Petition for Writ of Certiorari — James Richards, Petitioner v. United States

Supreme Court briefNov 6, 2023

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OTCE O F TH EC L E R K

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES RICHARDS

— 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 EEGH-TLH CIRCUT

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

PETITION FOR WRIT OF CERTIORARI

JAMES RICHARDS

(REG# 26365-009)

(Your Name)

FCI Greenville

(Address)

PO Box 5000,

Greenville,

(City, State, Zip Code)

N/A

(Phone Number)

IL 62246

QUESTION(S) PRESENTED

I ask that this Court review the Petitioner's Trial Court Transcript

Record on April 21,

2021,

and all appeals.

Counsel Arkie Byrd was

so ineffective for failing to properly argue 6 preserve,

the testimonial video of a deceased witness,

matter,

but is barred under Crawford v.

50-51,

124 S.Ct.

1354,

158 L Ed 2d 177

and prevent

It was used in this

Wa shington,

541 US 36,

(2004).

Th e Crawford violation arose only at trial, and only after

District Court Judge James M. Moody J r. allowed the testimonial

video statement of the deceased witness Boyd.

During Trial, the

Defense Counsel Arkie Bryd made no objection or complaint on the

Trial Court Transcript Record of this Constitutional violation.

The admission of this video as evidence is a violation of my Sixth

Amendment Confrontation clause.

See attatched sheets in support of

Constitutional violations by Counsel Arkie Byrd and Judge James

Moody Jr.

The United States Court of Appeals for the Eighth Circut,

Case No.

21-3344,

Appendix A,

Order opinion filed June 14,2023,

page 15,

s'tates the Counsel Arkie Byrd was so ineffective in

their assistance,

that Counsel intentionally abandoned the Petitioner's

Confrontation Clause Right by not objecting to the admission of

videos and certain screenshots taken from videos

101,103,and 110)

of a deceased witness.

(R.

Doc 529 at 99,

LIST OF PARTIES

[•VfAll 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:

District Court Judge James M.

U.S.

Attorney Mr.

Chris Givens

U.S.

Attorney Ms.

Julie Peters

Moody Jr.

Defense Attorney Ms. Arkie Byrd

;

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

4,5,6

REASONS FOR GRANTING THE WRIT

7-27

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

APPENDIX B

APPENDIX C

U.S. Court of Appeals, Eighth Circut

Circut Case No. 21-3344, June 14, 2023

U.S. District Court, Eastern District of Arkansas

Case No. 4:18-CR-00357-02-JM

Ca s e No. 4:23-CV-00743-JM

August 15, 2023

U.S. Court of Appeals, Eighth Circut

Case No. 4:18-CR-00357-JM-C , September 18,

APPENDIX D

APPENDIX E

APPENDIX F

U.S. Court of Apoeals, Eighth Circut

Case No. 23-2969 , October 24, 2023

2023

TABLES OF AUTHORITIES CtTED

(i;

PAGES

CASES

U.S. v.

Joseph Shayota,

Crawford v.

Washington,

Tennessee v.

541 U.S. 36, 50-51, 124 S.Ct. 1354,

158 L Ed 2d 177 (2004) .............................

399 U.S. 149, 162, 90 S.Ct. 1930,

26 L Ed 2d 489 (1970).............................

Green,

U.S. v. James,

621 Fed Appx.

(4th Cir.)...

U.S. v.

728 F.

Da rqan,

U.S. v. Reed,

780 F.

Michigan v. Bryant,

3d 643,

Macomb,

State v.

Houser,

1 Tenn 229

26 F.

Evan,

White v.

King v.

Carnell v.

Mattox v.

1133

435-436

(1807))

(No.

15,702)

(CC11 1851) 13

(1858)

29 Tenn 479,

485-488

(1850)

22 Tenn 344,

345-346

(1842)

35 Mas 434,

20 SCL 607,

608-610

437

(1837)

(App 1835)

400 U.S. 74, 94, 27 L Ed 213,

91 S. Ct. 210 ( 1970).....................

502 US 346, 365, 116 L Ed 2d 848,

112 S. Ct. 736 ( 1992 ).............................

5 Mod 163,

Texas,

U.S. ,

708

(Super L Eg

Cas 1132,

26 Mo 431,

Illinois,

Paine,

(App L.

26 Va 701,

Commonwealth v. Richards,

Dutton v.

2015)

(1827)

U.S. v.

(4th Cir.

2013)

Atkins,

Hill

269

(4th Cir.

1844)

State v.

650

30 SCL 124

Commonwealth,

State,

11,18

Firm v.

Bostick v.

562 U.S. 344, 358, 131 S.Ct. 1143,

179 L Ed 2d 93 (2011) .............................

Campbell,

State,

9,10,11,12,19,

157 2015 US App LEXIS 14210

3d 280,

State v.

Kendrick v.

LEXIS 14570

471 U.S. 409, 414, 105 S.Ct. 2078,

85 L Ed 2d 425 (1985)............................

Street,

California v.

2016 US Dist.

87 Eng Rep 584

529 US 513, 526-530, 146 L Ed 2d 577,

120 S.Ct. 1620 (2000).......................................

156 US 237 ,

39 L Ed 409,

15 S.Ct.

337

( 1895 ). .16

TABLE OF AUTHORITES CITED

CASES

( cont. )

Williamsv.

Roger v.

Dunn,

746 F 2d 1288,

Israel,

981

Taylor

3 d et.

Steele

McGill v.

Shinn,

Owens v.

Stirling,

689 F.

3d 838,

16 F.

4th 666,

3d 636

847 F.

Hittson,

759 F.

3d et 1269-70

U.S. v.

424

(9th Cir 2021)

(4th Cir 2000)

U.S.,

502,

517

410 F.

(7th Cir 2017)

466 US 668, 104 S.Ct.

80 L Ed 2d 674 (1984)

3d 1025,

1027

3d 484,

488

21,24,25

(8th Cir 2000)

(8th Cir 2005)

596 F 3d 457,

461

(8th Cir 2010)

Wiggins v.

539 US 510, 522, 123 S. Ct. 2527,

156 L Ed 2d 471 (2003 )..................... .. .

Washington,

Schriro,

179 F.

3d 616,

620

(8th Cir 1999)

627 Fed Appx 366 [LEXIS page 4]

(5th/llth Cir 2015).............................

2d 319

[LEXIS page 19]

(9th Cir 1987)

Supp 847

[LEXIS page 27]

(4th Dist 1976)

843 F.

Alderman,

423 F.

Mayhall,

2014 US Dist. LEXIS 11397 [LEXIS page 11]

(8th Dist.).......................... ................................................

Thomas,

2052,

U.S.,

Carrillo-Gonzales,

Rodela Aguilar v.

Smith,

201 F.

Staples,

Boysiewick v.

3d 915

Strickland v. Washington,

Fields v.

(7th Cir 2012)

(1st Cir 2002)

Brown,

738 F.

848

698-99

967 F 3d 396,

Brown v.

Ward,

Taylor v.

313 F.

(7th Cir 1984)

5911

Mosley v. Atchison,

Ellis,

1294

210 US Dist LEXIS 140706

Carrier,

477 US 478

(1986)

Bousley,

523 US 614,

620-22

[LEXIS page 8]

(8th Dist)

(1998)

TABLE

CASES

OF AUTHORITIES CITED

( cont. )

Mancusi v.

Stubbs,

408 US 204, 213-216, 33 L Ed 2d 293,

92 S.Ct. 2308 ( 1972 ).......................................

Johnson v.

State,

10 Tenn 58,59

(Err App 1821)..

Pointer v.

Texas,

380 US 406-408, 13 L Ed 2d 923,

85 S.Ct. 1065 ............................................

Kirby v. U.S • /

Barber v.

390 US 719, 722-725, 20 L Ed 2d 255,

88 S.Ct. 1318 ( 1968 ).......................................

178 US 458, 470-471, 44 L Ed 1150,

20 S.Ct. 993 ( 1900).....................................

Page,

U.S.,

Motes v.

174 US 47, 55-61, 43 L Ed 890,

19 S.Ct. 547 (1899)..........................

Roberts v.

Bruton v.

Russell,

391 US 123, 126-128, 20 L Ed 2d 476,

88 S.Ct. 1620 (1968).......................................

U.S • /

Douglas v. Alabama,

Dutton v.

Evans,

U.S. v.

Smith,

U.S. v.

Halk,

392 US 293, 294-295, 20 L Ed 2d 1100,

88 S. Ct. 192 1 ( 1968).......................................

380 US 415, 418-420, 13 L Ed 2d 934,

85 S.Ct. 1074 (1965).......................................

400 US 87-89. 27 L Ed 2d 213,

91 S.Ct. 210 (Plurality Opinion)

591 F.

3d 974,

634 F3d 482,

490

Torrez,

925 F.

3d 391,

U.S. v.

Inadi,

475 US 387, 395, 89 L Ed 2d 390,

106 S.Ct. 1121 ( 1986 )..........................

394-395

U.S. v. James Kalbflesh,

Wiggins v.

Smith,

(2009)

(8th Cir 2019)

417 F. 3d 305, 2005 US App LEXIS 16581

(2nd Cir).........................................................................

Delaware v. Van Arsdall,

(8th Cir 2011)

129 S.Ct.

(8th Cir 2010)

Melendez-Diaz,

Greiber v. Wells,

2527

980

475 US 673, 106 S. Ct. 1431,

89 L Ed 2d 674 ( 1986 )................

621 Fed. Appx. 157,

2015 US App. LEXIS 14210

123 S.Ct.

2527

(2003)

(4th Cir)..

21,25

TABLE OF AUTHORITES CITED

CASES

(cont. )

Patton,

606 Fed Appx 924

[LEXIS page 7]

Bryant,

131

1155

S.Ct.

1143,

(2011)

Statutes

18 U.S.C.

2518

18 U.S.C.

3231

(1)

(C)

RULES

Fed R 59(e)

Fed R 60(b)

Fed R Evid 801(c)

Fed R Evid 804(B)(3)

Fed R Evid 804(b)(3)(B)

Fed R App.

P 4(B)(1)(A)(1)

OTHER

R.DOC 529,

at 99,

101,

103 and

110

(10th Cir 2015)

: 9

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

[\j/For cases from federal courts:

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

the petition and is

reported at Case No. 21-3344

; or,

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

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

Case No. 4-23-CV-00743-JM

the petition and is

[A^reported at Case No. 4 : 18-CR-00357-JM-02

; or,

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

[ ] is unpublished.

[ ] For casbs from state courts:

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

Appendix n/a to the petition and is

N/A

; or,

[ ] reported at

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

[ ] is unpublished.

N/A

The opinion of the

appears at Appendix-- n/a to The petition-and is—

N/A

; or,

[ ] reported at

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

[ ] is unpublished.

court

JURISDICTION

[ £ For cases from federal courts:

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

was June 14,i 2023 Append ix A

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

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

September 18, 2023

and a copy of the

Appeals on the following date: --------order denying rehearing appears at Appendix----------

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

N/A

(date

(date) on

to and including--------N/A

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 n./a----

N/A

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

and a copy of the order denying rehearing

__________ n/a______

n/a

appears at Appendix

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

N/A

(date)in

(date) on

to and including------ N/A N/A

Application No. —A

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

CONSTITUTIONAL

Sixth Amendment of the Constitution

Fourth Amendment of the Constitution

STATUTORY PROVISIONS

Crawford v. Washington,

Thomas/ 2010 U.S.

541 U.S. 96 50-51 ,

Ed 2d 177 (2004)

Dist LEXIS 140706

Carrter,

477 U.S.

478

(1986)

Bousley,

523 U.S.

614,

620-22

Washington,

843 F.

Alderman,

423 F.

28 U.S.C.

§2255

2d 319

Sudd.

847

124 S.Ct.

[Lexis page 8]

1354,

(8th Dist)

(1998)

[Lexis page 19]

(9th Cir 1987)

[Lexis Dage 7]

(4th Dist 1976)

158,L

STATEMENT OF THE CASE

On April 7,

2021,

the Grand Jury for the Eastern District of

Arkansas returned a second superceding indictment charging Richards

with Conspiracy to Distribute and Possess with Intent to Distribute

five kilograms or more of cocaine.

and alleging that Richards was

responsible for twenty-eight grams or more of cocaine.

In addition,

Richards was charged individually with one count of Distribution of

five hundred grams or less of a mixture or substance containing a

detectable amount of cocaine

(count 2),

and five counts of use of

a communication facility to facilitate a conspiracy to possess with

intent to distribute a controlled substance

(count 3-7).

Factual Procedural Background

Novembe r 19,

2019,

pre-trial motions:

surveillance,

Petitioner's Counsel filed the following

Motion to Rucuse,

Motion for Severance,

Motion to Suppress video

Motion to Dismiss Indictment,

Motion to Suppress wiretap recording.

The Court for the Eastern

District of Arkansas denied all pre-trial motions.

Nature of the case

On April 21,

charges.

2021,

jury found the Petitioner guilty of all

Counts 1-7

Decision Appealed

Petitioner appeals the Judgement of Conviction and Sentence

- entered against “him on October 7,

Arkansas Case No.

4 : 18-003 57-02-JM

2021

in the Eastern D'i s t r ic t o f

(

STATEMENT OF THE CASE

Decision Appealed

Petitioner's Counsel filed a timely notice of Appeal in the

Court of Appeals for the Eighth Circuit on October 18,2021,

Case No.

21-3344,

from the Judgement formally entered Oct 7 ,

2021 .

Decision Appealed

The U.S.

Court of Appeals for the Eighth Circuit denied the

Petitioner's Direct Appeal on June 14,

2023 .

Appendix A

Decision Appealed

The U.S.

Court of Appeals

Petitioner's Rehearing on

for the Eighth Circuit denied the

September 18th,

2023. Appendix C

Decision Appealed

The U.S.

District Court,

Eastern District of Arkansas denied

the Petitioner's motion under 28 U.S.C.

§2255 on August 15,2023.

Appendix B

Decision Appealed

The U.S.

Court of Appeals for the Eighth Circuit denied the

Petitioner's motion under 28 U.S.C.

Appendix D

§2255 on October 24,

2023.

STATEMENT OF THE CASE

Trial

On April

21,

2021,

Petitioner preceeded to jury trial.

Defense

Counse1 Arkie Byrd failed to object to the admission of the videos

after questioning from the District Court,

Counsel expressly stated

that Richards had no objection to admitting both the videos and

c e rtain screenshots taken from the video

and 110).

Thus,

509 at 99,101,103,

this claim was no inadvertently left unassented.

it was intentionally abandoned.

Counsel, not the Petitioner,

This

is and Appeal admission that

abandoned the Crawford issue of the

Sixth Amendment Confrontation Clause.

However,

Confrontation issue was not raised prior,

Counsel.

(R.Doc.

the Crawford

or even during Trial by

While Counsel did in fact raise a Fourth Amendment privacy

argument about the video.

Counsel could not in her Suppression

hearing have legally challenged a Crawford violation.

Decedant was not dead at the time,

The

and 2) A Crawford violation only

occurs at Trial when the District Court Judge James M.

Moody Jr.

Permitted testimonial evidence from a deceased party may be allowed

if the party was

was not.

(B)

(A)

once cross examined orior to trial,

and Boyd

If the party's demise was caused by some act on the

Petitioner's part to prevent the testimony and cross-examination.

This Petitioner did not cause the demise of the witness Boyd.

REASONS FOR GRANTING THE PETITION

2021,

On April 21,

at jury trial of the Petitioner,

the Defense

Counsel Arkie Byrd should have prevented the illegal use of the

deceased witness Boyd's testimony at all costs.

necessary.

the use of an Inter1ocotory Appeal,

trial Dending the outcome.

Moody Jr.

(124

S.Ct.

to include,

thus barring the

The fact that Trial Court Judge James

permitted a Constitutional abuse under Crawford

1354

(2004))

this Petitioner,

is a clear Constitutional violation to

one that cannot be defended by law.

The District

The two U.S. Attorneys,

Julie Petters

Court Judge Moody knew this.

and Chris Givens knew this,

and Defense Counsel Arkie Byrd knew

that this could not be allowed,

make an objection at trial,

yet the Defense Counsel did not

or even make a Motion for the Crawford

Sikth Amendment Constitutional violation.

The Framers

[of the US Constitution] would not have allowed

admission of a Testimonial Statement of a deceased witness who did

not aopear at trial unless he was unavailable to testify.

and the

Defendant had a prior opportunity for cross-examination.

The

Petitioner never had prior opportunity to cross examination of the

witness Boyd due to his demise.

h e wa s

The District Court Judge knew that

in error for allowing the admission of the video testimony

of a deceased witness to enter his court, which violated the

Petitioner 1s

Sixth Amendment right under the Confrontation clause.

and the Petitioner's Fourth Amendment right to Due Process.

Defense

Counsel Arkie Byrd not making an objection to this admission was

also a clear Constitutional violation.

REASONS FOR GRANTING THE PETITION

The Supreme Court of the United States has held under Crawford

the Petitioner's petition should be granted,

and should overturn

the Conviction and Sentence due to this Constitutional violation

that was done by the District Court Judge,

and Counsel Arkie Byrd.

This video testimonial was used to prove the Government's case of

drug sales.

and the veracity of the Supervising Officer's own

testimony to the same events.

Whichever way it was presented,

was to establish the truth in this matter.

the Petitioner.

and was used to convict

The illegal use of this video evidence,

and the

grossly ineffective assistence from the Defense Counsel is the

compelling reason the petition should be granted before this Court.

Under Ellis, 313 F.3d 636 (1st Cir. 2002); "The manifest injustice standard is

difficult to acheive: a finding of manifest injustice requires a definite and firm

conviction that a prior ruling on a material matter is unreasonable or obviously wrong."

Patton, 606 Fed. Appx. 924 [LEXIS PAge 7](10th Cir. 2015); "The Sixth Amendment's

Confrontation Clause bars admission of a testimonial heresay statement when a witness is

unavailable to testify at Trial, [Boyd had passed away prior to Trial], and the defendant

had no prior opportunity to cross-examine the witness, [There was no cross-examination

of Boyd at the Suppression Hearing, while Boyd was available and alive, no one knew of

Boyd's untimely demise, thus no opportunity to petition the Court was possible prior to

the untimely death of Boyd, Boyd could not be cross-examined prior to Trial]. Crawford,

541 US 36, 53-54 (2004). A heresay statement is testimonial if made with a 'primary

purpose of creating an out-of-court substitute for Trial testimony. Bryant, 131 S.Ct.

1143, 1155(2011). Crawford, 541 US 53-54 states; "The historical record also supports a

second proposition:

That the Framers, [of the United States Constitution],

would not have allowed admission of testimonial statements

of a witness who did not appear at Trial...

unless he was unavailable to testify,

and the defendant had a prior opportunity

for cross-examination.'

Therefore, Judge Moody caused the Crawford violation, which only applies at Trials, thus

could not legally have been challenged prior to its admission at Trial, as the Judge so

claimed the Suppression Hearing did, for how could the unavailability of Boyd have been

known at the Suppression Hearing, when he was still alive at the time to have raised any

complaint of the impossibility of cross-examination months later ? No, Crawford's

violation arose only at Trial and only after the Judge Moody allowed the testimonial

video statement of deceased witness Boyd, and during Trial, the Defense Counsel raised

no complaint on the Record Transcript of Judge Moody's Constitutional Violation, for

which act that Defense Counsel is plainly ineffective assisatnce for. Yet another reason

that Judge Moody cannot preside over this §2255 Remand Petitioner is entitled to, the

Judge abused Petitioner's Constitutional rights, firmly established by law, and created

a manifest injustice, thus prejudiced the Petitioner's Trial Rights. Delo, 160 F.3d 416

[LEXIS Page 9[(8th Cir. 1998); "Manifest injustice is the plain error standard under

Federal Law..." Carrillo-Gonzales, 627 Fed. Appx. 366 [LEXIS Page 4](5th / 11th Cir. 2015)

"To succeed on plain-error review, [Petitioner must show:

1) A forfeited error:

Petitioner's counsel failed to raise at Trial, the Crawford violation, post-Trial,

and on Direct Appeal properly.

That it was clear or obvious;

The fact that all Attorney's present, and that includes Judge Moody, had knowledge

that allowance of testimony is any form, from an unavailable witness that has not

been, on a prior occassion, cross-examined is forbidden under Crawford is a clear

and obvious error of law.

It affected substantial rights;

Crawford never permits, it is not a discretionary function, it"never permits the

use of testimonial evidence if the witness is unavaiable for Trial'and there has

been no opportunity for prior cross-examination of that witness. THERE ARE NO

EXCEPTIONS TO THAT RULE.

Washington, 843 F.2d 319 [LEXIS Page 19[(9th Cir. 1987)(theSudge has a duty to protect

____

the defendant's rights to a fair trial). Alderman, 423 F.Supp. 847~[LEXIS Page 27](4th

Dist. 1976)(a Judge's duty to safeguard a defendant's due process rights). Thus Judge

Moody was fully aware that he failed in a Judge's duty to protect the Petitioner's

Sixth Amendment right under Crawford to never have a testimonial by an absent witness

whom was not previously cross-examined. The basis of the reasoning is that absent any

opportunity for cross-examination, the witness cannot be impeached, the testimony cannot

be questioned as to accuracy, and the jury is usurped from its province of determination

of the credibility of the witness and the statement made. Mayhall, 2014 US Dist. LEXIS

11397 [LEXIS Page ll](8th Dist.)"Credibility determinations, the weighing of evidence

and the drawing of legitimate inferences from the facts are Jury functions, not those of

a-Judge. A Court may not invade the province of the Jury." Therefore, the Judge's

that he feels towards the

Opinion comment of the 'overwhelming evidence of guilt

Petitioner is a sign of his personal bias, since the Judge cannot determine that, but for

the removal of the video eviddrice given as testimony by Boud, that the Jury could not

have adjudicated otherwise, i.e., found Petitioner not guilty. The Judge's personal

beliefs of the Petitioner's guilt or innocence are in opposition to the task of being

an unbiased party, and outside of Judicial functions.

Again, Thomas, 2010 US Dist. LEXIS 140706 [LEXIS Page 8](8th Dist.)(stating how even

is a defendant cannot establish 'cause and prejudice' he may still be entitled to relief

under §2255, if there is Constitutional error which would have resulted in a complete

miscarriage of justice. Carrier, 477 US 478 (1986); Bousley, 523 US 614, 620-22 (1998)."

Crawford is evidence of a complete miscarriage of justice, and by its own Supreme Court

Opinion, states, unequivically, that a non-appearing witness testimonial may not be used

absent the prior cross-examination opportunity, and Petitioner never, had that with Boyd.

Since the wiping -out of Boyd's testimony would require a new Jury to determine the

remainder of the evidence, weighing the credibility, or lack thereof, of the witnesses

who appear to testify, and making any inferences they determine as factual, as is the

sole province of he Jury, and not a Judge, as Judge Moody openly stated in the Opinion

his personal feeling, not the legal ones. There is personal bias displayed and a

Counsel was ineffective for failing to properly argue, preserve and prevent

the testimonial video of a deceased witness, used for the truth of the matter

and thus is barred under Crawford v. Washington.

United States v. Joseph Shayota, 2016 US Dist. LEXIS 145720 (9th Dist.);

The Confrontation Clause applies to all "testimonial" statements. Crawford v. Washington, 541 U.S.

36, 50-51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). "Testimony ... is typically a solemn

declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 51

(citations and quotation marks omitted). The Confrontation Clause applies not only to in-court

testimony but also to out-of-court statements introduced at trial to prove the truth of the matter

asserted, i.e., "testimonial hearsay," regardless of the admissibility of the statements under state

laws of evidence. Id. at 50-51; Tennessee v. Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 85 L. Ed. 2d

425 (1985) ("The nonhearsay aspect of [the] confession . .. raises no Confrontation Clause

concerns."). Out-of-court statements by witnesses that are testimonial hearsay are barred under the

Confrontation Clause unless: (1) the witnesses are unavailable, and (2) Defendants had a prior

opportunity to cross-examine the witnesses. Id. at 59. However, case law is clear that "when the

declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all

on the use of his prior testimonial statements." Id. at 59 n.9 (citing California v. Green, 399 U.S. 149,

162, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970)).

)

United States v. James Kalbflesh, 621 Fed. Appx. 157; 2015 US App. LEXIS 14210 (4th Cir.);

The Confrontation Clause of the Sixth Amendment "bars the admission of 'testimonial statements of

a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had

a prior opportunity for cross-examination."' United States v. Daraan, 738 F.3d 643, 650 (4th Cir.

2013) (quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004)). "Evidence implicates the Confrontation Clause only if it constitutes a testimonial statement that is, a statement made with 'a primary purpose of creating an out-of-court substitute for trial

testimony.'" United States v. Reed, 780 F.3d 260, 269 (4th Cir. 2015) (quoting Michigan v. Bryant.

562 U.S. 344, 358, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011)). "If a statement's primary purpose is

not to create a record for trial, then the Confrontation Clause does not apply." Jd. (citation and

internal quotation marks omitted).

Witness Boyd, whom was deceased prior to trial, was never cross examined, thus his

'Testimony' albeit in the form of a video of a 'controlled buy' could not be used as

evidence that clearly lead to the truth of the claim that the buy itself took place as

the officers testified at Trial to. The Counsel should have prevented this illegal use

of that deceased-witness 'testimony' at all costs, to include, if necessary the use of

an Interlocatory Appeal., thus barring the Trial pending the outcome. The fact that the

Trial judge permitted an abuse under Crawford, 124 S.Ct. 1354 (2004) demonstrates a

bias favoring the Prosecution, not the unbiased protection of the rights of the accused

by abuse by Government.

Crawford v.

Washington, 124 S.Ct. 1354 (2004);

Paine had settled the rule requiring a prior opportunity for cross-examination as a matter of

common law, but some doubts remained over whether the Marian statutes prescribed an

exception to it in felony cases. The statutes did not identify the circumstances under which

examinations were admissible, see 1 & 2 Phil. & M., c. 13 (1554); 2 & 3 id., c. 10 (1555), and

some inferred that no prior opportunity for cross-examination was required. See Westbeer, supra,

at 12, 168 Eng. Rep., at 109; compare Fenwick's Case, 13 How St. Tr., at 596 (Sloane), with id.,

at 602 (Musgrave). Many who expressed this view acknowledged that it meant the statutes were

in derogation of the common law. See King v Eriswell, 3 T. R. 707, 710, 100 Eng. Rep. 815, 817

(K. B. 1790) (Grose, J.) (dicta); id., at 722-723, 100 Eng. <*pg. 190> Rep., at 823-824 (Kenyon,

C. J.) (same); compare 1 Gilbert, Evidence, at 215 (admissible only "by Force 'of the Statute'"),

with id., at 65. Nevertheless, by 1791 (the year the Sixth Amendment was ratified), courts were

applying the cross-examination rule even to examinations by justices of the peace in felony cases.

See King v Dingier, 2 Leach 561, 562-563, 168 Eng. Rep. 383, 383-384 (1791); King v

Woodcock, 1 Leach 500, 502-504, 168 Eng. Rep. 352, 353 (1789);

[541 US 47]

cf. King v Radboume, 1 Leach 457, 459-461, 168 Eng. Rep. 330, 331-332 (1787); 3

Wigmore § 1364, at 23. Early 19th-century treatises confirm that requirement. See 1 T. Starkie,

Evidence 95 (1826); 2 id., at 484-492; T. Peake, Evidence 63-64 (3d ed. 1808). When

Parliament amended the statutes in 1848 to make the requirement explicit, see 11 & 12 Viet., c.

42, § 17, the change merely "introduced in terms" what was already afforded the defendant "by

the equitable construction of the law." Queen v Beeston, 29 Eng. L. & Eq. R. 527, 529 (Ct.

Crim. App. 1854) (Jervis, C. J.).2

Controversial examination practices were also used in the Colonies. Early in the 18th century,

for example, the Virginia Council protested against the Governor for having "privately issued

several commissions to examine witnesses against partipular men ex parte," complaining that "the

person accused is not admitted to be confronted with, or defend himself against his defamers." A

Memorial Concerning the Maladministrations of His Excellency Francis Nicholson, reprinted in 9

English Historical Documents 253, 257 (D. Douglas ed. 1955). A decade before the Revolution,

England gave jurisdiction over Stamp Act offenses to the admiralty courts, which followed

civil-law rather than common-law

[541 US 48]

procedures and thus routinely took testimony by deposition or private judicial examination.

court held: "[I]t is a rule of the common law, founded on .natural justice, that no man shall be

prejudiced by evidence which he had not the liberty to cross examine." Id., at 104.

Similarly, in State v Campbell, 30 SCL 124 (App L 1844), South Carolina's highest law court

excluded a deposition taken by a coroner in the absence of the accused. It held: "[I]f we are to

decide the question by the established rules of the common law, there could not be a dissenting

voice.. For, notwithstanding the death of the witness, and whatever the respectability of the court

taking the depositions, the solemnity of the occasion and the weight of the testimony, such

depositions are ex parte, and, therefore, utterly incompetent." Id., at 125. The court said that

one of the "indispensable conditions" implicitly guaranteed by the State Constitution was that

"prosecutions be carried on

[541 US 50]

to the conviction of the accused, by witnesses confronted by him, and subjected to his

personal examination." Ibid.

Many other decisions are to the <*pg. 192> same effect. Some early cases went so far as to

hold that prior testimony was inadmissible in criminal cases even if the accused had a previous

opportunity to cross-examine. See Finn v Commonwealth, 26 Va 701, 708 (1827); State v

Atkins, 1 Term 229 (Super. L. & Eq. 1807) (per curiam). Most courts rejected that view, but

only after reaffirming that admissibility depended on a prior opportunity for cross-examination.

See United States v Macomb, 26 F Cas 1132, 1133 (No. 15,702) (CC Ill 1851); State v Houser,

26 Mo 431, 435-436 (1858); Kendrick v State, 29 Term 479, 485-488 (1850); Bostick v State, 22

Term 344, 345-346 (1842); Commonwealth v Richards, 35 Mass 434, 437 (1837); State v Hill, 20

SCL 607, 608-610 (App 1835); Johnston v State, 10 Term 58, 59 (Err. & App. 1821).

Nineteenth-century treatises confirm the rule. See 1 J. Bishop, Criminal Procedure § 1093, p 689

(2d ed. 1872); T. Cooley, Constitutional Limitations *318.

[3a] [4a] This history supports two inferences about the meaning of the Sixth Amendment.

[3b][5a] First, the principal evil at which the Confrontation Clause was directed was the

civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence

against the accused. It was these practices that the Crown deployed in notorious treason cases

like Raleigh's; that the Marian statutes invited; that English law's assertion of a right to

confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth

[4e] Our case law has been largely consistent with these two principles. Our leading early

decision, for example, involved a deceased witness's prior trial testimony. Mattox v United

States, 156 US 237, 39 L Ed 409, 15 S Ct 337 (1895). In allowing the statement to be admitted,

; we relied on the. fact that the defendant had had, at the first trial, an adequate opportunity to

confront the witness: "The substance of the constitutional protection is preserved to the prisoner

in the advantage he has once had of seeing the witness face to face, and of subjecting him to the

ordeal of a cross-examination. This, the law says, he shall under no circumstances be deprived of

.. . ." Id., at 244, 39 L Ed 409, 15 S Ct 337.

Our later cases conform to Mattox's holding that prior trial or preliminary hearing testimony is

admissible only if the defendant had an adequate opportunity to cross-examine. See Mancusi v

Stubbs, 408 US 204, 213-216, 33 L Ed 2d 293, 92 S Ct 2308 (1972); California v Green, 399 US

149, 165-168, 26 L Ed 2d 489, 90 S Ct 1930 (1970); Pointer v Texas, 380 US, at 406-408, 13 L

Ed 2d 923, 85 S Ct 1065; cf. Kirby v United States, 174 US 47, 55-61, 43 L Ed 890, 19 S Ct 574

(1899). Even where the defendant had such an opportunity, we excluded the testimony where the

government had not established unavailability of the witness. See Barber v Page, 390 US 719,

722-725, 20 L Ed 2d 255, 88 S Ct 1318 (1968); cf. Motes v United States, 178 US 458, 470-471,

44 L Ed 1150, 20 S Ct 993 (1900). We similarly excluded accomplice confessions where the

defendant had no opportunity to cross-examine. See Roberts v Russell, 392 US 293, 294-295, 20

L Ed 2d 1100, 88 S Ct 1921 (1968) (per curiam); Bruton v United States, 391 US 123, 126-128,

20 L Ed 2d 476, 88 S Ct 1620 (1968); Douglas v Alabama, 380 US 415, 418-420, 13 L Ed 2d

934, 85 S Ct 1074 (1965). In contrast, we considered reliability factors beyond prior opportunity

for cross-examination when the hearsay statement at issue was not testimonial. See Dutton vt

Evans, 400 US, at 87-89, 27 L Ed 2d 213, 91 S Ct 210 (plurality opinion).

United States v. Delgrosso, 852 F.3d 821; 2017 US App. LEXIS 5567 (8th Cir.);

A defendant must satisfy five requirements to justify a new trial on this basis:

(1) the evidence must have been discovered after trial; (2) the failure to discover this evidence

must not be attributable to a lack of due diligence on the part of the movant; (3) the evidence

must not be merely cumulative or impeaching; (4) the evidence must be material; and (5) the

evidence must be likely to produce an acquittal if a new trial is granted.Id. Here, Delgrosso and

Cain fail to satisfy the fifth requirement because Wright's affidavit would not "be likely to produce

an acquittal if a new trial is granted." See id.

First, the affidavit itself likely would be inadmissible at a new trial. An affidavit offered in lieu of

in-court testimony, if offered for the truth of the matter asserted in the affidavit, is hearsay

evidence. See Fed. R. Evid. 801(c). "Hearsay is inadmissible unless it falls within an established

exception." United States v. Smith, 591 F.3d 974, 980 (8th Cir. 2010). Delgrosso contends that

Federal Rule of Evidence 804(b)(3) would provide such{2017 U.S. App. LEXIS 8} an exception

because the affidavit is a statement against interest insofar as it may expose Wright to new criminal

charges. However, even if so, given Wright's criminal record, it is far from clear that the district court

would admit the affidavit under Rule 804(b)(3), which requires that the evidence be "supported by

corroborating circumstances that clearly indicate its trustworthiness." See Fed. R. Evid. 804(b)(3)(B);

United States v. Halk, 634 F.3d 482, 490 (8th Cir. 2011) (considering "the general character of the

speaker" in determining the trustworthiness of a hearsay statement against interest (citation

omitted)).

In one example of the only exception to the bar to use deceased witness testimony-at Trial when they have not had prior opportunity to cross-examine, is the one wherein

the defendant has caused the reason for the non-appearance of the witness, i.e. caused

the death itself, thus creating the situation wherein the witness could not have been

cross-examined. Absent this situation, there is no exception to allow the testimony of

a deceased party, when no prior opportunity to cross-examine that witness existed. The

defendant did not cause the death of witness Boyd, could not have forseen the death of

witness Boyd, and therefore could not have arranged a prior opportunity to cross-examine

Boyd. This being the facts, the counsel should have, in no way permitted the testimony

of Boyd to enter the Court's record. There was no method of cross-examination, the

testimony of the officer whom sent Boyd to obtain the video is insufficient, since the

officer can not be cross-examined to give responses meant personally for Boyd. This

was upheld in the matter of Melendez-Diaz, as seen in Torrez, 925 F.3d 391, 394-95 (8th

Cir. 2019); "U.S. Constitutional Amendment IV. The 'witnesses' in this right, [the

Confrontation Clause], are any person who bears testimony against a defendant. MelendezDiaz, 129 S.Ct. 2527 (2009). Where a drug analysis report is offered at Trial, the

defendant has a right to confront the analyst who wrote the report." In our matter, this

relates; as in Melendez-Diaz itself, where a supervisor had testified at Trial to the

contents of a Report that he himself had no active part in creation of. In our case,

the supervising officer is no different than the Lab Supervisor was in Melendez-Diaz, he

himself is not the one that created the 'evidence' and 'testimnoy' in the video used

at Trial, Boyd was. The officer was merely a Supervisor. This then qualifies as reason

to bar the video from Trial.

As this video 'testimonial evidence' was, at a minimum half of the Government's

evidence in the case, and clearly material testimony in a claim of two 'controlled buys'

by Government, and associated with the Wire-tap issue of why the Government did not

respond to the proof of exhaustion requirement prior to issuance of the wiretap warrant,

[there is a requirement that Government prove, under 18 U.S.C. §2518, prior to issuance

of a wiretap warrant that;

18 U.S.C. §2518(1)(c);

"A full and complete statement as to whether or not other investigative procedures

have been tried and failed or why they reasonably appear to be unlikely to

succeed if tried or _to be too dangerous;"].

Since the bulk of the remainder of the Government's case-in-chief depended upon the

wiretaps that were obtained as a result of the deceased witness Boyd's testimonial

video evidence, then they remain interrelated for the issue that;

There is no statement that can claim that other methods...i.e, the continuation of

the twice-proven effective 'controlled buys' of the Government, beacuse it did not fail.

Therefore, the Government's use of the Crawford-banned testimonial is key to the

Government's case, and would clearly have altered the outcome, since it would have banned

the Video testimonial of Boyd, and cancelled the use of the wiretaps, which the Government

should not have obtained, and should not have used as evidence, but for the incompetence

of counsel whom did not issue one Interlocatory Appeal to prevent their going forward

and using the tainted evidence for Trial. There is a fair probability that absent both

the Boyd testimony and the wiretaps that the Petitioner would have been acquitted if.

- trial were even: necessary. Petitioner says even if necessary, since has the counsel

done their job, at the suppression hearing, or the subsequent Interlocatory Appeal, that

evidence would have been stricken, and the Trial for Petitioner would not even have

taken place with the lack of usable evidence. And the Government knew so, which is why

they avaoided all references to the 18 U.S.C. §2518 wiretap claims on Direct Appeal.

Had the counsel not been so ineffecient, and twice, once by the Government at the February

6th, 2020 Suppression Hearing; Where Government argued that Petitioner's Counsel was

using the improper statute for the wiretap claim; and at Appeal, where the counsel had

'waffled' in the Original Brief, claiming Petitioner stated it was not him on the

wiretaps, then claiming that it was him, and that he had standing for complaint in their

usage. What competent counsel cannot keep a story straight, places a new argument on

the Reply Brief not in the Original Brief, [to which the Appeal decision made a direct

reference, thus also found counsel ineffective], and never once Motioned to Compel the

Gpvernment for the documents required under 18 U.S.C. §2518(l)(c)??

Finally, we reiterate that, when the declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See

California v Green, 399 US 149, 162, 26 L Ed 2d 489, 90 S Ct 1930 (1970). It is therefore irrelevant that

the reliability of some out-of-court statements "’cannot be replicated, even if the declarant testifies to the

same matters in court.”' Post, at 74, 158 L Ed 2d, at 206-207 (quoting United States v Inadi, 475 US

387, 395, 89 L Ed 2d 390, 106 S Ct 1121 (1986)). The Clause does not bar admission of a statement so

long as the declarant is present at trial to defend or explain it. (The Clause also does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter asserted. See

Tennessee v Street, 471 US 409, 414, 85 L Ed 2d 425, 105 S Ct 2078 (1985).)

Government may not claim that deceased witness Boyd's video was anything other

that 'to prove the truth of the matter, since it was used to prove the truth of the

Government s case of drug sales, and as veracity of the Supervising Officer s own

testimony to the same events. Whichever way it was presented, it was to establish the

'truth of the matter, and to convict Petitioner of the drug sale in that video itself.

Greiber v. Wells, 417 F.3d 305; 2005 US App. LEXIS 16581 (2nd Cir.);

Specifically, it does not fit into the Federal Rule of Evidence Rule 804(b)(1) exception for admission

of the former testimony of an unavailable witness because Lafazan, now deceased, was never

subject to cross-examination. See Fed. R. Evid. 804(b)(1){2005 U.S. App. LEXIS 56} . Second,

Simons's purported statement to Lafazan is hearsay as well and not subject to the Rule 804(b)(3)

exception for statements against {417 F.3d 326} interest because, at the time of the district court's

evidentiary hearing, Simons was clearly available to testify - he did testify. See Fed. R. Evid. 804(a)

(defining unavailability). Wells relies almost entirely, therefore, on Simons's inability to remember his

reasons for conducting the trial in the manner that he did. This is insufficient evidence to overcome

the presumption of constitutionally effective counsel sustained by the record justification for Simons's

actions. 28

{2005 U.S. App. LEXIS 57} Time inevitably fogs the memory of busy attorneys. That inevitability

does not reverse the Strickland presumption of effective performance. Without evidence establishing

that counsel's strategy arose from the vagaries of "ignorance, inattention or ineptitude," Cox, 387

F.3d at 201, Strickland's strong presumption must stand. Wells has not shown that his lawyer's

performance was deficient; the district court erred by granting Wells's petition.

United States Supreme Court has held, "Testimonial statements of witnesses absent from trial have

been admitted only where the declarant is unavailable, and only where the defendant has had a prior

opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed.

2d 177 (2004). Because he was dead, Mr. Cooper was unavailable for trial.

STANDARD OF REVIEW:

But for the purposes of habeas review, we assess the prejudicial impact of constitutional trial errors

under the "substantial and injurious effect" standard set forth in Brecht, examining the error by

applying the factors announced in Delaware v. Van Arsdall to the facts in the case. 475 U.S. 673,

106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). These include: (1) the importance of the witness's

testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or

absence of evidence corroborating or contradicting the testimony of the witness on material points;

(4) the extent of cross-examination otherwise permitted, and ... (5) the overall strength of the

prosecution's case. Id. at 684. The district court properly considered these factors in finding that the

state court's harmless error analysis was reasonable.

Using this Standard, we have:

(1) the importance of the witness's testimony in the prosecutions' case;

As discussed, Boyd's testimonial video was half of the Government 'controlled

buy evidence, and key to the controversy over the absent requirements of 18

U.S.C. §2518(l)(c), there being no evidence that more controlled buys were to

be either unproductive or too dangerous to continue, thus would have resulted,

with proper counsel rebuttals and if required, Interlocatory Appeals to prevent

illegal introduction of evidence and testimonials at Trial against its' client.

(2) whether the testimony was culmative;

This refers to whether there w^s* mote than ample other supportive testimonials

and evidence other that the related wiretaps to convict the Petitioner upon,

i.e., overwhleming evidence against the Petitioner, There was not, in fact,

other evidence than the at best, first 'controlled buy.' There would have been

no Trial if competent counsel had managed the Suppression Hearing, and if it

• 'failed in District, Motioned an Interlocatory Appeal to deny usage at Trial.

.*■

(3) the presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points;

Boyd's testimonial was only corroborated by the Supervisors' heresay testimony,

thus legally has the identical impact that Melendez-Diaz did it is barred. Absent

that testimony, there is no other corroboration, since Boyd's "controlled buy"

video testimony was never followed by any additional "controlled buys," which

held no reason to believe they would not be successful, nor any evidence that

they were any more dangerous than Boyd's last video "controlled buy" was. Thus,

there was no outside corroboration for Boyd's absent video testimonial.

(4) the extent of cross-examination otherwise permitted;

There was a challenge made to the use of Boyd's testimonial video on March 22nd,

2021, but the Petitioner informed to Attorney to File a Motion, wherein the Judge

Ordered the counsel to "File something in writing," which counsel refused to do.

There was no other opportunity for cross-examination of Boyd on the topic at all.

(5) the overall strength of the prosecution's case;

Admitting to the true facts of the matter, the reason that Prosecution would not

sever the Trial was that the Petitioner's Co-Defendant's guilt was overwhelming,

and the Prosecution used that guilt evidence to influence the jury to continue,

and find Petitioner guilty on the bare-bones facts that were based upon the

unusable Boyd's video testimonial and the wiretap evidence that counsel failed,

notable by Prosecution's own statement of the "Use of the quote to the wrong

Statute by the Defense Counsel," thus making a Court Record of the ineffectiveness,

and lack of legal investigations done by the Petitioner's counsel. It was

completely ineffective, and even Appeal Opinion stated that Counsel had not even

obeyed one of the longest standing rules in Appeals; F.T.C., 454 F.2d 1083, 1093

(8th Cir. 1972). See also: Fed. R. App. P. §28(a). "Appellants generally must

raise and Brief all issues in their Opening Brief." Counsel thus was fully aware

that their Reply Brief was in direct violation of the Federal Rules of Appellate

Procedures, a fact any compentent counsel would have known and obeyed, thus the

Petitioner s counsel purposely submitted a Reply Brief they knew would be then

disallowed.

The end result is that the Prosecution's case was admittedly weak for this

Petitioner, or; (1) Prosecution would not have disobeyed the wiretap 18 U.S.C.

§2518 requirement that they prove that they had to have the wiretap, as the

attempt of ahy third "controlled buy" would have been ineffective or prove to

be too dangerous, and they did not do so, because they cannot prove that true;

(2) Prosecution was -fully aware that under the Crawford/Melendez-Diaz rules for

testimonials, which clearly the Boyd video was testimonial evidence to both the

claim by Government of the second "controlled buy" and the grounds for the

.wiretap as well. Absent the use of this Boyd's video testimonial evidence, the

Prosecution would never have obtained the wiretap warrant, nor had evidence to

convict Petitioner at Trial. The case was so weak, in fact, (3) the Government

knowingly would not sever the Trial, because it would have left doubt as to the

Petitioner's odds at conviction. Mays' conviction by overwhelming evidence was

the bolster to Petitioner's weak matter.

Counsel was ineffective for failing to investigate, as required by the duty

owed the client and held under Strickland v. Washington standards.

Wiggins v. .Smith, 123 S.Ct. 2527 (2003); '[Strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengeable;

and strategic choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations on

investigation. In other words, counsel has a duty to make reasonable investigations or

to make a reasonable decision that makes particular investigations unnecessary. In any

ineffectiveness case, a particular decision not to investigate must be directly assessed

for reasonableness in all the circumstances, applying a heavy measure of deference to

counsel's judgments. Id., at 690-91, 104 S.Ct. 2052.

Our opinion in Williams v. Taylor is illistrative of the proper application of these

standards. In finding Williams' ineffectiveness claim meritorious, we applied Strickland

and concluded that counsel's failure to uncover and present voluminous mitigating

evidence at sentencing could not be justified as a tactical decision to focus on

Willimas' voluntary confessions, because counsel had not 'fulfill[ed] their obligations

to conduct a thorough investigation of the defendant's background.' 529 US, at 396, 120

S.Ct. 1495 (citing ABA Standards for Criminal Justice 4-4.1, commentary, page 4-55 (2nd

Ed. 1980)). While Williams had not yet been decided at the time the Maryland Court of

Appeal rendered the decision at issue in this case, cf. post, at 542, 156 L.Ed.2d, at

497-98. (Scalia, J., dissenting), Williams case was before us on habeas review. Contrary

to the dissent's contention, post, at 543, 156 L.Ed.2d at 499, we therefore made no new

law in resolving Williams' ineffectiveness claim. See Williams,529 US, at 390, 120 S.Ct.

1495 (noting that the merits of Williams' claim are squarely governed by our holding in

Strickland'); see also Id., at 395, 120 S.Ct. 1495 (noting that the trial court correctly

applied both components of the Strickland standard to Petitioner's claim and proceeding

to discuss counsel's failure to investigate as a violation of Strickland1s performance

prong). In highlighting counsel's duty to investigate, and in referring to the ABA

Standards for Criminal Justice as guides, we .applied the same 'clearly established

precedent of Strickland we apply today. Cf. 466 US, at 690-91, 104 S.Ct. 2052

establishing that 'thorough investigation[s] are 'virtually unchallengeable' and

underscoring that 'counsel has a duty to make reasonable investigations ); see also Id.,

at 688-89, 104 S.Ct. 2052 ('Prevailing norms of practice as reflected in American Bar

Association standards and the like...are guides to determining what is reasonable').

"Strickland, 466 US at 688. In making that assessment, 'the court should keep in

mind that counsel's function, as elaborated in prevailing professional norms is to

make the adversarial testing process work in the particular case. Strickland, 466 US at

690. In determining whether a counsel's challenged conduct iscthe:result of reasonable

professional judgment, our scrutiny is highly cjeferential, cognizant of the distorting

effects of hindsight. Id. at 689. We therefore employ a presumption that the challenged

conduct might be considered sound trial strategy. Id, A decision not to investigate and

present expert testimony as a matter of trial tactics can fall within the range of

reasonable performance. Rogers v. Israel, 746 F.2d 1288, 1294 (7th Cir. 1984). 'But for

this deference to apply, the decision must be fact-strategic,' and 'consequences or

inattention rather than reasoned strategic decisions are not entitled to the presumption

of reasonableness.' Dunn, 981 F.3d at 591, quoting Mosley v- Atchison, 689 F.3d 838, 848

(7th Cir. 2012). As the Court recognized in Strickland, 'counsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary,' and accordingly, '[i]n any ineffectiveness case, a particular

decision not to investigate' must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel's judgments.' Strickland,

466 US at 691.

Counselilid mo research into the case, did no legal research into the Pre-Trial,

Trial and Direct Appeal arguments, was unprepared for any phase of,the proceedings, .

and made no legal objections to issues that were legally barred use, and the lack of

investigations only accentuated the incompetence of this counsel. The Government has

stated on Court Record that Counsel did not research and state the proper Statute for

the wiretap warrant argument, thus barring Government on Direct Appeal from any claim

that counsel was not ineffective. Counsel produced, at the Suppression Hearing, no

legal argument against the use of the wiretaps, kept floundering, first arguing that

it was not the Petitioner's voice on the wiretaps, but attempting to assert legal

rights to argue Suppression that do not exist, then flopping back on Replies to state

that it was now her petitioner's voice, and again asserting the right to Suppress. This

then made the Petitioner, whom legally the Court blames for all Appeal assertions while

under Motions for 28 U.S.C. §2255, instead of the truth of the matter, that counsel,

not the Petitioner is completely in control of any and all Briefings and arguments,

since Briefs are submitted to the Court prior to mailings to the Petitioner, thus the

Petitioner never pre-approved any Briefings at all on Direct Appeal. Even' when Ordered

by the Court, as counsel was on March 22nd, 2021, counsel refused to do the legal

research to submit an Ordered reply to the Court on a Motion Briefing. It cannot be

stated that this Petitioner's case did not suffer at the hands of this counsel.

On Direct'Appeal the Court Opinion stated that the Defense Counsel had placed on

the Reply Brief arguments not raised in the Original Brief, which violates F.R.App.P.

§28. As this same Appellate law applies to all matters Briefed, such as even the

District Court levels, then this counsel for the defense knew full well, or was plainly

incompetent for disobeying an Appellate Rule written before cousel was even bom, and

obviously had to have known at one time to have passed the Bar Exams to even become an

•Attorney.

That this counsel failed at every stage of the process is without question. Counsel

failed to investigate the proper statutes and applicable laws prior to the Suppression

Hearing, Counsel failed to Motion for an Interlocatory Appeal to prevent the Crawford/

Melendez-Diaz Confrontational Clause violation of Boyd's video testimonial at Trial,

Counsel did not file any Post-Conviction Motions, Counsel failed on Direct Appeal to

obey Appellate laws, counsel made irrational legal arguments, that the client did not

make the phone calls, that client did make the phone calls, it was not even what the

Courts would permit a Pro-Se inmate to have submitted for legal arguments. The United

— States Attorney even called the counselor ineffective at the March 22nd, 2021 Hearing,

Motioning under the improper Statute for wiretaps.

Counsel clearly did no legal research, did not investigate the situation for the

client, did not make even a half-hearted effort at defense. Counsel clearly was entirely

ineffective assistance.

"In Taylor v. Steele, we stated that Martinez's some*-merit requirement 'means that

whether [the claimant's] trial counsel was ineffective...must be least be debatable

among jurists of reason.' 6 F.4th 796, 801 (8th Cir. 2021)9internal quotation marks

omitted), petitioner for cert, filed___ U.S.L.W. (U.S. Mar. 23, 2022)(No. 21-7449); see

also: Harris, 984 F,3d at 648-49; accord McGill v. Shinn, 16 F.4th 666, 698-99(9th Cir.

2021); Owens v. Stirling, 967 F.3d 396, 424 (4th Cir. 2020); Brown v. Brown, 847 F.3d

502, 517 (7th Cir. 2017); Hlttson, 759 F.3d at 1269-70. Ward and Dansby do not compel a

contrary conclusion. In Ward, we did not even quote, much less elaborate on, Martinez's

statement that the petitioner's ineffective assistance claim must have 'some merit,'

566 U.S. at 14, if he is to overcome procedural default. See Ward, 738 F.3d 915. Aqd iq

Dansby, we acknowledge but neither endorsed nor rejected the petitioner's argument that

Martinez's substantiality standard is identical to Miller-El1s certificate-of-appealability

standard. See Dansby, 766 F.3d at 840, note 4 (noting that the case's outcome did not

depend on whether the petitioner was correct)."

3)Counsel was ineffective on many vital steps in the defense of the client, for which

competent counsel could not have failed, and which thus prejudiced the

Petitioner, and lead to his conviction.

Emery v.

United States, 2011 US Dist. LEXIS 131421 (8th Dist.);

INEFFECTIVE ASSISTANCE OF COUNSEL

To prevail on a claim alleging ineffective assistance of counsel, the movant must satisfy the

two-part test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Under Strickland, the movant must first show that the counsel's performance was deficient. 466 U.S.

at 687. This requires the movant to show "that counsel made errors {2011 U.S. Dist. LEXIS 7}so

serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Id. Secondly, the movant must demonstrate that the deficient performance prejudiced

the defense so as "to deprive the defendant of a fair trial, a trial whose result is reliable." Id. The

movant "must show that there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome." Id. at 694.

The Eighth Circuit has described the two-fold test as follows: (1) counsel's representation fell below

an objective standard of reasonableness; and (2) but for this ineffective assistance, there is a

reasonable probability that the outcome of the trial would have been different. Rogers, 1 F.3d at 700

(quotations omitted). More recently the Eighth Circuit has described the Strickland test as follows:

"whether counsel's performance was in fact deficient and, if so, whether the defendant was

prejudiced by the inadequate representation. If we can answer 'no' to either question, then we need

not address the other part of the test." Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000).

When (2011 U.S. Dist. LEXIS 8}evaluating counsel's performance, the court "must indulge in a

strong presumption that counsel's conduct falls within the wide range of reasonable professional

assistance." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Counsel's performance is considered

objectively, and gauged "whether it was reasonable 'under prevailing professional norms' and

'considering all the circumstances.'" Fields, 201 F.3d at 1027, quoting Strickland, 466 U.S. at 688,

104 S. Ct. at 2064-65. Counsel's challenged conduct is viewed as of the time of his representation.

"And we avoid making judgments based on hindsight." Fields, 201 F.3d at 1027. A reviewing

court's"scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689,

104 S. Ct. at 2065. "'When assessing attorney performance, courts should avoid the distorting effects

of hindsight and try to evaluate counsel's conduct by looking at the circumstances as they must have

appeared to counsel at the time.'" Rodela-Aguilar v. United States, 596 F.3d 457, 461 (8thCir. 2010),

quoting United States v. Staples, 410 F.3d 484, 488 (8th Cir. 2005).

Counsel did not object one time on Trial Court Record to the use of deceased

witness Boyds' testimonial video, did not Motion for Interlocatory Appeal, in simpler

terms did nothing to prevent the usage of the barred testimony under Crawford/MelendezDiaz standards. On February 6th, 2020, at the Suppression Hearing,while several claims

were made, when counsel lost the argument, did nothing in the way of filing an

Interlocatory Appeal. On that same February 6th, 2020 Suppression, on Court's Record,

is the Government Motion of Complaint that counsel applied the wrong Statute in their

Motion to Suppress, thus should be denied Hearing. Therefore, the Government, as.well!

as the Appeals.. Court.have agreed that counsel was ineffective, having failed to use

the proper argument based on a wrong Statute, simple proof of ineffective assistance.

On March 22nd, 2021, the challenge was made to Boyd's testimony, and also the

Competency/Release Hearing was held that same date. Counsel was instructed, upon a

complaint made by Petitioner, by Judge James M. Moody, Jr. to "File something on that."

Which counsel never did. Even the U.S. Attorney stated that counsel was ineffective.

Applicable Standards

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions,

the accused shall enjoy the right... to have the Assistance of Counsel for his defense." U.S.

CONST. AMEND. VI. Thus, a criminal defendant is constitutionally entitled to the effective

assistance of counsel both at trial and on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.

Ct. 830, 83 L. Ed. 2d 821 (1985); Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir. 2003); see

also Steele v United States, 518 F.3d 986, 988 (8th Cir. 2008). By the same token, "ineffective

assistance of counsel" could result in the imposition of a sentence in violation of the Constitution

(2009 U.S. Dist. LEXIS 13}or laws of the United States. 28 U.S.C. § 2255; Bear Stops, 339 F.3d at

781 ("To prevail on a § 2255 motion, the petitioner must demonstrate a violation of the Constitution

or the laws of the United States."). As noted above, in the discussion of procedural default, the

Eighth Circuit Court of Appeals has expressly recognized that a claim of ineffective assistance of

counsel should be raised in a § 2255 proceeding, rather than on direct appeal, because it often

involves facts outside of the original record. See Hughes, 330 F.3d at 1069 ("When claims of

ineffective assistance of trial counsel are asserted on direct appeal, we ordinarily defer them to 28

U.S.C. § 2255 proceedings.").

As the Eighth Circuit Court of Appeals has explained, '"The applicable law here is well-established:

post-conviction relief will not be granted on a claim of ineffective assistance of trial counsel unless

the petitioner can show not only that counsel's performance was deficient but also that such deficient

performance prejudiced his defense."' United States v. Ledezma-Rodriguez, 423 F.3d 830, 836 (8th

Cir. 2005) (quoting Saunders v. United States, 236 F.3d 950, 952 (8th Cir. 2001), in turn citing

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)); (2009 U.S.

Dist. LEXIS U}Davis v. Norris, 423 F.3d 868, 877 (8th Cir. 2005) ("To prove that his counsel

rendered ineffective assistance in violation of the Sixth Amendment, [the movant] must satisfy the

two prong test outlined in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984)," which requires the movant to "show that his counsel's performance was deficient" and that

he was "prejudicefd]").

The "deficient performance" prong requires the movant to "show that his 'counsel made errors so

serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth

Amendment.'" United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting Strickland, 466 U.S.

at 687). That showing can be made by demonstrating that counsel's performance "'fell below an

objective standard of reasonableness.'" Wiggins v. Smith, 539 U.S. 510, 522, 123 S. Ct. 2527, 156 L.

Ed. 2d 471 (2003) (quoting Strickland, 466 U.S. at 688). There are two substantial impediments to

making such a showing, however. First, '"[s]trategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable."' Rice, 449 F.3d at 897 (quoting

Strickland, 466 U.S. at 690). Second, "[t]here {2009 U.S. Dist. LEXIS 15}is a 'strong presumption

that counsel's conduct falls within the wide range of reasonable professional assistance."' Id. (quoting

Strickland, 466 U.S. at 689); Davis, 423 F.3d at 877 ("To satisfy this prong [the movant] must

overcome the strong presumption that his counsel's conduct fell within the wide range of reasonable

professional assistance."). If the movant fails to show deficient performance by counsel, the court

need proceed no further in its analysis of an "ineffective assistance" claim. United States v. Walker,

324 F.3d 1032, 1040 (8th Cir. 2003).

Even if counsel's performance was "deficient," the movant must also establish "prejudice" to

overcome the presumption of reasonable professional assistance. Ledezma-Rodriguez, 423 F.3d at

836; Davis, 423 F.3d at 877. To satisfy this "prejudice" prong, the movant must show "'that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would

have been different...[,] a reasonable probability [meaning] a probability sufficient to undermine

confidence in the outcome."' Rice, 449 F.3d at 897 (again quoting Strickland, 466 U.S. at 694);

Davis, 423 F.3d at 877 (same). Thus, '"[i]t (2009 U.S. Dist. LEXIS 16}is not enough for the

defendant to show that the errors had some conceivable effect on the outcome of the proceeding."’

Pfau v. Ault, 409 F.3d 933, 939 (8th Cir. 2005) (quoting Strickland, 466 U.S. at 693). Although the

two prongs of the "ineffective assistance" analysis are described as sequential, courts "do not...

need to address the performance prong if petitioner does not affirmatively prove prejudice."

Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir. 1999) (citing Pryor v. Norris, 103 F.3d 710 (8th

Cir. 1997)).

Counsel was stated by the Government as being ineffective on ..March... 22nd, 2021

at the Competency/Release hearing and Motion to Suppress Hearing. Counsel was ordered

by Judge James M. Moody to "File something about" [the argument Petitioner, not Counsel

made on the Court's Record], Counsel refused and never did obey the Court's Order. On

March 22nd, 2021 this took place. The wrong Statute is located at [Doc. 232, 233]. The

Order to 'File something''is at [Doc. 386]. These are both matters of Court Records.

On Appeal this Counsel gave an argument that went; "Petitioner claims that the wiretap

recorded voice was not his," then on reply the Counsel stated; "The voice was that of

the Petitioner, and he asserts his rights to contest that wiretap evidence." The

Opinion from the Appeal even states this 'flopping back and forth,' the counsel did,

and admonished counsel for the inconsistency. It went as far as to question how this

counsel did not know that it could not raise a new argument on a reply not already

stated within the Original Brief. No competent counsel could have made all these legal

errors, in fact, it is a wonder this counsel was not Sanctioned and removed.

None of the arguments made on Appeal were ever raised during the Suppression Hearing.

Had this counsel done a proper investigation into the legal arguments and the case

itself, the arguments would have been fully briefed at the Suppression Hearing, the •

wrong Statute would not have been quoted, and Boyd's testimony, with himnbeing deceased

through no part of the client's doing, would never have been introduced at Trial. There

are literally hundreds of cases using Circuit decisions to back up the fact that a

deceased witness testimony may not be used absent the exception of the case when the

Petitioner caused the witness not to appear. That is not the case herein, thus no

exception to the legal bar from use of that testimony is found. Counsel- should have

researched and backed up this argument. Even worse, the Counsel was directly Ordered

to research and File a Motion to a question posed by Petitioner, by Judge James M. Moody,

and refused to comply. Counsel was declared by the Government as ineffective, thus they

cannot now, on a Motion under 28 U.S.C. §2255 defend that position as otherwise. Since

this infected not only the Pre-Trial, but the Trial and Direct Appeal as well, it must

then be taken back to the post-Arraignment stage of the proceedings to correct. A New

Trial must be the result.

• f £>

In light of the clear and multiple Constitutional violations

by the District Court Judge,

James M.

Moody Jr.,

along with the

grossly ineffective assistence from the Defense Counsel,

Arkie Byrd,

the Petitioner begs the esteemed Supreme Court to

review his case.

The Petitioner respectfully requests that the

Writ of Certiorori be granted

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

0a/IaaD/1

Date:

AJOU&mhfjZ. *7} Z023

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.