whether-the-circuit-court-must-recall-the-mandate

QUESTIONS PRESENTED Petitioner Phillip A. Brown II respectfully petitions this Court for a Writ of Mandamus to compel the Sixth Circuit Court of Appeals to recall its mandate, vacate, and remand with instructions. See Brown v. Curtin, 2022 U.S. App. Lexis 7535 (6th Cir. March 22, 2022) (#14-1876; R. 103-2). 1. Whether The Circuit Court Must Recall The Mandate In Extraordinary Cases Where It Lacked Subject Matter Jurisdiction Over A Final Judgment Resulting From The District Court’s Failure To Adjudicate At Least (4) Habeas Claims Contrary To Collins v. Miller, 252 U.S. 364 (1920) And A Duty To Adjudicate All Claims? In this case, the Sixth Circuit lacked an arguable basis for jurisdiction where it admitted, “The district court did not address the appellate counsel ineffectiveness as a freestanding claim,” and neither court considered important affidavits or compelled a Remmer Hearing for a complete record and merits decision on the impartial jury claim. See Brown v. Curtin, 661 F. App’x 398, 412 (6th Cir. 2016). This violated the Court’s rule for complete and final judgments which produced a jurisdictional defect. See, e.g., Porter v. Zook, 803 F.3d 694, 695-97 (4th Cir. 2015) The Sixth Circuit acted without appellate jurisdiction contrary to 28 U.S.C. § 1291 and Federal Rule of Civil Procedure 54(b) which requires a final judgment on all claims. In fact, the District Court failed to adjudicate at least four claims on the merits. When Mr. Brown filed a Motion to Recall the Mandate For Lack of Jurisdiction (R. 94) and a Petition for Rehearing (R. 101) in the Sixth Circuit, the Court improperly applied Calderon v. Thompson, 523 U.S. 538, 549 (1998) and erred concerning key facts. The court suggested that the claims were “collectively addressed” below. Upon these errors, i and against its duty to vacate for lack of jurisdiction, the Sixth Circuit acted contrary to Collins v. Miller, 252 U.S. 364, 370 (1920) since habeas judgments “must not only be final, but complete” on all claims. The Court’s ruling below also contradicts the rule permitting challenges to subject matter jurisdiction “at any time.” See Kontrick v. Ryan, 540 U.S. 443, 455 (2005). 2. Whether the Unadjudicated Impartial Jury Claim Must Receive A Full Remmer Hearing And Complete Record To Be Ripe For Judicial Review And Whether The Presumption Of Prejudice And Meaningful Opportunity To Show Prejudice Must Be Enforced By The Courts Where The Colorable Claim Standard Has Been Met? There is a Circuit split of authority and an intra-Circuit split on the Remmer Doctrine, presumption of prejudice, burden of proof, and proper venue for a hearing. See Barnes v. Joyner, 751 F.8d 229, 242 (4th Cir. 2014); Cunningham v. Shoop, 23 F.4d 636, 648-49 (6th Cir. 2022). These Circuit conflicts are now ripe for this Court. The Sixth Circuit is in the extreme minority as a matter of law and the only Circuit which does not honor the Remmer presumption of prejudice. This must be addressed. Nearly 40 years ago, the Court held that “Phillips reinterpreted Remmer” concerning how Courts should handle “unauthorized communications” with jurors. See United States v. Pennell, 737 F.2d 521, 531-32 (6th Cir. 1984) and United States v. Zelinka, 862 F.2d 92, 94-96 (6th Cir. 1988). Since that time, the Sixth Circuit has shifted the burden of proof and often misapplied or failed to follow the Remmer Rule. The Ninth Circuit (and all others) properly honors established federal law which protects the integrity of jury verdicts from extraneous influence. These circuits hold that when a state prisoner shows a credible claim of jury bias or extraneous il influence concerning the matter pending before the jury, then the presumption of prejudice applies, and a Remmer Hearing is required. See Godoy v. Spearman, 861 F.3d 956, 962-65 (9th Cir. 2017) (en banc) ‘ Some Courts properly grant relief for a Remmer Hearing in state court for them to decide actual prejudice on a complete record. See Ewing, 914 F.3d at