Ak

110

No.

IN THE

SUPREME COURT OF THE UNITED STATES

BRYAN CHRISTOPHER —PETITIONER

VS.

UNITED STATES OF AMERICA -RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BRYAN CHRISTOPHER SAMUEL #44105-083, Petitioner pro se Federal Correctional Institution Gilmer P.O. Box 6000 Glenville, WV 26351-6000 •1 •\

QUESTION PRESENTED

1. Whether the federal courts below, in attempts to avoid constitutional and jurisdictional issues in a habeas corpus-type case, abused their discretion in presumably causing certain opinions to be delayed in delivery of the opinions to the Petitioner, and cause him to be out-of-time to petition for rehearing and reharing en banc in the Court of Appeals, and be untimely in this Court for writ of certiorari in first impression and novel issues that is of importance to the rest of the Nation.

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TABLE OF CONTENTS

OPINIONS BELOW . 1

JURISDICTION . 2- CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...... 2 STATEMENT OF THE CASE ...... 2

REASONS FOR GRANTING JHE PETITION ...... 3

CONCLUSION...... 7

INDEX 10 APPENDICES

APPENDIX A Opinion of the Court of Appeals denying the recall of the mandate APPENDIX B Opinion of the Court of Appeals denying petition for en banc rehearing as being out-of-time

APPENDIX C Opinion of the Court of Appealsdismissing appeal pertaining to the 28 U.S.C. § 2255 in the district court below

APPENDIX D Letter from Clerk of Court Appeals to Clerk of district court misconstruing COA application in the case to the Court of Appeals as a Notice of Appeal, and denying sàid.Court of Appeals of COA laying out the reasons why COA should be granted APPENDIX E Copy of COA application to the Court of Appeals errneously for- warded to the district court by Clerk of Court of Appeals

APPENDIX F Copy of mandate by Court of Appeals that caused Petitioner to look up on computer the Opinion of the Court of Appeals, since no notice of said opinion was received by 'Petitioner from Court APPENDIX G Copy of letter to Clerk of Court of Appeals asking why had he construed the COA as a Notice of Appeal', since on the same day a Notice of Appeal was tendered to the District Court

-11- TABLE OF AUTHORITIES CASES PAGE Ankenbrandt v. Richards, 504 U.S. 473 (2018) ...... 6 Artis v. District of Columbia, 199 L.Ed.2d 473 (2018) ...... Bond v. United States ("Bond I"), 131 S.Ct. 2355 (2011)...... 4

Cohens v. Virginia, - 6 Wheat. 264 (1821) ...... 6 Class v. United States, 138 S.Ct. 798 (2016) ...... 3 McCulloch v. Maryland, 4 Wheat. 4 Wheat. 316 (1819) ...... 3 McIntyre Mach., Ltd. v. Nicastro, 131 S.Ct. 2780 (2011) ...... 4 Montgomery v. Louisiana, 136 S.Ct. 718 (2016) ...... 5 Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566 (2012) ...... 3, 4 New Orleans Pub. Serv. v. New Orleans, 491 U.S. 350 (1988) ...... 4 Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ...... 4 Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998) ...... 6 Taylor v. United States, 136 S.Ct. 2074 (2016) ...... 3 Tennessee v. Davis, 100 U.S. 257 (1880) ...... 5 Williams v. United States., 289 U.S. 553 (1933) ...... 6 ffl1IER AUTHORITIES

The Federalist No. 42 (J. Madison) ...... 3

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IN THE SUPREME COURT OF THE UNITED STATES PETITION FOR WRIT OF CERTIORARI

Petitioner resepctfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

The opinion of the United States Court of Appeals denying recall of the man- date appears at APPENDIX A to the petition and is unpublished.

The opinion of the United States Court of Appeals denying petition for re- hearing en banc as untimely appears at APPENDIX B to the petition and is unpu- blished.

The opinion of the United States Court of Appeals dismissing the appeal in

the habeas corpus cause brought to the district court under 28 U.S.C. § 2255, ap- pears at APPENDIX C to the petition and is published as 2018 U.S.App. LEXIS 21184,

No. 18-6374, Dated July 31, 2018, and appears in a print-out from the law library computer, since Petitioner never received an original copy of said Opinion from

the Clerk of the Court of Appeals, and made his attempts to have a rehearing un- timly, since he did not know of the opinion until he received the Mandate refer-

red to above on September 27, 2018, and already too late for,a rehearing. A letter from the Clerk of the Court of Appeals, mistakenly construing an application to the Court of Appeals for a Certificate of Appealability, and send- the COA application to the district court clerk to be file as a Notice of Appeal

appears at APPENDIX D to the petition.

A copy of the application for a COA to the United States Court of Appeals, with the received stamp from the Clerk of the Court of Appeals, appears at APPEN- DIX E to the petition.

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I

A copy of the Mandate from the United States Court of Appeals appears at

APPENDIX F to the petition and is unpublished.

JURISDICTION The date on which the United States Court of Appeals issued its order de- nying the appeal, without an opinion on the merits, was July 31, 2018.

Because Petitioner never received a copy of said opinion, his attempts to

petition the Court of Appeals for rehearing en banc was not timely, and was, therefore, denied on October 17, 2018, along with the denial of the recall of the mandate.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution, Article I, § 8, ci. 3, provides that Congress

shall have the power "to regulate commerce ... among the several States.....

Title 28 U.S.C. § 2255, provides, in relevant part, that a federal prisoner may move the sentencing court to vacate, set aside, or correct the sentence, and imposes a one-year limitation period to do so.

STATEMENT OF THE CASE Petitioner was charged and convicted with the federal offenses of conspiracy to possess heroin with intent to distribute; and possession of a firearm in the

furtherance of the offense of the drug offense.

Petitioner was sentenced to a term of 180 months of imprisonment. An appeal to the United States Court of Appeals for the Fourth Circuit resulted in the judg-

ment of the district court being affirmed on January 27, 2017.

A motion under 28 U.S.C. § 2255 was filed on December 14, 2017, and the dis- trict court, without issuing an order for an answer to the Government, denied the

motion on February 27, 2018, on the contention that Petitioner had procedurally

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defaulted on the claims raised in his [notion, since he could have presented said claims on direct appeal—claims that, in essence, challenge the constitutionality

of the statutes e was charged under, and this Court has recognized, in Class v.

United States, 138 S.Ct. 798 (February 21,. 2018), that a federal prisoner does not reliquish the right to challenge the constitutionality of the federal crim-

inal statute under which he was charged and prosecuted, as well as challenging

• Congress' power, under the Commerce Clause, to legislate over alleged criminal conduct, in complete definace of the Framers' purpose and intent for inclusion of the Clause in the Constitution—to prevent the interference with the flow of

commerce "among the several States." The Federalist No. 42 (J. Madison).

REASONS FOR GRANTING THE PETITION

This Court has made it as plain as it can that, in our system of government, the powers are divided between the States and the Federal Government. See, e.g.,

Artis v. District of Columbia, 138 S.Ct. , 199 L.Ed.2d 473, 497 (2018). For this reason, the Framers enumerated the powers of the Federal Govern- ment into limited and expressly defined subjects that the Congress may legislate

over and create laws for enforcement by the Executive Branch. Nat'l Fed'n of

Indep. Bus. v. Sebelius, 132 S.Ct., 2566, 2577-78 (2012). Cf., e.g., United

States v. Lopez, 514 U.S. 549, 552 (1995). As to criminal laws, Justice Thomas, relying on what Chief Justice Marshall

declared, in McCulloch v. Maryland, 4 Wheat. 316, 416717 (1819), stated very clearly that only four distinct crimes are expressly enumerated in the Constitu-

tion for federal involvement, and not for the of fene of robbery under the Hobbs • Act, see Taylor v. United States, 136 S.Ct. 2074, 2082-83 (2016)(Thomas, J., dis- senting), and, as to this case, not controlled substances and firearm possession

for the purpose of any furtherance of the commission of an underlying crime that

is alleged.

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90 lie .10 14

In a collateral attack on the conviction, based on the lack of constitutional power of Congress to legislate over the alleged conduct presented in the motion,

such reluctance by the district court to even issue an order to show cause to the

Government, can be deemed the avoidance of the claim, because of the consequences of having to declare unconstitutional a major federal criminal law, and have to perform its duty, as instructed by this Court, "to enforce the limits on federal

power by striking down acts of Congress that transgress those limits," Nat'l Fed'n, supra, at 2580 (citation omitted), and can be said that the district court is, in

effect, refusing to exercise jurisdiction that is given, this Court has said, is "treason to the Constitution." New Orleans Pub. Serv. v. New Orleans, 491 U.S.

350, 358 (1988)(citation omitted). This Court made it as clear as crystal: "When a Federal court is properly appealed to in a case over which it:has by law jurisdiction, it is its duty to

take such jurisdiction." Id., 491 U.S., at 358-59 (citation omitted). If a federal court's "have a primary obligation to protect the rights of the individual that are embodied in the Federal Constitution," Pennsylvania v. Union Gas Co., 491 U.S. 1, 28 (1989)(citation omitted, quoting Stevens, J., concurring),

it is inconceivable for the district court below to have avoided the issues, simply

because of the consequences of declaring both the criminal drug laws and firearm possession laws unconstitutional, and allow a person convicted under such "void" laws lanquish in prison, in the absence of lawful power. Cf., e.g., McIntyre Mach., Ltd. v. Nicastro, 131 S.Ct. 2780, 2786-87 (2011)("The Due Process Clause

protects an individual's right to be deprived of life, liberty, or porperty only by the exercise of lawful power.")(citations omitted). On the showing that the laws under which Petitioner was charged are beyond the power of Congress, the

convictions thereunder cannot stand, and he is entitled to go free. See, e.g., Bond v. United States ("Bond I"), 131 S.Ct. 2355, 2367-68 (2011)(citations omit-

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ted) (Ginsburg, J., with whom Breyer, J., joins, concurring).

It can be reasonably stated that,.when the Framers enumerated the limited

powers of Congress in the Constitution, the subjects and matters listed in Art.

I, § 8, can be said to be "substantive rules" that limit the Government's ac- tions and legislative powers only to those enumerated matters, thus when a per- son is charged with conduct for which the Constitution does not list for federal

involvement, this Court's discussion in Montgomery.v. Louisiana, 136 S.Ct. 718

(2016), becomes relevant to this case, when it instructed: "Substantive rules, then, set forth categorical constitutional guaran- tees that place certain laws and punishments altogether beyond the [Govern- ment's] power to impose. It follows that when a [government] enforces a proscription or penalty barred by the Constitution, the resulting convic- tion or sentence is, by definition, unlawful."

Id., 136 S.Ct., at 729-30. In the district court, besides raising such a claim that the laws under

which Petitioner was prosecuted is beyond Congress' power to enact, he also raised the claim that the district courts of the United States are absent with

the capacity to be vested with criminal case jurisdiction, under this Court's

construction of Article III, § 2, and cited in his Memorandum in Support for re- lief under 28 U.S.C. § 2255. To avoid the issue, the district court used the language found in Tennessee v. Davis, 100 U.S. 257 (1880), that was not even dicta by the Court but, the

opinion of the Chairman of the Judiciary Committee, expressing his views as to

the need to have cases arising in State courts, for prosecution of an agent of the United States Government, charged with crime committed within the States,

while in the performance of his duties for the United States, to have the al-

leged criminal case removed to a federal court for prosecution, and did not extend to common law crimes committed by ordinary citizens within the States,

even if they are purported federal crimes, when considering that this Court,

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in relevant cases, has interpreted the "judicial Power" of the United States

to extend only to cases and controversies, and divided the classes of them into

three categories, when, after reciting Article III, § 2, verbatim, this Court

declared: "This section delineates the absolute limits on the federal courts'

jurisdiction[,] ... in articulating three different terms to define jurisdic- tion—"Cases, in Law and Equity;" "Cases," and "Controversies[.]" Ankenbrandt

v. Richards, 504 U.S. 689, 695 (1992). When it comes to "Cases, in Law and Equity," the fact that the phrase is drafted in the conjunctive, by the word "and" in between law and equity, with-

out a coma separating the two words, it is to be presumed that the Framers in- tended that cases, arising under the Constitution or laws of the United States, must be both "in Law and Equity," and are, by definition, civil suits—not in

any way criminal at all, and presentes issues of first impression for this Court to reaffirm, as it did in Williams v. United States, 289 U.S. 553, 572-

73 (1933); and Steel Co. v. Citizens for Better Env'nt, 523 U.S. 83, 101-102 (1998)(for the proposition that criminal cases "are not, however, the sort of

cases ... that Article III, § 2, refers to"), interpreting what Chief Justice

Marshall stated that: "Had any doubt existed with respect to the just construction of this part of the section, that doubt would have been removed by the enumera- tion of those cases the jurisdiction of the federal courts is extended in consequence of the character of the parties."

Cohens V. Virginia, 6 Wheat. 264, 383 (1821). Because it would appear the courts below are intentionally avoiding the

constitutional issues needed to be resolved to settle this case below, this

Court is asked to reverse and vacate the lower courts' deflecting opinions, and remand this case to the district court, with instructions to issue an order

to the Government to show cause why the relief sought in that court should not

S be granted, as is Petitioner's right not to be deprived of his liberty by the operation of void laws.

CONCLUSION

The petition for a writ of certiorari should be granted.

Dated: lLj , 2018.

Respectfully submitted,

BRYAN 0RIST0PHER SAMUEL, #44105-083 Federal Correctional Institution-Gilmer P.O. Box 6000 Glenville, WV 26351-6000

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