Petition for Writ of Certiorari — Figueroa v. United States

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(() Supreme Court US.

JAN 24 2011

OFFICE OF THE CLERK

Jn The

Supreme Court of the Gnited States

ANGEL FIGUEROA

UNITED STATES OF AMERICA

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

ANGEL FIGUEROA, #14503-424 Pro se

ederal Correctional Institution, Elktor

P.O. Box 10

Lisbon, Ohio 44432

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United States Court of Appeals on

date: November 4, 2010, and

lenying rehearing appears

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

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STATEMENT OF THE CASI]

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1 grand jury seated in the United States Distrmct Court

Northern District, Chicago division, case

1:02-CR-416-3. Subsequently an information

entered on 9/10/2003 that the government inten

ennancement

count IV, mistrial on count II. Subsequently, Petitioner

was sentenced, without the aid of counsel, on July 7,

2007, to a term of 240 months imprisonment, with an

additional 3 years supervised release

A timely pro se appeal was filed before the Sev

enth Circuit Court of appeals. The appeal was filed on

April 17, 2007. The Seventh Circuit affirmed Peti

tioner’s conviction on April 19, 2007, Judges Frank H.

Kasterbrook, Chief Judge, William J. Bauer, Circuit

Judge, and Honorable Ilana Diamond Rovner, Circuit

Judge presiding.

Petitioner then retained new counsel, William

Mallory Kent, and submitted timely 28 U.S.C. § 2255

on October 26, 2007, raising Three Claims: 1) viola-

tion of Speedy Trial Act Right 18 U.S.C. § 3161; 2)

District Court error by failing to renew its inquiry as

to whether Petitioner was demed counsel at a critical

stage of the proceeding against him, the sentencing

proceeding; and 3) the denial of Petitioner’s Right to

Counsel on appeal. On May 5, 2009, the District

Court denied his § 2255 Case No. 07-c-6321.

Petitioner then filed a timely appeal to the denial

The Seventh Circuit then construed his appeal as an

application for Certificate of appealability, case no

09-2197.

Then on September 14, 2010, the Seventh Circuit

Court of Appeals issued its order reaffirming the

denial of its own certificate of appealability (COA) for

case number 09-2197. Judges Easterbrook, Bauer,

and Diamond presiding.

Petitioner then filed a timely petition for rehear-

ing en banc for reconsideration, Rules of Civil Proce-

dure Rule 35, of its order, which was filed, on October

19, 2010. The Seventh Circuit proceeded to deny it on

November 4, 2010.

———________—_— ¢@ —____ —_-—_—__ —

REASONS FOR GRANTING THE PETITION

In Gall v. United States, 552 U.S. 38, 128 S.Ct.

586, 169 L.Ed.2d 445 (2007), the Supreme Court held

“Regardless whether or not the sentence imposed is

inside or out side the Guidelines Range, the appellate

court must review the sentence under the abuse of

discretion standard. First it must ensure that the

district court committed no significant procedural

error, as in when it selected a sentence based on

clearly erroneous facts.” Gall, at 450.

Here, ample information was given to the Sev-

enth Circuit for it to ascertain whether or not 21

U.S.C. § 851 actually applied to Petitioner, which it

did not. Illinois Statutes, Chapter 720, Section

570/410(f) and (g) (1996) clearly illustrate that the

prior conviction relied upon by the district court, was

not in fact a qualifying conviction, thus establishing

Plain Error. Further this court has ruled in Blakely,

542 U.S. 296 (2004); Booker, 543 U.S. 220 (2005); and

Apprendi, 530 U.S. 466 (2000), and the Fifth and

Sixth Amendments to the United States Constitution

on this issue.

In failing to even address Petitioner’s challenge

to his 21 U.S.C. § 851 enhancement, the Seventh

Circuit did not address what its sister circuits hold-

ings in United States v. Hirliman, 503 F.3d 212, 215

(2nd Cir. 2007); In re sealed case, 527 F.3d 188, 193

(D.C. Cir. 2008); United States v. Acevedo, 219 Fed.

Appx. 828, 633 (10th Cir. 2007); United States v.

Blackie, 548 F.3d 395, 402 (6th Cir. 2008), this court

failed to conduct a plain-error analysis to determine if

the § 851 provision even applied to Petitioner, where

he provided ample evidence it did not in fact. Further,

the government never alleged or offered any rebuttal

or refutation of Petitioner’s evidence, which at the

time was newly discovered, only compounding the

error of the district court.

Petitioner offers to this court its own holding in

Gall v. United States, 128 S.Ct. 586. The Seventh

Circuit would not or could not have conducted any

meaningful appellate review of Petitioner’s sentence.

This falls woefully short of the rights granted by the

Fifth and Sixth Amendments to the U.S. Constitution

and Blakely v. Washington, 542 U.S. 296 (2004), in

which this Court determined that a defendant has

the nght to have any fact that enhances the potential

penalties he is exposed to proven to a jury of his

peers, if he did not either admit to them or have a

jury of his peers find he did in fact commit.

Petitioner, further offers that in line with the

Supreme Court holdings in United States v. O’Brien,

Supreme court 08-1569, 2010 WL 2025204 (May 24,

2010) the enhancement provision relied upon by the

district court, 21 U.S.C. § 851, is an element of the

offense, because it itself is a separate charged count

which doubled Petitione:

triggering the Due Proces

Amendment. as well as Blakel,

To identify clear error, as defined by the pupre me

(Lourt 1n Anderson I City of Bess mer ( ty. N C . A 1)

U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985

ve must ask if fundamental rights were denied

Petitioner, which resulted in a fundamental miscar

riage of justice or improper application of inapplicab!

w, which Petitioner asserts it does in fact

As to the question of nght to counsel at a cri

ita

tage in the proceeding, Petitioner offers that not only

was the opinion of the Seventh Circuit devoid of even

the minimal standard set forth by the Honorable

Court in Coleman v. Alabama, 399 U.S. 1, § , 9U

S.Ct. 1999, 26 L.Ed.2d 387 (1970), but it is devoid of a

cognizable squaring of the facts of this case. Ths

Petitioner in this case has a minimal understanding

of the procedure set forth in the Rules of Criminal

Procedure, even less so at the time when the manifest

miscarriage of justice occurred. The Seventh Circuit

implies that because the petitioner said he had

Sixth Amendment Right to be represented by counss

that somehow implied knowledge of the facts and

issues pertinent to a proper defense. Petitioner never

waived, either in writing or orally before the district

ourt, his mght to counsel. To the contrary, at hi

entencing, he again requested counsel, but

listrict court instead proceeded to senten

199 (1963)

lished a test of whether a criminal defendant

gently and competently waives his right t