Petition for Writ of Certiorari — Kenemore v. Conner

(\) Supreme Court, U.S.

FILED

02 1356 JAN 13 2003

Docket No. . : —

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2002

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IN THE MATTER OF

LAWERNCE D. KENEMORE JR.

PETITIONER

Vv

UNITED STATES OF AMERICA

RESPONDENT

On Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Lawernce D. Kenemore Jr. Pro-se

26175-077 # “DALLAS”

Federal Medical Center

P.O. Box 15330

Fert Worth, Texas 76119

13.

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QUESTIONS PRESENTED

If 18 U.S.C. 1341 essential element, is materiality

pursuant to this courts decision in Neder v. United States 527

US. 1 (1999)

The first question is was the Courts below decision

contrary to clearly established substantive law as determined

by the Supreme Court?

The second question is does 18 U.S.C. 1341 meet the

standards for vagueness inquiry and implicate the principle of

federalism, after the Court’s decision in Neder?

The third question is, prior to Neder 18 U.S.C. 1341 did

not so much as mention materiality and thus the factual basis

of the Kenemore’s indictment does not charge the commission

of an offense? Likewise the indictment did not place Kenemore

upon notice of the element.

The fourth question is was this Court’s decision in

Neder an intervening decision on substantive law?

The fifth question is materiality a recurring error?

Must a Petitioner always resort to the Savings Clause of

28 U.S.C. 2255 to file a 28 U.S.C. 2241?

Does it invoke the suspension of the Writ Doctrine of

Article 1 Section 9?

Does the Supreme Court need to provide guidance as to

factors that must be satisfied to file a 2241 when a 2255 is

ii

inadequate and ineffective?

Did this Court mean what it said in, United States v.

Cabrales 524 US- 1 (1998)

Is venue a jurisdictional element?

Three Protections not waivable

Subject Matter jurisdiction

Materiality

Cotton

Venue

When must it be decided?

ili

Lists of Parties

Rule 14.1 Statement

The Parties to this proceeding are: Lawernce D.

Kenemore Jr. and the United States of America.

iv

TABLE OF CONTENTS PAGE

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Constitution and Statutory Provisions Involved ......... 1

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I

Page

Was Keremore tried on conduct that was not a crime? . . .3

A. McNally - Neder. ...... 2... 00sec eee eee eee 4

B. Materiality element is a Recurring error....... 4

C. Due Process Clause of the Fifth and Fourteenth

BE cic cccedvvercnaveeseecoeseces’ 5

D. Fair Warning Doctrine. ............-++++++:: 6

E. Law of the Case Doctrine.............-...---- 6

F. Was Court’s decision below contrary to clearly

substantive established Law as determined by this

CIN cia vnc ekds bnbnenhnnesdeseevesresnés 7

G. Does 18 USC 1341 meet the Standards for

Vagueness Inquiry and implicate the Principles

Of Petes? ....w wc cecccccveseveverceces 8

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Must a Petitioner always resort to the Savings Clause of 28

USC 2255 to file a 28 USC 2241 Habeas Corpus?........ 9

A. Does it invoke the Doctrine of Suspension of the

Writ of Article 1 Section 9 of the Constitution?.10

B. The Supreme Court needs to provide Guidance

as to the factors that must be satisfied to file a

2241 when a 2255 is inadequate or ineffective. . 11

A. Did this Court mean what it said in United

States v Cabrales 524 US 1 (1998)............ 12

B. Three protections not waiveable?............. 13

> * —_— = => *

vii

TABLE OF AUTHORITIES

SUPREME COURT CASES Page

Neder v United States 527 US 1,25 (1999). heeewwnes 3,4,5,7,16

US v Cabrales 524 US 1 (1998). ......... eee eee eens 2,12,13

Sullivan v Louisiana 508 US 275 (1993). ........++++++++ 3

US v Gaudin 575 US 506 (1995). ... 6. cece eee cece eee 3

McNally v United States 483 US........-----seeeeeees 4,6

Fasulo v United States 272 US 620, 629 (1926)..........+:- 5

United States v Wells 519 US 482, 488 N. 4 (1997).......- 6,7

Williams v Taylor 529 US 362, 412 (2002) ......--.+++++5> 7

Bousley v United States 523 US 614, 620 (1998) ........-. 10

Kolender v Lawson 461 US 352, 357 (1983) .......--+++++: 8

Smith v Goguen 415 US 506, 575 (1974) ....------eeeeeee: 9

Bousley v United States 118 S Ct 1604, 1610 (1998) ......... 7

United States v Cotton .... 2... 2.0 eee eee ee ee eee ee eeeee 14

United States v Carll 105 US 611, 612 (1881)........-.--- 15

Haynes v United States 205 US 427, 431 (1932)........--. 15

Morrissette v Morrissette v United St States 342 US 246, 270 (1952)........ 15

United States v Debrow 346 US 374, 376 (1953) ......---- 15

Russell v United States 369 US 749, 763 (1962)......----. 15

Ruhrgas A.G. v Marathon Oil 526 US 574 (1999) ......--. 16

Cleveland v United States 531 US 12 (2002)........-.--- 16

CIRCUIT CASES

US v Gee 226 F3rd 885, 891 (7 Cir 2000) ......------++++ 5

Henderson v Haro 282 F3rd 862, 863 (5" Cir 2002).....-.-. Q

Reves-Requena v US 243 F3rd 893, 903, 904 (5" Cir 2001) 9,11

In re: Jones 226 F3rd 328, 333-334 (4" Cir 2000) .......---- Q

Wofford v Scott 177 F3rd 1236, 1244 N.3 (11 Cir 1999) ..... 9

US v Barrett 178 F3rd 34, 52 (1* Cir 1999) ........-++++55: 10

Treistman v US 124 F3rd 361, 377 (2™ Cir 1997)........ 10,12

In re: Dorsainvil 119 E3rd 251, 252 (3 Cir...) .....---+++: 10

In re: Hanserd 123 F3rd 992, 929-932 (6" Cir 1997)........ 10

viii

Page

In re: Smith 285 F3rd 6 (D C Cir 2002)................. 11

CONSTITUTION, STATUTES, AND RULES

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14" Amendment US Constitution .................... 1,5

6" Amendment US Constitution............... . 1,2,13,15

5" Amendment US Constitution .................0005 1,5

Article 3 Section 2 Clause 3 US Constitution ......... 2,13,15

Article 1 Section 9 US Constitution .................... 10

MISCELLANEOUS

Moore’s Fed Rules Criminal Procedure-18 .............. 13

Writ Doctrine of Article 1 Section9................04.. 10

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Wright Miller Cooper Federal Practice & Procedure....... 6

1

BRIEF OF PETITIONER

OPINIONS BELOW

The Fifth Circuit Court of Appeals per curiam order is

(Appendix -1). The Magistrates Report and Recommendations

is (Appendix -2). The District Judge for the Eastern District of

Texas Order of Dismissal and Final Judgment is (Appendix-3).

Kenemore’s Notice of Appeal is (Appendix- 4).

JURISDICTION

The decision sought to be, reviewed was entered by the

United States Court of Appeals for the Fifth Circuit on October

16, 2002. ‘This Court has Jurisdiction to review that decision

under 28 U.S.C. 1254 (1).

T AL, STATUATORY PROVISIONS

INVOLVED

The relevant provisions of 18 USC 1341 is (Appendix-

5); the Fourteenth Amendment (Appendix-6); the Sixth

Amendment (Appendix-7); the Fifth Amendment (Appendix-

8); Venue (Appendix- 7,10,11)

STATUTES INVOLVED

This case is ultimately quite easy. Congress enacted 18

U.S. C. 1341(Appendix- 5), a statute imposing criminal

sanctions for Mail Fraud. This statute is, at a minimum,

ambiguous with respect to the essential elements, especially

the essential element of materiality. Unless the statute is clear,

the question of whether vagueness should be resolved for or

against Kenemore can have only one answer. Due process

considerations embodied in the Fifth, Sixth, and Fourteenth

2

Amendments point clearly to an interpretation that favors

Kenemore.

Despite the attempts of the lower Courts to disregard

sound teachings on Federal Rules of Criminal Procedures 18

(Appendix -11); Article 3 Clause 2 (Appendix- 10); the Sixth

Amendment (Appendix- 7), and the Cabrales decision, this

Court is able to give sound teaching to the lower courts.

STA F

Kenemore was indicted in the Northern District of

Texas in a 25 Count Indictment charging mail fraud,

conspiracy, money laundering, and false statement.

(Appendix-9)

Prior to the start of the trial, Kenemore filed Motions

objecting to subject matter jurisdiction and venue which were

subsequently denied.

During trial Kenemore filed requested jury instructions

with the court, specifically on materiality and venue, which

were denied by the Court.

Prior to the jury retiring to deliberate, Kenemore

objected to the jury charge, which was denied by the Court.

After a six week and one day trial, Kenemore was

found guilty by the jury of all 25 counts.

Kenemore was sentenced to 235 months incarceration.

Kenemore filed a direct appeal, which was denied by

the Fifth Circuit without comment, on any issue.

Kenemore filed a 2255 on the single issue of denial of

counsel which was denied by the District Court and the Fifth

Circuit.

Kenemore in 2000 began research on the Venue and

Materiality issues and found this Courts substantive law

rulings and filed his 2241 in the Eastern District of Texas where

he was incarcerated.

The Magistrate’s Order and Recommendation Attached

(Appendix-2) was affirmed by the District Judge. (Appendix-3)

Kenemore appealed to the Fifth Circuit, which issued

it’s per Curiam Order, attached as (Appendix-1) on October 16,

2002.

WAS KENEMORE TRIED ON CONDUCT THAT WAS NOT

A CRIME?

It is undisputed that Kenemore’ s Grand Jury failed to

find the essential element of materiality.

In the same vein, the indictment does not establish that

any material misrepresentations were made by the Grand Jury, -

and of course it was not required at the time.

Applying these fundamental principles in conjunction

with Neder, Kenemore could not have been tried for mail

fraud.

Here the Fifth Circuit shifts the blame to Kenemore for

not including materiality argument in his 2255 (Appendix-1

Page 2) and sub silentio concluded that Kenemore’ s Neder

argument was for naught. Such burden shifting has been

rejected by this Court in both Sullivan v Louisiana 508 US 275

(1993) and United States v Gaudin 575 US 506 (1995).

4

It blinks at reality to think even for a moment that the

materiality essential element was not a decisive Grand Jury

issue.

(A)

McNALLY-NEDER

It should not fall on deaf ears with this Court that in

1987 this Court decided McNally v United States 483 US 350

(1987) and in 1988 Congress in response passed 18 U.S.C. 1346

as an amendment to the Anti-drug abuse Act of 1988.

In 1999 this Court decided Neder v United States 507

US 1(1999) and as of this date Congress has made no attempt

to amend 18 U.S.C. 1341.

This Court is therefore left where it left off with Neder,

“Materiality has always been an element of the mail fraud,

wire fraud and bank fraud statutes.” 1341 is a statute that

under the Fair Warning Doctrine did not advise all the

essential elements to bring Kenemore within its purview, and

so his indictment.

(B)

MATERIALITY E NTIS A RE G ERROR.

The Fifth Circuit Court’s decisions that Neder did not

constitute a change in substantive law is in conflict with this

Court’s jurisprudence and has diluted this Court’s decisional

power as to substantial rights as it concerns 18 U. S. C. 1341

and the essential element of materiality, and will continue to

recur in the future.

5

On point U.S. v Gee 226 F3d 885, 891 (7th Cir. 2000).

“The Government concedes that Neder holding will be

retroactively applied to this case”. As in Kenemore’s case,

(Appendix- 9) the indictment merely alleges a scheme to

defraud which Neder Court ruled insufficient.

Evidence points to the fact that there are “numerous”

Neder arguments lurking in the annals of the Judiciary, and

will continue to be brought to this Court as they were in the

weeks prior to Kenemore’ s Writ.

(C)

THE DUE PROCESS CLAUSE OF THE FIFTH AND

FOURTEENTH AMENDMENT

The Due Process Clause of the Fifth and Fourteenth

Amendments require the Legislature to specify the elements of

Criminal offenses. There are no constructive offenses; and,

before one can be punished, it must be shown that his case is

plainly within the statute. Fasulo v United States 272 U 5 620,

629 (1926)

Until Neder, materiality was not an element of 18

U.S.C. 1341 and Circuit precedent created a whole cloth of

Judicial interpretations that varied from Circuit to Circuit. The

result was a truly extraordinary statute in which the

substantive force of the statute varied in each Judicial District.

Respect for the Justice System would be subverted if

this Court would refuse to reverse Kenemore’s conviction,

where the application of 18 U.S.C. 1341 to his conduct deprived

him of Due Process of the Law.

6

(D)

FAIR W.

Even if Kenemore was fully familiar with 18 U.S.C. 1341

(Appendix- 5) at the time of his indictment, and the case law,

he would have lacked any comprehensible fair warning that 18

U.S.C. 1341 included materiality as an essential element.

Accordingly, application by the Grand Jury of 18 U.S.C. 1341

violates the Fair Warning Doctrine, and the failure of the

Congress to amend the statute, as they did after McNally v

United States 483 U 5 350 (1987) and add materiality continues

to violate this Doctrine.

The requirement is imposed by the Supreme Court of

the Fair Warning Doctrine to speak more clearly was for the

benefit of the public, the average citizen who must be

forewarned and given notice that certain conduct may subject

him to Federal prosecution

(E)

LAW OF THE CASE DOCTRINE

The law of the Case Doctrine goes to an Appellate

Court’s relationship to the Court of the Trial. See 18 C. Wright

A. Miller, and E. Cooper, Federal Practice and Procedure @

4478 (1981) United States v Wells 519 U 5 482, 488 N. 4 (1997)

The law of the case by the Government as evidenced by

the. Grand Jury indictment, (Appendix -9) and jury instruction

is that “materiality” is not an element of 18 U. S.C. 1341.

The Law of the case Doctrine holds the government to

this position and it cannot change it’s position on it’s way to

the Supreme Court.

Adherence to this rule does not come without some

costs. The Law of the Case Rule binds the Court’s hands and

restricts the Court of Appeals from fulfilling it’s usual rule of

Reviewing lower Courts decisions for errors of law Wells @

925-26

(F)

WAS THE COURT’S BELOW DECISION CONTRARY TO

CLEARLY ESTABLISHED LAW AS DETERMINED BY THE

SUPREME COURT?

The statutory phrase “ clearly established Federal Law

as determined by the Supreme Court of the United States”

refers to holdings as opposed to dicta of this Court’s decisions

Williams v Taylor 529 U 5 362. 412 (2002), Neder v United

States 527 U 5 1, 25 (1999) this Court unequivocally established

that materiality has always been an element of the mail fraud,

wire fraud, bank fraud statute 18 U.S.C. 1341 et seq.

The Neder case on 18 U.S.C. 1341 was a change in

substantive law, the statute as of today does include

materiality as an element. While a new rule of Constitutional

Procedure generally does not apply retroactively on collateral

review, a new rule of substantive criminal law is

presumptively retroactive, because a defendant may have been

punished for conduct that simply was not illegal. Bousley v.

United States 523 U 5 614, 620 (1998)

Certainly at the time of Kenemore’ s indictment,

materiality was not an element of 18 U.S.C. 1341, therefore, it

would have been contrary to existing law for the government

to instruct the Grand Jury on the essential element of

materiality.

This Court’s Neder decision undoubtedly qualifies as

“clearly established Federal Law as determined by the

Supreme Court of the United States.”

The set of facts in Kenemore’ s case are materially

indistinguishable from Neder. However the District Court and

the Fifth Circuit applied the Neder substantive law in a way

that contradicts the governing law of Neder.

The Fifth Circuit’s decision in Kenemore’s case involves

an unreasonable application (not an incorrect application) of

clearly established Federal Law as determined by this Court.

Absent a conclusive ruling by this Court, that Neder

created a substantive rule of law, District Courts and Circuit

Courts will continue to deny defendants their right to have a

Grand Jury determine all the. essential elements of 18 U.S.C.

1341.

(G)

DOES 18 U.S.C. 1341 MEET TAND F

VAGUENESS INQUIRY AND IMPLICATE THE

P ES OF E M

The first inquiry that bears on vagueness- the

Sufficiency Notice- is whether the statute as it is written

provides notice sufficient to alert ordinary people (t)o what

conduct is prohibited. Kolender v Lawson 461 U 5 352. 357

(1983).

The essential element of materiality absent from the text

of 18 U.S.C. 1341 simply provides no clue to the public, or the

9

Courts, as to what conduct is prohibited under the statute.

The second vagueness inquiry (and the “more

important” of the two) is whether [s]tatutory language [is] of

such a standardless sweep [that it] allows policemen,

prosecutors, and juries to pursue their personal predilections

Smith v Goguen 415 U S 506. 575 (1974). With the essential

element of materiality missing this creates a standardless

sweep.

If the words of a criminal statute insufficiently defines

the offense, it is no part of defference to Congress for this

Court to intuit or invent the crime, and this Court cannot

assume the place of Congress.

The absence from 18 U.S.C. 1341 of the essential

element, materiality, implicates the principles of Federalism,

that is 1341 is unconstitutionally vague as applied to

_ Kenemore.

Il

MUST A PETITIONER ALWAYS RESORT TO THE

SAVINGS CLAUSE OF 28 U.S.C. 2255 TO FILE A 28 U.S.C.

2241 HABEAS CORPUS

(Appendix -1 Page- 2) asserts that for Kenemore to

bring a 2241 that he must meet the Savings Clause of 2255.

Fifth Circuit case law is firm on this point. Henderson v. Haro

282 F3rd 862, 863 (5th Cir 2002). Citing cases.

However varying standards have been adopted by the

Circuits. See Reyes-Requena v US 243 F3"™ 893, 903-04 (5" Cir

2001) surveying cases. See also In re: Jones 226 F 3rd 328, 33

334 (4 Cir 2000); Wofford v. Scott 177 F3™ 1236, 1244 N-3 (11"

10

Cic 1999); United States v. Barrett 178 F3" 34, 52 (1* Cir 1999);

Treistman v United States 124 F3™ 361, 377 (2 Cir 1997); In re:

Dorsainvil 119 F3™ 251. 252 (3 Cir); In re: Hanserd 123 F3

922, 929-932 (6 Cir 1997), all these standards have caused

application of the law to be unequally applied based upon the

Circuit a person lives in. The Circuits are deeply divided and

require guidance.

The question that can be answered only by this Court

is, must Kenemore always resort to the Savings Clause of 28

U.S.C. 2255 to fie a 28 U.S.C. 2241 Habeas Corpus, and set the

Standards to be applied equally by the Circuit and District

Courts.

(A)

DOES IT INVOKE THE DOCTRINE OF SUSPENSION OF

THE WRIT OF ARTICLE 1 SECTION 9 OF THE

CONSTITUTION

If there is a Constitutional Entitlement to a reasonable

procedure for correcting fundamental legal errors in criminal

process, then interpreting 2255 Savings Clause narrowly as the

District Court and Fifth Circuit has done, would deny

_ Kenemore that entitlement.

Is the adequacy of 2255 so narrowly worded that a

Constitutional Right to Habeas Corpus moots the needs of

Practical Judicial enforcement?

The fear that an innocent person’s liberty, or worse, his

life, may be forfeited because of unfair proceedings , has long

been recognized as one, among other, circumstances that

makes issuance of the Writ most felicitous Bousley v. United

11

States 118 S Ct 1604, 1610 (1998).

(B)

THE SUPREME COURT NEEDS TO PROVIDE GUIDANCE

AS TO THE FACTORS THAT MUST BE SATISFIED TO

FILE A 2241 WHEN A 2255 IS INADEQUATE OR

INEFFECTIVE

With all the varying standards outlined above, this

Court can bring a fairness and continuity to the Judiciary by

setting forth the necessary factors.

Here are examples:

And as subsection (2) speaks

only to intervening Supreme

Court cases based on

Constitutional grounds, the

provision does not provide

any avenue through which a

petitioner could rely on an

intervening Court decision

based on the substantive

reach of a Federal Statute.

Reyes- Requena v U.S. 243

F3" 893 903 (5" Cir 2001)

(with)

Smith is actually innocent

having been convicted on the

basis of an incorrect

understanding of 924 (c), and

2255 relief is unavailable In re

Smith 285 F3™ 6 (D. C. Cir

12

2002)

(with)

The Second Circuit devised its

_ Savings Clause test based on

whether failure to permit a

remedy would raise. serious

Constitutional questions

Treistman v. United States

124 F3" 361, 377 (2™ Cir

1997).

This Court needs to provide guidance to the lower

Courts to bring fairness and continuity to the Judicial System.

Il

IS VENUE A JURISDICTIONAL ELEMENT?

{A)

DID THIS COURT MEAN WHAT IT SAID

IN UNITED STATES V. CABRALES 524 U S 1 (1998)

The Constitution twice safeguards Kenemore’s Venue

Rights. (Appendix - 7 and 10), and the statute (Appendix - 11)

adds to the safeguards, that is the trial of all crimes.... Shall be

held in the state where said crimes shall have been committed;

by an impartial jury of the State and District wherein the crime

shall have been committed.

In this case there is not the slightest indication that the

Fifth Circuit (Appendix -1), or the District Court (Appendix - 2)

reviewed or ruled on this issue in any fashion. Nor is there any

13

indication that either the District Court or the Court of

Appeals felt bound in any way by the Sixth Amendment,

Article 3, Section - 2, Clause 3 or the Federal Rules of Criminal

Procedure Rule 18. .

It is of the essence of the Common-law method that

Courts consider and rely on decisions from the Supreme Court.

What the Fifth Circuit and District Court cannot avoid

is the simple fact, quickly and easily verifiable by computer

assisted research: The locus delicti must be determined from

the nature of the crime alleged and the location of the act or

acts constituting it” Cabrales @ 6.

(B)

THREE P T WAIVABLE

The Sixth Amendment (Appendix - 7) Article 3 Section-

2, Clause -3 (Appendix -10) and Federal Rules of Criminal

Procedure Rule -18 (Appendix - 11), all speak to the issue of

Venue, and all protect Kenemore’s rights. Even though

Kenemore did not waive this issue (pre-trial motion on venue)

subject matter jurisdiction is not waive able and the District

Court and Fifth Circuit did not in any fashion review it.

(Appendix -9) Kenemore’s Indictment shows Count - 2

Page 14, paragraph # 3 (b), page -15 paragraph #4 (1) (2) (3) (4)

(5), Count-16, 17, 18 all took place in California and had no

connection with the Northern District of Texas.

If the Court meant what it said in Cabrales then this

Court should take the Fifth Circuit to task for not adhering to

its case law.

14

IV

SUBJECT MATTER JURISDICTION

MATERIALITY - VENUE

(A)

MATERIALITY

It cannot be gainsaid that the Indictment to which

Kenemore went to trial on and was convicted after numerous

objections, alleged mail fraud of the very form held in Neder

not to constitute an offense under 18 U.S.C. 1341.

That is the Indictment alleges a specific course of

conduct that was outside of the reach of the mail fraud statute.

Kenemore’s innocence of the charged offense appears from the

very allegations made in the indictment, not from the

omission.

When a Court without Jurisdiction convicts and

sentences a defendant, the conviction and sentence are void

from their inception and remain void long after a defendant

has fully suffered their direct force.

COTTON

This Court in it’s Cotton decision did not address

whether the sufficiency of an indictment assumes a

jurisdictional dimension, when the only facts it alleges, and on

which a subsequent finding of guilt is based, describes conduct

that is not proscribed by the charging statute.

15

Unilike Cotton, Kenemore ts nut rainy, an Virion

from his indictment of a fact that goes to sentencing, his

challenge is to the subject matter jurisdiction of the Trial Court.

Kenemore has raised Subject Matter Jurisdiction of the

Court from pre-trial to this writ, and no Court has made a

Judicial Finding.

(B)

VENUE

Subject Matter Jurisdiction is also invoked when an

Indictment fails to allege Venue, for without venue the Court

lacks Subject Matter Jurisdiction.

Surely Venue is an essential element as this Court

stated in Cabrales. As such, it invokes subject matter

jurisdiction of the District Court. Venue is a matter of

substance and not form and the missing element cannot be

inferred from other allegations of the Indictment.

Throughout the years of this Courts jurisprudence there

has been one unchanging common requirement; in cases

directly facing this issue, is the necessity for the indictment to

charge essential elements of the offense to give the Court

subject matter jurisdiction? United States v. Carll 105 US 611,

612 (1881) Hagner v. United States 205 US 427, 431 (1932)

Morrissette v. United States 342 US 246-270 (1952) United

States v. Debrow 346 US 374, 376 (1953) Russell v. United

States 369 US 749, 763 (1962) The answer has always been yes!

Especially as here the implication of the 6" Amendment,

Article 3 Section 2 Clause 3 which have major Constitutional

reasons why the Court lacked subject matter jurisdiction, that

is Venue was not set in that Court.

16

(C)

WHEN DECIDED

Subject matter jurisdiction can be raised at anytime, Ruhrgas

A.G. v. Marathon Oil 526 US 574 (1999) and must be policed by

the Courts on their own initiative, even at the highest level

Simply put, Kenemore raised it in the District Court

and the District Court did not address it (Appendix 2 and 3),

and he raised it in his Appeal Brief, and the Circuit Court did

not address it (Appendix 1).

When will someone ever rule on Subject Matter

Jurisdiction? This is the Court of the last resort.

CONCLUSION

THE ISSUES PRESENTED ARE RECURRING

AND OF GREAT PRACTICAL IMPORTANCE

Resolving the issues raised by Kenemore that has

divided the Courts, would give this Court the opportunity to

provide uniformity in the aspect of Due Process of the 5" and

14" Amendments.

This Court will be able to clarify it’s Ruling in Neder v.

United States and Cleveland v. United States 531 US 12 (2000)

by ruling for Kenemore that these cases are substantive law

rulings that establish his conduct as set forth in the Indictment

is not a crime.

17

The decisions since Neder, meander over the Judicial

, landscape to dodge the necessity to answer the question well

settled in Neder, A single authoritative, strongly worded

decision here would end all of this assembly line decision

making. :

Furthermore, the subject matter jurisdiction Doctrine is

in jeopardy of being eroded by the District Court and the

Circuit Court's failure to address it when raised.

And the use of the Procedural Default Rule by the Fifth

Circuit in Kenemore’ s case (Appendix -1) deprives Kenemore

and others the right to be heard when this Court makes

decisions that establish that the conduct in the Indictment is

not a crime, and that he is actually innocent.

Kenemore now asks this Court to take to task the lower

Courts for failing to address Venue, a Venue that this Court

(which Kenemore cited) stated is necessary for money

laundering. Missing from (Appendix -1) and (Appendix -3 ) is

any discernable Judicial decision on venue.

For these reasons, this Writ should issue.

Respectfully submitted

Lawernce D. Kenemore Jr.