Petition for Writ of Certiorari — Richard Arlee Champion, Petitioner v. United States

No

23-7

IN THE

SUPREME COURT OF THE UNITED STATES

FILED

APR 2 6 2024

Richard Champion

— PETITIONER

(Your Name)

vs.

United States of America — RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

U.S. Court of Appeals 4th Circuit

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

PETITION FOR WRIT OF CERTIORARI

Richard Champion; 33773-058

(Your Name)

Federal Correctional Complex Victorville #2

P.0. Box 3850

(Address)

Adelanto, California 92301

(City, State, Zip Code)

N/A

(Phone Number)

QUESTION(S) PRESENTED

I. WHEN DETERMINGING THE TIMLINESS OF A MOTION TO VACATE PURSUANT TO

28 USC 2255, WHAT PLEADING DETERMINES THE RELEVANT PLEADING WHEN

MAKING THAT DETERMINATION

II. CAN A DEFENDANT SECURE A FIFTH AMENDMENT DUE PROCESS VIOLATION

RESULTING FROM PREJUDICIAL PRE INDICTMENT DELAY INCURRED IN

NEGLIGENCE AND RECKLESS DISREGARD, PROVIDED THE PREJUDICE

IS SUFFICIENTLY SEVERE

III. WHERE A DEFENDANT REJECTS A FORMAL PLEA IN OPEN COURT, PURSUANT

TO A COURTS FRYE HEARING, DOES THAT BAR HIM FROM MAKING A VALID

CLAIM PURSUANT TO THIS COURTS RULING IN LAFLER V. COOPER

LIST OF PARTIES

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

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

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

petition is as follows:

RELATED CASES

U.S. v. Champion, No. 1:21-cv-00018 (Mar. 2, 2022)

U.S. v. Champion, No. 1:17-cr-00046-5 (Jan. 11, 2018)

U.S. Court of Appeals (4th Cir.) ;

U.S.

v. Champion, No. 23-6905 (Pending)

U.S. v. Champion, No. 22-6529 (Aug. 31, 2023)

U.S. v. Champion, No. 19-7330 (Feb. 19, 2020)

U.S. v. Champion, No. 18-4274 (Jun. 11, 2019)

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

6

REASONS FOR GRANTING THE WRIT

13

CONCLUSION

22

INDEX TO APPENDICES

1

APPENDIX A

Order Denying Rehearing

APPENDIX B

Order Denying Certificate of Appealability

2

APPENDIX C

Memorandun Decision On Order

4

APPENDIX D

Habeas Corpus Practice and Procedure, Section 15.1....

27

APPENDIX E

Habeas Corpus Practice and Procedure, Section 41.5 • • • •

34

APPENDIX F

I

TABLE OF AUTHORITIES CITED

PAGE NO.

CASES

18

Arizona v. Youngblood, 488 U.S. 51 (1988)....................................................

California v. Trombetta, 467 U.S. 479 (1984)........................................

17

Carpenter v. U.S., 492 F. Supp. 2d 912 (N.D. Ill. 2007)........................

15

Fulton v. Graham, 802 F.3d 257 (2nd Cir. 2015)..........................................

20

Howell v. Barker, 904 F.2d 889 (4th Cir. 1990)..........................................

16

Lafler v. Cooper, 566 U.S. 156 (2012)............................................................ 11, 18

Mahaffey v. Ramos, 588 F.3d 1142 (7th Cir. 2009)......................................

14

Missouri v. Frye, 566 U.S. 135 (2012)............................................................ 12. 19

Paters v. U.S., 159 F.3d 1043 (7th Cir. 1998)............................................

20

Stewart v. Rapelje, 2010 U.S. Dist. LEXIS 139453 (E.D. Mich. Jan 22,

2012)............................................................................................................................. 14, 15

Strickland v. Washington, 466 U.S. 668 (1984) .......................................... 18, 19

U.S. v. Automated Med. Labratories, Inc., 770 F.2d 399 (4th Cir. 1985) • • 16

U.S. v. Brannon, 48 F. App'x 51 (4th Cir 2002).............................................. 20

U.S. v. Eight Thousand Eight Hundred And Fifty Dollars ($8850) In

U.S. Currency, 461 U.S. 555 (1983)....................................................................... 16

U.S. v. Lovasco, 431 783 (1977) .......................................................................... 16

U.S. v. Marion, 404 U.S. 307 (1971).................................................................... 16

U.S. v. Moran, 759 F.2d 111 (9th Cir. 1985)................................................ .. 16

U.S. v. Pender, 514 F. App'x 359 (4th Cir. 2013).......................................... 20

U.S. v. White, 366 F.3d 291 (4th Cir. 2004) .................................................. 19

STATUTES AND RULES

18 U.S.C.

21 U.S.C.

21 U.S.C.

21 U.S.C.

2 ..............................

841(a)(1)................

841(b)(l)(A)(viii)

846............

3,

3,

3,

3,

5,

4,

4,

5,

6

6

6

6

STATUTES AND1 RULES CONT.

PAGE NO

28 U.S.C. 2255 ..........................................................................

Federal Rules of Civil Procedure 15(c)(1)(B) ..............

Rules Governing Section 2255 Proceedings ......................

2004 Amendments to Rule 2(b), Rules Governing Section

2255 Proceedings ......................................................................

Supreme Court Rule 10(a), 10(c) ......................................

7, 19, 21

8

13, 14, 15

13, 14, 15

21

OTHER

Rand, Hertz and James S. Liebman, Federal Habeas Corpus

Practice and Procedure, 7th Edition Section 15.1; 41.5

14

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

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

OPINIONS BELOW

[ x| For cases from federal courts:

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

the petition and is

®__to

[ ] reported at

5 or,

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

[X] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

to

[ ] reported at

; or,

[ ] 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.

!

JURISDICTION

[X] For cases from federal courts:

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

was August 31, 2023

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

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

Appeals on the following date: -December 18, 2023

and a copy of the

order denying rehearing appears at Appendix___A

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

to and including May ,.16, 2024______ (date) on February 29, 2024 (date)

in Application No. 23 a 801___

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) on

(date)in

to and including____

Application No. __ A

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

2.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment, United States Constitution, provides: No person

shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be drprived of life, liberty, or property,

without due process of law; nor shall private property be taken for

public use, without just compensation.

The Sixth Amendment, Untied States Constitution, provides: In all

criminal prosecutions

the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for his defence.

The Statute under which Petitioner was prosecuted was: 21 USC 841(a)

(1); 21 USC 841(b)(1)(A); 21 USC 846; 18 USC 2: 21 USC 841(a)(1) Un­

lawful acts. Except as authorized by this title, it shall be unlawful

for any person knowingly or intentionally to manufacture, distribute,

3.

or dispense, or possess with intent to manufacture, distribute, or

dispense, a controlled substance;

21 USC 841(b)(1)(A)(viii): Penalties. Except as otherwise provided

in section 409, 418, 419, or 420 [21 USCS :849, 859, 860, or 861],

any person who violates subsection (a) of this section shall be

sentenced as follows: In the case of a violation of subsection (a)

of this section involving - 50 grams or more of methamphetamine,

its salts, isomers, and salts of it isomers or 500 grams or more

of a mixture of substance containing a detectable amount of meth­

amphetamine, its salts, isomers, or salts of its isomers; such

person shall be sentenced to a term of imprisonment which may not

be less than 10 years or more than life and if death or serious

bodily injury results from the use of such substance shall be not

less than 20 years or more than life, a fine not to exceed the greater

of that authorized in accordance with the provisions of title 18,

United States Code, or $10,000,000 if the defendant is an individual

or $50,000,000 if the defendant is other than an individual, or both.

If any person commits such a violation after a prior conviction for

a serious drug felony or serious violent felony has become final,

such person shall be sentenced to a term of imprisonment of not less

than 15 years and not more than life imprisonment and if death or

serious bodily injury results from the use of such substance shall be

sentenced to life imprisonment, a fine not to exceed the greater of

twice that authorized in accordance with the provisions of title, 18,

4.

United States Code, or $20,000,000 if the defendant is an individual

or $75,000,000 if the defendant is other than an individual, or both.

If any person commits a violation of this subparagraph or of section

409, 418, 419, or 420 [21 USCS 849, 859, 860, or 861] after 2 or more

prior convictions for a serious drug felony or serious violent fel­

ony have become final, such person shall be sentenced to a term of

imprisonment of not less than 25 years and fined in accordance with

the preceding sentence. Notwithstanding section 3583 of title 18,

any sentence under his subparagraph shall, in the absence of such

a prior conviction, impose a term of supervised release of at least

5 years in addition to such term of imprisonment and shall, if

there was such a prior conviction, impose a term of supervised

release of at least 10 years in addition to such term of imprison­

ment. Notwithstanding any other provision of law, the court shall

not place on probation or suspend the sentence of any person sen­

tenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprison­

ment imposed therein.

21 USC 846. Attempt and conspiracy. Any person who attempts or con­

spires to commit any offense defined in this title shall be subject

to the same penalties as those prescribed for the offense, the com­

mission of which was the object of the attempt or conspiracy.

18 USC 2. Principals. Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or procures its

commission, is punishable as a principal.

5.

STATEMENT OF THE CASE

The facts necessary to place in their setting the questions now

raised can be briefly stated:

I. COURSE OF PROCEEDINGS IN THE SECTION

2255 CASE NOW BEFORE THIS COURT

On August 1, 2017, in a cause pending in the United States District

Court

for the Western District of North Carolina, Asheville Div­

ision, entitled United States v. Richard Champion (criminal No.

1:17-cr-00046-MR-WCM-5, [CR], DOC 39), Petitioner was charged by

superseding bill of indictment, charging Petitioner in count one,

conspiracy to distribute methamphetamine, in violation of 21 U.S.C.

846; 21 U.S.C. 841(b)(1)(A); and count five, possession with intent

to distribute at lease 50 grams

or

more

of methamphetamine,

in violation of 21 U.S.C. 841(a)(1), and aiding and abetting the

same in violation of 18 U.S.C. 2.

On January 3, 2018, Petitioner proceeded to trial by jury. On January

11, 2018, Petitioner was found guilty on both counts. (CR DOC 161).

On April 26, 2018, the court sentenced Petitioner to 262 months on

each count to be served concurrently. That judgement was entered on

April 30, 2018. (CR DOC 180).

Petitioner timely appealed to the Fourth Circuit Court of Appeals.

(4th Cir. Case No. 18-4272, DOC 1). On June 11, 2019

6.

the Court

I

affirmed both the sentence and conviction (id DOC 50). On July 1, 2019,

Champion sought a rehearing/rehearing en banc (id Doc 57). On August

13, 2019, the Court denied rehearing (id DOC 64).

Petitioner sought an extension of time to file a petition for Writ

of Certiorari, which this Court granted up to and including January

10, 2020. 19A-504. No petition was ever filed.

Petitioner's conviction became final on January 10, 2020.

II. RELEVANT FACTS UNDERLYING THE TIMLINESS

OF PETITIONERS MOTION TO VACATE, 28 U.S.C. 2255

Petitioner filed the instant motion to vacate pursuant to 28 U.S.C.

2255 on January 7, 2021. (1:21-cv-00018-MR-WCM-5, DOC 1). Using the

standard form provided by the Court, petitioner set forth each ground

for relief. Acover letter was submitted with thfe motion, notifying

the Court that USP Atlanta was locked down as a result of the COVID19 pandemic, that his forthcoming memorandum would provide the factual

basis in support of each ground for relief. Five day's later, on

January 12, 2021, Petitioner submitted his memorandum. (Id. DOC 6).

On January 19, 2021, the Court rejected Petitioner's motion to vacate

as "insufficient" to proceed in that, it did not conform to Rule 2(b)

of the rules governing section 2255 proceedings. The Court further

held that "piecemeal" litigation would not be tolerated and prescrbed 30 day's to file an amended motion (id DOC 5).

Petitioner resubmitted the motion as directed by the Court, (id DOC 9).

7.

Petitioner exclusively invoked the relation back theory pursuant to

Federal Rules of Civil Procedure 15(c)(1)(B), due to the fact that,

as a result of the Court's rejection of Petitioner's timely filed

motion, the one-year statue of limitations imposed by the Anti-Terr­

orism and Effective Death Penalty Act had already ran. Petitioner

asserted that the amended motion related back to the original timely

motion (id DOC 10).

On March 2, 2022, the Court entered an order denying Petitioner's

motion as untimely (id DOC 20) (App. p. 9.). The Court held that the

motion "failed to specify any facts supporting each ground (App. p. 9).

That the memorandum and amended motion to vacate were both filed out­

side the one-year statute of limitations. (App. p. 9). That Petitioner

did not provide the Court with any facts until the statute of limit­

ations had already expired (App. p. 10).

III. RELEVANT FACTS UNDERLYING PETITIONERS

FIFTH AMENDMENT DUE PROCESS VIOLATION

RESULTING FROM PREJUDICIAL GOVERNMENT

PRE INDICTMENT DELAY

The relevant facts are contained in Petitioners motion to vacate (DOC

9 at 35-39). Petitioner argued that the conviction should be vacated

due to a violation of the Fifth Amendment Due Process Clause result­

ing from pre-indictment delay. Petitioner was actually prejudiced by

the loss of hotel video surveillance that would have exonerated him

at trial and the loss of the video affected Petitioner's ability to

mount an effective defense. The delay was not the result of a continuning investigation but was the product of government negligence and

recklessness. That resulted in the failure to preserve and utilize

8.

any video surveillance.

Count five of the indictment, and the crux of the government's case

against the Petitioner, was predicated on a drug deal on September 13,

2016, at the Stone Mountain Inn and Suites in Stone Mountain, Georgia.

Yet, hotel daily audit logs show that neither Petitioner nor any of

the names Burt alleges were there appear on the registry. (D0C 15-1

at 280; DOC 15-2 at 128-29). The room Burt alleged she was in reflects

that it was vacant (DOC 15-1 at 278; DOC 15-2 at 129).

The government called hotel manager, Ms Aviles, as a witness for the

government. Her testimony established that the hotel had "16 cameras

working 24 hours" and that they "cover every area" of the property

with two cameras that face the registration desk (DOC 15-2 at 108-11).

Suprisingly, none of that video was preserved or utilized by Stites

or Leopard. (DOC 15-1 at 290-94, 309-10). Both Stites and Leopard

testified at length about their expertise and resumes (DOC 15-1 at

224; DOC 15-4 at 171-72).

Testimony about the investigation established that Stites never made

an attempt to investigate the "source" of methamphetamine seized days

earlier (DOC 15-1 at 238, 242-43). No attempt was made to conduct any

investigation into locations where money and drugs were being exchanged

(DOC 15-1 at 259, 262-64, 269, 271-73). No investigation was made into

the "old man" who provided Burt with the large sum of cash to purchase

drugs. (DOC 15-1 at 279). No attempt was made to take any fingerprints

(DOC 15-2 at 16-17).

9.

The Court dismissed Petitioner claim as procedurally defaulted. Pet­

itioner stated that he was actually and factually innocent of count

five, that he was not the source of the meth on September 13, 2016.

The Court held that Petitioner argument "falls short" of the actual,

innocence standard. The Court further held that Petitioner had not

come forward with evidence that the video ever existed. (App. p. 10).

Petitioner also argued that appellate counsel was ineffective for

not raising the issue of pre-indictment delay. The Court held that

the claims were meritless. (App. p. 25). The Court ruled that Petitioner

had not proven actual prejudice, that the loss of video was speculative '

(App. p. 12). The Court went on to hold that Petitioner had not come

forward with evidence "that any cameras were positioned" in the area.

(App.p. 14).

It is worth noting that the Court never mentions hotel manager Aviles

testimony about the cameras that were available, nor does the Court

acknowledge that the hotel records exonerate Petitioner, clearly dis­

crediting Burts testimony.

IV. RELEVANT FACTS UNDERLYING PETITIONERS

INEFFECTIVE ASSISTANCE AT THE PLEA STAGE

The relevant facts can be found in Petitioners motion to vacate (DOC

9 at 8-11). Petitioner argue that the conviction should be vacated due

to counsel's ineffective assistance at the plea stage. Petitioner rej­

ected the government's plea due to the inadequacy of counsel's advice.

10.

Petitioner repeatedly emphasized his desire to plead, urging counsel

to attempt to negotiate something favorable so that Petitioner knew

exactly what he was getting. Pursuant to this Court's ruling in Lafler

v. Cooper, 566 U.S. 156 (2012), that plea would have been less severe

than what was imposed.

The government extended a formal offer to Petitioner. That plea was

an "open" plea as counsel described. The plea would have stipulated

to a drug weight of 249 grams. Counsel never articulated the signific­

ance

of what

that

meant, in that it would cap Petitioner base off­

ense level 32. Counsel never advised Petitioner that if he proceeded

to trial that he would be held accountable for any relevant conduct

and that would increase the sentence exponentially. A fact that is

apparent on the record (DOC 15-4 at 358).

The plea would have dismissed count five of the indictment and the

enhanced penalty filed pursuant to 21 USC 851.

Counsel was asked what

he would serve on the ten years and counsel stated that with Petitioners

prior criminal history he was looking at twenty years whether he acc­

epted the governments plea or went to trial. Petitioner unequivocally

expressed his desire to plead out to counsel. Petitioner urged counsel

to apptmpt to negotiate something more favorable. Counsel refused,

stating that "they won't do that."

Prior to trial, Petitioner told counsel that he was "scared as hell."

That he (Petitioner) wanted to take whatever they are offering. Counsel

11.

responded, no, "that we've come this far, we're going through with it."

The Court rejected Petitioner's claim holding that the claim was con­

clusively refuted by the record, where, during the Court's Frye

hearing, Petitioner acknowledged he was rejecting the plea (DOC 15-1

at 57-60) (App. p. 12). The Court stated that Petitioners claim he was

essentially forced to trial was contradicted by Petitioners statements

in open court and that counsel was ineffective for failing to negotiate

a more favorable offer was "purely speculative" and that Petitioner

could not establish prejudice due to Petitioners

protestations of

innocence during the proceedings (App. p. 13).

The Court does not acknowledge the fact the Petitioner was forthcoming

with counsel, telling counsel that he had in fact met with Burt on a

"handful" of occasions during July, August of 2016. Petitioner stated

that he was unequivically innocent of the September 13, 2016, sale

which the government entire case and evidence rested on.

Another, perticular fact worth noting: the Court cites Petitioner

PSR statement (CR DOC 178 at p. 49) that "hotel surveillance" would

have corroborated hotel logs which demonstrated his innocence. (App.

p. 13). Petitioner has been adoment about the video from the time of

discovery, /Jo competing affidavit was ever filed by defense counsel

and the Court never awarded the Petitioner an evidentiary hearing.

V. PROCEEDINGS IN FOURTH CIRCUIT COURT

OF APPEALS ON CERTIFICATE OF APPEALABILITY

12.

Petitioner timely appealed and sought a certificate of appealability

in the Fourth Circuit Court of Appeals. (4th Cir. Case No. 22-6529

DOC 1) 28 USC 2253(c)(2). Petitioner raised the issue presented in

the instant petition for writ of certiorari among others, which

Petitioner argued he had made the requisist substantial showing for

issuance of COA. (Id DOC 8).

On August 31, 2023, the Fourth Circuit Court of Appeals dismissed

Petitioners application for COA using the standard boilerplate

language. (App. p. 2).

On november 28, 2023, Petitioner filed for a rehearing and rehearing

en banc, asking the Court to establish a bright line rule in the

circuit regarding the timliness of his motion and that he alleged

sufficient facts on his IAC claim during the plea stage which entit­

led him to a hearing (4th Cir. Case 22-6529, DOC 19).

On December 18, 2023, the Court Denied rehearing (id. DOC 21).

ARGUMENT FOR ALLOWANCE OF WRIT

I. WHEN DETERMINGING THE TIMLINESS OF A MOTION

TO VACATE PURSUANT TO 28 USC 2255, WHAT PLEADING

DETERMINES THE RELEVANT PLEADING WHEN MAKING

THAT DETERMINATION

The advisory committee notes to Rule 2 of the rules governing section

2255 proceedings for the United States District Courts ("2004 Amend-

13.

ments"), deleted the language that provided courts to return a mot­

ion that did not conform to Rule 2 or 3 of the rules governing sect­

ion 2255 proceedings. See 2004 Amendments Discussing Former Rule 2

(d); See also Randy Hertz and James S. Liebman, Federal Habeas

Corpus Practice And Procedure, 7th Edition, section 15.1; 41.5(a).

(App. p. 27, 34). As the Advisory Committee notes explain, "the rules

were revised in order to guard against the potentially preclusive

effect that return of a defective petition or section 2255 motion

may have as a result of AEDPA's statutes of limitations. (App.p. 27).

The trial court rejected Petitioners motion as insufficient to pro­

ceed in that it did not conform to Rule 2 of hte rules governing

section 2255 proceedings. The Court, knowing tha the statute of

limitations imposed by AEDPA's had already expired. This is precis­

ely the safeguard that the Advisory Committees 2004 Amendments were

put into effect to prevent. Yet the Court clearly ignored this fact.

See Stewart v. Rapelje, 2010 U.S. Distt. LEXIS 139453, at 3-7 (E.D.

Mich., Jan 22, 2010).

The Court held that Petitioners amended motion and the memorandum

were both filed outside AEDPA's one-year statute of limitations

(App. p. 10). Yet, the Seventh Circuit Court of Appeals has answered

this stating that "it is the initial motion, not subsequently filed

memorandum or brief in support of a petition, which determines

whether a petition is time barred under AEDPA's statute of limitations.

Mahaffey v. Ramos, 588 F.3d 1142, 1144-45 (7th Cir. 2009); Stewart

14.

v. Rapelje, 2010 U.S. Dist. LEXIS 139453, ct 3-7 (E.D. Mich., Jan

22, 2010).

Furthermore the Federal judiciary Advisory Committees "Notes to Dec­

isions" are selected case law cherry picked by the committee and

meant to guide courts in how to interpret a particular rule or law.

U.S., 492 F. Supp. 20 912 (N.D.

The committee selected Carpenter v.

Ill. 2007), and placed into Rule 2 of the rules governing section

2255 proceedings, notes to decisions.

In Carpenter, a federal defendant filed a motion to vacate pursuant

to 28 USC 2255, which asserted that his forthcoming memorandum would

provide the factual basis for his claims. The Court found that the

motion was in fact timely, even though the memorandum was not filed

until after the one-year statutary time frame imposed by AEDPA had

expired. Carpenter, 492 F. Supp. 2d at 918. (citing 2004 Amdndments

to Rule 2 of the rules governing 2255 proceedings).

The fact that the committee hand selected the Carpenter case and

implemented the case into its "Notes to Decisions" to Rule 2 of the

rules governing section 2255 proceedings is clear evidence that the

committee anticipated the issue and has made clear to Courts how to

interpret the rule.

II. CAN A DEFENDANT SECURE A FIFTH AMENDMENT

DUE PROCESS VIOLATION RESULTING FROM PREJUDICIAL

PRE INDICTMENT DELAY INCURRED IN NEGLIGENCE

15.

AND RECKLESS DISREGARD, PROVIDED THE PREJUDICE

IS SUFFICIENTLY SEVERE

The seminole cases regarding when pre indictment delay deprives a

defendant of due process are U.S. v. Marion, 404 U.S. 307 (1971),

and U.S. v. Lovasco, 431 U.S. 783 (1977). In Lovasco, the brief for

United States conceded, and this Court has approvingly noted, that,

"a due process violation might be made upon a showing of prosecutor­

ial delay that incurred in reckless disregard of circumstances, known

to the prosecution, suggesting there existed an appreciable risk

that delay would impair the ability to mount an effective defense."

id at 795 n. 17; See also U.S. v. Eight Thousand Eight Hundred and

Fifty Dollars ($8850) in U.S. Currency, 461 U.S. 555, 563 (1983).

The Fourth and Ninth Circuits have intepreted Marion and Lovasco as

establishing a two-pronged inquiry. First, a court must assess whether

the defendant has suffered actual prejudice, and the burden of prov­

ing such prejudice is clearly on the defendent. If this threshold is

met, then the Court must then consider the reason for the delay.

U.S. v. Automated Medical Labratories, Inc., 770 F.2d 399, 403-04

(4th Cir. 1985); U.S. v. Moran, 759 F.2d 777, 781-82 (9th Cir. 1985).

Both circuits have acknowledged that a due process violation may be

established based on merely negligent delay, provided the prejudice

is sufficiently severe. Moran, 759 F.2d at 781-82; Howell v. Barker,

904 F.2d 889, 895 (4th Cir. 1990).

The Petitioner has established "actual" prejudice. The loss of the

16.

video was fatal to Petitioners defense. The only other comparable

evidence, the hotel audit log, corroborates the fact that either

Burt was not at the hotel, where she alleges the Petitioner delievered

the quantity of meth, or that she was there meeting somebody else

whose identity she is protecting. Had that video been preserved

then Petitione would have been exonerated.

In California

v. Trombetta, 467 U.S. 479 (1984), Officers failed

to preserve breath samples and defendant's argued that the failure

to preserve those samples violated their due process rights. This

Court held that the officers were acting in "good faith and in accord

with their normal practice." Id. at 488-89. In the Petitioners case,

the officers clearly weren't acting in good faith nor were they act­

ing within their normal practice.

Video surveillance is without a doubt the go-to in any criminal inv­

estigation. Stites and Leopard have a combined 40 years experience

in both electronic and physical surveillance (DOC 15-1 at 224; DOC

15-4 at 170-73). When asked about why he made no inquiry into the

video to try and corroborate anything Burt or the other co-defendants

said, Stites merely replied "the thought definitely crossed my mind"

(DOC 15-1 at 291). The hotel logs were not even requested until

November 1, 2017. (DOC 15-1 at 277; DOC 15-2 at 124). Petitioner was

already picked up from Atlanta and transported to North Carolina for

trial, and had been awaiting trial for 83 day's before any information

was requested from Stone Mountain Inn.

17.

In Arizona v.

Youngblood, 488 U.S. 51 (1988). This Court held that

"unless a criminal defendant can show bad faith on the part of the

police, a failure to preserve evidence does not constitute a denial

of due process. Id. at 58. Court's have indicated that bad faith may

be a dishonest purpose, implied concious wrongdoing and even negligence

to the extent it is a breech of known duty.

Considering the value and the exculpatory nature that the video poss­

essed, it's easy to find a breach of duty and negligence that sur­

passes anything Petitioner has found in Lexis Nexis system. In every

case the video is the first thing law enforcement utilizes.

III. WHERE A DEFENDANT REJECTS A FORMAL PLEA

IN OPEN COURT, PURSUANT TO A COURTS FRYE

HEARING, DOES THAT BAR HIM FROM MAKING

A VALID CLAIM PURSUANT TO THIS COURTS

RULING IN LAFLER V. COOPER

In Strickland v. Washington, 466 U.S. 668 (1984), this Court held

that a defendant claiming ineffective assistance of counsel must

establish both that his counsels performance was deficient and that

he was prejudiced by it. Id. ct 693-94. In order to prove prejudice,

a defendant must show a "reasonalbe probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different. Id. at 694.

In Lafler v. Cooper, 566 U.S. 156 (2012), this Court addressed "how

18.

to apply Strickland prejudice test, where ineffective assistance

results in a rejection of a plea offer and the defendant is convicted

at the ensuing trial." Id. at 163. where "having to stand trial is

the prejudice alleged," then a "defendant must show that but for

the ineffective^advice of counsel" that there is "a reasonable pro­

bability that the plea offer would have been presented to the Court,

that

.the Court

iction

would have accepted it's terms, and that the conv-

the sentence, or both, under the offers terms would have

been less severe than the judgement imposed." Id. at 164.

"if the parties produce evidence disputing material facts with respect

to non-frivolous habeas allegations, a court must hold an evidentiary

hearing to resolve those disputes." U.S. v. White, 366 F.3d 291, 297

(4th Cir. 2004); See 28 U.S.C. 2255(b). An evidentiary hearing is

especially warranted when allegations in a section 2255 motion

"relate primarily to purported occurences outside the courtroom and

the record could, therefore, cast no real light, and where the ult­

imate resolution rest on credibility determination." White, 366 F.3d

at 302.

The trial Court rejected Petitioners claim because it found that

petitioner rejected the plea. During the Court's Frye proffer. The

Court apparently misapprehends that Frye dealt with whether or not

defense counsel actually communicated an offer to a defendant, in the

event a formal plea was extended. Missouri v. Frye, 566 U.S. 135, 145

(2012). The fact that Petitioner rejected the plea in open court does

19.

not reflect the adequacy of counsels advice. Fulton v. Graham, 802

F.3d 257, 263-64 (2nd Cir. 2015).

In U.S. v. Brannon, 48 F. App'x 51 (4th Cir. 2002), the fourth Circuit

in that case held that, "where the case was strongly against Brannon,

counsel's failure to pursue plea negotiations or to effectively comm­

unicate

the plea offer

would in fact be objectively unreasonable."

Id at 53 (citing Paters v. U.S. 159 F.3d 1043, 1047-48.(7th Cir.

1998)). The fact that Petitioner actually told counsel that he had

met with Burt in the past, counsel was clearly ineffective for not

seeking a more favorable plea for Petitioner as opposed to letting

him go to trial. All of Petitioners co defendants arranged for ex­

tremely favorable plea agreements, ranging from 380 day's to 92 months.

The Petitioner, arguably the least culpable, wound up with 262 month

sentence. In light of the fact that all Petitioner co-defendants were

willing to testify, counsel had a duty to advocate for a better deal.

U.S. v. Pender, 514 F. App'x 359 (4th Cir. 2013).

Had the Petitioner received competent advice and effective counsel,

Petitioner would have unequivocally plead out. Had petitioner plead

he would not have been subject to the enhanced penalty pursuant to

21 USC 851. The stipulation to the drug weight would have capped

Petitioner base offense level at 32,

210 -262 months. He would have

received the two level reduction further reducing his sentence to

168 -210 months. Substantially less than the 262 months Petitioner

recieved after the ensuing trial.

20.

IV. THE QUESTIONS PRESENTED IN THIS PETITION

ARE IMPORTANT AND REQUIRE THIS COURT

TO EXERCISE ITS SUPERVISORY POWERS TO

RESOLVE THE ISSUES

In accordance with Supreme Court Rule 10(c), the Fourth Circuit

Court of Appeals has decided two important federal questions that

have not been

but should be settled by this Court:

1) The Fourth Circuit erred by affirming the denial of Petitioners

motion to vacate as untimely. The Courts adverse decision directly

conflicts with the Federal Judiciary Advisory Committees inter­

pretation of Rule 2(b) of the rules governing section 2255

proceedings.

2) The Fourth Circuit erred by affirming the denial of Petitioners

motion to vacate regarding the Fifth Amendment due process viol­

ation. Petitioner proved actual prejudice and that prejudice

resulted form negligent conduct that was sufficiently severe.

In accordance with Supreme Court Rule 10(a), the fourth Circuit Court

of Appeals has sanctioned the departure of accepted and usual course

of judicial proceedings:

1) The Fourth Circuit erred by affirming the denial of Petitioners

motion to vacate by finding he had understood the plea where

in

open court, pursuant to the court's Frye hearing, Petitioner rej­

ected the plea. Petitioner alleged sufficient disputed factual

21.

*•

V'*\*

matter warranting an evidentiary hearing.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

22.