Petition for Writ of Certiorari — Lawrence Flack, Petitioner v. United States

Supreme Court, U.S.

FILED

AUG 1 0 2023

\

OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

Lawrence Flack

— PETITIONER

(Your Name)

vs.

United States of America

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court of Appeals for the Sixth Circuit

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

PETITION FOR WRIT OF CERTIORARI

Lawrence Flack #48172-039

(Your Name)

Federal Correctional Institution Loretto

(Address)

P.O. Box 1000, Cresson, PA 16630

(City, State, Zip Code)

RECEIVED

AUG 2 1 2023

I.

QUESTION(S) PRESENTED

Whether Appellant counsel Anders brief was inadequate were evidence exist

that Appellant Constitutional rights were violated, double jeopardy rights

which the plea agreement and the indictment still contain duplicative

charged?

II.

See Exhibit A, B, C, D, E

'

Whether the Appellate court erred in failing to address and make factual

finding on all Appellants evidence and arguments?

III. Idlether the interest of justice requires invalidate of the appellate

waivers because of violations of double jeopardy and plain errors?

See Exhibit A, B, C, D

IV.

Whether Appellant's guilty plea and appellate waivers are invalid due

to double jeopardy violations remaining in the plea and indictment alone

with counsel's ineffective assistance in the prior and present proceed­

ings?

V.

See Exhibit A, B, C, D

Whether the Sixth Circuit panel decision is conflicting with the Supreme

Court and the prior three panel orders ruling in Appellant favor due to

double jeopardy violations?

VI.

See Exhibit A, B, C, D

Whether Mr. Flacks case should be vacated due to the plain error, con­

stitutional violations, double jeopardy, compounded with the intervening

changes in the laws Concepcion v. United States, 597 U.S. (S.Ct. 6/7/2022)?

See Exhibits A, B, C, D, E

LIST OF PARTIES

[X] 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:

TABLE OF CONTENTS

1

OPINIONS BELOW

JURISDICTION

X

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

H

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

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/ —

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

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix ^L__to

the petition and is

Flack Ci.se*zz-l*sil&nrf*<

[ ] reported at United States v. Lawrence

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

[ ] is unpublished.

The opinion of the United States district court appears at Appendix__

the petition and is

[ ] reported at u-s- v- Flack, 941 F.3d 238, 241-42 (6th Ci^v 2019)

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

[ ] 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.

1.

to

JURISDICTION

[ ] For cases from federal courts:

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

was

1 If* I. CIf

£->

^

uUmJ

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

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

Appeals on the following date: May 12, 2023__________ ? and a copy of the

order denying rehearing appears at Appendix Yes

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

N/A

to and including _ N/A

(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).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

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3

STATEMENT OF THE CASE

On or about 2014, Appellant Mr. Lawrence Flack pleaded guilty to Receipt;

of Child Pornography, in violation of 18 U.S.C. §2252A(a)(2), (b)(1), and

Possession of Child Pornography, in violation of 18 U.S.C. §2252A(a)(5)(B),

(b)(2).

He was sentenced to 262 months to run concurrently to a sentence of

262 months of imprisonment for the receipt-of-child-pomography conviction

to run concurrently to a sentence of 240 months for the possession-of-chilapornography conviction.

Appellant, subsequently, collaterally attacked his convictions resulting

in "Three" orders see Exhibits A. B, C, from the Sixth Circuit Court of

Appeals, remanding the matter for resentencing.

Appellant was last resen­

tenced on September 19, 2022.

A Notice of Appeal was filed in the District

Court on September 23, 2022.

A Petition for Rehearing en-banc was filed

thereafter which are specifically authorized by 28 U.S.C. §1291, which

authorizes appeals from final judgments of district courts.

for Rehearing en-banc was denied on or about May 12, 2023.

H

The Petition .

REASONS FOR GRANTING THE PETITION

ARGUMENTS

INTEREST OF JUSTICE REQUIRES INVALIDATE THE APPELLATE WAIVERS

BECAUSE OF THE PLAIN ERRORS AND VIOLATIONS OF DOUBLE JEOPARDY

A reviewing court may grant relief for "plain error" even if the error

was not raised and preserved at trial or sentencing.

See Fed.R.Crim.P. 52(b),

see Davis v. U.S., 140 S.Ct. 1060, 1061 (2020) (plain error review applies to

unpreserved factual agruments); Puckett v. U.S., 556 U.S. 129, 133-34 (2009)

(plain error applied to claims that government failed to meet plea agreement

obligations); U.S. v. Olano, 507 U.S. 725, 731 (1993) (plain error review

provides appellate courts limited power to correct error not refer specifically

to a sentence's "reasonableness")

see Holguin-Hemandez v. U.S., 140 S.Ct.

762, 766 (2020) (defendants are not required to refer "to the reasonableness"

of a sentence to preserve such claims for appeal"), see Olano, 507 U.S. at 734;

see also U.S. v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (burden for estab­

lishing plain error is on defendant claiming it); see U.S. v. Pitts, 997 F.3d

668, 697 (6th Cir. 2021).

In an appeal based on "plain error"

the defendant must show (1) there

was an error (2) that is "clear or obvious"; see U.S. v. Barcus, 892 F.3d 228,

234 (6tn Cir. 2018) and (3) the error affected the defendant's "substantial

rights", see U.S. v. Olani, 507 U.S. 725, /34-35 (1993), see Rosales-Mireles

v. U.S., 138 S.Ct. 1897, 1907-08 (2018) (sentencing guidelines error resulting

in "necessary deprivation of liberty" affected defendant's substantial right

to determine if a ruling affected the defendants substantial rights), an

appellate court analyzes the alleged error in the context of the entire record.

See Jones, 527 U.S., at 390-91, see U.S. v. Montgomery, 998 F.3d 693, 701 (6th

Cir. 2021).

Even if the defendant can satisfy these three requirements, relief

r

is only available if the court determines that the error "seriously affect[edj

the fairness, integrity, or public reputation of judicial proceedings"; see

Jones, 528 U.S. at 390-91.

Rights or objections that were explicitly waived will not be reviewed for

"plain error, but those that were merely" forfeited may be reviewed.

See Fed.

R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered though it was not brought to the court's attention.")

See Johnson v. U.S.,

520 U.S. 461, 465-66 (1997) (failure to assert right usually results in for­

feiture but plain error rule mitigates this result).

" [Forfeiture" is defined as "the failure to make the timely assertion

of a right".

Olano, 507 U.S. at 733.

A right is "forfeited" if counsel

"fail[s] to raise the arguments, as counsel did. not raise the arguments in

Mr. Flack's case.' An appellate court may also review for plain error if an

objection is unspecific, see. U.S. v. Propst, 959 F.3d 298, 303 (7th Cir.

2020) .

Here, this court should correct the plain error and hear Appellant's

case on its merits.

See Exhibit A.

ARGUMENTS

APPELLANT GUILTY PLEA AND APPELLATE WAIVERS ARE INVALID DUE TO

DOUBLE JEOPARDY VIOLATIONS REMAINING IN THE PLEA AND THE INDICTMENT,

ALONE WITH COUNSEL'S INEFFECTIVE ASSISTANCE IN THE

PRIOR AND PRESENT PROCEEDINGS

A guilty plea does not foreclose, nor does it waive jurisdictional chall­

enges to conviction; see Menna v. New York, 423 U.S. 61, 63 (1975).

In Menna,

the Supreme Court noted that because a guilty plea is an admission of the

facts alleged, it removes the issue of factual guilty from the case and renders

irrelevant constitutional violations logically consistent with established fact­

ual guilt and "which do not stand in the way of convi.tion if factual guilt is

validly established".

Id. at 62 n.2.

Jurisdictional issue, therefore, are

rights that are justified as protecting something other than the truth-seeking

process.

Id. at 62-63 (guilty plea did not waive double jeopardy claim because

government may not prosecute defendant regardless of factual guilt),

Here, the

seriousness of Appellant's constitutional injury combined with his ineffective

assistance of counsel warrants Appellant's appeal to be heard on its merits.

The double jeopardy violations and Appellant's ineffective assistance of counsel

which the government agreed: Appellant's ineffective trial counsel prejudiced

him during his criminal proceedings.

(Dkt. 46, order P. 13, Exhibit B - trial

counsel's ineffectiveness undermined the integrity of Appellant's criminal

proceedings by allowing the double jeopardy violation to stand without objec­

tion at the prior and present sentencing hearing,

See U.S. Sixth Circuit

orders rulings that Appellant constitution rights double jeopardy were violated.

Exhibit A, B, C.

The government offered Appellant a constitutionally defective plea

agreement.

"[T]he prohibition against double jeopardy is a cornerstone of our

system of constitutional criminal procedure."

T

U.S. v. Davenport, 519 F.3d

940, 947-48 (9th Cir. 2008).

Government conduct subjecting a defendant to

double jeopardy therefore "threatens the fairness, integrity, and public

reputation of our judicial proceedings".

Id. at 984.

By offering Appellant

a plea agreement premised on a double jeopardy violation, the government

exposed him to "serious collateral consequences that cannot be ignored".

U.S. v. Bubb, 577 F.3d, 1366, 1372 (11th Cir. 2009).

See Exhibit A, B, C

D, E.

This honorable Court should consider the ineffectiveness of Appellate's

counsel when deciding to hear this appeal on its merits,

The Sixth Circuit's

order emphasizes the importance of this court exercising its judgment when

deciding which argument to hear on there merits, "especially in light of the

ineffective assistance performed by prior counsel below".

(Dkt. 46. (Order

p. 2) emphasis added).

Appellant's sentence should not be corrected simply by striking the

possession conviction - this would, not be a remedy tailored to the constit­

utional ijuries he suffered.

See U.S. v. Morrison, 449 U.S. 361, 364 (1981)

("Sixth Amendment deprivations... should be tailored to the injury suffered...")

See Sixth Circuit court orders marked Exhibits A. B. C.

In addition to the collateral consequences inflicted on Appellant the

government unjustly benefitted from a stronger position during sentencing

because of the double jeopardy violation bringing multiple charges gave;_the

an government an advantage in sentencing because of the appearance of guilt

accompanying numerous charges.

(1983).

See Missouri v. Hunter. 459 U.S. 359. 372

Here, this court should invalid, the waivers and hear these arguments

on its merits, see Exhibit A. B. C. D. E.

argument E\

COUNSEL CONSTITUTIONALLY

<

INEFFECTIVE FOR FAILING TO FILE A

MOTION TO DISMISS THE INDICTMENT

BASED ON MULTIPLICITY COUNTS

WHICH VIOLATED PETITIONER"S

RIGHT TO DUE PROCESS.

should have known that He could

Petitioner’s counsel's knew or

argued for dismissal of the

have filed a Pretrial motion and.

"Multiplicity" when an indictment,

indictment based on Multiplicity-

)

intended, to be separate

charges multiple offenses, that Congress

for each offense

crimes/ the defendant can be made to answer

U-S- 364U-S. 587 .391-95 (1961 ) separatelyz see -Callanan v.

in different-’counts

indictments charging a single'offense

However,

3£ 533,537 (3d,cir.

" See U-S. v- •Tann, 577 Fare "multiplicitous.

2'0 03 ) 341, F. 3d 338, 347-48 (4th cir.

2009); U-S- v. Leftenant,

generally improper because they

Multiplicitous indictments are

result in multiple sentences for

may prejudice the defendant or

Double Jeopardy Clause, see

a single. offense in violation of. the

300, 303-05 (1st cir. 1992) ; ‘U-S. v. .

v.

Lilly,

983

F.

2dU.S.

2008) (Multiplicitous

Kerley, . 544 F- 3d- .172, 178-79 (2nd cir

by.punishing single

indictment violated Double Jeopardy clause

3d,- 689,693 (6th cir.

offense multiple times) U-S- v. Ehle, 640 Fat 864-65; Miller, 527 F- 3d- at

2011)- Also see Ball, 470 U.S-'

Petitioner suffers^.

840 F. 2d- at ' 355. Here

74; Sellers

motion to dismiss the

. prejudice by counsel -failing to file a

See ExhibitsA Counsel

indictment hased on mu ltiplicity counts.

the.U.S. Constitution from hailing

overlooked that the Government is precluded by

When on the

see Indictment Exhibit ft ■

a defendant into the court on a charge;

onTEsTaceT

v--—face^'f^he'^f^cbrdr^EKe-GoverfiiTien may not-prosecute

ri

co qc -c

p+-

241

46 L. Ed. .795 (1975) ,

See .Menna y . New York, 423 U.S. -61, 62 -96 S. Ct. 441,

f -f '. See United States v. Broce,-488 U.S. 563 (1989).. Here' but for counsel1s errors there ts r-easonable probability

that

causedPetitionerprejudice

• r • .and omissions'

uld'-have been, different.

the results -of the' proceeding -WP

.that

...f-

ARGUMENTS

COUNSEL (INSTITUTIONALLY INEFFECTIVE FOR FAILING TO INFORM

PETITIONER OF THE TRUE NATURE OF THE CHARGES, CONSEQUENCES AND

ERRONEOUSLY ADVISING PETITIONER TO PLEAD GUILTY. PETITIONER PLEA

AGREEMENT WAS NOT KNOWINGLY NOR VOLUTARILY ENTERED

Applying the same standards used by the Supreme Court in Lee v.. United

States, U.S. No. 16-327 (2017), to Petitioner's case, the Court records and

circumstances•surrounding Petitioner's case, Petitioner has demonstrated that

he received ineffective assistance of counsel pursuant to Strickland v.

Washington, 466 U.S-^—687, 80 L. Ed. 2d 674, 104 S. Ct. .2052 (1984); Hill v.

Lockhart,

474

U.S.

52,

56,

88 L.

Ed.

2d 203,

106 S.

Ct.

366

(1985).

Moreover, in light of Lee v. United States, U.S. No. 16-327 (2017).

In Lee, the Supreme Court held that Lee had indeed demonstrated that he

was prejudiced by his counsel's erroneous advice.

In•Petitioner's case, he

asserts that he has suffered the same prejudice which is corroborated by the

Court's records,

counsel's erroneous advice affected Petitioner's decision

making at the plea hearing,

Thus there's a reasonable probability that, but

for counsel's errors and erroneous advice that lead Petitioner to enter into

the ambiguous plea agreement, Petitioner would not have pleaded guilty.

Thus

would have insist on going to trial.

The Sixth Amendment guarantees a defendant the effective assistance of

counsel at critical'stages of a criminal proceeding including when he enters

a guilty plea.

To demonstrate that counsel was constitutionally ineffective,

a defendant must show that counsel's representation.fell below an'objective

standard of reasonableness and that he was prejudiced as a result.

In the case at hand,

States

Petitioner asserts that based upon the United

Supreme- Court recent decisions in Lee v.

216471, U.S- No. 16-327 (June 23, 2017).

United States,

2017 . BL

Petitioner,is entitled to relief

because of Petitioner and the court records demonstrated that Petitioner was

10

r

in fact prejudiced by counsel's erroneous advice and failing to inform

Petitioner of the true nature of the charges to which Petitioner was pleading

guilty to.

Moreover, counsel's erroneous advice affected Petitioner decision

making and understanding, of the consequences of Petitioner guilty plea.

Petitioner would not have plead guilty but would have insisted on proceeding

Additional, upon the same standards presented in Lee, based upon

to trial.

the fact that Lee was decided on June 23, 2017 under the holdings established

by the Supreme Court in "Lee".

Since Lee constitutes now binding. precedent,

thus is applicable to Petitioner claims herein.

The effect of a guilty plea, courts have generally held that a guilty

plea waives most non-jurisdictional constitutional rights and challenges to

non-jurisdictional defects prior to entry of plea.

See Boykin v. Alabama,

395 U.S. 238, 243 (1969); see also Tollett v. Henderson, 411 U.S. 258, 267

(1973).

However, a guilty plea does not foreclose a subsequent claim, nor

does it waive jurisdictional challenges to convictions.

York, 423 U.S. 61, 63 (1975).

jurisdictional

In

grounds.

See Menna v. New

As here, Petitioner challenges his plea on

Menna,

the

Supreme

Court

noted

that

jurisdictional issues, therefore are rights that are justified as protecting

something other than the truth seeking process,

Id at 62-63 (guilty plea did

~v

not

waive

double

jeopardy

claim

because

defendant regardless of factual guilt).

government

may not

In Petitioner's case the Government

may not prosecute the charge on the face of the indictment.

marked as Exhibit A

•

prosecute

See Indictment

Moreover, no jurisdictional basis existed for haling

Petitioner into court.

II

r

. \

The Supreme Court held in Lee v. United States, No. 16-327, June 23,

2017 that a claim of ineffective assistance of counsel will often involve a

For

claim of attorney error "during the course of a legal proceeding",

example, that counsel failed to raise an objection at trial or to present an

Roe v. Flores-Ortega, 528 U.S. 470, 481,

argument on appeal.

1029,

145 L.

Ed.

2d 985

(2000).

120 S. Ct.

A defendant raising such a claim can

demonstrate- prejudice by showing "a reasonable probability that, but for

counsel's, unprofessional .errors, the result of the proceeding would have been

Id.

different".

Strickland,

at 482,

120 S. Ct.. 1029,

145 L.

Ed.

2d 985

(quoting

466 U.S. . at 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674; internal

quotation marks omitted).

Prior

to

entering

the

plea

agreement,

counsel

failed

to

inform

Petitioner -of the true nature of the charges which Petitioner was pleading

guilty

to.

Counsel

never

informed

Petitioner

that

in

order

for

the

Government to sustain its burden of proof as to the two charges against

Petitioner, that the Government would need to prove beyond a reasonable doubt

the instant charges in the indictment,

Counsel failed to inform Petitioner,

before entering into the plea agreement and at the plea hearing, that the two

charges which Petitioner was being charged with are multiplicity counts

violating the Double Jeopardy Clause.

Counsel never informed Petitioner that

Count One and Two were really one crime,

Counsel failed to. inform me that

the statutes under which Petitioner was charged proscribed the same offense.

Counsel failed to inform Petitioner that "a guilty plea to a charge does not

waive a claim that judged on its face of the record or indictment".

t>2.

The

\ V

charge is one which the Government may not constitutionally prosecute under

Plea agreement was not knowing nor voluntarily

the Double Jeopardy Clause.

entered.

Based on counsel failure to inform Petitioner of the true nature of

Moreover,

the charges and erroneously advising Petitioner to plea guilty.

when

Honor questioned

Your

Petitioner

at

the

plea hearing • as

to

his

understanding of the plea agreement, counsel erroneously advised Petitioner

But for counsel's errors and erroneous advice that led

as to the answers.

Petitioner to enter into the plea agreement and plea guilty, Petitioner would

But would have insisted on going to trial..

not have plead guilty.

When

a defendant

claims

that

his

counsel's . deficient

deprived him of a trial by causing him to accept a plea,

performance

The defendant can

show prejudice by demonstrating a "reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would have insisted on

going to trial".

(See: Hill v. Lockhart, 474 U.S. 52, 56, 88 L. Ed. 2d 203,

106 S. Ct. 366 (1985)).

Also see (Lee v. United States, U.S. No. 16-327

(2017) Pp. 5-8).

But in this case counsel's deficient performance arguably led not to a

judicial proceeding of disputed reliability, but rather to the forfeiture of

a proceeding itself.

Ed. 2d 985.

Flores-Orteqa, 528 U.S. at 483, 120 S. Ct. 1029, 145 L.

When a defendant, alleges his counsel's’deficient performance led

him to accept a guilty plea rather than go to trial, we do not ask whether,

had he gone to trial, the result of that trial "would have been different"

than the result of the plea bargain.

That is because, while we ordinarily

"apply a strong presumption of reliability to judicial proceedings ', wee

13

s £

cannot accord "any such presumption" to judicial proceedings that never took

place.

Id. at 482-483, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (internal

quotation marks omitted).

SH

ARGUMENT

THIS HONORABLE COURT SHOULD VACATE AND REMAND APPELLANTS SENTENCE

IN LIGHT OF THE INTERVENING CHANGE IN THE LAW CONCEPCION V.

UNITED STATES. 597 U.S. (S.CT. 6/27/2022)

The sentence that Mr. Lawrence Flack received yesterday would surely be

different today, based on the new intervening charges in the laws, the United

States Supreme Court ruling Concepcion v. United States. 597 U.S. (S.Ct.

6/27/2022).

The Supreme Court clarifies how district courts should access

prisoner's requests for reduced sentences under the First Step Act.

SCOTUS”

rules that district courts may consider new development (such as evidence of a

prisoner's rehabilitation or intervening changes in the law) exercising their

discretion to reduce a sentence pg 6-18.

Federal courts historically have

exercised broad discretion to consider all relevant information at initial

sentencing hearing, consistent with their responsibility to sentence the whole

person before them.

That discretion also carries forward to later proceedings

that may modify an original sentence.

District courts' discretion is bounden

only when Congress or the Constitution expressly limits the type of information

a district may conisder in modifying a sentence, pg. 6-11.

There is a "long

and durable" tradition that sentencing judges enjo[y] discretion in the sort

of information they may consider" at an initial sentencing proceeding. Dean

v. United. States, 581 U.S. 62, 66.

Accordingly, a federal judge in deciding

to impose a sentence may appropriately conduct an inquiry broad in scope,

largely unlimited either as to the kind of information he may consider, or

the source from which it may come.

446, pg. 6-8.

United States v. Tucker, 404 U.S. 443,

The discretion federal judges hold at initial sentencings also

characterizes sentencing modification hearings the court in Pepper v. United

States, 562 U.S. 476.

Resentencing district courts must calculate new guide-

lines ranges - as prt of resentencing proceedings, courts have also' exercised

IS

their discretion to consider nonretroactive guidelines changes.

Thus the court

therefore holds that the First Step Act allows district courts to consider

intervening changes of law or fact in exercising their discretion to reduce

a sentence; see Golan v. Suada, 596 U.S. such as the United States Attorney

General Merrick Garland New Memorandum instructing all federal prosecutors

on changes in departmental policies in all cases (December 16, 2022).

Along

with other intervening changes in the laws that applies to Mr. Flack's case.

Thus, this court should remand Mr. Flack's case to the Sixth Circuit Court of

Appeal for consideration in light ot the new Supreme Court rule.

CONCLUSION

For the foregoing reasons set forth it is in the interest of justice to inval­

idate the appellate waivers in the guilty plea due to double jeopardy violations

remaining in the indictment and plea agreement, alone with counsel's ineffect­

ive assistance in the prior and present proceeding, sua-sponte.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

AuCrVS*T

10 ,2023