Young Petition for Writ of Certiorari US Supreme Court

Boulder Young Petitions US Supreme Court to Overturn Criminal Federal Case

Petitioner Boulder Young, also known as Boulder Daniel McManigal [“Petitioner”], was indicted on May 24, 2017 for four counts relating to the distribution of methamphetamine. The indictment claimed that on three separate occasions, Petitioner sold methamphetamine to ATF agents or informants. The prosecution additionally asserted that Petitioner possessed a reputation for dangerousness, citing proffers provided by two of Petitioner’s supposed customers who were both under indictment for related drug charges at the time. Although Petitioner has never been convicted of a felony and possesses a very limited criminal history, the prosecution cited his firearms collection as further evidence of his supposedly violent character.

On August 2, 2017, Petitioner agreed to plead guilty to Conspiracy to Distribute a Controlled Substance , and signed a memorandum of the proposed plea agreement. The plea was entered on October 2, 2017. App. 1a. This offense carries a mandatory minimum sentence of 120 months in prison. App. 3a. Paragraph 41 of this memorandum requires Petitioner to waive his right to appeal the conviction and the sentence involved. Furthermore, paragraph 41 stipulates that at the conclusion of the sentencing hearing the Court will note that Petitioner’s appellant rights are limited. The Magistrate Judge entered the guilty plea on October 2, and it was accepted by the District Court on October 18, 2017. App. 1a.

Right to Appeal Federal Conviction

On January 11, 2019, Petitioner was sentenced to the mandatory minimum of 120 months in prison and five years of supervised release. App 8a. Counsel for Petitioner argued that the court should apply the 18 U.S.C. § 3553(f) safety valve provision, authorizing a sentence below the federal minimum. To be eligible for “safety valve” relief, defendant must have minimal criminal history and an offense which is nonviolent in nature. The court held that Petitioner failed to meet the burden of proof due to his possession of several firearms, and the fact that he was in the process of cleaning one of them during a federal drug deal. The judgment was entered on January 14, 2019.

 

Read more about the federal appeal: Young PETITION FOR A WRIT OF CERTIORARI to United States Supreme Court

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Longmire v. WARSHAW BURSTEIN COHEN SCHLESINGER & KUH, LLP

Eric Longmire Petitions United State Supreme Court in Case With Warshaw Berstein

Whether the State Appellate Division wrongfully denied Petitioner’s Motion for Leave to Appeal when sua sponte and without notice to Petitioner, and without providing him an opportunity to respond, it determined that Petitioner failed to establish a prima facie case of employment discrimination against his former employer. Longmire Petitions the US Supreme Court in a case with Warshaw Berstein, and the Petition is attached here: PETITION FOR A WRIT OF CERTIORARI United States Supreme Court

New York Court of Appeals Opinion

The second question for review in the petition is:

Whether the State Appellate Division erred in affirming sua sponte and without notice to Petitioner, and without providing him an opportunity to respond, the decision and order of the motion court in dismissing Petitioner’s counterclaim for legal malpractice against the Respondent.

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Kyle Hurst v. United States Forest Service – Petition for Writ of Certiorari

Kyle Hurst Challenges Rainbow Family Immunity Ruling

The question presented in the petition is:

Whether the Eleventh Circuit wrongfully absolved Respondent of liability when it determined that Moore Lake was not an “area” where a fee was charged, or a part of an area used for commercial purposes.  Read the Petition here: Hurst Petition

The Rainbow Family has long history of violating the laws

Equally important, the Permit for the Rainbow Group covered “3 square miles”. 4 Since the distance to Moore Lake and Silver Lake is less than 1 nautical mile, the holding in Goodman means that the properties are the same “area” and the Permit covered activity at both Silver Lake and Moore Lake. The Eleventh Circuit failed to correctly apply Goodman for the following reasons:

1. A “fee” is charged for access to Silver Lake;
2. Moore Lake and Silver Lake are less than 1 mile apart;
3. Both Moore Lake and Silver Lake are covered by the plain language of the Permit, stating that activity of Rainbow Family is permitted up to “3 square miles” from Moore Lake.

The holding in Goodman means that USFS cannot avoid liability and the Eleventh Circuit opinion incorrectly interpreted federal law. The Court of Appeal’s decision strays from the factual issues in the case. The facts are clear that Moore Lake is a part of Silver Lake. Moore Lake is the camping compliment to Silver Lake.

 

Contact Robert Sirianni and Brownstone Law to discuss your Supreme Court Appeal.

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Brownstone Law Files Petition to United States Supreme Court

Jackson v. United States Petition for Writ of Certiorari

The Sixth Circuit’s decision in Ruelas v. Wolfenbarger, 580 F.3d 403 (6th Cir. 2009) acknowledged that this court’s seminal decision in Fry v. Pliler, 551 U.S. 112 (2007) did not overule Mitchell v. Esparza, 540 U.S. 12 (2003) (per curiam). In Ruelas, the Sixth Circuit held that a federal habeas court is free to apply the Esparza harmless error standard to determine whether a state court of appeals reasonably applied the Chapman harmless error standard on direct review. In the decision below, infra, App. 3a, the court of Appeals applied this standard. However, the Kentucky Supreme Court did not apply the Chapman harmless error standard on direct review.

Brownstone Law Petitions U.S. Supreme Court

Read more about the Petition here:  Petition for Writ of Certiorari.

This case presents the following questions:

 

1. Whether the Sixth Circuit erred in applying the Esparza harmless error standard, instead of the Brecht harmless error standard on federal habeas review, when the state court failed to apply Chapman on direct review.

 

2. Whether a trial court’s erroneous denial of a request for a self-protection instruction as to the lesser included offenses of second-degree manslaughter and reckless homicide may be deemed harmless.

Contact Robert Sirianni to discuss more about your appeal.

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First Amendment Substantial Truth Defense

Supreme Court Writ on First Amendment

The August 14, 2019 Order of the United States Court of Appeals for the Eleventh Circuit denying Schiano’s Petition for enc banc review, which decision is herein sought to be reviewed was not published.  The June 7, 2019, Opinion of the Panel of the United States Court of Appeals for the Eleventh Circuit was unpublished, but can be found at Schiano v. Friedman, 2019 U.S. App. LEXIS 17105 (11th Cir. 2019).  The September 26, 2017, Opinion of the United States District Court for the Southern District of Florida was unpublished, but can be found at Friedman v. Schiano, No. 16-cv-81975-BB, 2017 U.S. Dist. LEXIS 159584 (S.D. Fla. January 6, 2017).              The statutory provision believed to confer on this Court jurisdiction to review on a writ of certiorari the judgment or order in question is 28 U.S.C. §1257.  Read the writ here: Cert Petition- First Amendment

Whether substantial truth is a complete defense to defamation under the First Amendment, regardless of the motives of the speaker?

Schiano owned Hotwiremedia.com, a “party vendor directory” that sold listing space and banner advertisements on its website to service companies that catered to the party planning industry.  A few months after Schiano trained Freidman to maintain Hotwiremedia.com’s database and to sell vendor listings, Freidman represented to clients of HotWireMedia.com that Hotwiremedia.com was purchased by Friedman and Freidman’s Planningforevents.com company. Thereafter, Appellee Freidman charged Hotwiremedia.com clients’ credit cards for Freidman’s commissions and for banner ad upgrades. Schiano reported Friedman’s actions to the local Police Department and then started a webpage on the Hotwiremedia.com website documenting Appellee Freidman’s fraud. Thereafter, Appellee Freidman accused Appellant Schiano online of being, among other things, a child molester and rapist. Schiano’s business did not survive Freidman’s accusations, and he was forced to leave his home, opting to rent the property due to the loss of business. Schiano was forced to move from his home at 3840 Northwest 17th Avenue, Oakland Park, Florida 33334 to 400 NW 53rd Court, Oakland Park, Florida, 33309. As of December 12, 2016, Schiano’s usual place of abode was the property at 400 NW 53rd Street.

Schiano added that the District Court erroneously failed to recognize Schiano’s truth defense as a complete defense to allegations of defamation and failed to properly consider the economic burden imposed on Schiano by the $1,310,535.08 judgment and injunctions that permanently shut down Schiano’s business websites.

Contact Brownstone Law and Robert Sirianni to discuss a Supreme Court Writ (888) 233-8895.

 

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Test Post

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Appeals Court Overturns Conviction of Emily Usnick

Emily Usnick Conviction

An appeal court overturned a conviction of a woman accused of involuntary manslaughter of her baby. Emily Usnick, a forty-three years old woman from central Missouri, gave birth alone at home alone and did not seek medical attention before her baby who she named Hannah died.

Central Missouri Woman Emily Usnick Convicted of Involuntary Manslaughter

The Circuit Court of Johnson County convicted Emily Usnick of first-degree involuntary manslaughter following a jury trial. Usnick who had been originally charged with second-degree murder but was later convicted with first-degree involuntary manslaughter, second-degree child endangerment, and possession of a controlled substance in the death of her baby in July 2017. The prosecutors contended that she was guilty because of giving birth unattended, did not seek medical care attention after giving birth and putting the body in a plastic bag. At the trial, prosecutors presented evidence that Usnick had sent text messages the evening of the birth and that there was an ambulance substation located three-quarters mile away. As charged, the state court argued that Usnick had recklessly caused the death of her baby by failing to seek medical assistance following the childbirth and enclosing the dead body of the child in a plastic bag and container.

In 2009, the body of the baby was found in a plastic bag inside the car track during a drug raid at the home of Usnick in St. Elizabeth by investigating officers. The decomposing body was found two weeks after it had been dumped in the car. Investigators found large amounts of methamphetamine in Usnick’s house which she admitted that she ha been smoking marijuana and methamphetamine the night before giving birth. Usnick was not charged in connection to the death of the baby until February 2012. An autopsy done on the body of the baby revealed that the infant girl a lethal dose of methamphetamine in her liver and blood. The autopsy was not specific whether the death of the baby was caused by methamphetamine or she drowned. Hannah died due to lack of oxygen. During the final ruling, the court sentenced Usnick to five years in the department of corrections.in a separate trial, the court sentenced her five years for possession of controlled drugs to be served concurrently with her manslaughter charge.

Judge Witt Overturns Usnick Conviction

The Missouri western district court of appeals on Tuesday overturned the conviction of Emily Usnick following a unanimous report written by judge Gary Witt. According to the report, Witt stated that the state did not give sufficient evidence to prove that Usnick acted with criminal intent or recklessly when her baby died and should not have been convicted of involuntary manslaughter. According to Witt, experts were not able to determine the clear cause of the death of the baby within a reasonable degree of medical certainty. With this, it is impossible for a lay juror to make the right determination that the cause of death was because of a criminal act as opposed to natural causes. The fate of the case depended on the rare question of whether giving birth without seeking medical care might be a basis of a crime. About this, Usnick contends that the state has no duty imposed on expectant mothers to ensure they have a medically attended birth or otherwise face criminal prosecution and the state does not contest. On a statement given to detectives, Usnick said that she planned to give the baby for adoption. She said that she was so beautiful and it was unfortunate that things had turned to the worst. Usnick believes that it is possible that baby Hannah drowned or suffocated while submerged in the water.

In the case facts statement, Witt wrote that Usnick was alone when her water broke and she delivered the baby girl into a toilet. Usnick told the investigators that after she delivered, it took her several minutes before she recovered from the shock and picked the baby. In her statement to investigators, Usnick said that she was terrified because the baby was not breathing or moving. Eventually, she took the body of the baby and put it in a plastic bag and put it inside the car trunk. The autopsy concluded that the baby was alive when it was born, but the prosecutors did not argue on the basis that Usnick had drowned the baby.

In the appeal conviction, Judge Witt stated that Usnick did not seek medical attention because her car was broken down. She also did not have cellphone minutes to call for help, and even if she had minutes, her house had inconsistent cell service. In an email on Tuesday to the newspaper, Phillip Zeeck, one of the attorneys of Usnick, stated their defense argument in the court briefs. The brief states that Emily did not recklessly have an unattended birth. It was not her will to go into Labour when no one else was at home. This does not criminalize the act of having unattended birth. Appeal on Tuesday stated that the state of Missouri could not convict a person on an offense based solely on an omission to perform an act unless there is a law defining the offense expressly or a duty to perform the omitted act is imposed by the law. With this, the fact that Usnick had a medically unattended delivery cannot qualify as criminal prosecution in terms of the law. The state court of appeal also failed to prove that the death of the baby was a result of unnatural causes.

The appeal court concluded that they had reversed Emily Usnick’s appeal criminal case conviction of first-degree involuntary manslaughter. Emily Usnick had been handed a sentence of five years in prison for conviction of involuntary manslaughter and a concurrent five-year sentence for drug possession conviction. She did not appeal drug conviction and is still in the Missouri Department of Corrections facility prison in Chillicothe. The appeal was handled by the state attorney general office. The office declined to give a response to the request of commenting about the overturned conviction. The county prosecutor’s office Miller County said that it was reviewing the decision of the court.

Contact Brownstone Law to discuss your federal appeals in Missouri.

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