Petition for Writ of Certiorari — Lassissi Afolabi, Petitioner v. Warden, Federal Correctional Institution, Fort Dix

Supreme Court briefOct 15, 2024

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No.

-5817

IN THE

Supreme-Court, U.S.

FILED

SUPREME COURT OF THE UNITED STATES

OCT 1 5 2024

OFFICE OF THE CLERK

In re LASSISSI AFOLAFI Pro se_ PETITIONER

(Your Name)

vs.

WARDEN FORT DIX FCT

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

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

PETITION FOR WRIT OF CERTIORARI

T.AFSTSST AFOT.ART

(Your Name)

Federal Correctional Tnst1 tnt:ionr P.O. Roy 7000

(Address)

Joint: Base MDT,r N.T 08640

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

WHETHER § 2244(b)(1), (b)(2)'S BAR, WHICH EXPLICITLY REFERENCES ONLY § 2254,

ALSO APPLIES TO A CLAIM BY A FEDERAL PRISONER WTO BRINGS A SUCCESSIVE CHALLENGE

TO HIS CONVICTION UNDER §2255 ?

IF SO, DOES THE COURT OF APPEALS FOR THE, THIRD CIRCUIT ERR BY AFFIRMING TTTE

DISTRICT COURT'S JUDGMENT DISMISSING THE PETITION FOR LACE OF JURISDICTION WHEN

THE PETITIONER HAS RAISED JURISDICTIONAL VIOLATION?

LIST OF PARTIES

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

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

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

petition is as follows:

RELATED CASES

Afolabi v. Warden, FORT DIX FXI,

207.A it. 3. App. LFXIS 11863

Wo. 24-1174 Opinion filed Hay 16, 2024

Afolabi v. Knight,

2024 U.S. Dist. LEXIS 5840

Civil action No. 22-5633(CPO)

Decided January 11, 2024

Afolabi v. Warden, Fed. Corr. Inst. Fort Dix

.142 S. Ct. 926; 210 L. Ed. 1014; 2021 U.S. LEXIS 3666; 90 U.S.L.W. 3039

No. 20-7816

Decided August 23. 2021

Afolabi v. Warden, Fed. Corr. Inst. Fort Dix,

141 S. Ct. 2687; 210 L. Ed. 2d 843; 2021 U.S. LEXIS 2721; 89 U.S.L.W. 3994

Decided May 24, 2021

No. 20-7816

Afolabi v. Ortiz,

2020 U.S. Dist. LEXIS 491.48

Decided March 23, 2020

Civ. No. 19-8802

Afolabi v. United States,

581 U.S. 928; 13> S. Ct. 1604; 197 L. Ed. 2d 729; 2017 U.S. LEXIS 2533; 85

U.S.L.W. 3491

No. 16-8313

Decided. April 17, 2017

Afolabi v. United States,

2016 U.S. App. LEXIS 24515

Decided August 29, 2016

C.A. No. 16-1983

Afolabi v. United States,

580 U.S. 902; 137 S. Ct. 244; 196 L. Ed. 2d 186; 2016 U.S. LEXIS 5869; 85

U.S.L.W. 3146

Decided October 3, 2016

No. 16-5517

Afolabi v. Warden, Fort Dix FCI,

821 Fed Appx. 72; 2020 U.S. App. LEXIS 29447

Opinion September 16, 2020

No 20-1958

Afolabi v. United States,

2016 U.S. App. LEXIS 24515

C.A. No. 16-1983 Decided August 29, 2016

iii

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE MIT

...8

CONCLUSION

INDEX TO APPENDICES

APPENDIX A - OPINION AND JUDGMENT OF THE COURT OF APPEALS

ENTERED MAY 16, 2024

APPENDIX B - DISTRICT COURT'S OPINION AND ORDER DISMISSING THE PETITION FOR

LACK OF JURISDICTION

ENTERED JANUARY 11, 2024

APPENDIX C - ORDER DENYING THE PETITION FOR REHEARING TO EN RONE

ENTERED JULY 17, 2024

APPENDIX D - MOTION TO PROCEED IN FORMA PAUPERIS IS GRANTED

ENTERED FEBRUARY 28, 2024

APPENDIX E - CERTIFIED JUDGMENT IN LIEU OF A FORMAL MANDATE - TREATED IN ALL

RESPECTS AS A MANDATE

ENTERED JULY’ 25, 2024

APPENDIX F - THE DISTRICT COURT'S LIMITED ORDER TO ANSWER

ENTERED SEPTEMBER 6, 2024

APPENDIX G - THE DISTRICT COURT'S ORDER TO REOPEN THE CASE

APPENDIX H - THE DISTRICT COURT'S ORDER ADMINISTRATIVELY TERMINATING THE CASE

ENTERED OCTOBER 24, 2022

APPENDIX I - ALL DOCKET SHEETS RELATED TO THE. CASE

APPENDIX J - INITIAL SECOND OR SUCCESSIVE APPLICATION CERTIFIED BY THE COURT OF

APPEALS

ENTERED DECEMBER 27, 2021

APPENDIX K - EVIDENCE OF CONSTRUCTION OF THE STATUTES

APPENDIX L - ADMINISTRATIVE REMEDIES BP-8, BP-9, BP-10, BP-11

ANSWERS FROM GOVERNMENT

ENTERED AUGUST 23, 2022

TABLE OF AUTHORITIES CITED

CASES

Adams-v.-United-States,

313 IT.S. 312, 63 Supreme Court 1122, 87 2. Ed. 1421 (1943)

Afolabi,

No. 07-cr-0785 (D.N.J. Aug. 26, 2009)(ECF No. 122 at 1)...

Afolabi-v. Warden-Fort-Dix,

821 F. App'x. 72, 74 (3rd Cir., 2020).....................................

Avery-v.-United-States,

589 U.S.,~_____-, 140 S. Ct. 1080, 206 L. Ed. 2d. 488 (2020)

Bailev-v. Drexel-Furniture-Corananv,

259 u.S. 20 (1922).................... .....................................................

Batoff-v.-State -Farm-Insurance -Company,

977 F. 2d. 848, 851 n.5 (3rd Cir. /1992)...................................

Bell -v..Maryland.

378 U.S/ 266, 224 (1964)................................................................

Bender-v.-Williams-Port-Areas-School-District,

475 U.S. 534, 89 L. Ed. 2d. 501, 106.S. Ct. 1326 (1986).......

Best-Foods-v.-United-States,

147 F. Supp. 749, 37 Cust. Ct. 7 (1956).....................................

Bouslev-v.-United-States,

523 U.S. 6l4, 618-1Q (1098)..........................................................

Brown-v.-Davenport,

596 U.S.-142 S. Ct. 1510, 212 L. Ed. 2d. 463 (2022).

Bruce-v.-Warden-Lewisberg-USP,

868 F. 3d. 170 (3rd. Cir., 2016).................................................

Davis-v.-United -States,

417, U.S. 333 (1974) ............................................................... ....

Ex-parte-McCardle,

7 Wall 506, 19 led. 264 (1868).....................................................

Ex-parte-Watkins,

28 U.S. 193, 3 Pet. 193, 202, 7 L. Ed. 650 (1830)..................

Gallagher-v.-United-States,

711 F. 3d. 3l5 (CA2 2013)..............................................................

Generally In re Afolabi;

No. 21-3203, ECF No. 4 (3rd Cir., 2021).....................................

Gonzales-v.-Thaler,

565 U.S. 134 (2012).........................................................................

Gould -Flees.-Inc..v.-United -States,

220 F. 3d. 169, 176 (3rd Cir., 2000)............................................

Hagan-v.-Lavine,

415 U.S. 528 (1974).........................................................................

Hale-v.-United -States,

89 F. 2d (4th Cir)...........................................................................

Hartford-v.-Davis,

16 S. Ct. 1051 (1896)............................................................................

Havroan.

3^2 U.S., at 215, n. 23, 72 S. Ct. 263, 96 L. Ed. 232 (1952)

Hend re son-v.-Morgan,

426 U.S. 637 0976)................................................................................

In.re-Baptiste,

828 F. 3d 1337, 1339-1340 (CA 11 2016)

PAGE NUMBER

33, 36

In-re - Bourgeois,

Q02 F. 3d. 446, 447 (CA 5 2018)...................................................

In-reBowe,

Case No. 22-7871, 2024 U.S. LEXIS 988 (Feb. 20, 2024)...........

16, 17, 18

In-re-Dorsainvil,

IIP F. 3d. 245 (1997).....................................................................

10, 21, 22

In-re-Graham,

61 F. 4th 433 (CA 4 2023)..............................................................

In-re - Sharing-Plough-Corn.- Intro/Temodar-Consumer-Class-Action,

757 F. 3d. 347 ('Srd Cir., 2024)..............................

Jones-v. -Fendrix,

142 S. Ct. 1857 (2023).................................................

9, 10, 11, 14, 22

Jones-v. United - States,

3& F. 4th 974, 982 (CA 9 2002)...................................

Leavenworth-v.-Iowa,

ll4 U.S. 525 (1885).......................................................

Long-v. Pennsylvania-Transportation-Authority,

903 F. 3d.'312, 320 (3r<J. Cir., 2018)..................

Manhatten-Gen.-Equip.-Co.-v-CIR,

257 U.S. at 134 (1936)......... ................................ .

Marburv-v.-Madison,

1 cranch 137, 173-180 2 L. Ed. 60 (1803).................

16, 35

McCullouch-v. Mariland,

4 wheat 315 (1819)......................................................

Mitchell-v.-Maurer,

293 U.S. 237, 79 L. Ed. 338, 55. S. Ct. 162 (1934)

Montgomery-v.-Louisiana,

136 S. Ct. 718, 731 (2015)..........................................

Morning-v.-Family-P..Services -Inc.,

411 U.S. 354, 369 (1073)........... ..................................

Neel-v. United-States,

246 F. Supp. at 1.0 (1966)............................................

Nigro-v.-United-States,

275 U.S. 332 (1028).......................................................

Odiev. Xnight,

2023, U.S. Dist. LEXIS 128867 CIV. No. 22-5240 (RMP) (3rd Cir., 2023)

Okerekev. United-States,

307 F. 3d. 117, 120 (3rd Cir., 2002)..........................................................

Pearl-v.-Motor-Vessel-Bering-Explorer,

373 F. Supp. 927 (1074)...... ........... ...............................................................

Prince -v.-Johnson,

334 U.S. 266, 287-203, 02 L. Ed. 1351-1373, 68 S. Ct. 1040 (1048)....

Rumsfeld -v.- Padilla,

542 U.S. 426 (2004)........................................................................................

Sanders -v.-United-States,

373 U.S. 1, 17, 10 L. Ed. 2d. 148, 83 S. Ct. 1068 (1063)......................

Schuchardt-v.-President of-the U.S.,

830 F. 3d. 336, 343 (3rd Cir., 2016)..........................................................

Smith-v.-OIGradv,

312 U.S. 320", 334 (1041)................................................................................

Sumner-v.-Mata,

440 U.S. 530, 547-548 n.2, 66 L. Ed. 722, 101 S. Ct. 764 (1081).........

Tavlor-v.-Gilkev

314 F. 3d. 832, 836 (CA 7 2002)

vii

Voneida-v. Johnson,

AA F. 4th 233, 239 (3rd Cir., 2023)............................................

Wander,

601 F. 2d at 1230 (1979)................................................................

Weber-v,-MeGrogan,

039 F. 3d.253, 230-40 (3rd. Cir., 2010).....................................

Western-.Union-Teles, Co. -v, -E.C.C.,

541 F. 2d. (346, 354 (3r=' Cir. 1076), Cert. Den. 429 U.S.

1020 (1077).......................................................................................

Williams-v.-United-States,

927 F. 3d. 427, 431 (6th Cir., 2000)..........................................

Winarske-v.-United -States,

013 F. 3d. 745, 748-749 (CA 8 2019)............................................

United-States-v.-Afolabi,

455 F. App'x. 184, 187 (3rd Cir., 2011).....................................

United -States -v. Afolabi,

Crim. No. 07-785..............................................................................

United States -v.- Beard,

4l4 F. 2d. 1014, 1015 (3rd. Cir., 1069).....................................

United- States -v. Sevens,

16 U.S. (3 wheat) 336 (1818).........................................................

United-States-v.-Benson,

495 F. 2d. 481 (1944).....................................................................

United-States-v.-Berlin,

472 F. 2d. 1002, 1007 (2nd Cir., 1073)......................................

United-States-v.-Cenero,

224 F. 3d 256, 264-45 (3rd. Cir., 2000)............. .......................

United-States-v.-Corrick,

208 U.S. 435, 440, 80 L. Ed. 1263, 56 D. VY. 829 (1036).......

United-States-v. Davis,

(No. 18-431) (S. Ct., 2010)..........................................................

United -States-v,.Larionoff,

431 U.S. 864, at 073, 07 S. Ct. 2150, at 2156, 53 L. Ed. 2d.

48 at 56 (1077)................................................................................

United-States-v.-Mauszak,

234 F. 2d. 421, 423 (3rd Cir., 1056)..........................................

United-States-v.-Mersky,

34l U.S. 431, 438 (T060)................................................................

United-States-v. Nevers,

7 F. 3d. 514 (5th Cir., 1903).......................................................

United - States-v. Pupo,

841 F. 2d. 1235 (1988)........... ........................................................

United-States-v. Rogers,

23 F. 458 (D.C. Ark. 1885)............................................................

United-States -v. Root,

296 F. 3d. 1222, 1231 (11th Cir., 2002).....................................

United -States -v.- Spinner,

180 F. 3d. 514 (3rd Cir., 1000)...................................................

United -States -v.-Stirone,

361 U.S. 212, 4 L. Ed. 2d. 252, 80 S. Ct. see at 273 (I960).

United-States-v. Tvkarskv,

444 E. 3d. 458,'449 (3rd Cir., 2006)..........................................

United-States-v. Welden,

377 U.S. 95 (1944)...............

viii

25, 31

27, 20

25, 31

24, 30

25, 31

United.States v.Uinkelman,

218 L. Ed. 2d. 68 746 F. 3d. 134, 135-138 CCA 3 2014)......................

United-States-v. Unco,

535 F. 2d 1225 (oth Cir., 1076) Cert. Den. 420 U.S. 078, 07 S. Ct.

488, 50 L. Ed. 2d 586 (1076)

United States-v.-Zanger,

848 F. 2d. 023, 025 (8th Cir • 5 1088)

25, 31

STATUTES AND RULES

1 U.s.c: 5 204(A)......................

8 U.S.C. $ 1324(a)(1)(A)(V)(i)

8 U.S.C. S 1324 (a)(2)(B)(ii).

18 U.S.C. 6 371...........................

18 U.S.C. § 1546 and 2...............

18 U.S.C. 5 1580..........................

18 U.S.C. § 2241..........................

18 U.S.C. § 2246..........................

18 U.S.C. $ 2423(a)....................

18 U.S.C. § 242.3(b)....................

18 U.S.C. 5 2423(c)....................

18 U.S.C. 5 3006A(a)(2).............

28 U.S.C. § 1631..........................

28 U.S.C. $ 1015(e)(2)...............

28 U.S.C. 5 2241..........................

28 U.S.C. 5 2241(c)(3)...............

28 U.S.C. 5 2241(d)....................

28 U.S.C. $ 2244(a)....................

28 U.S.C. § 2244(b)(1)...............

28 U.S.C. 5 2244(b)(2)...............

28 U.S.C. $ 22.44(b)(3)...............

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

28 U.S.C. 5 2255(a)....................

28 U.S.C. § 2255(e)....................

28 U.S.C. § 2255(h)....................

28 U.S.C. 5 2255(h)(1)...............

40 U.S.C. § 255...........................

Fed. R. Crim. P. 12(b)(2).........

Fed. R. Civ. P. 23......................

Rule 12(b)(1)...............................

Rule 20.4(a).................................

5, 28, 35

5, 25, 20, 33, 35

30, 33

5, 20, 21, 26, 30, 35

8, 0, 10, 11, 14, 21, 36

................... 8, 17, 18

7, 8, 10, 17, 18, 10

.................. 8, 18, 10

6, 7, 10, 14, 10, 36

7, 8, 0, 11, 14, 36

........................0, 10

8, 36

OTHER

3d Cir. I.O.P. 0.1.................................................

20 AM Jur 2d. 60, 377............................................

ARTICLE III..............................................................

CHAPTER 100A............................................................

CHAPTER 117..............................................................

S. Rep No. 1550, 80th Cong. 2nd Sess. 0 (1Q48)

TITLE 18 Part 1.......................................................

24, 30, 31, 34

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

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

OPINIONS BELOW

[ ] For cases from federal courts:

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

the petition and is

[ ] reported at

; or,

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

M is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] 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.

JURISDICTION

[ ] For cases from federal courts:

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

was Mav 1 5 f ?.n?4

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

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

Appeals on the following date: July 17. 20?,4

, and a copy of the

order denying rehearing appears at Appendix _C

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

to and including _

(date) on

(date)

in Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

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

______________________, and a copy of the order denying rehearing

appears at Appendix

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

to and including____

(date) on

(date)in

Application No. __ A

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

DUE PROCESS OF FIFTH AMENDMENT

...,.24, 31

c : f I

FEDERAL GOVERNMENT LACKED FEDERAL LEGISLATIVE, TERRITORIAL OR ADMIRALTY

JURISDICTION IN OVER. THE LOCUS QUO

II. THE FEDERAL GOVERNMENT CHARGING INSTRUMENT ARE FATALLY DEFECTIVE

t t C I i

HI. FEDERAL GOVERNMENT FAILED TO ESTABLISH FEDERAL INTERSTATE COMMERCE

.1 * « r. •

IV. TITLE 18 USC IS UNCONSTITUTIONAL, CAUSING IMPRISONMENT TO BE FAUL.SE » o c • *

STATUTES

8 U.S.C. § L324(a)(l)(A)(V)(i),

c c « *

» • a « c a c • t t c • • » • o .*• '*

a % o « •

ft • • • • c t 9 i

- e

8 U.S.C. § 1324(g)(2)(B)(li)

18 U.S.C. § 1546

O ?

18 U.S.C. § 371

18 U.S.C. § 1589

f e

28 U.S.C. § 2244(b)(1), (b)(2)

•?

; t

3 9

............... 5, 28, 35

e *

18 U.S.C. § 2423(b) .

• c

5, 25, 29, 33, 35

5, 20. 21, 26, 30, 35

7, 8, 10, 17, 18,

STATEMENT OF TOE CASE

From October 2000 through September 2007, it is alleged that Lassissi

Afolabi conspired with his ex-wife, Akouavi Kpade and others to obtain the

forced labor of twenty four young girls from Togo and Ohana who had been

brought to United states with fraudulently obtained visas. The girls, it is

alleged range from 10 to TO years old, were required to work at the hair

braidine Salon un to fourteen hours a day, for six or seven days per week, and

were forced to turn over all their earning including tips to the defendants.

FACTS AND PROCEDURAL HISTORY

As reminder, in this Case/Petition, in 2007, an individual ('"not the

government official ") was arrested early in the morning in his house, in East

Orange, New Jersey and put in Jai 1. The Court must always refer to the context

in which this case was presented to the public and above all, the District

Court in 2007. (The Initial Indictment of the Appellant and co-defendants). The

core of this case is "Fringing aliens into the United States in violation of

the Immigration Reform and Control Act, 8 U.S.C. S 1324(a)(l)(A)(v)(i) and

transporting

alien

within

the

United

States

violation

1324(a)(2)(B)(ii), 18 U.S.C. 5 1546 and 2." The core of this case started in

Africa, specifically, Togo and Ghana. This case involves bringing West African

females, also referred to herein as "the girls" by obtaining Diversity Visas

(DVs') fraudulently. The eirls in this case had used

those visas to enter into

United States. The girls's passports were true and real, and were delivered to

them by the official authorities of Toro and Ghana. The visas in their

passports were given to them by the American Embassy. Neither their passports

nor their visas were fake. When the girls arrived at JFK Airport, the U.S.

Customs had let them through, entered the United States territory.

The Petitioner in this case, who has never played the lottery and never

involved in filing one, only picked up these girls at JFK Airnort in New York

after they entered in the country and transported them to his place where he

lived. The Petitioner did not transport these girls across the borderlines into

the United States. The Petitioner did not conspire with any mean with anyone to

bring these girls into the United States. The Petitioner only gave them a place

to stay so they could pursue and achieve their dreams.

On October 4, 2007, the federal grand jury sitting in Newark, New

Jersey, returned an Indictment charging the Petitioner with conspiracy to

harbor illegal aliens for the purpose of commercial advantage and private

financial gain. On January 15, 2009, the same federal grand jury which had

returned the

first Indictment against the Petitioner and others on October 4,

2007, returned a superseding Indictment which charged the Petitioner with

multiple charges, ("multi-object conspiracy count.").

The Petitioner pleaded guilty to three Counts of superseding indictment as

fol 1 ows:

(1) Count 11 - Conspiracy to commit force labor/trafficking document

in violation of IS U.S.C. § 371;

(2) Count 13 - Forced Labor in violation of 18 U.S.C. § 1589; and

(3) Count 23 - Traveling for Purpose of Engaging in Illicit Sexual

Conduct, in violation of 18 U.S.C. S 2423(2).

In 2010, the District Court sentenced Petitioner to 292 months in prison

for various offenses, including life suDervised release, and register as sex

offender.

The

Court

also

ordered

the

Petitioner

to nay restitution

83,949,140.80 with his co-defendants. The money which the Petitioner has never

seen or used. He timely appealed on March 31, 2008. The Third Circuit affirmed

the conviction and sentence in non-precedential decision filed December 16,

2011. United States v. Afolabi, 455 F. App'x 184, 187 (3d Cir. 2011).

After the Court of Anneals affirmed the judgment, the Petitioner moved

the District to vacate, set aside, or correct his sentence pursuant to 28

U.S.C. § 2255. The District court denied that motion on the merits, and the

Court of Appeals denied certificate of apnealability ("COA"). See C.A No. 161983. Next, while the Petitioner was incarcerated at Fort Pix FCI in New

Jersey,

filed

his

first

2241

petition,

collaterally attacked his

conviction and sentence. The District Court dismissed that petition for lack of

jurisdiction, and the Court of Aopeals summarily affirmed that judgment. See

Afolabi v. Warden Fort Dix, 821 F. App'x 72, 74 (3d Cir. 2020) (per curiam).

Later, the Petitioner anolied for permission to file a second or successive §

2255 motion, but the Court of Anneals denied that application. See C.A. No. 213203, APPENDIX J. The Petitioner has exhausted all his Administrative Remedies

pp-8,

BP-9, BP-10, BP-11. See the answers of the .Administrative Remedies

-APPENDIX L. In 2022, again when the Petitioner x<ras incarcerated in Fort Dix

FCI, he filed a second § 2241 in the District court. On January 11, 2.02M, the

District Court dismissed that case for lack of jurisdiction, on January 23,

2024, the Petitioner timely anpealed. On Nav 16, 202A, with NOT PROCFDENTTAL,

the Court of Appeals summarily affirmed that judgment. See C.A. No. 24-1174)

(per curiam), APPENDIX A. On June 27, 202.4, the Petitioner filed Petition for

Rehearing en banc. On July 17, 2024, the Rehearing Court denied the Petition.

See the Order APPENDIX C. Now, the Petitioner proceeds to this Court.

Summary of Argument

Does the-.-federal prisoners collateral attacks on their sentences through

habeas corpus proceedings?

1T Section 2255 solved these problems by rerouting federal prisoners'

collateral attacks on their sentences to the courts that had sentenced them. To

make this change of venue effective, Congress generally bared federal prisoners

'authorized to apply for relief by motion pursuant to' § 2255 from applying

'for a writ of habeas corpus' under § 2241. § 2255(e). Put, in a provision that

has come to be known as the saving clause, Congress preserved the habeas remedy

in cases where 'the remedy by motion is inadequate or ineffective to test the

legality of \a prisoner's] detention.

ibid."); Rumsfeld v. Padilla. 542 U.S.

426 (2004) ("Until Congress directed federal criminal prisoners to file certain

postconviction in the sentencing courts by adding § 2255 to the habeas statute,

federal prisoners could litigate such collateral attacks only in the district

of confinement.").

The Petitioner asserts that 28 U.S.C. § 2244(b)(2) should not prevent

the prisoners to collateral attack their conviction and sentence when the

sentence imposed by the District Court violates the Constitution, or the laws

of the United States. Thus, the District Court and the Court of Appeals erred

not to resolve the jurisdictional issue raised by the Petitioner in this case.

REASONS FOR GRANTING TFTE PETITION

The reasons for this Court to grant this Petition is that "a state court

or a United States Court of Appeals has decided an important question of

federal law that has not been, but should be, settled by this Court, or has

decided an important federal question in a way that conflicts with relevant

decisions of this Court.

The Petitioner asserts that he is federal prisoner, not a state

prisoner, or a state prisoner transferred to a federal institution and his 28

TJ.S.C. 6 2241 Petition under §2255(e) has been dismissed based on § 2244(b)(2),

and clarification is needed under 28 U.S.C. § 2244(b)(1) and (b)(2) procedure

to resolve the issue. The writ will be in aid of the Court's appellate

jurisdiction and that exceptional circumstances warrant the exercise of the

Court's discretionary powers, because the Petitioner believes that adequate

relief cannot be obtained in any other form or from any other court. See Rule

20.4(a)

In this instant Case/Petition, the Petitioner respectfully asks this

Court to review his entire case, including Indictment, Superseding Indictment,

Plea Agreement, all the court's transcripts and all filing documents related to

this case in order to make a reasonable decision to help the Appellate courts.

The Petitioner contends that the Court of appeals for the Third Circuit

affirming the District Court's decision dismissal of his Petition filed

pursuant to 5 2241 under § 2255(e) without hearing is unwarranted. See Sanders

v.-United-States, 373 US 1, 17, 10 L Ed 2d 148, 83 S Ct 1068 (1063).

In the Petitioner's Petition, he has asserted that he is being held

involuntary servitude by the Bureau of Prisons because his sentenced convicted

under Title 18 USC. The Petitioner has raised four grounds in the application

and the Court of Appeals of the Third Circuit erred not to conduct its ruling

based on the Petitioner's application in order to reach an unconstitutional

ground.

While the Petitioner's Petition was pending in the District of Camden,

New Jersey - where the Petitioner is confined, The Supreme Court of the United

States has decided Jones v. Hendrix, 143 S. Ct. 1857 (2023). In Jones, the

Supreme Court held that "Section 2255(e)'s saving clause preserves recourse to

§ 2241 in cases where unusual circumstances make it impossible or impracticable

to seek relief in the sentencing court, as well as for challenges to detention

other than collateral attacks on a sentence. Put §2255(h) specifies the two

limited conditions in which federal prisoners may bring second or successive

collateral attacks on their sentences. The inability of a prisoner with a

statutory claim to satisfy §2255(h) does not mean that the prisoner may bring

the claim in a § 2241 Petition." Pp. 3-12.

On 09/06/2023, the District Court stated that "this Court has screened

the Petition for dismissal and determined that dismissal without a limited

answer and the record is not warranted." The District court then ordered the

parties to submit a limited answer. See the District Court's Limited Order

-APPENDIX T?. On September 8, 2023, the Respondent asked the District court to

dismiss the Petition for lack of subject-matter jurisdiction.

On October 10, 2023, the Petitioner filed a Reply, objecting to the

Respondent's response.

The Petitioner pointed out that the United States

Supreme Court's decision in Jones v. Hendrix, should not bar him from pursuing

his claims under § 2241 because he is being held in unlawful custody by the

BOP, and that recourse could be pursued under the saving clause § 2255(e), and

that his Petition presented jurisdictional concern.

The Petitioner also asked the District Court to transfer the case to the

appropriate Court, which has jurisdiction over this issue for further review,

citing 28 U.S.C. § 2241(d). See Page 1 and 2 of the Petitioner's Objection to

the Appellee's Letter in the existing files.

10.

The Judge, in her opinion stated that the claims raised by the

Petitioner

in his Reply should be raised under §

2255 but

instead of

transferring the Petition to the appropriate court, she dismissed it for lack

of jurisdiction,

stating that,

"as it does not appear that Appellant can

satisfy the requirement of § 2244(b)(2)." See District Court's Opinion and

Order - APPENDIX B

11.

The Petitioner filed timely appeal. On Appeal, the Petitioner disagreed

with the District Court, stating that, "That decision is unwarranted for a

dismissal for lack of jurisdiction." The Court of Appeals transferred the

Petition to the sentencing District court of Newark, New Jersey.

12.

The Petitioner pointed out that "Before the holding of Jones v.

Hendrix, 143 S. Ct. 1857 (2023), all the courts directed the prisoners to

pursuit their executive § 2241 claims in the court of their confinements - that

the prisoners had been followed. See Dorsainvil, 119 F.3d 245 (1997); see Bruce

v. Warden Lewisberg. USP, 868 F.3d 170 (3d Cir. 2016)."

13.

But, "Now in real life, we all understand that we dance on the rhythm

of tom-tom or music, and when the rhythm changes, the dance also changes. Even

if the dance changes, still, everybody's dance cannot be the same. That is

common sense. Here, the United States Supreme Court has changed the rhythm of

the old proceedings and this Court should review this case to make a good

decision for the prisoners."

14.

On the three-page letter sent by STEVEN G. SANDERS, Assistant United

States Attorney, dated February 5, 2024, the Respondent stated that, "The

District Court dismissed the prisoner's petition for a writ of habeas corpus

under 28 U.S.C. § 2241 for lack of subject-matter jurisdiction. Doc. No. 1-2 at

1. It did so because, after Jones v. Hendrix, 599 U.S. 465 (2023), the "saving

clause," 28 U.S.C § 2255(e), no longer supplies jurisdiction to consider the

legality of a prisoner's conviction or sentence based on a subsequent Supreme

Court decision narrowing the statute of conviction." See Page 2 and 3 of the

APPELLEE'S LETTER, dated February 5, 2024, in existing files.

15.

The Petitioner strongly objects to the Respondent's argument. He

asserts that the United States Supreme Court stated that "The saving clause

might also apply when 'it is not practicable for the prisoner to have his

motion determined in the trial court because of his inability to be present at

the hearing, or for other reasons. I »• 2 Hayman, 342 U.S., at 215, n. 23, 72 S.

Ct. 263, 96 L. Ed. 232 (Internal quotation marks omitted).

16.

Here, the Petitioner has argued that the United States Supreme Court

has not defined "for other reasons." He has asserted that jurisdiction concern

may be raised in order to satisfy the "saving clause."

The Petitioner has also

pointed out that because the majority relies on Ex parte Watkins, the Court of

Appeals should analyze this holding of the Supreme Court: "At the founding, a

sentence after conviction 'by a court of competent jurisdiction' was

1 ••

itself sufficient cause r (

for a prisoner's continued detention." Brown v.

Devenport, 596 U.S.__,

, 142 S. Ct. 1510, 212 L. Ed. 2d 463 (2022) (slip

op., at 8) (quoting Ex parte Watkins, 28 U.S. 193, 3 Pet. 193, 202, 7 L. Ed.

650 (1830)). The Petitioner has also pointed that, for example, if the courts

eliminate a jurisdictional concern from the "saving clause", how the prisoners

will demonstrate that the courts which have sentenced them are incompetent

since there are many different jurisdictional powers given to the courts? The

Petitioner has

stated

that,

"The opportunity must be

given to them to

demonstrate those claims anew." See Page 3, paragraph 2, 3 and A of the

Petitioner's Objection To the Appellee's Letter in existing files.

17.

The Petitioner has pointed out that, "Because the Appellee asked the

District Court to dismiss the Petition for lack of subject-matter jurisdiction

without further proceedings or transfer the Petition to appropriate Court, the

District Court and the Appellee make it 'impracticable' for the Appellant to

have his claims be heard and 'impracticable' for him to have relief." Citing,

Co. C., explains that, "a lawsuit initiated or defended by a person, who brings

it or defends it for himself and on behalf of all other persons similar

situated.

If persons constituting a class are so numerous as to make it

'impracticable' to bring them all before the court, such of them, one or more,

as will fairly insure the adequate representation of all may, on behalf of all,

sue or be sued in certain instance, depending upon the character of the right

sought to be enforced." Fed.

R. Civ.

23." See Page A and 5 of the

Petitioner's OBJECTION TO THE APPELLEE'S LETTER in the existing files.

18.

Right after the Petitioner's objection to the Appellee's Letter, the

Court of Appeals sent a letter to the Petitioner, granting him a motion to

proceed in forma pauperis, stating that "the appeal will be submitted to a

panel of this court for determination under 28 U.S.C. Section 1915(e)(2) as to

whether the appeal will be dismissed as legally frivolous." See Court of

Appeals's Letter - APPENDIX D

19.

The Petitioner has pleaded the Court of Appeals not to dismiss his

appeal as legally frivolous under 28 U.S.C. Section 1915(e)(2) because he is

entitled to relief. The Petitioner has also asserted that the claims raise in

his complaint are facts and true. He contends that the Court of Appeals should

not dismiss his Petition because: "(a) on February 23, 202A, he has sent his

Objection to the Appellee's Letter, which means it is timely filed and no

penalty should be used against him. (b) the allegation of poverty is true, not

only the Government seized all of his money but the district court also ordered

him to pay restitution of $3,949,140.80, with his co-defendants, and the BOP

has been taking $25.00 every three months from his prison's account as IFRP

payment regarding that restitution, (c) The Appellant contends that his appeal

challenges the jurisdictional concern, which has become a dispute between the

parties.

(d)

allegations

The

Appellant

true

and

contends

that

this

grants him relief."

court

considers

See Page 1

all

his

and 2 of the

Petitioner's Reply to the Court's Letter in the existing files.

20.

The Petitioner has also asserted that "the District Court of Camden,

New Jersey dismissing his Petition for lack of jurisdiction without holding a

hearing to determine the jurisdiction concern is unwarranted. The District

Court erred not to hold a hearing to resolve the jurisdictional dispute between

the parties before making its decision." The Petitioner states as follows:

a district court entertaining a Rule 12(b)(1) motion to dismiss must first

ascertain whether it 'presents a 'facial' attack or a factual' attack on

the claim ... at issue, because that distinction determine how the

pleading must be reviewed." Long v. Pennsylvania Transportation Auth., 903

F.3d 312, 320 (3d Cir. 275T8) (quoting In re Schering PTough" Corp.

Intro/Temodar Consumer Class Action, 757 F.3d 347, 357 (3d Sir. 2014).

When there is a facial attack on a claim a district court "must only

consider the allegations of the complaint and documents referenced therein

and attached thereto, in the light most favorable to the plaintiff." In re

Schering Plough, 678 F.3d at 243 (quoting Gould Flees., Inc v. United

States, 220 F.3d 169, 176 (3d Cir. 2000)). On the other hand, if the

contests the truth of the jurisdictional allegations, there is a

factual attack and the district court must hold a plenary trial to resolve

any material factual dispute. Long, 903 F.3d at 320 (citing Constitution

Party of Pa., 757 F.3d at 357); Schuchardt v. President of the U.S., 839

F.3d 336, 343 (3d Cir. 2016)). See also, Odie v. Knight, 2023 IJ.S. Dist.

LEXIS 128867 CIV. No. 22-5249 (RMP) (3d Cir. 2023)7“See Page 3 of the

Petitioner's Reply to the Court's Letter in the existing files.

21.

The Petitioner has also pleaded the Court of Appeals to reverse the

decision of the District Court of Camden, New Jersey, and hold a hearing to

resolve this Issue. Otherwise, relief should be granted In the Appellant's

favor. The Petitioner has also contended that the District Court for the

District of Newark, New Jersey should respond to the Issue of jurisdiction. See

Page 3 and 4 of the Petitioner's Reply to the Court's Letter.

22.

On May 16, 2024, with NOT PRECEDENTIAL, the Court of Appeals summarily

affirmed the District Court's judgment. See C.A No. 24-1174) (PER CURIAM),

APPENDIX - A. By affirming the District Court's judgment, the Court of Appeals

stated that:

A § 2255 motion is the presumptive means by which a federal prisoner can

collaterally attack the legality of his conviction or sentence. See

Okereke v. United States. 307 F.3d 117, 120 (3d Cir. 2002). A federal

prisoner may instead proceed under § 2241 only if he demonstrates that a §

2255 motion would be "inadequate or ineffective to test the legality of

his detention." 28 U.S.C. § 2255(e). While Afolabi's second § 2241 case

was pending before the District court, the Supreme Court clarified that a

§ 2255 motion is "inadequate or ineffective" under § 2255(e) only (1)

"where unusual circumstances make it impossible or impracticable to seek

relief in the sentencing court," or (2) where the litigant is asserting a

"challenge[] to detention other than [a] collateral attack[] on a

sentence." Jones v. Hendrix. 599 U.S. 465, 478 (2023).

We agree with the District Court that Afolabi's second § 2241 case

was subject to dismissal for lack of jurisdiction, for neither of the two

situations described in Jones is present in his case. See Voneida v.

Johnson, 88 F.4th 233, 239 (3d Cir. 2023) (remanding with instructions to

dismiss § 2241 petition for lack of jurisdiction in view of Jones).

Because this appeal does not present a substantial question, we will

summarily affirm the District Court's judgment. Afolabi's motion for

appointment of counsel is denied, as the "interests of justice" do not

require counsel appointment in this appeal. See 18 U.S.C. § 3006A(a)(2).

S|e Opinion and Judgment of the Court of Appeals - APPENDIX A

Afolabi does not need to obtain a C0A to proceed with this appeal. See

United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en bancTT

abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012)."

S|e Footnote, Page 3 of the Court of Appeals's opinion.

" In dismissing Afolabi's second § 2241 case, the District Court declined

to exercise its discretion under 28 U.S.C. § 1631 to transfer the matter

to our Court for treatment as another application for leave to file a

second or successive § 2255 motion. That was not an abuse of discretion,

especially since Afolabi's second § 2241 case raises the same claims that

^ndergirded his application that we denied in C.A. No. 21-3203.

We have considered Afolabi's various arguments in support of this appeal

and conclude that none has merit." See Page 4 of the Court of Appeals's

Opinion and Judgment - APPENDIX A.

23.

Here in this instant case/Petition, the Petitioner contends that the

Court of Appeals erred not to rule In Petitioner's favor since the sentencing

District Court of Newark, New Jersey, has not responded to the alleged

jurisdictional concern.

See Footnote,

Page 1 of District Judge O'HEARN's

Opinion

Court

had

(ECF No.

5.)

("^

jurisdiction.

The

ordered

limited

answer

the

issue

The Honorable Jose L. Linares presided over

Petitioner's criminal case, United v. Afolabi, Crim. No. 07-785".

24.

Defendant asserts that the UNITED STATES by and through its agent, the

'U.S. Attorney', lost its jurisdiction, once it failed to determine (prove)

jurisdiction to hear this case at bar before proceeding with a plea/trial

within the US District Court. (The U.S. District Court had an obligation to

compel

the United States to prove jurisdiction in the best interest of

justice). BRIEF MEMORANDUM OF LAW, No. [23.].

25.

Defendant contends that the question-challenging jurisdiction, was

[NEVER WAIVED] by the defendant. It is well settled in the laws that when

jurisdiction of the court and of the United States is challenged, thus "ONUS

PROBANDI IS THE ACTOR". Onus probandi burden of proving the burden of proof:

"The strict meaning of the onus probandi," is that, if no evidence is adduced

by the party on whom the burden is cast, the issue must be found against him.

DAVIS VS. ROGERS, 1 Foust (del) 44. "Where jurisdiction is challenged it must

be proved." HAGAN VS. LAVINE, 415 u.s. 528 (1974). See BRIEF MEMORANDUM, No.

[24.].

26.

"A COURT CANNOT PROCEED AT ALL IN ANY CASE WITHOUT JURISDICTION BUT

MUST ANNOUNCE THE fact and dismiss the cause." See EX PARTE MCCARDLE, 7 wall

506, 19 Led. 264.... Federal courts are not courts of general jurisdiction;

they have only the power that is authorized by Article III of the constitution

(their contract/compact) and statutes enacted by congress pursuant thereto. See

MARBURY VS. MADISON, 1 cranch 137, 173-180 2 L.Ed. 60 (1803). For that reason,

every federal appellate court has a special obligation to "satisfy itself not

only of its jurisdiction, but also that of the lower courts in a cause under

review," even though the parties are prepared to concede it. MITCHELL VS.

MAURER, 293 u.s. 237, 244, 79 L.Ed 338, 55 s.ct. 162 (1934).... "And if the

record discloses that the lower court was without jurisdiction (SUCH AS IN THIS

CASE) Appellate court will notice the defect, although the parties make no

contention concerning it." BENDER VS. WILLIAMS PORT AREAS SCHOOL DISTRICT, 475

u.s . 534, 89 L.Ed 2d 501, 106 s.ct. 1326. When the lower federal court (and

therefore the United States) lacks jurisdiction. APPELLATE HAVE JURISDICTION ON

APPEAL, NOT OF THE MERITS BUT MERELY EOR THE PURPOSE OF CORRECTING THE ERROR OF

THE LOWER COURT IN ENTERTAINING THE SUIT. See UNITED STATES VS. CORRICK, 298

u.s. 435, 440, 80 L.Ed. 1263, 56 D. VY. 829 (1936) See also SUMNER VS. MATA,

449

u.s.

539,

547-548 n.2,

66 L.Ed.

722,

101

s.ct.

764

(1981). • • • This

obligation to notice defects in a court of appeals, regarding subject matter

jurisdiction, assume a special importance when a constitutional question is

presented. In such cases, we must go strictly to the standing requirements to

ensure that our deliberations will have benefit of adversary presentation and

full development of the relevant facts. THE COURT MUST BE MINDFUL THAT THE

POWERS OF THE, LEGISLATURE ARE DEFINED AND LIMITED AND THAT THOSE LIMITS MAY NOT

BE MISTAKEN OR FORGOTTEN. ‘Tfc constitution of the United States of America has

been written indeed with this, the very essence of the judicial duty. See

MARBURY VS. MADISON, 5 u.s. 137, 176-178, 1 cranch 137 (1803). See also, BELL

VS.

MARYLAND

378 u.s.

266,

224

(1964)

(Douglas J.

Concourring).

BRIEF

MEMORANDUM No. [25.]

27.

Still, during the Petitioner's Appeal proceedings, the Supreme Court

decided In re Bowe, Case No. 22-7871, 2024 US LEXIS 988 (Feb. 20, 2024). In re

Bowe, the government agrees with Bowe that §2244(b)(l) applies only to States

prisoners. The Petitioner has brought Bowe to the Rehearing Court's attention,

asking for clarification,

that if the government agrees with bowe that §

2244(b)(1) applies only to states prisoners, "Thus, includes § 2244(b)(2)." The

Petitioner pointed out that the panel decision conflicts with a decision of the

United States Supreme Court, citing In re Bowe, Case No. 22-7871, 2024 US LEXIS

988 (Feb. 20, 2024); Jones v. United States, 36 F.4th 974, 982 (CA9 2002); In

re Graham, 61 F.4th 433 (CA4 2023); Williams v. United States, 927 F.3d 427,

434 (6th Cir. 2019); Winarske v. United States, 913 F.3d 765, 768-769 (CA8

2019); In re Bourgeois, 902 F.3d 446, 447 (CA5 2018); In re Baptiste, 828 F.3d

1337, 1339-1340 (CA11 2016); United States v. Winkelman, 218 L. Ed. 2d 68 746

F.3d 134, 135-136 (CA3 2014); Gallagher v. United States, 711 F.3d 315 (CA2

2°13); Taylor v. Gilkey, 314 F.3d 832, 836 (CA7 2002); Avery v. United States,

589 U.S.

9_____ 9

140 S. Ct. 1080, 206 L. Ed. 2d 488 (2020)." See Page 2 through

8 of 15 of the Petitioner's Petition for Rehearing en banc. The Petitioner has

also pointed out that

Insofar as Weber v. McGrogan, 939 F.3d 232, 239-40 (3d Cir. 2019), questions

Batoff's jurisdictional analysis, Batoff nevertheless remains good law. See 3d

Cir. I.O.P. 9.1 (providing that en banc consideration is required to overrule a

prior panel's precedent opinion)." See Footnote, Page 2 of 15 of the

Petitioner's Petition for Rehearing en banc in the existing files.

28. The Petitioner has pointed out that the Panel's statement is inaccurated

and its judgment for affirming the District Court's decision is unwarranted

because the District court concluded as follows:

This Court finds that it is not in the interest of justice to transfer the

Petition in the Third Circuit, as it does not appear that Petitioner can

satisfy the requirements of § 2244(b)(2), and because he alleges that the

Third Circuit has already denied his application to file a second or

successive motion. (ECF No. 7, at 3); see generally In re: Afolabi, No.

21-3203, ECF No. 4 (3d Cir. 2021) (denying application). However, this

Court's decision does not prevent Petitioner from seeking permission from

the Third Circuit on his own.

29.

The Petitioner has again pointed out that: (1) the rehearing in banc

consideration is needed to reverse the panel's decision because "res judicata"

does not apply to a federal prisoner in federal habeas corpus proceedings.

Congress revised the Judicial Code and, with it, the federal habeas corpus

statute, it rejected a proposed to apply res judicata principle to the federal

habeas corpus proceedings. S. Rep. No. 1559, 80th Cong. 2d Sess. 9 (1948)

(eliminating from original bill language adopting res judicata principle). (2)

In an In re Bowe, 218 L. Ed. 2d 67; 2024 U.S. LEXIS 988; 92 U.S.L.W. 3206, the

government agrees with Bowe that § 2244(b)(1) applies only to states prisoners.

The Petitioner reasons that if § 2244(b)(1) applies only to States prisoners,

then thus, includes §2244(b)(2). The Petitioner has pointed in details to the

Rehearing Court to see how It is constructed, in order to review the District

Court's decision based on § 2244(b)(2). See Page 6, 7 of 15 of the Petitioner s

Petition for Rehearing en banc in the existing files. The Petitioner has also

presented § 2244 Finality of determination:

(b)(1) A claim presented in a second or successive habeas corpus application

under section 2254 [28 USCS § 2254] that was presented in a prior application

shall be dismissed.

(2) A claim presented in a second or successive habeas corpus

application under section 2254 [28 USCS § 2254] that was not presented in a

prior application shall be dismissed unless— ... and § 2244(b)(3)(A) Read:

"Before a second or successive application permitted by this section is filed

in the district court, the applicant shall move in the appropriate court of

appeals

for

order

authorizing

the

district

court

consider

the

application."

30.

The Petitioner has pointed out that the relief sought cannot be simply

obtained in the District of his confinement (District Court of Camden, New

Jersey) because the District Court of Camden, New Jersey is not his sentencing

court and it does not located in the District in which the alleged crime was

committed; that the sentencing court and the BOP violate the Rule 1, Rules

Governing Section 2255 proceedings not to place him in right detention. See

also, 28 U.S.C.S. § 2244(a) read as follows:

§ 2244(a) No circuit or district judge shall be require to entertain an

application for a writ of habeas corpus to inquire into the detention of a

person pursuant to a judgment of a court of a court of the United States

if it appears that the legality of such detention has been determine by a

judge or court of the United States on a prior application for a writ of

habeas corpus, except as provided in section 2255 [28 U.S.C.S. 2255]. See

the whole construction of the Statute on APPENDIX K

31.

As you can see here that in this case, both § 2244(b)(2) and §

2244(b)(3) do not apply to the Appellant since he is a federal prisoner. The

Petitioner has pointed out that, "more importantly, it becomes clear that the

Appellant is being held in unlawful custody where release cannot be obtained

because his is not a (sic) state prisoner to proceed his claims under § 2241.

State prisoner proceeds under § 2241(c)(3) and Federal prisoners proceed under

§ 2255(h). See Page 7 of 15 of the Petitioner's Petition for Rehearing en banc

in the existing files.

32.

The Petitioner has pointed out that "Because the Appellant is a Federal

prisoner, his path is to proceed in a Remedy under Section 2255 motion." See 28

U.S.C*S. 2255(h). As reminder, the Court of Appeals reasons that the Petitioner

does not need to obtain a COA to proceed with this appeal. For that reason, the

Petitioner has asserted that the District Court lacks jurisdiction.

Jurisdiction is lacking

In particular, Section 2255 provides:

(a) A person in custody under sentence of a court established by Act of

Congress claiming the right to be release upon the ground that the

sentence was imposed in violation of the Constitution or laws of the

United States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum authorized by

law, or is otherwise subject to collateral attack, may move the court which

imposed the sentence to vacate, set aside or correct the sentence.

33.

Under § 2255(h)(1), the Petitioner needs to demonstrate that, "newly

discovered evidence that, if proven and viewed in light of the evidence as a

whole, would be sufficient to establish by clear and convincing evidence that

no reasonable factfinder would have found the movant guilty of the offense."

Thus, the Petitioner has asserted that his sentence was imposed in violation of

the Constitution or laws of the United States.

34.

He has asserted that he is innocent for the charges against him.

Specifically, he contends that he is innocent on the ground that his sentence

was imposed under an ambiguous statute, which was not based on his guilty plea

signed August 25, 2009, or based on neither the Indictment returned by the

Grand Jury of Newark, New Jersey on October 4, 2007, or January 15, 2009

Superseding Indictment. For that reason, his guilty plea is constitutional

invalid. See Count 23, which charged the Petitioner with "Traveling for the

Purpose of Engaging in Illicit Sexual Conduct with S.X • 9 in violation of 18

U.S.C. § 2423(b)."

35.

After the Petitioner pleaded guilty on August 26, 2009, the Judge and

the prosecutor applied ambiguous statute to convict and sentence him. That

ambiguous statute has been applied throughout the Courts proceedings, which

read:

"Transportation of minor with Intent to Engage in Criminal Sexual

Activity." This particular reading stands for 18 U.S.C. § 2423(a). Whereas the

Petitioner's Plea Agreement reads as follows:

"Traveling for Purpose of

Engaging in Illicit Sexual Conduct (18 U.S.C. 5 2423(b)).

36.

The Petitioner contends that there has not been legitimate judgment in

this case because that judgment was obtained through ambiguous statute, which

rendered his guilty plea invalid and void. Citing Hendreson v. Morgan, 426 U.S.

637 (1976) (quoting Smith v. 0?Grady, 312 U.S. 329, 334 (1941)); Bousley v.

United States, 523 U.S. 614, 618-19 (1998), he has pointed out that neither the

judge nor the prosecutor or his lawyer told him about the nature of the charges

or critical elements of the offense before pleaded guilty. See Page 8, 9 of 15

of the Petitioner's Petition for Rehearing en banc.

37.

The Petitioner has pointed out that he had raised this claim before in

his first § 2241 Petition; on March 23, 2020, at Camden, New Jersey. On page 7

and 8 of the U.S.D.J. NOEL L. HILLMAN's opinion clearly stated that:

Both parties occasionally refer to petitioner's conviction as being for

"Transportation of minor with intent to Engage in Criminal Sexual

Activity", but "[b]y its unambiguous term, § 2423(b) criminalizes

interstate travel for an illicit purpose. The actual age of the intended

victim is not an element of the offense; criminal liability 'turns simply

on the purpose for which [the defendant] traveled. » »» United States v.

Tykarsky, 446 F.3d 458, 469 (3d Cir. 2006) ((quoting United - States v.

Root, 296 F.3d 1222, 1231 (11th Cir. 2002) (alteration in original)). See

also Plea Agreement, Afolabi No. 07-cr-0785 (D.N.J. Aug. 26, 2009) (ECF

No. 122 at 1) ("traveling for the purpose of engaging in illicit sexual

conduct with S.X. in violation of 18 U.S.C. § 2423(b) and 2") Therefore

even Petitioner admitted facts that establish S.X.'s age, Petitioner's §

2423(b) conviction would stand even if S.X. was over 16. Petitioner has

not pointed to a Supreme Court decision that invalidates his conduct;

therefore, he has not demonstrated 'actual innocence' for the purposes of

2241.

38.

As you can see here that the opinion of the U.S.D.J. NOEL L. HILLMAN is

also unwarranted because the age of the girl is a critical element in this

case, and the government suppresses that true evidence, by referring only to

the age mentioned in the girl's fraudulent passport.

39.

The Petitioner has pointed out that the Court of Appeals again by

affirmed the District court's judgment was based only on In re Dorsainvil, 119

F.3d 245, 251-52 (3d Cir. 1997) ruling. The Petitioner has pointed to Bousley

v. United States, 523 U.S. 614 (1998); United States v. Davis, (No. 18-431)(S.

Ct. 2019); Montgomery v. Louisiana, 136 S. Ct. 718, 731 (2015) • • • • and has

respectfully demanded the Court of Appeals to re-examine his ambiguous statute

claim de novo because the ruling In Jones v. Hendrix, 143 S. Ct. 1857 (2023)

abrogated In re Dorsainvll, supra. See Page 9, 10, 11 of 15 of the Petitioner's

Petition for Rehearing en banc.

40.

The Petitioner has asserted that this ambiguous application of tatute

throughout the Court proceedings can be seen from the record, In fact, the

sentencing court has applied an ambiguous statute to convict and sentence him.

Tils lawyer, the Prosecutor and the Judge have applied an ambiguous statute in

this case Is not simply an allegation but It Is a fact and it Is a violation of

his federal constitution rights. He has asserted that this case presents an

extraordinary circumstances which the Court must address.

41.

Most Importantly, In this Instant case, since the conviction and

sentence of the Petitioner have not been obtained based on neither the

Indictment of the Grand Jury of Newark, New Jersey, nor on the true Plea

Agreement signed by the Petitioner on August 25, 2009 and which the District

Court proceeded on August 26,

2009,

that is a perjury in part of the

prosecutor. Thus, that misconduct of the Prosecutor cannot be ignored from the

record and can be raised again because that ground has not previously heard and

determined. See Price v. Johnson, 334 US 266, 287-293, 92 L ed

1351, 1370-1373, 68 S Ct 1049 (1948)

42.

Defendant contends that the district court erred in not determining

jurisdiction prior to entertaining the cause.

STANDARD OF REVIEW

The court's duty to resolve the jurisdiction of the court, regardless of

who brings the action, the court must make a legal finding as to its authority

to take venue and jurisdiction, before the court moves to entertain the cause

before it. See, 20 Am Jur 2d 60, 377. "THE GENERAL RULE IS THAT A PROCEEDING

CONDUCTED OR DECISIONS MADE-BY A COURT ARE LEGALLY VOID WHEN THERE IS AN

ABSENCE OF JURISDICTION OVER THE SUBJECT MATTER. A COURT DEVOID OF JURISDICTION

OVER THE CASE CANNOT MAKE A DECISION IN FAVOR OF EITHER PARTY, CANNOT DISMISS

THE COMPLAINT FOR FAILURE TO STATE A CLAIM, AND CANNOT RENDER A SUMMARY

JUDGMENT. AS A DECISION WOULD BE ON THE MERITS OF THE ACTION. IT CAN ONLY

DISMISS THE CASE FOR WANT OF JURISDICTION. HOWEVER, A COURT CAN SET ASIDE

ORDERS IT MADE BEFORE THE WANT OF JURISDICTION WAS DISCOVERED, AND A JUDGMENT

BY A COURT WITHOUT JURISDICTION OVER SUBJECT MATTER CAN BE SET ASIDE AND

VACATED AT ANY TIME, BY THE COURT THAT RENDERED IT." (In Part). BRIEF MEMORANDUM

OF LAW, No. [22.]

43.

The Appellant contends that the law provides that when Implementing

regulations are at variance with the statutory provision of which they are

Intended to promulgate that If they fall to give proper notice under the due

process clause of the federal constitution or the "FAIR NOTICE", Doctrine, set

out under UNITED STATES VS. NEVERS, 7 f.3d 59 (5th Cir. 1993). Administrative

regulations In order to be valid must also be consistent with, and not contrary

to,

"The statute under which they are promulgated." UNITED STATES VS.

LARIONOFF, 431 u.s. 864, at 973, 97 s.ct. 2150, at 2156, 53 L. Ed. 2d, 48 at

56. A regulation beyond the scope of, or out of harmony with, underlying

legislation is a mere nullity, Id. At 873 n. 12, 97 s.ct. At 2156, n. 12.,

MANHATTEN GEN.

EQUIP. CO. VS. CIR.., 297 u.s. at 134,’NEEL VS. UNITED STATES,

266 f.supp. At 10. "To make this determination it is necessary for the court to

square the regulations against the statute that it purports to implement,

comparing the sphere of authority of each. WESTERN UNION TELEG. CO. VS. F.C.C.,

541 f.2d. 346, 354 (3r=' cir. 1976), cert. Den. 429 u.s. 1029 (1977) and

administrative regulation must be reasonably related to advancing the purpose

of the enabling legislation. MORNING VS. FAMILY P. SERVICES INC. 411 u.s. 356,

369 (1973). In the framework of criminal prosecution, unclarity in the statute

or a regulation issued there under is enough to resolve doubts in favor of the

defendant. UNITED STATES VS. MERSKY, 361 u.s. 431, 438 (1960). BRIEF MEMORANDUM

No. [38.].

44.

He has asserted that the Court should analyze how the Sentencing Court

has used the constructions of the statutes for both Counts 13 and 23 to

sentence him In order to know the true violation of the sentence imposed by the

District Court, citing TITLE 18, Part 1, CHAPTER 117, Section 2423. See Page 12

of 15 of the Petitioner's Petition of the Rehearing en banc.

45.

THE LEGITIMATE APPLICATION AND CHARGING OF AN OFFENSE VIOLATION OF

TITLE 18, OF THE UNITED STATES CODE, MUST BE [CONNECTED] TO AN ALLEGED

VIOLATION OF Tin? FEDERAL INTERSTATE COMMERCE STATUTE; OTHERWISE, FEDERAL

SUBJECT MATTER JURISDICTION IS MISSING. See UNITED STATES VS. PUPO, 841 f.2d

1235.. • •

The

constitutional

rights

accused

are

violated

when

modifications, at trial/plea or by a court of appeals acts to broaden the

charge contained in the indictment, such modifications (such as a court's use

of the preamble in the "act" to enlarge or confer power) contradicts the very

purpose of the Fifth Amendment. See UNITED STATES.VS. STIRONE, 361 u.s. 212, 4

L.Ed 2d 252, 80 s.ct. See at 273. (Expressing similar view s). The failure of

the government to include in the indictment any charge that the defendants

conduct affected interstate or intrastate, or any commerce was not cured by the

citation of the statutes. In the sufficiency of an indictment, it is the

statement of facts in the pleading rather than the statutory citation that is

controlling, see UNITED STATES VS. WUCO, 535 f.2d 1225 (9th cir. 1976) cert.

Den. 429 u.s. 978, 97 s.ct. 488, 50 L.Ed. 2d 586 (1976). IT IS ELEMENTARY THAT

EVERY INGREDIENT OF THE CRIME MUST BE CHARGED IN THE BILL, WITH A GENERAL

REFERENCE TO THE PROVISIONS OF THE STATUTE BEING INSUFFICIENT. See HALE VS.

UNITED STATES, 89 f.2d (4 th cir.) And UNITED STATES VS. BERLIN, 472 f.2d 1002,

1007 (2d clr. 1973); also UNITED STATES VS. BEARD, 414 f.2d 1014, 1017 (3

cir. 1969). See BRIEF MEMORANDUM OF LAW No. [39.].

46.

As you can see here that the indictment returned by the Grand Jury of

Newark, New Jersey, on Count 23 contained the words "illicit Sexual Conduct."

However, the words "illicit Sexual Conduct" were missing in the statute used by

the prosecutor and the trial/sentencing court to convict and sentence the

Appellant. The same applied to Count 13, which charged the Appellant with

Forced Labor in violation of 18 U.S.C. § 1589. In United States v. Spinner, 180

F.3d 514 (3d Cir. 1999), this Court held that, "When, as in this case, an

indictment fails to allege all elements of an offense, the defect may be raised

by the court sua sponte. We have held that

'failure of an indictment

sufficiently to state an offense is a fundamental defect ... and it can be

raised at any time. I " Wander, 601 f.2d at 1259; see also Fed R. Crim. P.

12(b)(2), United States v. Beard, 414 F.2d 1014, 1015 (3d Cir. (1969) (quoting

United States v. Mauszak, 234 E.2d 421, 423 (3d Cir. 1956). See also, United

States v. Zanger, 848 F.2d 923, 925 (8 th Cir. 1988).

47.

The Petitioner has pointed out that if Congress wanted any statute to

be used, outside of its territorial jurisdiction, such as anywhere or any place

then it would have included the interstate commerce nexus that is required. "A

Federal Statute intended to be enforced within the states exceeds congress

commerce

clause

authority."

The

Appellant

contends

that

invalid,

unconstitutional, or non-existing statue affects the validity of the "Charging

Document",

that is,

the complaint,

documents

are

void

indictment or information.

fatally defective,

there

is no

If these

subject

matter

jurisdiction since they are the basis of the court's jurisdiction; when an

accused party is indicted under a not yet effective or in enacted statute, the

charging document is invalid.

48.

The Petitioner has pointed out that, according to the government, the

alleged crime charged in indictment, Count 23, "Travel for the Purpose of

Engaging in Illicit Sexual Conduct, pursuant to 18 U.S.C. § 2423(b) was

committed in North Carolina. The Appellant contends that even if the Government

wants to convict him on the original superseding indictment, it has to prove

that the Appellant has committed "illicit sexual conduct." The Appellant urges

the Court to analyze the construction of the Title 18 U.S.C. § 2423(b), which

prosecutes only the Government Officials ("not an individual") and the "sexual

act occurred in the special maritime and territorial jurisdiction of the United

States. (2) To convict the Appellant on an attempt to commit this crime, it

should be charged in indictment that the Appellant has violated "18 U.S.C. §

2423(e)". In fact, the Appellant was not be charged with § 2423(e). Thus, the

Government cannot prove the Appellant has committed the offense charged in the

indictment. The Petitioner has also asserted that "he is not guilty on all four

Grounds raise in the applications. Tie also invoked the Memorandum and Exhibits

I, II, and III. See Page 11, 12, 13 and 14 of the Petitioner's Petition for

Rehearing en banc in the existing files.

By denying the Petitioner's Petition for Rehearing en banc, the

Rehearing Court stated that:

The petition for rehearing filed by Appellant in the above-captioned case

having been submitted to the judges who participated in the decision of i

this Court and to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in the decision having

asked for rehearing, and a majority of the judges of the circuit in

regular service not having voted for rehearing, the petition for rehearing

by the panel and the Court en banc is denied.

50.

Here, The Panel and the Rehearing Court have not unanimously disagreed

with the Petitioner because Judge Scirica votes for panel rehearing. Thus, the

Petitioner is pleading the Supreme Court to use its power to grant certiorari

and review this case. " Judge Scirica's vote is limited to panel rehearing."

See Page 1 of the Rehearing Court's Order, SUR PETITION FOR REHEARING

-APPENDIX C.

FEDERAL GOVERNMENT LACKED FEDERAL LEGISLATIVE, TERRITORIAL

OR ADMIRALTY JURISDICTION IN OVER THE LOCUS QUO

51.

Defendant contends that the 'U.S. ATTORNEY' misrepresented to the grand

jury that the federal government lacked federal Legislative territorial, or

Admiralty jurisdiction in over the Locus quo. The defendant argues that there

is no presumption in favor of jurisdiction, where the basis for jurisdiction

must be affirmatively shown on the face of the record. See HARTFORD VS. DAVIS.

16 s.ct. 1051 (1896). The exclusive Legislative jurisdiction of the federal

government is not addressed in principle to subject matter, but to geographical

Location. See UNITED STATES VS. BEAVENS. 16 U.S. (3 wheat) 336 (1818). It is

automatic that the prosecution must always prove (Legislative, Territorial or

Admiralty)

jurisdiction over the geographical Location whereon the alleged

prohibitive acts were purported to have been committed, otherwise a conviction

could not be sustained. See UNITED STATES VS. BENSON. 495 F.2d 481 (1946).

Federal criminal jurisdiction is never presumed; and must always be proven, and

can

never be waived'. See UNITED STATES VS. ROGERS. 23 F. 658 (D.C. Ark.

1885). IN CRIMINAL PROSECUTION WHERE THE FEDERAL GOVERNMENT IS A MOVING PARTY

IT MUST NOT ONLY ESTABLISH OWNERSHIP OF THE PROPERTY WHICH THE CRIME(S)

ALLEGEDLY OCCURRED, RUT THEY MUST ALSO PRODUCE DOCUMENTATION THAT THE STATE HAS

CEDED THE JURISDICTION OF THAT PROPERTY TO THEM (ON VIEW OF THE SUPREME COURT)

in fort LEAVENWORTH RAILROAD VS. IOWA, 114 U.S. 525 (1885). [No] jurisdiction

exists in the United States to enforce federal criminal Laws until CONSENT TO

ACCEPT JURISDICTION OVER ACQUIRED LAND HAVE BEEN PUBLISHED and filed on behalf

of the United States as provided and filed in 40 U.S.C.S255, and the fact that

the state authorized the federal government to take and exercise jurisdiction

was immaterial. See ADAMS VS. UNITED STATES, 319 U.S. 312, 63 Supreme Court

1122, 87 L. Ed. 1421 (1943). See Petitioner's BRIEF MEMORANDUM OF LAW, No. [1.]

52.

The Petitioner contends that in this instant case/Petition, he is

innocent for Count 11, which charged the Petitioner with conspiracy to commit

force labor/trafficking document in violation of 18 U.S.C. § 371 because: (1)

there has never been a human trafficking in this case because these girls have

left their respective countries with the permission or knowledge of their

parents; (2) there is not a crime committed against United States in part of

the Petitioner; (3) there is not conspiracy between the Petitioner and any

government official to let these girls in question entered the Unite d States.

53.

As reminder, in this Case/Petition, in 2007, an individual ("not the

government official ") was arrested early in the morning in his house, in East

Orange, New Jersey and put in Jail. The Court must always refer to the context

in which this case was presented to the public and above all, the District

Court in 2007. (The Initial Indictment of the Appellant and co-defendants). The

core of this case started in Africa, specifically, Togo and Ghana. This case

involves bringing West African females, also referred to herein as "the girls"

by obtaining Diversity Visas (DVs') fraudulently. These girls themselves were

in complicity in the scheme with those who won the lotteries to change their

names and ages, by using the winners's wives and children's names and ages to

come in the United States. The girls's passports were true and real, and were

delivered to them by the official authorities of Togo and Ghana. The visas in

their passports were given to them by the American Embassy. Neither their

passports nor their visas were fake. When the girls arrived at JFK Airport, the

U.S. Customs had let them through, entered the United States territory.

54.

The Petitioner in this case, who has never played the lottery and never

involved in filing one, only picked up these girls at JFK Airport in New York

after they entered in the country and transported them to his place where he

lived. The Petitioner did not transport these girls across the borderlines into

the United States. The Petitioner did not conspire with any mean with anyone to

bring these girls into the United States. The Petitioner only gave them a place

to stay so they could pursue and achieve their dreams.

55.

Here, as you can see that the alleged crime has been committed in Togo

and Ghana and the Petitioner was not in the crime scene. The Petitioner has

only picked up those girls in JFK Airport after entering the country with the

permission of the U.S. Customs. The Petitioner contends that he is not a

government official who let the girls entered the United States territory.

Thus, they were no more illegal aliens for the Petitioner to be prosecuted for

harbor illegal immigrants when he picked them up as the government claimed in

the Indictment.

56.

Defendant contends that the case relied upon by this court was the

UNITED STATES VS. HEAVENS, SUPRA See BRIEF MEMORANDUM No. [7.].

57.

As count 13, which charged the Petitioner with forced labor in

violation of 18 U.S.C. § 1589, was not a crime committed across a states lines

and should be prosecuted only by a state of New Jersey.

Note: there has been no complaint file against the Petitioner in part of the

girls before the Petitioner was arrested. The superseding indictment was issued

after the Petitioner spent more than 15 months in Jail cell.

THE FEDERAL GOVERNMENT CHARGING INSTRUMENTS ARE FATALLY DEFECTIVE

58.

Defendant contends that the U.S. Attorney for the U.S. misrepresented

the self-evident as self-declaring defects in the governments own charging

instruments. The defendant argues that an indictment, which fails to allege all

of the elements of the alleged offense, is defective and must be dismissed,

where one of the elements is crucial and is in fact the sine-qua-non to the

legitimate application of the subsequent charged offenses. BRIEF No. [39.]

59.

It is alleged that "Count 23 charges that on March 4, 2006, in Essex

County, in the District of New Jersey and elsewhere, Lassissi Afolabi did

knowingly travel in interstate commerce from New Jersey to North Carolina for

the purpose of engaging in illicit sexual conduct, that is, sexual contact, as

that term is defined in 18 U.S.C. § 2246, with a person under the age of

eighteen, namely S.X.

which sexual contact would constitute a violation of

Title 18, United States Code, Chapter 109A, in violation of Title 18, United

States Code,

Section 2423(b)." See Petitioner's PRESENTENCE INVESTIGATION

REPORT (Superseding Indictment No. 07-00785), page 7, Paragraph 14.

60.

As mentioned-above, the Petitioner contends that he is innocent of the

charge because the indictment returned by the Grand Jury of Newark, New Jersey,

on Count 23 contained the words "illicit Sexual Conduct." However, the words

"illicit Sexual Conduct" were missing in the statute using by the prosecutor

and the trial/sentencing court to convict and sentence the Petitioner.

61.

THE LEGITIMATE APPLICATION AND CHARGING OF AN OFFENSE VIOLATION OF

TITLE 18, OF THE UNITED STATES CODE, MUST BE [CONNECTED] TO AN ALLEGED

VIOLATION OF THE FEDERAL INTERSTATE COMMERCE STATUTE; OTHERWISE, FEDERAL

SUBJECT MATTER JURISDICTION IS MISSING. See UNITED STATES VS. PUPO, 841 f.2d

1235....

The

constitutional

rights

accused

are

violated

when

modifications, at trial/plea or by a court of appeals acts to broaden the

charge contained in the indictment, such modifications (such ass a court's use

of the preamble in the "act" to enlarge or confer power) contradicts the very

purpose of the Fifth Amendment. See UNITED STATES VS. STIRONE, 361 u.s. 212, 4

L.Ed 2d 252, 80 s.ct. See at 273. (Expressing similar view s).

62.

In United States v. Spinner. 180 F.3d 514 (3d Cir. 1999), this Court

held that, "When, as in this case, an indictment fails to allege all elements

of an offense, the defect may be raised by the court sua sponte. We have held

that

failure of an indictment

sufficiently to state an offense is a

fundamental defect • • . and it can be raised at any time. I " Wander, 601 f.2d at

1259; see also Fed R. Crim. P. 12(b)(2), United States v. Beard. 414 F.2d 1014,

1015 (3d Cir. (1969) (quoting United States.v. Mauszak. 234"F.2d 421, 423 (3d

Cir. 1956). See also, United States v. Zanger, 848 F.2d 923, 925 (8th Cir.

1988).

Ill

FEDERAL GOVERNMENT FAILED TO ESTABLISH FEDERAL INTERSTATE COMMERCE NEXUS

63.

Defendant contends that the 'U.S. Attorney' (FAILED] to inform the

grand jury or the court that the federal statutory provision under which the

defendant is charged failed to contain language of an interstate commerce

[NEXUS]. The enumerated subsection under which the defendant is unlawfully

incarcerated and detained of his liberty, possess no language, which could be

construed as incorporating a commerce nexus. Thus, the language of the statute

does not grant federal subject matter jurisdiction, nor grant formal notice to

the accused party that an alleged violation of TITLE 18 ..., also invokes an

uncharged violation of the federal interstate commerce statute, even though no

prohibitive acts moved beyond the borders of the sovereign state or across

state lines or international borders. THE FEDERAL GOVERNMENT DOES NOT HAVE A

GENERAL POLICE POWER, THEREBY A LEGITIMATE APPLICATION OF OFFENSE MAY ONLY BE

APPLIED IF CONNECTED TO AN ALLEGED VIOLATION OF TOE INTERSTATE COMMERCE

STATUTE. BRIEF MEMORANDUM [29.]

64.

U.S.

DEFENDANT CONTENDS THAT WHERE TOE INSTANT MATTER IS CONCERNED, TOE

ATTORNEY

HAD FAILED

INITIO TO ESTABLISH THAT TOE SO-CALLED

PROHIBITIVE CONDUCT OF DEFENDANT MOVED BEYOND THE BORDERS OF TOE SOVEREIGN

STATE, THUS IN CLEAR ABSENCE OF A COMMERCE CHARGE, TOE GOVERNMENT HAS FAILED TO

ESTABLISH FEDERAL SUBJECT MATTER JURISDICTION OVER THE ALLEGED OFFENSE. BRIEF

MEMORANDUM [30.]

65.

Defendant contends that under our federal system, the "state possess

primary authority for defining and enforcing the precise statutory language of

the act in question to determine whether it applies solely within jurisdiction

of the United States. THERE SIMPLY IS NO STATUTORY LANGUAGE EXPRFSSLY STATING

THAT TOE ACT APPLIES "EXTRA JURISDICTIONALLY." This is particularly apparent

from it review of the offense violation, mentions nothing in reference to

interstate commerce. It should be noted that in other criminal acts congress

statutory bases such acts upon its interstate commerce, powers: See 18 U.S.C.

659, 660, 842, 844, 875, 922, 1231, 1301, 1343, 1365, 1951, 1953, 1962, 1992,

2101, 2251, 2312, 2314, 2316, 2317, - 421, 2422, and 2423. In interpreting the

"ACT", the courts have determined that it must be assumed that it is a taxing

measure, for otherwise it would be no law at all. It is a mere act for the

purpose of regulating it is beyond the power of congress and must be regarded

as invalid, just like the "child labor Act" of congress was held to be, in

BAILEY VS. DREXEL FURNITURE COMPANY, 259 u.s. 20, the opinion of the court

delivered by Chief Justice Taft, in NIGRO VS UNITED STATES. 276 u.s.. BRIEF

MEMORANDUM No. [29.],[30.] and [31.].

66.

As here, the alleged charge with the Petitioner read as follows: "As to

Count 13,

the violation involved the aggravated sexual abuse of P.H. by

Lassissi Afolabi, in violation of Title 18, United States Code, Section 1589."

See Petitioner's PRESENTENCE INVESTIGATION REPORT (Superseding Indictment No.

07-00785), Page 6, Paragraph 8.

67.

The Petitioner contends that this alleged crime has not be committed

across the states lines. The girl P.H. in question was not only 18 years old

but was over 21 years old as required by the common law at that time and the

sex activity between two adult cannot be prosecuted as a federal criminal

crime. The rule 11 transcripts provided as (Exh. E) is a true testament that

the Petitioner rejected the charges as to count 13,

(forced labor with

aggravated sexual abuse of P.H.), and count 23, (Traveling for the purpose of

engaging in illicit sexual conduct with S.X.). See § 2246 Definitions for

chapter and § 2241 Aggravated Sexual Abuse.

68.

The Petitioner rejected those allegations during the prosecutions

attempts to establish factual basis of the sexual abuse, See Exh. E at 37-41

and when there was no success, the court took a recess that allowed defense

counsel, Mr. Mcgovem to mislead the Petitioner into admitting those two

charges, he did not commit (Exh. E. at 42-45). Even at sentencing, there was

dispute between the Judge and the Prosecutor regarding this section that P.H.

was over 18 years old and could not apply to the Petitioner. The Petitioner has

contends that he was coerced by his lawyer to obtain the factual basis of the

charges. Those claims have never been heard and determined. See Davis v. United

States, 417 U.S. 333 (1974). The Prosecutor also stated that Court 13 is

particularly applies to H.P. See the Sentencing Transcript.

69.

THE DEFENDANT NOTES TO THIS COURT THAT THE STATE JURISDICTION WHEREIN

THE ALLEGED PROHIBITIVE ACTS OCCURRED HAS NEVER SURRENDERED ITS JURISDICTION TO

PROSECUTE CRIMES TO HIE EEDERAL GOVERNMENT IN DEALING IN ILLICIT OFFENSE

VIOLATIONS IN ANY OF THE GEOGRAPHICAL LOCATIONS MENTIONED IN THE INSTANT

INDICTMENT WHEREIN THE ALLEGED CRIME TOOK-PLACE. With the abode limits of

federal jurisdiction in mind, it is now necessary to consider the contemplated

administrative proscription cannot subject the informed person to criminal

prosecution. While ignorance of the law is no defense, it is conversely true

that a law that has not been duly enacted into positive law, is not a law of

general applicability and therefore, a person who does not comply with its

provisions cannot be guilty of any crime. BRIEF No. [32.].

70.

Defendant contends that the supreme court stated in UNITED STATES VS.

WELDEN, 377 u.s. 95 (1964), that Under 1 U.S.C. 204(A), which provides that the

United States Code establishes prima facie the laws of the United States and

that when titles of the Code are enacted into positive law, the text thereof is

legal evidence of the law contained therein, the very meaning of 'Prima Facie'

is that the code cannot prevail over the statute at large when the two are

inconsistent. If construction of a section of the United States Code, which has

not been enacted into positive law, is necessary, recourse must be had in the

original statutes themselves and a changed arrangement made by codifier without

the approval of congress should be given no weight. STEPHAN VS. UNITED STATES.

319 u.s. 423 (1943) BEST FOODS VS. UNITED STATES. 147 f.supp. 749, 37 cust.ct.l

(1956); PEARL VS. MOTOR VESSEL BERING EXPLORER. 373 f.supp. 927 (1974). BRIEF

No. [37.]

TITLE 18 USC IS UNCONSTITUTIONAL CAUSING IMPRISONMENT TO BE FALSE

71.

The Petitioner contends that the Court of Appeals erred not to review

this case in order to reach an unconstitutional ground raises in the

Application. He contends that he was not ("a government official") at the time

of alleged crimes and the Title 18 USC §§§ 371, 1589 and 2423(b) have been

unconstitutional applied to him. The Petitioner contends that even if he was a

government official, the government must prove that the alleged

offenses or

"act" mentioned in the indictment occurred in special maritime and territorial

jurisdiction of the United States. See the construction of the full STATUTES §§

1589, 2423 and a List of the Government Officials - APPENDIX L

72.

Defendant contends that if congress wanted any statute to be used,

outside of its territorial jurisdiction, such as anywhere or any place then it

would have included the interstate commerce nexus that is required. "A Federal

Statute intended to be enforced within the states exceeds congress commerce

clause authority." To uphold the government's that it can bring criminal

charges committed within a state is to convert congressional authority into a

police power, which is only within the authority of the states. UNITED STATES

VS. LOPEZ, No. 931260, (decided April 26

t“Vi

1995). In MCCULLOUGH VS. MARILAND. 4

wheat 316 (1819), the federal government had to acknowledge that it can only

exercise power granted to it. The enumerated presupposes not enumerated.... The

constitution mandates that congress cannot crate or give itself plenary police

powers over the state territories. Congress must operate within the framework

of what the supreme court defines the law to be. See MARPURY VS MADISON., 1

cranch 137, 177 (1803). BRIEF MEMORANDUM [46.]

73.

Defendant contends that where the instant matter concerned, the

defendant committed [NO] violation of any properly enacted and duly promulgated

federal law within the legislative jurisdiction of the federal United Sates,

[NOR] within parameters defined under the implementing regulations for the

federal sentencing provisions, thus, the sentencing provisions set out under

18U.S.C. 3551, 3553 thru 3559 does not apply to the accused. BRIEF MEMORANDUM

[47.].

74.

"If the court

finds

that

the

judgment was

rendered without

jurisdiction, or that the sentenced imposed was not authorized by ]aw or

otherwise ooen to collateral attack, or that there has been such a denial or

infringement of the constitutional rights of the prisoner as to render the

judgment vulnerable to collateral attack, the court shall vacate and set the

judgment aside and shall discharge the prisoner or resentence him or grant a

new trial or correct the sentence as may appear appropriate." 417 US 343.

75.

Above all, the Petitioner respectfully demands that if this Court

cannot proceed his Petition pursuant to § 2241 under § 2255(e). he is pleading

this Court to proceed on his initial or original application for permission to

file a second or successive § 2255 motion. See Rule 20.4(a).

CONCLUSION

The Petition for a writ of certiorari should be granted.

Respectfully Submitted

olabi

October 9, 2024

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.