Petition for Writ of Certiorari — Valery LaTouche, Petitioner v. Harold D. Graham, Superintendent, Auburn Correctional Facility

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IN THE

SUPREME COURT OF THE UNITED STATES

Valery LaTouche

- PETITIONER

vs.

State of New York

- RESPONDENT(S)

ON PETITION FOR WRIT OF CERTIORARI TO

United States Court of Appeals For the Second Circuit

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

PETITION FOR WRIT OF CERTIORARI

Valery LaTouche

(Your Name)

354 Hunter Street

(Address)

Ossining, New York 10562

(City, State, Zip Code)

Not Available

(Phone Number)

QUESTION(S) PRESENTED

WHETHER, TO NEW YORK C.P.L 440.10(2)(C) STATUTES BEING

AMENDED PURSUANT RULE 60(b)(5)(6) RECONSIDERATION IS WARRANTED

AS TO THE LOWER COURT ERROR IN DENYING THE MOTION TO SUPPRESS

ALL OF PETITIONER’S STATEMENT, WHICH WERE INVOLUNTARY

RENDERED AND VIOLATED HIS FIFTH AMENDMENT PRIVILEGE AGAINST

SELF-INCRIMINATION.

WHETHER, THE REPRESENTATION TRIAL AND APPELLATE WAS

INEFFECTIVE FOR FAILING TO ARGUE THE PROPER LEGAL AUTHORITY AT

THE

SUPPRESSION

HEARING,

WHICH

RESULTED

IN

HIGHLY

INCRIMINATING EVIDENCE BEING ADMITTED IN PETITIONER JURY TRIAL

IN VIOLATION OF PETITIONER FOURTEENTH AMENDMENT RIGHT TO DUE

PROCESS

WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT

DENIED THE PETITIONER’S RULE 60(B) MOTION. A CHANGE IN NEW YORK

STATE STATUE C.P.L 440.10(2)(C) WHICH THE DISTRICT COURT INVOKE

DURING PETITIONER HABEAS PETITION, PROCEDURAL BARRING THE

ISSUE WHETHER PETITIONER CONFESSION: SHOULD HAVE BEEN

DISMISSED AS A RESULT OF HIM INVOKING HIS RIGHT TO REMAIN SILENT

WHETHER DISTRICT COURT ABUSED HIS DISCRETION UPON THE

“EXCEPTIONAL CIRCUMSTANCES EXISTING

TO GRANT PETITIONER

RELIEF ON THE GROUNDS RAISED IN HIS THIRD RULE 60(B) MOTION

PURSUANT TO THE TEST ISSUED IN SARGENT V COLUMBIA FOREST

PRODUCTS, INC 75 F;.3D 86 (2D CIR 1996),

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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: .

8

;

TABLE OF CONTENTS

OPINIONS BELOW

12

JURISDICTION

13

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

14

STATEMENT OF THE CASE

15

REASONS FOR GRANTING THE WRIT

18

CONCLUSION

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INDEX TO APPENDICES

APPENDIX A: United States Court of Appeal

APPENDIX B:

United States District Court

APPENDIX C:

Appellate Division Second Dept

APPENDIX D

New York State Court of Appeals

APPENDIX E

APPENDIX F

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TABLE OF AUTHORITIES CITED

CASES

Boyette v Lefevre, 246 F.3d 76, (2d Cir. 2001)

Buckv. Davis, 137 S. Ct. 759 (2017);

Coleman v. Thompson, 501 U.S. 722, 754 (1999)

Crawford v. Franklin Credit Management, Corp. 2013 WL 2951957 (S.D.N.Y. 2013),

Devino v Duncan, 215 F.Supp.2d 414 (S.D.N.Y.2O02)

Dickerson v United States, 530 U.S. 428, (2000),

Ferro, 63 N.Y. 2d 322 at 322; (1984)

Green V Scully, 850 F.894, 2d Cir

Green v. Scully, 850 F.2d 894,.(2d Cir. 1988),

Harman v. Pauley, 678 F. 2d 479, 481 (4th Cir. 1982)

Jones v. Barnes, 463 U.S. 745;

Kapprottv. United States, 335 U.S. 601, 614-15 (1949)

Marrero Pichardo v. Ashcroft,.374 F. 3d 46, 55 (2d Cir. 2004)

Martinez v Ryan, 132 S.Ct 130

Michigan v Mosley 423 U.S. 96, (1975),

Miranda v. Arizona, 384 U.S. 436.

Missouri v Seibert, 542 U.S. 69.0, 142 S.Ct 2601, (2004)

Myle v Felix, 545 U.S. 644, 650 (2005)

Old Republic Ins. Co. v. Pac. Fin. Servs. ofAm., Inc., 301 F.3d 54, 59 (2d Cir. 2002)

People v. Stulz, 2 N.Y.3d 277.

Rogers v Richmond, 365 U.S. 534, 81 S.Ct 735 (1961)

Sargent v Columbia Forest Products, Inc 75 F.3d 86 (2d Cir 1996),

Taylor v Lombard, 606 F.2d 371 (C.A. (N.Y.) 1979).

Tharpe v. Sellers, 138 S. Ct. 545 (2018);

Thompson v Keohane, 516 U.S. 99, (1995)

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

U.S. v. Alpine Land & Reservoir Co., 984 F. 2d 1049, 1049 (9th Cir. 1993).

10

r

United States v Romaszko, 253 F.3d 757, (2d Cir. 2001)

.Fives v. Bennett, 2022 WL 605236 (S.D.N.Y. 2022);

STATUTES AND RULES

28U.S.C 2254(d)(2),

28 U.S.C. 2254 (e)(1).

440.10

C.P.L. §440.10 (2)(c)

Fed. R. Civ. P. 60(b)

Federal R. Civ P. 60(c)(1).

Penal Law. 110.00/160.10[1]

Penal Law. 11.0.00/160.15[2]; .

Penal Law. 125.25[3]

Penal Law. 160.10[1], 160.15(4],

Penal Law. 265.02(4],

Penal Law. 265.03(2]

OTHER

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IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR A WRIT OF CERTORARI

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 Ar to

the petition and is

or

[ ] reported at______ _________________________________

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

^ is unpublished.

The opinion of the United States District court appears at Appendix 1b to

the petition and is

or,

[ ] reported at

[ ] has been designated for publication but is not yet repotted; 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

or,

[ ] reported at_____________

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

[ ] is unpublished.

The opinion of the

appears at AppendixQ'to the petition and is

court

'

or,

[ ] reported at

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

"j^| is unpublished.

12

JURISDICTION

For cases from federal courts:

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

was r?>™^4No petition for rehearing was timely filed in my case.

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

, and a copy of the

Appeals on the following date:_______________

order denying rehearing appears at Appendix 4l[ ] An extension of time to file the petition for a writ of certiorari was granted

(date)

(date) on

to and including__ ^___

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

(date) in

(date) on

to and including____

Application No.__A

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

13

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

'>

5th Amendment right to remain silent

6th Amendment right to counsel

14th Amendment right to due process

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STATEMENT OF THE CASE

The hearing, trial and sentencing minutes constitute both “unquestionable documentary

proof’ and it has been verified by the testimony of Detective Bookstein along with other law

enforcement official at the Huntley hearing that confession were secured by methods that

violated Mr. LaTouche’s rights under the Fifth and Fourteenth Amendment to the constitution of

the United States. He had also showed that he was denied the opportunity to make a free and

intelligent choice and that the questioning was pursed until there was admission. Mr. LaTouche

further demonstrated his vulnerability and supports that under the circumstances described by

Detective Bookstein at the Huntley hearing the statements was not voluntarily made and there

was no valid waiver and further he could not comprehends the situation and Miranda warnings

under the circumstances described.

The records do not support that the statements was voluntarily given and that Mr.

LaTouche waived his rights to counsel and to remain silent on this basis, Trial and appellate

counsel was 1 ineffective in failing to present the fact and argue the issues presented in this

petition and the suppression judge erred in not suppressing the statements, the Miranda decision

made clear, however, that a suspect is never presumed to know his or her rights (Miranda v

Arizona, 384 U.S. at 468, “The Fifth Amendment privilege is so fundamental to our system of

constitutional rule and the expedient of giving an adequate warnings as to the availability of the

privilege so simple, the court will not pause to inquire in individual cases whether the defendant

was aware of his rights without a warning being given,” there must be a reversal

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*

REASONS FOR GRANTING THE PETITION

As a matter of first impression the courts decision is inaccurate and misrepresent the

surrounding facts of petitioner’s confession which is entitled to presumption of correctness

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CONCLUSION

The petition for a writ of certiorari should be granted.

f

Respectful y submitted,

Date:

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