Petition for Writ of Certiorari — Ayanbadejo v. Napolitano

supreme Court, U.S.

PILED

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

FELICIA MALVEAUX,

JOHN AYANBADEJO, - PETITIONERS,

VS.

JANET NAPOLITANO,

SECRETARY DEPT. OF HOMELAND

SECURITY ET AL.; - RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

PETITION FOR CERTIORARI

Respectfully Submitted

John Ayanbadeyjo,

Pro se

11152 Westheimer Road, Unit 532

Houston, Texas 77042

Email: johnhenryesq@yahoo.com

TEL: (713) 385-6244

PETITION FOR CERTIORARI

QUESTION(S) PRESENTED FOR REVIEW

Whether the District Court and/or the Court of

Appeals has jurisdiction to reopen the time for

appeal to afford relief from Petitioner

Counsel's failure to file a timely petition for

review with the Court of Appeals of the

District Court’s summary order denying

Petitioners’ Complaint for Declaratory Action

Whether the District Court erred by imposing

her own views about a “real marriage”

estabhshing conditions and requirements

beyond INS regulations and judicial precedent,

and insisting that only petitioner’s spouse’:

testimony im an adjustment hearing 3

relevant

ISSUES

lf a Plaintiffs’ Attorney in the Court below

affirmatively misadvises the plaintiff and then

allegedly withdraws from the Plaintiffs’ case

without notice to the Plaintiff or filing a formal

Notice to Withdraw in accordance with the

Federal Rules of Civil Procedure or the

Federal ltules of Appellate Procedure, can the

Plaintiff later claim he received ineffective

assistance of counsel?

‘so, can the same Plaintiffs’ Attorney without

consent of the Plaintiffs, and with the

acquiescence of the District Court remain on

the same case in violation of his fiduciary

duties to the Plaintiffs, Disciplinary Rules of

Professional Conduct, Judicial Precedent, and

his oath of office?

What are the roles, responsibilities, and duties

of United States District Court Judge in a

complaint for declaratory, injunctive, and

mandamus relief in which the Plaintiff

requests for a jury tnal?

LIST OF PARTIES IN COURT BELOW

Keheia Malveaux Avanbadejo

and John Avanbade}jo

Plaintifts-Petitioners, Pro se

Janet Napolitano, Secretary

Department of Homeland

security, Defendant-Appellees

Sharon A Hudson, District

Director, United States

Citizenship and Immigration

services, Defendant-Appellee

United States Citizenship and

Immigration Service:

Defendant-Appellee

Samuel G. Langoria

Assistant United

Attorney

P.O. Box 61129

Houston, Texas 77010

Tel.: (713) 567-9514

Fax: (713) 718-3307

ATTORNEYS

DEFENDANTS.

RESPPONDENTS

rABLE OF CONTENTS

Page

Question(s) Presented for Revi

Issues

Lust of Parties in Court Below

lable of Authorities Cited

Citations of Opinions and Orders in Cas«

Jurisdictional Statement

Constitutional Provisions and Statutes Involved. 1]

Statutes of Limitation: Remedies on Motion ete

Statement of Case

Summary of Facts

Administrative Proceedings )

The District Court Decision

The Court of Appeals Decision 10

Kxistence of Jurisdiction in Courts Below 10 .

Argument for Allowance of Writ .... 1]

lf a Plaintiffs’ Attorney affirmatively

misadvises the plaintiff and then allegedly

withdraws from the Plaintiffs’ case without

notice to the Plaintiff or filing a formal

Notice to Withdraw in accordance with the

Federal Rules of Civil Procedure or the

“e, era wiles of Appettiate roceaure, can

Federal Rul f Appellate P i

the Plaintiff later claim he received

ineffective assistance of counsel? .. 16

1] lf so, can the same Plaintiffs’ Attorney

without the consent of the Plaintiffs, and

with the acquiescence of the District Court

remain on the same case in violation of his

fiduciary duties to the Plaintiffs,

Disciphnary Rules of Professional Conduct,

Judicial Precedent, and his oath of

olfice? 22

[1] What are the roles and duties of United

States District Court Judge in a complaint

for declaratory, injunctive, and mandamu:

rehef in which the Plaintiff requests for a

9

jury a trial? 25

Conclusion 28

INDEX TO APPENDIX

APPENDIX A: DECISION OF THE COURT OF APPEALS

APPENDIX B: DECISIONS OF THE UNITED STATES

DISTRICT COURT

APPENDIX C: DECISION OF THE COURT OF APPEALS

‘ONSOLIDATING PETITIONERS’ APPEAL AND DENYING

REHEARING OF THE APPEAL

APPENDIX D: DECISION OF THE COURT OF APPEALS

ON INITIAL APPEAL

APPENDIX KE: ORIGINAL COMPLAIN’

DISTRICT COUR APRIL 10, 2006

APPENDIX EF: AFFIRMANCE WITHOUT OPI!

BIA WITH EVIDENCE SHOWING PHI LACk

TRANSMITTAL OF PETITIONERS’ BRIEI

APPENDIX G: DE

OTHER ESSENTIAL MATERIAI

APPENDIX H: AFFIDAVI'

SHOWING LACK OF NOTICE T

APPENDIX I: AFFIDAVIT OF MR. AMBROSE O’NEAI

SHOWING DILIGENCE OF MR. AYANBADEJO IN INQUIRING

ABOUT PETITIONERS’ CASI]

APPENDIX J: AFFIDAVIT OF MS. PRAPPAS EVIDENCING

TIMELY RECEIPT OF PETITIONERS BRIEF BY

DEFENDANTS’ TRIAL ATTORNEYS FOR TRANSMITTAL TO

THE BIA

APPENDIX K: AFFIDAVIT OF FELICIA MALVEAUX

AYANBADEJO WITH LETTER FROM FORMER COUNSEL

INDICATING EVIDENCE SUBMITTED IN SUPPORT OF

MARRIAGE PETITION

APPENDIX L: MARRIAGE LICENS|

APPENDIX M: VERIFICATION OF JOHN AYANBADEJO

TABLE OF AUTHORITY CITED

CASES

Abboud [ INS 140 | \d 843 $4, (9

1993)

f Aetna Life Ins ( } ( Lat Lé 1 )

(1986) z20

Afanwi v. Mukasey, 130 S. Ct. 350

24 4 (2009) es

Agyeman v. INS, 296 F.3d 871, 884-85 (9

Cir. 2002) 26

oo Alcala 1 Holder. 63 | .d LOO9 (9th 1} ASLO.

ia

6. Arbaugh v. Y & H Corp., 514, 126 S. Ct. 123

163 L. Ed. 2d 1097.2 (2006) 12 13

/. Aris v. Mukasey, 517 F.3d 595, 600-601: (2d

Cir. 2008) 17

8. Atilus v. United States, 406 F.2d 694. 696 |

Cir. 1969) 19

9. Attorney Grievance Comm’n v visbelt

Md. 464, 560 A.2d 18, 19 (1989) 18

10. Ayanbadejo v. Chertoff, 517 F.3d 273, 275

Cir. 2008)

11. Bailey v. Glover, 88 U.S. (21 Wall.) 342. 348

(1874) 14

12. Bowles v. Russell, 551 U.S. 205. 212-13 (2007)

13. Breyer v. Meisner, 214 F.3d 416, 423-26 (3d

Cir. 2000) 2°96

14.Caperton v. A.T. Massey Coal Co., |

129 S.Ct. 2252, 2267 (2009) 95. 26

15.Cardot v. Luff, 164 W.Va. 307, 262 S.F d

889. 893 (1980) 9

16. Ceku { INS, 439 I 5d 26 1 /( (24 Cu UU)

i *4

l / Chan 1 Bell 164 I SUPP 125 (D.D.( 14 “\)

17

a

18. Colemenar INS 110 F.3d 967 (9th ¢ ir. ZUOU)

VAS)

9. Critchley l‘haler 86 F.3d 318 (5 (

2009) 14

20. Dabaghian v. Civiletti, 607 F.2d 86§ Ci

(1979) O

-1.Dakane v. United States Att’y Gen., 399 F.3d

1269, 1273-1274 (11th Cir. 2005) 7

22. Denko v. INS, 351 F.3d 717, 723-724 (6th Cu

2003) y

—_

3.Eberhart v. Uniied States, 546 U.S. 12, 1%

126 S. Ct, 163 L.Ed. 2d 14 (2005) .. 13

24. Kureste v. Comm'n for Lawyer Discipline, 76

5.W.3d 184, 201 (T'ex.App.-Houston [14 Dist.]

2002, no pet.) 18, 19

25. Fadiga v. Attorney Gen., 488 F.3d 142, 155-57

(3d Cir. 2007) ... 19, 17, 21

_

Federal Deposit Insurance Corp. v. United

States Fire Ins. Co., 50 F.3d 1304, 1314 (5

Cir. 1995) 23

‘)

{

Florida Bar 1 limson, 257 So.2d 44. 45

(Fla.1971) 21

3. Ghaly v. INS, 58 F.3d 1425. 1434 n.6 (9th Ch

1995) 27

Gjeci { Gonzal ; 1} ] }; sd 116 12] 92 ("

Cir. 2006) 2]

Harmeet Singh v. BIA, 2003 U.S. App. LEXI

20794 (9th Cir. 2003) 15

Hernandez v. Ashcroft, 3

(9% Cir. 2003) &

Hines v. Comm'n for Lawyer Discipline, 28

5.W.3d 697 (Tex App.-Corpus Christi 2000, no

pet.) 20)

3.Holmberg 1 Ambrecht Vag Ma Ue SIZ 5M

(1946) 14

Horaist v. Doctor’s Hospital of Opelou sas, 255

I 3d 261, 266 (5** Cir. 2001) Zo

Huerta v. Gonzales, 443 F.3d 753 (106 Cir

ZUUG) ..«. Lod

}. lavorski v. INS, 232 F.3d 124, 234 (2d

Z00Q0) 3, 14

In re Crane, 400 Mich. 484. 255 N.W.2d 624

628 (1977) 19

In re Dresser Indus., 972 F.2d 540, 548 (51)

Cir.1992) 2D

In re McCausland, 605 N.E.2d 185 (Ind.1993)

20

In re McCocl, 165 Wis.2d 500. 477 N.W. 2d 631

(1991) 20

In re Price, 244 Ga. 532. 261 S.B.2d 349. 349

(1979) iA

12 In re Rovert ) | a i

(Ind. 1988) A

! } In re Slaughter Ase (7A ; sty) ] |

(199]) ()

14. Joyner v. Commission for Lawyer Disciplin

1O2 5.W.3d 344, 346-347, 347-48 (Tex.App

Dallas 2003 no pet.)

15. Kaweesa v Ashcroft 345 } ; upp dd 79. YOO4

U.S. Dist. LEXIS 245038, *41 (D.Ma 1004) 1

16. Khan v. DOJ. 494 F.3d 255. 257-59 (2d Cnr

2007) 13

17.Kontrick v. Ryan, 540 U.S. 443, 454

906, 157 L.Ed. 2d 867 (2004)

18. Lewis { Curls oO} C‘hicavso WA | Te }

(7th Cir. 2008)

19. Loa-Herrera v. ‘T’romins/ 1 984. 9

88 (544 Cir. 2000) y

0. Locknart v. Chertoff, Case No O7C\

(N.D. Ohio Jan. 7, 2008)

»11.Loutstana State Bar Ass'n Carpenter

So.2d 855. 857 (La 14989) 1g 2]

2. Luya Liu v. INS, 2938 ] 1 36 (2d Cr OOP)

3. Mahmood v. Gonzal a vA 1 24 :

252 n.8 (3d Cir. 2005)

4. Mai v. Gonzales, 473 F.3d 162. 165-67 |

2007) 2

‘eTe) Marshall { Jery [7 14{ {

16. Matter oO} Keuersteu

628, 832 (19389) 19

i()] i | ‘VASE VA

A q

‘ vel I V / }

PU DDS)

(Jae j

» YY

i I

‘ | (Jiinity j j ;

‘ ‘5 { cif ’ 40) )

J ‘ '

‘J j | i

( be

, ’

f / ()

Of

bate’

JU

Villegas v. Carter, 711 S.W.2d 624, 626

(Tex.1986) ...... 18

Ward v. State, 740 S.W.2d 794, 789-99 (Tey

Crim.App. 1987) 19

Womack v. Warden, 95 Nev. 806, 603 P.2d 267

(1979) 19

Wong v. Bowen, C.A 1, 1988, 854 F.2d ¢

631 14

Zeru v. Gonzal y( 1 5S t {

»007) L/

RULES

Fed. R. Civ. P. 57

Fed. R. Evid. 603, 902

CONSTITUTION

U.S. Const. art. \

STATUTES

8 U.S.C.A. § 1151(b)

8 U.S.C.A. § 1154(b)

8 US.C.A. § 1329

» U.S.C. § 555(b), 557

5 U.S.C. § 701, et. seq

5 U.S.C. § 706(1)

8 U.S.C. § 1254(1)

18 U.S.C. § 1331 0, 4

18 U.S.C. § 1346(a)(2) l]

).28 U.S.C. § 1361

28 U.S.C. § 2201 L, 2Y

». 28 U.S.C. § 2202 1, 29

15. INA §240(b)(4) 11,4

16. INA § 292

17. INA, §§201(b), 204(b), 291

REGULATIONS

2. 8C.F.R. §§ 292, 1240.3, 1292.. 10

TEXTS, TREATISES, AND LAW REVIEWS

1. Moore’s Federal Practice, § 56.11 (Mathew

Bender, 3d ed)

2. Wright & Koch, Federal Practice A

Procedure 4“ ed

Immigration Law and Family

4. Immigration Law Sourcebook (14 ed) (2010

11)

» O'Connor's Federal Rules, Civil Trials (2009)

CITATIONS OF OPINION AND ORDERS IN

CASE

The opinion and judgment of the United States

Court of Appeals for the Fifth Circuit is reprinted as

Appendix A

The Fifth Circuit’s opinion affirms a judgment

of the United States District Court for the Southern

District of Texas, Houston Division and is reprinted

as Appendix B

JURISDICTIONAL STATEMENT

The judgment of the United States Court of

Appeals for the Fifth Circuit was entered on June 9,

2010 for the first Appeal. On or about July 13, 2010,

Petitioner filed a Petition for

Rehearing/Reconsideration/Consolidation on — the

Fifth Circuit’s decision entered on June 9, 2010. The

Court below on rehearing the consolidated Appeals

entered an order (reprinted as Appendix B) denying

the Petition for Rehearing on August 30, 2010.

This Petition is filed within 90 days of the said

date, so that this Court has jurisdiction to review the

judgment of the Fifth Circuit on petition for

certiorari, which rests by virtue of Section 1254(1) of

the Judicial Code (28 U.S.C. § 1254(1)).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. The Fifth Amendment, United States

Constitution, provides:

“No person shall be held to

answer for a capital, or otherwise

infamous crime, unless on a

presentment or indictment of a

Grand Jury, except in cases

arising in the land or naval

forces, or in the Militia, when in

actual service in time of War or

publhie danger; nor shall any

person be subject for the same

offence to be twice put in jeopardy

of hfe or hmb; nor shall be

compelled in any criminal case to

be a witness against himself, nor

be deprived of life, hberty, or

property, without due process of

law; nor shall private property be

taken for public use, without just

compensation.”

Statutes of Limitation: Remedies on Motion to Reopen

Filing deadlines govern a huge swath of civil

claims, ranging from discrimination under Title VII

of the Civil Rights Act of 1964 to habeas corpus

under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA). See, e.g., Pace v. DiGuglielmo,

544 U.S. 408, 410 (2005) (AEDPA); Natl RR.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)

(Title VII). For these claims, plaintiffs must file

within a prescribed time window, or risk forfeiting

their claims forever. Exceptions have been made

when deadlines would collide with the interests of

justice. Courts created the doctrine of equitable

tolling by recognizing that a plaintiff should be

granted "additional time within which to sue (or

meet some other deadline) if even diligent efforts on

his part would not have enabled him to prepare and

file his suit within the statutory period." Lewis v.

City of Chicago, 528 F.3d 488, 493 (7th Cir. 2008).

Statutes of limitations have been equitably tolled for

a vanety of reasons, including fraud, See, e.g.,

lavorski v. INS, 232 F.3d 124, 234 (2d Cir. 2000)

ineffective assistance of counsel, See, e.g., Cekic |

INS, 435 F.3d 267, 170 (2d Cir. 2006); Mahmood v

Gonzales, 427 F.3d 248, 251-52 & 252 n.8 (3d Cir

2005) and mental incapacity. See, e.g., Stoll

Runyon, 165 F.3d 1238, 2242 (9th Cir. 1999)

STATEMENT OF THE CASE

Petitioners requests the Court to Review the

Decisions of all the Courts below in this case

including the decision denying the Petitioners’

application to re-open the time for Appeal of the

District Court’s summary. dismissal of the

Petitioners’ Complaint for declaratory, injunctive,

and mandamus relief in which, Plaintiff-Petitioners,

Mr. and Mrs. Ayanbadejo asserted that the

respondents’-appellees’ wrongful actions deprived

Plaintiffs-Petitioners of their rights under judicial

precedent, the Freedom of Information Act, the

Immigration and Nationality Act, and under the

United States Constitution at the administrative

proceeding. (AR. 7-22, 107-130; entry number 1 and

24 of the district court’s docket sheet). The outcome

of this case will affect the duty lower Courts have to

litigants before the Court and a Plaintiff counsel has

to his clients when advising clients in immigration

cases of his intention to withdraw and the rights of

his chents to claim ineffective assistance of counse]

when not advised or misadvised of procedural and/or

substantive law concerning the case.

The decision below holds that due to the

Decision in Bowles v. Russell, 551 U.S. 205, 212-13

(2007) for the premise that the time limitation for

filing a notice of appeal is jurisdictional and Robbins

v. Maggio, 750 F.2d 405, 408 (5th Cir. 1985) for the

premise that the lack of a timely notice mandates

dismissal of the Petitioners’ Appeal, the Fifth Circuit

has no jurisdiction to hear Petitioners application to

Review the District Court’s denial of Petitioners’

motion to reopen the time for Appeal nor to transfer

the Motion to the Court of Appeals for consideration

Respectfully, the Court failed and/or refused to

consider Petitioners’ argument that Petitioners’

failure to file a timely notice of appeal was due te

ineffective assistance of Petitioners’ counsel

Summary of Facts

On December 18, 1996, Mr. John Ayanbadejo

(John, or Mr. Ayanbadejo, or Petitioner), a citizen of

Nigeria, was lawfully admitted to the United States

on a nonimmigrant visa, having come on the

invitation of his younger sister to join in the

celebration of the graduation of Ms. Ayanbadejo from

Texas A&M University with a degree in Chemical

Engineering and to visit with his other siblings.

During the visit he met some of his sister's friends,

one of whom was his current spouse, Ms. Felicia

Malveaux (Felicia, or Mrs. Ayanbadejo, or

Petitioner), a United States citizen.

On February 10, 1997, after a brief courtship,

John and Felicia got married in Houston, Texas, and

began living as husband and wife. (AR. 4, Dkt. No.

16.) On March 3, 1997, through the couple's

attorney, Felicia filed with the United States

Citizenship and Immigration Services (USCIS) an

immediate relative visa petition and an application

to change status, naming John as beneficiary. (AR.

4, Dkt. No. 16.) On March 17, 1997, a work

authorization card was issued to John

Administrative Proceedings

On December 16, 1999, more than two years

after Mr. and Mrs. Ayanbadejo's marriage and after

an interview to adjust John's status to that of lawful

permanent status, the USCIS requested additional

documentation from Felicia. Specifically, the USCIS

requested proof of cohabitation, immunizations for

John, and a letter of employment. All requested

documents were provided. (AR. 4, Dkt. No. 16.)

On December 5, 2000, more than three years

after Felicia's initial application, the USCIS issued a

notice of intent to deny her visa petition on an

allegation that she had not established eligibility for

the benefit sought, relying on a_ purported

investigation that revealed different addresses for

John and Felicia during July 1997 and another time

period, which the USCIS failed to specify. John and

Felicia responded strongly to said notice with an

affidavit dated January 24, 2001 in which the

address discrepancies were fully explained and/or

rebutted. (AR. 4, Dkt. No. 16.)

On or about April 17, 2001, due to lack of

response on the first petition, John and Felicia filed

another Form I-130 and were interviewed. (AR. 4,

Dkt. No. 16.) On June 26, 2002, more than five years

after the couple's marriage and initial application

and more than a year after the second, the USCIS

issued a second notice of intention to deny the

petition, based on an allegation that John and Felicia

were living separately and that the documentation

submitted was insufficient to establish eligibility for

the benefit sought.

Felicia responded by providing additional

documentation and an affidavit dated July 17, 2002.

In her affidavit she explained that career and

employment choices necessitated the couple's living

apart temporarily. (AR. 4, Dkt. No. 16.)

On October 9, 2002, more than five years after

John validly married Felicia under Texas law, the

USCIS issued its notice of denial, based, again, on

the allegation that they were temporarily living

apart, notwithstanding the compelling evidence that

had been submitted to establish the bona fides of the

marriage.

On November 5, 2002, the couple timely filed

an appeal of the USCIS's October 9, 2002 decision

with the Board of Immigration Appeal (BIA), citing

judicial precedent that was binding upon the BIA

(AR. 4, 203-16; Dkt. Nos. 16, 29.)

The USCIS neglected to forward the appeal to

the BIA despite numerous requests to do so. (AR. 4,

Dkt. No. 16.) On or about April 1, 2005, after a long

and frustrating delay of more than two years, the

couple sought congressional intervention on advice of

counsel, and, on June 16, 2005, the BIA inexplicably

rendered an opinion affirming the District Director's

October 9, 2002 decision without opinion. ‘That

decision was timely appealed to the Fifth Circuit, but

dismissed for lack of jurisdiction.

On April 10, 2006, John and Felicia brought a

complaint in the District Court, seeking declaratory

and mandatory relief. (Dkt. No. 1.) On July 18,

2006, the defendants filed a motion to dismiss for

lack of subject-matter jurisdiction. (AR. 3, 40-54;

Dkt. No. 11.) On August 21, 2006, Mr. and Mrs

Ayanbadejo filed their memorandum in opposition to

defendants’ motion to dismiss, attaching an appendix

containing portions of John's administrative records. !

(AR. 4, Dkt. No. 16.) This Court granted the

defendants' motion, and Mr. and Mrs. Ayanbadejo

timely appealed that dismissal on October 26, 2006

(AR. 5, 229-30: Dkt. No. 30.)

The ifth Circuit reversed the Court’

dismissal for lack of jurisdiction and remanded the

case for further proceedings. Ayanbadejo v. Chertoff.

517 F.2d 273, 278 (5t Cir. 2008). The defendant

moved ior summary judgment

The District Court Decision on Remand

On or about April 11, 2008, Plaintiff Mr

\yanbadejo? hired Mr. Salvador Colon, after reading

'The same day, the couple also filed an application for

leave to file amended pleadings and amended pleadings. (AR

1, 99-129; Dkt. Nos. 23, 24.) On August 29, 2006, defendant

filed a response to the Ayanbadejos' opposition to defendants’

motion to dismiss. (AR. 5, 130-35; Dkt. No. 17.) On September

5, 2006, Mr. and Mrs. Ayanbadejo filed a supplemental

memorandum in opposition to defendants-appellees' motion to

dismiss. (AR. 5, 147-59; Dkt. No. 19.)

On September 8, 2006, as a result of a FOIA action, the

defendants finally produced the complete immigration record:

On receipt of the records, plaintiffs' counsel noticed that th«

defendants had failed to transmit the couple's brief to the BIA

(AR. 5, 178-225; Dkt. No. 27.) On September 25, 2006, John

obtained an exact copy of the letter that had accompanied the

brief and the certificate of return receipt, providing irrefutable

evidence of timely receipt of the brief by the defendants. (AR. 5,

178-225; Dkt. No. 27.) On September 28, 2006, the couple filed

a motion for new trial based on the failure and/or refusal of

defendants to transmit the brief to the BIA. (AR. 5, 178-225:

Dkt. No. 27.) On October 3, 2006 the district court denied Mr

and Mrs. Ayanbadejo's motion for new trial. (AR. 5, 226-28:

Dkt. No. 29.)

2 To the best of his knowledge, Mr. Ayanbadejo though still

married to Mrs. Felicia Malveaux Ayanbadejo no longer resides

ith her, however Mr. Ayanbadejo provides her with financial

a synopsis of him on the internet, as additional

counsel to represent him and his United States

Citizen spouse for further proceedings before the

Court of Appeals and on remand to the lower Court

Diligently, Mr. Ayanbadejo had hired multiple

attorneys to represent Plaintiffs-Petitioner:

including the Law Firm of O.J. Lawal, original

attorneys for Plaintiffs, and Mr. Ambrose O'Neal

On or about 09/15/2009, unknown to Plaintiff

Petitioner, Mr. Ayanbadejo, the Court respectfully,

imposing her own views about a “real marriage”,

establishing conditions and requirements beyond

INS regulations and judicial precedent, and noting

and/or insisting that only petitioner’s spouse

testimony in adjustment hearing is relevant issued

its Memorandum and Order’ granting — th

;overnment’s Motion for Summary Judgment

dismissing the case with prejudice. See Appendix B

Plaintiffs-Petitioners, who were entitled to

receive notice of the entry of judgment, did not

receive notice until Monday, March 29, 2010, more

than 21 days a‘ter the entry of judgment primarily

and proximately due to Mr. Colon’s actions, lead

counsel for petitioners

and moral support to the best of his abilities whenever she

requests it. To the best of his knowledge, petitioners have no

criminal record and are both Catholics. See Matter of McKee, 17

I&N Dec. 332 (BIA 1980) [visa petition could not be denied

solely because the parties were no longer living together];

Hernandez v. Ashcroft, 345 F.3d 824, 845-49 (9% Cir. 2003) [the

nonviability of a marriage cannot alone be the basis to deny

adjustment even if immigration characterizes its decision to

deny as discretionary]; Dabaghian v. Civiletti, 607 F.2d 868 (9%

Cir. (1979) [visa petition could not be denied solely because

people not living together]

Mr. Colon expressly admits to Mr. Ayanbadejo

that he received the Court’s 9/15/2009, but did not

notify Mr. Ayanbadejo, nor take or pursue an appeal

because allegedly he was no longer representing

Plaintiffs-Petitioners Mr Colon stated Mr

Ayanbadejo fired him and Mr. Ayanbadejo denied

hiring Mr. Colon

Mr. Colon could not produce any document

expressly stating that Mr. Ayanbadejo had fired him

nor did Mr. Colon file a Motion to Withdraw before

the Lower Court as attorney-in-charge of Plaintiffs

Petitioners in accordance with the Federal Rules of

Civil Procedure, ‘Texas Disciplinary Rules _ of

Professional Conduct or Judicial Precedent. M1:

Ayanbadejo in compliance with the procedural

requirements established in Matter of Lozada, 19

[I&N Dec. 637 (BIA 1988), reported the matter to the

Texas Board of Disciplinary Appeals. None of th

other attorneys hired by Mr. Ayanbadejo to represent

Plaintiffs-Petitioners received Notice of the Court’s

9/15/2009 Decision or if they did, they failed to

inform Mr. Ayanbadejo of receipt of the Court’s

Notice. See Appendix H. Respectfully, contrary to th

finding of the Court Mr. Ayanbadejo was diligent in

frequently inquiring from Mr. Ambrose O’Neal

regarding the status of Petitioners’ case. See

Appendix I. See Fadiga v. Attorney Gen., 488 F.3d

142, 155-57 (3d Cir. 2007) [respondent not required

to file a bar charge where lawyer confessed error and

submitted a _ detailed affidavit regarding his

ineffective assistance]

Petitioners after notice timely sought

reopening of the time to Appeal the District Court’:

decision, motion to recuse, and motion to disqualify

All applications were dismissed by the District Court

in the course of the proceedy the bistrict (

Judge acquiesced to Mr. Colon remaini: n ti

ostensibly for the Defendant in violation of |

fiduciary duti to Plaintiffs-Petitioner the |

Disciplinary Rul of Professional Conduct ul

Judicial Precedent. Plaintiffs-Petitioners have a right

to representation’ b competent counsel

»$240(b)(4), 292, 8 C.F_R. 88292, 1240 v2. U

INS, 504 F.2d 1372 (5 Cir. 1974)

The Court of Appeals Decision

Citing Bowl i Meu ell 551 1 ()F)

(2007) for the premist that the time limitation f{

filing a notice of appeal is jurisdictional and Robbir

v. Maggio, 750 F.2d 405, 408 (5 Cir. 1985) for tl

premise that the lack of a timely notice mandats

dismissal of the Petitioners’ Appeal, the Fifth Circu

alfirmed the District Court denial of Petitione

application to reopen the time for \ppeal

Respectfully, the Court failed and/or refused |

consider Petitioner irvument that Petitione!

failure to file a timely notice of appeal was due t

ineffective assistance of Petitioner counsel

Appendix A—M

kixistence of Jurisdiction in Courts Below

This action wa commenced by Petitions

John Ayanbadejo and his spouse in the United Stats

District Court for the Southern District of Texas. Th

District Court has jurisdiction over the matter

pursuant to INA ¢ O1(b). 204(b). 291: 8 USCA &

1151(b). 1154(b): 8 USCA. § 18299 298 US ¢

1331, 1346(a)(2), 1361, 2201- 2202: 5 U.S.C. 701. «

eq., 70601), 555(b), 557; and Rule 57 of the Feder

Kule of Civil Procedure ee Char R Ga |

supp. 125 (D.D.f 1978)

ARGC I ViiGN’] KOR ALLOW AN ¢ ’ QO} WR

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"jurisdictional," id., at 510, 126 S. Ct. 1235,

163 L. Ed. 2d 1097 (quoting Scarborough v.

Principt, 541 U.S. 401, 414, 124 S. Ct. 1856,

158 L. Ed. 2d 674 (2004)), absent some

jurisdictional designation by Congress.

Congress put no jurisdictional tag on the time

limit here.3

2 The requirement that courts of appeals raise

jurisdictional issues sua sponte reveals further

ill effects of today's decision. Under § 2107(c),

"{t}]he district court may .. . extend the time

for appeal upon a showing of excusable neglect

or good cause." ....... What the majority

overlooks, however, are the _ post-Kontrick

cases showing that § 2107(a) can no longer be

seen as an example of a jurisdictional time

limit.

Most circuit courts that have addressed the issue

have found that the 30-day deadline is not

jurisdictional. See Huerta v. Gonzales, 443 F.3d 753

(10 Cir. 2006) [holding tinat 30-day filing period is

not jurisdictional but a mandatory, claims-processing

rule, citing to Eberhart, ana therefore where BIA

accepted an appeal one day late it did not lese

jurisdiction over the case]; Khan v. DOJ, 494 F.3d

255, 257-59 (2d Cir. 2007) [where DHL delivered the

notice of appeal one day late to the BIA, Bowles did

not bar petitioner from providing extraordinary or

unique circumstances for the failure to timely

appeal].

There is no fixed time limit for making a motion

to reopen based on lack of notice. See Holmberg v.

Ambrecht, 327 U.S. 392, 397 (1946) (quoting Bailey v.

Glover, 88 U.S. (21 Wall.) 342, 348 (1874). "[W]here a

plaintiff has been injured by fraud and ‘remains in

ignorance of it without any fault or want of diligence

or care on his part, the bar of the statute does not

begin to run until the fraud is discovered." See also,

lavorski v. INS, 232 F.3d 124, 234 (2d Cir. 2000)

ineffective assistance of counsel, See, e.g., Cekic v.

INS, 435 F.3d 267, 170 (2d Cir. 2006). In Wong v.

Bowen, C.A. 2d, 1988, 854 F.2d 630, 631 (Equitable

tolling will be allowed in those cases where the

agency acts 1n a “misleading or clandestine way.”).

The Fifth Circuit held that a state county district

clerk’s office’s apparent practice of mishandling

prisoner petitions for state post-conviction relief,

constituted a state impediment under 28 U.S.C. §

2244(d)(B) which tolled the AEDPA limitations

period applicable to the prisoner in this case.

Critchley v. Thaler, 586 F.3d 318 (5t» Cir. 2009).

In Riley v. INS, 310 F.3d 1253 (10th Cir. 2002),

the petitioner fiied a habeas corpus petition two

years after his deportation order became final.

Petitioner alleged, in part, that prior counsel’s

ineffective assistance of counsel rendered his

deportation order unlawful. The district court

exercised habeas jurisdiction and the Tenth Circuit,

adopting the rationale of the Chamkov and Luya Liu

courts, affirmed the availability of habeas

jurisdiction to non-criminal deportees

In Luya Liu v. INS, 293 F.3d 36 (2d Cir. 2002),

the petitioner filed a pro se habeas petition after the

Second Circuit dismissed her petition for review as

untimely. Concluding that petitioner’s “sole means to

obtain review of the BIA’s decision consisted of a

direct appeal,” the district court dismissed the

petition for lack of jurisdiction. Luya Liu, 293 F.3d at

38. The Second Circuit reversed, stating that

“{njJothing in St. Cyr suggests that its holding — in

substance, an extended exercise in statutory

construction — apphes only to criminal aliens.” Luya

Liu, 293 F.3d at 40. Thus, the court concluded that

habeas corpus jurisdiction remained regardless of the

petitioner’s status or grounds of removability. Luya

Liu, 293 F.3d at 41.

In addition, in an unpublished decision, the Ninth

Circuit noted that ineffective assistance of counsel

for failure to file an appeal brief to the BIA and a

petition for review might permit habeas review.

Harmeet Singh v. BIA, 2003 U.S. App. LEXIS 20794

(9th Cir. 2003) (unpublished). Citing Chamkov and

Luya Liu, the court noted that “i]t remains open to

Petitioner to raise this Fifth Amendment claim in a

petition for a writ of habeas corpus pursuant to 28

U.S C. § 2241.”

Some district courts have been receptive to

exercising habeas jurisdiction despite the availability

of direct review in the court of appeals. See, for

example, Kaweesa v. Ashcroft, 345 F. Supp. 2d 79,

2004 U.S. Dist. LEXIS 24503, *41 (D.Mass. 2004)

(“the provisions in 8 U.S.C. § 1252 limiting ‘judicial

review’ to direct review in the courts of appeals do

not foreclose habeas jurisdiction in the district

courts.”); Saba v. INS, 52 F. Supp. 2d 1117, 1123

(N.D.Cal. 1999) (habeas jurisdiction exists where “no

other avenue of judicial review” available to

petitioners due to the ineffective assistance rendered

by counsel). See ABA Model Rules of Prof. Conduct,

Rule 1.16 (2004); See, e.g., Ohntrup v. Firearms Ctr.,

Inc., 802 F.2d 676, 679 (3d Cir. 1986) (local rules

allowed judge to deny withdrawal even though client

dismissed counsel. In most districts a lawyer cannot

withdraw without securing leave of court. E.g, Local

Rules Ul. (N.D.); Rule 83.177 (2004); Local Rules

N.Y. (E.D. & S.D.), Rule 1.4 (2004).

Mr. Colon’s actions in failing to notify Petitioner

John Ayanbadejo of his withdrawal from the case

and failing to file his motion to withdraw in

accordance with the Federal Rules of Civil Procedure

while still being lhsted as “attorney-in-charge” of the

Petitioners with the acquiescence of the court in the

matter can be lhkened to the cases cited supra

because as attorney-in-charge of Petitioners, Mr.

Colon is subscribed to the same oath of office as

government employees and therefore has the same

duties and responsibilities

Krom the foregoing because the Fifth Circuit

Court of Appeals decision conflicts with other circuit

courts’ decision; the position of the respondents’ in

Afanwi v. Murasey, 130 S. Ct. 350, 175 L. Ed. 2d 4

(2009); and the decision of this court to remand in

Afanwi; respectfully the Fifth Circuit’s reliance on

Bowles and Robbins as applied to the peculiar facts

of this case as distinguished from Bowles and

Robbins is in error and this writ ought to be accepted

and considered

lf a Plaintiffs’ Attorney in the Court

below affirmatively musadvises_ the

plaintiff and then allegedly withdraws

from the Plaintiffs’ case without notice to

the Plaintiff or filing a formal Notice to

Withdraw in accordance with the Federal

Rules of Civil Procedure or the Federal

Rules of Appellate Procedure, can the

Plaintiff later claim he received

ineffective assistance of counsel?

The majority of circuits have suggested or held

that the Due Process Clause creates a Right to

Assistance of Counsel that is sufficiently effective in

immigration proceedings to prevent immigration

proceedings from being fundamentally unfair. See

Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007);

Aris v. Mukasey, 517 F.3d 595, 600-601; (2d Cir

2008); Kadiga v. Attorney Gen., 488 F.3d 142, 155 (3d

Cir. 2007); Denko v. INS, 351 F.3d 717, 723-724 (6th

Cir. 2003); Nehad v. Mukasey, 535 F.3d 962, 967;

(9th Cir. 2008); Tang v. Ashcroft, 354 F.3d 1192,

1196 (10th Cir. 2003); Dakane v. United States Att'y

Gen., 399 F.3d 1269, 1273-1274 (11th Cir. 2005). The

Fifth Circuit in Olvera v. INS, 504 F.2d 1372 (5t» Cir

1974), has held that, Plaintiffs-Petitioners have a

right to representation by competent counsel. The

Ninth Cireuit has said that aliens have “a

constitutional right to the assistance of counsel in

immigration proceedings.” Alcala v. Holder, 563 F.3d

L009, 1015 n. 11

The neglect of legal matters by the lawyers to

whom they have been entrusted is one of the most

widely condemned failures of our profession. See

Marks & Cathcart, Discipline Within the Legal

Profession: Is It Self-Regulation? 1974 UJILL. L

FORUM 193, 210-13 (1974) (citing reports and

statistics from various jurisdictions that show neglect

as the most common complaint against attorneys).

Numerous cases decided under both current and

prior laws have concluded that prejudicial delay such

as failure to commence an action, file a motion for

new trial or take an appeal — could subject a lawyer

to discipline. See Joyner v. Commission for Lawyer

Discipline, 102 S.W.38d 344, 346-347, 347-48

(Tex.App.-Dallas 20038, no pet.) (lawyer failed to file

suit within hmitations period); Attorney Grievance

Comm'n v. Nisbett, 316 Md. 464, 560 A.2d 18, 19

(1989).

Tex. Rule 1.15(d) imposes certain duties on

lawyers with respect to matters in~ which

representation has been terminated. The first of

these duties is “giving reasonable notice to the client”

of the lawyer’s intention to withdraw. See Eureste uv.

Comm'n for Lawyer Discipline, 76 S.W.3d 184, 201

(Tex.App.-Houston [14 Dist.] 2002, no pet.) [Court

found the notice provided by the lawyer was

unreasonable]. This notice allows the chent an

opportunity to secure new counsel and to take any

other necessary measures to protect its interests.

See, 2.g., Moss v. Malone, 880 S.W.2d 45, 50-51

(Tex.App.-Tyler 1994, writ denied) (trial court erred

in granting lawyer’s deceptive motion to withdraw

and in denying client adequate opportunity to secure

new counsel); Villegas v. Carter, 711 S.W.2d 624, 626

(Tex.1986) (noting that the court must give a party

time to secure new counsel and time for the new

counsel to investigate the case and prepare for trial);

Robinson v. Risinger, 548 S.W.2d 762, 766

(Tex.Civ.App. — Tyler 1977, writ refd n.r.e) (even

when an attorney justifiably withdraws, he should

protect the welfare of his client by suggesting

employment of other counsel).

The reasonableness of the notice will be a

question of fact in each case. Under prior law, notice

was held insufficient when it failed to clearly apprise

the chent that the lawyer intended to withdraw, it

failed to apprise the client of pending proceedings

affecting the case, it was not furnished to the client,

or did not allow sufficient time under’ the

circumstances for the client to protect his interests.

See, e.g., Matter of Feuerstein, 115 N.J. 278, 558 A.2d

828, 832 (1989) (oral notice of withdrawal

insufficient); Jn re Crane, 400 Mich. 484, 255 N.W.2d

624, 628 (1977) (printed form letter does not

constitute notice); Cardot v. Luff, 164 W.Va. 307, 262

S.E. 2d 889, 893 (1980) (notice insufficient where

chents in civil case did not receive notice of hearing

on formal withdrawal motion); Louisiana State Bar

Ass'n v. Carpenter, 553 So.2d 855, 857 (La. 1989)

(lawyer abandoned client without notice by failing to

appear in Court); Womack v. Warden, 95 Nev. 806,

603 P.2d 267 (1979) (notice of withdrawing counsel

for indigent appellant insufficient when _ only

respondent warden received formal notice). Cf.

Kureste v. Comm'n for Lawyer Discipline, 76 S.W.3d

184, 201 (Tex.App.-Houston [14'* Dist.] 2002, no pet.)

(lawyer violated Rule 1.15(d) by not notifying client

of impending closure of office and lawyer’s resultant

withdrawal, when the client was first contacted by

an employee of the lawyer just before that closure

occurred); People v. Bruinsma, 34 Mich.App. 167, 191

N.W.2d 108, 113 (1971). Because cases decided under

prior law concluded that inadequate notice may

result in continuation of the relationship as a matter

of law, it is extremely important to give notice of

withdrawal. See Atilus v. United States, 406 F.2d

694, 696 (5t» Cir. 1969); Ward v. State, 740 S.W.2d

794, 789-99 (Tex. Crim.App. 1987). Mr. Colon in

Petitioners’ case failed and/or refused to notify

Petitioners of his intention to withdraw or file his

Motion to Withdraw in accordance with the Federal

Rule of Civil Procedure.

Finally, even though a lawyer has advised his

client of the lawyer’s intention or desire to withdraw

from the representation, the lawyer continues to owe

basic duties of diligence and loyalty to the client until

withdrawal is actually accomplished in accordance

with these Rules and any applicable rules of practice

or procedure. See Hines v. Comm’n for Lawyer

Discipline, 28 S.W.3d 697 (Tex.App.-Corpus Christi

2000, no pet.) (lawyer who withdrew from

representation without taking appropriate steps to

protect former client’s remaining trial and appellate

rights is subject to discipline); Vander Voort v. State

Bar of Texas, 802 S.W.2d 332 (Tex.App.- Houston [1*

Dist.] 1990, writ denied) (lawyer who withdrew

without complying with applicable court rules

disciplined). Thus lawyers remain subject to

discipline for actively working against their client’s

interests after seeking to withdraw, or for

abandoning a matter before properly withdrawing.

See, eg. In re McCausland, 605 N.E.2d 185

(Ind.1993) (lawyer discipline for vindictive refusal to

return client’s files even when requested to do so by

chent’s new lawyer); In re Slaughter, 261 Ga. 433,

405 S.E.2d 481 (1991) (lawyer disciplined for failing

to return client’s document and refund unearned fees

upon being discharged); Sterling v. Jones, 255 La.

842, 233 So.2d 537, 539 (1970) (attorney owes a duty

to the client after withdrawing not to do any act

which would be contrary to the interests of that

former client). Also see, In re McCool, 165 Wis.2d

500, 477 N.W. 2d 631 (1991) (lawyer disciplined for

abandoning convicted client just before sentencing,

when he merely told client he was moving but left no

way for client to contact him); Jn re Roberts, 524

N.E.2d 1272, 1273 (Ind.1988); Louisiana State Bar

Assn v. Carpenter, 553 So.2d 855, 857 (La. 1989);

Florida Bar v. Timson, 257 So.2d 44, 45 (Fla.1971);

In re Price, 244 Ga. 532, 261 S.E.2d 349, 349 (1979).

Cf. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102

20

L.Ed.2d 300 (1988) (procedural rules governing

withdrawal of counsel for protection of client, and if

lawyer seeks to withdraw without complying with

them, motion should denied, even where no prejudice

is shown).

Although an IJ has wide discretion to allow a

counsel to withdraw, she must. take into

consideration the need to protect the client

Immigration Judge’s Benchbook 1:8:1.D.5. A lawyer's

professional responsibility upon withdrawal includes

the duty to take reasonable steps to avoid foreseeab]

prejudice to the rights of the client, including giving

notice to the client, allowing time for the employment

of other counsel, and delivering to the client all

papers and property to which the client is entitled.

Model Rules of Prof. Conduct R. 1.16(d).” Gjeci v.

Gonzales, 451 F.3d 416, 421-23 (7 Cir. 2006) [where

IJ failed to take steps to protect respondent’s

interests before permitting withdrawal of counsel

and then denied respondent a continuance, due

process was violated].

There is « denial of right where there is

ineffective assistance of Counsel. See e.g., Fadiga uv.

Attorney General USA, 488 F.3d 142, 155-63 (3d

Cir.2007) [a claim of ineffective assistance of counsel

in removal proceedings is cognizable under the Fifth

Amendment as a violation of due process and court

reversed denial of motion to reopen for ineffective

assistance holding that it violated due process]. Also

see Mai v. Gonzales, 473 F.3d 162, 165-67 (5t» Cir.

2007) [reversed BIA denial of motion to reopen for

ineffective assistance despite BIA’s claim that the

lawyer made a strategic decision when he admitted

two grounds of removal where one required a §212(c)

waiver and the second a waiver under §240A because

once §212(c) granted for the first ground §240A wa:

unavailable for the second].

Mr. Ayanbadejo has not at any time granted Mr

Colon any consent to testify adversely to petitioners’

interest nor does Mr. Ayanbadejo wish to do so either

now, in the future or ever

Krom the foregoing it can be deduced that the

Petitioners can claim they received ineffective

assistance of counsel and because the Fifth Circuit

Court of Appeals decision conflicts with the settled

position of this Court in Penson v. Ohio, 488 U.S. 75,

109 S.Ct. 346, 102 L.Ed.2d 300 (1988) and other

Fifth Circuit court’s decision; the position of the

respondents’ in Afanwi v. Mukasey, 130 S. Ct. 350,

175 L. Ed. 2d 4 (2009); and the decision of this court

to remand in Afanwi; respectfully the Fifth Circuit's

reliance on Bowles and Robbins as applied to the

peculiar facts of this case as distinguished from

Bowles and Robbins is in error and this writ ought to

be accepted and considered.

Il. If so, can the same Plaintiffs’ Attorney

without the consent of the Plaintiffs, and

with the acquiescence of the District

Court remain on the same case in

violation of his fiduciary duties to the

Plaintiffs, Disciplinary Rules of

Professional Conduct, Judicial Precedent,

and his oath of office?

Rule 1.01 paragraph (b) addresses the situation

where a lawyer's testimony, if offered, would be

unfavorable to the client. Its structure precludes its

possible use as a tactical litigation device. Since a

lawyer would not have to volunteer such adverse

testimony, the Rule does not require any action on

the lawyer’s part until it appears that the lawyer will

be compelled to furnish it. Even then the lawyer need

not do anything unless that testimony would be

“substantially adverse to the lawyer’s client.” If the

lawyer beheves that he will be compelled to furnish

substantially adverse testimony, paragraph (b)

requires the lawyer to treat the situation in

accordance with the general conflict of interest

principles set out in Rule 1.06, which provide that a

chent may consent to the representation afte)

disclosure of potential adverse effects

The Fifth Circuit has taken the position that

under ABA Model Rule 3.7, the counterpart to thi:

Rule, “[i]f a lawyer must testify adversely to a client’s

interest, the chent cannot waive the conflict.” Horaist

v. Doctor’s Hospital of Opelousas, 255 F.3d 261, 266

(5 Cir. 2001) (citing Federal Deposit Insurance

Corp. v. United States Fire Ins. Co., 50 F.3d 1304

1314 (5th Cir, 1995)).

As stated above Mr. Ayanbadejo has not at any

time granted Mr. Colon any consent to testify

adversely to the Plaintiffs’ interest nor does Mr

Ayanbadejo wish to do so either now, in the future o1

ever. Therefore from the foregoing the same

Plaintiffs’ Attorney without the consent of the

Plaintiffs, and even with the acquiescence of the

District Court cannot remain on the same case

without violating his duties.

’ The Texas Supreme Court has revised some of the proposed

changes to the Texas Disciplinary Rules of Professional

Conduct. Revised Rule 1.00(k) defines “informed consent” as a

person’s agreement to “proposed conduct” after a lawyer ha:

explained in a manner “a reasonable lawyer would believe

sufficient” for the person to understand the material risks of

and available alternatives to the conduct. Revised Rule 1.00(0)

defines “personally prohibited” to mean a lawyer is prohibited

Whether § th 1))

imposing her own view ibout

marriage establishiny condition

requirement be yond INS repulatiol

judicial precedent and insisting that

petitione) poust ti imo!

adjustment hearing

Irom representation

involvement in a

extends to lawyers who did not per

nonethels obtained confidential inform

Revised Rule 1.06(b) state NYO!

informed consent represent opposing parties in

before a tribunal.” Under revised Rule 1.09 the

Court removed the definition of ubstantia

under revised Rul 1.O9(c)(1) the

eliminated the word “knowineplys Ihe

1.09(c)(1) provide that unk i former cle ri\ infort

consent, a lawyer who personally represented the client

matter shall not thereafter represent anothe) person

matter adverse to the former client n which such other

questions the validity of the lawyer

for the former chient The Rule as revis«

liability” to enter into a re presentation that 1s inconsistent

the interest of a former client without obtaining a waiver fro

the former client. The revisions are similar to the language

the American Bar Association Model Rul of Professiona

Conduct. See Texas Lawyer Vol. 26 at 1 and 15. Also See In

Dresser Indus., 972 F.2d 540, 543 (5 Cir.1992) (local rule

not sole authority governing motions to disqualify |

rules alone cannot regulate party rivht to coun

choice). ‘Thus, the trend favors imposition of more ripgorou

tandards for violations of some Rules of Professional Conduct

especially those that may affect the ! proc right

individuals under a “strict liability

immediate sanctions under the Ameri

Model Rul of Proft ional Condu

ZUUU) Cindy;

ind the

Ot}

ort re

pore judi ] |

Under Federal Rule of Evidence (FRE) 603 Mrs

Malveaux Ayanbadejo’s affidavits filed before this

Court as part of the Court’s record qualify as

testimony in the support of Mr. Ayanbadejo’s petition

and such testimony is self authenticating under FRE

902, which states in pertinent part, as follows

“Extrinsic evidence of authenticity as a condition

precedent to admissibility is not required with

respect to documents accompanied by a certificate of

acknowledgement executed in the manner provided

by law by a notary public or other officer authorized

by law to take acknowledgment:

Also see U.S. v. Paulino, 13 F.3d 20, 23 (1

1994). “Under the [FREs], authentication can bi

accomplished without the direct testimony of either a

custodian or a percipient witness.”

Therefore from the foregoing the Judge’:

remarks and actions is compelling evidence of thi

Court's personal prejudice towards the Plaintiffs. See

U.S. v. Holland, 655 F.2d 44 (5th Cir. 1981) [Judge's

remarks at the trial showed a personal prejudice

against defendant for successfully appealing h

‘onviction on the basis of the judge’s actions during a

prior trial of the case].

Petitioner strongly urges this court not to

make a distinction between private attorneys and

government attorneys or civil and criminal cass

because in light of the dissenting opinion in Bowles

supra all attorneys regardless of whether they are

private or government attorneys subscribe to same

Oath of Office and stakes are equally as high in civ

as 1n criminal cases.

CONCLUSION

Kor the foregoing reasons

writ of certiorari should be granted

Dated: October

ne pectfully submitte

John Ayanbadeyjo

11152 Westheimer Road

Houston, ‘l'exas 77042

maul: johnhenryesg

John Avanba

rt) 1(1¢

JOHN AYANBADEJ(

PRO SI