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Case No. 22-7593
IN THE
SUPREME COURT OF THE UNITED STATES
In re: EDWIN W. RUBIS
On Petition for Writ of Habeas
Corpus to the
Supreme Court of the United States
PETITION FOR EXTRAORDINARY
WRIT OF HABEAS CORPUS
WITH APPENDIX
PURSUANT TO 28 U.S.C. § 2241
Edwin W. Rubis pro se
Reg No. 79282-079
FCI Talladega
PMB 1000
Talladega, AL 35160
I. QUESTIONS PRESENTED
1. Whether Rules 14 (g) and (h) are not applicable to a petition for writ of habeas corpus to the Supreme Court of the United States that has original jurisdiction.
2. Whether being in federal custody is a substantial taking, a denial, a concrete injury of Petitioner’s constitutional right of liberty, without “sufficient cause,” without compelling reasons for the United States Congress to proscribe marijuana as a dangerous substance, a drug crime, therefore without due process of law contravening Amendments IV and V of the Constitution of the United States, and is unconstitutional, vacating his convictions, restoring his liberty.
i
PARTY TO THE PROCEEDING
Edwin W, Rubis is in the custody of:
Ms. M.
Kimberly, Warden
FCI Talladega
Federal Correctional Institution
565 East Renfroe Road
Talladega, AL 35160
RELATED CRIMINAL CASE
United States
District Court for the Southern District of Texas
United States of America v. Edwin W. Rubis H-98-CR-57, 8/17/1999. Citation unknown.
APPENDIX’S TABLE OF
CONTENTS
Pertinent Text
Appendix A.
United States District Court for the Southern District of Texas
United States of America v. Edwin W. Rubis H-98-CR-57, 8/17/1999. ………. App. 1a
Appendix B. Table of Authorities Pertinent Text
I. Rules of the Supreme Court of the
United States …………...……..….…App. 5a
II. Constitutional Provisions …………………………………………………..App. 5a
III United States Code ………………………………………………………..…App. 6a
IV United Nation Single Convention on Narcotic Drugs(1961) ..…….…...App 7a
ii.
PETITION FOR EXTRAORDINARY
WRIT OF HABEAS CORPUS
ORIGINAL JURISDICTION
A justice of this Court had original jurisdiction to grant an application for writs of habeas corpus by 28 U.S.C. § 2241(a). App. 6a. This is superseded by Supreme Court Rule 20. 4. (b). The petition is distributed to the court. App. 5a. Rule 20.2. referred to Rule 14. Sections (g) (h) are not “applicable.” This is not an appeal.
This petition for extraordinary writ of habeas corpus, has exceptional circumstances. Petitioner is in federal custody in violation of the Constitution of the United States. 28 U.S.C. § 2241 (c) (3). App. 6a Applicant is also timed barred to make “application to the district court of the district in which the applicant” was convicted on 8/17/1999. 28 U.S.C. § 2242, §2255 (f), App. 7a.
CRIMINAL CASE
Petitioner/applicant was convicted for conspiracy to possess and possession
with intent to distribute marijuana on numerous counts. App. 1a, 2a. He was sentence for a total of 480 months, 8/17/1999. App, 3a. He then has 5 years supervised release. App.
4a.
AUTHORITIES
Appendix B
SCOTUS Rule 20; Constitutional provision: Articles I, III, VI, Amendments IV and V; Statutes: 18 U.S.C. 924 (c)(1); 21 U.S.C. 81(d)(1); 28 U.S.C. §§§ 2241-43,
§2255( f), United Nation Single Convention on Narcotic Drugs (1961).
1.
SCOTUS Rule 20 2. is not “applicable” requiring compliance with Rule 14 (g) and (h). Content of a Petition for a Writ of Certiorari. This is not an appeal from a state or federal court.
The Supreme Court of the United States Court has original jurisdiction to review an application for a writ of habeas corpus of a prisoner if he is in custody in violation of the Constitution [. . .] 28 U.S.C. § 2241(a), (c) (3). App. 6a.
Chief Justice Marshall. “The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause.” Ex Parte Watkins, 28 U.S. 193, 202 (1830). “[L]iberty in the context of a habeas corpus proceeding—a proceeding classically associated with obtaining freedom from physical restraint.” Obergefell v. Hodges, 576 U.S. 644 (2015) THOMAS, J., dissenting Section II A. 1.
Justice Thomas calls for an end to substantive due process.
In future cases, we should “follow the text of the Constitution, which
sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when
life, liberty, or property is to be taken away.” Carlton, 512 U. S 26 at 42 (1994) (opinion of Scalia,
2.
J.). Substantive due process conflicts with that textual command and
has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity. Dobbs v. Jackson Women’s Health Organization 597 U.S. ___ (2022)
No. 19-1392 Thomas
J concurring. (Last paragraph).
It is time for this Court to redefine substantive due process of law. It is not the
substance of liberty or property but the substance, the compelling reasons for laws that authorize government police power. “In general, substantive due process requires the State to have a legitimate and very compelling need for enacting any law that affects people’s exercise of certain fundamental rights.” Legislators’ Handbook
131st Maine Legislature. 2022 page 32. https://legislature.maine.gov/doc/9334
This Court’s substantive due process of law has demeaned liberty, thereby due process for a writ of habeas corpus. Criminal laws have become a political question. What is a crime is not a liberty interest deeply rooted to be fundamental. There is no liberty interest to sell marijuana. Judicial review of the marijuana laws has been rational basis, a political question, political police power. “Congress had a rational basis [. . .] to regulate the intrastate manufacture and possession of marijuana [. . .]” Gonzales v. Raich 545 U.S.C. 1, 22 (2005). Raich’s Counsel did not claim the detaining of Raich’s liberty or destruction of property without due process of law.
Criminal laws are an Article III case and controversy. It is unprecedented, this Court has never reviewed the constitutionality of Congress proscribing marijuana
3.
as a dangerous drug by strict scrutiny. The operation and effect of police power was the seizure of Petitioner’s person and the deprivation, the “taking,” of his liberty by the United States of America. Petitioner is in federal custody for marijuana distribution. This profession is not a “liberty interest,” not a fundamental right. He is incarcerated without due process of law. Deprived of liberty not knowing the compelling reasons for U.S. Congress to proscribe marijuana as a dangerous substance.
Wrongly presented, this Court declared marijuana not a liberty interest and a political question. Now, a large majority of States by the democratic process have legalized marijuana for medicinal and recreational use in violation of Article VI of the Constitution of the United States. Supremacy Clause. App. 5a.
Without “constitutional limitation,” states are in violation of federal law, 21 USC § 811 (d) (1) to comply with United Nations’ Single Convention on Narcotic
Drugs (1961) App. 7a. This convention is the law of the land, Article VI.
The rule of law has been degraded by substantive due process. By rational judicial review, the marijuana laws have been declared constitutional. It is not a fundamental right, a political question. Mr. Rubis has been a political prisoner since 1999. Criminal laws are
not a political question. “One's right to life, liberty, and property [, . .] may not be submitted to vote; they depend on the outcome of no elections. West Virginia Board of Education v.
Barnette, 319 U.S. 624, 638 (1943).
“The validity of regulatory measures, [police power] may be challenged on the
4.
ground that they transgress the Constitution, and thereupon it becomes the duty
of the court, in the
light of the facts in the case, to determine whether the regulation is reasonable and valid or essentially unreasonable, arbitrary, and void.” Norfolk & W.R. Co. v Public Service Commission
of West Virginia 265 U.S. 70,74 (1924)
Judicial review of federal criminal laws proscribing marijuana by strict scrutiny is unprecedented. Being illegally deprived of liberty and timed barred, present exceptional circumstances. Adequate relief cannot be obtained in any other form or from any other court. Petitioner’s Writ of Habeas Corpus presents is an Article III case and controversy. Petitioner has standing with a concrete injury to his right of liberty. The respondent must have “sufficient cause,” compelling reasons the federal proscription of marijuana does not violate Amendments IV and V of the Constitution of the United States. Petitioner is in federal custody legally.
CONCLUSION
Exceptional, unprecedented circumstances warrant the exercise of the Court’s authority to order the government to respond to why this writ of habeas corpus should not be granted. Or the Court can use its discretion to GRANT Rubis’s Petition for Extraordinary Writ of Habeas Corpus.
Respectfully submitted,
/s/ Edwin W. Rubis
Reg No 79282-079
FCI Talladega
PMB 1000
Talladega, AL 35160
Dated: April 29, 2023
5.
Case No.
IN THE
SUPREME COURT OF THE UNITED STATES
In re Edwin W. Rubis
APPENDIX’S TABLE OF
CONTENTS
Pertinent Text
Appendix A.
United States District Court for the Southern District of Texas
United States of America v. Edwin W. Rubis H-98-CR-57, 8/17/1999. …. App. 1a
file:///C:/Users/mjdee/Documents/1%20b%20SCOTUS%202255/2023%20SCOTUS%20Time%20barred/Rubis%20SCOTUS/rubis%20judgment%20Appendix.pdf
Appendix C. Table of Authorities Pertinent Text
I. Rules of the Supreme Court of the
United States ……...……..….…App. 5a
II. Constitutional Provisions ……………………………………………..App. 5a
III United States Code …………………………………………………..…App. 6a
IV United Nation Single Convention on Narcotic Drugs(1961) ..…....App 7a
TABLE OF
AUTHORITIES
Pertinent Text
I. Rules of the Supreme Court of the United States
Rule 20. 4. (a) A petition seeking a writ of habeas corpus shall comply with the requirements of 28 U.S.C. §§ 2241 and 2242 and in particular with the provision in the last paragraph of §2242, which requires a statement of the "reasons for not making application to the district court of the district in which the applicant is held."[. . .] To justify the granting of a writ of habeas corpus, the petitioner must show that exceptional circumstances warrant the exercise of the Court’s discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court.
Rule 20. 4. (b). Habeas corpus proceedings, except in capital cases, are ex parte, unless the Court requires the respondent to show cause why the petition for a writ of habeas corpus should not be granted. [. . .] Neither the denial of the petition, without more, nor an order of transfer to a district court under the authority of 28 U. S. C. § 2241(b), is an adjudication on the merits, and Therefore, does not preclude further application to another court for the relief sought.
Rule 20. 5. The Clerk will distribute the documents to the Court for its consideration when a brief in opposition under subparagraph 3(b) of this Rule has been fled, when a response under subparagraph 4(b) has been ordered and fled, when the time to file has expired, or when the right to file has been expressly waived.
II. Constitutional Provisions
Article I, Section 9, Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Article III §
2. The Judicial Power shall extend to all Cases [. . .] arising under this Constitution [. . . ] to Controversies to which the
United States shall be a Party;
Article VI This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made, under
APPENDIX B App. 5a
the Authority of the United States, shall be the supreme Law of the Land;
Amendment IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
Amendment V. "No person shall be [. . .] deprived of life, liberty, or property, without due process of law.”
III United States Code
Title 21 Chapter 13- Drug Abuse Prevention and Control
21; 841(a)(1) ,841(b)(1)(D). and 846 Conspiracy to Distribute a Controlled Substance.
Habeas Corpus
28 U.S.C. § 2241 https://www.law.cornell.edu/uscode/text/28/2241
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.
(b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it.
(c)The writ of habeas corpus shall not extend to a prisoner unless—
(3) He is in custody in violation of the Constitution [. . .]
28 U.S.C. § 2242. If addressed to the Supreme Court, a justice thereof or a circuit judge state the reasons for not making application to the district court of the district in which the applicant is held.
28 U.S.C. §
2243 A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the
respondent to show cause why the writ should not be granted [.
. . ] It shall be
returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.
App.
6a
28 U.S.C. § 2255 (f)
A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of—(1) the date on
which the
judgment of conviction becomes final;
28 U.S.C. § 2071 Rule making powers generally.
(a) The Supreme Court and all courts established by Act
of Congress may from time
to time prescribe rules for the
conduct of their business. Such rules shall be
consistent with Acts of Congress . . .
Title 21-Food and Drugs Chapter 13-
Drug Abuse Prevention and Control.
Authority and criteria for classification of substances
www.law.cornell.edu/uscode/text/21/811
(a) Rules and regulations of Attorney General Attorney General shall apply the provisions . . . Except as provided in subsections 811 (d) of this section,
(d) International treaties, conventions, and protocols requiring control; procedures respecting changes in drug schedules of Convention on Psychotropic Substances
(1) If control is required by United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by subsection (a) of this section or section 812(b) of this title and without regard to the procedures prescribed by subsections (a) and (b) of this section. 812(b) https://www.law.cornell.edu/uscode/text/21/812
IV. United Nations’ Single Convention on Narcotic Drugs, 1961
https://www.unodc.org/pdf/convention_1961_en.pdf
Article 36. Penal provisions
1. (a) Subject to its constitutional limitations, each Party shall adopt such measures . . . that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.
2. Subject to the constitutional limitations of a Party, its legal system and domestic law,
App. 7a
IN THE
SUPREME COURT OF THE UNITED STATES
In re EDWIN W. RUBIS
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The petitioner asks leave to file the attached petition for a writ of habeas corpus without prepayment of costs and to proceed in forma pauperis. Petitioner has previously been granted leave to proceed in forma pauperis in the United States District Court, Southern District of Texas for the case #:4:98 -cr 57-5 Docket. Numbers. 87, 322, 335, 353, 364.
Petitioner’s affidavit or declaration in support of this motion is attached hereto.
Date: 29 April, 2023
/s/ Edwin W. Rubis
Reg No. 79282-079
FCI Talladega
PMB 1000
Talladega, AL 35160
IN THE
SUPREME COURT OF THE UNITED STATES
In re EDWIN W. RUBIS
CERTIFICATE OF
SERVICE
SCOTUS Rule 29. 5. (c) 28 U.S.C. § 1746 (2)
Rule 20. 2. The petition shall be served as required by Rule 29 (subject to subparagraph 4(b) of this Rule). [except as provided for in subparagraph 20.4 (b)]
To further any delay, on the 29th day of April, 2023, I did mailed from 29 Hillcrest St. Augusta, Maine 04330 a copy of the MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS WITH AFFIDAVIT, and PETITION FOR AN EXTRAORDINARY WRIT OF HABEAS CORPUS in the above-entitled case by U.S.P.S. 1st class mail postage paid, addressed to the following:
Elizabeth Prelogar
Solicitor General of the United States,
Room 5614, Department of Justice,
950 Pennsylvania Ave., N. W.
Washington, DC 20530-0001
(202) 514-2203
I, Michael J. Dee of lawful age, declare under penalty of perjury that the foregoing is true and correct.
April 29, 2023
Michael J. Dee
29 Hillcrest St.
Augusta, Maine 04330
(207) 894-0319
IN THE
SUPREME COURT OF THE UNITED STATES
In re Edwin W. Rubis
CERTIFICATE OF COMPLIANCE
As required by Supreme Court Rule 33.2, I, Michael J. Dee, preparer, declares that the PETITION FOR AN EXTRAORDINARY WRIT OF HABEAS CORPUS contains 5 pages Rule 14.1 (c) excluding parts of the document that are exempted by Supreme Court Rule 33.1(d). The petition was prepared in 12-point Century Schoolbook font.
April 29, 2023
Michael J. Dee
29 Hillcrest St.
Augusta, Maine 04330
(207) 894-0319
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