certiorari) (“A claim without any evidence to

support it might as well be no claim at all. In such

circumstances, where there was no counsel or counsel

in state habeas counsel was ineffective, neglects to

bring forward ‘any admissible evidence’ to support a

substantial claim of ineffective assistance of trial

18 | P a g e

counsel, there seems to me to be a strong argument

that the state habeas counsel’s ineffective assistance

results in a procedural default of that claim.”). If this

Court were to draw that line in a place consistent

with its precedent, the Fifth Circuit’s decision to

reject Ahmadi’s Rule 60(b) motion was wrong, and his

Strickland -based ineffectiveness claims should have

been remanded to the district court.

B. The decision to treat the unexhausted

claim as adjudicated offends other ground

rules of federal habeas review.

The Fifth Circuit’s unwarranted assumption that

§ 2254(d) applies to the unexhausted claim also turns

Cullen v. Pinholster, 563 U.S. 170 (2011), on its head.

Pinholster limits the body of evidence that a federal

habeas court may consider in determining whether

§ 2254(d)(1) has been satisfied to the evidence

presented to the state court record. See 563 U.S. at

181. Even though Pinholster dictates that the

§ 2254(d)(1) analysis is entirely backward-looking, the

opinion below suggests courts consider unexhausted

evidence and legal theories as part of the § 2254(d)

review. The obverse problem with treating the claim

as “adjudicated” is the decision’s retraction of its

19 | F a g e

procedural default holding. And here, too, the decision

causes more intractable problems. By purporting to

reach the merits of a claim it had found defaulted, the

opinion under-protects federalism interests expressed

through the procedural default doctrine, which

ordinarily imposes an absolute bar to review of

defaulted claims unless certain exceptions are met.

Coleman, 501 U.S. at 750. But it also has the effect of

vastly over-protecting the same federalism interests

in contravention of the rules set down by Coleman:

Ahmadi alleged that he could overcome the procedural

default with a showing of cause under Martinez and

Trevino, but the decision to find the claim adjudicated

on the merits circumvented those decisions’ exception

to Coleman. These legion problems with the decision

originate in the failure to treat the unexhausted claim

as properly un-adjudicated, as Williams would

require. This Court should grant the writ of certiorari,

reverse the Fifth Circuit’s decision, and remand for

further proceedings consistent with Trevino

C. Ahmadi’s Strickland -based

ineffectiveness claims were unexhausted

and procedurally defaulted.

20 | P a g e

On January 24, 2013, the district court adapted the

state attorney’s Summary Judgement in that:

Ahmadi makes one overarching claim in his current

petition: that he received ineffective assistance of

counsel at trial. The Court has interpreted Ahmadi’s

claim of ineffective assistance of counsel to allege six

distinct failures by his counsel: (1) failing to object to

the trial judge’s instruction regarding reasonable

doubt; (2) failing to introduce evidence of Pham’s

criminal record; (3) failing to object to the inconsistent

statements offered by Pham, Garza and Meyer; (4)

failing to object to “the language which was used as

inferences,” namely, that the phrasing used in some

questions led the jury to incorrect conclusions; (5)

failing to argue that the buildup of inventory was

valid under the terms of the HP contract; and (6)

failing to argue that the evidence against Ahmadi was

insufficient to sustain his conviction. Id.

Despite raising them now, with one exception,

Ahmadi failed to raise these issues before the Court of

Criminal Appeals. Because this claim was not brought

before the Court of Criminal Appeals under the theory

of ineffective assistance of counsel, it is unexhausted.

Furthermore, all of the unexhausted claims made bv

21 | P a g e

Ahmadi are procedurallv barred. See Ahmadi u.

Thaler, Civil No. B-11-224, (S.D. Tex. Jan. 24, 2013),

in Ahmadi v. Stephens, 136 S. Ct. 1672 (2016); No. 151023 [App. D. at 28a]

In compliance with Gonzalez v. Crosby, 545 U.S. 524

(2005), it is that theory—and only that theory—that

Ahmadi sought to raise through his Rule 60(b)

motion: “If the motion sought only to correct a defect

in the integrity of the federal habeas proceedings,

then it should be allowed to proceed as a Rule 60(b)

motion. See Gonzalez v. Crosby, 545 U.S. 524,125

S.Ct. 2641,2647-48,162 L.Ed.2d 480 (2005).” App. 32

II. The Decision below Contravenes the

doctrine in Gonzalez, 545 U.S. at 532 that

distinguishing situations in which “a Rule 60(b)

motion attacks, not the substance of the federal

court’s resolution of a claim on its merits, but

some defect in the integrity of the federal habeas

proceedings.” Should not be construed as a

successive petition.

The court below treated a Rule 60(b) motion as

successive petition. That conclusion is in direct

contravention of this Court’s decision in Gonzalez u.

Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480

(2005), which controls the determination that Rule

22 | P a g e

60(b) [should not be construed as a successive

petition,] when the motion “attacks, not the substance

of the federal court's resolution of a claim on the

merits, but some defect in the integrity of the federal

habeas proceedings.” Id. at 532, 125 S. Ct. 2641

(footnote omitted)

A. The Fifth Circuit ruling Ahmadi’s 60(b)

motion as successive petition contravenes

with its earlier opinion in the same case

that the motion was challenging

procedural without analysis of the

grounds underlying constitutional claims.

On June 11, 2020, the Fifth Cir. holding that:

Although Ahmadi’s sentence was fully

discharged.in 2018, prior to filing the instant

§ 2254 petition in 2019, he argues that the

district court’s procedural ruling was incorrect

because he satisfies the “in custody”

requirement of § 2254(a).. .WHEN, AS HERE.

THE DISTRICT COURT’S DENIAL OF

RELIEF IS BASED UPON PROCEDURAL

WITHOUT ANALYSIS OF THE GROUNDS

UNDERLYING CONSTITUTIONAL CLAIMS.

App. 9, 10

On December 22, 2022 the Fifth Cir. holds in a second

opinion in the same case that;

23 | P age

“Reza Ahmadi... moves this court for certificate

of appealability (COA) to appeal the dismissal

of his 28 U.S.C. §2254 petition, wherein he

sought to challenge his conviction for theft... as

an unauthorized successive 2254 petition. He

argues that his petition is not successive

because his prior Federal Rule of Civil

Procedure 60(b) motion was not successive....

Consequently, his motion for a COA is

DENIED.”

App. 3, 4

Ahmadi citing Gonzalez v. Crosby, 545 U.S. 524, 125

S.Ct. 2641, 162 L.Ed.2d 480 (2005), this Court stated

that a Rule 60(b) [should not be construed as a

successive petition,] when the motion “attacks, not the

substance of the federal court's resolution of a claim

on the merits, but some defect in the integrity of the

federal habeas proceedings.” Id. at 532, 125 S. Ct.

2641 (footnote omitted) Specifically, the Court held

that a petitioner does not make a “habeas corpus

claim ... when he merely asserts that a previous

ruling which precluded a merits determination was in

error—for example, a denial for such reasons as

failure to exhaust, procedural default;” Id. at 532 n. 4,

125 S. Ct. 2641. See also Stewart u. MartinezVillareal, 523 U.S. 637, 643-45 (1998) (a second

24 | P a g e

habeas petition is not successive if the claim raised in

the first petition was dismissed by the district court

as premature.) Thus, “A habeas petition which is filed

after an initial petition was dismissed without

adjudication on the merits for failure to exhaust state

remedies is not a “second or successive” petition as

that term is understood in the habeas corpus context.

Slack, 529 U.S. at 484, 120 S. Ct. at 1604. “Where the

district court dismissed a claim on procedural grounds

(such as failure to exhaust in state habeas

proceedings) without reaching the merits.” See also In

re Turner, 101 F.3d 1323 (CA9 1997) (refusing to

apply rules governing second or successive petitions to

a petitioner whose prior habeas petition had been

dismissed for failure to exhaust).

Under these circumstances, the Fifth Circuit decision

in his 60(b) motion as successive petition was wrong

and contravenes with its earlier opinion in the same

case that the motion was challenging procedural

without analysis of the grounds underlying

constitutional claims.

B. The Fifth Circuit ruling Contravenes with

this Court precedents and its own, the

dismissal was an abuse of discretion

25 | P a g e

On August 03, 2017, the Fifth Circuit holds that:

“Reza Ahmadi, formerly Texas prisoner #

1713862, moves this court for a certificate of

appealability (COA) to appeal the district

court’s denial of his motion for relief from

judgment under Federal Rule of Civil

Procedure 60(b)(4) and (b)(6), arguing that the

district court improperly construed his motion

as an unauthorized successive 28 U.S.C. § 2254

application.... Therefore, in order to prevail on

his COA motion, Ahmadi must show that

reasonable jurists could debate whether the

district court’s denial of Rule 60(b) relief was an

abuse of discretion. See Hernandez, 630 F.3d at

428. Ahmadi fails to make the requisite

showing.

App. 19, 20

FIRST, while the AEDPA is applicable to all petitions

filed after its effective date, see Lindh v. Murphy, 521

U.S. 320, 117 S.Ct. 2059, 138 L.Ed. 2d 481 (1997), its

restrictions do not apply if the petition is not a

“second or successive” application. See MartinezVillareal, 118 S.Ct. at 1620-21. In this respect, the

Fifth Circuit holding in Adams v. Thaler, Director, No.

12-70011 (5th Cir. 2012) that [(“As a preliminary

matter, we determine whether the district court had

jurisdiction to rule on Adams's Rule 60(b)(6) motion.

26 | P a g e

In Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct.

2641, 162 L.Ed.2d 480 (2005), the Supreme Court

stated that a Rule 60(b) motion does not contain a

habeas corpus “claim,” and thus should not be

construed as a successive petition, when the motion

“attacks, not the substance of the federal court's

resolution of a claim on the merits, but some defect in

the integrity of the federal habeas proceedings.” Id. at

532, 125 S.Ct. 2641 (footnote omitted). Specifically,

the Court held that a petitioner does not make a

“habeas corpus claim ... when he merely asserts that a

previous ruling which precluded a merits

determination was in error—for example, a denial for

such reasons as failure to exhaust, procedural default,

or statute-of-limitations bar.” Id. at 532 n. 4, 125 S.Ct.

2641. In his Rule 60(b)(6) motion, Adams challenges

the district court's determination that his claims were

procedurally defaulted. Thus, Adams's Rule 60(b)(6)

motion is not to be construed as an improper

successive habeas petition and is properly before the

district court. See Williams v. Thaler, 602 F.3d 291,

305 (5th Cir.2010) (noting that the court had

jurisdiction to consider petitioner's Rule 60(b) motion

where petitioner challenged the district court's ruling

27 | P age

on procedural default); Rocha u. Thaler, 619 F.3d 387,

399 n. 26 (5th Cir.2010) (same)].

SECOND, in United States u. Nkuku, 602 F. App'x

183 (5th Cir. 2015) The Government avers that

Nkuku’s Rule 60(b) motion was in fact an unauthorized

successive § 2255 petition warranting dismissal. The

Fifth Circuit held that” ‘“when a Rule 60(b) motion

attacks, not the substance of the federal court’s

resolution of a claim on the merits, but some defect in

the integrity of the federal habeas proceedings,’

courts should not construe the motion as a second or

successive petition.” Williams, 602 F.3d at 302

(quoting Gonzalez, 545 U.S. at 531-32). “Examples of

motions attacking a defect in the integrity of the

federal habeas proceedings include a claim of fraud on

the court 8 or challenges to a court’s procedural ruling

8. Fraud on the federal habeas court:

~ State’s counsel in federal habeas summary judgment deceiving

the court that: [“the court notes that the IBM contract and the

reduced claims were not withheld from Ahmadi; in fact, that

evidence was presented to the jury. Dkt. 15-3, Pg. 81”. See

Ahmadi v. Thaler, Civil No. B-ll-224, (S.D. Tex. Jan. 24, 2013),

28 | P a g e

in Ahmadi v. Stephens, 136 S. Ct. 1672 (2016); No. 15-1023 [App.

D. at 17a, n4] The Newly Discovered Evidence; See (RRII 4). See

also Dist. Crt. No. l:ll:cv-224 (Doc. #12-11, Pg. 3,4, on

1/31/2012) reveals that the IBM evidence was withheld before

the trial as follow:

Pre-trial [(Jury not present)

Mr. Easterling (Defense Attorney): I have a quick Motion

in Limine. I don’t think it’s going to be quite as relevant

now as it might have been since they told the Court

“they’re not going forward on the IBM indictment."

But there was several case files out of the same incident

versus my client’s Intelligent Interface Corporation. And

so, just out of an abundance of caution. I would like to go

ahead and reurge it because some of the witnesses may

know about it in this case. I would ask the Court to grant

that.

Ms. Dolan (Trial Prosecutor): Do you want me to quite

them down out there?

The Court (Trial Judge): Okay. Don’t go into anything

about the IBM case without approaching first.

Ms. Dolan: Yes, Sir....

Mr. Easterling: Anyway, I have a “MOTION FOR

EVIDENCE FAVORABLE TO DEFENDANT. It’s a

Brady Motion." I ask there be a continuing duty

throughout the-trial, Your Honor.

(Off-the-record discussion)]

See (RR II 4) See also Newly Discovered Evidence in Brief for

Appellant at 31-33, Ahmadi v. Lumpkin, 22-20295

Thereafter, prosecutor suppressed the “IBM generated Report”

That demonstrates that Ahmadi significantly reduced the

number of warranty claims from HP’s 23-28 per day to IBM’s 2

per day

an Exculpatory Evidence; That proves Ahmadi is

innocent. See Newly Discovered Evidence in Brief for Appellant

at 37-56, Ahmadi v. Lumpkin, 22-20295.

29 | P a g e

~ State’s counsel among other deceptions in the federal habeas

proceeding stating that [“The Court notes that Ahmadi’s claim

regarding Meyer — that she falsely testifies that St. Agnes paid

1.1. for its virus service---contradicts Petitioner’s own testimony

(State Brief) that he “did not charge” the school. Dkt. No. 15-26.

Pp. 1594-96.” See Ahmadi v. Thaler, Civil No. B-ll-224, (S.D.

Tex. Jan. 24, 2013), in Ahmadi v. Stephens, 136 S. Ct. 1672

(2016); No. 15-1023 [App. D. at 17a, n4] The Newly Discovered

Evidence; See Brief for Appellant at 108-132, in Ahmadi v.

Lumpkin, 22-20295 that shows [I.I. was paid by St. Agnes for the

total of $26,000.00 for the virus work] this evidence was

suppressed by prosecutor from the juries. Consequently,

prosecutor uses Myer falsely testimony that Ahmadi committed

fraud (RR. IV 64)

~ State’s counsel misrepresenting habeas court that [“HP was so

concerned about the number of warranty repairs being made,

that they had their engineers examine whether “they were

putting out a defective product because of the breakage rate at

one Catholic all-girls high school.” Dkt. No. 15-24, p. 39.” See

Ahmadi v. Thaler, Civil No. B-ll-224, (S.D. Tex. Jan. 24, 2013),

in Ahmadi v. Stephens, 136 S. Ct. 1672 (2016); No. 15-1023 [App.

D. at 12a] The Newly Discovered Evidence; See Brief for

Appellant at 66-90, in Ahmadi v. Lumpkin, 22-20295 reveals

that the [HP’s own Website, a nationwide Forum, reporting over

20,000 recalls and defective (“Compaq Evo Notebook N610c and

Armada E500,”) laptops; the same laptops were sold to the

children at St. Agnes and others] Additionally, HP’s worldwide

announcement with regards to those specific recalls on N610c

30 | P a g e

and E500. See Brief for Appellant at 91-100, in Ahmadi v.

Lumpkin, 22-20295

~ State’s counsel falsely stated that the [“HP contract was

entered into evidence for the jury’s review and the result speaks

for itself. DKT. Nos. 17-11, p. 3838 to Dkt. No. 17-12, p. 3806.”

See Ahmadi v. Thaler, Civil No. B-11-224, (S.D. Tex. Jan. 24,

2013), in Ahmadi v. Stephens, 136 S. Ct. 1672 (2016); No. 151023 [App. D. at 30a, n6] The Newly Discovered Evidence; See

Dist. Crt. No. l:ll:cv-224 (Doc. #12-67, Pg. 38-39, on 1/31/2012).

See also Brief for Appellant at 188-189, in Ahmadi v. Lumpkin,

22-20295; AND Dist. Crt. No. l:ll:cv-224 (Doc. #12-67, Pg. 39-40,

on 1/31/2012) See also Brief for Appellant at 189-190, Ahmadi v.

Lumpkin, 22-2029; reveals that vital evidence of HP’s contract

the [prosecutor withheld from the juries]. More importantly, the

prosecutor clearly relied on the false testimony of state’s witness,

HP’s representative (Theiss) to convict Ahmadi.] (RR VI-198-199)

Theiss testified that Ahmadi committed fraud (RR VI- 201-202)

31 | P a g e

which precluded a merits determination, such as

when a ruling is based on an alleged failure to

exhaust, a procedural default, or a time-bar

determination “United States u. Brown, 547 F. App’x

637, 641 (5th Cir. 2013) (unpublished) (citing Gonzalez,

545 U.S. at 532 nn.4-5). Because his Rule 60(b)

motion did not attack the merits of the district court’s

decision, we hold that it was not a successive habeas

petition and therefore was within the district court’s

jurisdiction. Having established our jurisdiction, we

review the district court’s denial of Nkuku’s 60(b)

motion for abuse of discretion. Hernandez v. Thaler,

630 F.3d 420, 428 (5th Cir. 2011) “Generally, the

denial of a Rule 60(b) motion does not bring up the

underlying judgment for review.” Harrison v. Byrd,

765 F.2d 501, 503 (5th Cir. 1985) (citation, emphasis,

and internal quotation marks omitted). However, “if in

granting the earlier judgment, the district court has

overlooked and failed to consider some controlling

principle of law, the district court may abuse its

discretion by failing to grant 60(b) relief. In this case,

the district court neglected to follow the precepts

explained above. It neither provided findings of fact

and conclusions of law, nor did it articulate why

32 | P a g e

Nkuku’s § 2255 motion warranted summary

dismissal. The district court neither addressed

Nkuku’s arguments, nor provided Nkuku with the

process afforded movants under § 2255(b). See

Zapata-Rosa, 12 F.3d at *2. Given the district court’s

disposition of this case, we cannot address whether

Nkuku’s claims are plainly [frivolous] and should be

summarily dismissed. Thus, the district court’s denial

of Nkuku’s Rule 60(b) motion was an abuse of

discretion, we REVERSE the order denying Rule 60(b)

relief, VACATE the underlying judgment, and

REMAND for the proceedings described above.

In this case, because Ahmadi’s Rule 60(b) motion did

not attack the merits of the district court’s decision, it

was not a successive habeas petition, thus the instant

petition does not remain second or successive.

Therefore, it was within Fifth Circuit’s jurisdiction.

The circuit judge not only neglected the 5th Cir. ruling

in his prior petition [Ahmadi u. Lorie Davis, Director,

et al, No. 19-20598 (5th Cir. 2020)]; it also neglected to

follow the precepts explained in Gonzalez, 545 U.S. at

531—32. It neither provided findings of fact and

conclusions of law, nor did it articulate why Ahmadi’s

33 | P a g e

§ 2254 motion warranted summary dismissal. The

Fifth Circuit neither addressed Ahmadi’s arguments,

nor provided Ahmadi with the process afforded under

U.S.C. §§ 2254(a) and (b)(1)(A). Thus, the dismissal

was an abuse of discretion. Here, Ahmadi should have

been able to file a full-blown habeas petition, without

running afoul of § 2244(b). The fifth circuit’s order

also prejudiced Ahmadi by WARNED him that the

filing of frivolous, repetitive, or otherwise abusive

challenges to his conviction or confinement will invite

the imposition of sanctions.

III. The Fifth Circuit’s Decision Undermines the

Legitimacy, Reliability, and Stability of Judicial

Processes

The decision below depends on an extraordinary and

erroneous juridical maneuver to sidestep

consideration of Ahmadi’s “potentially credible” issues

in Rule 60(b) motion and treating it as second or

successive petition. This was a mistake. Where a

court makes a mistake—especially a serious mistake

in a case involving an irrevocable punishment— “the

public legitimacy of our justice system” depends upon

the availability of a method for “error correction.”

34 | P a g e

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908

(2018).

This Court has not infrequently had to correct the

Fifth Circuit’s outlier interpretations of federal

habeas law. Last Term, in Ayestas v. Davis, a

unanimous Court “conclude [d] that the Fifth Circuit’s

interpretation of [18 U.S.C.] § 3599(f)”—the provision

for funding federal habeas counsel’s investigation—“is

not a permissible reading of the statute.” 138 S. Ct.

1080, 1095 (2018). The Term before last, the Court

rebuked the Fifth Circuit for not following the

“established rule” of Miller-El v. Cockrell, 537 U.S.

322 (2003), in assessing certificates of appealability.

Buck v. Davis, 137 S. Ct. 759, 774 (2017). And this

Court faulted the Fifth Circuit for burying the most

compelling evidence in Mr. Buck’s claim in its

improper merits review—that his trial counsel’s

chosen expert had asked the jury to consider his race

in assessing his “future dangerousness.” Buck, 137 S.

Ct. at 778 (noting that the Fifth Circuit “failed even to

mention the racial evidence in concluding that Buck’s

claim was ‘at least unremarkable as far as [ineffective

assistance] claims go.’”). Rosales-Mireles was itself a

35 | P a g e

case firmly correcting the Fifth Circuit’s erroneous

test for unobjected-to error that ‘“seriously affects the

fairness, integrity or public reputation of judicial

proceedings.” 138 S. Ct. at 1905 (quoting with

alterations Molina-Martinez v. United States, 136 S.

Ct. 1338, 1343 (2016)). This Court found the “Fifth

Circuit’s articulation of [the test] out of step with the

practice of other Circuits.” Id. at 1906.

Ahmadi’s case similarly presents a peculiar

application of federal habeas law that demands close

review and this Court’s rare exercise of errorcorrecting powers.

The extremity of thq Fifth Circuit’s decision may be

measured not only in the substance of the decision,

discussed above, but in the procedural deviance from

the norms of judicial precedent. The general rule for

courts of appeals is once an issue is decided “that

should be the end of the matter.” United States v.

United States Smelting Ref. & Mining Co., 339 U.S.

186, 198 (1950). Often termed “the law-of-the-case,”

this doctrine “expresses the practice of courts

generally to refuse to reopen what has been decided.”

Messenger v. Anderson, 225 U.S. 436, 444 (1912)

(Holmes, J.); accord Musacchio v. United States, 136

36 | P a g e

S. Ct. 709, 716 (2016); see generally Bryan Garner et

al., The Law of Judicial Precedent Part D (2016). The

prudential doctrine serves the “finality and efficiency

of the judicial process by protecting against the

agitation of settled issues.” Christianson v. Colt

Indus. Operating Corp., 486 U.S. 800, 816 (1988)

(internal quotation marks and ci-tation omitted). The

Fifth Circuit’s decision to revisit its procedural default

holding unbidden, and without an excuse for doing so,

departs from the sound practice of courts.

And it is not just the procedural irregularity that

should cause this Court to examine the decision below

carefully. What is more concerning is that the

procedural irregularity—rightly or wrongly—gives the

appearance that the court has bent over back-wards

to avoid application of a decision from this Court that

afforded a procedural right to conviction of innocent

petitioner.

The Fifth Circuit acknowledges this Court’s decision

in Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641,

162 L.Ed.2d 480 (2005), which controls the

determination that Rule 60(b) [should not be

construed as a successive petition,] when the motion

“attacks, not the substance of the federal court's

37|Page

resolution of a claim on the merits, but some defect in

the integrity of the federal habeas proceedings.” Id. at

532, 125 S.Ct. 2641 (footnote omitted). But it

departures from this Court precedent. This Court in

Gonzalez held that: “the Court underestimates the

significance of the fact that petitioner was effectively

shut out of federal court-without any adjudication of

the merits of his claims-because of a procedural

ruling that was later shown to be flatly mistaken. As

we have stressed, “[djismissal of a first federal habeas

petition is a particularly serious matter, for that

dismissal denies the petitioner the protections of the

Great Writ entirely, risking injury to an important

interest in human liberty.” Lonchar v. Thomas, 517

U.S. 314, 324 (1996); see also Slack v. McDaniel, 529

U.S. 473, 483 (2000) (“The writ of habeas corpus plays

a vital role in protecting constitutional rights”). When

a habeas petition has been dismissed on a clearly

defective procedural ground, the State can hardly

claim a legitimate interest in the finality of that

judgment. Indeed, the State has experienced a

windfall, while the state prisoner has been deprivedcontrary to congressional intent-of his valuable right

to one full round of federal habeas review.

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What Petitioner has not yet received—and now can

only receive by way of this Court’s exceptional

intervention—is the opportunity to have some review

of his Rule 60(b) motion App. 23-50; and permit him

to be able to file a full-blown habeas petition, without

running afoul of § 2244(b).

The “public legitimacy” of criminal justice in Texas is

what is at stake.

Legitimacy may be measured by the quality of

decision making or the quality of treatment of

defendants. More specifically, procedures are

legitimate when they are neutral, accurate,

consistent, trustworthy, and fair—when they

provide opportunities for error correction and

for interested parties to be heard. Legal

authorities are legitimate when they act

impartially, honestly, transparently,

respectfully, ethically, and equitably. The

criminal justice system that optimally

expresses these values is not only morally

defensible but also quite probably stable and

effective.

Bowers & Robinson, Perceptions of Fairness and

Justice: The Shared Aims and Occasional Conflicts of

Legitimacy and Moral Credibility, 47 Wake Forest L.

Rev. 211, 215-216 (2012), cited in Rosales-Mireles,

138 S. Ct. at 1908).

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The Fifth Circuit’s placement of Ahmadi’s claims in

the quantum state of being both unexhausted and

adjudicated depending on whether it is viewed

initially or through Rule 60(b); Consequently, shut

him out of federal court - without any adjudication of

the merits of his claims, and to treat his Rule 60 (b) as

second or successive; so far departs from the accepted

and usual course of judicial proceedings as to call for

an exercise of this Court’s extraordinary powers.

CONCLUSION

FOR THESE REASONS, this Court should grant the

petition and reverse the decision of the court below.

Respectfyily'lsubmitted

Rez^JAmnadi,

petitioner, pro se

7302 Wooded Valley Dr.

Houston Texas 77095

ahmadirav@vahoo.com

(713) 515-6149

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