Home > America, Misc > Pray for Dr. Kent Hovind Petition

Pray for Dr. Kent Hovind Petition

PLEASE SHARE with ALL especially your Congressmen! John 3:19! I mailed this to the court May 30, 2013. This motion can (should!) overturn the entire case! Pray Acts 12:5 style please! The attachments referenced below will be scanned and added soon on http://www.2peter3.com. PRAISE THE LORD!
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PENSACOLA DIVISION UNITED STATES

V. Case # 3:06 cr 83/mcr
Case # 3:10 cv 487/mcr/emt
Kent E Hovind

MOTION UNDER 28 U.S.C. 2255
AND MEMORANDUM OF LAW

Comes Now Kent E Hovind, petitioner, submitting a motion pursuant to 28 U.S.C. 2255, which says:

1. The petitioner swears under penalty of perjury to his statements herein, pursuant to 28 U.S.C. 1746.

2. The petitioner originally filed his 2255 Motion on Nov. 24, 2010 in US District Court For The Northern District Of Florida,

but it was rejected as untimely and was never adjudicated on the merits. The Petitioner filed another pleading

on 11-14-11 which was construed as a 2255 Motion, but it was also rejected as untimely and was never adjudicated

on its merits.

3. Prior to his filing of the 2255 Motion he filed on Nov. 24, 2010, the petitioner had been transferred from Edgefield, SC on

July 20, 2010 to Jesup, GA. For 20 months after his transfer, his BOP counselor at Edgefield, Counselor William Anderson,

and the R+D Department at Edgefield failed to forward the petitioner his legal files which contained documents necessary

for the filing of the petitioner’s 2255 Motion. EXHIBIT A is a letter from Counselor Anderson at Edgefield referencing

the petitioner’s legal documents and promising to send it to the petitioner although it was nearly 15 months after the

petitioner had left. In the final analysis it was nearly 20 months before the petitioner actually received the container

which held his legal documents on Mar. 15, 2012.

4. IN EXHIBIT A, BOP Counselor Anderson clearly concedes that the petitioner’s legal documents are still held by Edgefield,

more than 15 months after the petitioner had been transferred.

5. The petitioner, during this 20 months, made strenuous and repeated efforts to have his legal documents sent to him,

and for some reason the BOP never sent the documents to him until 20 months after he had left Edgefield.

EXHIBITS B-C is a copy of documents sent by the petitioner which reference his efforts to obtain his legal documents.

6. The BOP’s actions and interference were clearly unconstitutional, violating the 1st Amendment right to access to the

courts and the 4th Amendment’s right against unreasonable searches and seizures, and are the sole and proximate

cause of the petitioner’s default under AEDPA’s one year filing period and 28 U.S.C. 2255 (f)(1)-(4).

7. Due to the government’s interference, the petitioner has been wrongfully deprived of having his 2255 Motion

adjudicated on the merits, in violation of the the Supreme Court’s clear holding in Stewart v. Martinez-Villareal,

523 US 637(1998).

8. District Courts have consistently held that Section 2255’s statute of limitations is subject to equitable tolling. See Pace

v. Diguglielmo, 544 U.S. 408, 418 n.8, 125 S.Ct. 1807, 1814 n. 8, 161 L.Ed 2d 669 (2005). See United States v.

Pollard, 416 F.3d 48,56 n.1 (DC Cir 2005). See 547 U.S. 1021, 126 S.Ct 1590, 164 L.Ed 2d 303 (2006).

9. In Solomon v. United States, 467 F.3d 928, 934 (6th Cir 2006) the court granted equitable tolling where movant ” was

impeded from completing his petition more than one month before it was due and one month thereafter because of

his transfer to other facilities (without his legal materials) to secure his testimony in a trial.”

10. In U.S. v. Godaldon, 522 F.3d 1121-26, (10th Cir 2008), the court granted an evidentiary hearing on equitable tolling

where prison officials confiscated all of movant’s legal documents, including his section 2255 motion and brief, and

refused to return them despite his numerous requests before the deadline that they do so, and movant ultimately

filed motion 22 days late after his legal materials were returned to him (this case bearing substantial and particular

similarity to the petitioner Kent Hovind’s situation before us in this motion).

11. The petitioner in this 2255 motion also made repeated and strenuous attempts over the 20 month period his legal

materials were held to have his counselor at Edgefield forward his legal documents to him. See EXHIBIT D.

12. The US Supreme Court in Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) expressed a clear willingness to

forgo a literal interpretation of AEDPA’s language, and to allow a petitioner a review on the merits of his or her

2255 motion.

13. Based on the foregoing, and the petitioner’s obvious procedural default due to government interference, he is

entitled to equitable tolling in regards to his two prior 2255 denials due to their untimeliness, and he is entitled

to in the interests of fundamental fairness have this instant Section 2255 motion adjudicated on its merits.

14. All grounds not previously raised are initially cognizable upon habeas review.

15. The basis for the petitioner’s claims are outlined below.

CLAIMS

CLAIM ONE ( comprised of eight stand alone but interrelated claims)

PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, GUARANTEED HIM BY THE SIXTH

AMENDMENT, BECAUSE HIS ATTORNEY;

1) FAILED TO ADVISE HIM DURING THE PRETRIAL PHASE;

2) FAILED TO SHOW AND EXPLAIN TO THE PETITIONER HIS FEDERAL SENTENCING GUIDELINE RANGE

COMPUTATION;

3) FAILED TO ADVISE THE PETITIONER OF THE RISKS IN GOING TO TRIAL VERSUS ENTERING A PLEA;

4) FAILED TO EXPLAIN THE ROLE AND POSSIBILITY OF SENTENCE ENHANCEMENTS;

5) FAILED TO EXPLAIN THE ROLE OF RELEVANT CONDUCT;

6) FAILED TO EXPLAIN TO THE PETITIONER THE STATUTORY REQUIREMENTS REQUIRED FOR A STRUCTURING

CONVICTION AND FOR A FAILURE TO PAY WITHHOLDING TAX CONVICTION UNDER THE APPLICABLE US CODE;

7) FAILED TO EXPLAIN TO THE PETITIONER WHAT HIS DEFENSES WERE TO THE CHARGES AGAINST HIM;

8) FAILED TO GIVE THE MOST CRITICAL ADVICE WHICH WAS ADVICE AS TO WHETHER IN WAS IN PETITIONER’S

BEST INTEREST TO PLEAD GUILTY IN LIGHT OF THE STRENGTH OF THE GOVERNMENT’S CASE AGAINST HIM.

16. The petitioner was never given pre-trial advice by attorney Nkrumah or by attorney Ritchey in the pre-trial phase of

this case. The US Supreme Court long ago made clear that “to deprive a person of the right to counsel during the pre-trial

phase may be more damaging than denial of counsel during the trial itself”. Maine v. Moulton, 474, 481, U.S 159 (1967).

17. Fourth Circuit Senior US District Judge T.S. Ellis III has held that “the decision whether to plead guilty or contest a

criminal charge is ordinarily the most important single decision in a criminal case and counsel MAY and MUST give the

client the benefit of counsel’s professional advice on this crucial decision”. (citing U.S. v. Gordon, 156 F. 34 376.380

(2nd Cir 1998); Wolford v. U.S., 722 F.Supp. 2d 664, US Dist Lexis 6694 (4th Cir 2010).

18. In looking at attorney ineffectiveness, it is well settled that “The performance inquiry of the Strickland test for effective

assistance of counsel is contextual and asks whether defense counsel’s actions were objectively reasonable considering all

the circumstances, and in determining what constitutes objective reasonableness, courts look for guidance to prevailing

norms of practice as reflected in American Bar Association Standards.”

19. In looking for guidance in relation to professional norms for attorney competence in the 11th Circuit, the 11th Circuit

also has held that “U.S. Dist Court, M.D. Florida, Rule 2.04(c) controls and provides that the professional conduct of all

members of the Bar of the Court shall be governed by the Model Rules of Professional Conduct of the American Bar

Association as modified and adopted by the Supreme Court of Florida to govern the professional behavior of the members

of the Florida Bar.

20. In March of 2012, the US Supreme Court also strongly re-emphasized in Missouri v. Frye and Lafler c. Cooper the

constitutionally required pre-trial advice that must be provided by defense counsel to a criminal defendant during the

pre-trial stage of a criminal proceeding.

21. With The ABA Standards and US Supreme Court’s recent rulings as a clear guide, it is clear that the petitioner’s sentence

and conviction in this proceeding is illegal as he never received the constitutionally required advice from his defense

counsel.

22. Each of the 8 sub claims in this section are stand alone claims upon which the district courts have granted habeas

relief, and they were grouped as such in this pleading for reasons of economy and because they are interrelated in that they

all played a part in the petitioner not being given the necessary information to make an informed decision as to whether he

should have plead guilty under the circumstances in his case.

23. Without his attorney’s critical advice the petitioner was given no reasonable means by which he could properly assess his

case and choose a course of action in his best interest.

24. Even a client’s strenuous insistence of innocence does not relieve defense counsel of the duty to advise a client to

consider pleading guilty under the circumstances in his case. Boria v. Keane , 99 F.3d 492 (2d Cir 1986).

25. In representing a criminal defendant, counsel owes the client a duty to advocate on his behalf, a duty to consult and

advise on important decisions, a duty to keep the defendant informed of important developments in the course of the

prosecution, and a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing

process. Strickland v. Washington, 466 US 668, 694 (1984).

26. The layman defendant requires the guiding hand of counsel at every step in the proceedings against him. Powell v.

Alabama, 287 US 45,47,57,69, 53 S. Ct. 55 (1932).

27. Here, the combination of defense counsel’s failure to determine and then explain the considerable evidence against the

petitioner and to explain the burden of proof the government needed to obtain a conviction for structuring and the other

tax offenses, the strong likelihood of the petitioner being convicted, and his gross non-communication of the petitioner’s

actual sentence exposure fell far below the prevailing ABA norms for advising a client during pre-trial.

28. A defendant should not be left to mentally assemble the criteria for making a decision as to whether or not to plead

guilty on his own. Boria at 497.

29. Without his attorney’s critical advice, the petitioner had no effective or comprehensive strategy and these errors by

defense counsel caused the case against the petitioner to be expanded with more charges, forfeiture, and enhancements.

30. “Many important rights of the accused can only be protected and preserved by prompt legal action. Defense counsel

should inform the accused of his or her rights at the earliest opportunity and take all necessary action to vindicate such

rights. Defense counsel should consider all procedural steps which in good faith may be taken, including, for example …..

moving to suppress illegally obtained evidence … and seeking dismissal of the charges. ABA Standards 4-5.1(a), Advising

The Accused, at 197, states that after informing himself or herself fully on the facts and the law, defense counsel should

advise the accused with complete candor concerning all aspects of the case, including a candid estimate of the

possible outcome.” ABA Standards For Criminal Justice, 170-71,3d Ed Standard 4-3.6

31. But for the defense counsel’s errors in failing to properly advise the petitioner, the petitioner would have received a far

lower term of imprisonment in this proceeding. The petitioner’s sentence must be vacated, set aside or corrected.

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