# Petition for Writ of Certiorari — Figueroa v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1105%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2011 - **Citation:** 563 U.S. 990 ## Text (() 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 ~ — > = URISDICTIO! ONSTITUTIONA VISIONS INVOLVED TATEMENT OF THI ASONS FO] IN THE SUPREME COURT OF THE UNITED STATES PETITION FOR WRIT OF CERTIORARI 1? LD tS ae 7 salt ’ retitioner respecttul! OPINIONS BELOWV m federal courts JURISDICTION m federal courts = -_, Lille qate jad Led : ; peals aeci : ‘ = : “en y — lL, >" yr ¥ L timely petition tor reneamns — United States Court of Appeals on date: November 4, 2010, and lenying rehearing appears CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Ss 38161(« STATEMENT OF THE CASI] peventn l1rci Petitio! tan OTF . 6 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 See also Powell v. Alabama, } ' fewis [ Kid Lbs (193 {5.Ct. 1926 10.20 1149 (1967) proper context. one can only conclude that dé pite protestation yy | vas force alone against » ote us depriving opportunity to + fairly and competently Thus all procedural and factual issue misapplication of 21 U.S.C. § 851 flow out this manifesting clear error and requiring a fair and full resentencing. The S sentially presumed that ounsel was present from ft Burgett v. Texas 19 L.Ed.2d 319 | ited in Jacl ()() } *) eet holdir mplete ly ] inited State 2 y CO it I / (“AD0O6H the Speedy ‘Trial Act (STA) of 1974 generally requir: a federal criminal a trial LO begin within 70 day atts lefendant | charged or mak an initial appearal 3161(c)\(1). Although Section 3161(h) ‘ ’ clude tne 1 Lit ela makes On-btNe findings that the ends of justice served by grantin he continuance outweighs the public’s and defend nt’s interest in a speedy trial. Here, Petitioner di receive an opinion which even reached th claims. The Seve » Circuit merel oncluded : Petitioner faile use his speed trial claim In a timely Petitioner offer I mple evidence and proof that the District cour iiled to properly make expr‘ yn the record findin; } properly CX lude Numero > PCT 1¢ ‘ i the 70 day allotte 1 im Li fT ndictme Petitionel! } YNPRECEDENTIAL DISPOS! ted States Court of App tor the Seventh Circul hicago, Illinois 6060 PPENDI 4 NITED STATES DISTRICT COUI ORTHERN DISTRICT OF ILLIN¢ EKASTERN DIVISIO? G states Court Oo} Ap or the Seventh Circul hicago, Illinois 6060 “ ct wT , n) J or rn lone) ae a, mt + whl po Se load ’ ~~ mn “ ited States Court o YR THE SEVENTH ry A 44 +t J | IO) ] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1105%3A1. Public record. Not legal advice.