# Petition for Writ of Certiorari — Ayanbadejo v. Napolitano

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2685%3A01

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1138

## Text

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

{ '
}
| ] petit y me ' ;
if t? i 4} ,
if | Toa ' } ,
rary j ' i} | , "
ied Mii : j ‘
’ ; } ‘
;
VV } ’ ]
? I i?
eal to afford 1 Potit
eo fa : : |
t a {
nstul {
Vet { , 4
Nith al | , , |
‘ | Lil Prat te | ; " , f
| 1 ti {

"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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2685%3A01. Public record. Not legal advice.