Petition for Writ of Certiorari — Chavis v. United States

Supreme Court, U.S.

i 981232 00

: No.

it OFFI

In The

fe Supreme Court of the United States

7

om

uy October Term, 1997

: THIRL CHAVIS,

Petitioner,

e vs.

Ml THE UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

v THIRL CHAVIS, PRO SE

sf PRO SE LITIGANT

a THIRL CHAVIS,

1h Reg. No. 99019-012

- FPC-Nellis CS 4500

ah N.Las Vegas,NV 89036

;

the

> 8 waa

QUESTIONS PRESENTED

I.

WHEN THE LANGUAGE IS CONCLUSIVE IN A

CONGRESSIONAL STATUTE, IS IT WITHIN THE

AUTHORITY OF A FEDERAL COURT TO ALTER,

AND/OR REFUSE TO ADHERE TO THE LANGUAGE SET

FORTH BY CONGRESS WITHOUT THE EXPRESSED

AUTHORITY AND/OR CONSENT OF CONGRESS

MOREOVER, SINCE ACTIONS AND CONCLUSIONS

REACHED BELOW ARE IN DIRECT CONFLICT WITH

THE LANGUAGE SET FORTH IN AN’ ENACTED

STATUTE.

II.

IS IT PERMISSIBLE FOR A COURT OF APPEALS TO

TAKE CERTAIN ASSERTIONS AS PROVEN FACTS

WHICH WERE DERIVED FROM OR THE END RESULT OF

QUESTIONABLE OR CONTESTED FACTS MOREOVER,

SINCE THE CASE FILES AND RECORD DEMONSTRATE

THE DISPUTED FACTS CRUCIAL TO THE OUTCOME

WHICH INCLUDES GENUINE ISSUES OF FACT IN

DISPUTE ALONG WITH QUESTIONS OF LAW WHICH IN

ALL THINGS REQUIRED A HEARING?

Iil.

MAY A COURT OF APPEALS MANIFESTLY MAKE

FINDINGS AGAINST THE WEIGHT OF THE EVIDENCE

MOREOVER, MAKE A CONCLUSION CONTRARY TO AN

ENACTED STATUTE BY CONGRESS WITHOUT THE

EXPRESSED PERMISSION OR CONSENT OF CONGRESS

AND ALSO CONTRARY TO DECISIONS SET FORTH BY

THIS COURT WHICH IS FURTHER INDICATIVE OF A

CLEAR MANIFEST OF INJUSTICE ON THE RIGHTS

i

a

OFFERED PETITIONER BY THE CONSTITUTION OF

THE UNITED STATES?

IV.

DID THE SEVENTH CIRCUIT ERR WHEN IT WAVERED

FROM ITS LONG ESTABLISHED POLICY RELATIVE TO

SPECIFIC REASONING ON RULINGS FOR THE

PURPOSE OF APPELLATE REVIEW THEREFORE

OFFENDING PETITIONER’S DUE PROCESS?

Vv.

DID THE SEVENTH CIRCUIT ERR BASING ITS

CONCLUSION THAT PETITIONER HAD NOT MADE A

SUBSTANTIAL SHOWING OF THE DENIAL OF A

CONSTITUTIONAL RIGHT MOREOVER, SINCE ITS

CONCLUSION WAS BASED ON QUESTIONABLE OR

CONTESTED FACTS OF MATERIAL VALUE IN

DISPUTE?

PARTIES TO THE PROCEEDINGS BELOW

The only parties to the proceedings in

the United States Court of Appeals for the

Seventh Circuit were the United States of

America and Petitioner Thirl Chavis.

ii

TABLE OF CONTENTS Page

QUESTIONS PRESENTED ....... i-,ii

PARTIES TO THE PROCEEDINGS BELOW. ii

OPINION AND JUDGMENT BELOW. ... 1

JURISDICTION. .« «ss eee

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED . s+ +«+s++s+¢e6 6 6 #7

STATEMENT OF THE CASE .....-.- 7-10

REASONS FOR ALLOWING THE WRIT . . 10-29

CONCLUSION. « « + @ see ee

TABLE OF CITED AUTHORITIES

STATUTES:

28 U.S.C.§ 1254(0).. 2 ee

18 U.S.C.§ 201 (e¢)(2)

Fed.R.Cr.P.Code Ann.§ 1621. . 729.

28 U.S.C. § 2295. 3.

Fed.R.App.P.Rule 22(b). .... .21

Fed. R.Cr. P.Rule 26.218) « 2)3 36

18 U.S.C. § 3500. . i& 60 ee

28 U.S.C. § 1Z78%6 eee

iii

AMENDMENTS :

V

ui

~J

VI. ie ea i a a a a ae a

CASES:

In re Certificates of

Appealability, 106 F.3d 1306 @

I eA Ee ee 2 |

U.S. v. Hernandez, 7/731 F.2d 114

RE) ee

U.S V. Evans, 572 F.2d 455,480

ee ee ee

U.S. v. Campbell, 684 F.2d 141,

150(D.C.Cir. 1982) ke « « = 6s ee

U.S. v. Brewster, 506 F.2d 62,82

Dann. Bees «6 « «+ 6 *& x 3

U.S. v. Brewster,(same)408 U.S.

eS

Nardone v. U.S. 302 U.S.

gs a a ry a

U.S. v. Arizona, 295 U.S. 174,

ES es |

K

Dollar Sav. B

(19 Wall.) 22

an

7

Herron, 87 U.S. (20 Wall.) ®@

OE a a er ae a eo ae ee ee

U.S. v. Marmoljo, 89 F.3d 1185,

LSULC SEN Cis, 1908) ss eS ee eo

(@)

U.S. v. Williams, 705 F.2d

Bee s o-e a se ko ee ee ee

Girtad, 601 F.zZ¢ @ 7i. «© «© « «© «© w 8

Russello, v. U.S. 464 U.S. 16, 21

e. 33 ir ae ee ea

U.S. v. Nilsen, 967 F.2d 39,

342-43 (iite Cir. 1992) .« « « « wae

U.S. VW. Soenwaertz, 785 F.2€a 54,55

(9th Cir) aa eo er ae ee 25

U.S. v. Picquet, 963 F.2d 54, 55

C3ON Catt « 8 oe eS he SS eo SO

U.S. v. Cervantes-Pacheco, 826 F.

246 320, 315 (Sth Gie.es wow « & « wee

U.S. v. Kimble, 719 F.

1255-57 (5th Cir. 198

H.R. Rep. No. 87-748, at (1961) . 26

Dixson v. U.S. 465 U.S. 482, 496

(1984)... er ae ae ee ee

Salinas Ve ewes 118 S.Ct.469,

Jt; a a a a a oe ee ee es eee

U.S. v. Raynor, 302 U.S. 540,

eG | a mn

U.S. v. Ryan, 903 F.2d 731,

Ke a oe a |

U.S.ex rel 132 F3d 1252,1257

[OGn Cis. teers «+ we ee ee 29

U.S. v. Lopez, 4 F.3d 1455,1458-

S3 (9th Cie. 1993). .« . «se «cdf

Matter of Doe, 801 F.Supp. 478,

484-87 (D.N.M. 1992). ..... .29

Butz v. Economou, 438 U.S. 478,

S694 1978) « « « « .. «6 he ee

U.S. v. Barrett, 505 F.2d 109]

(wee Cie. 297) we et te et kt. —.

Connecticut Nat'l Bank v. Germain

270s U.S. BOP. BOBls 6 & w ks — >

U.S. v. Estate of Romani,

118 S.Ct. 1478 1998) ' 28

vi

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

No.

THIRL CHAVIS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

Le

OPINION AND JUDGMENT BELOW

The opinion below is unpublished. A

copy is included in the Appendix hereto as

App. 1

Il.

JURISDICTION

This Court has jurisdiction to enter-

tain Petitioner's Petition for a Writ of

Certiorari pursuant to 28 U.S.C. § 1254(1).

1

The United States Court of Appeals for the

Seventh Circuit entered its final judgment

July 30, 1998. This Petition is being

filed with the Court timely of the entry

of Seventh Circuit's final judgment.

III.

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

z= tft

Statutory Construction. Interpretation of

a federal statute by courts of appeal and

the Supreme Court has long been esta-

blished that the review is de novo. In

various cases in the past, the Supreme

Court has stated in part that its inquiry

relative to interpretation of a federal

Statute begins with the language of the

Statute, which must ordinarily be regarded

as conclusive and, that the strong pre-

Sumption that the plain language of the

Statute expresses congressional intent is

rebutted only in rare and exceptional cir-

cumstances, when a contrary legislative

intent is clearly expressed. The Supreme

Court went on and stated that in the

absence of that rare and exceptional cir-

cumstance, we are to take Congress at its

word. In the course of its decision, the

Supreme Court wrote, Courts cannot with

ease presume ratification of that which

-ongress forbids. 180U.S.C. § 201(c)(2)

could not be more clear. It says:

Whoever...directly or indirectly, gives,

offers or promises anything of value to

2

any person, for or because of the testi-

mony under oath or affirmation given or to

be given by such person as a witness upon

a trial, hearing, or other proceeding, be-

fore any court...authorized by the laws of

the United States to hear evidence or take

testimony... shall be fined under this

title or imprisoned for not more than two

years, or both. The class of persons who

can violate the statute is not limited.

Whoever completes the following elements

commits a crime. 18 U.S.C. § 201(c)(2).

First, the statute requires a gift, offer,

Or promise, either direct or indirect, to

a person. Seconac, the gift, offer, or pro-

mise must be of value. Third, the gift,

offer or promise must be made for or

because of the person's sworn testimony at

a trial or other proceeding before an

authorized court. The state of mind re-

quired to violate the statute is knowledge

that the thing of value is given for or

because of testimony. Even if § 201 (c)(2)

could be said to deprive the sovereign of

an established prerogative, two further

exceptions remove § 201 (c)(2) from this

Class status. First, the presumption that

the excluded unless named does not apply

where the operation of law is upon the

agents or servants of the government

rather than on the sovereign itself. Id.

The Supreme Court held in one of its deci-

sions that, § 201 (c)(2) does not restrict

any interest of the sovereign itself; it

operates only upon an agent of the sovere-

ign limiting the way in which that agent

Carries out the government's interest.

There is no presumption that regulatory

and disciplinary measures do not extend to

such officers. Taken at face value the

3

soap

language the purpose of Congress to govern

conduct of its own officers and employees

as well as that of others. Second except-

ion provides that the government is sub-

ject to a statute, even if it infringes

upon a recognized government prerogative,

if the statute's purpose is to prevent

fraud, injury, or wrong. The antigratuity

provision of § 201 (c)(2) indicates Cong-

ress's belief that justice is undermined

by giving, or promising anything of value

for testimony. If justice perverted when

a criminal defendant seeks to buy testi-

mony from a witness, it is no less per-

verted when the government does_ so.

Because § 201 (c)(2) addresses what

Congress perceived to be ae wrong, and

operates to prevent a fraud upon the

federal courts in the form of inherently

unreliable testimony, the proscription of

§ 201 (c)(2) must apply to the government.

Further, the interests of the government

as sovereign militate in favor of applying

§ 201 (c)(2) against federal prosecutors.

The interest are in the enforcement of its

laws and the just administration of its

judicial system applying § 201 (c)(2) to

all parties in the judicial system

advances both interest. The policy

expressed in § 201 § (c)(2) has long been

enforced at common law. The policy is

weighty enough that contracts to pay fact

witnesses are void as violative of public

policy.

z= &«

Perjury Generally. Whoever - (1) having

taken an oath before a competent tribunal,

officer or person, in any case in which a

law of the United States authorizes an

4

Oath to be administered, that he will tes-

tify, declare, depose or certify truly, or

that any written testimony, declaration,

deposition, or certificate by him subscri-

bed, is true, willfully and contrary to

such oath states or subscribes any mat-

erial matter which he does not believe to

be true or (2) in any declaration, certif-

icate, verification, or statement under

penalty of perjury as permitted under sec-

tion 1746 of Title 28 U.S.C. willfully

Subscribes as true any material matter

which he does not believe to be true; is

guilty of perjury. (This section is appli-

cable whether the statement or subscript-

ion is made within or without the United

States). Fed R.Crim.P.Ann. § 1621.

z* << ft

Misrepresentation Generally. An untrue

statement of fact. That which, if accepted

leads the mind to an apprehension of a

condition other and different from that

which exists. Colloquially it is under-

stood to mean a statement made to deceive

Or mislead. Black's Law Dictionary - Fifth

Edition.

Se & ¢

de novo review. District court's dismissai

of a federal prisoner's habeas corpus

petition is reviewed de novo. 28 U.S.C. §

2255.

z* << ft

Due Process. No person shall be deprived

of life, liberty, or property without due

process of law. Constitution of the United

States of America, Amendment V.

5

=z *« f

Findings and Conclusions. Findings of fact

and conclusions of law are "indispensable

to appellate review". 28 U.S.C. § 2255.

A rather terse statement will not suffice.

I a

zx «ft

AMENDMENT VI — INEFFECTIVE ASSISTANCE

To establish or demonstrate ineffective

assistance of counsel, habeas corpus Peti-

tioner would have to show that counsel's

performance was "deficient" and "that def-

cient performance prejudiced defense".

Constitution of the United States of

America, Amendment VI.

=z « ft

Determining The Incorporation of The

Jencks Act

After a witness other than the defendant

has testified on direct examination, the

court on motion of a party who did not

call the witness, shall order the attorney

for the government or the defense and the

defendant's attorney...to produce for the

examination and use of the moving party,

any statement of the witness that is in

their possession and that relates to the

subject matter concerning which the wit-

ness has testified.Fed.R.Crim.P. Rule 26.2

(a); Fed.R.Crim.P. Rule 26.2(f£)(3) expres-

Sly defines the "Statement" of a witness

to include a statement made by a witness

to a grand jury. 18 U.S.C. § 3500(e)(3)

"entitles a defendant to the grand jury

testimony of a government trial witness

without any preliminary inspection for

0

usefulness" by trial judge. 2 Charles A.

Wright and Arthur R. Miller, Fed.Practice

and Procedure § 436-38(1982 & Supp. 1995).

=z & ft

BRADY V. MARYLAND UNDER

AMENDMENT V — DUE PROCESS

The meaning of materiality is that a

reviewing court must focus on the fairness

of the trial the defendant actually

received rather than on whether a diff-

erent result would have occured had the

undisclosed evidence been revealed.

Constitution of the United States of

America, Amendment V.

IV.

1

STATEMENT OF THE CASE

Pursuant to a four(4) count Superseding

Indictment which was returned in the

United States District Court for the

Southern District of Indiana, Indianapolis

Division on March 24, 1993, and in further

-ance of Petitioner Thirl Chavis's plea of

T

The jurisdiction of the court below was

invoked pursuant to 28 U.S.C. § 1291.

7

not guilty, Petitioner went to trial by

jury to the charges alleged in the Indict-

ment which were some 47 months from the

date the alleged offenses occured and the

date of the Indictment. The jury found

Petitioner guilty on all four counts in

the Indictment. Relative to Petitioner's

conviction, Petitioner's counsel did the

the following: (1) filed a timely notice

of appeal; (2) filed a motion to dismiss

appeal pursuant to his’ advice to Peti-

tioner to file a § 2255. The facts on

Petitioner's § 2255 are set forth in the

order of the U.S. Court of Appeais for the

Seventh Circuit dated September 17, 1997.

App. 10. It is also stated in the lower

court's order that Petitioner was under

the’ district court's invitation to rein-

state or commence a new action pursuant to

§ 2255, when Petitioner had satisfactorily

8

completed his investigation. In further-

ance of the district court's order for the

refilling or filing a new cause of action,

App. 10 Petitioner filed his § 2255. The

district court denied it and Petitioner;

(1) filed notice of appeal, Id. (2) court

below remanded for further proceedings,Id.

(3) district court ordered government to

file an answer, App. 34, (4) government

responded, Petitioner replied and district

court denied with prejudice. App. 30-33.

(5) Petitioner filed for Certificate of

Appealability ("COA") App. 25-29, (6) dis-

trict court denied. App. 23-24. Petitioner

pled in the alternative, district clerk

Submitted the record to the court below

App. 20-22, (7) Petitioner filed his dock-

eting statement App. 13-18, (8) court

below ordered appellee to file jurisdic-

tional Memorandum App. 12, Avpellee com-

9

plied App. 6-9, Petitioner responded App.

2-5, the court below in its rather terse

statement denied Petitioner. App. l.

REASONS FOR GRANTING THE WRIT

This case exemplifies direct conflict

to that of statute law as well as to pre-

vious decisions made by this Court relat-

to the statutes set forth herein below.

Facts Pertinent To The 18 U.S.C. § 201(c)

(2) Issue:

In view of the fact Petitioner pled not

guilty to the four counts in the indict-

ment App. 45, 46, the evidence comprised

during trial clearly demonstrates, there

are several problems here of Constitut-

ional magnitude which could have been in

all things cured had the court below (1)

reviewed the case at bar de novo as requi-

red (2) referenced the documents, papers

and record in the case at bar. The clear

10

problems which exists are, but not limited

to:

1. Pursuant to Petitioner's request for

the court below to review the record de

novo in furtherance of Petitioner's COA

appeal, the record is devoid of such re-

view undertaken by the court below. Had a

de novo review been made, the following

would have been found by the court below;

2. Relative to promises in consider-

ation of anything of value in exchange for

witness's Sworn testimony, government

agents, i.e. U.S. Attorneys and/or their

assistants are governed by 18 U.S.C. § 201

(c)(2). Further § 201 (c)(2) prohibits and

condemns promises made pursuant to consi-

deration of anything of value in exchange

for witness's sworn testimony.

3. Petitioner argued vigorously the

leniency promised and granted to the

11

government witnesses in exchange for their

sworn testimony, as stated above is in all

things prohibited by 18 U.S.C. § 201(c)(2)

which violated Petitioner's due process to

8 tate trial. In its wisdom, this Court

established and set forth the following;

Decency, security and liberty alike

demand that government officials shall

be subjected to the same rules of con-

duct that are commands to the citizen.

In a government of laws, existence of

the government will be imperiled if it

fails to observe the law scrupulously.

Our government is the potent, omnipre-

sent teacher. For good or for ill, it

teaches the whole people by its example

Crime is contagious. If the government

becomes a lawbreaker, it breeds cont-

empt for law; it invites every man to

become a law unto himself; it invites

anarchy. To declare that in the admin-

istration of the criminal law the end

justifies the means--to declare that

the government may commit crimes in

order to secure the conviction of a

private criminal--would bring terrible

retribution. Agents that pernicious

doctrine this Court should resolutely

set its face. 277 U.S. 438, 485 (1928).

Some 50 years later the Court stated:

This venerable principal will not give

way to the expediency of the govern-

12

ment's present practices without legi-

Slative authorization. 457 U.S. 332,

352 (1982).

4. The evidence in the case at bar is

overwhelming in furtherance of prohibition

and condemnation of promises made pursuant

to anything of value in exchange for wit-

ness's Sworn testimony moreover, the plea

agreement and the complete understanding

therein in regards to the witness procur-

ing the valuable cut in sentence in exch-

ange for her sworn testimony. Considering

federal government agent Tom Casey's pick

and choose prosecution between the state

of Indiana and federal, Casey demonstrated

while on the stand in the case at bar how

his promises and payment in exchange for

the government witness's testimony clearly

was something of value [App. 59];[Vol.I

Trial Transcript page 28, lines 15-17];

[Vol. I Trial Transcript page 29, lines l1-

13

She Government agent Casey's inducement

for government witness Siakotos to testify

is clearly exhibited in Vol. I Trial Trans

cript page 70, lines 13-25; Vol. I Trial

Transcript page 71, lines 1-3. Further,

the two Crucial events which occurred in

the course of the improprieties on the

part of the prosecutor and agent Casey

which were not addressed by the lower

court which was caused by the failure to

review the case at bar de novo or refer-

ence the record were: (1) allegations set

forth in the Indictment were in or around

April, 1989 to July, 1989. (2) government

witness Siakotos testified she was not

sentenced until early 1991 and her sent-

ence was only Six years pursuant to the

plea agreement herein discussed. It is in

all things clear that, Agent Casey took 2

years to muster the offer and promise to

14

government witness Siakotos in exchange

for her false sworn testimony which in

all things Petitioner pointed out in

detail in the district court but, instead

of referencing the record or reviewing

the case at bar de novo as required, the

court below merely rendered its rather

terse statement. In furtherance of the

above, the Fifth Circuit in its wisdom

stated in part: _‘‘We think it obvious that

, . j it _— Load

ij , —

id , ind t 4 falsify i

that case.’’ 719 F.2d 1253-57 (Sth Cir.

1983). The case at bar is classic that

was found in the Fifth Circuit’s wisdom

of some 15 years ago. In the case at bar,

two factors demonstrate how Petitioner’s

conviction was obtained illegally. (1)

When Special Agent Casey went to the

place of confinement of government

witness Siakotos and promised her

15

leniency in her State sentence in

exchange for her sworn testimony in the

case at bar. Even though it was. some

forty seven (47) months subsequent to the

alleged offenses, and the fact it took

S/A Casey that long to reach the

agreement with Siakotos that involved the

promise of leniency and, for Siakotos to

trust such arrangement. Further, Siakotos

had to join forces with S/A Casey for the

fabrication of her testimony. (2) The

record speaks out loudly on the per jured

testimony that Siakotos proffered in

court. The record demonstrates how

Petitioner’s conviction was obtained

illegally moreover, in direct conflict

with statutory law. 18 U.S.C. section 201

(c)(2). This Court at various times has

in all things emphasised, ‘*The intention

7?r 6&4M

conclusive. 447 U.S. 102, 108. Further,

16

as this Court previously concluded, ‘‘we

are bound to take Congress at its word.’’

118 S.Ct. 838, 841. Facts pertinent to 18

U.S.C. sections 201 (c)(2): and 1621

which Circuits have quoted that has long

been the standing of this Court which it

states in part: The class of persons who

can violate the statute is not limited.

**Whoever completes the following elements

commits a crime. 18 U.S.C. section 201

(c)(2). First, the statute requires a

gift, offer, or promise, either direct or

indirect, to a person, See id. Second,

the gift, offer or promise must be ‘of

value’.’’ Id. Third, the gift, offer, or

promise must be made ‘for’ or ‘because

of’ the person’s sworn testimony at a

trial or other proceeding before an

authorized court. Id. The state of mind

required to violate the statute is

knowledge that the thing of value is

17

agents or servants of the government

rather than on the sovereign itself.’’ See

Nardone v. United States, 302 U.S. 379,

383 (1937) at 383; United States vy.

Arizona, 295 U.S. 174, 184 (1935); Dollar

Sav. Bank v. United States, 86 U.S. (19

Wall.) 227, 239 (1873). Taken at face

value, the language indicates the purpose

of Congress to govern conduct ofits own

officers and employees as well as that of

others. Arizona, 295 U.S. at 184 (holding

the Secretary of the Interior was clearly

subject to a law prohibiting ‘*‘any

person’’ from constructing a dam on

navigable waterways without the consent

of Congress). The entire language of 18

U.S.C. section 201 (c)(2)is in totality

silent on the issue that Congress

permitted any agent(s) of the sovereign

namely any prosecutor to violate and/or

to be in direct conflict with the

language in section 201 (c)(2) therefore

the above stated actions on the part of

S/A Casey and the prosecutor violated

section 201 (c)(2) moreover with the

perjured testimony which was proffered by

the government’s chief witness during

18

and evidenced in the record hereto.

Petitioner argues that, since the court

below did not have the expressed

authority or consent of Congress to do

so, it could not alter any portion of the

conclusive language in 18 U.S.C. section

201 (c)(2). The failure on the part of

the court below to adhere to the said

statute demonstrates the violation of the

same statute. In furtherance of the above

stated conflict and violation, the record

decisively demonstrates the exact

prognostication of the Fifth Circuit some

fifteen years ago when it stated in part:

‘*‘We think obvious that promises of

immunity or leniency premised on

cooperation in a particular case may

provide a strong inducement to falsify in

that case.’’ 719 F.2d 1253-57 (5th Cir.

1983). In view of the decision made below

and Petitioner’s section 2255 was in fact

19

filed in accordance to the district court

and its order as stated herein which was

not addressed or interpreted by the court

below which in essence deprived

Petitioner of his due process pursuant to

the actions or non-actions by the court

Felow moreover, had the court below

reviewed the record de novo as required,

the miscarriage of justice which occurred

in connection with the above’. stated

conflicts would have been corrected in

the normal course of a de novo review by

the court below. Further, the court below

would have found that, the district

court’s ambiguous orders App.31 and

App.23 dealt with the AEDPA and i=in

totality refused to address its own

invitation to Petitioner which was a

clear on going case, exempt from the

AEDPA. The court below merely paraphrased

the district court’s final order App. l,

20

which certainly appears to further the

miscarriage of justice.

POINT I

In the case at bar, since the district

court denied the certificate of

appealability (‘**‘COA’’), the notice of

appeal constituted a request to have all

of the issues reviewed by a judge of the

court of appeals. Fed.R.App.P. Rule

22(b). In... xe Certificate of

Appealability, 106 F.3d 1306 at 1307.

Further, there seems not to be a conflict

between the Seventh Circuit and the Fifth

Circuit relieve to state findings and

conclusions for 28 U.S.C. section 2255

for the reason’ that findings and

conclusions *‘*‘are plainly indispensable to

appellate review.’’ Hart v. United States,

565 F.2d 360, 362 yet, in the case at

bar, the Seventh Circuit failed to adhere

to its long standing as stated in the

Hart case above cited. Since the order of

21

the court below App. 1 indicates’ the

court failed to review the case at bar de

novo the court below failed to address

the district court’s invitation for

Petitioner to refile as previously stated

herein therefore violating Petitioner’s

Due Process under the Constitution of the

United States to equal protection of the

law. Fifth Amendment. Further, in the

process of the failure to review the case

at bar de novo, by the court below,

Petitioner argues that, the hard evidence

he attached to his pleadings in the court

below App. 59, 60, 64, 65, 66, 67,

relative to the direct conflict with

statute 18 U.S.C. section 201 (c)(2) by

the above stated government agents which

required a hearing was in furtherance of

the miscarriage of justice herein stated

and evidenced for the reason that it has

been consistently noted that section 201

22

is to be broadly construed to further its

legislative purpose of deterring

corruption. See United States Vv.

Hernandez, 731 F.2d 1147, 1149 (5th Cir.

1984); United States v. Evans, 572 F.2d

455, 480 (5th Cir.), cert. denied 439

U.S. 870 (1978).

This court should in the interest of

justice to correct the miscarriage of

justice suffered by Petitioner the

decisions this court has rendered in the

past. The Arizona court 295 U.S. @ 184,

the Nardone court 302 U.S. @ 384, the

Herron court 87 U.S. (20 Wall.) at 255-56

all of which have yet to be overturned

relied on the principal to hold that

federal agents were covered by the

statutory term ‘‘anyone’’ in the 1934

federal wiretap statute. 302 U.S. @ 382-

84. This holding still stands obviously

since the holding has never been

over .urned and the conclusive

23

Congressional language has not been

altered by Congress since its enactment

therefore, the language in 18 U.S.C.

section 201(c)(2) should apply to the

case at bar. Further, since it has been

uniformly rejected that ‘““anything of

value should be restricted to things of

monetary commercial ,objective, actual, or

tangible value’’ interpretation is based

upon a recognition that monetary worth in

not the sole measure of value. Marmolio,

89 F.3d 1185, 1191 (5th Cir. 1996);

Williams, 705 F.2d @ 622-23; Girad, 601

F.2d @ 71; Russello, 464 U.S. 16, 21

(1983). The promised and procured

leniency of sentence herein stated should

in all things be broadly construed in

accordance to section 201 in order to

carry out its Congressional purpose.

Williams @ 603. The leniency stated

herein is Clearly ‘‘thing of value’’ See

24

Nilsen, 967 F.2d 539, 542-43 (12th Cir.

1992) cert. denied, Schwartz, 785 F.2d

679-81 (9th Cir.) cert. denied, Pacheco,

826 F.2d 826 F.2d @ 315 (5th Cir. 1985);

Kimble, 719 F.2d @ 1255-57 (5th Cir.

1983); Picquet, 963 F.2d 54, 55 (5th

Cir. 1992).

The Picquet court agreed with circuits

which held that the test of value is

whether the recipient subjectively

attaches value to the thing received. Id.

@ 55. In the case at bar the thing of

value was leniency of many years off of a

sentence. The court below obviously is

also in conflict with the circuits that

held the test of value as stated above.

Rulings on a promise, false testimony,

threat to a witness’s truthfulness are

those of the Fifth Circuit noting that

certiorari was denied. Pacheco, 826 F.2d

@ 315;_ Kimble, 719 F.2d @ 1255-57. It

should be concluded that the government

25

witness herein referenced had a strong

inducement to falsify her testimony

during trial in this case.

POINT II.

In reference to the district court’s

order App. 10-11, did the court below err

when it made its findings and conclusion.

The above stated district court order

App. 10-11 demonstrates the ongoing

litigation which could not be confused by

the AEDPA’s time limitations. Further,

the failure on the court below to a de

novo review of the record in the case at

bar omitted the finding that,

Petitioner’s pleadings were pursuant to

authority set forth by this Court

moreover, (a) Ineffective assistance of

counsel; (b) Jencks Act; (c) Brady Rule.

In futherance of the above, Congress in

H.R. Rep. No. 87-748. at 16 (1961), set

forth the conclusive language that

‘““Anything of value by ‘witness’ ‘for’ or

26

‘because of’... testimony’’ should also be

prohibited.’’ The committee report also

indicates Congress’s policy: ‘*The conduct

which is forbidden has the appearance of

evil and the capacity of serving as a

cover for evil. Id. at 19. This Court for

more than 60 years has expressed

instructive words: **No rule of

construction...requires that a penal

statute be strained and distorted in

order to exclude conduct clearly intented

to be within its scope.’’ This Court has

further expressed that in essence a

matter which tends to alter the intent or

conclusive language of Congress is one of

policy for Congress to decide. Dixon v.

United States, 465 U.S. 482, 496 (1984);

See Salinas v. United States, 118 S.Ct.

469, 475 (1997)(citing United States v.

Raynor, 302 U.S. 540, 552 (1938)); See

Nardone, 302 U.S. at 383.

27

Le

Over two decades ago the court below

stated its position in conflict to 18

U.S.C. section 201 (c)(2) when it stated

in part: ‘**‘if the government can excuse

criminal or civil liability in setting a

criminal case, surely it can use that

power of compromise to obtain a guilty

plea ot to procure testimony in other

proceedings.’’ United States v. Barrett,

505 F.2d 1091 (7th Cir. 1974). In essence

the court below in its conclusion above

stated tends to imply repeal and/or

amendment to section 201 (c)(2) which is

clearly disfavored by this Court. See

e.g. United States v. Estate of Romani,

118 S.Ct. 1478, 1486 (1998); 1A Norman J.

Singer, Sutherland Statutory Construction

section 22.13 (5th ed. 1992)(**Amendments

by implication, like repeals by

implication, are not favored and will not

be upheld in doubtful cases...’’) Id. at

section 23.09. The majority of the

28

section 23.09. The majority of the

circuits are in conflict with the court

below and its above stated conclusion.

Other circuits restrict federal

prosecutors to adhere to statute law.

Ryan, 903 F.2d 739-40 (10th Cars}?

McDonnell Douglas Corp. 132 F.2d 1257

(8th Cir. 1998); Lopez, 4 F.3d 1458-63

(9th Cir. 1993); Matter of Doe, 301 F.

Supp. 484-87 (D.N.M. 1992). The case at

bar is a classic miscarriage of justice

pursuant to the total disregard

for statutory law as stated herein.

CONCLUSION

For the foregoing reasons, Petitioner

Thirl Chavis repectfully requests’ that

the Court issue a writ of certiorari to

review the judgment and opinion of the

United States Court of Appeals for the

Seventh Circuit.

29

eo,

Respectfully submitted,

THIRL CHAVIS, PRO SE

Reg. No. 99019-012

FPC-Nellis CS 4500

North Las Vegas, NV 89036-4500

CERTIFICATE OF SERVICE

I hereby certify that a true and

correct copy of the foregoing has been

caused to be served upon the Solicitor

General of the United States, Room 5614,

Department of Justice, 950 Pennsylvania

Ave., N.W. Washington, DC 20530-0001 by

depositing the same on this 30th day of

January, 1999, in the U.S. Mail First-—

Class Delivery postage prepaid.