AF (01) - Notice of Appeals and Application For 2253 Certificate of Appealability

22cv3409 (SDNY)/22cv10566 (SDNY)(AF01)
_____________
In the United States District Court
For the Southern District of New York
Filed on Saturday, May 20, 2023
Ware v. United States, Garland, Ramos, & Taylor-Swain.

_______________
28 USC 2241(a) actual innocent habeas corpus petition.
___________
Notice of Appeal and Verified Omnibus Application for a
moot 28 USC 2253(c)(1)(B) Certificate of Appealability.1
Ulysses T. Ware is actually and factually innocent of all charges in United States v. Ware,
04cr1224 (SDNY) and United States v. Ware, 05cr1115 (SDNY).
Submitted by:
/s/ Ulysses T. Ware
The Office of Ulysses T. Ware
123 Linden Blvd.
Ste 9-L
Brooklyn, NY 11226
(718) 844-1260
Utware007@gmail.com
1
The AEDPA statute 28 USC 2253(c)(1) is applicable only to a federal or state “prisoner” in the custody or
detention of the government (2255) of a particular state (2254) then under a federal or state sentence
which is the context the Supreme Court’s precedents all explain that 2253 is applicable only to “prisoners.”
See the legislative history of AEDPA (1996), Medberry v. Crosby, 351 F.3d 1049, 1054-58 (11th Cir. 2003)
(discussing legislative history of the writ and AEDPA).
Page 1 of 209
Saturday, May 20, 2023
Re: Notice of appeal and Application for a moot 28 USC 2253 certificate of appealability—Ulysses T.
Ware is actually and factually innocent of all charges.
Table of Contents
I Notice of Appeal—Ware v. USA, et al., 22cv3409 and 22cv10566 (SDNY). ..................................... 14

1 Forward the complete certified record to the Court of Appeals. .................................................. 20
2 Appellant requires immediate First Amendment and Brady access to all judicial public records
and actual innocent exculpatory and impeachment evidence to timely perfect the COA and appeals
process. ................................................................................................................................................... 21
3 That the district court (SDNY), Ramos, J., the U.S. Probation Office (SDNY), and the U.S. Bureau
of Prisons, produce a certified copy of all alleged extant federal sentences which Appellant “was in
custody or detention under” on Dec. 12, 2022. .................................................................................... 23
4 Summary of the appeal issues, and COA claims........................................................................... 23
II Omnibus Jurisdictional Statement. .................................................................................................... 28
III Appellant moves the Court of Appeals to remand to the District Court, to a new district judge, to
conduct unbiased, impartial, and competent 2255, Article III, and 18 USC 3231 threshold jurisdictional
proceedings before the district court reaches the merits of the COA application................................... 35
IV Ulysses T. Ware, (the “Applicant” or “Appellant”), 28 USC 2253(c)(1)(B) application for a
certificate of appealability. ........................................................................................................................ 38
28 USC 2253 Application’s Requested Reliefs. ...................................................................................... 39
(i) Request for a jurisdictional status conference and evidentiary hearing. ................................. 39
(ii) Request for the government to show cause why the Criminal Proceedings shall not be
dismissed with prejudice, nunc pro tunc, for egregious and insidious Brady violation prosecutorial
misconduct given the EOUSA’s March 20, 2023, In re Ware, 000907, FOIA response, Section 7,
Exhibit 1, infra.. .................................................................................................................................. 40
(iii) Enter an order directed to the district court (Ramos, J.) to certify under oath, as an office
of the court, pursuant to 18 USC 401(2), that he has disclosed and produced to Applicant all
judicial public records in the possession of the district court regarding the 04cr1224 (SDNY) and
05cr1115 (SDNY) Criminal Proceedings. ............................................................................................ 43
Declaration of Ulysses T. Ware ................................................................................................................... 44
1 Preliminary statement........................................................................................................................ 46
A Threshold Article III, 18 USC 3231, AEDPA 28 USC 2255(a), and 2253 Jurisdictional Matter Exist and
Must First be Resolved before Reaching the Merits of an AEDPA Certificate of Appealability Remedy
given Applicant is not a Federal Prisoner, and is not in custody or Detention under an Extant Federal
Sentence or Detention; (II) whether or not the United States via the U.S. Attorney (SDNY), or the
U.S. Dept. of Justice, is authorized to appear in 05cr1115 given the USAG’s Nov. 7, 2008, 18 USC
3742(a), and Article II dismissal with prejudice of U.S. v. Ware, 07-5670cr (XAP), Gov-I, the
government’s “cross-appeal,” and (III) whether or not the United States is authorized to appear in
Page 2 of 209
U.S. v. Ware, 04cr1224 (SDNY) given the plaintiffs’ voluntary Dec. 20, 2007, Fed. R. Civ. P. 41(a)(2)
dismissal with prejudice of the 02cv2219 (SDNY) lawsuit, and the consequential annulment and
vitiation of the government’s GX 1-4, GX 5, GX 7, GX 11, GX 24, and GX 34, 04cr1224 trial evidence?
................................................................................................................................................................ 50
Figure A—U.S. Attorney’s Manual section 9-37.000 (2255 and 2254 prisoner procedure). ............ 55
Figure B—Slack v. McDaniel excerpt. ................................................................................................. 56
2 Memorandum of Law ......................................................................................................................... 57
A Legal Standard for the Granting of a Certificate of Appealability Pursuant to 28 USC
2253(c)(1)(A) for a prisoner in state or 2253(c)(1)(B) in federal custody under an extant sentence. .. 57
Introduction: Opening statement. ..................................................................................................... 57
Legal Standard for Certificate of Appealability.................................................................................. 59
Supreme Court Precedents. ............................................................................................................... 59
Requirements for Certificate of Appealability. .................................................................................. 61
Conclusion. ......................................................................................................................................... 61
B The legal standard for actual innocent, fundamental miscarriage of justice habeas corpus
review. .................................................................................................................................................... 62
Discussion and analysis. ..................................................................................................................... 64
The leave-to-file (abuse of writ process) sanction is null and void ab initio. ................................... 66
The 2241 habeas corpus district court was required to have conducted a plenary, full and fair
evidentiary hearing on the merits of the constitutional claims. ...................................................... 68
Conclusion. ......................................................................................................................................... 69
C Applicant was authorized on Dec. 12, 2022, Ware v. USA, et al., 22cv3409 (SDNY) to avail
himself of the 28 USC 2241(a) remedy authorized by 2255(e) saving clause and/or 2255(f)(2)
because the 2255(a) remedy was: (i) unavailable, (ii) ineffective and/or (iii) inadequate—that is,
because Applicant was not a federal prisoner, was not then under a federal sentence, and the
2255(f)(1) limitation had run on Dec. 12, 2022, the 2255(a) motion was legally unavailable—(i)
“inadequate” or (ii) “ineffective” on Dec. 12, 2022, see Dkt. 126, order (Ramos, J.) (sua sponte
without any notice, or hearing, or request by the government converted the 22cv3409 (SDNY) 2241
habeas petition to a moot 2255(a) motion) see 2255(f)(1) read in pari materia with 2255(f)(2), 2241
authorized due to the Brady constitutional “impediment” created by the egregious prosecutorial
misconduct committed by the EOUSA and the Office of the United States Attorney (SDNY) Brady
violation sanctioned and approved by the United States Department of Justice’s Merrick B. Garland,
et al. had not then nor currently been removed. See Section 7, Exhibit 1, infra (March 20, 2023,
EOUSA’s FOIA response). ........................................................................................................................ 70
Discussion and analysis. ..................................................................................................................... 70
Page 3 of 209
28 USC 2255(f)(2) authorized Applicant to file the 22cv3409 (SDNY) 2241 actual innocent habeas
corpus petition predicated on the government’s and the district court’s prosecutorial and judicial
misconduct Brady violations—that is, constitutional “impediments” that had not been removed
on March 21, 2022.............................................................................................................................. 72
Conclusion. ......................................................................................................................................... 74
3 Verified Statement of undisputed material facts in support of Certificate of Appealability. .......... 74
Declaration of Undisputed Material Actual Innocent Facts by Ulysses T. Ware: ................................. 74
Facts 1-50. ........................................................................................................................................... 74
The Government’s stipulated actual innocence facts. ...................................................................... 88
4 28 USC 2253(c)(1)(B) Substantial Showing of the Denial of Substantial Constitutional Rights. .... 114
1 The Government and the district courts knowingly colluded, conspired, acted in concert, and
intentionally violated the Due Process Clause and due process of law apropos the rule of law
announced in Brady v. Maryland, 373 U.S. 83 (1963) and its progenies—that is, unconstitutional
governmental and district court suppression, failure to search, and produce claims regarding actual
innocent exculpatory and impeachment evidence vis-a-vis: .............................................................. 114
Figure C—05cr1115 (SDNY), Dec. 11, 2006, Dkt. 29, Order (Pauley, J.) denying Brady production,
cf., with Figure D, the Sept. 22, 2006, purported Rule 11 proceedings of a person claimed to be
“Jeremy Jones.”................................................................................................................................. 118
Figure D—alleged Sept. 22, 2006, Rule 11 proceedings in 05cr1115 (SDNY) (Pauley, J.) which have
never been disclosed or produced by the district court or the government in violation of the
Brady doctrine. ................................................................................................................................. 119
Figure E—suppressed, concealed, stolen, removed, and undocketed Dkt. 23, 10/11/2006 Order
(Pauley, J.) purporting to accept the stolen alleged Sept. 22, 2006, Rule 11 perjury plea and
cooperation of Jeremy Jones. See Figure F, the 05cr1115 docket which has no public record of Dkt.
23 or Dkt. 24, Figure D, supra........................................................................................................... 120
Figure F—05cr1115 alleged official public docket. No public record of Dkt. 23 (Pauley’s alleged
Oct. 11, 2006, acceptance of Jones’ alleged Rule 11 perjury plea contract) or Dkt 24 (alleged Sept.
22, 2006, alleged Rule 11 perjury allocution by Jeremy Jones), and no record of the actual alleged
Sept. 22, 2006, Rule 11 perjury contract—criminal conspiracy with the government to violate 18
USC 2, 241, 242, 371, 1519, and 2071, and the Due Process Clause and First Amendment right of
access. ............................................................................................................................................... 121
Figure G—Marlon G. Kirton, Esq. April 30, 2008, letter to the 05cr1115 district court (Pauley, J.)
which confirmed Jeremy Jones was a paid government informant and witness, “cooperated with
the government” and received “a 5k letter” for substantial assistance to the government by
deliberately and with the government’s knowledge and consent committed perjury and gave false
and misleading testimony during the 05cr1115 trials in 2007 in violation of the Due Process
Clause, Mooney, and Napue. ........................................................................................................... 122
Page 4 of 209
1.1 The District Court erred, wrongly decide the matter, and violated the Suspension Clause,
Article I, section 9, Clause 2 of the Constitution by denying Applicant his substantive constitutional
right, and violated procedural and substantive provision of the Due Process Clause by its refusal to
adjudicate the merits of the 22cv3409 (SDNY) 28 UCS 2241(a) actual innocent claims where
Applicant was not a federal prisoner, and not in federal custody or detention on Dec. 12, 2022,
when the district court, Dkt. 126, order (Ramos, J.) purported to convert the 22cv3409 (SDNY)
2241(a) actual innocent habeas corpus petition to a moot 28 USC 2255(a) motion? Yes. ................ 123
2. Applicant’s retained purported Sixth Amendment legal counsels in 04cr1224 and 05cr1115
(Garland, Arora, Levitt, and Bachner) violated Applicant’s Sixth Amendment rights and the legal
standard in Strickland v. Washington, 466 U.S.668 (1984) and U.S. v. Cronic, 466 U.S. 648 (1984) right
to the independent, effective, assistance, of legal counsel by committing, or omitting to commit the
following required actions or acts which was below the standard of professional conduct, and for
which Applicant was prejudiced: ......................................................................................................... 126
3. The government violate the Due Process Clause by colluding, conspiring, or acting in concert
with the Securities and Exchange Commission, (“SEC”), District Judge Kent J. Dawson, the FBI (David
Makol), and others by using the 2003 Las Vegas SEC-DOJ 03-0831 (D. NV) commingled alleged civil
proceedings as a bootleg grand jury to illegal gather and obtain evidence to be used against
Applicant in the imminent 04cr1224 and 05cr1115 criminal proceedings, as the illegal and
unconstitutional means and methods to circumvent the Federal Rules of Criminal Procedures, and
to violate Applicant’s Fifth Amendment right to remain silent and not self-incriminate himself in
violation of the legal standard in U.S. v. Kordel? Yes. ........................................................................ 129
4. The U.S. v. Ware, 04cr1224 (Sweet, J.) (deceased) and U.S. v. Ware, 05cr1115 (SDNY) (Pauley, J.)
district courts erred and violated the Due Process Clause and Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83 (1995) by conducting the criminal proceedings in lack of Article III and 18
USC 3231 subject matter jurisdiction where the respective indictments failed to charge an “offense”
required by 18 USC 3231? .................................................................................................................... 131
4.1 The government and the U.S. v. Ware, 04cr1224 (SDNY) district court (Sweet, J.) violated
Steel Co., due process of law, 28 USC 1332(a), 28 USC 547, Article III, 18 USC 3231, and 18 USC
401(3) by (i) procuring the moot 04cr1224 indictment on Nov. 17, 2004, and (ii) prosecuting
04cr1224 in 2007 while knowing, or reckless not knowing the underlying 02cv2219 (SDNY)
proceedings were null and void ab initio for (I) lack of 28 USC 1332(a) diversity, and (II) lack of
Article III subject matter jurisdiction where each 02cv2219 (SDNY) plaintiff was (a) an unregistered
broker-dealer, and (b) and a 15 USC 78p(b) statutory insider of defendant IVG Corp., a/k/a Group
Management Corp., (“GPMT”)? Yes. ................................................................................................... 132
5.0 The government violated the rule of law in the decisions Napue v. Illinois, 360 U.S. 264
(1959) and Mooney v. Holohan, 293 U.S. 103 (1935), and the Due Process Clause by the knowing
and/or the reckless use of perjury and/or false and/or misleading testimony and false evidence at
trial in 05cr1115 by its trial witnesses Jones, Epps, Sadler, Williams, and Jackson during; and by
Zitter, Norris, Rabinowitz, and Quinn during the 04cr1224 trial? Yes. ............................................... 132
Page 5 of 209
5.1 The government violated the Due Process Clause and the above legal principles in 5.0 by not
bringing to the attention of the district courts, the courts of appeals, and the Supreme Court that its
grand jury, and trial witnesses in 04cr1224 and 05cr1115 knowingly with the consent and
knowledge of the government’s prosecutor and supervisors in the Office of the U.S. Attorney
(SDNY), (the “USAO”), lied, committed, perjury, and gave false, and/or materially misleading
testimony to the grand jury, during the 04cr1224 and 05cr1115 trial, and during the associated
appeals? Yes. ........................................................................................................................................ 133
5.2 The government conspired and colluded with the SEC, District Judge Pauley, and District
Judge Kent J. Dawson and violated due process of law and Napue and Mooney, when it deliberately,
intentionally, and in bad faith fabricated and falsified and created materially misleading trial
exhibits, GX 92 and 93, and introduced the same into evidence in 05cr1115 via FBI analyst Maria A.
Font, by AUSA Alexander H. Southwell, while Southwell knew, or was reckless and negligent in not
knowing that GX 92 and GX 93 were materially false, fraudulent, misleading, and contradicted—that
is, impeached, and vitiated by ¶33 in the 2003 Las Vegas, SEC-DOJ Bootleg Grand Jury Proceedings
complaint—ergo, a Government actual innocent, Brady exculpatory affirmative defense, and judicial
admission that nullified, annulled, and abrogated all charges in 05cr1115? Yes. ............................ 134
6. Ramos, J. erred regarding his refusal to recuse from 04cr1224, 05cr1115, 22cv3409, and
22cv10566 given that he was named in the 22cv3409 (SDNY) 2241 habeas corpus statement of
facts, named as a hostile, adverse, material fact witness violated the Due Process Clause, and
Supreme Court precedent, In re Murchison, 349 U.S. 133, 136 (1950) (no man or judge is permitted
to be a judge in his own case … due process of law prohibits that …)? Yes. ...................................... 135
7.0 The Due Process and Sixth Amendment right to a fair, impartial, and unbiased judicial officer
in a criminal proceeding were violated by Pauley, J. error in his refusal to recuse from 05cr1115
given that Pauley knowingly, intentionally, and in bad faith conspired and colluded with the
government and did suppress and conceal the alleged Sept. 2006 Rule 11 proceedings, the
government’s USSG 5k1.1 letter granted to Jeremy Jones, and other judicial public records related to
government’s “principal witness” Jeremy Jones and the government’s witnesses in 05cr1115? Yes.
136
7.1 The government and the district court violated Murchison, Tumey v. Ohio, 273 U.S. 510
(1927), the Due Process Clause, and the Sixth Amendment right to a fair, impartial, and unbiased
judicial officer in the 04cr1224 criminal proceedings was violated by District Judge Robert W.
Sweet’s collusion and conspiracy with the government to suppress and conceal Brady exculpatory
and impeachment evidence related to SEC lawyer Jeffrey B. Norris, Ari Rabinowitz, LH Financial
Services, and the 02cv2219 (SDNY) plaintiffs’ unregistered broker-dealer and unregistered
investment adviser status? Yes. ........................................................................................................... 137
8. The rule of law in In re Winship, the Sixth Amendment, and the Due Process Clause were
violated by Sweet, J. in 04cr1224 by charging the jury, Tr. 889 L 2-11, that the government was not
required to prove beyond a reasonable doubt the “lawful[ness]” of each of the null and void ab
initio 02cv2219 (SDNY) orders (GX 11, and GX 24), and judgment (GX 7) was a “lawful” order to
convict Applicant of the alleged 18 USC 401(3) charges? Yes ............................................................. 137
Page 6 of 209
9. The Sixth Amendment, In re Winship, and the Due Process Clause were violated by Sweet, J.
error in charging the 04cr1224 jury, Tr. 889 L 2-11, “as a matter of law” the orders, GX 7, GDX 11, and
GX 24, were “lawful” and Sweet, J. rather than the trial jury convicted Applicant on the “lawful”
element of 18 USC 401(3) in violation of due process of law and Winship? Yes. .............................. 137
9.1 Sweet, J. erred and violated the Due Process Clause of the Fifth Amendment by charging the
jury in 04cr1224 that the government was not required to prove beyond a reasonable doubt the
“lawful[ness]” of each of the null and void ab initio 02cv2219 (SDNY) orders (GX 11, and GX 24), and
judgment (GX 7) was a “lawful” order to convict Applicant of the alleged 18 USC 401(3) charges,
thus allowing for a conviction based on insufficient evidence? Yes. .................................................. 137
Sweet, J. erred and violated the Sixth Amendment right to a fair trial by charging the jury in
04cr1224 that the government was not required to prove beyond a reasonable doubt the
“lawful[ness]” of each of the null and void ab initio 02cv2219 (SDNY) orders (GX 11, and GX 24),
and judgment (GX 7) was a “lawful” order to convict Applicant of the alleged 18 USC 401(3)
charges, thus allowing for a conviction based on insufficient evidence? Yes. ............................... 138
Did Sweet, J. erred and violated the Due Process Clause of the Fifth Amendment by allowing a
conviction based on insufficient evidence in 04cr1224? Yes. ......................................................... 138
Sweet, J. erred and violated the Sixth Amendment right to a jury trial by deciding the "lawful"
element of the 18 USC 401(3) charge “as a matter of law,” see Tr. 889 L 2-11, instead of allowing a
jury to decide, in violation of the legal standard established in United States v. Gaudin, 515 U.S.
506 (1995)? Yes. ................................................................................................................................ 139
10. The 22cv3409 Ware v. USA, Garland, Ramos, and Taylor-Swain, 28 USC 2241(a) habeas
corpus district court (Ramos, J.) ipso facto, erred as a matter of law and fact and violated the Due
Process Clause by its unconstitutional Dec. 12, 2022, Dkt. 126, Order (Ramos, J.) sua sponte
conversion of the 2241 habeas corpus petition to a (i) moot, and (ii) time-barred, “untimely”
purported 2255(a) motion? Yes. .......................................................................................................... 140
11. District Judge Edgardo Ramos erred and violated the Code of Conduct for Federal Judges, the
Due Process Clause, and In re Murchison on Dec. 12, 2022, by the entry of Dkt. 126, order, and again
on April 3, 2023, by the entry of Dkt. 213 and 214 in 22cv3409 and Dkt 1, Dkt. 6, and Dkt. 7 in
22cv10566 (SDNY), respectively, while knowing that there was rational or good faith opposition that
he was judicially disqualified from all judicial participation in 22cv3409, 04cr1224, 22cv15066, and
05cr1115, (i) by being named in the 22cv3409 habeas corpus statement of facts, (ii) being named as
a hostile, adverse, material fact witness, and (iii) being named as an unindicted coconspirator of the
government with respect to Ramos’s theft, suppression, concealment, and removal of judicial public
records associated with the government’s “principal witness” Jeremy Jones, and other matters,
which violated Due Process Clause and 18 USC 2, 241, 242, 371, 1519, and 2071? Yes. ................... 140
11.1 Judge Ramos erred and violated the Due Process Clause, and the Supreme Court’s decisions
in Tumey, and Murchison by entering Dkt. 126, order, and again on April 3, 2023, by the entry of
Dkt. 213 and 214 in 22cv3409 and Dkt 1, Dkt. 6, and Dkt. 7 in 22cv10566 (SDNY), without disclosing
his disqualification and allowing the parties to be heard, and thereby prejudicing the Applicant? Yes.
141
Page 7 of 209
11.2 Judge Ramos erred and violated In re Murchison by not being impartial in the above
proceedings as required by the Due Process Clause, the Sixth Amendment, and 28 U.S.C. § 455,
where he participated in the 22cv3409 (SDNY) proceedings while being named as a hostile, adverse,
material fact witness, and being named as an unindicted coconspirator of the government with
respect to Ramos’s theft, suppression, concealment, and removal of judicial public records
associated with the government’s “principal witness” Jeremy Jones, and other matters? Yes. ....... 141
11.3 Judge Ramos erred and violated the Code of Conduct for Federal Judges by failing to recuse
himself from the proceedings in 22cv3409, 04cr1224, 22cv15066, and 05cr1115, despite being
judicially disqualified, and thereby engaging in conduct prejudicial to the effective administration of
justice in violation of the Due Process Clause? ................................................................................... 141
12. The 22cv3409 district court (Ramos, J.) erred and violate the Due Process Clause, and Steel
Co., by refusing to enter the 28 USC 2243 show cause order and order the government to respond to
the 2241 habeas corpus petition’s actual innocent claims? Yes. ........................................................ 142
13. The 22cv3409 district court (Ramos, J.) erred and violated the Due Process Clause and 28 USC
2243 by not conducting an evidentiary hearing regarding the actual innocent claims in the 22cv3409
habeas corpus petition? Yes................................................................................................................. 142
14. The 22cv3409 and 22cv10566 (SDNY) district courts (Ramos, J.) erred and violated the Due
Process Clause regarding the moot, and ultra vires orders of April 3, 2023, orders, Dkt 213 and Dkt.
214, respectively, entry of a moot, ultra vires leave-to-file sanction without giving Applicant (i)
proper notice, and (ii) a meaningful opportunity to be heard by conducting a due process hearing
prior to entry of the unconstitutional leave-to-file sanction? Yes. ..................................................... 143
15. The 22cv3409 district court (Ramos, J.) erred and violated the Due Process Clause and Steel
Co., by (I) conducting moot and ultra vires extra-judicial proceedings in 04cr1224 given the Dec. 20,
2007, Dkt. 90, voluntary, actual innocent Rule 41(a)(2) dismissal with prejudice of the 02cv2219
(SDNY) lawsuit; and (II) conducting moot and ultra vires proceedings in 05cr1115 given the U.S.
Attorney General’s Nov. 7, 2008, voluntary, actual innocent, Article II appellate political decision to
abandon, terminated, and dismiss with prejudice the government’s cross-appeal, U.S. v. Ware, 07-
5670cr (XAP), Gov-I? Yes. ..................................................................................................................... 143
16. The 22cv3409, 04cr1224, and 05cr1115 district courts erred and violated the Due Process
Clause and Kyles v. Whitney, 514 U.S. 419 (1995) doctrine by not conducting the required
cumulative materiality assessment evidentiary hearing with respect to post-trial newly discovered
Brady exculpatory and impeachment evidence presented to the court? Yes. ................................... 144
17. Ramos, J., Pauley, J., and the government colluded, conspired, confederated, acted in
concert, violated the Due Process Clause, the Brady doctrine, the Code of Conduct for Federal
Judges, the DOJ’s Code of Conduct for Federal Prosecutors, and 18 USC 2, 241, 22, 371, 1519, and
2071, by their suppression, concealment, removal, and theft of judicial public records regarding and
associated with 05cr1115 and 04cr1224? Yes. .................................................................................... 145
18. The 04cr1224, 05cr1115, 22cv3409, and 22cv10566 district courts, Sweet, J., Pauley, J., and
Ramos, J., respectively, Kilpatrick, Townsend, & Stockton, LLP, and the government colluded,
Page 8 of 209
conspired, acted in concert, and coordinated—an illegal association-in-fact, with the Atlanta, GA In
re Group Management Corp., 03-93031 (BC NDGA) bankruptcy court, (Murphy, J., Bihary, J., Mullins,
C.J., and Hagenau, C.J.), Kenneth A. Zitter, District Judge Thomas W. Thrash, Jr., (NDGA), and the
Atlanta, GA bankruptcy court and its judges, and hid, concealed, suppressed, obstructed justice,
violated the Due Process Clause, 18 USC 1961(6)(B), and NYS Penal Law, section 190.40, the criminal
usury law, a class E felony, by rigging, and fixing the 03-93031 proceedings to obstruct the
production and disclosure of actual innocent Brady exculpatory and impeachment evidence
uncovered during the 03-93031 proceedings? Yes.............................................................................. 146
20. The 04cr1224 district court (Sweet, J.) colluded, conspired, and coordinated with the
government and prohibited and deliberately impeded Applicant's Sixth Amendment right to
effectively cross-examine, confront, and impeach the government's trial witnesses in 04cr1224 by
preventing Applicant from cross-examining Kenneth A. Zitter, Esq. and unregistered broker-dealer
Ari Rabinowitz on the terms and provisions of government trial exhibit GX 5, the criminal usury
subscription agreement, and GX 7, the Nov. 2002 purported default judgment entered in 02cv2219
(SDNY). .................................................................................................................................................. 149
21. The government and the 05cr1115 trial judge, William H. Pauley, III (deceased), and Edgardo
Ramos, colluded, conspired, acted in concert, and confederated to hide, conceal, suppress, and
remove from the official court records all traces of the alleged Sept. 2006, Rule 11 proceeding’s
judicial public records-that is, Jones’ alleged Rule 11 perjury contract, Jones’ USSG perjury
cooperation contract, Jones’ Rule 11 perjury transcript, and other concealed and suppressed judicial
public records in violation of the First Amendment right of access; and there is no record proof
submitted by the government the person involved in the Sept. 2006 Rule 11 proceedings was in fact
Jeremy Jones, the government’s “principal witness” at trial in 05cr1115 in 2007. ........................... 151
22. The government’s evidence was insufficient at trial to convict petitioner in U.S. v. Ware,
05cr1115 (SDNY) as a matter of law, and fact—Applicant is actually and factually innocent of all
charges. ................................................................................................................................................. 152
23. The evidence was insufficient to convict Applicant in U.S. v. Ware, 04cr1224 (SDNY) as a
matter of law and fact—Applicant is actually and factually innocent of all charges. ........................ 153
24. 28 USC 2255(a) is ineffective and/or inadequate to test Applicant’s detention or custody
because Applicant was not a federal prisoner, not in custody, and not in federal detention on Dec.
12, 2022, pursuant to a federal sentence imposed by the 04cr1224 or 05cr1115 sentencing courts—
that is, the date of the district court’s order, Dkt. 126 (Ramos, J.), which purported converted
Applicant’s 28 USC 2241(a) habeas corpus petition to a moot 2255(a) motion Applicant was not a
federal prisoner then in detention, or custody raising a challenge to an expired by operation of law
moot sentence. ..................................................................................................................................... 155
1. A federal prisoner appealing a 2241 habeas corpus does not need a 2253 certificate of
appealability, see 28 USC 2253(c)(1)—on 2254 state habeas corpus, and 2255 federal prisoners
required to obtain as COA before appealing the denial of their district court proceedings. (See
Figure 2-A, infra). .............................................................................................................................. 158
Page 9 of 209
Figure 1-A—Federal prisoners that proceed under 2241 are not required by federal law to first
seek a 2253 certificate of appealability to appeal the denial of the habeas corpus matter. ......... 160
Figure 2-A--Court of Appeals public information regarding a "prisoner's detention." .................. 161
Figure 3-A--Court of Appeals public information regarding a "prisoner's detention." Note that
according to the Court of Appeals public information, a 2255 motion is filed in the sentencing
district court and is applicable only to a “prisoner” that is challenging his detention or custody.
.......................................................................................................................................................... 162
Figure 4-A--Court of Appeals public information regarding a "prisoner's detention." .................. 163
Figure 5-A—Rule 1 that governs a 2255 motion filed in the federal courts and Advisory Committee
Notes. ................................................................................................................................................ 164
25 The deliberate and intentional suppression and concealment of actual innocent Brady
exculpatory and impeachment evidence by the government and the district courts constitute an
impediment to making a motion created by governmental action in violation of the Constitution or
laws of the United States under 28 USC 2255(f)(2). Therefore, the one-year limitation period under
28 USC 2255(f)(1) is required to be tolled, and to the extent the 2241 petition was properly
converted to a 2255(a) motion, which it was not, petitioner's 2255 motion should be considered
timely, and the merits of the actual innocent claims adjudicated. .................................................... 165
Preliminary statement...................................................................................................................... 165
Statutory basis for the claim. ........................................................................................................... 167
Discussion and argument. ................................................................................................................ 167
The legal standard for the claims--Supreme Court precedent. ....................................................... 167
Summary and conclusion. ................................................................................................................ 170
26. The District Court erred as a matter of law and fact and wrongly decided the 2255(f)(1)
affirmative defense issue affirmatively (implicitly) waived by the government and strictly precluded
by the USAG’s Nov. 7, 2008, voluntary, actual innocent, Article II appellate political decision which
dismissed with prejudice the government’s cross-appeal, U.S. v. Ware, 07-5670cr (XAP)(2d Cir.), Gov-
I, see Section 7, Exhibit 10, infra, which triggered the absolute finality of the Double Jeopardy
Clause’s prohibition on all fact-finding. ............................................................................................... 174
Contention......................................................................................................................................... 174
Discussion and argument. ................................................................................................................ 177
Conclusion. ....................................................................................................................................... 182
5 OMITTED---- ...................................................................................................................................... 186
6. OMITTED---- ...................................................................................................................................... 186
7 Actual Innocent Brady Evidence Exhibits in support of moot 2255(c)(1)(B) application for a moot
certificate of appealability—28 USC 2255(f)(2) constitutional “impediments” deliberately,
intentionally, and in bad faith implemented by the government and the district courts’ collusion and
Page 10 of 209
conspiracy to prevent Applicant from access to evidence and facts, 28 USC 2255(f)(4) to timely raise
credible claims of prosecutorial and/or judicial misconduct, and Brady violations assuming arguendo
that AEDPA 2255 applies, which it does not. The constitutional impediments have not been removed
by the government or the district courts (Ramos, J.), et al. as of the filing of this pleading. ................ 187
Exhibit 1—March 20, 2023, EOUSA’s In re Ware, 000907 FOIA response that confessed and admitted
to Brady violations—28 USC 2255(f)(2), and 2255(f)(4) exceptions to 2255(f)(1) by the Office of the
United States Attorney (SDNY) regarding U.S. v. Ware, 04cr1224 and U.S. v. Ware, 05cr1115 (SDNY)
which triggered 28 USC 2255(f)(2) access to 28 USC 2241 habeas corpus relief, 22cv3409 (SDNY). 188
Exhibit 2—Rule 1 Advisory Committee’s Notes (scope) of 28 USC 2255 motion—2255 and AEDPA
applies only to “prisoners” in custody under a federal or state “sentence.” ..................................... 189
Exhibit 3—FINRA’s May 21, 2021, certification of unregistered broker-dealer status for each
02cv2219 (SDNY) lawsuit’s plaintiff which annulled and mooted the 02cv2219 (SDNY) lawsuit and
04cr1224 indictment for lack of Article III standing and subject matter jurisdiction. ....................... 190
Exhibit 4—Dec. 20, 2007, post-trial, voluntary Rule 41(a)(2) dismissal with prejudice of the 02cv2219
(SDNY) lawsuit, a subsequent event which mooted and annulled the 02cv2219 (SDNY) lawsuit, and
annulled and vitiated the government’s 04cr1224 (SDNY) trial exhibits GX 1-4, GX 5, GX 7, GX 11, GX
24, and 34, which as a matter of law and fact acquitted Ulysses T. Ware, Esq. (Applicant) of all 18
USC 401(3) criminal contempt charges in 04cr1224—that is, actual and factual innocent, subsequent
events. .................................................................................................................................................. 191
Exhibit 5—Marlon G. Kirton, Esq., letter to the 05cr1115 sentencing district court which admitted
and confirmed that the government’s “principal witness” in 05cr1115, Jeremy Jones had covertly
cooperated with the government, was a paid witness, and was given a “5k1.1 letter” by the
government for Jones’ known perjured trial testimony. .................................................................... 192
Exhibit 6—suppressed and concealed alleged Dkt. 24, purported Sept. 2006 Rule 11 proceedings of
Jeremy Jones which the government and the 05cr1115 district court have never disclosed to
Applicant—that is, a governmental 28 USC 2255(f)(2) statutory cause and prejudice, a constitutional
actual innocent “impediment” which has never been removed that prevented Applicant from
credible and effective relief via timely 2255(a) motion. Note that Dkt. 24, a judicial public record,
does not appear on the alleged public 05cr1115 docket, see Exhibit 7, infra. Nor does Jones[ Rule 11
plea, USSG 5k1.1 cooperation agreement, not USSG 5k1.1 substantial assistance letter, cf., Exhibit 5,
supra. Which triggers 28 USC 2255(f)(2) government “impediment” exception to 2255(f)(1) 1-year
limitation. ............................................................................................................................................. 193
Exhibit 7—fabricated and counterfeit 05cr1115 docket, government, and the district court’s
deliberate, intentional, and bad faith cover up, suppression, and concealment of the existence of
the alleged Sept. 2006 Rule 11 proceedings, cf., Exhibits 5, and 6, supra—a 28 USC 2255(f)(2)
“impediment” created to prevent Applicant from raising Brady, prosecutorial, and judicial
misconduct claims in post-conviction collateral proceedings. The government and the 05cr1115
district court (Pauley, J. and Ramos, J.) conspired and colluded with the government to prevent
Applicant from raising any timely challenge to the government’s and the district court’s
Page 11 of 209
prosecutorial and judicial misconduct crimes committed before, during, and after the 05cr1115
proceedings. ......................................................................................................................................... 194
Exhibit 8—05cr1115 district court (Pauley, J.) order denying Applicant’s 2006 pre-trial Brady discover
motion based on the government’s lies, fraud on the court, and 2255(f)(2) Brady constitutional
“impediment” to a fair trial, cf., EOUSA’s March 20, 2023, FOIA response, Exhibit 1, supra. The
government made a deliberate fraud on the court, and violated DOJ Rules of Ethics and Professional
Conduct Rules Rule 3.3, 3.4, 8.4, and duty of complete candor to the tribunals. The government did
not produce and disclose all Brady evidence “prior to trial” as ordered in the May 19, 2006, Dkt. 17
Brady order, Tr. 5-10. ............................................................................................................................ 195
Exhibit 9—suppressed and concealed (Dkt. 20, 23, and 24 do not appear on the 05cr1115 docket,
see Exhibit 7, supra) by the 05cr1115 district court’s pre-trial 10.11.2006 acceptance of Jeremy
Jones’ alleged Sept. 2006 Rule 11 plea. See Exhibit 7, supra, the 05cr1115 (SDNY) 2009 docket which
does not show any reference to Dkt. 23, the alleged acceptance of Jones’ Rule 11 plea. A 2255(f)(2)
governmental and judicial constitutional “impediment” which has yet to be removed, which
prevented Applicant from raising any credible challenge to the government’s Brady violation
apropos the alleged Rule 11 and USSG 5k1.1 perjury contracts—First Amendment judicial records.
.............................................................................................................................................................. 196
Exhibit 10—USAG’s voluntary, Nov. 7, 2008, actual innocent Article II, appellate political decision to
abandon, terminate, and dismiss with prejudice the government’s U.S. v. Ware, 07-5670cr (XAP) (2d
Cir.), Gov-I, cross-appeal—an acquittal on the merits of all charges in 05cr1115 (SDNY). ................ 197
Exhibit 11—suppressed and concealed SEC lawyer Jeffrey B. Norris’ internal actual innocent, Brady
exculpatory and impeachment official SEC email which confirmed the SEC-DOJ 2003 Las Vegas 03-
0831 (D. NV) bootleg grand jury proceeding was rigged and fixed as an overt act in a conspiracy to
obstruct justice by the District Judge Kent J. Dawson (D. NV) to assist the USAO (SDNY) to
circumvent the Federal Rules of Crim. P. and the Constitution and use the commingled 03-0831 civil
proceedings as an unconstitutional bootleg grand jury to gather evidence for use by the USAO in the
imminent U.S. v. Ware, 04cr1224 (SDNY) and 05cr1115 (SDN) criminal proceedings, and to have
Applicant bullied into waiving his Fifth Amendment right to remain silent. ..................................... 198
Exhibit 12—suppressed and concealed SEC lawyer Jeffrey B. Norris’ actual innocent Brady
exculpatory and impeachment official SEC email sent pretrial (circa 2005) to Jeremy Jones the
government’s “principal witness” in U.S. v. Ware, 05cr1115 (SDNY). Norris informed Jones the SEC’s
lawyers involved in the Las Vegas 03-0831 (D. NV) Bootleg Grand Jury Proceedings believed his and
the government’s 05cr1115 witnesses’ SEC deposition testimony “they were not involved in any
conspiracy with Mr. Ware, and had they known of any conspiracy would not have gotten involved.”
(paraphrased). The district court (Pauley, J.) in limine order, Dkt. 35, prohibited Applicant from
calling any SEC employee as an exculpatory or impeachment witness in violation of the Sixth
Amendment’s right to “effectively cross-examine” the government’s witnesses, and put on “a
complete defense.”............................................................................................................................... 199
Exhibit 13—suppressed actual innocent Brady exculpatory and impeachment evidence. Paragraph
33 in the SEC v. Small Cap Research LLC, et al., 03-0831 (D. NV) lawsuit. In 2003 the SEC on behalf of
Page 12 of 209
the United States stipulated, pleaded, and judicially admitted in the complaint, equitable and
judicial estoppel against the United States, there was no “artificial” “inflation” or “increase” or
“pumped up” stock “prices” regarding the securities of INZS and SVSY which rendered probable
cause in U.S. v. Ware, 05cr1115 (SDNY) a legal and factual impossibility. ......................................... 200
Exhibit 14—suppressed and concealed Brady evidence--former SEC lawyer Jeffrey B. Norris’ official
SEC email to the official DOJ email account of AUSA Alexander H. Southwell, the government’s lead
prosecutor in 05cr1115, and the prosecutor who procured the 04cr1224 indictment—AUSA
Southwell admitted to Norris that Ulysses T. Ware, Esq. was “improperly arrested” by District Jude
Thomas W. Thrash, Jr. (NDGA) and the U.S. Marshals who stormed Mr. Ware’s law office on Sept. 1,
2004, in Atlanta, GA conducting 18 USC 1961(6)(B) unlawful, criminal usury debt collection activities
regarding government trial exhibits GX 1-4, and GX 5, the criminal usury convertible promissory
notes, the subject matter of the 02cv2219 (SDNY) lawsuit, and the U.S. v. Ware, 04cr1224 (SDNY)
indictment’s charges. See Exhibit 15, infra. ......................................................................................... 201
Exhibit 15—suppressed and concealed U.S. Probation Office (SDNY) assessment that Ulysses T.
Ware, Esq. was improperly arrested in Atlanta, GA on Sept. 1, 2004, by District Judge Sand (SDNY)
(deceased), District Judge Thomas W. Thrash, Jr. (NDGA), the SEC, the USAO (SDNY), and the U.S.
Marshals conducting RICO money laundering, and Hobbs Act extortion18 USC 1961(6)(B) unlawful
debt collection activities in violation of U.S. v. Grote, 961 F.3d 105 (2d Cir. 2020) (aff’d conviction,
sentence, and RICO $3.0 billion forfeiture judgment for unlawful debt collection activities) and Adar
Bays v. GeneSYS ID, Inc., 28 F.4d 379 (2d Cir. 2022) (criminal usury convertible promissory notes are
unenforceable, null and void ab initio, and violate NYS Penal Law, section 190.40, the criminal usury
law, a class E felony). ............................................................................................................................ 202
Exhibit 15—con’t. ................................................................................................................................. 203
Exhibit 16—Norris v. SEC, 675 F.3d 1349 (Fed. Cir. 2012)---the USAO (SDNY) suppressed and
concealed the fact its FRE 404(b) witness, disgraced former SEC lawyer Jeffrey B. Norris, own SEC
professional ‘bad acts’—when Norris testified for the USAO in 2007 in U.S. v. Ware, 04cr1224
(SDNY), the USAO suppressed and conceal Brady evidence that Norris then had been sanctioned
twice by the SEC for professional bad act, and was then under the care of a psychiatrist taking drugs
for his mind........................................................................................................................................... 204
Exhibit 16--(con’t). ................................................................................................................................ 205
Certificate of Service ............................................................................................................................... 208
End of document. ..................................................................................................................................... 209
Page 13 of 209
I Notice of Appeal—Ware v. USA, et al., 22cv3409 and 22cv10566
(SDNY).
Comes now, Ulysses T. Ware, Appellant, the petitioner in the Ware v. USA, et al., 22cv3409
(SDNY) 2241 actual innocent habeas corpus petition, hereby this 20th day of May 2023, pursuant
to Fed. R. App. P. Rule 4(a)(1)(B)(i) files this notice of appeal in the United States District Court
(SDNY) from the 22cv3409 (SDNY) Ware v. United States, Garland, Ramos, and Taylor-Swain, 28
USC 2241(a) habeas corpus proceedings petition’s denial, and appeals all orders, judgments,
rulings, fact-finding, memoranda, or other appealable process incorporated in, merged, and/or
made part of Dkt. 126, Dkt. 213, Dkt. 214, and any other order, judgment, ruling, or other fact-
finding not docketed or made part of the official records in the proceedings.2
Comes now, Ulysses T. Ware, Appellant, the petitioner in the Ware v. USA, et al., 22cv3409
(SDNY) 2241 actual innocent habeas corpus petition, hereby this 20th day of May, 2023, pursuant
to Fed. R. App. P. Rule 4(a)(1)(B)(i) files this notice of appeal in the United States District Court
(SDNY) from the 22cv10566 (SDNY) Ware v. United States, Garland, Ramos, and Taylor-Swain,
28 USC 2241(a) habeas corpus proceedings petition’s denial, and appeals all orders, judgments,
2
The official record is incomplete—that is, judicial public records—see COA, Section 7, Exhibits 1, 5, 6, 7,
and 8, associated with the U.S. v. Ware, 05cr1115 (SDNY) Sept. 2006, alleged Rule 11 proceedings have
been stolen, removed, concealed, and deliberately suppressed by the government (Merrick B. Garland,
Lisa Monaco, Vanita Gupta, Andre Damian Williams, Jr.), the district clerk (Ruby Krajick), and the district
court (Ramos, J., Pauley, J.)— an unconstitutional 28 USC 2255(f)(2) “impediment” and Id. 2255(f)(4)
suppression of facts and Brady materials implemented in violation of the laws of the United States, to wit,
18 USC 2, 241, 242, 371, 1519, 2071, and 42 USC 1985(2), and 1985(3).
Page 14 of 209
rulings, fact-finding, memoranda, or other appealable process incorporated in, merged, and/or
made part of and 22cv10566 (SDNY) and Dkt. 2, Dkt. 6, and Dkt. 7.
Appellant specifically appeals:
A. the district court’s null and void ab initio, moot, and erroneous Dec. 12, 2022, Dkt. 126,
order, in its entirety, and appeals the moot recharacterization of the 22cv3409 (SDNY)
actual innocent 2241 habeas corpus petition, Dkt. 1, as a moot 2255(a) motion, Dkt. 126;3
B. the March 3, 2023, Dkt. 213, Dkt. 214, and Dkt. 2, 6, and 7 (22cv10566) orders in their
entirety, and specifically appeals the denial of the purported 2255 actual innocent
3
Note that 22cv3409 (SDNY) Dkt. 126, order, Dec. 12, 2022, is not a final order denying a 2255 motion,
and thus is not subject to any AEDPA COA requirement to file an appeal of Dkt. 126, order.
Page 15 of 209
motions as time-barred,4 untimely,5 to the extent AEDPA and 2255 apply, which they do
not, cf., 28 USC 2255(f)(2) and 2255(f)(4) exceptions6 to 28 USC 2255(f)(1),7 or for any
4
The district courts and the government lack “clean hands”—that is, they deliberately and intentionally,
in bad faith, recklessly and negligently engaged in wrongful conduct, such as fraud, deceit, lied, committed
perjury, and/or engaged in unscrupulous behavior, the court may not grant relief based on the 2255(f)(1)
affirmative defense which was waived by the government. Furthermore, the government and the district
court (Ramos, J.) are subject to the equitable doctrines of equitable and judicial estoppel—the
government admitted in the EOUSA’s March 20, 2023, FOIA response it willfully resisted and did not
comply with the Brady court orders—civil and criminal contempt, unclean hands, which is in
contradiction to the government’s pre-trial misrepresentation and position made in 05cr1115, Dkt. 29, see
Section 7, Exhibit 8, infra: “Defendant alleges the Government failed to produce requested [Brady]
discovery. The Government [via AUSA Alexander H. Southwell and Michael J. Garcia, lied, committed
perjury, and committed a fraud on the court, i.e., unclean hands, a 2255(f)(2) “impediment” and
suppressed favorable material facts and evidence--Jeremy Jones’ Rule 11 judicial court records, 2255(f)(4)]
responded on December 4, 2006, submitting that such [Brady] requests were answered in a timely manner
and objecting to any adjournment of the trial date.”). (emphasis added). The record before the 22cv3409
2241 habeas corpus court, newly discovered Brady evidence, the EOUSA’s March 20, 2023, FOIA
response, Section 7, Exhibit 1, infra, completely contradicts the “Government’s” and the district court’s
(Pauley, J.) negligent and reckless fraud on the court. Cf., Id., Exhibit 9, infra, Dkt 23, Pauley’s alleged
acceptance of Jones’ nonexistent Rule 11 plea which there is no record of in any federal court in the
United States. A clear case of prosecutorial and judicial equitable fraud, a conspiracy to obstruct justice.
5
The 2255(f)(1) 1-year limitation is an affirmative defense, which must be “expressly” pleaded by the
government in its responsive answer, see Fed. R. Civ. P. Rule 8(c) ([2255(f)(1)] statute of limitation defense
must be “affirmatively state[d]” in a responsive pleading), not raised sua sponte by the district court;
however, even assuming arguendo the district court (Ramos, J.) was authorized to have sua sponte raised
the 2255(f)(1) affirmative defense, which he was not, unless Ramos, J. is functioning as a de facto special
assistant U.S. Attorney (SDNY), an agent, proxy, surrogate, or alter-ego of the USAO (SDNY), Ramos, has
unclean hands, a factual issues which must be resolved in an evidentiary hearing if Ramos disputes the
claim, and engaged in equitable fraud and conspired with the government to steal, suppress, and
conceal Jeremy Jones’ alleged Rule 11 judicial public records; accordingly, the government which did not
appear, and is strictly prohibited from appearing, in the Criminal Proceedings ipso facto waived the
2255(f)(1) affirmative defense notwithstanding its unclean hands, and equitable fraud, by not complying
with Rule 8(c) express requirement. But on the other hand, the government or the district court cannot
expressly plead any affirmative defense because of equitable fraud and unclean hands—the government
and the district court (Ramos, J., and Pauley, J., and Sweet, J.) all concealed and suppressed Brady
evidence, and imposed “impediments,” bogus leave-to-file sanctions, which caused any alleged 2255(f)(1)
untimeliness. To the extent 2255(f)(1) applied, which it did not.
The untimeliness issue is moot to the extent the district court had 2255 subject matter jurisdiction, which
it did not. The district court and court of appeals even if, arguendo, lawfully authorized to sua sponte raise
timeliness affirmative defense. Why? Because the district court (Ramos, J.) and the Court of Appeals have
Page 16 of 209
unclean hands—see the Court of Appeals 07-5222cr (2d Cir.) manifestly frivolous 11/15/2010 leave-to-file
sanctions imposed on Appellant to prevent and obstruct access to Brady exculpatory evidence, a 2255(f)(2)
unconstitutional “impediment.” The government waived the 2255(f)(1) untimely affirmative defense,
actually (by not expressly pleading the untimeliness issue in a responsive answer) or necessarily (by its
unclean hands) regarding 22cv3409 and 22cv10566. Wood v. Milyard, 566 U.S. 463 (2012) (rev’d and
vacated the USCA 10th Circuit who dismissed the petition as untimely: “The Tenth Circuit, we accordingly
hold, abused its discretion by resurrecting the limitations issue instead of reviewing the District Court’s
disposition on the merits of Wood’s claims.”) (emphasis added); Day v. McDonough, 547 U.S. 198, 205
(2006) (Scalia, J.) (dissenting) (“We have repeatedly stated that the enactment of time-limitation periods
such as that in [§2255(f)(1)], without further elaboration, produces [affirmative] defenses that are
nonjurisdictional and thus subject to waiver and forfeiture.”) (emphasis added); cf., Sasser v. Norris, 553
F.3d 1121, 1128 (CA8 2009) (“The discretion to consider the statute of limitations defense sua sponte does
not extend to the appellate level.”). (emphasis added).
Cf., Holland v. Florida, 560 U.S. 631, 645-46 (2010) (“We have previously made clear that a
nonjurisdictional [2255(f)(1)] federal statute of limitations is normally subject to a
“rebuttable presumption” in favor “of equitable tolling.” Irwin, 498 U.S., at 95–96, 111 S.Ct. 453; see
also Young v. United States, 535 U.S. 43, 49 (2002) (“It is hornbook law that limitations periods are
‘customarily subject to “equitable tolling”’” (quoting Irwin, supra, at 95, 111 S.Ct. 453))”. (emphasis
added).
6
See COA, Section 7, Exhibit 1, infra—the EOUSA’s March 20, 2023, In re Ware, 000907 FOIA response
which confessed and stipulated the government violated the Brady disclosure court orders, Dkt. 17
(05cr1115) and Dkt. 32 (04cr1224), ipso facto triggered the 2255(f)(2) government action “impediment”
which has not been removed by the government; therefore, as a matter of law the 2255(f)(1) 1-year
statute of limitation has yet to begin, and has not run as of April 3, 2023, assuming, arguendo, the AEDPA
2255(a) proceedings are not moot, which they are. Upon the government’s disclosure and production of
the judicial public records and the new Brady exculpatory and impeachment evidence within the “over 15
boxes of materials” Appellant will have the new facts to support additional actual innocent claims. See 28
USC 2255(f)(4).
7
The Supreme Court addressed one such exception in McQuiggin v. Perkins, 133 S. Ct. 1924 (2013),
holding that actual innocence is an “exception” to the AEDPA’s [2255(f)(1)] time limit. The Court reasoned
that habeas corpus is designed to prevent a miscarriage of justice, an example of which would be
imprisoning someone who is innocent. “The AEDPA should not bar such a person from habeas relief,” the
Court said.
Page 17 of 209
other reason or ground;8 furthermore, the Double Jeopardy Clause’s and res judicata
absolute finality on all fact-finding strictly prohibits the government from pleading any
time-barred, untimely “affirmative defense” or opposing or any challenge to the actual
innocent claims factual predicates.9
C. appeals the imposition of a moot “leave-to-file” (abuse of writ) sanction, Dkt. 213, and
Dkt. 214, and Dkt. 2, 6, and 7 (22cv10566);
8
In the state of New York, the tort of equitable fraud is recognized. It allows a party to seek equitable relief
based on fraudulent conduct. To assert and prove a claim of equitable fraud in New York, the following
elements generally need to be established:
1. Misrepresentation or material omission: The claimant must show that the other party [the district
courts, the government, and the court of appeals] made a false representation [see COA, Section
7, Exhibits 7 and 8, infra] or omitted important information. The misrepresentation or omission
must be material, meaning it is significant enough to influence the decision-making process [see
Dkt. 29, Pauley, J., order, 05cr1115, denying Brady discovery relief; also see Ramos, J., 22cv10566,
Dkt. 6, Apr. 3, 2023, (“terminating 5 Motion for Discovery.”)—ipso facto unclean hands and
equitable fraud under NYS law; and 2255(f)(2) and 2255(f)(4) exceptions to 2255(f)(1).
2. Scienter: The claimant must demonstrate that the party making the misrepresentation knew or
should have known that the statement was false or misleading. In other words, there must be a
showing of intent to deceive or reckless disregard for the truth. [cf., EOUSA’s March 20, 2023, FOIA
response].
3. Reliance: The claimant must prove that they reasonably relied on the misrepresentation or
omission. They need to show that they were influenced by the false information or omission and
that their actions or decisions were based on that reliance.
4. Damages: The claimant must demonstrate that they suffered harm or damages as a result of the
fraudulent conduct. This can include financial losses, reputational harm, or other adverse
consequences directly caused by the fraud. [$2.225 billion dollars in actual compensatory
damages].
9
Because res judicata and the Double Jeopardy Clause’s absolute finality and prohibition on all fact-finding
the government cannot appear, oppose, or challenge the factual basis or newly discovered evidence
effects on the proceedings; nor is the district court authorized to accept any purported “affirmative
defense” or opposition to the factual predicates presented to the district court, see COA, Section 3
(Verified Statement of undisputed facts). Accordingly, the government as a matter of law and fact being
precluded by res judicata and Double Jeopardy cannot establish standing or as the plaintiff cannot
establish 2255 jurisdiction to “defend” or be “concern[ed]” with respect to the 04cr1224 and 05cr1115
Criminal Proceedings which therefore are moot.
Page 18 of 209
D. appeals the denial of a moot 2253 certificate of appealability;
E. appeals all abuse of discretion and prohibited fact-finding in Dkt. 126, Dkt. 213, and Dkt.
214, and Dkt. 2, 6, and 7 (22cv10566);
F. appeals all clear error legal conclusions in Dkt. 126, Dkt. 213, and Dkt. 214, and Dkt. 2, 6,
and 7 (22cv10566) ;
G. appeals all denial of motions for reconsideration, and Rule 60(b) motions;
H. appeals the denial of recusal;
I. appeals the denial of an evidentiary hearing;
J. appeals the denial of enforcement of the Brady court orders Dkt. 17 (05cr1115) and Dkt.
32 (04cr1224);
K. appeals the district court’s denial and refusal to product all judicial public records
associated with Jeremy Jones, and all government witnesses who testified at trial in
04cr1224 or 05cr111510—that is, Jeremy Jones’ alleged Sept. 2006 Rule 11 plea and
perjury contracts, USSG 5k1.1 perjury cooperation contract, USSG 5k1.1 substantial
assistance letter, the government’s sentencing memoranda, the alleged Sept. 2006 Rule
11 transcript, the sentencing transcript, all sealing applications and orders, all ex parte
reviews, and orders, and all ex parte government application made to the 04cr1224
district court, transcripts, hearing, dockets, and other judicial public records which have
not been disclosed or produced to Appellant, i.e., 2255(f)(2) government “impediments;”
10
See 28 USC 2255(f)(2) government or court implemented “impediments” that prevent the movant from timely
filing credible claims supported by new information or facts, and 2255(f)(4) exceptions to 2255(f)(1).
Page 19 of 209
L. appeals the denial of all actual innocent claims; and;
M. appeals all other undocketed orders, rulings, judgments, and fact-finding which violated
the Double Jeopardy Clause’s absolute prohibition on all fact-finding or judicial review that
contradicts, challenged, undermined, or in any way vitiated or abrogated the USAG’s Nov.
7, 2008, Executive Branch, Article II, actual innocent, appellate political decision which
voluntarily dismissed with prejudice U.S. v. Ware, 05cr1115 (SDNY) and 07-5670cr
(XAP)(2d Cir.), Gov-I, the government’s cross-appeal,11 or other purported legal process;
or vitiated or abrogated the Dec. 20, 2007, Dkt. 90, Rule 41(a)(2) voluntary dismissal with
prejudice of the 02cv2219 (SDNY) lawsuit, see COA, Section 7, Exhibit 4, infra.
1 Forward the complete certified record to the Court of Appeals.12
Appellant respectfully requests that the District Clerk (SDNY) forward a complete, certified
copy of the entire (docketed and undocketed) official judicial public records of the 04cr1224
11
See COA, Section 7, Exhibit 10, infra.
12
Appellant request that the District Clerk (SDNY), Ruby Krajick, certify under oath, subject to the penalty
of perjury, as an officer of the court, pursuant to 18 USC 401(2), that all judicial public records associated
with U.S. v. Ware, 04cr1224 (SDNY), and U.S. v. Ware, 05cr1115 (SDNY) have been docketed in the district
court (SDNY), and made available to Appellant Ulysses T. Ware as of April 3, 2023, including but not limited
to all judicial public records associated with Jeremy Jones, Jeffrey B. Norris, Kenneth Zitter, Carlton Epps,
Myron Williams, Elrico Sadler, Charles H. Jackson, Alpha Capital, AG (Anstalt), convicted felon Edward M.
Grushko, and unregistered broker-dealers Stonestreet, L.P., Markham Holdings, Ltd, and Amro
International, S.A., LH Financial Services, Trailblazer Merger Corp. I, and Ari Rabinowitz.
Page 20 of 209
(SDNY), 05cr1115(SDNY), and 02cv2219 (SDNY) proceedings to the Court of Appeals regarding
this COA and appeal.13
Appellant request that the District Court (SDNY) forward the complete, certified record
assembled in the District Court (SDNY) to the Court of Appeals as part of the official record of the
proceedings, omitting nothing, and adding nothing not in the official record. Including the
required due process hearing transcript required to have been conducted by the District Court
(Ramos, J.) before imposing the leave-to-file sanction incorporated in Dkt. 213 and Dkt. 214, and
Dkt. 6 (22cv10566); and include all transcripts of all evidentiary hearings, all show cause orders,
all orders of service of the 2241 petition, all governmental filings opposing habeas corpus relief,
and all jurisdictional fact-finding evidentiary hearing transcripts, papers, orders, judgment, and
other legal process.
2 Appellant requires immediate First Amendment and Brady access to all judicial
public records and actual innocent exculpatory and impeachment evidence to timely
perfect the COA and appeals process.14
13
Including but not limited to the alleged Sept. 2006, Rule 11 and USSG 5k1.1 perjury contracts of Jeremy
Jones, the Jones alleged USSG 5k1.1 substantial assistance letter, Jones’ sentencing transcript, sentencing
memoranda, all ex parte applications, orders, and sealing applications and orders, and all judicial public
records associated with and/or related to U.S. v. Ware, 04cr1224 (SDNY) and U.S. v. Ware, 05cr1115
(SDNY), and Alpha Capital, AG, et al. v. IVG Corp., et al., 02cv2219 (SDNY).
14
See 28 USC 2255(f)(2) and 2255(f)(4) exceptions to 2255(f)(1) 1-year statute of limitation for government
action “impediments” which have delayed and obstructed the habeas corpus and previous appeals
process, which violated the Constitution (Brady violations), and the laws of the United States (18 USC 2,
241, 242, 371, 1519, 2071, 3500, 42 USC 1985(2), 1985(3)), and the Federal Tort Claim Act.
Page 21 of 209
Vital, essential, and imperative to the timely appeal and COA application process is
immediate access to all judicial public records15 such that Appellant can raise and present all
actual innocent claims—that is, Appellant requires the USAO (SDNY) and the various District
Courts and Clerks to immediate produce all Brady evidence,16 and disclose all previously hidden,
suppressed, concealed, removed, and/or stolen judicial public records, cf., 18 USC 2, 241, 242,
371, 1519, and 2071, associated with the 04cr1224, 05cr1115, 02cv2219 (SDNY), 03-93031 (BC
NDGA), and 03-0831 (D. NV) proceedings; certify the same have been produced and disclosed to
Appellant; and for the United States via the USAO (SDNY) to certify that all Brady evidence and
judicial public records have been disclosed and produced to Appellant.
15
The Atlanta, GA In re Group Management Corp., 03-93031 (BC NDGA)(WLH), Chapter 11 bankruptcy
court has in the court records, the Atlanta, GA law firm Kilpatrick, Townsend, & Stockton, LLP, the Dallas,
TX law firm Baker & McKenzie, LLP, and the Securities and Exchange Commission (“SEC”)—members of
the government’s trial team, have in their possession actual innocent Brady exculpatory and impeachment
evidence—relevant fact and materials within the scope of 28 USC 2255(f)(4) required for Appellant to
present credible claims of actual innocent regarding the Criminal Proceedings. Appellant has been
deliberately and intentionally impeded and prevented by the Bankruptcy Court’s, KTS’, and Baker’s
collusion and conspiracy with the USAO (SDNY), and others, and the Bankruptcy Court (Hagenau, C.J.) has
misused and abused its judicial authority deliberately and intentionally in violation of 18 USC 2, 241, 371,
1519, 2071, and 42 USC 1985(2), and 1985(3) and implemented unconstitutional and in violation of the
laws of the United States insidious and malicious “impediments”—the device of choice, the manifestly
frivolous and fraudulent leave-to-file sanction (see Dkt. 256, Hagenau, C.J., order to show cause) in
violation of 28 USC 2255(f)(2) and 2255(f)(4)).
16
See EOUSA’s March 20, 2023, In re Ware, 000907 FOIA response, COA, Section 7, Exhibit 1, infra, the
USAO confessed and admitted that “over 15 boxes of materials that could contain Brady evidence” have
not been properly searched, inventoried, disclosed or produced to Appellant in violation of the Brady
doctrine, the Constitution, and the laws of the United States—that is, ipso facto violations 28 USC
2255(f)(2) governmental action “impediments” which have deliberately, intentionally, and in bad faith
obstructed and delayed the habeas corpus and other proceedings in the federal courts.
Page 22 of 209
3 That the district court (SDNY), Ramos, J., the U.S. Probation Office (SDNY), and the
U.S. Bureau of Prisons, produce a certified copy of all alleged extant federal sentences
which Appellant “was in custody or detention under” on Dec. 12, 2022.17
Appellant respectfully requests that the district court (Ramos, J.) (i) produce a certified
copy of all alleged extant federal sentences which Appellant “was in custody or detention under”
on Dec. 12, 2022; (ii) and produce certified copies including all U.S. Probation Office (SDNY) and
U.S. Bureau of Prisons documents that place Appellant in federal prisoner status, and in custody
or detention under an extant federal sentence on Dec. 12, 2022, and April 3, 2023.
4 Summary of the appeal issues, and COA claims.
The Ware v. USA, et al., 22cv3409 (SDNY) actual innocent habeas corpus petition is either
(i) a 2241 actual innocent habeas corpus petition, (the “Petition”), or (ii) according to the district
court (Ramos, J.), Dkt. 126, Dkt. 213, Dkt. 214, and Dkt. 1, 6, and 7 (10566) a [moot] 2255(a)
motion, (the “Motion”).
On the one hand, if the Petition is a 2255(a) motion, then 2255(f)(2), and 2255(f)(4) are
exceptions to 2255(f)(1) 1-year affirmative defense statute of limitation and the Motion was
timely filed.18 On the other hand if the Petition is a 2241 actual innocent habeas corpus petition,
17
The district court (Ramos, J.) did not, has not, and has refused all requests to file into the
22cv3409/22cv10566 2255 records certified copies of extant federal sentences which the district court
claimed Appellant was in federal custody or detention then “under” on Dec. 12, 2023, and April 3, 2023.
18
The government is required to appear in the proceedings and rebut whether or not 2255(f)(2) and
2255(f)(4) are valid exceptions to 2255(f)(1) 1-year statute of limitation. However, on the one hand the
government waived any2255(f)(1) affirmative defense by not appearing and expressly pleading a frivolous
affirmative defense; and on the other hand, the government is not a real party in interest having “concrete
adverseness” on all trial elements of proof for the charges in 04cr1224 and 05cr1115—that is, because
the government is not an adverse, real party in interest with respect to all elements of its trial burden of
Page 23 of 209
or Motion, which it cannot be, the Petition was timely filed—that is, in either case, the district
court is required to adjudicate the merits of the constitutional claims of actual innocent under
the fundamental miscarriage of justice legal standard.
Therefore, regardless of how the district court characterized the Petition, as a Petition or
a Motion, the merits of the actual innocent claims are required to be adjudicated according to
binding Supreme Court precedents, Schlup (more likely than not), McQuiggins (fundamental
miscarriage of justice), and Townsend v. Sain (evidentiary hearing required to resolve disputed
issues of fact).
Fundamental to the courts’ judicial review of the merits of the appeal issues and the COA
claims presented are the bedrock, constitutional requirements of Article III which are absent—
that is:
A. The USAG on Nov. 7, 2008, voluntarily terminated the United States and its privies as
adverse, real parties in interest apropos U.S. v. Ware, 05cr1115 (SDNY) proceedings by
the Article II, actual innocent, appellate political decision that voluntarily dismissed with
prejudice the government’s cross-appeal, U.S. v. Ware, 07-5670cr (XAP)(2d Cir.), Gov-I.
B. As of Nov. 7, 2008, and currently, the United States is not an adverse real party in interest
in 05cr1115 for the purpose of 2241, 2255, 2253,19 or any other matter pursuant to the
proof, to the extent the government does appear in 22cv3409 or 22cv10566, which is a very tricky
situation, the government’s contentions regarding 2255(f)(2) and 2255(f)(4) are controlled by res judicata,
and the Double Jeopardy Clause’s absolute finality, and the EOUSA’s March 20, 2023, In re Ware, 000907
FOIA response, see COA, Section 7, Exhibit 1, infra.
19
The USAG’s Article II, actual innocent, appellate political decision is an Executive Branch stipulation, an
express affirmative defense, of actual and factual innocence of the government’s trial elements of proof
Page 24 of 209
Double Jeopardy Clause’s absolute finality and prohibition on all fact-finding20 and res
judicata.21 Put another way there is no live, Article III case or justiciable controversy
between Ulysses T. Ware and the United States and its privies regarding all issues, facts,
and claims actually and/or necessarily resolved by the USAG’s Executive Branch
unreviewable, discretionary, prosecutorial prerogative to dismiss Gov-I and 05cr1115 with
prejudice for whatever reason the USAG deemed appropriate under the circumstances.
Any purported Article III judicial review conducted by the district court (Ramos, J.) with
respect to 05cr1115 and the Court of Appeals in 07-5222cr (2d Cir.) was and is beyond
the scope of Article III authority, is moot, and null and void ab initio. Steel Co., 523 U.S. at
93-95.
C. On July 14, 2003, in the SEC v. Small Research, LLC, et al., Las Vegas, 03-0831 (D. NV)
lawsuit, the SEC and DOJ lawyer pleaded the United States and its privies out of the federal
and state courts and voluntarily pleaded the actual innocent, binding judicial admission,
actually and/or necessarily resolved by the USAG’s Article II, actual innocent, appellate political decision—
that is, there is no longer “concrete, adverseness” between Applicant, Ulysses T. Ware, and the United
States and its privies apropos the 05cr1115 proceedings. See California v. San Pablo & Tulare R. Co., 149
U.S. 308 (1893) (concrete adverseness is lacking where the controversy had been terminated by
subsequent events).
20
See the null and void ab initio, and moot Supreme Court of Georgia In re Ulysses T. Ware (2008)
purported disbarment proceedings predicated on the moot and void ab initio U.S. v. Ware, 05cr1115
(SDNY) proceeding’s result—that is, null and void by the Double Jeopardy Clause’s absolute finality and
res judicata of the USAG’s Nov. 7, 2008, Article II, actual innocent, appellate political decision. See COA,
Section 7, Exhibit 10, infra.
21
See COA, Section 7, Exhibit 10 (USAG’s Article II, actual innocent, appellate political decision which
dismissed with prejudice Gov-I, and terminated the United States and its privies as Article III plaintiffs, and
real parties in interest with respect to the U.S. v. Ware, 05cr1115 (SDNY) proceedings. The proceedings
went moot on Nov. 7, 2008, ipso facto).
Page 25 of 209
factual stipulation in ¶33 of the 03-0831 complaint, see COA, Section 7, Exhibit 13, infra,
the press releases issued by the management of INZS and SVSY did not cause any
“artificial” “inflation” “increase” or “pumped up” the stocks’ “prices” of their securities—
that is, the United States July 14, 2003, actual innocent, binding actual innocent, factual
stipulation removed all required “concrete adverseness” and justiciable controversy
between Ulysses T. Ware, Esq. and the United States and its privies, proxies, surrogates,
agents, and alter-egos regarding INZS and SVSY management’s press releases, the
government’s moot subject matter of the 05cr1115 prosecution, and the moot subject
matter of the Supreme Court of Georgia in In re Ware disbarment proceedings.
D. The United States on or about Nov. 17, 2004, allegedly appeared before a federal grand
jury and procured the U.S. v. Ware, 04cr1224 (SDNY) 18 USC 401(3) criminal contempt
indictment’s charges and again voluntarily pleaded itself and its privies out of the federal
courts—that is, the United States pleaded on the face of the 04cr1224 indictment, cf.,
¶¶8-12, the actual innocent, binding judicial admissions, factual stipulations, Article II
affirmative defenses to all criminal contempt charges, see ¶10.1(iv) of GX 5, the criminal
usury so-called subscription agreement, the United States pleaded and stipulated as fact
that the 02cv2219 (SDNY) lawsuit’s plaintiffs did not purchase IVG’s criminal usury
convertible promissory notes (GX 1-4), (the “Criminal Usury Subject Matter”) as ‘bona
fide” investments, rather the United States stipulated as fact the plaintiffs’ purchased the
Criminal Usury Subject Matter to conduct an immediate, public offering and therefore
each 02cv2219 lawsuit plaintiff was a 15 USC 77b(a)(11) statutory underwriter of the
Page 26 of 209
defendant, IVG Corp., a/k/a Group Management Corp., (“GPMT”), legally and factually
ineligible for any exemption to 15 USC 77e, 77x, and 78ff. See SEC Release 33-7190 n. 17
(1995), and Berckeley, 455 F.3d at 220 (“Section 2(a)(11) statutory underwriters required
to register all distribution [the sale or offer] of securities [GX 1-4].”). (emphasis added).
E. Accordingly, the United States on or about Nov. 17, 2004, stipulated Ulysses T. Ware, Esq.
acquittal, actual and factual innocence of all 18 USC 401(3) criminal contempt charges,
and ipso facto terminated the United States and its privies, proxies, surrogates, and alter-
egos status as “concrete adverse” party-opponents, Article III real parties in interest, with
respect to the essential, vital, and indispensable trial element of proof “lawfulness” of the
02cv2219 lawsuit’s orders and judgments (GX 7, GX 11, GX 24, and GX 34). The U.S. v.
Ware, 04cr1224 (SDNY) proceedings went moot on Nov. 17, 2004, by the voluntary
stipulation of fact, and the actions of the United States.
F. Accordingly, the government is strictly prohibited from any appearance in 22cv3409
(SDNY) or 22cv10566 (SDNY) 2241 actual innocent habeas corpus proceedings and making
any argument, claims, assertions, or contentions that contradicts or abrogates its Nov. 17,
2004, binding judicial admissions pleaded on the face of the 04cr1224 indictment—
equitable and judicial estoppel, (i) factual stipulations the 02cv2219 (SDNY) lawsuit’s
orders and judgments are unlawful; (ii) the plaintiffs are Section 2(a)(11) statutory
Page 27 of 209
underwriters of GPMT; and (iii) that GX 1-4 (the Criminal Usury Subject Matter)22 were
purchased to conduct an immediate public offering.
II Omnibus Jurisdictional Statement.
Appellant contends and asserts that both the district court (SDNY) and the Court of
Appeals lack Article III subject matter and appellate jurisdiction, respectively, to conduct lawful
Article III judicial review regarding the alleged 28 USC 2255 issues on appeal with respect to the
22
Notwithstanding the Court of Appeals March 15, 2022, Adar Bays decision which held that criminal
usury convertible promissory notes, GX 1-4, ipso facto are unenforceable, null and void ab initio, violated
NYS Penal Law, section 190.40, the criminal usury law, a class E felony, and implicitly the collection of GX
1-4 via 02cv2219, 04cr1224, and In re Group Management Corp., 03-93031 (BC NDGA), Chapter 11, see
manifestly frivolous and fraudulent filings made by the Atlanta, GA law firm Kilpatrick, Townsend, &
Stockton, LLP, (“KTS”), on behalf of the 02cv2219 (SDNY) lawsuit’s plaintiffs in violation of Rule 11(b)(1-4),
and 28 USC 2255(f)(2) and 2255(f)(4) constituted RICO unlawful debt collection activities, 18 USC 2, 157,
371, 1956-57, and 1961(6)(B), cf., U.S. v. Grote, 961 F.3d 105 (2d Cir. 2020) (aff’d conviction, sentence, and
RICO forfeiture +$3.0 billion judgment for unlawful debt collection activities).
Page 28 of 209
moot U.S. v. Ware, 04cr1224 (SDNY)23 and U.S. v. Ware, 05cr1115 (SDNY)24 sub judice criminal
proceedings, (the “Criminal Proceedings”).
Specifically, Appellant contends that the Court of Appeals lacks Article III, appellate, and
28 USC 2253 jurisdiction, and the district court (Ramos, J.) lacked jurisdiction under 28 U.S.C. §
23
The U.S. v. Ware, 04cr1224 (SDNY) 18 USC 401(3) criminal contempt prosecution went moot on or
before Dec. 20, 2007, Dkt. 90, see COA, Section 7, Exhibit 4—the plaintiff’s voluntary, Rule 41(a)(2)
dismissal with prejudice of the 02cv2219 (SDNY) lawsuit, which annulled and vitiated the government’s
trial exhibits, GX 1-4, GX 5, GX 7, GX 11, GX 24, and GX 34, and the factual basis—the probable cause, for
the section 401(3) criminal contempt charges. Also see Id., Exhibit 3, FINRA’s May 17, 2021, certification
of unregistered broker-dealer status for each 02cv2219 (SDNY) plaintiffs.
Unregistered broker-dealers ipso facto as a matter of law lack Article III and 28 USC 1332(a) diversity
subject matter jurisdiction—standing, to have filed the 02cv2219 lawsuit in Feb. 2001; also see the Court
of Appeals March 15, 2022, decision in Adar Bays, LLC v. GeneSYS ID, Inc., 28 F.4d 379 (2d Cir. 2022) (held
that NYS Penal Law, section 190.40, the criminal usury law, a class E felony), applied to the government’s
trial exhibits in 04cr1224, GX 1-4, and GX 5—GPMT’s criminal usury convertible promissory notes;
according to Adar Bays, GX 1-4, and GX 5 are null and void ab initio, unenforceable, and constitute criminal
usury unlawful debts, 18 USC 1961(6)(B). The 02cv2219, 04cr1224, and 09-0851 (2d Cir.) matters are moot.
24
The U.S. v. Ware, 05cr1115 (SDNY) prosecution went moot on or before July 14, 2003, upon the United
States filing its complaint via the SEC and DOJ in 03-0831 (D. NV)—the United States via the SEC and DOJ
lawyers involved in the 03-0831 matter pleaded itself out of the federal courts, stipulated, confessed, and
judicially admitted—Article II, equitable, and judicial estoppel in ¶33, see COA, Section 7, Exhibit 13, infra,
actual innocent, Brady exculpatory evidence suppressed by the district court (Pauley, J.) and the
government there was no “artificial” “inflation” “increase” or “pumped up” stock “prices regarding the
securities of INZS and SVSY; which rendered probable cause a legal and factually impossibility for the USAO
(SDNY) in 2005 to have obtained arrest warrants and the 05cr1115 indictment for Appellant based on the
perjured and fabricated affidavit of former FBI special agent David Makol, aided, abetted, assisted, and
enabled by former AUSA Alexander H. Southwell, and his bosses, former U.S. Attorneys David N. Kelley
and Michael J. Garcia.
The USAG’s Nov. 7, 2008, Article II, Executive Branch appellate political decision that dismissed with
prejudice the government’s U.S. v. Ware, 07-5670cr (XAP) (2d Cir.), Gov-I, cross-appeal, mooted the 07-
5222cr (2d Cir.) appeal for insufficient evidence, and mooted the 05cr1115 proceedings—that is, the USAG
triggered the absolute finality, res judicata, the law of the case, Executive Branch prosecutorial, equitable,
and judicial estoppel, and ipso facto the Double Jeopardy Clause was triggered on Nov. 7, 2008, apropos
the 05cr1115 proceedings, which strictly prohibited all subsequent fact-finding regarding the
government’s trial elements of proof. The 05cr1115 matter is moot.
Page 29 of 209
2255(a), Article III, and 18 U.S.C. § 3231 over the subject matter of the Criminal Proceedings in
U.S. v. Ware, 04cr1224 (SDNY) and U.S. v. Ware, 05cr1115 (SDNY), as Appellant was not a federal
prisoner, Appellant was not in custody or detention, and then was not under an extant federal
sentence entered by the sentencing district courts in the Criminal Proceedings on Dec. 12, 2022,25
the date of entry of Dkt. 126, the district court’s order which erroneously recharacterized and
converted the 2241 actual innocent habeas corpus petition to a moot 2255(a) motion.26
Furthermore, Appellant asserts that the district court and the Court of Appeals must
“first” resolve the jurisdictional matters before reaching the merits of the COA claims, namely the
contention the Criminal Proceedings’ indictments did not sufficiently charge 18 U.S.C. § 3231
offenses that violated the laws of the United States. Appellant argues that this lack of jurisdiction
25
See Dkt. 128 (22cv3409 (SDNY))—Appellant’s federal sentences expired by operation of law on May 23,
2022, according to U.S. Probation Office (SDNY) officials.
26
The 1996 AEDPA legislative history limits a 2255(a) motion to a “prisoner” then in custody or detention
in a federal prison, under an extant federal sentence. The justiciable subject matter—the live Article III
controversy for a 2255(a) motion is an unexpired, extant, federal sentence. Appellant’s federal sentences
entered in the Criminal Proceedings expired by operation of law on May 23, 2022, see Dkt. 128 (Ulysses
T. Ware’s declaration of non US BOP prisoner status on Dec. 12, 2022). Therefore, on Dec. 12, 2022, (6 ½
months later) the sentencing district courts lacked a live, justiciable Article III controversy with respect to
the expired federal sentences, accordingly, the AEDPA 2255(a) motion was moot; and the only available
remedy Appellant possessed to raise actual innocent claims based on the newly discovered Brady
exculpatory and impeachment evidence was the 22cv3409 (SDNY) actual innocent 2241 habeas corpus
petition. The district court erred as a matter of law and fact—the unconstitutional conversion and
recharacterization of the 2241 habeas corpus petition to a moot 2255 motion denied Appellant access
to the writ and violated the Suspension Clause, Article I, section 9.
Page 30 of 209
makes the Criminal Proceedings and § 2255 proceedings27 null and void ab initio and currently
moot.
Appellant also contends that the U.S. Attorney General's Nov. 7, 2008, voluntary Executive
Branch Article II, appellate political decision which dismissed with prejudice U.S. v. Ware, 07-
5670cr (XAP) (2d Cir.), Gov-I, the government’s cross-appeal,28 is Article III, judicial, and equitable
estoppel, law of the case, res judicata, and triggered the Double Jeopardy Clause's absolute
finality, and strict prohibition against all subsequent fact-finding regarding the government's trial
27
Because the 2255 proceedings are a “continuation ”—a further step in the sub judice Criminal
Proceedings, if jurisdiction is lacking in the Criminal Proceedings, by extension, and necessary implication,
jurisdiction is also lacking in the 2255 proceedings.
28
See COA, Section 7, Exhibit 10, infra. The USAG pursuant to 18 USC 3742(b) declined to give the USAO
(SDNY) permission to file a frivolous appellate brief in 07-5670cr (XAP), Gov-I; rather the USAG notified
the Court of Appeals on Nov. 7, 2008, the United States and its privies had exercised its unreviewable
Article II, Executive Branch appellate political decision, and had voluntarily, dismissed with prejudice Gov-
I, and conferred prevailing party status on Ulysses T. Ware, Esq. (Appellant), triggered res judicata,
equitable, and judicial estoppel, the law of the case, terminated the federal courts’ Article III jurisdiction
over the subject matter of the 05cr1115 prosecution, and acquitted Ulysses T. Ware, Esq. of all charges in
United States v. Ware, 05cr1115 (SDNY). Ergo, Appellant is factually and actually innocent of all charges
in 05cr1115 per the USAG’s Nov. 7, 2008, Executive Branch prerogative which is beyond the scope of Article
III judicial review. The 05cr1115 matter is ipso facto moot. See U.S. v. Nixon, 418 U.S. 683 (1974)
(Separation of powers doctrine prohibits Article III judicial review of Article II Executive Branch’s
discretionary, prosecutorial political decisions). (emphasis added).
Note the government on May 2, 2022, Dkt. 31, appeared in 22cv3409, AUSA Jun Xiang and Damian
Williams—if the government desired to raise the 2255(f)(1) affirmative defense, then it was on notice of
its duty to plead in an answer the 2255(f)(1) affirmative defense. The government consciously waived—
i.e., forfeited, 2255(f)(1) which is its Article II litigation position, which is binding on the federal courts,
notwithstanding the government and the district court have unclean hands, cf., 2255(f)(2) and 2255(f)(4),
and therefore, ineligible for equitable relief.
Page 31 of 209
elements of proof in U.S. v. Ware, 05cr1115 (SDNY), which rendered the 05cr1115 district court's
orders, rulings, and findings regarding the case null and void ab initio and moot.29
With respect to the U.S. v. Ware, 04cr1224 (SDNY) criminal proceedings, Appellant argues
that there are significant, and material jurisdictional threshold matters which have annulled and
vitiated the district court and the Court of Appeals' Article III, appellate, and 18 U.S.C. § 3231
jurisdiction over the criminal usury subject matter. This includes the Court of Appeals' March 15,
2022, decision in Adar Bays, LLC v. GeneSYS ID., Inc., 28 F.4d 379 (2d Cir. 2022), which nullified
and rendered the Alpha Capital, AG, et al. v. IVG Corp., a/k/a Group Management Corp.,
("GPMT"), et al., 02cv2219 (SDNY) lawsuit, and the government’s 04cr1224 indictment, and trial
evidence, GX 1-4, GX 5, GX 7, GX 11, GX 24, and GX 34, null and void ab initio and moot.
Additionally, Appellant argues that the government's trial evidence in U.S. v. Ware,
04cr1224 (SDNY), GX 1-4 (GPMT's criminal usury convertible promissory notes), and GX 5
(criminal usury underwriting contract), jointly, nullified and rendered the Criminal Usury Subject
Matter unenforceable, and 18 U.S.C. § 1961(6)(B) criminal usury unlawful debts. The 04cr1224
indictment also failed to charge an 18 U.S.C. § 401(3) criminal contempt “offense,” and as such, it
is not an 18 U.S.C. § 3231 criminal contempt "offense" for Appellant, GPMT's securities lawyer, to
not issue fraudulent Rule 144(k) legal opinions to the 02cv2219 (SDNY) plaintiffs.30
29
The USAG’s Nov. 7, 2008, Article II, appellate political decision is beyond the scope of any and all Article III judicial
review regarding the 05cr1115 and 07-5222cr (2d Cir.) proceedings.
30
See SEC Release 33-7190 n. 17 (1995) (“Section 2(a)(11) statutory underwriters required to register all
distribution [public sale or offering] of securities [GX 1-4].”). (emphasis added). Cf., with government trial
GX 5, ¶10.1(iv)—that is, the government on the face of the 04cr1224 indictment pleaded actual innocent
Page 32 of 209
Finally, Appellant argues that the Dec. 20, 2007, Dkt. 90, Fed. R. Civ. P. 41(a)(2) plaintiffs'
voluntary dismissal of the 02cv2219 (SDNY) lawsuit, annulled and vitiated all prior orders,
judgments, and proceedings in 02cv2219 (SDNY) lawsuit "as if the [02cv2219] lawsuit were never
filed,” which rendered null and void ab initio the 02cv2219 and 04cr1224 proceedings. Moreover,
the March 15, 2022, Adar Bays decision, rendered the government's trial evidence in U.S. v.
Ware, 04cr1224 (SDNY) null and void ab initio, unenforceable; and it is not an 18 USC 3231
criminal contempt "offense" for Appellant to not issue bogus and fraudulent Rule 144(k) legal
opinions to the 02cv2219 (SDNY) lawsuit’s plaintiffs.
Furthermore, the Dec. 20, 2007, Dkt. 90, Rule 41(a)(2) voluntary dismissal of the
02cv2219 lawsuit annulled and vitiated all prior orders, judgments, and proceedings, including
GX 7, GX 11, and GX 24, as if the lawsuit had never been filed.
In light of the foregoing, Appellant argues that the district court lacked subject matter
jurisdiction over the Criminal Proceedings and currently lacks jurisdiction to conduct 2255 judicial
proceedings. Appellant further contends that the Court of Appeals and the district court must
first resolve the above “threshold jurisdictional matter” before reaching the merits of the COA
claims subject to the fact the indictments in the Criminal Proceedings did not charge 18 USC 3231
"offenses" that violated the laws of the United States.
affirmative defenses to the purported 18 USC 410(3) criminal contempt charges, and expressly, ipso facto
acquitted Ulysses T. Ware, Esq., (Appellant) of all charges in United States v. Ware, 04cr11224 (SDNY). The
government judicially admitted, and stipulated, equitable and judicial estoppel, that each of the 02cv2219
(SDNY) lawsuit’s plaintiffs were, in fact, a 15 USC 77b(a)(11) statutory underwriter of the defendant, GPMT,
and therefore, ipso facto, ineligible for any Rule 144 exemption to 15 USC 77e, 77x, and 78ff strict-liability.
As a matter of law Appellant is actually and factually innocent of all charges in 04cr1224.
Page 33 of 209
Additionally, Appellant maintains that the USAG's voluntary Executive Branch Article II,
judicial and equitable estoppel, law of the case, res judicata, and the Double Jeopardy Clause's
absolute finality, and strict prohibition on all subsequent fact-finding regarding the government's
trial elements of proof in U.S. v. Ware, 05cr1115 (SDNY) rendered the district court's orders,
rulings, and finding null and void ab initio and moot.
Therefore, Appellant argues and urges that both the district court and the Court of
Appeals lack Article III and appellate jurisdiction to review the COA claims, or the issues on appeal,
including the district court's orders, rulings, and findings in Dkt. 126, Dkt. 213, and Dkt. 214
regarding 05cr1115 and the jurisdictional "threshold matters" that currently exist in 04cr1224.
The sub judice Criminal Proceedings are ipso facto as a matter of law and fact null and void ab
initio, and moot.
The Court of Appeals, see Steel Co., 523 U.S. at 93-95, should sua sponte stay all briefing,
and remand to the Criminal Proceedings’ district courts with instructions to forthwith conduct
Article III, 18 USC 3231, and 28 USC 2255 evidentiary hearings on whether or not the district
courts initially, and currently have lawful and valid subject matter jurisdiction over the respective
proceedings.
Page 34 of 209
III Appellant moves the Court of Appeals to remand to the District
Court, to a new district judge, to conduct unbiased, impartial, and
competent 2255, Article III, and 18 USC 3231 threshold jurisdictional
proceedings before the district court reaches the merits of the COA
application.
1. Appellant contends that the district court (Ramos, J.) currently and on Dec. 12, 2022, Dkt.
126, then lacked 2255(a), Article III, and 18 USC 3231 jurisdiction over the subject matter of the
sub judice criminal proceedings in U.S. v. Ware, 04cr1224 (SDNY) and U.S. v. Ware, 05cr1115
(SDNY), (the “Criminal Proceedings”) to conduct 2255 judicial proceedings given Appellant then
and currently is not and was not, (i) a federal prisoner, (ii) was not in custody or detention under
an extant federal sentence entered by the Criminal Proceedings district courts.
2. Appellant further contends it is s “threshold jurisdictional matter” that the district court
“first” must resolve “before” reaching the merits of the COA claims that the indictments in the
sub judice Criminal Proceedings did not charge 18 USC 3231 “offenses” which violated the laws
of the United States, and ipso facto, the Criminal Proceedings and 2255 proceedings are null and
void ab initio, and currently moot.
3. Appellant further contends that the USAG’s Nov. 7, 2008, voluntary Executive Branch
Article II, judicial and equitable estoppel, the law of the case, res judicata, and the Double
Jeopardy Clause’s absolute finality, and strict prohibition on all subsequent fact-finding regarding
the government’s trial elements of proof apropos U.S. v. Ware, 05cr1115 (SDNY) rendered the
Page 35 of 209
district court’s orders, rulings, and finding, Dkt. 126, Dkt. 213, and Dkt. 214 regarding 05cr1115
null and void ab initio and moot.
4. Appellant further contends that with respect to the U.S. v. Ware, 04cr1224 (SDNY)
criminal proceedings, significant and material jurisdictional “threshold matters” currently exist
which annulled and vitiated the district court and the Court of Appeals Article III, appellate, and
18 USC 3231 jurisdiction over criminal usury subject matter—that is, the Court of Appeals March
15, 2022, decision in Adar Bays, LLC v. GeneSYS ID., Inc., 28 F.4d 379 (2d Cir. 2022):
a. Rendered the Alpha Capital, AG, et al. v. IVG Corp., a/k/a Group Management Corp.,
(“GPMT”), et al., 02cv2219 (SDNY) lawsuit null and void ab initio, and moot.31
b. Rendered the government’s trial evidence in U.S. v. Ware, 04cr1224 (SDNY), GX 1-4
(GPMT’s criminal usury convertible promissory notes), and GX 5 (criminal usury
underwriting contract), jointly, (the “Criminal Usury Subject Matter”), null and void ab
initio, unenforceable, and 18 USC 1961(6)(B) criminal usury unlawful debts;
c. The 04cr1224 indictment failed to charge an 18 USC 401(3) criminal contempt offense—
that is, it is not an 18 USC 3231 criminal contempt “offense” for Appellant, GPMT’s
securities lawyer, to not issue bogus and fraudulent Rule 144(k) legal opinions to the
02cv2219 (SDNY) plaintiffs, (i) unregistered broker-dealers; (ii) 15 USC 77b(a)(11) judicially
admitted statutory underwriters, (iii) 15 USC 78p(b) statutory insiders of GPMT, and (iv)
31
Which annulled and vitiated GX 7, GX 11, GX 24—the factual basis for the 18 USC 401(3) criminal
contempt charges; GX 34; and GX 250-253 (regarding the In re Group Management Corp., 03-93031 (BC
NDGA) chapter 11 proceedings).
Page 36 of 209
affiliates of GPMT, legally ineligible for any exemption to 15 USC 77e strict-liability
registration requirements, see SEC Release 33-7190 n. 17 (1995).32
d. The Dec. 20, 2007, Dkt. 90, Fed. R. Civ. P. 41(a)(2) plaintiffs’ voluntary dismissal of the
02cv2219 (SDNY) lawsuit,33 annulled and vitiated all prior orders (GX 7, GX 11, and GX
24),34 judgments, and proceedings “as if the [02cv2219] lawsuit had never been filed.”35
Respectfully submitted by:

The Office of Ulysses T. Ware
/s/ Ulysses T. Ware
May 20, 2023
32
“Section 2(a)(11) statutory underwriters required to register all distribution of securities [with the SEC].”
(emphasis added).
33
See Section 7, Exhibit 4, infra.
34
The Dec. 20, 2007, Rule 41(a)(2) final judgment in favor of GPMT and Appellant annulled and vitiated
the government’s factual basis for the 04cr1224 (SDNY) indictment’s 18 USC 401(3) criminal contempt
charges. The 04cr1224 and the 22cv10566 2255 district courts lacked Article III jurisdiction over the moot,
annulled, and vitiated GX 1-4, GX 5, GX 7, GX 11, GX 24, and GX 34. The proceeding is moot.
35
See United States v. L-3 Comm’cs EO Tech., Inc., 926 F.3d 11, 18-19 (2d Cir. 2019) (Kearse, Katzmann,
and Pooler) (“it is hornbook law that "a voluntary dismissal without prejudice under Rule 41(a) leaves the
situation as if the action never had been filed," Wright & Miller § 2367, at 559 (emphasis added); see,
e.g., 8 Moore's Federal Practice § 41.34[6][d] (2018) (stipulation for dismissal "without prejudice
terminates the action as if it were never filed" (emphasis added)). This long established principle has been
recognized by this Circuit and most others. See, e.g., A.B. Dick Co. v. Marr, 197 F.2d 498, 502 (2d Cir. 1952)
("voluntary dismissal of a suit leaves the situation so far as procedures therein are concerned the same as
though the suit had never been brought"), cert. denied, 344 U.S. 878, 73 S.Ct. 169, 97 L.Ed. 680 (1952);
Bomer v. Ribicof, 304 F.2d 427, 428 (6th Cir. 1962) (dismissal of an action without prejudice leaves the
situation the same as if the suit had never been brought); In re Piper Aircraft Distribution System Antitrust
Litigation, 551 F.2d 213, 219 (8th Cir. 1977) (same); Beck v. Caterpillar, Inc., 50 F.3d 405, 407 (7th Cir. 1995)
(same); EEOC v. W.H. Braum, Inc., 347 F.3d 1192, 1201 (10th Cir. 2003) (same); In re Matthews, 395 F.3d
477, 480 (4th Cir. 2005) (same); Harvey Specialty & Supply, Inc. v. Anson Flowline Equipment, Inc., 434
F.3d 320, 324 (5th Cir. 2005) (same); City of South Pasadena v. Mineta, 284 F.3d 1154, 1157 (9th Cir. 2002)
(same; "any future lawsuit based on the same claim [is] an entirely new lawsuit" (internal quotation marks
omitted)); Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990) (same; "the page is once again
pristine"). (emphasis added).
Page 37 of 209
IV Ulysses T. Ware, (the “Applicant” or “Appellant”), 28 USC
2253(c)(1)(B) application for a certificate of appealability.
Page 38 of 209
28 USC 2253 Application’s Requested Reliefs.
Applicant moves the criminal proceedings District Courts, 22cv3409 and 22cv10566
(SDNY), for the following jurisdictional “threshold matters” reliefs, to wit:
(i) Request for a jurisdictional status conference and evidentiary hearing.
1. For an Article III, 18 USC 3231, and 28 USC 2255(a) jurisdictional “threshold matter” (a
justiciable, mootness review) before reaching the merits of this moot 28 USC 2253(c)(1)(B)
application for a certificate of appealability to forthwith set this matter down for a Steel
Co., 523 U.S. at 93-95, and Lujan, 504 U.S. 560-61, protocols jurisdictional (i) status
conference, and (ii) jurisdictional evidentiary hearing36 and;
36
Where, on the one hand, the government, the USAO (SDNY), as the plaintiff in the sub judice Criminal
Proceedings has the factual burden of proof and production to “affirmatively establish” that the 2255
district courts currently have jurisdiction over each element of its trial burden of proof with respect to
each charge in the 04cr1224 and 05cr1115 indictments, see Lujan, Id. at 560-61, and read in pari material
with Martin Linen, 430 U.S. at 571-75. However, on the other hand, the government is bound, absolutely
by res judicata and the Double Jeopardy Clause’s absolute finality and prohibition on all fact-finding
regarding 05cr1115 given the USAG’s Nov. 7, 2008, voluntary, unreviewable, Article II appellate political
decision to dismiss with prejudice the government’s cross-appeal, U.S. v. Ware, 07-5670cr (XAP)(2d Cir.),
Gov-I. (see Section 7, Exhibit 10, infra). Executive Branch, Article II, judicial, and equitable estoppel, res
judicata, and the law of the case in favor of Applicant in all subsequent proceedings between Applicant
and the United States and/or its privies, see Federated Dept. Stores, 452 U.S. at 398, 401-02.
The USAG’s Nov. 7, 2008, (see Section 7, Exhibit 10, infra) actual innocent Article II, voluntary, appellate
political decision which dismissed with prejudice the government’s cross-appeal, U.S. v. Ware, 07-5670cr
(XAP) (2d Cir.), Gov-I was and is an Executive Branch Article II acquittal on the merits of all charges in
U.S. v. Ware, 05cr1115 (SDNY), which triggered the Martin Linen Double Jeopardy Clause’s absolute
finality, res judicata, and strictly prohibits the sub judice Criminal Proceedings district courts from conduct
any and all jurisdictional and other fact-finding apropos 05cr1115 or the moot 2255 proceeding. The
jurisdictional and all other matters, 28 USC 2253 COA application, and appellate jurisdiction, are moot in
the 05cr1115 district court and the U.S. Court of Appeals for the Second Circuit, respectively. Steel Co., Id.
at 94-95. Cf., Section 7, Exhibit 4, Dec. 20, 2007, Rule 41(a)(2) voluntary dismissal with prejudice of the
Page 39 of 209
(ii) Request for the government to show cause why the Criminal Proceedings shall not be
dismissed with prejudice, nunc pro tunc, for egregious and insidious Brady violation prosecutorial
misconduct given the EOUSA’s March 20, 2023, In re Ware, 000907, FOIA response, Section 7,
Exhibit 1, infra..
2. order the United States, the plaintiff in the United States v. Ware, 04cr1224 (SDNY) and
United States v. Ware, 05cr1115 (SDNY), sub judice criminal proceedings, (the “Criminal
Proceedings”),37 to show cause why the Criminal Proceedings shall not be dismissed with
prejudice, nunc pro tunc,38 all judgments of conviction, sentence, supervised relief,
02cv2219 (SDNY) lawsuit’s res judicata effect on 04cr1224 (SDNY), the 22cv10566 (SDNY) 2255, and 09-
0851 (2d Cir.) moot proceedings.
37
A 2255 proceeding is a continuation (“a further step”) in the underlying 04cr1224 and 05cr1115
“criminal cases” which requires the sentencing district courts to have jurisdiction over the Criminal
Proceedings’ subject matter and charges in the respective indictments at all stages of the proceedings and
also requires the government, the plaintiff, to “affirmatively establish” its Article III and 28 USC 547
standing to appear and prosecute the Criminal Proceedings at all stages of the Criminal Proceedings—
that is, whether or not the subject matter is or was initially and currently justiciable, i.e., not moot. Baker
v. Carr, 362 U.S. 186, 199-200 (1962).
38
The sentencing district courts pursuant to the Steel Co. and Lujan protocols are required to establish
whether or not there is “concrete adverseness” between Applicant and the United States regarding all
elements of the government’s trial burden of proof with respect to the charges in the sub judice Criminal
Proceedings’ indictment. See Flast v. Cohen, 392 U.S. 83, 95 n. 12 and n. 13 (1968) (concrete adverseness
or standing do not exist between the parties where the subject matter has been made moot by the
subsequent action(s), or inaction(s) of the parties); cf., Allen v. Wright, 468 U.S. 437 (1983) (rev’d USCA
held standing was lacking to redress the alleged injury of the plaintiff). As applied to the sub judice Criminal
Proceedings, given the plaintiff’s Criminal Proceedings’ indictments failed to charge an 18 USC 3231
“offense” the alleged conduct is not redressable by an Article III federal court, and therefore the Criminal
Proceedings as a matter of law and fact are moot. E.g., see California v. San Pablo, 149 U.S. 308 (1893)
(the proceedings went moot by “subsequent development” in the proceedings). See subsequent
developments, Section 7, Exhibit 3, and Exhibit 4, infra: (i) FINRA’s May 17, 2021, certification that each
02cv2219 (SDNY) plaintiff is an unregistered broker-dealer, and accordingly, the 04cr1224 (SDNY)
indictment failed to charge an 18 USC 401(3) criminal contempt offense—the indictment is null and void
ab initio; and (ii) the 02cv2219 (SDNY) plaintiffs’ Dec. 20, 2007, Dkt. 90, voluntary Fed. R. Civ. P. 41(a)(2)
dismissal with prejudice of the 02cv2219 (SDNY) lawsuit, which vitiated and annulled the government’s
04cr1224 trial evidence, GX 1-4, GX 5, GX 7, GX 11, GX 24, and GX 34; and (iii) the USAG’s voluntary Nov.
7, 2008, Article II, actual innocent, appellate political decision to dismiss with prejudice the government’s
Page 40 of 209
assessment, or other penalties reversed, vacated, set aside, and annulled; and all records
of the arrest, prosecution, conviction, and sentence of Applicant be expunged from all
databases, records, or forms of documents, in whatever format for lack of,
I. the district courts’ 28 USC 2255(a), 18 USC 3231, and Article III subject matter
jurisdiction over and;
cross-appeal U.S. v. Ware, 07-5670cr (XAP)(2d Cir.), Gov-I, which the USAG on Nov. 7, 2008, triggered the
absolute finality of the Double Jeopardy Clause apropos the 05cr1115 proceedings in favor of Applicant,
triggers Article II, judicial, and equitable estoppel apropos 05cr1115 in favor of Applicant, and ipso facto
as a matter of law and fact acquitted Applicant of all issues, facts, and claims that depended in whole,
and/or in part which were actually and/or necessarily resolved by the USAG’s Article II, actual innocent,
appellate political decision to dismiss with prejudice Gov-I, and consequently, U.S. v. Ware, 05cr1115
(SDNY). See Federated Dept. Stores v. Moitie, 452 U.S. 394, 398, 401-02 (1981) (res judicata binding,
without exception, on all courts, the parties, and their privies in all subsequent proceedings between the
parties; and all issues, facts, and claims actually or necessarily resolved by final judgment, “forever
settled” between the parties) (emphasis added).
Page 41 of 209
II. the government’s—the Office of the United States Attorney (SDNY), lack of
Article III and 28 USC 54739 standing40 to proceed in the Criminal Proceedings.41
39
Except as otherwise provided by law, each United States attorney, within his district, shall—
(1) prosecute for all offenses against the United States;
(2) prosecute or defend, for the Government, all civil actions, suits or proceedings in which the United
States is concerned.
Therefore, before the USAO (SDNY) has section 547(1), (2) standing to “prosecute” or “defend” first, as a
threshold matter, there must be a finding that the government’s indictment in 04cr1224 and 05cr1115
charged an “offense” that violated the laws of the United States; else, the district court, 18 USC 3231, and
the government lack jurisdiction to “prosecute” the charges; and furthermore, section 547(2) requires the
government to be “concerned” to prosecute or defend a 2255 motion—that is, the government has no
lawful “concern[]” apropos a moot, expired by operation of law federal sentence for the purpose of
“defend[ing]” a moot 2255 motion. Accordingly, first, before the government can appear in 22cv3409 and
22cv10566, purported 2255 motions, the government first, as a threshold matter, must establish before it
is authorized to “defend” that it has an extant (live) “concern” apropos the moot, expired by operation of
law sentences entered in 04cr1224 and 05cr1115. The government has no lawful section 547(2)
“concern[]” for the purpose of 2255 with respect to an expired by operation of law federal sentence—that
is, an expired sentence for the purpose of 2255 does not present a live, Article III justiciable controversy
over which the district court can exercise 2255 and Article III jurisdiction. The matter is moot.
40
Cf., 22cv3409, Dkt. 126, at 12-13 (Ramos, J.) noting “the United States Attorney [SDNY], as the prosecutor
in [the sub judice Criminal Proceedings], is the most appropriate one to defend the judgment and oppose
the [2255)a] motion.” (emphasis added). Which expressly requires, see Steel Co., 523 U.S. at 93-95, and
Lujan, 504 U.S. at 560-61, the USAO to “first” show cause as a jurisdictional “threshold matter” why it
currently has Article III and 28 USC 547 standing, and the district court has jurisdiction over the subject
matter of the sub judice Criminal Proceedings’ claims to “defend the judgment and oppose, and adjudicate
the merits of the [2255(a)] motion.”
41
See Section 7, Exhibit 2, infra, Rules which govern 2255 proceedings, Rule 1 (Scope), Advisory
Committee’s Notes (“This is possible because a motion under Sec. 2255 is a further step in the movant's
criminal case and not a separate civil action, as appears from the legislative history of section 2 of S. 20,
80th Congress, the provisions of which were incorporated by the same Congress in title 28 U.S.C. as Sec.
2255. In reporting S. 20 favorably the Senate Judiciary Committee said (Sen. Rep. 1526, 80th Cong. 2d
Sess., p. 2)”. (emphasis added).
Therefore, if the sub judice Criminal Proceedings’ jurisdiction is moot, the 2255 proceedings jurisdiction is
also moot. Ergo, the district court thus, “as a threshold matter” is required to “affirmatively establish” its
jurisdiction over each element of the government’s trial burden of proof regarding each charge in the
indictment at all stages of the criminal proceedings, i.e., during the purported 2255 continuation of the
sub judice Criminal Proceedings. A legal and factual impossibility given post-trial mooting events. if it is
determined that post-trial proceedings, evidence, orders, judgments, and other events mooted the district
Page 42 of 209
(iii) Enter an order directed to the district court (Ramos, J.) to certify under oath, as an office
of the court, pursuant to 18 USC 401(2), that he has disclosed and produced to Applicant all judicial
public records in the possession of the district court regarding the 04cr1224 (SDNY) and 05cr1115
(SDNY) Criminal Proceedings.
Order the district court (Ramos, J.) to either certify that (i) all judicial public records, and
or Brady evidence in the courts’ possession has been disclosed and produced to Applicant, or (ii)
file a certification that all 28 USC 2255(f)(2) government “impediments” have been removed such
that Applicant had access to all Brady evidence and judicial public records necessary to raise
actual innocent claims, and Applicant, therefore, was not delayed and obstructed by the district
court or the government from filing a timely 2255 motion in compliance with 2255(f)(1).
court’s jurisdiction over any element of the government’s trial burden of proof, see Section 7, Exhibits 1
thru 10, infra, the conviction and sentence is moot, and required to be reversed, vacated, and set aside.
See Steel Co., 523 U.S. at 93-95; cf., the absolute finality of the Double Jeopardy Clause, res judicata, the
law of the case, and Executive Branch Article II political authority estoppel with respect to its prohibition
on further fact-finding regarding elements of the government’s trial burden of proof. United States v.
Martin Linen Supply Co. 430 U.S. 564, 571-75 (1977) (the Double Jeopardy Clause strictly prohibits all
subsequent fact-finding proceedings or processes regarding the government’s trial elements of proof).
Page 43 of 209
Declaration of Ulysses T. Ware42
I Ulysses T. Ware, hereby this 20th day of May 2023, under oath, subject to the penalty of
perjury, having personal knowledge of the facts, make this verified application for a moot 28 USC
2253(c)(1)(B) certificate of appealability, (“COA”), pursuant to 28 USC 1746, and state that the
facts, claims, issues, and other related matters herein are true and current based on my
understanding of the law, the facts, and the proceedings.
A. Ulysses T. Ware is actually and factually innocent of all charges in United States v. Ware,
04cr1224 (SDNY) and United States v. Ware, 05cr1115 (SDNY), the proceedings are null and void
ab initio and moot.
B. Appellant Ulysses T. Ware is not and was not a federal “prisoner” in custody or detention
under an extant federal sentence on Dec. 12, 2022, the date the district court (Ramos, J.)
recharacterized and converted the 22cv3409 (SDNY) actual innocent 2241 habeas corpus petition
to a moot AEDPA 2255(a) motion, see Dkt. 126 (Ramos, J.) order (12.12.2022) (22cv3409 (SDNY)).
C. The district courts and the government deliberately, intentionally, and in bad faith
implemented 2255(f)(2) “impediments” which violated the Constitution and/or the laws of the
United States—to wit, Brady violations (refused to search, disclose, and produce),43 refused to
search, inventory, disclose and/or produce Brady evidence within the “over 15 boxes of materials”
42
The exhibits referenced in Section 3, Statement of Facts, are attached to the 22cv3409 (SDNY) petition,
Dkt. 1.
43
See COA, Section 7, Exhibits 11, 12, and 13, infra.
Page 44 of 209
in the possession of the USAO according to the EOUSA’s March 20, 2023, FOIA response,44 the
theft, removal, suppression, and concealment of judicial public records,45 fabricated and falsified
official docket sheets,46 implemented bogus and manifestly frivolous leave-to-file sanctions to
prevent Applicant from access to actual innocent Brady exculpatory and impeachment
evidence,47 refused to enforce Brady court orders, refused to conduct jurisdictional evidentiary
hearings, refused to process motions and other requests, and generally obstructed, prevented,
and delayed Applicant from access to the courts to have his actual innocent and other claims
adjudicated on the merits, (the “Impediments”), which have not been removed by the district
courts or the government.
Signed this 20th day of May 2023 in Brooklyn, NY

Ulysses T. Ware
_____________________________________
/s/ Ulysses T. Ware
44
See Id., Exhibit 1, infra.
45
See Id., Exhibits 5, 6, and 7, infra. Cf., 18 USC 2071.
46
See Id., Exhibit 7, infra.
47
Note that the 04cr1224 (SDNY) district court, Dkt. 160 (09/11/2017) (Sweet, J.), the 05cr1115 (SDNY)
district court (Pauley, J.), Dkt 222 (11/27/2013), the 02cv2219 (SDNY) district court (McMahon), Dkt. 137
(10/27/2022), the In re Group Management Corp., 03-93031 (BC NDGA) Chapter 11 bankruptcy court,
(Hagenau, C.J.), Dkt. 256 (Oct. 24, 2022), and the 07-5222cr (2d Cir.) court of appeals (Kearse, Sack, Hall)
order (11/15/2010) all imposed on Applicant factually and legally baseless, and manifestly frivolous,
obstructive, abusive, and unconstitutional leave-to-file sanctions, “impediments” designed to delay,
impede, obstruct, hinder, and prevent Applicant from gaining access to the newly discovered Brady
exculpatory and impeachment evidence presented in the 22cv3409 (SDNY) actual innocent 2241 habeas
corpus petition—that is, judicial, actual innocent, statutory cause and prejudice, constitutional, and
obstructive, impediments which meet the requirement of 2255(f)(2) exception to 2255(f)(1) vis-à-vis
2255(e)/2241 read in pari materia with Schlup v. Delo. See 22cv3409 (SDNY), Dkt. 214, at 8(B)—Ramos,
J. again imposing another manifestly frivolous leave-to-file (abuse of the writ) sanction in violation of due
process of law, and Article I, section 9, access to the writ.
Page 45 of 209
1 Preliminary statement.48
Applicant, Ulysses T. Ware, is actually and factually innocent of all charges in United States
v. Ware, 04cr1224 (SDNY) and United States v. Ware, 05cr1115 (SDNY).
The following substantial, actual innocent constitutional claims are “substantial
showings” of the denial of a constitutional right—that is, a fundamental miscarriage of justice,49
committed by the government, the trial judges, and their proxies, surrogates, and alter-egos—an
illegal association-in-fact, a criminal conspiracy to obstruct justice, before, during, and after the
2007 trials in U.S. v. Ware, 04cr1224 (SDNY), (“1224”), and U.S. v. Ware, 05cr1115 (SDNY),
(“1115”). The included actual innocent, constitutional claims satisfy the AEDPA requirements--
while not applicable to the 22cv3409 (SDNY) 2241 actual innocent habeas corpus petition, of 28
USC 2253(c)(1)(B), (c)(2), and (c)(3), and the legal standard in Slack v. McDaniel, 529 U.S. 473,
48
See Montgomery v. Louisiana, 136 S. Ct. 718, 731 (2016) (“A conviction or sentence imposed in violation
of a substantive rule is not just erroneous but contrary to law and, as a result, void. It follows, as a general
principle, that a court has no authority to leave in place a conviction or sentence that violates a substantive
rule, regardless of whether the conviction or sentence became final before the rule was announced.”
(citation omitted)). (emphasis added). Cf., Adar Bays v. GeneSYS ID, Inc., 28 F.4d 379 (2d Cir. 2022) (Gov’t
04cr1224 trial exhibits, GX 1-4, are unlawful debt, criminal usury convertible promissory note investments
which violated NYS Penal Law, section 190.40, the criminal usury law, a class E felony; and therefore, are
null and void ab initio, unenforceable, and implicitly violated 18 USC 1956-57 (money laundering),
1961(6)(B) (unlawful debt collection), and 1962(a-d) (RICO conspiracy)). The conviction and sentence
entered in 04cr1224 is null and void ab initio, and required to be reversed, vacates, set aside, and the
indictment dismissed with prejudice, nunc pro tunc.
49
See Schlup v. Delo, 513 U.S. 298, 299 (1995) (“However, since habeas corpus is, at its core, an equitable
remedy, a court must adjudicate even successive claims when required to do so by the ends of justice,”
the actual innocence of the petitioner). (emphasis added).
Page 46 of 209
484 (2004); Miller-El v. Cockrell, 537 U.S. 322, 338 (2003); and Buck v. David, 580 U.S. 100, 114-
16 (2017) to the extent that the AEDPA applies. Which it does not.50
The district court (Ramos, J.), Dkt. 126 (12.12.22), and Dkt. 213 and Dkt. 214 (03.03.23)51
erred and wrongfully decided the 2241(a) actual innocent habeas corpus matter(s), 22cv3409
and/or 22cv10566, and/or it is “debatable” by reasonable jurists having competence in the law
that he (Ramos, J.) wrongfully decided the actual innocent habeas corpus matters, to wit:52
I. as a matter of law, and matter of fact, and decided the 22cv3409 2241 actual innocent
habeas corpus petition wrongly—Ramos, J., erred as a matter of law on Dec. 12, 2022,
Dkt. 126, order (unconstitutionally and wrongly converted Applicant’s 2241(a) actual
innocent habeas corpus petition to a moot 2255(a) motion, while then knowing that he
and the government had implemented constitutional “impediments” as defined in 28
50
The legislative history of the AEDPA and Supreme Court precedents discussed herein confirmed that it
does not apply to 2241(a) actual innocent habeas corpus claims that collateral attack federal convictions
and not to expired by operation of law and moot federal sentences. See Figure B, infra (Slack v. McDaniel
excerpt).
51
On Dec. 12, 2022, (22cv3409) Dkt. 126, and March 3, 2023, Dkt. 213, and Dkt. 214, no collateral attack
was lawfully authorized apropos 2255(a) with respect to the expired by operation of law moot sentences
entered in the sentencing courts, 04cr1224 and 05cr1115—that is, the sentencing courts lacked Article III
and 18 USC 3231 jurisdiction to conduct moot 2255 proceedings, and lacked jurisdiction to conduct
2241(a) actual innocent habeas corpus proceedings.
52
“After reviewing the relevant history, it is evident that there are two distinct means of securing post-
conviction relief in the federal courts: an application for a writ of habeas corpus (governed by, inter alia,
§§ 2241 and 2254) and a motion to vacate a sentence (governed by § 2255).” Medberry v. Crosby, 351
F.3d 1049, 1058 (11th Cir. 2003). (emphasis added). In Medberry, Id. at 1063 the court of appeals explained
that the proper remedy for the state prisoner was 2254 rather than 2241 because his term of
imprisonment had not yet expired on the filing date of the petition: (“Here, Appellant's incarceration
originated in state court process — a judgment sentencing him to a term of years. The term of
imprisonment ordered by the state court has not yet expired.”) (emphasis added).
Page 47 of 209
USC 2255(f)(2), and violated the laws of the United States, 18 USC 2, 241, 242, 371. 1519,
and 2071, and violated the First Amendment right of access to judicial public records), as
an over act to deny Applicant his First and Fifth Amendments, 2241(a), and Article I
Suspension Clause habeas corpus rights to have a federal district court adjudicate the
merits of the constitutional 2241 actual innocent habeas corpus claims that collaterally
challenge the convictions entered in 04cr1224 and 05cr1115;
II. erred as a matter of fact and law by not (i) serving the respondents and (ii) not conducting
an evidentiary hearing53 to resolve any disputed issues of material fact in the 2241 habeas
corpus petition54;
III. erred as a matter of law and fact by not conducting the Kyles cumulative materiality
assessment55—an egregious error of constitutional procedure whether under 2255 or
53
In the case of U.S. v. Ware, 05cr1115 (SDNY) the U.S. Attorney General announced on November 7,
2008, that the government, and its privies, had abandoned, terminated, and dismissed with prejudice its
U.S. v. Ware, 07-5670cr (XAP) (2d Cir.), Gov-I, cross-appeal, triggering the Double Jeopardy Clause's finality.
This decision means that the applicant cannot be charged again for the same offense. The USAG's decision
was based on the principle of Article II estoppel, meaning that the judicial branch is bound by the executive
branch's final decisions. As a result, all courts' jurisdiction over the matter was terminated, and the
applicant was designated as actually and factually innocent of the charges. This decision has absolute
finality and is protected by res judicata and the law of the case, meaning that the applicant cannot be
subjected to any further legal proceedings related to the charges.
54
Note that Ramos, J. was named in the 22cv3409 2241 actual innocent habeas corpus petition statement
of facts, see Facts, ¶¶ 32, 35, 36, 38, 39, 40, and 41, infra, Section 3; and was also named individually,
personally, and officially as (i) a hostile, adverse, material fact witness regarding SEC v. Honig, et al.,
18cv08175 (SDNY) (Ramos, J.) (Ramos, J. possesses actual innocent, material Brady exculpatory and
impeachment regarding Ari Rabinowitz, LH Financial Services, and Alpha Capital, AG (Anstalt) learned in
the 18cv08175 lawsuit, which Ramos, J. has refused to produce and disclose the Brady evidence in
violation of the Brady doctrine and the Kyles materiality assessment protocol.).
55
See Kyles, 514 U.S. at 441-54: (We reject “[t]he result reached by the Fifth Circuit majority is compatible
with a series of independent materiality evaluations, rather than the cumulative evaluation required
Page 48 of 209
2241, apropos the items of newly discovered Brady evidence presented to the court in
the 22cv3409 (SDNY) actual innocent 2241 habeas corpus petition;
IV. erred as a matter of law and fact and violated the Brady doctrine and the Due Process
Clause by not enforcing the Brady court orders entered in 04cr1224 (Dkt. 32) and
05cr1115 (Dkt. 17);
V. erred and violated the Brady doctrine by not ordering the government to “search”
produce, and disclose the contents of the “over 15 boxes of materials” which “could be”
Brady evidence currently in the possession of the U.S. Attorney (SDNY) confirmed by the
EOUSA’s March 20, 2023, response to In re Ware, 22-000907 FOIA response;56
VI. erred as a matter of law and fact, and violated federal law, 28 USC 455(a), 455(b)(1-5),
the Due Process Clause, the Sixth Amendment right to a fair and impartial judicial officer,
and violated Supreme Court binding precedents, Murchison, Tumey, and Liljeberg, by
refusing to disqualify and recuse himself from the 04cr1224, 05cr1115, 22cv3409, and
22cv10566 judicial proceedings despite knowing that he (Ramos, J.) had been named in
the Statement of Material Facts attached to the 22cv3409 (SDNY) 2241 actual innocent
habeas corpus petition’s Facts, ¶¶32, 35, 36, 38, 39, 40, and 4157—Ramos, J. is prohibited
by law and the Constitution from assessing and passing on his own credibility, veracity,
by Bagley, as the ensuing discussion will show. In this case, disclosure of the suppressed evidence to
competent counsel would have made a different result reasonably probable.”). (emphasis added).
56
See Section 7, Exhibit 1, infra (EOUSA’s March 20, 2023, FOIA response).
57
See Section 3, infra, Facts 1-50.
Page 49 of 209
and motives for obstructing justice, i.e., a “substantial showing” of the denial of a
constitutional right;58 and
VII. erred as a matter of law and fact in its refusal to entertain Applicant’s actual innocent
claims.59
A Threshold Article III, 18 USC 3231, AEDPA 28 USC 2255(a), and 2253 Jurisdictional Matter
Exist and Must First be Resolved before Reaching the Merits of an AEDPA Certificate of
Appealability Remedy given Applicant is not a Federal Prisoner, and is not in custody or
Detention under an Extant Federal Sentence or Detention; (II) whether or not the United
States via the U.S. Attorney (SDNY), or the U.S. Dept. of Justice, is authorized to appear in
05cr1115 given the USAG’s Nov. 7, 2008, 18 USC 3742(a), and Article II dismissal with
prejudice of U.S. v. Ware, 07-5670cr (XAP), Gov-I, the government’s “cross-appeal,” and (III)
whether or not the United States is authorized to appear in U.S. v. Ware, 04cr1224 (SDNY)
given the plaintiffs’ voluntary Dec. 20, 2007, Fed. R. Civ. P. 41(a)(2) dismissal with prejudice
of the 02cv2219 (SDNY) lawsuit, and the consequential annulment and vitiation of the
government’s GX 1-4, GX 5, GX 7, GX 11, GX 24, and GX 34, 04cr1224 trial evidence?60
58
See 22cv3409 (SDNY), Dkt. 139. Applicant was unable to find one single decision by the Supreme Court
or U.S. Court of Appeals decision which affirmed a federal judge’s decision—22cv3409 (SDNY), Dkt. 126,
Order (Ramos, J.), to not recuse and disqualify themselves in the pending matter where the district judge
(Ramos, J.) was named in the statement of facts, named as a hostile, adverse, material fact witness, named
as an adverse party-respondent, and named as an unindicted coconspirator in the judicial proceedings
then pending before the district judge (Ramos, J.): indisputably a violation of the Code of Conduct for
Federal Judges, 28 USC 455(a), 455(b)(1-5), and the Constitution’s Due Process Clause to suppress and
conceal the judge’s (Ramos, J.) theft of judicial public records, a violation of federal law, 18 USC 2, 241,
242, 371, 1519, and 2071, associated with the alleged Sept. 2006, U.S. v. Ware, 05cr1115 (SDNY) Rule 11
proceedings which involved a person the government claimed, without any proof in the record, was
“Jeremy Jones,” the government’s “principal witness” in 05cr1115.
59
See Bousley v. United States, 523 U.S. 614, 623 (1998), “The District Court failed to address petitioner's
actual innocence [claims] …. Accordingly, we believe it appropriate to remand this case to permit
petitioner to attempt to make a showing of actual innocence.” (emphasis added). Bousley was decided in
the context of a Rule 11 guilty plea. The Court, nevertheless, decided even with a Rule 11 plea the district
court was required to review and adjudicate actual innocent claims.
60
See United States Attorneys Manual, Section 9-37.000, infra (policy and procedures for the U.S.
Attorneys regarding a federal prisoner’s 28 USC 2255 motion in the sentencing district court). Section 9-
Page 50 of 209
A “threshold jurisdictional matter”61 currently exists which the sentencing district courts
(04cr1224 and 05cr1115) must “first” resolve before reaching the merits of this moot
2253(c)(1)(B) COA application, see Steel Co., 523 U.S. at 92-95 (a federal court “first” must
“affirmatively establish” its jurisdiction “as a threshold matter … before reaching the merits of
the claims before the court ….”) whether or not the district court and/or the Court of Appeals
have lawful Article III and appellate jurisdiction, respectively, apropos 28 USC 2255(a) and/or
2253(c)(1)(B) AEDPA requirements, the holding in Slack, 529 U.S. at 483-84, and procedural
remedies to lawfully adjudicate any AEDPA 28 USC 2255 or 2253 matters given the district court,
Dkt. 126, Dec. 12, 2022, (Ramos, J.), order, found as fact, which was not appealed by the
government,62 that Applicant Ulysses T. Ware was not on Dec. 12, 202263 then:
37.000 provides authority the USAO (SDNY) is not authorized to appear in the sentencing district courts
and offer any opposition with respect to moot federal sentences—ergo, a live Article III redressable
controversy does not exist with respect to moot federal sentences apropos 2255(a) proceedings, pursuant
to the District Court (SDNY) and DOJ’s Rules of Ethics and Professional Conduct Rules 3.3, 3.4, 8.4, and
duty of complete candor to the tribunals.
61
See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (“[E]very federal appellate
court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower
courts in a cause under review ….’” (quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934))). (emphasis
added).
62
The AEDPA, Article III, and 2255(a) jurisdictional matter is res judicata and collateral estoppel against
the government and the courts in all further proceedings [the pending FTCA petitions filed with the DOJ’s
Civil Tort Section and the Administrative Office of the U.S. Courts, and the imminent FTCA, RICO, 18 USC
1961(6)(B), and 42 USC 1985(2), 1985(3) lawsuits seeking the sum certain damages of $2.225 billion]
between the parties and their privies, see Federated Dept. Stores, 452 U.S. at 398, 401-02 (res judicata is
binding “absolutely without exception” on all courts, the parties, and their privies in all subsequent
proceedings between the parties; and all issues, facts, or claims resolved, actually or necessarily by res
judicata are “forever settled between the parties). (emphasis added).
63
On Dec. 12, 2022, the 22cv3409 (SDNY) 2241(a) habeas corpus district court’s, Ramos, J., Dkt. 126, order,
purported conversion of the 22cv3409 (SDNY) actual innocent 2241(a) habeas corpus petition to a moot,
Page 51 of 209
i. a “federal prisoner,”64
ii. then in “custody or detention,”
iii. then in custody under an extant “sentence” of the 04cr1224 and/or 05cr1115 sentencing
federal courts65;
iv. given the USAG’s Nov. 7, 2008, voluntary, actual innocent, unreviewable Article II
appellate political decision to terminate, abandon, and dismiss with prejudice the
government’s U.S. v. Ware, 07-5670cr (XAP)(2d Cir.), Gov-I cross-appeal66—which on Nov.
and ultra vires 2255(a) motion was untimely, and moot—2255(a) was “ineffective” and “inadequate” to
test the legality of expired by operation of law moot sentences, the 2255(a) moot subject matter; and
therefore, ipso facto, Applicant’s only available judicial remedy is the 22cv3409 (SDNY) 2241(a) habeas
corpus petition to provide a Due Process Clause “meaningful opportunity” to present to a federal court
his actual innocent habeas corpus claims for judicial review.
64
Cf., Medberry v. Crosby, 351 F.3d 1049, 1058-59 (11th Cir. 2003) (“Take first the narrower of the two
remedies: the §2255 motion to vacate a federal prisoner's sentence. Section 2255 permits federal
prisoners under sentence to move to vacate their sentences only if: (1) "the sentence was imposed in
violation of the Constitution or laws of the United States;" (2) "the court was without jurisdiction to impose
such sentence;" (3) "the sentence was in excess of the maximum authorized by law;" or (4) the sentence
is "otherwise subject to collateral attack." (emphasis added).
65
See the decision in Slack v. McDaniel, 529 U.S. 473 (2004) (Kennedy, J.) a United States Supreme
Court case in which the Court held that under the Antiterrorism and Effective Death Penalty Act of 1996,
(AEDPA) a certificate of appealability must be issued by a circuit Justice of judge before an appeal can
proceed. The certificate of appealability (COA) may only be issued if the applicant "has made a substantial
showing of the denial of a constitutional right."
66
On Nov. 7, 2008, the USAG notified the U.S. Court of Appeals for the Second Circuit in the government’s
appeal brief on page 2* filed in U.S. v. Ware, 07-5222cr on behalf of the United States and its privies, the
government, the Executive Branch, had decided to abandon and dismiss with prejudice its “cross-appeal”
filed in U.S. v. Ware, 07-5670cr (XAP), Gov-I.
The USAG on Nov. 7, 2008, triggered the Double Jeopardy Clause’s absolute finality with respect to U.S.
v. Ware, 05cr1115 (SDNY) and 07-5222cr (2d Cir.), Ware-I, proceedings, triggered Article II estoppel,
equitable and judicial estoppel, terminated, abandoned, and dismissed with prejudice the government’s
cross-appeal, U.S. v. Ware, 07-5670cr (XAP), Gov-I, and expressly terminated all courts’ jurisdiction over
the subject matter of the 05cr1115 proceedings actually and/or necessarily resolved by the USAG’s
Page 52 of 209
7, 2008, terminated as a matter of law and fact the government’s and the federal
sentencing court (05cr1115) and state courts Article III, 18 USC 3231, and 2255(a)67
jurisdiction over all issues, facts, and claims actually and/or necessarily resolved by the
voluntary, actual innocent Article II appellate political decision ratified by the Court of Appeals’ final
judgment entered in Gov-I and 05cr1115 on August 18, 2009—that is, the USAG’s actual innocent Article
II appellate political decision, and all issues, facts, and claims actually and/or necessarily resolved by the
Nov. 7, 2008, actual innocent Article II appellate political decision are not subject to any subsequent
Article III judicial review via a moot 2253 COA (vis-à-vis 07-5222cr (2d Cir.)) or 2255 proceeding in the
05cr1115 sentencing court, and are protected by the absolute finality of Double Jeopardy, res judicata,
and the law of the case. See Federated Dept. Stores, 452 U.S. at 398, 401-02.
As a matter of law and fact Applicant, Ulysses T. Ware, was irrevocably designated on Nov. 7, 2008, by the
USAG on behalf of the government, and its privies, proxies, surrogates, and alter-egos as (i) the prevailing
party apropos Gov-I, and U.S. v. Ware, 05cr1115 (SDNY), and (ii) designated pursuant to Executive Branch
Article II political authority as actually and factually innocent of all charges that depended in whole and/or
in part on any issues, facts, or claims actually and/or necessarily resolved by (1) the USAG’s Nov. 7, 2008,
actual innocent Article II appellate political decision regarding Gov-I, and (2) the Court of Appeals August
18, 2009, final judgment entered in Gov-I and also entered in 05cr1115 (SDNY), see Dkt. 113, (mandate
USCA) which ratified the USAG’s Nov. 7, 2008, actual innocent, Article II appellate political decision.
67
Jurisdictional “threshold issues” currently exist: (1) whether or not the government currently has
standing to prosecute—has an interest, in moot expired by operation of law sentences? No.
(2) Whether or not the sentencing district courts have Article III and 2255(a) jurisdiction over moot,
expired by operation of law sentences? No.
(3) Where the government as the plaintiffs in the sub judice criminal proceedings has the burden of proof
and production whether or not the 04cr1224 and 05cr1115 sentencing courts have jurisdiction over each
element of the alleged “offenses” given the rulings, orders, and judgments entered in post-trial
proceedings, and subsequent judicial rulings, e.g., see Adar Bays v. GeneSYS ID, Inc., 28 F.4d 379 (2d Cir.
2022) (Gov’t 04cr1224 trial evidence GX 1-4 and GX 5 are null and void ab initio, unenforceable,
constituted violations of NYS Penal Law, section 190.40, the criminal usury law, a class E felony); see SEC
Release 33-7190 n. 17 (1995) (“Section 2(a)(11) statutory underwriters [the 02cv2219 (SDNY) lawsuit
plaintiffs are] required to register all distribution of securities.”) (emphasis added); see FINRA’s May 17,
2021, certification of unregistered broker-dealer status for each 02cv2219 (SDNY) lawsuit plaintiff? No.
Page 53 of 209
USAG’s unreviewable Article II appellate political decision apropos U.S. v. Ware, 05cr1115
(SDNY) proceedings;68 and
v. given the 02cv2219 (SDNY) plaintiffs’ Dec. 20, 2007, Dkt. 90, voluntary, after the statute
of limitation had run on all claims in the 02cv2219 lawsuit, Fed. R. Civ. P. 41(a)(2) dismissal
with prejudice of the 02cv2219 (SDNY) and 04cr1224 (SDNY) proceedings.
Before reaching the merits of the Applicant’s COA claims, see Steel Co., 523 U.S. at 93-95
(a federal court “first” as “a threshold matter” is required to “affirmative establish” its
jurisdiction—the federal court is lawfully authorized to proceed no further, over each claim
before reaching the merits of the [purported COA] claims)—which the 22cv3409 district court
presumed the AEDPA applies, which it does not, the district court, and the Court of Appeals “first”
must “affirmatively resolve” the Article III, 2255(a), 2253, and AEDPA jurisdictional issues.69
68
See the Confiscation Cases, 74 U.S. 454, 458-59 (1868) (“Whether tested, therefore, by the
requirements of the Judiciary Act, or by the usage of the government, or by the decisions of this court, it
is clear that all such suits, so far as the interests of the United States are concerned, are subject to the
direction, and within the control of, the Attorney-General.”).
69
The jurisdictional issues the courts “first” must decide turn on the newly discovered evidence, and post-
trial rulings made in the sentencing district courts, to wit: (i) the Dec. 20, 2007, Dkt. 90, voluntary Rule
41(a)(2) superseding final judgment which dismissed 02cv2219 (SDNY) and 04cr1224 with prejudice; (ii)
the USAG’s Nov. 7, 2008, voluntary, actual innocent, Article II appellate political decision that dismissed
with prejudice the government’s U.S. v. Ware, 07-5670cr (XAP) (2d Cir.), Gov-I, cross-appeal—which
dismissed with prejudice U.S. v. Ware, 05cr1115 (SDNY); and ipso facto terminated the 05cr1115 and
04cr1224 sentencing courts’ Article III, 18 USC 3231, and 2255(a) jurisdiction to conduct moot 2255
proceedings. Notwithstanding the fact the government, the plaintiff in the sub judice sentencing courts’
proceedings (04cr1224 and 05cr1115), has the burden of proof and production to “affirmatively establish”
the courts’ jurisdiction and its 28 USC 547 standing apropos the moot 2255 proceedings, see Lujan, 504
U.S. at 560-61 (the plaintiff has the burden of proof and production to affirmatively establish its standing
to invoke the jurisdiction of a federal court—that is, which is a legal and factual impossibility (i) in regard
to 05cr1115 given the USAG’s Nov. 7, 2008, actual innocent Article II appellate political decision which
dismissed with prejudice the gov’t cross-appeal U.S. v. Ware, 07-5670cr (XAP), Gov-I); and (ii) a legal and
Page 54 of 209
Figure A—U.S. Attorney’s Manual section 9-37.000 (2255 and 2254 prisoner procedure).
The U.S. Attorneys Manual, Section 9-37.000 gives instruction to the USAO regarding "federal
prisoners" procedural remedies in the federal sentencing court.
factual impossibility regarding 04cr1224 given FINRA’s May 17, 2021, certification of unregistered broker-
dealer status for each 02cv2219 (SDNY) lawsuit plaintiff, and given the Dec. 20, 2007, voluntary Rule
41(a)(2) dismissal with prejudice of the 02cv2219 (SDNY) after the statute of limitation had run on all
claims in the lawsuit.
Page 55 of 209
Figure B—Slack v. McDaniel excerpt.
Slack v. McDaniel, 529 U.S. 473 (2000) excerpt regarding the AEDPA’s procedural requirement
with respect to prisoners’ 2254 habeas corpus or 2255 motions in the federal courts which was
“Congress’ intent to regulate “prisoner” filings according to the legislative history of the Act.
Figure B: Slack v. McDaniel

Page 56 of 209
2 Memorandum of Law
A Legal Standard for the Granting of a Certificate of Appealability Pursuant to 28 USC

2253(c)(1)(A) for a prisoner in state or 2253(c)(1)(B) in federal custody under an extant
sentence.70
Introduction: Opening statement.
This memorandum is the prevailing legal authority required for a federal court of appeals
pursuant to AEDPA requirements to invoke its appellate and Article III subject matter jurisdiction
to conduct lawful appellate judicial review of the claims of a “prisoner” in “custody” regarding a
2254 habeas corpus petition or 2255 motion filed in a federal district court. Applicant has
conducted an exhausted research of all online legal databases and has not been able to find not
one single case, ever, where the Supreme Court has authorized AEDPA requirements and
procedural remedies—that is, the 28 USC 2253 certificate of appealability, for non-prisoners then
not in custody, under an extant sentence (i.e., a live Article III controversy that is redressable via
70
An "extant sentence" for the purpose of 28 USC 2255(a) is a federal sentence that is currently in effect
and has not been fully served or otherwise set aside or corrected. In other words, it refers to a sentence
that is still being served by the petitioner and has not expired or been fully completed. AEDPA authorizes
a prisoner to file a motion under 28 USC 2255(a) to challenge an extant sentence if they believe their
sentence was imposed in violation of the Constitution or laws of the United States, or that the court lacked
jurisdiction to impose the sentence, or that the sentence was otherwise subject to collateral attack. Which
implies that one cannot be actually innocent of a noncapital federal sentence, therefore, accordingly,
2255(a) is both “ineffective” and/or “inadequate” regarding (i) expired federal sentences or (ii) actual
innocent claims regarding convictions.
Page 57 of 209
the sentencing district court), in the federal or state prisons in the United States. No one single
case!71
Therefore, accordingly, the district courts (22cv3409 and 22cv10566) (Ramos, J.) erred as
a matter of law and fact when they unconstitutionally imposed an unauthorized and illegal AEDPA
procedural requirement, (i) the Dec. 12, 2022, Dkt. 126, Order, (Ramos, J.) purporting to convert
Applicant them pending Ware v. USA, Garland, Ramos, & Taylor-Swain, 28 USC 2241(a) actual
innocent habeas corpus petition, 22cv3409 (SDNY), which challenged the convictions entered in
71
On Dec. 12, 2022, Dkt. 126, order (Ramos, J.) the district court found as fact that Applicant was then on
Dec. 12, 2022, (i) not under an extant federal sentence, (ii) not in detention, (iii) not in custody, and (iv)
not a federal prisoner physically incarcerated or detained in a U.S. Bureau of Prisons federal prison
anywhere in the world. The district court found as fact, “Ware currently reside in Brooklyn, NY” which
Applicant’s federal prisoner status was not appealed by the United States Attorney (SDNY).
Accordingly, the issue whether or not AEDPA standards applied to Applicant’s March 21, 2022, 28 USC
2241(a) actual innocent habeas corpus petition, 22cv3409 (SDNY), is controlled by collateral estoppel and
res judicata. As a matter of law and fact AEDPA does not apply to the 22cv3409 (SDNY) 2241(a) actual
innocent habeas corpus petition. The district court (Ramos, J.) erred as a matter of law, and erred as a
matter of fact regarding Applicant’s “prisoner” status.
The government, the district court, and the Court of Appeals are (1) precluded and prohibited from any
argument, contention, suggestion, or finding, respectively, that AEDPA gatekeeping requirements and
procedures apply to Applicant’s 22cv3409 (SDNY) 2241 actual innocent habeas corpus petition, (2) and
the government as the plaintiff in the sub judice criminal proceedings, and the alleged adverse party-
respondent in the 2241 actual innocent habeas corpus petition pursuant—the government is not
“adverse” with respect to the moot, nonjusticiable subject matter of the 04cr1224 and 05cr1115 charges,
to the Court’s decision in Lujan, 504 U.S. 560-61, 67 (the plaintiff [the government herein regarding
04cr1224 and 05cr1115] has the burden of proof and production to “affirmative establish” (i) a “concrete
injury in fact” caused by the conduct of the defendant—that is, to establish an 18 USC 3231 “offense” was
charged in the 04cr1224 indictment and 05cr1115 indictment given the newly discovered actual innocent
Brady exculpatory and impeachment evidence annulled, vitiated, and abrogated all probable cause for
the purported “offense” charged in the indictments); and (ii) the decision in Steel Co., 523 U.S. at 92-95
(the jurisdiction of a federal court is a “threshold issue” which every federal court, sua sponte, has an
unwaivable duty whether or not raised by the parties to “affirmatively confirm” its jurisdiction over the
claims subject matter before it is authorized to reach the merits of the claims before it ….”). (emphasis
added).
Page 58 of 209
U.S. v. Ware, 04cr1224 (SDNY) and U.S. v. Ware, 05cr1115 (SDNY), and (ii) the March 03, 2023,
Dkt. 213, and Dkt. 214 Orders (Ramos, J.) purporting to require Applicant to file for a moot AEDPA
28 USC 2253 certificate of appealability.
Legal Standard for Certificate of Appealability.
The AEDPA via 28 USC 2253(c)(1)(B) sets forth the legal standard for a certificate of
appealability (COA) to issue in federal 2255 cases. A COA is a prerequisite for an appeal of a district
court's denial of a 2255 motion. To obtain a COA, the petitioner, a federal “prisoner” in federal
detention under an extant sentence of the sentencing district court must make a "substantial
showing of the denial of a constitutional right." 28 USC 2253(c)(2). This means that the petitioner
must show that "reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484
(2004).
Supreme Court Precedents.
The Supreme Court has issued several decisions that clarify the legal standard for a COA.
Two such decisions are Slack v. McDaniel and Miller-El v. Cockrell.
In Slack v. McDaniel, the Court held that a COA should be granted when the
prisoner shows that the district court's resolution of the constitutional claims is debatable among
jurists of reason, that a court could resolve the issues differently, or that the questions are
Page 59 of 209
adequate to deserve further consideration. The Court emphasized that a COA does not require a
showing that the appeal will succeed, but only that it is not frivolous.
Page 60 of 209
In Miller-El v. Cockrell, the Court clarified that a COA determination should focus on the
issues raised in the petition, not on the likelihood of success on appeal. The Court emphasized
that a COA should be granted if the petitioner has shown that reasonable jurists could debate
whether the petition should have been resolved differently.
Buck v. Davis is another important Supreme Court decision on COA. In that case, the Court
held that the district court's failure to consider the defendant's claim of ineffective assistance of
counsel during sentencing violated the defendant's Sixth Amendment rights. The Court
emphasized that a COA should be granted if the petitioner has made a substantial showing of the
denial of a constitutional right, and that this standard should not be applied too strictly.
Requirements for Certificate of Appealability.
To fulfill the requirements for a COA, a prisoner must provide a "reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal." Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). This means that the prisoner must show that the constitutional claim is
not frivolous, and that the issues raised on appeal are not insubstantial.
The petitioner must also demonstrate that the district court's decision was "debatable
amongst reasonable jurists." This means that the issues presented must be open to reasonable
debate.
Conclusion.
In conclusion, a COA is an AEDPA jurisdictional prerequisite for an appeal of a district
court's denial of a 2255 motion for a federal or 2254 petition for a state prisoner then in custody
Page 61 of 209
under a federal or state sentence. To obtain a COA, the petitioner (prisoner) must make a
substantial showing of the denial of a constitutional right, not whether or not the appeal will
ultimately be successful. The AEDPA’s COA is not a jurisdictional prerequisite for the appeal of a
2241 habeas corpus actual innocent proceedings final order. Dkt. 213 and Dkt 214. Note that
02cv2219 (SDNY) Dkt 126, Dec. 12, 2022, is not a final order that denied a 2255 motion, and
therefore is not subject to any alleged AEDPA COA requirement. However, Dkt. 126 is nevertheless
moot as a matter of law—that is, the district court found as fact in the order that on Dec. 12,
2022, Applicant was not, (i) a federal prisoner, (ii) was not in custody under an extant (unexpired
by operation of law) federal sentence, and (iii) Applicant then “resided in Brooklyn, NY.” Judicial
and equitable estoppel, which was not appealed by the government, that the district court
lacked 2255(a) jurisdiction to conduct 2255 proceedings. The matter is res judicata on the
government and the district court. The 2255 proceedings in 22cv3409 and 22cv10566 are moot
(i.e., Dkt. 213 and Dkt. 214; and Dkt. 1, 6, and 7, respectively).
B The legal standard for actual innocent, fundamental miscarriage of justice habeas
corpus review.
The Court in Schlup v. Delo, 513 U.S. 298 (1995) reversed the court of appeals which
affirmed the district court’s denial of habeas relief, remanded for an evidentiary hearing, and set
out the legal standard a habeas corpus petitioner must meet to have the merits of their claims
reviewed and adjudicated that are alleged to be procedurally barred—the more likely than not
Page 62 of 209
standard,72 where the petitioner claims actual innocent of the charges, or a fundamental
miscarriage would result by not reviewing the merits of the constitutional violation claims.73
Schlup, Id. at 316, the Court gave the context and the procedural requirements to raise a
claim of actual innocent, fundamental miscarriage of justice, of the charges:
“Schlup, in contrast, accompanies his claim of innocence with an assertion of

constitutional error at trial. For that reason, Schlup's conviction may not be entitled
to the same degree of respect as one, such as Herrera's, that is the product of an error-
free trial. Without any new evidence of innocence, even the existence of a
72
Schlup, Id. at 327, “Carrier requires a petitioner to show that he is “actually innocent.” As used in Carrier,
actual innocence is closely related to the definition set forth by this Court in Sawyer. To satisfy the Carrier
gateway standard, a petitioner must show that it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt” given credible newly discovered or newly
available evidence). (emphasis added).
Given the newly discovered dispositive, actual innocent Brady exculpatory and impeachment evidence
presented in the 22cv3409 (SDNY) 2241 habeas corpus petition, no reasonable juror could have, or would
have voted to convict in 04cr1224 or 05cr1115—e.g., Applicant presented post-trial newly discovered
and/or available exculpatory and impeachment evidence apropos: (i) in 05cr1115 the Government via the
SEC and DOJ in 2003 pleaded an actual innocent, judicial admission-confession in ¶33 (i.e., the government
judicially admitted, and stipulated as a Brady exculpatory, actual innocent fact there was no “artificial”
“inflation” or “pumped up” stock “prices” regarding INZS or SVSY securities) of the Las Vegas 03-0831 (D.
NV) complaint ipso facto pleaded and stipulated the United States out of the federal courts, and acquitted
Applicant of all charges in 05cr1115; (ii) the USAG on Nov. 7, 2008, pursuant to Article II voluntarily
dismissed with prejudice the government’s U.S. v. Ware, 07-5670cr (XAP)(2d Cir.), Gov-I, which acquitted
Applicant of all charges in 05cr1115, and triggered the Double Jeopardy Clause’s absolute finality in favor
of Applicant (Ulysses T. Ware) with respect to the 05cr1115 criminal proceedings; and (iii) in 04cr1224,
Applicant obtained from FINRA on May 17, 2021, a certification that each of the 02cv2219 (SDNY) plaintiffs
were unregistered broker-dealers which acquitted Applicant of all charges in 04cr1224. Applicant is
actually and factually innocent of all charges as a matter of law and fact.
73
Schlup, Id. at 319, applying the more likely than not legal standard to 28 USC 2255 motions (“At the same
time, the Court has adhered to the principle that habeas corpus is, at its core, an equitable remedy. This
Court has consistently relied on the equitable nature of habeas corpus to preclude application of strict
rules of res judicata.”). Thus, for example, in Sanders v. United States, 373 U. S. 1 (1963), this Court held
that a habeas court must adjudicate even a successive habeas claim when required to do so by the “ends
of justice.” Id., at 15–17; see also McCleskey, 499 U. S. at 495. The Sanders Court applied this equitable
exception even to petitions brought under 28 USC 2255 though the language of §2255 contained no
reference to an “ends of justice” inquiry.” (emphasis added).
Page 63 of 209
concededly meritorious constitutional violation is not in itself sufficient to establish
a miscarriage of justice that would allow a habeas court to reach the merits of a barred
claim. However, if a petitioner such as Schlup presents evidence of innocence so strong
that a court cannot have confidence in the outcome of the trial unless the court is
also satisfied that the trial was free of nonharmless constitutional error, the petitioner
should be allowed to pass through the gateway and argue the merits of his
underlying claims.” (emphasis added).
The district court (Ramos, J.), 22cv3409 2241 actual innocent habeas corpus petition,
erred as a matter of law and fact, Dkt 126, Dkt. 213, and Dkt. 214; and Dkt. 1, 6, and 7 (22cv10566)
(orders denying Applicant’s request for an evidentiary hearing, denying 2243 request to serve the
government, denied recusal, and entry of an unconstitutional and bogus purported leave-to-file
(abuse of writ) sanction), refused to conduct a ”plenary” full and fair evidentiary hearing to
resolve disputed factual issues, and assess witness credibility, and accept new evidence of
innocence, and denied Applicant’s constitutional violation claims without reaching the merits of
the constitutional violations, in light of the newly discovered actual innocent, dispositive, Brady
exculpatory and impeachment evidence presented to the district court. A reckless and
irresponsible violation of the Schlup legal standard, Article I, section 9 access to the writ, and the
Due Process Clause.
Discussion and analysis.
Applicant’s March 21, 2022, 2241 actual innocent habeas corpus petition, Dkt. 1, was
transferred from the district court (EDNY), 22cv1531, to the district court (SDNY), 22cv3409
Page 64 of 209
(SDNY), Dkt. 23, on 04/27/22, and filed and docketed as a 28 USC 2241(a) actual innocent habeas
corpus petition, (the “2241 Petition”),74 see 22cv3409 (SDNY) docket report.
The 2241 Petition was filed and docketed in the district court (SDNY), Dkt. 23, with
supporting newly discovered actual innocent, Brady exculpatory, and impeachment evidence
which complied with all requirements of the Schlup legal standard—(i) the presentation of
numerous constitutional trial errors, and (ii) presentment of newly discovered actual innocent,
dispositive Brady exculpatory and impeachment evidence in the possession of the government
which was required to have been produced and disclosed to Applicant “prior to trial” according
to the written commands of the Brady court orders, Dkt. 17 (05cr1115) and Dkt. 32 (04cr1224).
Accordingly, the 22cv3409 district court was required to have served the government with the
2241 petition (see 28 USC 2243), conducted a “plenary” evidentiary hearing,75 and decided the
merits of each of Applicant’s constitutional violation claims. The district court erred and violated
the Schlup standard, erred and violated the Constitution’s Due Process Clause, and erred and
74
The District Clerk (EDNY) charged the $5.00 filing fee, see Dkt. 4, to process the 22cv1531 (EDNY) 2241
actual innocent habeas corpus petition because Applicant was not a federal prisoner then in custody or
detention of the U.S. Bureau of Prisons under a federal sentence on the filing date of the 2241 actual
innocent petition, March 21, 2022.
75
See Townsend v. Sain, 372 U.S. 293, 295-322 (1963) (rev’d and remanded for a “plenary” evidentiary
hearing: held that Townsend's writ of habeas corpus should not have been summarily denied, and that
the lower court should have held a plenary evidentiary hearing to determine the veracity of Townsend's
claims). (emphasis added).
Page 65 of 209
denied Applicant access to the writ, in violation of the Due Process Clause, and Article I, section
9.76
The leave-to-file (abuse of writ process) sanction is null and void ab initio.77
The Court in Sanders v. United States, 373 U.S. 1, 11 (1963) citing to Price v. Johnson, 334
U.S. 266, 292 (1947) noted and explained “an important procedural question with regard to
abuse of writ remedy as justification for denial of a hearing [on a prisoner’s 2255 motion],
namely, that the burden is on the Government to plead abuse of the writ.”78
"[I]f the Government chooses not to deny the allegations of knowing use of perjured
testimony or to question its sufficiency, and desires instead to claim that the prisoner
has abused the writ of habeas corpus, it rests with the Government to make that claim
with clarity and particularity in its return to the order to show cause." (emphasis added).
76
See Sanders, 373 U.S. at 17: “No matter how many prior applications for [2255] federal collateral relief
a prisoner has made, the [abuse of writ] principle elaborated in Subpart A, supra, cannot apply if a
different ground is presented by the new application. So too, it cannot apply if the same ground was earlier
presented but not adjudicated on the merits. In either case, full consideration of the merits of the new
application can be avoided only if there has been an abuse of the writ or motion remedy; and this the
Government has the burden of pleading.” (emphasis added). Id. at 19-20, “In this case, the Court should
have granted a hearing on the second [2255] application, because the first application was not
adjudicated on the merits and the facts on which the second application was predicated were outside the
record. On remand, a hearing will be required[.]” Id. (emphasis added).
77
See 22cv3409 (SDNY), 22cv10566 (SDNY) Dkt. 214 at 8(B), April 3, 2023 (Ramos, J.), order. Cf., Sanders,
373 U.S. at 17.
78
The 22cv3409 (SDNY) district court, Ramos, J., erred as a matter of law, violated the Due Process Clause,
and decided the issue wrongly—Ramos, J. refused to enter the required show cause order (28USC 2243),
refused to serve the government, and refused to order the government to respond to the actual innocent
constitutional violations claims presented in the 2241 petition based on newly discovered actual innocent,
dispositive Brady exculpatory and impeachment evidence suppressed and concealed by the district court
(Ramos, J., Pauley, J., Sand, J., and Sweet, J.), and the government Andre Damian Williams, Jr., and USAG
Merrick B. Garland)—cf., March 20, 2023, In re Ware, 000907 EOUSA FOIA response which confessed the
USAO (SDNY) has “over 15 boxes of materials” which have not been searched that “could contain” Brady
evidence. A fundamental miscarriage of justice, and an egregious constitutional Brady violation.
Accordingly, the government waived any abuse of writ affirmative defense or objection.
Page 66 of 209
The Court reasoned that it would be unfair to compel the habeas applicant, typically
unlearned in the law and unable to procure legal assistance in drafting his application, to plead
an elaborate negative. Id.79 The district court (SDNY), Ramos, J., Dkt. 126, Dkt. 213, and Dkt. 214,
erred as a matter of law, see Dkt. 214 at 8(B), by sua sponte, unsupported by fact, and
erroneously found that Applicant abused the writ process; and, moreover, in the egregious and
insidious violation of the Due Process Clause imposed a null and void ab initio “leave-to-file
sanction” without (i) the government filing an oppositional response to the actual innocent
claims in the 2241 Petition, and (ii) without the government complying with the rule in Sanders,
Id. at 11, supra, (“it rests with the Government to make that [abuse of writ] claim with clarity
and particularity in its return to the order to show cause”).
According to the record of the 22cv3409 2241 habeas corpus proceeding the government
was never served with the 2241 Petition, never filed any response to the2241 Petition’s actual
innocent claims, and did not make or plead any claim of abuse of the writ process. Therefore,
accordingly, the purported “leave-to-file” (abuse of writ) sanction imposed by the district court
(Ramos, J.) is null and void ab initio and moot.
79
See the 22cv3409 (SDNY) district court’s April 3, 2023, Dkt. 214 order at 8(B), that imposed a purported
“leave-to-file” abuse of writ sanction, without first holding a due process evidentiary hearing, or requiring
the government to plead in specificity and particularity the abuse of writ regarding Applicant’s actual
innocent, constitutional violation claims. The district court erred as a matter of law, usurped the obligation
of the government, personally inserted itself into the proceedings as a biased, partial, self-serving
prosecutor, adverse-party opponent, and imposed an unconstitutional, null and void ab initio sanction
(abuse of writ) on Applicant for pursuing his Article I, section 9, and 2241 habeas corpus legal rights.
Page 67 of 209
The 2241 habeas corpus district court was required to have conducted a plenary, full and fair
evidentiary hearing on the merits of the constitutional claims.
The Court in Townsend v. Sain, 372 U.S. 293 (1963) held that a habeas district court was
required to conduct a “plenary” full and fair evidentiary hearing to resolved disputed issues of
fact necessary to resolve the constitutional claims in the habeas petition. Id. at 309.
As a matter of law, the 22cv3409 2241 habeas district court was not authorized to resolve
disputed issues of material fact regarding the merits of the constitutional and actual innocent
claims solely from the face of the 2241 habeas petition80—that is, disputed factual issues,81 and
the credibility of witnesses can only be resolved via a due process, adversarial, full and fair
plenary evidentiary hearing.82
80
Townsend, 372 U.S. at 309: The Court framed the issue then before it as—"Whether the District Court
was required to hold a[n] [evidentiary] hearing to ascertain the facts which are a necessary predicate to a
decision of the ultimate constitutional question?” (emphasis added). The Court answered in the
affirmative.
In the 22cv3409 2241 habeas corpus petition Applicant raised actual innocent constitutional claims that
sound in law and in fact, e.g., ineffective assistance of counsel is a mixed question of law and fact; Brady
violation is a question of law and fact; the government’s knowing use of perjured testimony, and fabricated
trial and grand jury evidence, etc. are mixed questions of law and fact that cannot be factually resolved by
a cursory view of the face of the 2241 Petition, and accordingly, are required to be resolved in a plenary
evidentiary hearing in the district court. Cf., The law is clear that, in order to be entitled to an evidentiary
hearing, a petitioner need only allege — not prove — reasonably specific, non-conclusory facts that, if
true, would entitle him to relief. Aron v. United States, 291 F.3d 708, 715 n.6 (11th Cir. 2002). (emphasis
added).
81
Id. at 312: “where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary
hearing if the habeas applicant did not receive a full and fair evidentiary hearing … either at the time of
the trial or in a collateral proceeding. In other words, a federal evidentiary hearing is required unless … a
trier of fact has, after a full hearing, reliably found the relevant facts.” (emphasis added).
82
Townsend, Id. at 306: “Despite respondents' [the government’s] concession that a dispute as to these
facts existed, the district judge denied Townsend the opportunity to call witnesses or to produce other
evidence in support of his allegations and dismissed the petition” which was clear error.
Page 68 of 209
Accordingly, the district court (Ramos, J.) erred, wrongly decided the matter, violated the
Due Process Clause, and denied Applicant access to the writ in violation of Article I, section 9—
that is, egregious substantial violations of a significant constitutional right.
Notably, in Murray v. Carrier, 477 U.S. 478 (1986) Justice O’Connor explained the
rationale highlighted below: “ … where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas court may grant the writ even in the
absence of a showing of cause for the procedural default.” Carrier, Id. at 496. (emphasis added).
Conclusion.
The record is clear and not in dispute by the government. The district court erred as a
matter of law, wrongly decided the matter, and denied Applicant full and unobstructed access to
the writ in violation of Article I, section 9, and the Due Process Clause.
The district court’s orders, Dkt. 126, Dkt. 213, and Dkt. 214, must be reversed, vacated,
and set aside; and the 2241 Petition remanded to a new district court, the government served,
ordered to show cause, and a plenary, full and fair evidentiary hearing conducted to resolve all
disputed issues of fact and assess witnesses’ (Edgardo Ramos) credibility, veracity, motive, and
integrity.
Page 69 of 209
C Applicant was authorized on Dec. 12, 2022, Ware v. USA, et al., 22cv3409 (SDNY) to
avail himself of the 28 USC 2241(a) remedy authorized by 2255(e) saving clause and/or
2255(f)(2) because the 2255(a) remedy was: (i) unavailable, (ii) ineffective and/or (iii)
inadequate—that is, because Applicant was not a federal prisoner, was not then under a
federal sentence, and the 2255(f)(1) limitation had run on Dec. 12, 2022, the 2255(a)
motion was legally unavailable—(i) “inadequate” or (ii) “ineffective” on Dec. 12, 2022, see
Dkt. 126, order (Ramos, J.) (sua sponte without any notice, or hearing, or request by the
government converted the 22cv3409 (SDNY) 2241 habeas petition to a moot 2255(a)
motion) see 2255(f)(1) read in pari materia with 2255(f)(2), 2241 authorized due to the
Brady constitutional “impediment” created by the egregious prosecutorial misconduct
committed by the EOUSA and the Office of the United States Attorney (SDNY) Brady
violation sanctioned and approved by the United States Department of Justice’s Merrick B.
Garland, et al. had not then nor currently been removed. See Section 7, Exhibit 1, infra
(March 20, 2023, EOUSA’s FOIA response).83
Discussion and analysis.
The district court erred as a matter of law and fact, and wrongly decided the matter by its
unlawful, and unconstitutional Dec. 12, 2022, Dkt. 126, conversion of Applicant’s 2241 actual
innocent habeas corpus petition to a moot 2255(a) motion.84 28 USC 2255(f)(2), is an exception
83
On March 20, 2023, almost one (1) year after Applicant filed the actual innocent 28 USC 2241 habeas
corpus petition, 22cv3409 (SDNY), the Executive Office of the United States Attorney, (EOUSA), responded
to Applicant’s Freedom of Information Act (FOIA) request, In re Ware, 000907, and admitted and
confessed the Office of the United States Attorney (SDNY) had violated the Brady doctrine—a
constitutional “impediment,” by its deliberate, intentional, and bad faith prosecutorial misconduct failure
to search, produce, inventory, and disclose the contents of “over 15 boxes of materials that could contain”
Brady evidence, which triggered 28 USC 2255(f)(2) and 2255(e) authorization to file the 2241 habeas
corpus petition, 22cv3409 (SDNY). Cf., Hill v. United States, 368 U.S. 424, 428 (1962) (a governmentally
caused fundamental defect in the proceedings, the concealment, suppression, and theft of Rule 11
proceedings judicial public records, see Section 7, Exhibits 1, 3, 4, 5, and 6, infra—a complete miscarriage
of justice, is inherent cause and prejudice to permit procedurally barred collateral relief).
84
See Adams v. United States, 155 F.3d 582, 584 n.2 (2d Cir. 1998) (rev’d district court, and remanded)
(2255(f)(1) 1-year limitation is to avoid a miscarriage of justice should be tolled: “Adams's conviction
became final on October 7, 1996, when the Supreme Court refused to review it. His habeas motion would
therefore be untimely under AEDPA unless brought by October 7, 1997. Because the district court's ruling
Page 70 of 209
to the 2255(f)(1) 1-year limitation period which does not begin to run until governmental
interference (an “impediment”) which violated the Constitution “is removed”—that is, see
Section 7, Exhibit 1, infra, the EOUSA’s March 20, 2023, In re Ware, 000907 FOIA response that
“over 15 boxes of materials that could be Brady evidence have not been searched, inventoried,
produced, or disclosed to Applicant by the U.S. Attorney’s Office (SDNY)” (paraphrased) (emphasis
added) is per se statutory cause and prejudice, constitutional obstruction and interference, an
illegal “impediment,” created by the government (USAO-SDNY, EOUSA, and DOJ), that tolled the
2255(f)(1) 1-year limitations period to file a 2255(a) motion until the governmental interference
“is removed.”85 See Franklin v. Keyes, 30 F.4d 634 (7th Cir. 2022); cf., 2255(f)(2): “the date on which
came at a time when Adams still had several months in which to file a § 2255 motion, but had serious
reason to doubt that he could satisfy AEDPA's stringent limitations on successive motions, fairness
demands that the statute of limitations [2255(f)(1)] be tolled to afford Adams an opportunity to file his
first § 2255 motion, provided that he does so promptly.” (emphasis added). Cf., Dkt. 126 n. 8 (Ramos, J.)
order (discussing circuit precedents permitting 2241 habeas corpus petition where “actual innocent”
claims are raised and no other remedy available would raise “serious [Article I, section 9, Suspension
Clause] constitutional questions.”).
85
On Dec. 12, 2022, the 22cv3409 (SDNY) district court (Ramos, J.), Dkt. 126, without notice, and without
conducting a due process evidentiary hearing sua sponte, in violation the Due Process Clause, and in
violation of Article I, section 9, the Suspension Clause, denied Applicant access to the writ by illegally
converting Applicant’s 28 USC 2241 actual innocent habeas corpus petition to a moot 2255(a) motion—
that is, the district court converted Applicant’s 2241 habeas corpus petition to the moot 2255(a) motion,
and then insidiously claimed the 2255(a) motion was not filed as required by 2255(f)(1) within 1-year of
final judgment, and was ultimately “untimely” as the overt act in the conspiracy to obstruct justice, the
illegal plan and scheme, to deny Applicant access to the writ as authorized by 2255(f)(2) read in pari
material with 2255(e) saving clause given the EOUSA’s March 20, 2023, FOIA response, see Section 7,
Exhibit 1—the government on March 20, 2023, admitted and confessed to a Brady constitutional
2255(f)(2) “impediment”—statutory cause and prejudice, which had not been removed on Dec. 12, 2022;
and also see Id. Exhibits 5 and 6, the government’s and the district court (Ramos, J.) deliberate
constitutional concealment, suppression, and theft of judicial public records, a 2255(f)(2) statutory cause
and prejudice “impediment” which has not been removed—that is, the First Amendment obstruction of
justice, and violation of 18 USC 2, 241, 242, 371, 1519, and 2071 (the laws of the United States) which
violated and triggered 28 USC 2255(f)(2) read in pari materia with Schlup v. Delo legal standard authorized
Applicant’s March 21, 2022, 28 USC 2241 actual innocent habeas corpus petition.
Page 71 of 209
the impediment to making a [2255(a)] motion created by governmental action in violation of the
Constitution [Brady violation, Due Process of Law, and the First Amendment’s right of access to
judicial public records] or laws of the United States [18 USC 2, 241, 242, 371, 1519, 2071, and
3500] is removed, if the movant was prevented from making a motion by such governmental
action.”86 (emphasis added).87
28 USC 2255(f)(2) authorized Applicant to file the 22cv3409 (SDNY) 2241 actual innocent habeas
corpus petition predicated on the government’s and the district court’s prosecutorial and judicial
misconduct Brady violations—that is, constitutional “impediments” that had not been removed on
March 21, 2022.88
86
Note that in 22cv3409 (SDNY) Dkt. 126, Dkt. 213, or Dkt. 214, the district court (Ramos, J.) made no
expressed ruling that 2255(a) was effective or adequate to challenge Applicant’s custody or detention as
a “prisoner” because the district court expressly found that Applicant was not a federal prisoner then on
Dec. 12, 2022, in custody under an extant federal sentence. The district court’s Dec. 12, 2022, order which
was not appealed by the government, mooted the district court’s jurisdiction, and the government’s
standing to prosecute 2255 proceedings in the 04cr1224 or 05cr1115 sentencing courts. Therefore, Dkt.
213 and Dkt. 214 both as a matter of law and fact are moot.
87
Note that the 04cr1224 (SDNY) district court, Dkt. 160 (09/11/2017) (Sweet, J.), the 05cr1115 (SDNY)
district court (Pauley, J.), Dkt 222 (11/27/2013), the 02cv2219 (SDNY) district court (McMahon), Dkt. 137
(10/27/2022), the In re Group Management Corp., 03-93031 (BC NDGA) Chapter 11 bankruptcy court,
(Hagenau, C.J.), Dkt. 256 (Oct. 24, 2022), and the 07-5222cr (2d Cir.) court of appeals (Kearse, Sack, Hall)
order (11/15/2010) all imposed on Applicant factually and legally baseless, and manifestly frivolous,
obstructive, abusive, and unconstitutional leave-to-file sanctions, “impediments” designed to delay,
impede, obstruct, hinder, and prevent Applicant from gaining access to the newly discovered Brady
exculpatory and impeachment evidence presented in the 22cv3409 (SDNY) actual innocent 2241 habeas
corpus petition—that is, judicial, actual innocent, statutory cause and prejudice, constitutional, and
obstructive, impediments which meet the requirement of 2255(f)(2) exception to 2255(f)(1) vis-à-vis
2255(e)/2241 read in pari materia with Schlup v. Delo. See 22cv3409 (SDNY), Dkt. 214, at 8(B)—Ramos,
J. again imposing another manifestly frivolous leave-to-file (abuse of the writ) sanction in violation of due
process of law, and Article I, section 9, access to the writ.
88
See 22cv3409 (SDNY), Dkt. 126 at 12-13 (the district court, Ramos, J. expressing approval of circuit
precedent found that 2241 habeas corpus petition was authorized where actual innocent claims were
raised, and no other available remedy to adjudicate the actual innocent claims existed). The district court
found in Dkt. 126 (i) Applicant raised “actual innocent claims” and (ii) the 2255(f)(1) limitation period had
Page 72 of 209
The record before the district court established (I) the government, the USAO (SDNY), has
yet to search, produce, and disclose the contents of the “over 15 boxes of materials that could
contain Brady evidence,” cf., Section 7, Exhibit 1, infra, the Brady constitutional violation
“impediment” and (II) the government and the district court (Ramos, J.) have yet to disclose and
produce the alleged Sept. 22, 2006, Rule 11 and USSG 5k1.1 perjury contracts of Jeremy Jones,
judicial public records, see Id. at Exhibits 5 and 6, infra, the constitutional “impediment” had not
been “removed” thus, preventing Applicant from filing a timely 2255(a) motion, and therefore,
Applicant pursuant to 2255(e)/2241 saving clause was authorized on March 21, 2022, to avail
himself of 2241(a) habeas corpus remedy because the 2255 remedy had been obstructed by the
deliberate and intentional governmental and district court’s constitutional “impediments” which
had not been removed on March 21, 2022, and therefore, accordingly, 2255(a) was (i)
“ineffective” and (ii) “inadequate,” i.e., unavailable to provide Applicant with any relief on March
21, 2022.89
run, and therefore, Applicant had no other remedy to effectively raise and have his actual innocent claims
adjudicated on the merits. The district court’s Dec. 12, 2022, order, Dkt. 126, which denied Applicant any
effective remedy to raise actual innocent claims violated the Suspension Clause, Article I, section 9.
Therefore, Dkt. 126 is null and void ab initio and moot.
89
The EOUSA’s March 20, 2023, FOIA response, see Section 7, Exhibit 1, infra, is ipso facto a governmental
actual innocent, 28 USC 2255(f)(2) statutory cause and prejudice Brady, 18 USC 3500, and First
Amendment violation of the right to access judicial public records (Jeremy Jones’ alleged Sept. 2006 Rule
11 and USSG 5k1.1 perjury contracts, “5k.1 letter” etc., cf., Id. Exhibit 5, Marlon G. Kirton, Esq. letter to the
05cr1115 sentencing district court in 2008) constitutional “impediment”—an express, irrefutable actual
innocent confession and admission by the government that 2241 via 28 USC 2255(f)(2) and the Schlup v.
Delo standard were available to Applicant on March 21, 2022, to challenge the government’s Brady
violations and other actual innocent constitutional claims.
Page 73 of 209
Conclusion.
The Dec. 12, 2022, Dkt. 126, and April 3, 2023, Dkt. 213, Dkt. 214; and Dkt. 1, 6, and Dkt.
7 (22cv10566) orders (Ramos, J.) are required to be reversed, vacated, set aside, and mooted;
and the 28 USC 2243 show cause order entered, the government served with the 2241 petition,
and ordered to show cause within three (3) days from service.
3 Verified Statement of undisputed material facts in support of

Certificate of Appealability.90
Declaration of Undisputed Material Actual Innocent Facts by Ulysses T. Ware:

Facts 1-50.
I Ulysses T. Ware, hereby this 5th day of May 2023, in the city of Brooklyn, in the State of New
York, while under oath, set my hand and seal, subject to the penalty of perjury, having personal
knowledge of the facts, pursuant to 28 USC 1746, hereby have made this sworn Declaration in
my personal and individual capacity, and set forth the following facts that are true, correct, and
indisputable. I hereby incorporate by reference herein and make the same a part hereof as if
attached hereto, the Government’s trial exhibits, 1224 and 1115 PSIs in heac verba, briefs,
motions, memoranda, transcripts, orders, judgments, and dockets from the 02cv2219 SDNY, 03-
93031-mhm (BC NDGA), 03-0831-KJD (D. NV), 04cr1224 SDNY, 05cr1115 SDNY, and related
proceedings, jointly (the “Ware Cases”).
Fact #1.
During the Dot.com Wallstreet financial bubble on or about February 2, 2001, Alpha Capital, AG,
(“Alpha”), Stonestreet, L.P., Markham Holdings, Ltd., and Amro International, S.A., LH Financial,
Ari Rabinowitz, and others both known and unknown, jointly and severally, (“Alpha” or
“Unregistered Broker-Dealers” or “Brokers” or “Civil Plaintiffs”)), knowingly and willingly, while
90
This verified statement of facts is taken from Ware v. USA, Garland, Ramos, and Taylor-Swain, 22cv3409
and 22cv10566 (SDNY), 28 USC 2241(a) actual innocent habeas corpus petition, (the “Habeas Petition”)
which was assigned to District Judge Edgardo Ramos (SDNY) despite he being named in the statement of
facts as an unindicted coconspirator with the government and others.
Page 74 of 209
not registered with the Securities and Exchange Commission, (“SEC”), or the Financial Industry
Regulatory Agency, (“FINRA”)91, see Exhibit 7, entered into an illegal financing agreement with
Group Management Corp., (“GPMT”), (the “Illegal Financing Agreement” or government trial
exhibit in U.S. v. Ware, 04-cr-1224 SDNY (“GX-5”))92.
Fact #2
On February 2, 2001, the Brokers, while not registered with the SEC or FINRA, entered into and
knowingly executed paragraph 10.1(iv) of GX-593; and illegally purchased for immediate resale,
via an illegal public offering,94 $1.1 million of GPMT’s restricted convertible notes, (the “Notes”),
GX 1-4.
Fact #3
91
According to the SEC and FINRA’s public database, www.brokercheck.gov, neither Alpha, Stonestreet,
Markham, Amro, LH Financial, Ari Rabinowitz, Rhino Advisors, fugitive Thomas Badian, convicted felon
Edward M. Grushko, Esq., Barbara R. Mittman, Esq., nor Kenneth A. Zitter, Esq., have ever been lawfully
registered pursuant to 15 USC 78o(a)(1) as brokers or dealers. Exhibit 7-1. Cf. Rabinowitz’s testimony at Tr.
204-06 confessing to criminal violations of Section 15(a)(1) registration requirements, Exhibit 11.
92
“GX” shall hereinafter refer to Government trial exhibits fraudulently entered in United States v. Ware,
04cr1224 (SDNY) (Sweet, J.), via AUSAs Nicholas S. Goldin and Maria E. Douvas through government
witnesses Ari Rabinowitz an admitted, (see Tr. 180-82, 188, 202-08), Exhibit 11, unregistered broker-dealer
operating in criminal violations of the federal securities laws, Section 15(a)(1), and Kenneth A. Zitter, Esq.
(an officer of the court); and United States v. Ware, 05cr1115 (SDNY) (Pauley, J.) (AUSAs Alexander H.
Southwell and Steven D. Feldman).
93
Paragraph 10.1(iv) of GX-5 conferred 15 USC 77b(a)(11) statutory underwriter status on each
unregistered Broker involved in the February 2, 2001, transactions: “Section 2(a)(11) statutory
underwriters required to register all distribution of securities” (quoting SEC Release 33-7190); cf.,
Berckeley, 455 F.3d at 220 (same); Kern, 425 F.3d at 152-56 (Pooler, J.) (same)). (emphasis added). See
Exhibit 30, infra.
94
According to paragraph 10.1(iv) of GX-5 the Brokers, jointly and severally, intended to immediately resell
GPMT’s Notes [within 135 day of 02/02/2001], rather than hold the Notes [for the Rule 144(k) holding
period requirement, i.e., 2 years] as a bona fide investment as required by 15 USC 77d(2), Section 4(2),
evidenced by requiring GPMT to immediately register the conversion securities on Form SB-2 and file the
same with the SEC. See also paragraphs 12 and 13 in the Alpha Capital, AG, et al. v. Group Management
Corp, et al., case no. 02cv2219-LBS (SDNY), (“2219”), complaint, (the “2219 Complaint”). CF., also with the
2219 district court’s 11/25/2002 Memorandum and Opinion, (the “2219 Opinion”), confirming the original
intentions of Alpha, et al. on 02/02/2001: Alpha, et al., had no intentions of being bona fide investors in
GPMT; rather Alpha, et al., initially to immediately resell the conversion securities of GPMT as found by
the Court: Alpha, et al. intended to be unregistered statutory underwriters of GPMT’s securities in
criminal violation of 15 USC 78o(a)(1) and Id. 77x, and 78ff.
Page 75 of 209
On March 20, 2002, Alpha, et al., through its retained counsel, Kenneth A. Zitter, Esq., while
recklessly lacking Article III and 28 USC 1332(a) diversity subject matter jurisdiction95 and
standing, knowingly, willfully, in bad faith, and for an improper purpose96 Alpha, et al. filed their
frivolous, malicious, fraudulent and null and void ab initio complaint in Alpha Capital, AG, et al.
v. Group Management Corp, et al., case no. 02cv2219-LBS (SDNY), (“2219”), complaint, (the
“2219 Complaint”) in willful violation of Fed. R. Civ. P. 11(b)(1-4); and 28 USC 1927.
Fact #4
From 2001 continuing to 2007 Alpha, et al., knowingly criminally violated Sections 77e, 77x and
78ff, by the knowing and willful sale of millions of unregistered shares of GPMT, see 11/25/2002
2219 Opinion, (Sand, J.); and a “good few hundred” small publicly traded companies’ shares
according to the sworn testimony of government 04cr1224 SDNY government trial witness Ari
Rabinowitz, Tr. 202-08. See Exhibit 11.
Fact #5
On or about November 25, 2002, the 2219 district court (Sand, J.), while lacking all Article III and
Section 1332(a) diversity subject matter jurisdiction over the 2219 proceeding, and to knowingly
and willfully aid, abet, and facilitate the criminal and racketeering activity of laundering of the
illegal profits, proceedings, revenues, and property extorted by Alpha, et al. issued the 2219
Opinion; and purported to enter a bogus and fraudulent void ab initio default judgment, GX-7,
against GPMT and the 2219 defendants (Elorian and Becky Landers).97 However, nevertheless, in
the 2219 Opinion Judge Sand ruled, (i) that each of the Brokers was in fact Section 2(a)(11)
statutory underwriters of GPMT restricted securities, GX 1-4; and further ruled that each of the
95
Unregistered broker-dealers lack Article III and diversity subject matter jurisdiction to enforce illegal
contract entered into and performed in criminal or civil violation of the federal securities laws, see 15 USC
78cc(b); cf., Regional Props., Inc. v. Fin. & Real Estate Consulting Co., 678 F.2d 552, 562-64 (5th Cir. 1982).
(unregistered brokers not entitled to receive any damages for alleged breach of illegal contract entered
into or performed in violation of the securities laws).
96
Cf., Fed. R. Civ. Proc. Rule 11(b)(1-4) sanctions; 28 USC 1927; and the Article III inherent power of the
courts to sanction frivolous, and bad faith pleadings signed and filed by Kenneth A. Zitter, Esq., on behalf
of Alpha. Alpha, et al., filed the 02cv2219 (SDNY) Complaint seeking to force GPMT, and its legal counsels
to issue false, fraudulent, and bogus Rule 144(k) legal opinions to enable Alpha, et al., to criminally
circumvent 15 USC 77e(a), (c), Section 5, strict liability registration requirement before offering for sale
GPMT’s Notes, GX 1-4.
97
The Landers had been forced to file personal bankruptcy to fend off the illegal and unethical violent extortion and
criminal contempt threats directed towards them by Alpha’s counsel Kenneth A. Zitter, Esq., (an officer of the court)
in his quest to force the Landers’ and their securities counsels to issue bogus and fraudulent Rule 144(k) legal opinions
to enable the criminal unregistered sale of more than 15 million free-trading shares of GPMT’s stock. See Tr. 283.
Page 76 of 209
Brokers were, in fact, Section 16(a) statutory insiders not permitted to trade in the equity
securities of GPMT as of 02/02/2001.
Fact #6
In January 2003 due to the continuing and violent personal threats and extortion demands of
Alpha, et al., Zitter, and Rabinowitz Elorian Landers and the board of directors of GPMT appointed
Ulysses T. Ware, Esq., as chief executive officer and chairperson of the board of directors of
GPMT; notified the SEC of the change; and resigned from GPMT. Mr. Ware as of January 2003
functioned as chief executive officer and securities counsel for GPMT until falsely incarcerated in
November 2007.
Fact #7
Beginning in January 2003 and continuing to 2007 Kenneth A. Zitter, Esq., an officer of the court,
and Ari Rabinowitz, on behalf of their clients LH Financial and Alpha, et al., continued to contact
and threaten Mr. Ware, via the mail and wires of the United States, as CEO of GPMT ( a publicly-
traded company); and made illegal extortion threats and demands on Mr. Ware, to wit: Zitter
demanded that Mr. Ware fraudulently issues to him (Zitter), on behalf of LH Financial and Alpha,
et al., more than 10 million free-trading shares of GPMT; and further demanded that Mr. Ware
prepare and provide to him (Zitter on behalf of Alpha, et al.) bogus and fraudulent Rule 144(k)
legal opinions to enable LH Financial and Alpha, et al. to criminally circumvent Sections 77x and
78ff and conduct an illegal unregistered public offering of GPMT’s shares98.
Else, Zitter stated to Mr. Ware, “ … I will have Judge Sand throw your ass in prison, nigger, and
you will never get out … who do you think that you are fucking with … I want that stock and
those opinions; else I will have the marshals arrest your ass … you better give them to us … I’m
not playing around with you … don’t do it and see what happens to you ….” 99 (emphasis in
98
See the sworn testimony of both Rabinowitz and Zitter in 04cr1224 under direct and cross examination
admitting to criminal violations of the federal securities and criminal laws of the United States in 2002-
2007 attempting to extort GPMT and Mr. Ware out of more than $500 million dollars in market
capitalization value. Both Rabinowitz and Zitter confessed under oath to aiding and abetting a Hobbs Act
extortion criminal enterprise; and both confessed to aiding and abetting a conspiracy to launder the profits
and proceeds derived from the extortion of GPMT, the Landers, and Mr. Ware regarding the shares of
GPMT.
99
Zitter testified under oath in 04cr1224 that he and Judge Sand arranged for Mr. Ware’s illegal arrest on
September 1, 2004, in Atlanta, GA by the U.S. Marshals (NDGA) in their attempt to extort Mr. Ware and
GPMT out of more than 10 million free-trading shares of GPMT’s stock. See Doc. #88 in 02cv2219 (SDNY)
order (Sand, J.) conceding the Marshals lacked lawful authority on September 1, 2004, to have arrested
(kidnapped) Mr. Ware in Atlanta, GA; confirming that the 2219 district court’s lack of subject matter
jurisdiction over 2219. CF., Tr. 322; Tr. 325 Zitter confessed that he received 4,026,695 unregistered shares
of GPMT [valued at more than $100 million dollars] from Mr. Ware based on his (Zitter’s and Sand’s)
continued Hobbs Act extortion threats of violence. See Exhibit 15.
Page 77 of 209
original) (quoting Kenneth A. Zitter, Esq. in March 2003; see also the transcript of the September
1, 2004, illegal arrest (kidnapping) proceedings of Mr. Ware in Atlanta, GA,100 on the admitted
request of Zitter and Rabinowitz, by the U.S. Marshals (NDGA) held before District Judge Thomas
W. Thrash, Jr.; cf. Doc. #88 order in 2219 (Sand, J.) ruling Thrash and the Marshals lacked
authority and jurisdiction to have entered Mr. Ware’s law office in Atlanta, GA on September 1,
2004, demanding the issuance of bogus Rule 144(k) legal opinions and more than 10 million free-
trading shares of GPMT’s stock)101.
Fact #8
In January and March of 2003 Zitter and Rabinowitz -- to facilitate the laundering of the illegal
profits and proceeds derived from the illegal sale of GPMT’s unregistered shares sold in violation
of Sections 77x and 78ff (both sections criminalize the unregistered sale of securities) – colluded
and conspired with District Judge Leonard B. Sand, and had Sand enter bogus and fraudulent null
and void ab initio purported orders (GX-11) directed to GPMT to criminally violate the federal
securities laws by issuing fraudulent and bogus Rule 144(k) legal opinions to Zitter and LH
Financial to enable Alpha, et al., to criminally circumvent Section 5 of the 1933 Act, and illegally
sell GPMT’s unregistered securities in violation of Sections 77x and 78ff.
Fact #9
On or about August 13, 2003, Sand, Zitter, LH Financial, and others both known and unknown,
see Doc. #65 (2219), GX-24, entered into illegal ex parte proceedings with Judge Sand where
Alpha, et al., judicially admitted in the ex parte proceedings to actually be the “beneficial owner
of more than 9.9% of [GPMT’s] stock” (emphasis added), (quoting Sand, J.; cf., 08/13/2003 order
(Sand, J.)); thus conferring draconian statutory insider status, 15 USC 78p(b), Section 16(b), on
Alpha, et al102; and admitted ineligibility for any exemption to Section 5’s strict-liability
registration requirements.
100
See Exhibits 13 and 13-1.
101
Zitter testified, Tr. 371, that Mr. Ware’s 09/01/2004 arrest in Atlanta, GA by the U.S. Marshals was in
fact illegal. See Exhibit 15.
102
Statutory insiders are per se ineligible for Rule 144(k); and Alpha, et al. are required to disgorge back
to GPMT all profits from the trading in GPMT’s securities from February 2, 2001; thus, ipso facto, legally
precluding Alpha, et al., from any alleged loss amount. Cf. appeal briefs of Ulysses T. Ware, Esq. filed in
Page 78 of 209
Fact #10
Due to the continued and violent extortion threats made by Zitter and Alpha, et al. to Mr. Ware
as securities counsel for GPMT, on December 3, 2003, GPMT filed for Chapter 7 bankruptcy
protection, In re Group Management Corp. (BC NDGA),. Chapter 7 protection triggered 11 USC
362(a) automatic stay injunction order had the following legal effects: prohibited against any
further extortions threats by Zitter, Sand, Rabinowitz, and Alpha, et al., demands, or collection
methods of any type in regard to any lawful or unlawful alleged prepetition debt of GPMT;
prohibited David N. Kelley from any attempt to enforce via criminal contempt the collection of
any prepetition debt of GPMT; and terminated forever the 2219 court’s subject matter
jurisdiction over any aspect of the 02/02/2001 Illegal Transaction; Mr. Ware also notified the
2219 district court (Sand, J.) and Zitter of GPMT’s Chapter 7 filing and the Section 362(a)
automatic stay.103 See Appx. 6 and Exhibits 16.
Fact #11
On December 22, 2003, in willful and knowing violation of the December 3, 2003 Section 362(a)
automatic stay resulting from GPMT’s December 3, 2003 Chapter 7 filing; and while lacking all
jurisdiction over the 2219 proceedings, Judge Sand on the urging of Zitter, Rabinowitz, and Alpha,
et al., knowingly, willfully, in bad faith, and maliciously -- to aid and abet the continued Hobbs
Act extortion and money laundering conspiracy being run by Alpha, et al., -- entered bogus,
fraudulent null and void ab initio orders in 2219, GX-34.104
Fact #12
United States v. Ware, 09-0851cr (2d Cir. 2010) for a detailed explanation of Section 5, Rule 144(K), Section
16 and the August 13, 2003, order’s legal effects on the 02cv2219 and 04cr1224 proceedings.
103
GPMT’s December 3, 2003, Chapter 7 filing triggered the 11 USC 362(a) automatic stay against Alpha,
et al., Zitter, and the 2219 district court; and voided all post-petition orders or judgments entered in 2219
and 04cr1224 (SDNY). See Judge Sand’s December 4, 2003, bogus and null and void ab initio order
confirming actual notice of the GPMT’s 12/03/2003 Chapter 7 filing.
104
As of December 3, 2003, pursuant to 11 USC 362(a), et seqs. all jurisdiction over the 2219 proceedings
in regard to any alleged prepetition debts of GPMT rested exclusively in the Bankruptcy Court (NDGA): the
New York 2219 district court lacked lawful jurisdiction after December 3, 2003, to enter any order in 2219
without first the GPMT Chapter 7 Bankruptcy Court (NDGA) lifting the Section 362(a) automatic stay on
motion and a hearing by a party having standing in the Chapter 7 bankruptcy proceedings. Alpha, et al.
being unregistered broker-dealers lacked lawful claims, and thus, lacked standing to appear in the
Bankruptcy Court regarding any proceedings concerning GPMT, or any successor in interest of GPMT. As
of the February 2, 2001, execution of paragraph 10.1(iv) of GX-5 Alpha, et al., as unregistered broker-
dealers, lacked any enforceable legal rights, i.e., claim, apropos GPMT’s securities, see 15 USC 78cc(b); cf.,
Regional, 678 F.2d at 561-64.
Page 79 of 209
On or about November 17, 2004, United States Attorney (SDNY) David N. Kelley and others both
known and unknown, (“Kelley, et al.”), government lawyers officers of the court, using the null
and void ab initio 2219 proceeding’s orders: (1) March 13, 2003 order (Sand, J.), GX-11; (2) August
13, 2003, GX-24; and (3) November 25, 2002 judgment, GX-7, allegedly approached a federal
grand jury and knowingly and recklessly while lacking 28 USC 547(2) statutory standing and legal
probable cause for any 18 USC 401(3) criminal contempt offense105 committed by Mr. Ware in
regard to the null and void ab initio 2219 proceedings recklessly and maliciously, presented to
the federal grand jury known to be null and void ab initio documents, known and suborned
perjured testimony of witnesses, and evidence fabricated by Kelley, et al., in criminal violation of
18 USC 241, 242, 371, 1201-02, 1951(a), 1621-23, 1956-57, and 1962(a-d) and numerous state
laws (the “RICO Acts”).
Fact #13
On November 17, 2004, in United States v. Ware, 04cr1224 (SDNY) (RWS), regarding the null
and void proceedings, orders, and judgments entered in the void ab initio 2219 proceedings
probable cause was a legal impossibility and a nullity for U.S. Attorney (SDNY) David N. Kelley, et
al., to have presented any information to a federal grand jury and lawfully charged Ulysses T.
Ware, Esq., GPMT’s securities lawyer, with an alleged 18 USC 401(3) criminal contempt offense
for refusing to aid, abet, assist and facilitate Alpha, et al., to criminally circumvent Section 5 of
the 1933 Act by the issuance of fraudulent and bogus Rule 144(k) legal opinions; which Kelley
knew or was reckless in not knowing bogus and fraudulent Rule 144(k) legal opinions would have
enabled Alpha, et al. to conduct an illegal unregistered public offering of GPMT’s securities in
criminal violation of Sections 5, 10j(b), 77x, 78ff, and Rule 10b-5106.
Fact #14
105
It is not an 18 USC 401(3) criminal contempt offense to not issue bogus and fraudulent Rule 144(k) legal
opinions to unregistered broker-dealers, Section 16(b) statutory insiders, and Section 2(a)(11) statutory
underwriters to enable, aid, abet, or facilitate the criminal circumvention of Section 5 registration
requirements in violation of 15 USC 77x and 78ff; and 18 USC 2, 371, 1341, 1343, 1951(a), 1956-57, and
1962(a-d), all racketeering activities. See U.S. v. Lloyd, 807 F.3d 1128 (9th Cir. 2015) (aff’d conviction and
sentences for Section 77x violations).
106
Kelley knew and/or was reckless in not knowing he and the USAO lacked lawful 28 USC 547(2) statutory
standing – the USAO (Kelley, et al.) only has standing to prosecute an offense -- to have pursued any fake
and bogus criminal contempt charges against Mr. Ware in regard to not issuing bogus and fraudulent Rule
144(k) legal opinions to Section 2(a)(11) statutory underwriters (i.e., Alpha, et al.). According to SEC
Release 33-7190, “Section 2(a)(11) statutory underwriters are required to register all distribution [(public
offerings)] of securities [pursuant to Section 5 of the 1933 Act.]” (emphasis added); cf., Kern, 425 F.3d at
152-56 (Pooler, J.) (same); cf., Berckeley, 455 F.3d at 220 (same).
Page 80 of 209
Lacking probable cause, and ipso facto an offense, the 04cr1224 district court (Sweet, J.) as a
matter of law lacked Article III and statutory 18 USC 3231 subject matter jurisdiction over the
proceedings. Therefore, the 04cr1224 proceedings were as a result ultra vires, invalid, without
any validity, and null and void an initio.
Fact #15
The 02cv2219 SDNY proceedings were ultra vires, invalid, and null and void ab initio.
Consequently, the 04cr1224 SDNY District Court (Sweet, J.) lacked jurisdiction over the subject
matter of the void 02cv2219 proceedings, orders (GX 11, GX-24, GX-34, etc.) and judgments (GX-
7, etc.) on which the factual predicate of the 04cr1224 was formed.
Fact #16
From beginning on or about 2002 and continuing to the present date and beyond United States
Attorneys David Kelley, Michael J. Garcia, and Preet Bharara; and AUSAs Katherine Polk-Failla,
Sarah E. Paul, Nicholas S. Goldin, and Maria E. Douvas, jointly and severally, (the “USAO” of “DOJ
Lawyers”) all knowingly, willfully, in bad faith, recklessly have acted in concert; and all knew or
were reckless and/or professionally negligent in not knowing the legal consequences of their own
trial exhibits on the Government’s ability to prove beyond a reasonable doubt the factual
elements of the alleged 18 USC 401(3) criminal contempt charges, to wit:
(i) GX-5 paragraph 10.1(iv), Exhibit 30, of the February 2, 2001, purported “subscription
agreement” pled by Zitter in paragraphs 12 and 13 of the March 20, 2002, 2219 complaint;
however, GX-5 was in actuality an illegal null and void ab initio, cf., 15 USC 78cc(b), underwriting
contract which was explicitly adopted by the Government in its 04cr1224 indictment and argued
at trial as its Article II, §3 prosecutorial litigation strategy, by the admission into evidence by AUSA
Nicholas S. Goldin, Tr. 180-88, through unregistered broker-dealer government witness Ari
Rabinowitz; and
(ii) GX-24 the August 13, 2003, order (Sand, J.), Doc. #65, ex parte proceedings in which Alpha, et
al., judicially admitted and confessed to Section 16(b) statutory insider status as of February 2,
2001107; and judicially admitted by necessary implication they were required to disgorge back to
107
Alpha, et al., judicially admitted in the August 13, 2003 illegal and unethical ex parte proceedings to the
devastating fact of being “the beneficial owner or more than 9.9% of [GPMT’s] stock” (emphasis added)
(quoting Sand, J. in August 13, 2003 order, (GX-24), Doc. #65 in 2219); which had the draconian effect of
irrevocably conferring Section 16(b) statutory insider status on Alpha, et al. as of February 2, 2001; and
required the immediate Section 16(b) disgorgement of all profits back to GPMT realized from the illegal
trading in GPMT’s stock.
Thus, precluding any and all fines, USSG §2B1.1 loss amount calculation, assessments, or other monetary
sanctions in regard to the null and void ab initio 04cr1224 proceedings. See 04cr1224 direct examination
Page 81 of 209
GPMT all profits (estimated at $500 million dollars in post-Chapter 11 reorganization market
capitalization) realized from the illegal insider trading in GPMT’s unregistered securities. A
statutory insider cannot suffer any legal loss as a result of statutory, 15 USC 78p(b),
disgorgement.
Fact #17
In the 02cv2219 proceedings on or about December 20, 2007, Dkt. 90, order (Sand, J.), Exhibit 5,
after the statute of limitation had run on all claims in 2219, in another ex parte proceeding (cf.,
with Zitter and Sand’s August 13, 2003 ex parte proceeding referenced in GX-24) Kenneth A.
Zitter, Esq. again approached District Judge Sand (2219) and demanded that Judge Sand, without
notice to Mr. Ware, the Landers, or GPMT, pursuant to Fed. R. Civ. P. Rule 41(a)(2), immediately
reverse, vacate, annul, and vitiate all proceedings, orders, and judgments previously entered
in 2219; and Zitter implicitly and by necessary implication demanded that Judge Sand enter a
superseding final judgment in 2219 in favor of GPMT, Mr. Ware, and the Landers; furthermore,
Zitter implicitly demanded by necessary implication that Judge Sand confer via Rule 41(a)(2)
superseding final judgment prevailing party status on GPMT, the Landers, and Mr. Ware for the
purpose of civil and criminal contempt enforcement proceedings against any party willfully
resisting the 12/20/2007, Dkt. 90 Rule 41(a)(2) superseding final judgment/order. See 18 USC
401(2) and 401(3).
Fact #18
On December 20, 2007, Dkt. 90, superseding final judgment (Sand, J.), Exhibit 5, Judge Sand
acquiesced to Mr. Zitter’s unethical and improper ex parte unnoticed, voluntary dismissal Rule
41(a)(2) demand; entered the superseding final order/judgment, Dkt. 90; and by operation of
law reversed, vacated, annulled, and vitiated, all prior proceedings (any purported civil or
criminal contempt proceedings), all orders (GX-11, GX-24, GX-34; and the order which dismissed
of Ari Rabinowitz by AUSA Goldin confessing and admitting to illegal insider trading in GPMT’s stock from
2001 to 2004.
See also Mr. Ware’s appeal briefs filed in U.S. v. Ware, 09-0851cr (2d Cir. 2010) detailing the bankruptcy
fraud conspiracy by the Atlanta, GA law firm Kilpatrick, Townsend, & Stockton, LLP, (“KTS”), and its
partners Dennis S. Meir, Esq. (Zitter testified in 04cr1224 that Meir was a classmate of Zitter at Harvard
Law School), and John W. Mills, III, Esq., see Appx. 1 and Appx. 6; hired by Zitter to commit a bankruptcy
fraud conspiracy on the 03-93031-mhm (NDGA) Bankruptcy Court, (i.e., impede, delay, and obstruct the
Section 16(b) profits disgorgement of Alpha, et al. back to GPMT); conceal the illegal insider trading by
Alpha, et al.; and disrupt and interfere in GPMT’s 2003, In re Group Management Corp., case no. 03-
93031-mhm (BC NDGA) Chapter 11 reorganization. CF., Doc. #101-1 (07/15/01 filed in 02cv2219 SDNY)
pgs. 3-8 for Zitter, KTS, Mills, and Meir’s bankruptcy fraud in 03-93031 (BC NDGA) to conceal Alpha, et al.
Section 16(b) insider trading in GPMT’s stock.
Page 82 of 209
GPMT’s counterclaim, Doc. #31, etc.,), all judgments (GX-7, etc.); and dismissed with prejudice
the 2219 proceedings108.
Fact #19
In 2008 long after the 2219 case had been dismissed with prejudice by District Judge Sand on
12/20/2007, Dkt. 90, Exhibit 5, pursuant to the superseding Rule 41(a)(2) final order/judgment,
United States Probation Office, (“USPO”), employee, an officer of the court (see 18 USC 401(2)),
Thomas J. McCarthy, knowingly, willfully, in bad faith, and to commit a fraud on a federal court
by an officer of the court, deliberately and intentionally prepared, signed, and filed in the
04cr1224 Court a known to be false, fraudulent, and completely fabricated presentence report,
(the “1224 PSI”); filed by McCarthy as part of the conspiracy to conceal and cover up the Hobbs
Act money laundering extortion conspiracy run by Alpha, et al109.
Fact #20
The USAO’s lawyers, Garcia, Goldin, and Douvas; McCarthy and the USPO; Sweet; and the USAO’s
09-0851 (2d Cir.) appeal filers (Polk-Failla, Douvas, Paul, and Bharara) all either knew or were
deliberately and intentionally reckless and negligent in not knowing the legal consequences of
Judge Sand’s 12/20/2007, Dkt. 90, superseding Rule 41(a)(2) final order/judgment on the 2219
and, by necessary converse implication, the 04cr1224 proceedings110.
108
See binding circuit precedent in A.B. Dick Co. v. Marr, 197 F.2d 498, 501-02 (2d Cir. 1952) (voluntary
dismissal of lawsuit by plaintiff [Alpha, et al.] annulled and vitiated all prior orders, judgments, and
proceedings; treated the proceedings as if they had never been filed; rendered the proceedings moot; and
terminated the court’s jurisdiction over the moot proceedings).
109
McCarthy’s PSI was deliberately, intentionally, fraudulently, and negligently prepared, signed, and
knowingly filed into the 1224 Court after the 2219 case had been dismissed with prejudice by Judge Sand
on 12/20/2007, Dkt. 90; filed as a fabricated inaccurate judicial document to adversely affect Mr. Ware;
and prepared, signed, and filed into the records of a federal court as the illegal and criminal means and
methods to provide the fraudulent and fabricated factual basis for the USAO and District Judge Sweet to
impose a null and void conviction and sentence; and to illegally increase the sentence of Mr. Ware by the
fraudulent imposition of a consecutive sentence in violation of the Due Process and Double Jeopardy
Clauses.
110
The record is indisputable: as a matter of law once Zitter and Sand annulled 2219 on 12/20/2007, ipso
facto, by converse necessary implication 1224 was also annulled. Judge Sand on 12/20/2007 acted based
on the 1224 post-trial voluntary Rule 41(a)(2) ex parte demand of Zitter and Alpha, et al. to annul, vitiate,
vacate, void, and dismiss with prejudice the 2219 proceedings; demanded after Zitter had knowingly
testified for the Government in 1224; and demanded after Zitter had knowingly committed perjury and
falsely testified at trial in 1224 regarding paragraphs 12 and 13 of the 2219 complaint; and paragraph
10.1(iv) of GX-5. Perjury knowingly suborned by the USAO’s lawyers Garcia, Douvas, and Goldin.
Page 83 of 209
Fact #21
In the 1224 PSI prepared by McCarthy in 2008, he ostensibly had access to both the 2219 case
file and Judge Sand’s 12/20/2007 Dkt. 90 superseding Rule 41(a)(2) final order/judgment given
the numerous references made to the 2219 proceedings in the 1224 PSI by McCarthy, and
ostensibly had access to the 05cr1115 case file and related documents evident by the numerous
referenced to the 1115 proceedings. Rather than fulfill his lawful and ethical duty of complete
candor to the courts, as an officer of the court, in all official transactions, cf., 18 USC 401(2),
McCarthy conspired with the USAO’s lawyers, Goldin, Douvas, and Garcia to cover up and conceal
from the courts and the public the ongoing Alpha, et al., Hobbs Act money laundering criminal
conspiracy; and the fact the 2219 proceedings went moot on 12/20/2007 by Judge Sand’s Rule
41(a)(2) superseding final judgment.
Fact #22
McCarthy was and is currently a USPO employee, an officer of the court, 18 USC 401(2); McCarthy
had and was required by law to exercise a duty of complete candor to the federal courts in the
performance of his official duty and transactions with the Courts (see Federal Tort Claim Act);
and in his preparation of the 1224 PSI, an official transaction, McCarthy was required by law,
Section 401(2) to have notified the 1224 Court in 2007 that the 2219 proceedings had been
dismissed with prejudice on 12/20/2007 by Judge Sand pursuant to voluntary Rule 41(a)(2) ex
parte demand by government trial witness Zitter; furthermore, McCarthy was required to
exercised complete candor and notified the Court of the legal consequences of Judge Sand’s
superseding Rule 41(a)(2) final judgment on the 1224 proceedings. That was not done by
McCarthy and the management of the USPO.
Fact #23
Since on or about 12/20/2007 continuing to the present (May 5, 2023) McCarthy and the USPO’s
executive management have knowingly, deliberately, intentionally, in bad faith, and recklessly,
in criminal violation of 18 USC 401(3) and 401(2)111 actively “resisted” the legal consequences on
the USPO and its employees in regard to (1) Judge Sand’s 12/20/2007, Dkt. 90, superseding Rule
111
Contempt, active resistance, in the official transactions of the USPO (officers of the court) regarding
Mr. Ware given 18 USC 3231 subject matter jurisdiction in 1224 terminated on November 17, 2004, upon
David N. Kelley filing the 1224 indictment in the record of the court containing affirmative defenses on the
face of the indictment. CF., Cammer v. United States, 399 U.S. 399, 404 (1956) (court employees, judges,
marshals, bailiffs, court clerks, probation officers, etc. are officers of the court subject to contempt in their
official transactions).
Page 84 of 209
41(a)(2) final order/judgment112 apropos their official court employee transactions concerning
both the 04cr1224 and 05cr1115 null and void ab initio dismissed with prejudice proceedings;
and (2) knowingly and willfully actively resisted the binding legal effects of the United States
Attorney General (“USAG”), November 7, 2008 Article II, §3 Executive Branch appellate political
decision to dismiss with prejudice the Government’s cross-appeal filed in United States v. Ware,
07-5670cr (XAP) (2d Cir.), Gov.-I113, ratified by the Second Circuit’s 08/18/2009 superseding final
judgment entered in Gov.-I (07-5670) (2d Cir.). CF., (i) Judge Sand’s 12/20/2007 Doc. 90 Rule
41(a)(2) final order/judgment and (ii) the Second Circuit’s 08/18/2009 Gov.-I final judgment,
jointly, (the “Final Judgments”)114.
Fact #24
112
“A court of the United States shall have the power to punish by fine or imprisonment, or both, …. (3)
[d]isobedience or resistance to its lawful … order [i.e., the 12/20/2007 Rule 41(a)(2) final order/judgment
entered in 2219 (Sand, J.)].” (emphasis added).
113
On November 7, 2008, Exhibit 6, the USAG pursuant to 18 USC 3742(b), Fed. R. App. P. 42(b), and Article
II, §3 voluntarily exercised the actual innocent, exclusive Executive Branch prerogative to control all
litigation in 05cr1115 and then notified the Court of Appeals for the Second Circuit at page 2* in its 07-
5222 (2d Cir.) government brief as follows: “The Government filed a notice of appeal but is not pursuing
a cross-appeal [of the 1115 District Court’s October 2007 post-trial Rule 29 rulings in favor of Mr. Ware, to
wit: Doc. #99, S.Tr. 31 L 18-25 (R-1); S. Tr. 35-36 (R-2); and S. Tr. 73-76 (R-3), jointly, (the “Pauley Acquittal
Verdicts”)].” (the “USAG’s Appellate Political Decision”) (emphasis added).
On August 18, 2009, see Exhibit 4, based on the USAG’s 11/07/2008 Appellate Political Decision to dismiss
with prejudice the Government’s 07-5670 cross-appeal the Court of Appeals ipso facto affirmed the
October 2007 Pauley Actual Innocent Acquittal Verdicts R-1, R-2, and R-3, Exhibits 39, 40, and 41,
respectively), and entered final judgment in Gov.-I against the United States and its privies, (i.e., the
USPO, the USAO, the AOC, the BOP, the U.S. Marshals, the FBI, the SEC, et al.); triggered the Double
Jeopardy Clause’s protections for Mr. Ware; triggered res judicata, collateral estoppel, and terminated
all courts’, the United States, and the DOJ’s and its lawyers’ subject matter jurisdiction over all issues and
claims actually or necessarily resolved by the legal effects of the Gov.-I final judgment. see Federated, 452
U.S. at 398-401 (final judgment [Gov.-I] absolutely binding on all courts [the 02-cv-2219, 03-0831 D. NV,
05cr1115, 04cr1224, 07-5222 (2d Cir.), and Supreme Court (i.e., Ware v. United States, 10-6449)], the
parties [Mr. Ware and the United States], and their privies [i.e., the DOJ, the USPO, the SEC, the AOC, FBI,
IRS, U.S. Marshals, and the BOP] in all subsequent proceedings between the parties; all issues and claims
actually or necessarily resolved by final judgment are “forever settled between the parties.”) (emphasis
added); and consequently, irrevocably conferred prevailing party status on Mr. Ware for the purposes of
civil and Fed. R. Crim. P. 42(a) criminal contempt sanctions and enforcement of the Gov.-I final judgment.
114
Judge Sand’s 02cv2219 12/20/2007 Doc. 90, Exhibit 5, Rule 41(a)(2) superseding final order/judgment
and the Second Circuit’s 08/18/2009, Exhibit 4, superseding final judgment entered in Gov.-I jointly, (the
“Final Judgments”).
Page 85 of 209
Since December 20, 2007, continuing without interruption to the present (May 5, 2023) the USPO
(SDNY) and its employees, and the USAO and its employees, officers of the court, all privies of
the United States, and thus, therefore accordingly all bound absolutely by the Final Judgments
entered in proceedings in the federal courts in New York; and therefore consequently all are
subject to res judicata, collateral estoppel; and civil and criminal contempt enforcement
sanctions in regard to their personal115 and official transactions apropos: (1) the Judge Sand’s
12/20/2007, Dkt. 90, superseding Rule 41(a)(2) final judgment entered in 2219; and (2) bound by
and subject to the Second Circuit’s 08/18/2009 superseding final judgment entered in Gov.-I (07-
5670) (2d Cir.).
Fact #25
The U.S. Probation Office, see Appx. 5, infra, submitted to a federal court in 1224 a materially
false and fraudulent PSR dated August 28, 2008, prepared by Thomas J. McCarthy, which was
used to sentence Mr. Ware to the illegal and unreasonable sentence as a matter of law.
McCarthy knowingly and deliberately included known false and fraudulent information in the
PSR. Paragraphs 1-4 contained the known false information that Mr. Ware was a named
defendant in 02-CV-2219(LBS); and that Ware disobeyed an order of the 2219(LBS) court.
Paragraphs 7-24 contained the known false information that Mr. Ware willfully disobeyed orders
of the 2219(LBS) court: GX-7, GX-11, and GX-24.
Paragraphs 50-53 were known false and fraudulent information obtained from District Judge
William H. Pauley, III and U.S.P.O. Cathleen Tyler regarding INZS and SVSY which is in direct
contradiction to the position of the AUSA Feldman's statement at sentencing on October 26,
2007, S. Tr. 46, regarding SVSY.
115
Clearly lacking and in the absence of all subject matter jurisdiction – it is clear, indisputable, and
axiomatic by the concepts of res judicata, collateral estoppel, and the Double Jeopardy Clause’s maxims
no live Article III case or controversy can legally exist, in any proceeding, between Mr. Ware and the United
States, its privies and agents, with respect to all issues and claims actually or necessarily resolved in
whole or in part by the Final Judgments entered in favor of Mr. Ware, GPMT, and the Landers – all actions
therefore taken by the United States, its agents, or its privies in willful “resistance to” [see 18 USC 401(3)]
the Final Judgments were therefore taken in the personal and/or official capacity of the individual(s) or
agencies taking such ultra vires and extra-judicial actions; and accordingly the individuals and/or agencies
have already retrospective and prospectively incurred draconian personal civil monetary and criminal
contempt sanctions liability to Mr. Ware, GPMT, and the Landers. see Stump v. Sparkman, 435 U.S. 349,
350 (1978). (no judicial immunity for ultra vires action taken “in the clear absence of all jurisdiction.”).
Hence the USPO’s employees and in particular those who prepared and signed the PSIs in 1224 and 1115,
Thomas J. McCarthy and Colleen Tyler, respectively, are all personally civilly monetarily liable to Mr. Ware
for compensatory civil and penal criminal contempt sanctions. CF., Fed. R. Crim. P. 42(a), and 18 USC §§
401(2) and 401(3).
Page 86 of 209
On page 21 of the false and fraudulent 1224 PSR, the USPO recommended a “consecutive
sentence” (emphasis added) based on the fraudulent and void sentence entered in 05-CV-
1115(WHP). Cf., Exhibit 5, the December 20, 2007, Rule 41(a)(2) superseding final judgment in
02cv2219 that annulled, vitiated and abrogated the USPO’s corrupt and fraudulent PSR.
Fact #26
Rabinowitz testified at trial in 1224, Tr. 228-29, that IVG/GPMT and its counsel (Mr. Ware) were
contractually authorized to “stop or impede the sale or delivery of their [GPMT’s] securities [GX
1-4]” if as Rabinowitz testified at Tr. Id., “as may be required by law [i.e., Rule 144(k); SEC Release
33-7190; Kern, 425 F.3d at 152-56].” See also Exhibit 11.
Fact #27
At trial in 1224 Zitter, testified under brutal and devastating cross-examination by Mr. Ware as
follows, to wit:
1. that he did not heed Ware's advice and proceeded to take additional steps to conduct the
illegal distribution of IVG/GPMT securities, including having Ware illegally arrested and
kidnapped on September 1, 2004, GX-34 (Tr. 360-61); GX-35 (Tr. 363); GX-251 (Tr. 343);
2. Tr. 371 (Zitter admits Ware's [09/01/2004 Atlanta, GA] arrest was illegal);
3. Tr. 466 (Zitter stated, “his motion to punish [threats of violence on Mr. Ware] for
contempt.”);
4. Tr. 468 (Zitter stated: “I know we [he and Judge Sand] took further action ... [b]ut we did
take further actions to punish you [Ware] for contempt because there were different ....”);
5. Tr. 456 (Zitter testified that his steps were taken to compel (extort) GPMT by holding Ware
in contempt of court.
6. Zitter testified at Tr. 457 of his steps in furtherance of the illegal distribution of IVG/GPMT
securities as follows:
Mr. Ware: What were those steps?
Zitter: We [Judge Sand and the four plaintiffs] attempted to compel [extort] you [Mr. Ware] to
issue the [GPMT free-trading] stock [in violation of Section 4(1)].
Mr. Ware: How did you attempt to compel [extort] Mr. Ware to issue the stock?
Zitter: By applying to [Judge Sand] to hold you in civil contempt [kidnapping] if you [Mr. Ware]
didn't do so. [18 USC 1961(6)(B) lawful debt collection activity].
Page 87 of 209
Fact #28
At trial in 1224 the following events regarding AUSA Nicholas S. Goldin’s conspiracy to obstruct
justice took place:
1. AUSA Goldin made the binding judicial admission when in direct examination of Zitter at
Tr. 305, Goldin, ostensibly, totally ignorant to the elements of criminal securities fraud as
well as §77b(a)(11), introduced into evidence GX-9, Mr. Ware's letter dated January 28,
2003, addressed to Zitter, in regard to Zitter's Hobbs Act extortion attempts on Mr. Ware
and GPMT (GX-52, 52A, 52B, i.e., Hobbs Act extortion demands).
2. AUSA Goldin actually had Zitter read into the record at GX-9, Tr. 305 L13, Mr. Ware’s
January 28, 2003, letter: “Dear Mr. Zitter, we are in receipt of a fax originating from your
office requesting an illegal issuance of [GPMT’s] free trading shares to your clients.”
(emphasis added).
3. AUSA Goldin's faux pas is a confession by Goldin and Zitter, that the plaintiffs through
Zitter were on notice of the illegality of their actions as early as January 28, 2003, and
took “steps” to further the Hobbs Act conspiracy money laundering criminal activities.
4. At Tr. 306-07, AUSA Goldin foolishly introduced into evidence GX-10 (Zitter's letter of
January 29, 2003, addressed to Ware in reply to Ware's January 28, 2003, letter).
5. In GX-10 Zitter admits to taking “steps” necessary for the unregistered distribution of
IVG/GPMT's securities on behalf of his clients (the four plaintiffs in 02-CV-2219(LBS)) thus,
conferring §2(a)(11) statutory underwriter status on them as well.
Fact #29
The Government’s stipulated actual innocence facts.
At trial in 1224 the Government via AUSAs Nicholas S. Goldin and Maria E. Douvas made the
following judicial admissions, to wit:
1. The Government admitted via its indictment ¶9-10, the Notes (GX 1-4) were sold
pursuant to GX-5, the subscription agreement.116
The Government introduced GX-1 and GX-5, at trial, through its own witness Rabinowitz at Tr.
182, Tr. 190 respectively; and AUSA Goldin, Tr. 252, stated as an officer of the court:
116
Jointly criminal usury subject matter which violated NYS Penal Law, section 190.40, the criminal usury
law, a class E felony, see Adar Bays v. GeneSYS ID, Inc., 28 F.4d 379 (2d Cir. 2022) (convertible promissory
notes, GX 1-4, which charged 2x the NYS authorized interest rate are null and void ab initio, unenforceable,
and violate section 190.40, a class E felony).
Page 88 of 209
“These are very complex areas of the law. There is no one [associated with the
Government] in this courtroom [other than Mr. Ware] qualified to discuss these
matters. The document [GX-5 (the subscription agreement)] speaks for itself.”
(emphasis added). Mr. Goldin apparently did not understand or realize exactly
what para. 10.1(iv) of GX-5 was in fact speaking. (emphasis added).
2. Therefore, the Government's judicially admitted GX-5's unredacted content -- ¶10.1(iv),

requested IVG to file a Form SB-2 registration statement within 90 days of February 7, 2001,
the purchase date of the Notes [GX 1-4], to enable the conversion shares, “to be sold on the open
market without restriction” -- ‘speaks for itself.’”
Hence, the Government admitted via the admissions contained in GX 1-4, 5 and through
Rabinowitz's testimony:
a) Alpha purchased IVG Notes (GX 1-4) and Promissory Notes, “with a view to a ‘public
offering’ ”, Cavanaugh, 445 F.3d at 111 citing Wolfson, 405 F.2d at 782; and
b) any persons (Rabinowitz, Kenneth A. Zitter, Esq., (“Zitter”), Edward Grushko, Esq.,
(“Grushko”), Barbara R. Mittman, Esq., (“Mittman”), Ari Kluger, Dennis Meir, Esq., (“Meir”),
Kilpatrick, Townsend & Stockton, LLP, Thomas V. Sjoblom, Esq., Prokauser & Rose, LLP, and
District Judge Sand, acting in his personal capacity without subject-matter jurisdiction, were also
§2(a)(11) principal underwriters of GPMT’s restricted securities (GX 1-4). Kern, 425 F.3d at 152;
R.A. Holman & Co., Inc., 366 F.2d at 449; Geiger, 363 F.3d at 487.
c) By “engag[ing] in steps necessary to the distribution of [IVG] securities [,]” the participants
were aiders and abettors in the distribution of [IVG] securities. SEC v. Murphy, 626 F.2d 633, 649
(9th Cir. 1980) (Secondarily liable for enabling the distribution); SEC v. Management Dynamics,
Inc., 515 F.2d 801, 810-11 (2d Cir. 1975)(Discussing Spectrum, recklessness is sufficient to
establish negligence as an aider or abettor liability.); SEC v. Spectrum, Ltd., 489 F.2d 535, 541 (2d
Cir. 1975) (Issuer's attorney thought to be negligent for recklessly issuing legal opinion enabling
an unregistered distribution of issuer's securities.); SEC v. North American R&D Corp., 424 F.2d
63, 72 (2d Cir. 1970)(Substantial assistance will Impose secondary liability as aider and abettor).
Fact #30
At trial in 1224 Rabinowitz, an admitted Section 2(a)(11) underwriter, admitted at Tr. 199, 204;
and Zitter, Tr. 481, that 1,351,351 unregistered shares of GPMT [valued at +$225 million dollars]
“were sold into the open market” in June 2003 [an illegal unregistered public offering], thus
confessing to §5, 77x, 78ff, and a §15(a)(1) violations since he and Alpha were admitted
unregistered brokers and dealers, Tr. 206.
Nathan Landenberg, Esq., according to Rabinowitz's trial testimony, Tr. 219, supplied the
extortion money and laundered the profits and proceeds for his and Alpha's “private placement
business,” a “few hundred times”. See Exhibits 11 and 12.
Page 89 of 209
Fact #31
At trial in 1224, Rabinowitz testified to hiring Zitter, Tr. 196; and Zitter hired Dennis S. Meir,
Esq.117 in GPMT's Chap 11, Tr. 376-82, cf. Appx. 1, and also hired Grushko & Mittman, P.C., Tr.
493-94;
1. Zitter performed steps necessary to the distribution of GPMT’s securities and was a
Section 2(a) (11) underwriter, Kern, 425 P.3d at 152; and procured through Grushko &
Mittman, P.C. a fraudulent Rule 144 legal opinion, Tr. 494-95, and sent a false and
fraudulent -- mail and wire fraud -- letter (GX 52-B) to GPMT's transfer agent demanding
free trading shares, Tr. 301-02; Geiger, 363 F.3d at 487 quoting:
“It was [Zitter] who procured those [GPMT’s] certificates [Tr. 322-326]; GX-16 (June 16, 2003,
ltr. from Ware to Zitter); GX-17 (Zitter's June 3, 2003, letter sent to Rabinowitz, “I got shares
[4,026,695 unregistered shares of GPMT which were unlawfully sold pursuant to Rule 144(k)
in June 2003 in violation of Section 5 and 77x, pursuant to fraudulent legal opinion of Grushko
& Mittman, P.C., Tr. 493-94.]]”
2. Zitter further admitted, Tr. 368, of requesting that Mr. Ware be arrested on 09/01/2004
in Atlanta, GA for not issuing the fraudulent Rule 144(k) legal opinions.
3. Zitter testified, Tr. 370, of contacting the Marshals to arrest Mr. Ware illegally and
fraudulently on 09/01/2004 for not issuing the fraudulent Rule 144(k) legal opinions.
4. Zitter, Tr. 322, went before Judge Sand on June 2, 2003, to get Sand to force the
fraudulent issuance of bogus Rule 144(k) legal opinion, GX-16, GX-17.
5. Zitter, Tr. 332-33, admitted he participated in a telephone conference on June 16, 2003,
and July 2, 2003, to cause the illegal issuance and distribution of GPMT’s unregistered
securities.
6. Zitter's admitted participation in steps necessary to the June 2003 illegal unregistered
distribution of GPMT’s unregistered securities, by a Section 2(a)(11) statutory
underwriter. Which imposed criminal liability on Zitter and Meir for taking steps in
GPMT's Chapter 7 (GX-250), Tr. 376-82; Tr. 400-01, DX-Q, to cause the illegal June 2003
issuance of GPMT’s restricted securities.
(i) Grushko and Mittman, P.C. presented fraudulent Rule 144(k) legal opinions to the court,
Tr. 493-94, in an attempt to aid and abet Zitter and Judge Sand to conduct an unregistered
distribution of IVG securities.
117
Meir was employed by the Atlanta, GA law firm of Kilpatrick, Townsend, and Stockton, LLP; Zitter’s
classmate from Harvard Law School. See Appx. 1 for memorandum of law to Dennis S. Meir, Esq., the “Civil
Plaintiffs’” bankruptcy counsel in In re Group Management Corp., a/k/a GPMT, 03-93031-mhm (BC
NDGA), Chapter 11 (2003) (Meir and KTS knowingly and corruptly committed criminal bankruptcy fraud,
18 USC 157, in the Chapter 11 proceedings by concealing and hiding the Civil Plaintiffs’ status as
unregistered broker-dealers, cf., Exhibit 7 (FINRA’s May 17, 2021, certification of unregistered broker-
dealer status for each of KTS’ clients in the GPMT Chapter 11), Appx. 6, and also see Exhibits 16).
Page 90 of 209
The illegal unregistered distribution did take place by the public sale of GPMT’s shares by
Alpha, et al., in criminal violation of Section 5, 77x, and 78ff, in June 2003 of more than
4,026,695 unregistered shares of IVG/GPMT, [valued at +$225 million dollars] Tr. 322-25; GX-
55, Tr. 480-81;Tr. 325-333: GX-16, GX-17, GX-19;
and pursuant to Kern, 425 F.3d at 152; Geiger, 363 F.3d at 487; Murphy, 626 F.2d at 649;
Spectrum, 489 F.2d at 541; 15 U.S.C. §78ff; Wolfson, 405 F.2d at 783-84; and Abrams, 357
F.2d at 547, imposed criminal liability on Edward Grushko, Esq. (a convicted felon for
securities fraud), and Barbara R. Mittman, Esq., for signing a fraudulent Rule 144(k) legal
opinion as a step in the unregistered distribution of GPMT's securities in June 2003, Tr. 493-
94.
Fact #32
(a) Since on or about May 24, 2019,118 see Appx. 3 and Appx. 5, Damian Williams, Margaret
M. Garnett, Daniel Gitner, AUSA Melissa Childs, acting USA Audrey Strauss, AUSA John M.
McEnany, (the “USAO’s Lawyers”), former District Judge William H. Pauley, III (deceased), District
Judge Edgardo Ramos, and others both known and unknown corruptly coordinated and
orchestrated the proceedings in 04cr1224 and 05cr1115 (SDNY) in such a manner and fashion to
delay, obstruct, hinder, and frustrate Mr. Ware’s constitutional right to due process of law;
(b). Judge Pauley and Judge Ramos knowingly and willfully colluded and conspired with the
USAO’s lawyers to cause Mr. Ware irreparable harm, injury, and damages, specifically, by refusing
to enter any order directed to the USAO to come forth and establish its Article III and statutory,
18 USC 3231, subject matter jurisdiction and standing to have filed Dkt. 250; moreover, for the
USAO to establish the Article III and statutory subject matter jurisdiction of the 04cr1224 and
05cr1115 district courts to have conducted any Article III adjudication of the merits of the
respective proceedings in 04cr1224 and 05cr1115;
(c) Mr. Ware has suffered and will continue to suffer tremendous irreparable harm, injury,
and damages to his professional reputation as an attorney at law and as a businessman due to
the void ab initio, bogus and fraudulent convictions and sentences that remain on the record of
the courts unless the court immediately directs the United States to come forth and establish its
Article III and 18 USC 3231 statutory subject matter jurisdiction, initially, and currently over the
04cr1224 and 05cr1115 (SDNY) proceedings, respectively ;
(d) Mr. Ware has suffered and will continue to suffer tremendous irreparable harm, injury,
and damages to his ability to raise capital and secure investment and employment opportunities
due to the bogus, fraudulent, void ab initio, and currently moot judgments of conviction and
118
Ulysses T. Ware was released from the BOP’s Brooklyn, NY MDC federal prison on May 24, 2019, and
terminated federal prisoner status.
Page 91 of 209
sentence the USAO’s lawyers have fraudulently presented to the District Court as an overt act in
furtherance of the retaliatory Jim Crow racially-motivated hate crime conspiracy perpetrated
against Mr. Ware regarding and in furtherance of the criminal interests of unregistered broker-
dealer Alpha Capital, AG (Anstalt) and LH Financial Services;
(e) Mr. Ware has suffered and will continue to suffer tremendous irreparable harm, injury,
and damages from the direct conspiracy to obstruct justice and conceal Alpha Capital, AG
(Anstalt), et al., continuing criminal enterprise aided, abetted, and facilitated by the USAO’s
lawyers, federal judges, and others involved in the cover-up of the RICO Hobbs Act money
laundering and extortion conspiracy run from, directly and/or indirectly, the Manhattan federal
courts and the Manhattan office of the United States Attorney’s (SDNY);
(f) Mr. Ware has suffered and will continue to suffer tremendous irreparable harm, injury,
and damages from the criminal acts of the USPO (SDNY) officers, Michael Fitzpatrick, Thomas J.
McCarthy, Colleen Tyler, and David Mulcahy, (the “USPO Officers”), who all knowingly and
willfully, as overt acts in furtherance of the RICO Conspiracy, (i) materially fabricated and
manufactured, prepared, signed, and submitted to the district courts two bogus and fraudulent
PSI judicial documents, as officers of the court, in criminal violation of 18 USC 401(2); and the
illegal means and methods to have Mr. Ware falsely incarcerated to enable the RICO Conspiracy
to remain covert and unexposed;
(g) Mr. Ware has suffered and will continue to suffer tremendous irreparable harm, injury,
and damages caused by the illegal and fraudulent unwritten alleged “special conditions” of
supervised release fraudulently imposed by the USPO (David Mulcahy) since May 24, 2019; that
have caused Mr. Ware to lose several employment opportunities by not being permitted to enter
the federal court buildings (SDNY) without David Mulcahy permission and he following Mr. Ware
throughout the federal court buildings in violation of due process of law; when in fact no “special
conditions” of supervised release were ever imposed in 04cr1224 and 05cr1115 (SDNY); the
USAO and Mulcahy fraudulently fabricated and lied as officers of the court, in collusion and while
conspiring with Judge William H. Pauley, III, to obstruct justice and cause Mr. Ware extreme
injury, harm, and damages. See Appx. 5.
(h) Mr. Ware has, is, and will continue to suffer irreparable harm, injury, and damages as a
result of the unethical and illegal conduct of Edward T.M. Garland, Manibur S. Arora, Donald F.
Samuel, and David B. Levitt, officers of the court, and his retained lawyers, who colluded,
conspired, acted in concert, and enabled the Government’s lawyers [David N. Kelley, Michael J.
Garcia, Preet Bharara, Alexander H. Southwell, Steven D. Feldman, Steve R. Peikin, Nicholas S.
Goldin, Maria E. Douvas, Katherine Polk-Failla, Sarah E. Paul, and others] to commit “flagrant”
prosecutorial misconduct Brady exculpatory evidence violations, to commit a fraud on the
District Courts (SDNY), NDGA, and elsewhere, to commit perjury in open court, to fabricate grand
jury and trial evidence, to receive kickbacks, payoffs, bribes, illegal gratuities, and other things of
value (employment and advancement opportunities) for their involvement and participation in
the conspiracy to obstruct the due administration of justice, 18 USC 2, 4, 157, 201, 241, 242, 371,
Page 92 of 209
1201, 12341, 1343, 1346, 1512, 1612, 1956-57, and 1962 (a-d), (the “Racketeering Offenses”).
See Appx. 2.
(i) Mr. Ware will prevail on the merits of his Brady disclosure claims; Rule 33 Motion for a
New Trial for Flagrant Brady Violation; For Dismissal of the 04cr1224 and 05cr1115 indictments
for “flagrant” prosecutorial misconduct and fraud on the court; Motion for Kordel Relief; Motion
to Immediate Brady Disclosures; and imminent claims of professional negligence by GSL; Fraud
on the Court by District Judge Edgardo Ramos; Fraud on the Court by acting U.S. Attorney (SDNY)
Audrey Strauss, AUSAs John M. McEnany, Melissa Childs, and other claims that will be raised once
the Government fully complies with its “continuing” Brady disclosure obligations. See Appx. 3.
Fact #33
After being released from jail in Atlanta, GA on 02/11/2005 from the illegal kidnapping by the
U.S. Marshals, District Judges Thomas W. Thrash, Jr., and Leonard B. Sand, in Atlanta, GA on
September 1, 2004, and again on February 1, 2005, in Atlanta, GA, Ulysses T. Ware retained and
paid Atlanta, GA lawyer Edward T.M. Garland, Esq., (“Garland”), and his law firm, Garland,
Samuel, & Loeb, P.C., (“GSL”)119, as Sixth Amendment counsel to represent his legal interest in
United States v. Ware, 04cr1224 (SDNY), (“1224”). Mr. Ware informed Garland that he would
not be pleading guilty to any charges and to prepare the case for trial. Mr. Garland reviewed the
1224 indictment and agreed the case was weak and would research the issues. Mr. Ware agreed.
See Exhibit 15 and Appx. 2.
Fact #34
After retaining GSL Mr. Ware met regularly with Garland, Donald F. Samuel, (“Samuel”), Arora,
and Janice Singer, (“Singer”), jointly, (“GSL” or “Unindicted Co-conspirators”) and explained in
detail exactly why the 1224 Indictment’s charges were fatally flawed, failed as a matter of law to
charge an 18 USC 401(3) criminal contempt offense, and why an immediate motion to dismiss
the indictment with prejudice should be filed. See Appx. Id.
119
GSL employed Manny S. Arora, Esq., (“Arora”), an attorney who eventually entered his appearance in
1224 on 03/14/2005, Dkt. 4; Garland entered his appearance on 01/06/2006, Dkt. 14; and David B. Levitt,
Esq., (“Levitt”), appeared on behalf of GSL on 04/19/2006, Dkt. 17, all subject to the disciplinary and
professional responsibility rules, duties, and obligations of the District Court (SDNY) to enforce disciplinary
and ethics rules regarding lawyers appearing before the District Court. Each of the above lawyers, officers
of the court, applied for Pro Hac Vice authorization, and were granted permission to appear in the District
Court (SDNY), and therefore all are subject to the District Court’s general supervisory authority to
supervise the ethic and professional conduct of lawyers appearing before the Court. See United States v.
Hammad, 858 F.2d 834, 837 (2d Cir. 1988) (“The federal courts enforce professional responsibility
standards pursuant to their general supervisory authority over member of the bar. In re Snyder, 472 U.S.
634, 655 n. 6 (1985).”). (emphasis added).
Page 93 of 209
(a). Garland hesitated and stated, “I need to do more research before we file that motion ….”
Mr. Ware explained to Garland that SEC Release 33-1790 n. 17 (1995) strictly prohibited the “Civil
Plaintiffs” in the 02cv2219 (SDNY) lawsuit, Section 2(a)(11) statutory underwriters120 from any
Rule 144(k) exemption to Section 5 registration requirements. Garland responded, “We will
check that out and get back to you on it ….”
(b). From the date that Mr. Ware hired GSL to the date Mr. Ware terminated GSL, 04/17/2007,
Dkt. 22, GSL filed not one single discovery motion (Brady, Giglio, Rule 16, etc.), adversarial
motion (Motion to Dismiss the Indictment with Prejudice), or filed any other paper, pleading, or
brief that attacked in any way whatsoever the Government’s bogus and baseless charges in the
frivolous, null and void ab initio 1224 indictment. See 04cr1224 (SDNY) docket report.
(c). On or about 03/17/2007 Mr. Ware during a conference with Garland and Arora informed
GSL, due to the indisputable fact GSL was not properly representing the legal interests of Mr.
Ware, to withdraw from 1224. See Exhibits 18.
(d). Garland during the 03/17/2007 conference informed Mr. Ware:
“We’ve worked you out a good plea deal with AUSA Goldin and the
USAO … he will allow you to plead guilty to a misdemeanor … you won’t
have to do any jail time, but you will have to give up your license to
practice law. This is a good deal … you better take it … you can’t go up
against Judge Sand and his people up there, the case is hopeless … we
will not try the case … you need to really think about pleading guilty and
move on with your life … you are a young man you can find another
career ….” (emphasis added).
The alleged Rule 11 plea was rejected by Ulysses T. Ware.
(d). Mr. Ware never authorized GSL to negotiate any plea deal. Any “good plea deal” was done
with fraud, deceit, misrepresentation, and dishonesty by Garland, Arora, Samuel, and Levitt in
violation of the Rules of Ethics of the District Court (SDNY), and State Bar of GA Rule 4-102. GSL
pressured and harangued Mr. Ware to plead guilty to the 1224 Indictment or he would “end up
in federal prison for a very long time ….” (quoting Edward T.M. Garland, Esq.). See Appx. 2 and
Exhibits 17.
(e). Immediately after being retained GSL ceased all effective, competent, adversarial, and
independent Sixth Amendment representation as Mr. Ware's independent adversarial
“effective” “counsel.” Rather GSL corruptly joined the prosecution and maliciously worked
against the legal rights and interests of their client Mr. Ware in criminal violation of 18 USC 2,
120
See para. 12 and 13 in the Civil Plaintiffs’ 02cv2219 (SDNY) complaint. A judicial admission and
confession of being 15 USC 77b(a)(11) statutory underwriters of IVG Corp., a/k/a GPMT’s restricted
securities, GX 1-4.
Page 94 of 209
201(d), 241, 242, 371, and obstruction of justice to have Mr. Ware surrender his constitutional
rights as an egregious and flagrant fraud on the District Court (SDNY).
(f). GSL corruptly worked with and assisted the Government’s lawyers, AUSA Nicholas S.
Goldin and Alexander H. Southwell, to build a case against Mr. Ware by sharing confidential client
information and strategies to defeat the Government’s frivolous 1224 indictment.
(g). GSL’s unethical and criminal professional misconduct, conspired with the Government’s
lawyers to the detriment of their client, blatantly and flagrantly violated the District Court’s Rules
of Ethics and Professional Conduct which requires the District Court to exercise its supervisory
authority over lawyers appearing before the District Court to immediately demand that GSL
appear before the Court and explain their unethical professional misconduct in colluding with
the Government’s lawyers against the interest of their client, Mr. Ware. See L.R. (SDNY) Rule
1.5(b)(5).
(h). Mr. Ware asserts as fact that Garland, a lawyer with “more than 40 years of experience”
(quoting Garland) knew from the initial conference on or about 02/11/2005, and after reviewing
the 1224 indictment’s121 flimsy charges, the indictment was a sham and was null and void ab
initio. Rather than providing the competent and independent Sixth Amendment required
“effective” “assistance” of “counsel” GSL saw an opportunity to extort Mr. Ware out of “$1.0
million dollars” in requested attorney’s fees to “have the case go away ….” (quoting Garland).
(i) GSL from inception never performed as “counsel.” Never provided any “assistance.” And
was never “effective” in attacking the Government’s bogus and frivolous charges in the 1224
Indictment. GSL did nothing whatsoever to expose the Government’s criminal conspiracy with
unregistered broker-dealers Alpha Capital, AG, et al. (the plaintiffs named at para. 8 of the 1224
Indictment, see Exhibits 7 and 7-1).
(j). GSL refused to demand the Government’s lawyers provide the required actual innocence
Brady exculpatory evidence (i.e., the fact that each of the entities named at para. 8 of the 1224
Indictment had never registered in the United States as required by federal law, 15 USC 78o(a)(1),
with FINRA “on or around February 2001” as charged in para. 9 of the 1224 Indictment). Which
rendered the 1224 Indictment null and void ab initio; and was required as a matter of law to be
dismissed with prejudice. See Exhibit 2 (Order, Dkt 32 (04cr1224)(SDNY), on Ulysses T. Ware’s
pro se motion for Brady disclosure).
(k). GSL did not provide Mr. Ware with any independent and competent legal advice from
being retained until being terminated—that is,
• GSL concealed the fact from Mr. Ware it was incompetent in advanced securities
law litigations in the criminal context;
121
See Dkt. 1, November 17, 2004, 04cr1224 (SDNY) indictment.
Page 95 of 209
• GSL concealed the fact that it was not informed or aware of the SEC rules and
regulations that governed the transactions at issue in the government’s charging
instruments;
• GSL concealed the fact that it did not intend to investigate the facts or the law in
order to formulate an effective defense to the charges in the charging
instruments;
• GSL concealed the fact that it was aligned with the government and had no
intentions of adversarily challenging the government’s bogus and frivolous
charges;
• GSL concealed the fact that its interests were aligned with District Judge Thomas
W. Thrash, Jr. (NDGA), the Atlanta, GA law firm of Kilpatrick, Townsend, &
Stockton, LLP, and its partners Dennis S. Meir, Esq., and C. Ray Mullins, see Appx.
1. Appx. 2, Appx. 6, and Exhibits 13 and 16; and that it intended to betray the
confidences and strategies learned from Mr. Ware and convey the same to the
government to aid and assist the government to convict their client;
• Had GSL been competent in the law regarding 15 USC 77b(a)(11), Section 2(a)(11)
statutory underwriters, i.e., the “Civil Plaintiffs” named in para. 8 of the 04cr1224
purported indictment, Exhibit 7-1, a competent criminal lawyer would have
heeded the advice of its client and researched and investigated SEC Release 33-
7190 n. 17 (1995); and concluded the 04cr1224 charging instrument was as a
matter of law fatally flawed and defective and immediately moved to dismiss the
purported indictment with prejudice.
Fact #35
On July 29, 2021, Dkt. 306,122 Mr. Ware filed into the record in 04cr1224 and 05cr1115 (SDNY) a
sworn certification obtained from FINRA, Exhibit 7, that verified and confirmed that each of the
entities, (the “Civil Plaintiffs”)123 named at para. 8 of the Government’s November 17, 2004, 1224
122
Dkt. 306 is suppressed and concealed material Brady exculpatory and exoneration evidence required
to have been discloses to Mr. Ware “prior to trial” as ordered by District Judge Sweet (deceased) in the
August 10, 2007, Dkt. 32, page 2 (04cr1224) Brady order. (“Ware has requested that the Government
provide him with all exculpatory and impeachment materia before the commencement of the trial …. In
its brief (and in prior communications to the Defendant), the Government has repeatedly consented to
this request. There being no opposition, this aspect of the motion shall be granted.”). (emphasis added).
123
Para. 8 of the 1224 Indictment characterized the plaintiffs named in the 02cv2219 (SDNY) (LBS) lawsuit
as “Civil Plaintiffs” which as a matter of law required the “Plaintiffs” to at all times possess Article III and
Page 96 of 209
Indictment were then and have never lawfully registered as required by United States law, 15
USC 78o(a)(1), Section 15(a)(1), as brokers or dealers.
Evidence suppressed and concealed by Government lawyers that was material Brady exculpatory
evidence required to have been disclosed “prior to trial” pursuant to the August 10, 2007, Dkt.
32-page 2 written Brady order (Sweet, J.). A ”flagrant” violation, disobedience, and resistance, to
the Brady order, an 18 USC 401(3) criminal contempt offense by Judge Ramos and the
government’s lawyers. See n. 157 and n. 158, supra.
(a). As a matter of law and fact unregistered brokers or dealers, the “Civil Plaintiffs” named
at para. 8 of the 1224 Indictment lacked Article III and 28 USC 1332(a) diversity standing on March
20, 2002, to enforce the February 2001 Notes, (GX 1-4) and Subscription Agreement, (GX-5),
jointly, (the “Illegal Contracts”)124, to have filed the moot 02cv2219 (SDNY) civil lawsuit against
defendants IVG Corp., a/k/a GPMT, and Elorian and Becky Landers.
(b). The “Civil Plaintiffs” lacked Article III standing to have filed the 02cv2219 (SDNY) lawsuit,
thus, the 2219 District Court (Sand, J.) lacked all Article III subject matter jurisdiction “to proceed
at all” and enter any “lawful” orders (GX-11 and GX-24) and judgment (GX-7). Accordingly, GX-7,
GX-11, and GX-24 are null and void ab initio, unlawful, invalid, advisory125, and ultra vires.
(c). On November 17, 2004, as a matter of law and fact GX-7, GX-11, and GX-24, the alleged
factual basis for Counts, I, II, and III in the 1224 Indictment, were null and void ab initio, and
therefore were not “lawful” orders or judgments within the scope of 18 USC 401(3). Accordingly,
28 USC 1332(a) standing to appear in the District Court and be granted any judicial relief, see Lujan, 504
U.S. at 560-61.
124
See 15 USC 78cc(b) contracts made in or performed in violation of the federal securities laws are not
enforceable by the party that violated the federal securities laws. When the Illegal Contract were made
and entered into “on or around February 2001” as alleged at para. 9 of the 1224 Indictment, the “Civil
Plaintiffs” were then and thereafter lawfully registered with FINRA as broker-dealers; and therefore, were
in civil and criminal violation of the federal securities laws and prohibited from any enforcement of the
Illegal Contracts.
125
Advisory orders and judgments, GX-7, GX-11, and GX-24, are unenforceable, moot, null and void ab
initio, and do not and cannot provide the factual basis for any probable cause for former United States
Attorney (SDNY) David N. Kelley on November 17, 2004, to have procured the 1224 Indictment. Lacking
probable cause Kelley, et al., acted in their personal and individual capacities and all are personally and
individually monetarily liable to Mr. Ware in the sum certain amount of $2.25 billion dollars, jointly and
severally. See Steel Co., 523 U.S. at 94 ("Without jurisdiction the court cannot proceed at all in any cause
[02cv2219, 04cr1224, or 05cr1115]. Jurisdiction is power to declare the law, and when it ceases to exist,
the only function remaining to the court is that of announcing the fact and dismissing the cause."). Ex
parte McCardle, 7 Wall. 506, 514 (1869). (emphasis added).
Page 97 of 209
the 1224 Indictment’s alleged charges failed to and were fatally flawed as a matter of law to
charge an 18 USC 401(3) criminal contempt “offense.”126 Cf., Exhibits 7 and 7-1.
(d). It is not an 18 USC 401(3) criminal contempt “offense” for Mr. Ware, GPMT’s securities
counsel, to refuse to draft, sign, and issue bogus and fraudulent Rule 144(k) legal opinions to the
Civil Plaintiffs, confirmed unregistered broker-dealers and Section 2(a)(11) statutory
underwriters of GPMT’s restricted securities, (GX 1-4), and enable an illegal unregistered public
offering of GPMT’s securities in civil and criminal violation the United States federal securities
law, 15 USC 77e, 77x, and 78ff.127
126
18 USC 401(3): A court of the United States shall have power to punish by fine or imprisonment, or
both, at its discretion, such contempt of its authority, and none other, as—
(3). Disobedience or resistance to its lawful [i.e., the issuing court had subject matter jurisdiction over
its proceedings, or the commands of the order or judgment are unlawful] writ, process, order, rule, decree,
or command.
127
See Exhibit 12, SEC v. Honig, 18cv08175 (SDNY) (Ramos, J.) para. 86-87 of the SEC’s complaint,
02cv2219 (SDNY) “Civil Plaintiff[]” Alpha Capital, AG (Anstalt) was charged by the SEC with securities fraud
for obtaining a false and bogus Rule 144 legal opinion from an unnamed lawyer; and then Alpha and others
engaged in an illegal and unregistered public offering of restricted securities of “Company A” according to
SEC lawyer Nancy Brown, Esq. Judge Ramos, the judge assigned to 18cv08175, himself, therefore
possesses material Brady exculpatory evidence required to currently be disclosed to Mr. Ware pursuant to
Judge Sweet’s August 10, 2007, Dkt. 32, page 2, Brady order, Exhibit 2.
Obviously, Judge Ramos has an actual and apparent conflict of interest as a material witness in the
04cr1224 and 05cr1115 (SDNY) matters and the judge assigned to both; and thus, Judge Ramos is judicially
disqualified regarding 04cr1224 and 05cr1115 as of 2018. Judge Ramos’ July 28, 2021, Dkt. 304 and August
5, 2021, Dkt. 307, orders are null and void ab initio due to his concealed and undisclosed actual conflicts
of interest, and is a material interest in the outcome of the 04cr1224 and 05cr1115 proceedings as a
material witness possessing suppressed Brady material exculpatory evidence. Judge Ramos will be
subpoenaed and called as a Brady exculpatory evidence material witness at the required evidentiary
hearing in the event the Government or GSL denies any fact herein, or denies by acquiescence, estoppel
by acquiescence or silence.
Judge Ramos has adamantly refused to enforce the court’s Brady Orders, Dkt. 32 (04cr1224), Exhibit 2,
and Dkt. 17, Tr. 5-9 (05cr1115), Exhibit 3, and demand that the Government’s lawyers and privies disclose
all actual innocence Brady exculpatory evidence to Mr. Ware, for the obvious reason he (Judge Ramos)
would be required to come forth and give material Brady exculpatory testimony as a material witness
regarding the SEC v. Honig, 18cv08175 (SDNY) (Ramos, J.), Exhibit 12, proceedings that concern
unregistered broker-dealer, Section 2(a)(11) statutory underwriter, “Civil Plaintiff[]” Alpha Capital, AG
(Anstalt). See Exhibits 22-26.
Page 98 of 209
(e) As of “on or around February 2001” as alleged in para. 9 of the 1224 Indictment given the
unregistered broker-dealer legal status, Exhibit 7, of each of the “Civil Plaintiffs” named in para.
8 of the Indictment, Exhibit 7-1, the Article III federal court as a matter of law lacked a live Article
III case or controversy over which to exercise their Article III and 18 USC 3231 subject matter
jurisdiction.
Therefore, all judicial proceedings that involved the Civil Plaintiffs’ criminal attempts to
enforce the Illegal Contracts, GX 1-4 and GX-5,128 and null and void ab initio; and all orders and
judgments entered in any such moot judicial proceedings are themselves moot, null and void ab
initio, and invalid. See Exhibit 7.
Fact #36
(a) District Judge Edgardo Ramos (SDNY) is hereby designated as an actual innocent Brady
exculpatory evidence material witness and identified as an UNINDICTED CO-CONSPIRATOR. See
n. 35 supra.
(b) Judge Ramos, an Unindicted Co-conspirator, has adamantly refused all requests by Mr.
Ware to have the Brady Orders enforced. See 05cr1115 (SDNY) Dkt. 260, 263, 267, 272, 273, 274,
275, 276, 283, 287, 291, 293, 294, 295, 299, 302, 305, and unfiled, concealed, and suppressed
filings by Mr. Ware, 51A, 51B, 51C, 51D, and 51E, jointly, (the “Ware Actual Innocence Brady
Exculpatory Evidence”).
Fact #37
GSL, see Appx. 2 and Exhibits 18, has adamantly, egregiously, and flagrantly violated the Rule of
Professional Conduct and Ethics of the District Court (SDNY), (see L.R. (D. Ct SDNY), Rule
1.5(b)(5))129 and despite numerous requests from their former client, Mr. Ware, GSL, has refused
128
See In re Group Management Corp., no. 03-93031-mhm (BC NDGA), GPMT’s 11 Chapter reorganization
proceedings.; cf., Dkt. 261 (05cr1115), Mr. Ware’s brief dated December 19, 2011, to the Civil Plaintiffs’
Chapter 11 bankruptcy counsel, Atlanta, GA lawyer Dennis S. Meir, Esq.
129
Local Civil Rule 1.5. Discipline of Attorneys: (b) Grounds for Discipline or Other Relief. Discipline or
other relief, of the types set forth in paragraph (c) below, may be imposed, by the Committee on
Grievances, after notice and opportunity to respond as set forth in paragraph (d) below, if any of the
following grounds is found by clear and convincing evidence:
(5) In connection with activities in this Court [04cr1224 and 05cr1115 SDNY], any attorney [Edward T.M.
Garland, Manibur S. Arora, Donald F. Samuel, and David B. Levitt, and the Government’s lawyers] is
found to have engaged in conduct violative of the New York State Rules of Professional Conduct as adopted
from time to time by the Appellate Divisions of the State of New York. In interpreting the Code, in the
absence of binding authority from the United States Supreme Court or the United States Court of Appeals
for the Second Circuit, this Court, in the interests of comity and predictability, will give due regard to
Page 99 of 209
to (i) immediately turn over all client files130 and (ii) provide a full escrow accounting of all
attorney’s fees paid by Mr. Ware for GSL’s Sixth Amendment representation in 04cr1224 and
05cr1115 (SDNY).131 See unfiled and undocketed August 13, 2021, pleading 51E; and see GSL’s
April 30, 2019, letter to Mr. Ware (Exhibit #1 attached hereto). See also August 11, 2021, State
Bar of GA Bar grievances filed against GSL by Mr. Ware (in the possession of the Office of the
General Counsel, Paula Fredrick, Esq.), Exhibits 17 and Appx. 2.132
decisions of the New York Court of Appeals and other New York State courts, absent significant federal
interests.
130
What does the ABA have to say about releasing client files?
In July 2015, the American Bar Association (ABA) provided further guidance on the return of client files
in Formal Opinion 471, Ethical Obligations of Lawyer to Surrender Papers and Property to which Former
Client is Entitled. The ABA noted that the lawyer must, at a minimum, turn over materials that would
likely harm the client’s interest if not provided.
Applying Model Rule 1.15, the ABA determined that the lawyer must return all property that came into
his possession in connection with the representation. This includes tangible personal property; items with
intrinsic value or that affect valuable rights, such as securities, negotiable instruments, wills, or deeds; and
any documents provided by the client.
Applying Model Rule 1.16(d), the ABA determined that the lawyer must surrender any materials
provided by the client; legal documents filed with a tribunal (or those completed and ready to be filed);
executed instruments like contracts; orders or other records of a tribunal; correspondence in connection
with the representation (including emails retained according to the lawyer’s document retention
policy); discovery or evidentiary exhibits (including interrogatories and their answers, deposition
transcripts, expert witness reports and witness statements, and exhibits); legal opinions issued at the
client’s request; and third-party evaluations or records paid for by the client.
131
Implicit in the attorney-client relationship is a fiduciary and ethical obligation to the client to properly
manage client and third-party funds by establishing and maintaining an attorney trust or escrow account.
This duty is governed by specific ethics rules. Avoiding the commingling of client funds is only one of the
many duties under those rules. New York’s Rule 1.15 contains strict and strongly enforced rules for escrow
accounts. In addition to prohibiting commingling client or third-party funds with the lawyers’ funds (or, of
course, misappropriating them), it requires: separate and specially designated accounts for escrow funds;
• notification to a client or third person upon the receipt of escrow funds; • prompt payment from escrow
accounts on proper request; • complete and accurate record-keeping procedures; • disbursements to be
made only by New York-admitted lawyers; and • account withdrawals to be made only to a named payee
and not to cash.
132
The Office of the General Counsel, State Bar of Georgia, Paula Fredrick, Esq., et al., deliberately,
intentionally, willfully, and in bad faith has aided, abetted, and enabled GSL to escape punishment for their
unethical and illegal criminal conduct committed against their client, Mr. Ware, by colluding and conspiring
with GSL and the “Civil Plaintiffs” lawyers involved in In re Group Management Corp., 03-93031-mhm (BC
NDGA), Chapter 11 reorg., Kilpatrick, Townsend, & Stockton, LLP. Dennis, S. Meir, John W. Mills, III, and J.
Henry Walker, IV, jointly, (“KTS”), see Dkt. 261 (05cr1115), cf., GX 250, 251, 252, and 253 (04cr1224) to
whitewash any claim or allegations made against GSL or KTS. See Appx. 2 and Exhibits 17.
Page 100 of 209

Fact #38
GSL has violated L.R. (D. Ct SDNY) 1.5(b)(5) by the adamant and continued refusal (see Dkt. 51E
August 13, 2021, unfiled and undocketed pleading submitted to District Judge Edgardo Ramos
and Chief Judge (SDNY) the Hon. Laura Taylor-Swain) to return all requested client files and
provide a full escrow accounting of all fees paid for Sixth Amendment representation in 04cr1224
and 05cr1115 (SDNY) and is therefore subject to the District Court’s general supervisory authority
to discipline lawyer to appear before the District Court (SDNY).
Fact #39
(a) The Unindicted Co-conspirators individually, jointly, severally, as an illegal association-in-

fact, a continuing criminal enterprise, knowingly, willfully, with malice aforethought, have
willfully resisted, disobeyed, aided, abetted, and orchestrated the resistance of and disobedience
to lawful court orders and final judgment, the Ware Court Orders, in willful violation of 18 USC
401(2) and 401(3), criminal contempt;
(b) Edgardo Ramos, has since on or about July 12, 2021, in the “clear absence of all
jurisdiction” acted in his personal and individual capacity, and had knowingly and willfully
resisted, disobeyed, and has knowingly aided, abetted, colluded, conspired, and racketeered with
Audrey Strauss, Melissa Childs, John M. McEnany, and the Unindicted Co-conspirators to
continue to resist and disobey the written Brady Orders, Exhibit 2 and 3, resisted Exhibits 3, 4,
and 5, and Ramos has knowingly rigged and fixed the 04cr1224 and 05cr1115 proceedings,
claiming to rely on null and void ab initio “leave to file” orders, Dkt 160 (04cr1224) and Dkt. 220
(05cr1115), entered in violation of Circuit precedent, and entered in violation of all due process
of law, without any notice or opportunity to be heard, see Exhibits 22-26;
(c) Audrey Strauss, Melissa Childs, John M. McEnany, current AUSAs employed by the DOJ’s
USAO (SDNY) currently have in their possession material Brady exculpatory evidence, see Appx.
3, the official DOJ emails of Alexander H. Southwell, Nicholas S. Goldin, Maria E. Douvas, Steven
D. Feldman, Sarah E. Paul, Katherine Polk-Failla, David N. Kelley, Michael J. Garcia, Joon Kim, Preet
Bharara, Andrew L. Fish, FBO analyst Maria Font, former FBI special agent David Makol, all ex
parte communications between the USAO and Robert W. Sweet, William H. Pauley, III, Leonard
B. Sand, Kenneth A. Zitter, Ari Rabinowitz, and the SEC that contain material Brady exculpatory
evidence required to be immediately disclosed to Ulysses T. Ware pursuant to the express
commands of the Brady court orders;
(d) Strauss, Childs, McEnany, and the Unindicted Co-conspirators have colluded, conspired,
and racketeered with Ramos to delay, hinder, impede, frustrate, and obstruct “all reasonable
Page 101 of 209

efforts” to fully comply with the terms and commands of the Ware Court Orders in violation of
18 USC 401(2) and 401(3), and civil contempt.
(e) Ulysses T. Ware, the Petitioner, Prevailing Party to the Ware Court Orders, has suffered,
is suffering, and will continue to suffer irreparable harms, injuries, and damages as a direct and
indirect result of the Unindicted Co-conspirators’ continued willful and knowing resistance and
disobedience of the Ware Court Orders in the sum certain amount of $2.25 billion dollars.
Fact 40
(a) The Unindicted Co-conspirators are judicial, prosecutorial, and lay criminal and
dangerous predators that are a current and present danger to the community;
(b) On September 1, 2004, in Atlanta, GA, the Unindicted Co-conspirators arranged and
orchestrated the kidnapping of Atlanta, GA lawyer Ulysses T. Ware, see Exhibits 13, and 15, infra,
by the U.S. Marshals, District Judge Thomas W. Thrash, Jr. the USAO, Kenneth A. Zitter, Esq.,
Leonard B. Sand, and others known and unknown;
(c) on September 1, 2004, in Atlanta, GA during the kidnapping133, 18 USC 1201 and 1202 of
Ulysses T. Ware, the U.S. Marshals, with guns drawn, threatened to murder Mr. Ware unless Mr.
133
18 USC 1201, 1202: Kidnapping.
(a)Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for
ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when—
(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person
was alive when transported across a State boundary, or the offender travels in interstate or foreign
commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in
committing or in furtherance of the commission of the offense;
(2) any such act against the person is done within the special maritime and territorial jurisdiction of the
United States;
(3) any such act against the person is done within the special aircraft jurisdiction of the United States as
defined in section 46501 of title 49;
(4) the person is a foreign official, an internationally protected person, or an official guest as those terms
are defined in section 1116(b) of this title; or
(5) the person is among those officers and employees described in section 1114 of this title and any such
act against the person is done while the person is engaged in, or on account of, the performance of official
duties,
shall be punished by imprisonment for any term of years or for life and, if the death of any person results,
shall be punished by death or life imprisonment.
(b) With respect to subsection (a)(1), above, the failure to release the victim within twenty-four hours after
he shall have been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away
shall create a rebuttable presumption that such person has been transported in interstate or foreign
commerce. Notwithstanding the preceding sentence, the fact that the presumption under this section has
Page 102 of 209

Ware, right then, drafted and issued bogus and fraudulent Rule 144(k) legal opinions to the
unregistered broker-dealers, the “Civil Plaintiffs” named in para. 8 of the 04cr1224 (SDNY)
indictment, Exhibits 7 and 8, infra;
(d) The Unindicted Co-conspirators are dangerous predatory criminals, and will not hesitate
to use and cause bodily harm, injury, damages, including murder, see Exhibit 21, infra, to any
individual who attempts to hold them accountable for their crimes; the predators are a current
and present danger to any community in which they inhabit or reside to such an extent given
prior violent acts of kidnapping, threats of murder, extortion money laundering, and, bribery,
conspiracy, racketeering, bankruptcy fraud, securities frauds, and other racketeering activities,
no amount of bail or conditions will safely secure the community from the predatory Unindicted
Co-conspirators; and therefore,
(e) after arrest on charges of criminal contempt, 18 USC 401(3), sui generis134, each of the
Unindicted Co-conspirators are required by law to be denied all bail and arrested in the
jurisdictional district where they currently reside.
(f) Criminal and Civil Contempt and high crimes and misdemeanors of Crimes of Edgardo
Ramos, and civil and criminal contempts of DOJ prosecutors Melissa Childs, Audrey Strauss, and
John M. McEnany.
Fact 41.
Beginning from around July 12, 2021, in the Southern District of New York, and elsewhere
Edgardo Ramos, (“Ramos”), in his personal and individual capacity, “in the clear absence of all
jurisdiction”135 knowingly, willfully, acted in concert, aided, abetted, assisted, in bad faith, as an
not yet taken effect does not preclude a Federal investigation of a possible violation of this section before
the 24-hour period has ended.
(c) If two or more persons conspire to violate this section and one or more of such persons do any overt
act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years
or for life.
(d) Whoever attempts to violate subsection (a) shall be punished by imprisonment for not more than
twenty years.
134
The legal equivalent crime associated with the criminal contempt of the Ware Court Orders is 18 USC
1201 and 1202, kidnapping, and conspiracy to kidnap, violent crimes, which are not bailable.
135
Article III and 18 USC 3231 subject matter jurisdictions have not been “affirmatively established” (i.e.,
“jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings
inferences favorable to the party asserting it." APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (emphasis
added)) by the United States [the USAO] in regard to Dkt. 250:05cr1115 (SDNY), and thus, the legal
Page 103 of 209

overt act in the furtherance of the conspiracy to resist, avoid, hinder, frustrate, obstruct, evade,
and disobey the express and inherent preclusive effects of the Court Orders willfully and
knowingly in violation of 18 USC 401(2) and 401(3), criminal contempt. See Exhibits 22-26.
Ramos intentionally, deliberately, with malice aforethought, colluded and conspired with
the Unindicted Co-conspirators and coordinated and arranged the 1224 and 1115 proceedings in
such a way that he and Audrey Strauss, Melissa Childs, John M. McEnany, (the “USAO”), and
other Unindicted Co-conspirators were positioned and enabled to willfully and knowingly resist,
avoid, evade, hinder, frustrate, and refuse to take all “reasonable steps” 136 necessary to fully
comply with the express and inherent terms and commands of the Ware Court Orders, in
presumption is that jurisdiction is absent. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.
375, 377 (“Federal courts are courts of limited jurisdiction. They possess only that power authorized by
Constitution and statute, see Willy v. Coastal Corp., 503 U. S. 131, 136-137 (1992); Bender v. Williamsport
Area School Dist., 475 U. S. 534, 541 (1986), which is not to be expanded by judicial decree, American Fire
& Casualty Co. v. Finn, 341 U. S. 6 (1951). It is to be presumed that a cause [Dkt 250:05cr1115] lies
outside this limited jurisdiction, Turner v. Bank of North-America, 4 Dall. 8, 11 (1799), and the burden of
establishing the contrary rests upon the party [the USAO] asserting jurisdiction, McNutt v. General
Motors Acceptance Corp., 298 U. S. 178, 182-183 (1936)). (1994) (emphasis added).
A federal judge, Ramos, is civilly monetarily liable to Ulysses T. Ware for money damages (+$2.225
billion dollars) when he or she “acts in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S.
349, 357-58 (1978). Clearly Ramos has a disqualifying financial interest in the outcome of the contempt
proceedings, and is therefore constitutionally and statutorily disqualified, 28 USC 455(a), 455 (b)(1-5),
from any and all judicial function regarding any aspect of the contempt motions.
Ramos is strictly prohibited by the Constitution from being a judge in his own case or in a case
where he has a financial interest. See Tumey v. Ohio, 270 U.S. 510, 523 (1927) (“But it certainly violates
the Fourteenth Amendment, and deprives a defendant in a criminal case of due process of law, to subject
his liberty or property to the judgment of a court the judge [Ramos, J.] of which has a direct, personal,
substantial, pecuniary interest in reaching a conclusion against him in his case.”) (emphasis added); and
In re Murchison, 349 U.S. 133, 136 (1952) (“A fair trial in a fair tribunal is a basic requirement of due
process. Fairness, of course, requires an absence of actual bias in the trial of cases. But our system of law
has always endeavored to prevent even the probability of unfairness. To this end, no man [Edgardo
Ramos] can be a judge in his own case, and no man is permitted to try cases where he has an interest in
the outcome. That interest cannot be defined with precision. Circumstances and relationships must be
considered.”) (emphasis added), respectively.
136
District Judge Pauley ordered the government’s prosecutors, Exhibit 3 (“This Court will direct the
government to produce no later than the Thursday before the start of trial [05cr1115] that exculpatory
material ….”) (emphasis added) and District Judge Sweet, Exhibit 2 (“The Government shall produce all
Brady material prior to trial.”) (emphasis added) to disclose all Brady evidence prior to trial to then
defendant Ulysses T. Ware, which the government’s prosecutors acknowledged was a “continuing”
obligation.
Page 104 of 209

particular the Brady Orders, Exhibits 2 and Exhibits 3, and Ramos knowingly and willfully
committed the following criminal and civil contempt of the Ware Court Orders, to wit137:
(a) Ramos, a purported United States District Court Judge (SDNY), knew or was recklessly
ignorant of the law, and/or turned a blind eye and a deaf ear to the truth and the law, since July
12, 2021, recklessly and irresponsibly—that is, in the clear absence of all jurisdiction,
orchestrated and coordinated a criminal conspiracy, (the “Ramos Conspiracy”) with AUSAs
Melissa Childs, John M. McEnany, acting U.S. Attorney (SDNY) Audrey Strauss, the USAO, and the
Unindicted Co-conspirators, and Ramos willfully and knowingly manipulated and perfidiously
arranged and coordinated the 1224 and 1115 proceedings in such a way that the USAO and its
privies, and those acting in concert with the USAO, were and are permitted and able to continue
to knowingly resist, evade, avoid, impede, obstruct, and disobey the Brady Orders, Exhibits 2 and
3; suppress and conceal material Brady exculpatory evidence138 required to be disclosed to
137
“Civil contempt ... consists of a party's disobedience to a specific and definite court order by failure to
take all reasonable steps within the party's power to comply.” In re Dual–Deck Video Cassette Recorder
Antitrust Litig., 10 F.3d 693, 695 (9th Cir.1993). A party may also be held liable for knowingly aiding and
abetting another to violate a court order. See Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945)
(“defendants may nullify a decree by carrying out prohibited acts through aiders and abettors, although
they were not parties to the original proceeding”).
138
See Exhibits 7 to 15 in 51H (August 29, 2021, Rule 42(a) submission); see also Exhibit 22, infra, para. 33
of the unsigned SEC-DOJ commingled Las Vegas 03-0831 (D. NV) complaint: material Brady exculpatory
evidence that confirmed, impeached, and vitiated the USAO’s trial theory in 05cr1115 that the “prices” of
INZS and SVSY securities “were artificially inflated” by press releases attributed to Ulysses T. Ware, see
1115 indictment, Exhibit 23, and Exhibit 26, infra, the moot August 18, 2009, opinion, (Kearse, J.), United
States v. Ware, 07-5222cr (2d Cir. 2009), Ware-I; Cf., Exhibits 4 and 6, August 18, 2009, final judgment
entered in United States v. Ware, 07-5670cr (XAP)(2d Cir. 2009), Gov.-I (final judgment on the November
7, 2008, irrevocable USAG’s Article II Appellate Political Decision to terminate, abort, abandon, and
dismiss with prejudice the Government’s Rule 28.1 “cross-appeal” 07-5670).
Para. 33, Exhibit 22, actual innocence Brady exculpatory fact, is a binding judicial admission and confession,
judicial and equitable estoppel, by the United States, the real party in interest, in 03-0831, 04cr1224, and
05cr1115 INZS and SVSY’s share “prices” did not “increase” and therefore did not “artificially inflate”
caused by any press release of INZS and SVSY fraudulently attributed to Ulysses T. Ware by the USAO’s
bogus and fraudulent 05cr1115 indictment, Exhibit 23.
The legal consequence of judicial and equitable estoppel of para. 33 on the 03-0831 and 05cr1115
proceedings is that (i) the 03-0831 unsigned complaint (Brady exculpatory evidence) was null and void ab
initio, failed to state a claim, and lacks any preclusive effect; (ii) para. 33 on July 14, 2003, vitiated and
annulled all probable cause for the USAO to have sought arrest warrants and the 05cr1115 indictment
based on the “artificial inflation” of INZS and SVSY’s stock prices prosecutorial trial theory as charged in
the null and void ab initio moot 05cr1115 indictment.
Page 105 of 209

Ulysses T. Ware; and resist, avoid, delay, and hinder, specifically the disclosure of Exhibit 22, para.
33, infra, a judicial admission, and confession, in the unsigned null and void ab initio, moot SEC-
DOJ’s Las Vegas 03-0831 (D. NV) complaint.139
(b) Ramos knowingly and willfully has colluded and conspired with the USAO and the
Unindicted Coconspirators since July 12, 2021, and Ramos maliciously and insidiously
orchestrated and coordinated the 1224 and 1115 proceedings and utilized a fraudulent scheme
predicated on two null and void ab initio, purported “leave-to-file” injunctions, Dkt. 222:1115
(Pauley, J.), Exhibit 24, and Dkt 160:1224 (Sweet, J.), Exhibit 25, both entered in egregious
violation of Circuit precedent140 and the Due Process Clause of the Constitution of the United
Accordingly, the 05cr1115 indictment was fatally flawed, failed to charge an “offense” (immaterial
disclosures are not civilly [03-0831 D. NV) or criminally [05cr1115 SDNY] actionable in a federal court);
and (iii) the 1115 district court (Pauley, J., and Ramos, J.) lacked an “offense” and currently lacks all 18 USC
3231 subject matter jurisdiction over the 1115 proceedings, and the 07-5222cr (2d Cir.) court of appeals
lacked all Article III subject matter jurisdiction over the moot 05cr1115 proceedings. Therefore, Dkt. 96,
10/30/2007, Exhibit 17-5, alleged judgment is null and void ab initio, and the State Bar of Georgia, the
USAO, Orinda D. Evans, Thomas W. Thrash, Jr., and others are all guilty of willful resistance and
disobedience of the Ware Court Orders.
139
CF., Exhibit 22, para. 33 taken from the SEC-DOJ’s Las Vegas litigation’s unsigned complaint with Exhibit
26, infra, the August 18, 2009, risible opinion of Circuit Judge Kearse entered in United States v. Ware,
075222-cr (2d Cir. 2009), Ware-I: Judge Kearse in numerous places in the 07-5222 opinion, Exhibit 26-1,
claimed that the INZS and SVSY’s securities’ “prices” were “inflated” “increased” or “artificially inflated”
which is completely impeached and vitiated, (A) by para. 33, Exhibit 22, (i.e., “ … did not have the intended
effect of increasing the company’s [INZS and SVSY’s] stock price.”). Indisputably material Brady exculpatory
evidence willfully and deliberately suppressed by the SEC, the USAO, Ramos, Pauley, Sweet, and the USPO;
and (B) impeached and vitiated by the teary testimony of FBI analyst Maria Font under brutal cross-
examination by Ulysses T. Ware at trial in 05cr1115, Exhibit 8-1. The Unindicted Coconspirators’ criminal
willful contempt of the Brady Orders.
140
See Viola v. United States, 481 Fed. Appx. 30, 31 (2d Cir. 2012) ("[T]he procedure for imposing leave-
to-file sanctions involves three stages: (1) the court [Pauley, Sweet, and Ramos first] notifies the litigant
that future frivolous filings might result in sanctions; (2) if the litigant continues this behavior, the court
orders the litigant to show cause as to why a leave-to-file sanction order should not issue; and (3) if the
litigant's response does not show why sanctions are not appropriate, the court issues a sanctions order.")
(internal quotation marks and citation omitted). (emphasis added).
No required “show cause” order was ever entered in 1224 and 1115 according to the certified dockets in
both proceedings. Nor was Ulysses T. Ware ever given any opportunity to be heard why any such sanction
was not appropriate. Accordingly, Dkt. 222 and Dkt. 160 are null and void ab initio and have no lawful
preclusive effects to prohibit Ramos from adjudicating Mr. Ware’s Rule 33 motion for a New Trial
predicated on “Flagrant” Brady violation; Motion to Dismiss the 05cr1115 and 04cr1224 (SDNY)
Indictments; Motion to Enforce the Brady Orders; Motion for Kordel Relief, Motion Challenging the Subject
Matter Jurisdiction of the 1224 and 1115 District Court, and other pending Emergency Motions. Ramos,
Page 106 of 209

States, (the “Fraudulent Scheme”), to willfully avoid, evade, resist, obstruct, hinder, frustrate,
and disobey the Ware Court Orders;
(c) Ramos maliciously, willfully, and knowingly, acted in concert with the USAO, as an overt
act in furtherance of the criminal conspiracy to obstruct the due administration of justice in the
District Court (SDNY), within the purview of the “general supervisory authority” of the Hon.
Chief District Judge Laura Taylor-Swain to prevent141, and Ramos used the Fraudulent Scheme
as the illegal means and method for him, the USAO, and the Unindicted Co-conspirators to
willfully and knowingly evade, resist, obstruct, delay, impede, hinder, disobey, and avoid their
legal obligations imposed by the terms and commands of the Ware Court Orders to take every
“reasonable step” in full compliance of the Ware Court Order’s terms and conditions. Else
willfully violate 18 USC 401(2) and 401(3).142
(d) Ramos and the USAO knew it was “reasonable” for Ulysses T. Ware, the Prevailing Party
to the Brady Orders and the Ware Court Orders, to exercise his legal right of enforcement of the
Ware Court Orders and petition the Court for enforcement.143 Thus, the fraudulent concoction
Pauley, and Sweet designed and entered the ultra vires purported “leave-to-file” injunctions as the illegal
and fraudulent scheme to cover up, hide, suppress, and conceal their crimes in aiding and abetting the
willful resistance, avoidance, and disobedience of the Brady Orders and the Court Orders done to violate
the constitutional and legal rights of Ulysses T. Ware.
141
The federal courts enforce professional responsibility [judicial, the Code of Conduct for Federal Judges,
and prosecutorial] standards pursuant to their general supervisory authority over members of the bar. In
Re Snyder, 472 U.S. 634, 645 n. 6 (1985). (emphasis added).
142
A party may also be held liable for knowingly aiding and abetting another to violate a court
order. See Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945) (“defendants may not nullify a decree by
carrying out prohibited acts through aiders and abettors, although they were not parties to the original
proceeding”). The USAO, a party to the Brady and Ware Court Orders, conducted its willful and knowing
resistance to the Court Orders through Ramos’ conspiratorial Fraudulent Scheme to obstruct justice and
in willful criminal contempt of the Ware Court Orders.
143
In general, "the power to punish for contempt is inherent in all courts." Bowens v. Atlantic
Maintenance Corp., 546 F. Supp. 2d 55, 63 (E.D.N.Y. 2008) (citations omitted). "The underlying concern is
'disobedience to the orders of the [j]udiciary,' not 'merely the disruption of court proceedings.'" Id. (citing
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)). As such, an individual [Edgardo Ramos and the
Unindicted Co-conspirators] who disobeys a valid order of the court may be subject to both civil and
criminal penalties for his actions. Id. (citing United States v. Petito, 671 F.2d 68, 72 (2d Cir. 1982)).
"Criminal contempt is used to punish the contemnor or vindicate the court's authority; civil
contempt seeks to coerce the contemnor into compliance with the court's orders or to compensate the
complaining party [Ulysses T. Ware] for losses [+$2.225 billion dollars] incurred as a result of the
contemnor's conduct." Id. (citing Hess v. New Jersey Transit Rail Operations, Inc., 846 F.2d 114, 115 (2d
Cir. 1988)). (emphasis added).
Page 107 of 209

of the Ramos Fraudulent Scheme was designed and fabricated as an illegal device to evade,
resist, hinder, delay, and avoid all “reasonable steps” for full compliance of the Ware Court
Orders144 as an overt act in a racially-motivated Jim Crow retaliatory hate crime conspiracy to
“punish” Mr. Ware for not issuing fraudulent and bogus Rule 144(k) legal opinions to the “Civil
Plaintiffs” named in para. 8 of the 04cr1224 indictment, Exhibit 7, (i) unregistered broker-dealer
and (ii) 15 USC 77b(a)(11) statutory underwriters legally ineligible for Rule 144(k). See SEC
Release 33-7190 n. 17 (1995) (Section 2(a)(11) statutory underwriters required to register all
distribution of securities with the SEC).
Fact 42
Retained counsels, Edward T.M. Garland, Donald F. Samuel, Manibur S. Arora, David
Levitt, and Michael F. Bachner, officers of the court, appeared in 1224 and 1115, respectively, as
purported adversarial and independent Sixth Amendment counsel on behalf of the legal interests
of Ulysses T. Ware. See Exhibits 18, 18-1. See Appx. 2.
(a) From the entry of appearance the retained counsels refused and failed to provide the
Sixth Amendment required adversarial and independent “effective” “assistance” of “counsel”
and all failed to advance any cogent or coherent adversarial defense strategy, failed to undertake
any independent investigation of the alleged facts and Government’s theory of prosecution, and
all failed to file any adversarial and effective motion that challenged the elements of the
Government’s case in any strategic manner.
(b) From the entry of appearance, the retained counsels corruptly and perfidiously aligned
themselves with the interests of the Government Lawyers and all knowingly, willfully, in bad faith
colluded, conspired, acted in concert, and assisted the Government Lawyers to resist, conceal,
suppress, and cover-up material Brady exculpatory evidence that would have required the 1224
and 1115 indictments be dismissed with prejudice. See Exhibits 5, 7, 8, 8-1, 9, 10, 11, 12, 13, 13-
1, 14-1, 15, and 22 (the “Actual Innocence Facts”); cf., Appx. 2 and Appx. 3.
(c) From the entry of appearance, the retained counsels refused to adequately and properly
research the law regarding the acts claimed in the Government’s 1224 and 1115 indictments. All
refused to assist Ulysses T. Ware as “counsel,” prepare strategy or formulate a viable defense, all
refused to act and function as “counsel,” all were deliberately ineffective, all performed and
functioned in a deficient and subpar manner, and all acted in concert and corruptly with the
Government Lawyers to breach their fiduciary duties owed to their client Ulysses T. Ware.
144
Sacco v. Burke, 764 F. Supp. 918, 921 (S.D.N.Y. 1991) ("The only defenses to civil contempt are (1) that
the order claimed to be violated is vague and indefinite as to whether particular action is required or . . .;
(2) that the disobedient party lacked actual knowledge of the terms of the order; or (3) that proof of the
party's noncompliance is not clear and convincing." (internal citation omitted)).
Page 108 of 209

(d) From the entry of appearance, the retained counsels have refused and failed to provide
any escrow accounting of all retainers received from Ulysses T. Ware in violation of the ABA and
New York State Bar Association Rules of Professional Conduct.
(e) From the entry of appearance, the retained counsels deliberately, intentionally, and in
bad faith, deceived, misrepresented, lied, committed fraud, and misinformed their client Ulysses
T. Ware as overt acts in furtherance of the collusion and conspiracy entered into with the
Government Lawyers to have Ulysses T. Ware falsely and fraudulently convicted and unlawfully
sentenced to prison for alleged crimes that he did not commit.
(f) The retained counsels all pressured and badgered Ulysses T. Ware to plead guilty to the
non-offense charges in the 1224 and 1115 indictments. All lied and committed a fraud on their
client by mispresenting the facts and the law while colluding and acting in concert with the
Government Lawyers to violate the Sixth Amendment right to non-conflicted counsel. See Appx.
Id.
Fact 43
CJA counsel Gary G. Becker, Esq., an officer of the court, from the entry of appearance in
1115 corruptly acted and functioned in collusion and conspired with the trial judge, William H.
Pauley, III (deceased) and the Government Lawyers as a mole and government agent to convey
confidential information Becker learned from the close association to Ulysses T. Ware at trial at
the defense table.145
(a) Becker, over the objections of Ulysses T. Ware, sat at the defense table throughout the
1115 trials and sought to and did convey a pejorative posture to the trial jury by reading a book
at the defense table in the courtroom during the trial as part of his assigned duties to subvert the
judicial process and due process of law.146
145
Gary G. Becker, Esq., was appointed by the 1115 Court (Pauley, J), as CJA “stand-by” counsel over the
objections of Ulysses T. Ware, who appeared in 1115 as pro se counsel after retained counsel Michael F.
Bachner, Esq. was caught and terminated for transmitting trial strategy and confidential information to
AUSA Alexander H. Southwell; and for Bachner’s refusal to file a motion to suppress the government’s
evidence. See Dkt. 30, 31, and 33 in 1115. Becker was not paid for any legal services performed as CJA
“counsel” but, rather, was paid by District Judge William H. Pauley, III as a kickback, a bribe, or as an illegal
gratuity for his unlawful services as a government agents, a mole, and a spy, in violation of the New York
Bar Association Rule on Professional Conduct.
146
Becker corruptly functioned as a covert government agent, a mole, and a spy, as the conduit for the
trial judge, Pauley, J., and the Government Lawyers to receive confidential information and learn of the
defense’s trial strategy.
Page 109 of 209

(b) Becker was paid a bribe or illegal gratuity, the fraudulent payment of CJA fees, for
functioning in this agreed role as a government and court agent to learn the confidences and
strategies of Mr. Ware, and to convey those learned strategies and confidences to the
government’s prosecutors and the district court.
Fact 44
CJA counsel for codefendant government 1115 trial witness Jeremy Jones, see Exhibits
29, Marlon Kirton, Esq., an officer of the court, knowingly, willfully, and in bad faith corruptly
colluded, conspired, and aided and abetted the Government Lawyers to commit a fraud on the
1115 trial (Pauley, J.) and magistrate courts (Dolinger, J.) by actively and knowingly aided and
abetted the Government Lawyers to conceal and suppress Brady exculpatory evidence in
possession of the USAO (SDNY), the FBI, and the SEC in civil and criminal contempt of the Brady
Court Orders and the Court Judgments. See Exhibits 2, 2-1, 3, 3-1, 8, 8-1, 9, 10, 13, 13-1, and 22.
(a) Kirton corruptly, see Exhibits 29, acted, and functioned as a covert government agent
from the entry of appearance, and Kirton agreed, colluded, conspired, coordinated, and
suborned the known perjury of his client, Jeremy Jones, in collusion and while conspiring with
Government Lawyers AUSAs Alexander H. Southwell, Steven D. Feldman, Nicholas S. Goldin,
Andrew L. Fish, Maria E. Douvas, and Michael J. Garcia.
(b) Kirton arranged, coordinated, and suborned the known perjury of Jeremy Jones as the
overt act for the Government Lawyers to commit a fraud on the 1115 trial jury and court by the
introduction and subornation of perjured testimony by Jones that he was involved in a criminal
conspiracy that he was unaware of, and a conspiracy that he testified before the 03-0831 (D. NV)
SEC lawyers that he was unaware of any conspiracy, and had he been aware be would not have
joined and participated.147 See Exhibits 29, infra.
147
See the suppressed and concealed SEC actual innocent Brady Email, Exhibit 8: The contents of the
official SEC email sent to Jones by SEC lawyer Jeffrey B. Norris, cf., Exhibits 9, 10, 13, 13-1, and 14-1,
material Brady exculpatory evidence in the possession of the SEC and constructive possession of the
Government Lawyers. Jones and the 1115 government trial witnesses were not added to the SEC’s Las
Vegas 03-0831 (D. NV) civil lawsuit because the SEC’s lawyers did not believe there was any conspiracy
between Ulysses T. Ware, Jones, and the government’s 1115 trial witnesses.
Actual innocence Brady exculpatory evidence that was knowingly and willfully suppressed and concealed
by District Judge William H. Pauley, III and the Government Lawyers’ willful conspiracy to obstruct justice,
see Pauley, J., January 8, 2007, Order, Dkt. 35, that prohibited Ulysses T. Ware from exercising his Sixth
Amendment constitutional right to present a “complete defense to the government’s charges” and
Page 110 of 209

(c) Kirton knew that Jones intended to lie and encouraged Jones, in collusion with the
government’s lawyers, to knowingly commit perjury at trial in 1115. Kirton arranged,
coordinated, conspired, and colluded with the Government Lawyers to have Jones enter into a
secret deal with the Government Lawyers, Exhibits 29, that Jones would not receive any prison
time if he (Jones) lied and committed perjury that he was involved in a conspiracy with Ulysses
T. Ware, and “artificially inflated” the prices of INZS and SVSY’s securities, which in direct
contradiction to his sworn SEC deposition testimony148, which would enable the Government to
admit into evidence known fabricated and manufactured hearsay testimony and evidence
pursuant to FRE 801(d)(2)(E).
(d) Kirton falsely and fraudulently prepared and submitted bogus and fraudulent CJA
payment requests to the District Court (SDNY) while knowing that he acted and functioned not
as “counsel” but as a covert government agent to commit a fraud on the court and knowingly
suborn the lies and perjury of his client government “principal witness” Jeremy Jones,149 and
Kirton knew that he aided and abetted the Government Lawyers to suppress and conceal
material Brady exculpatory evidence that Jones was not involved in any conspiracy, not did Jones
“artificially inflate” or “increase” the “prices” of INZS and SVSY’s securities. See Exhibit 22.
(e) Kirton, knowingly, deliberately, willfully, and in bad faith, as an officer of the court, aligned
himself with the Government, and agreed, colluded, conspired, suborned, and facilitated his
client, the Government’s “principal witness,” Jeremy Jones, to knowingly commit perjury on or
about September 22, 2006, by allegedly entering into a null and void ab initio, unenforceable,
bogus, and fraudulent Rule 11 plea (perjury) contact. See Exhibit 29-3, and 29-4, infra.
Fact 45
Since beginning in or around 2005 in the Eastern District of New York, the Southern
District of New York, and elsewhere, Damian Williams, Merrick Garland, Williams H. Pauley, III
(deceased), Robert W. Sweet, (deceased), Audrey Strauss, Melissa Childs, Margaret M. Garnett,
Daniel Gitner, David Mulcahy, Michael Fitzpatrick, Thomas J. McCarthy, Merrick B. Garland, and
others known and unknown, knowingly, deliberated, confederated, agreed, and have corruptly
acted and functioned with an evil and malicious motive in concert as an illegal association-in-fact,
a continuing criminal enterprise, in willful violation of the Constitution of the United States and
its laws, have orchestrated an illegal plan and scheme to restrict Petitioner’s freedoms, mobility,
subpoena and compel the SEC’s Las Vegas litigation, 03-0831 (D. NV), lawyers in possession of the Brady
exculpatory evidence to testify on his behalf at trial in 1115.
148
Cf., Exhibit 8.
149
See Exhibits 23 and 26-1.
Page 111 of 209

and rights he is entitled to under the First and Fifth Amendments of the Constitution. See Appx.
3 and Appx. 5.
Fact 46
Since August 10, 2007, Dkt. 32, see Exhibit 2, the United States, and the government’s
prosecutors, and those that have knowingly and willfully in bad faith, aided and abetted them,
have been in civil and criminal contempt of the Brady Court Order entered in United States v.
Ware, 04cr1224 (SDNY) (Sweet, J.) (deceased);
(a) the government knowingly and willfully in bad faith suppressed, concealed, hid, and
covered up material Actual Innocent Brady exculpatory and impeachment materials required to
have been disclosed to Ulysses T. Ware “prior to trial” as ordered by the commands of the Brady
Court Order.
(b) the government is currently in willful criminal and civil contempt of the Brady Court Order,
Exhibit 2.
Fact 47
Since May 19, 2006, Dkt. 17, see Exhibit 3, the United States, and the government’s
prosecutors, and those that have knowingly and willfully in bad faith, aided and abetted them,
have been in civil and criminal contempt of the Brady Court Order entered in United States v.
Ware, 05cr1115 (SDNY) (Pauley, J.) (deceased);
(a) the government knowingly and willfully in bad faith suppressed, concealed, hid, and
covered up material Actual Innocent Brady exculpatory and impeachment materials required to
have been disclosed to Ulysses T. Ware “prior to trial” as ordered by the commands of the Brady
Court Order.
(b) the government is currently in willful criminal and civil contempt of the Brady Court Order,
Exhibit 3.
Fact 48
GSL’s purported Sixth Amendment legal counsel’s performance was per se ineffective, and Mr.
Ware was prejudiced by the subpar performance.
Fact 49
Page 112 of 209

Michael F. Bachner, Esq. purported Sixth Amendment counsel’s performance was per se
ineffective; and Mr. Ware was prejudiced by the subpar performance.
Fact 50
GSL, Michael F. Bachner, Esq., and Gary G. Becker, Esq., jointly and severally, aided, abetted,
facilitated, and assisted the government as a government agent, to rig and fix the 04cr1224 and
05cr1115 proceedings in such a manner that Mr. Ware was deprived of his constitutional rights
to the effective assistance of counsel; for which he was harmed, injured, and prejudiced.
End of Document
I Ulysses T. Ware have this 20th day of May 2023 in Brooklyn, NY set my hand and seal,
under oath, subject to the penalty of perjury, having personal knowledge of the facts, and
pursuant to 28 USC 1746 have made the foregoing statements of fact and certify each Fact is true
and correct and signed this Declaration.
/s/ Ulysses T. Ware

__________________________________
Ulysses T. Ware
May 20, 2023
Page 113 of 209

4 28 USC 2253(c)(1)(B) Substantial Showing of the Denial of
Substantial Constitutional Rights.
1 The Government and the district courts knowingly colluded, conspired, acted in
concert, and intentionally violated the Due Process Clause and due process of law apropos
the rule of law announced in Brady v. Maryland, 373 U.S. 83 (1963) and its progenies—
that is, unconstitutional governmental and district court suppression, failure to search, and
produce claims regarding actual innocent exculpatory and impeachment evidence vis-a-
vis:150
i. Suppressed Government “principal witness” Jeremy Jones’ alleged Sept. 2006 purported
Rule 11 plea and USSG 5K1.1 cooperation perjury contracts; Rule 11 allocution transcript,
Giglio and Jencks Act debriefing, government sentencing memorandum, USSG 5k1.1
substantial assistance letter; all benefits, favors, gifts, and other gratuities received by
Jones, Epps, Williams, Sadler, and Jackson?
150
See 28 USC 2255(f)(2), the 2255(f)(1) 1 year limitation period does not begin to run until governmental
interference (“impediment”) which violated the Constitution “is removed”—that is, see Exhibit 1, infra,
the EOUSA’s March 20, 2023, In re Ware, 000907 FOIA response that “over 15 boxes of materials that could
be Brady evidence have not been searched by the U.S. Attorney’s Office (SDNY)” (paraphrased) is
constitutional interference by the government (USAO-SDNY, EOUSA, and DOJ), that tolled the 2255(f)(1) 1
year limitations period to file a 2255(a) motion until the governmental interference “is removed.” See
Franklin v. Keyes, 30 F.4d 634 (7th Cir. 2022); cf., 2255(f)(2): “the date on which the impediment to making
a [2255(a)] motion created by governmental action in violation of the Constitution [Brady violation] or
laws of the United States [18 USC 3500] is removed, if the movant was prevented from making a motion
by such governmental action.” (emphasis added).
Because the government, the USAO (SDNY), has yet to search, produce, and disclose the contents of the
“over 15 boxes of materials that could contain Brady evidence” the constitutional violation “impediment”
has not been “removed” to filing a timely 2255(a) motion, and therefore, Applicant pursuant to 2255(e)
saving clause was authorized on March 21, 2022, to avail himself of 2241(a) habeas corpus remedy
because the 2255 remedy was obstructed by the deliberate and intentional governmental constitutional
“impediment” which had not been removed on March 21, 2022, and therefore, accordingly, 2255(a) was
(i) “ineffective” and (ii) “inadequate,” i.e., unavailable to provide Applicant with any relief.
Page 114 of 209

ii. Suppressed Government 04cr1224 trial witness disgraced former SEC lawyer Jeffrey B.
Norris’ SEC bad acts; Norris’s SEC disciplinary file; Norris’ psychiatric records; Norris’
request for a benefit to testify in 04cr1224?
iii. EOUSA’s In re Ware, 000907 March 20, 2023, FOIA response—that is, suppressed “ …
over 15 boxes of materials …” which have not been searched for Brady exculpatory or
impeachment evidence?
iv. Suppressed FINRA’s May 17, 2021, certification of unregistered broker-dealer status for
each 02cv2219 (SDNY) plaintiff?
v. The government suppression of the actual innocent, exculpatory 15 USC 77b(a)(11)
statutory underwriter status for each 02cv2219 plaintiff?
vi. The government’s suppression of the actual innocent, exculpatory 15 USC 78p(b),
statutory insider status for each 02cv2219 plaintiff?
vii. The government’s suppression of the actual innocent, exculpatory affiliate status of each
02cv2219 plaintiffs.
viii. The government’s suppression of the Dec. 20, 2007, Dkt. 90, Rule 41(a)(2) voluntary
final judgment entered in 02cv2219 (SDNY) which annulled and vitiated the 04cr1224
trial exhibits and evidence, GX 1-4, GX 5, GX 7, GX 11, GX 24, GX 34, etc.?
ix. The government’s suppression of the fact that Ari Rabinowitz and LH Financial Services
are unregistered broker-dealers and unregistered investment advisers?
Page 115 of 209

x. Suppressed the actual innocent, exculpatory fact that GPMT’s convertible promissory
notes, GX 1-4, are criminal usury subject matter which violated NYS Penal Law, section
190.40, the criminal usury law, a class E felony?
xi. The government’s suppression of the actual innocent exculpatory affidavit of Baker &
McKenzie, LLP lawyer, Lawrence B. Mandala, Esq., GPMT’s prior securities law legal
counsel with respect to the 2001 Form SB-1 registration of GX 1-4, conversion securities?
xii. The government’s suppression of the actual innocent exculpatory commands of FBI
special agent Terrance Donohue regarding his statement to GMPT’s CEO, Elorian Landers
“do not issue any shares to the 02cv2219 (SDNY) plaintiffs, inform them they are under
criminal investigation?
xiii. The government’s suppression of the communications of the Atlanta, GA law firm
Kilpatrick, Townsend, & Stockton, LLP (“KTS”) to the 02cv2219 plaintiffs and to the
Atlanta, GA In re Group Management Corp., 03-93031 (BC NDGA) bankruptcy judges,
clerks, and U.S. Trustee (James Morawetz)?
xiv. The government’s suppression of the comments of the SEC regarding GPMT’s 2001 Form
SB-2 registration statement apropos the Criminal Usury Convertible Promissory Notes,
GX 1-4, unlawful registration attempt?
xv. The government’s suppression of the actual innocent, exculpatory SEC email from former
SEC lawyer Jeffrey B. Norris to the government’s 05cr1115 principal witness Jeremy Jones
which informed Jones that “the SEC believed his deposition testimony” and “was not
added [to the SEC-DOJ 2003 Las Vegas Bootleg Grand Jury Proceedings, 03-0831 (D. NV)]
Page 116 of 209

… that he was not involved in any conspiracy [with Applicant or anyone], and had he
known of any conspiracy would not have gotten involved ….” (paraphrased). (quoting
Norris in SEC email to Jones). (emphasis added).
xvi. The 05cr1115 district court (Pauley, J.) on Dec. 11, 2006, Dkt. 29 (order), deliberately,
intentionally, and in bad faith colluded, conspired, acted in concert with the government
and violated the Brady doctrine, and the Brady court order, Dkt. 17 (May 19, 2006), Pauley
lied, obstructed justice, and violated the Constitution’s Fifth and Sixth Amendments—
Pauley denied Applicant’s Brady discovery motion to have the government compelled to
produce all Brady evidence while knowing he and the government then were in
possession of the alleged Sept. 2006 bogus and fraudulent Rule 11 proceedings judicial
public records regarding Jeremy Jones, the government’s “principal witness" during the
05cr1115 trial.
Page 117 of 209

Figure C—05cr1115 (SDNY), Dec. 11, 2006, Dkt. 29, Order (Pauley, J.) denying Brady production,
cf., with Figure D, the Sept. 22, 2006, purported Rule 11 proceedings of a person claimed to be
“Jeremy Jones.”
Page 118 of 209

Figure D—alleged Sept. 22, 2006, Rule 11 proceedings in 05cr1115 (SDNY) (Pauley, J.) which have
never been disclosed or produced by the district court or the government in violation of the Brady
doctrine.
Page 119 of 209

Figure E—suppressed, concealed, stolen, removed, and undocketed Dkt. 23, 10/11/2006 Order
(Pauley, J.) purporting to accept the stolen alleged Sept. 22, 2006, Rule 11 perjury plea and
cooperation of Jeremy Jones. See Figure F, the 05cr1115 docket which has no public record of Dkt.
23 or Dkt. 24, Figure D, supra.
Page 120 of 209

Figure F—05cr1115 alleged official public docket. No public record of Dkt. 23 (Pauley’s alleged Oct.
11, 2006, acceptance of Jones’ alleged Rule 11 perjury plea contract) or Dkt 24 (alleged Sept. 22,
2006, alleged Rule 11 perjury allocution by Jeremy Jones), and no record of the actual alleged Sept.
22, 2006, Rule 11 perjury contract—criminal conspiracy with the government to violate 18 USC 2,
241, 242, 371, 1519, and 2071, and the Due Process Clause and First Amendment right of access.
Page 121 of 209

Figure G—Marlon G. Kirton, Esq. April 30, 2008, letter to the 05cr1115 district court (Pauley, J.)
which confirmed Jeremy Jones was a paid government informant and witness, “cooperated with
the government” and received “a 5k letter” for substantial assistance to the government by
deliberately and with the government’s knowledge and consent committed perjury and gave false
and misleading testimony during the 05cr1115 trials in 2007 in violation of the Due Process Clause,
Mooney, and Napue.
Page 122 of 209

1.1 The District Court erred, wrongly decide the matter, and violated the Suspension
Clause, Article I, section 9, Clause 2 of the Constitution by denying Applicant his substantive
constitutional right, and violated procedural and substantive provision of the Due Process
Clause by its refusal to adjudicate the merits of the 22cv3409 (SDNY) 28 UCS 2241(a) actual
innocent claims where Applicant was not a federal prisoner, and not in federal custody or
detention on Dec. 12, 2022, when the district court, Dkt. 126, order (Ramos, J.) purported
to convert the 22cv3409 (SDNY) 2241(a) actual innocent habeas corpus petition to a moot
28 USC 2255(a) motion? Yes.151
The Suspension Clause is a provision in Article I, Section 9, Clause 2 of the United States
Constitution. It states:
"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."
This clause protected the right of Applicant to challenge his detention or collateral
consequences resulting from the 04cr1224 and 05cr1115 wrongful convictions in federal court
through the writ of habeas corpus, 28 USC 2241(a). It ensures that the government cannot detain
individuals indefinitely or impose adverse collateral consequences that resulted from the
151
On March 21, 2022, Applicant paid, and the District Court (EDNY) accepted, the $5.00 filing fee to file
the 2241(a) habeas corpus petition, 22cv1531 (EDNY); which on April 27, 2022, was transferred, sua
sponte, to the District Court (SDNY), 22cv3409 (SDNY) (Ramos, J.). As of today May 8, 2023, the district
court (SDNY) has not refunded the $5.00 2241 habeas corpus filing fee exactly because Applicant never
filed a 2255(a) motion, a continuation of the sub judice 04cr1224 and/or 05cr1115 criminal proceedings,
see Figure, 6-A, infra, Advisory Committee Notes to Rule 1 (scope of 2255 motion): (“a motion under Sec.
2255 is a further step in the movant’s criminal case”) which (i) a 2255 motion does not require the $5.00
2241 habeas corpus filing fee, and (ii) a 2255 motion requires the sentencing district court to confirm its
Article III, 18 USC 3231, and 2255(a) subject matter jurisdiction to conduct (continue) lawful 2255
proceedings which the plaintiff, the government, in the “movant’s criminal case” has the burden of proof
and production, Lujan, 540 U.S. at 560-61, as “a threshold matter” before reaching the merits of the
purported 2255(a) motion’s claims, see Steel Co., 523 U.S. at 93-95). (emphasis added).
Page 123 of 209

government’s wrongful convictions without providing them with due process and a fair hearing
before an unbiased, and impartial judicial officer before a court of law.
The writ of habeas corpus, 28 USC 2241(a), 22cv3409 (SDNY), authorized the Applicant
to challenge the legality of the unlawful restraint and adverse and illegal collateral consequences
resulting from the unlawful convictions imposed in 04cr1224 and 05cr1115 by requiring the
government to produce them before a court and/or justify the continued adverse collateral
consequences. The Suspension Clause permits Congress to suspend the writ of habeas corpus
only in limited circumstances when the public safety is threatened by rebellion or invasion.
The district court erred as a matter of law and fact, and wrongly decided the matter;152
(Ramos, J.) on Dec. 12, 2022, Dkt. 126, Order, purported to convert Applicant’s lawful 28 USC
2241(a) habeas corpus petition, 22cv3409 (SDNY)—that is, a 2241(a) habeas corpus petition with
actual innocent claims based on newly discovered Brady exculpatory evidence and other claims,
to a moot and manifestly frivolous 2255(a) motion, after finding as fact Applicant was not then
a federal prisoner, and was not then on Dec. 12, 2022, in custody or detention of a sentence
imposed by the 04cr1224 or 05cr1115 sentencing courts—the 2255(a) motion was as a matter of
law and fact moot.
The district court erred as a matter of law and fact and manifestly, wrongly decided the
matter, and reasonable jurists could debate the correctness of the court’s ruling, Dkt. 126, Order,
that the district court was lawfully authorized to conduct 28 USC 2255(a) motion proceedings
152
Assuming, arguendo, that the AEDPA’s 28 USC 28 USC 2253(c)(1) applies, which it does not.
Page 124 of 209

with respect to expired by operation of law moot federal sentences—that is, on Dec. 12, 2022, did
the 04cr1224 and 05cr1115 sentencing district courts have Article III, and 28 USC 2255(a)
jurisdiction over the moot, expired by operation of law sentences, (the “Moot Subject Matter”)?
The answer is in the negative. Absolutely No.
The sentencing district court lacked Article III and 2255(a) statutory redressability to (i)
“vacate,” (ii) “set aside,” or (iii) “correct” the Moot Subject Matter, the expired by operation of
law sentences. Therefore, accordingly, on Dec. 12, 2022, the 22cv3409 (SDNY) district court
(Ramos, J.) manifestly, and completely lacked Article III and 2255(a) subject matter jurisdiction to
convert the pending 22cv3409 (SDNY) actual innocent, 28 USC 2241(a) habeas corpus petition to
a manifestly frivolous, and completely moot 2255(a) motion.
The district court erred, manifestly, decided the matter wrongly, and reasonable jurists
could debate the correctness of the district court’s ruling, Dkt. 126, Order. Accordingly, to the
extent that 2253(c)(1) applies, which it does not, Applicant has made a “substantial showing” of
the denial of a constitutional right—his rights under the Due Process Clause, and the Suspension
Clause of the Constitution, and therefore has met the requirements for a COA to be granted on
this issue to the extent that a COA is required to appeal the denial of a 2241(a) habeas corpus
petition, which a COA is not required.
Page 125 of 209

2. Applicant’s retained purported Sixth Amendment legal counsels in 04cr1224 and
05cr1115 (Garland, Arora, Levitt, and Bachner) violated Applicant’s Sixth Amendment
rights and the legal standard in Strickland v. Washington, 466 U.S.668 (1984) and U.S. v.
Cronic, 466 U.S. 648 (1984) right to the independent, effective, assistance, of legal counsel
by committing, or omitting to commit the following required actions or acts which was
below the standard of professional conduct, and for which Applicant was prejudiced:
i. The legal counsels jointly and severally, colluded and conspired with the district
courts and the government and refused to file any Brady discovery motions, or any
adversarial motions whatsoever in 04cr1224; and in 05cr1115 Garland, and Arora
refused to file any motions, or other adversarial pleadings, and Bachner only
intended to file a rudimentary deficient Brady motion until Applicant drafted the
Brady motion for Bachner, and demanded that Bachner file the Brady motion
drafted by Applicant.153
ii. Refused to investigate any legal or factual defenses—that is, SEC Release 33-7190
n. 17 (1995) is a complete legal defense to all 18 USC 401(3) criminal contempt
charges. SEC Release 33-7190 strictly prohibits Section 2(a)(11) statutory
underwriters (the 02cv2219 (SDNY) plaintiffs, see the government’s actual
innocent, affirmative defenses, and judicial admissions and confessions pleaded
on the face of the 04cr1224 indictment at ¶¶8-11, which pleaded the government
out of court, and acquitted Applicant of all charges on Nov. 17, 2004) from any
exemption to 15 USC 77e strict-liability registration requirements.
iii. Refused to investigate or conduct any legal research regarding the Las Vegas 2003
03-0831 (D. NV) ¶33 in the SEC-DOJ’s commingled complaint.
153
In U.S. v. Ware, 05cr1115 (SDNY) Bachner adamantly refused to file any other pleading other than the
Brady motion drafted by Applicant. Bachner claimed, “the government will punish me if I attack their
case … I cannot do that, Judge Pauley will have my ass, he is not a very nice person … I am sorry but I
cannot do anything that will upset Judge Pauley or the government, I cannot do it ….” (emphasis in original)
(quoting Bachner) before Bachner was fired by Applicant in 2006, and proceeded to trial in pro se status,
for colluding with the government and passing confidential trial strategy and communications to AUSA
Alexander H. Southwell, and District Judge Pauley which resulted in the September 2006 superseding
indictment (S1) in 05cr1115 (SDNY) based on the confidential information Applicant shared with Bachner
in July 2006 regarding INZS’s CEO Thomas Vidmar’s willingness to testify that “ … all of the content of the
INZS press releases were his statements and were believed to be true when made ….”
Page 126 of 209

iv. Refused to file a motion to dismiss the 04cr1224 indictment for failure to charge
an 18 USC 401(3) criminal contempt offense given the actual innocent affirmative
defenses pleaded by the government in ¶¶ 8-11 of the indictment.154
v. Refused to file a motion to dismiss the 05cr1115 indictment for, (i) failure to charge
an 18 USC 3231 “offense” given ¶33 in the 2003 Las Vegas 03-0831 (D. NV)
complaint, and (ii) because the government, the United States, pleaded an actual
innocent, affirmative defense in ¶33 of the 03-0831 (D. NV) complaint, which
stipulated as fact, and judicially admitted the press releases of INZS and SVSY as a
matter of law and fact were immaterial—that is, did not cause any alleged
“artificial” “increase,” “inflation,” or “pumped up” the stocks’ “prices” and
therefore not civilly or criminally actionable in U.S. v. Ware, 05cr1115 (SDNY), as
moot subject matter.
vi. Refused to contact FINRA or the SEC and confirm the 02cv2219 plaintiffs were
unregistered broker-dealers, and Section 2(a)(11) statutory underwriters of
GPMT’s Criminal Usury Convertible Promissory Notes (GX 1-4) and therefore, ipso
facto, as a matter of law the 02cv2219 (SDNY) plaintiffs were legally and factually
ineligible for any Rule 144 exemption to Section 5.
vii. The legal counsels knowingly, willfully, and in bad faith colluded, conspired, and
acted in concert with the Government and the District Court (Sweet, J.) as an illegal
plan and scheme to have Applicant fraudulently convicted in violation of the Sixth
Amendment, the Due Process Clause, and Strickland v. Washington, and U.S. v.
Cronic legal standards by their attempted bullying and haranguing of Applicant to
plead guilty to the charges in 04cr1224 and 05cr1115.
viii. Michael F. Bachner operated under an undisclosed and covert actual and/or
apparent conflict of interest, and violated his duty of loyalty and duty of care to
Applicant in violation of Strickland and the Sixth Amendment and Due Process
154
As a matter of law and fact it is not an 18 USC 401(3) “offense” for a lawyer to not criminally and civilly
violate the federal securities laws—15 USC 77e, 77x, and 78ff, by not issuing bogus and fraudulent Rule
144 legal opinions to 15 USC 77b(a)(11) statutory underwriters and Id. 77b(a)(12) unregistered broker-
dealers, the 02cv2219 (SDNY) lawsuit plaintiffs, to criminally circumvent Section 5, and recklessly enable
an illegal public offering of criminal usury convertible promissory notes, GX 1-4, via GX 5, ¶10.1(iv). See
SEC Release 33-7190 n. 17 (1995) (“Section 2(a)(11) statutory underwriters required to register all
distribution of securities.”). (emphasis added). Cf., Adar Bays v. GeneSYS ID, Inc., 28 F.4d 379 (2d Cir. 2022)
(criminal usury convertible promissory notes, GX 1-4, null and void ab initio, unenforceable, and violated
NYS Penal Law, section 190.40, the criminal usury law, a class E felony, which is not waivable).
Page 127 of 209

Clause when failing to disclose the conflict of interest prior to Applicant retaining
Bachner?
ix. Bachner, Garland, Arora, and Levitt violated Applicant’s Sixth Amendment right to
an “independent” legal counsel when they refused to file any adversarial motions
in 05cr1115?
x. Bachner, Garland, Arora, and Levitt violated Applicant’s Sixth Amendment and Due
Process Clause rights, Strickland, and the ABA and District Court (SDNY) Rules of
Ethics and Professional Responsibility when Bachner and Garland deceived
Applicant, and fraudulently induced Applicant to retain their services as Sixth
Amendment legal counsel in 04cr1224 and 05cr1115 while knowing they had no
intention of competently or adequately defending the cases; and in essence they
knowingly and in bad faith stole and robbed Applicant of his substantial retainer
payments without performing any adversarial legal counselling or services on
Applicant’s behalf?
COA claims based on the legal standard in Cuyler v. Sullivan, 446 U.S. 335 (1980):155
xi. Did the 05cr1115 district court violate Applicant's Sixth Amendment right to
effective assistance of counsel as defined in Cuyler v. Sullivan, by denying
Applicant's motion for substitute counsel after Bachner was fired, even though
Bachner was allegedly colluding with the prosecution and sharing confidential trial
strategy and communications with the government and the judge, thereby
creating an actual conflict of interest that adversely affected Bachner's
performance as counsel for Applicant? This claim also violates the Strickland
standard for ineffective assistance of counsel.
xii. Did the 05cr1115 district court violate Applicant's Sixth Amendment right to
effective assistance of counsel as defined in Cuyler v. Sullivan, by failing to hold a
hearing on the allegations of collusion and misconduct by Bachner and the
prosecution, and by failing to take any action to remedy the harm caused by the
conflict of interest, which was created by Bachner's actions and adversely affected
Applicant's right to a fair trial? This claim also violates the Strickland standard for
ineffective assistance of counsel.
155
The United States Supreme Court held that a defendant could establish a violation of his Sixth
Amendment right to the effective assistance of counsel if he can show "that an actual conflict of interest
adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).
Page 128 of 209

xiii. Did the 05cr1115 district court violate Applicant's Sixth Amendment right to
effective assistance of counsel as defined in Cuyler v. Sullivan, by allowing Judge
Pauley to preside over the trial despite his alleged bias against Applicant and his
attorney, as evidenced by Bachner's statements that he feared Judge Pauley and
could not file any pleadings that would upset him, thereby creating an actual
conflict of interest that adversely affected Bachner's performance as counsel for
Applicant? This claim also violates the Strickland standard for ineffective
assistance of counsel.
xiv. In each of these COA claims, the alleged actual conflict of interest created by
Bachner's actions and the district court's failure to remedy the harm caused by the
conflict are the basis for the claim that Applicant was deprived of effective
assistance of counsel in violation of the Sixth Amendment as defined in Cuyler v.
Sullivan. Each claim also satisfies the Strickland standard for ineffective assistance
of counsel, as they allege that Bachner's performance fell below an objective
standard of reasonableness and that there is a reasonable probability that, but for
Bachner's errors, the result of the proceeding would have been different.
3. The government violate the Due Process Clause by colluding, conspiring, or acting
in concert with the Securities and Exchange Commission, (“SEC”), District Judge Kent J.
Dawson, the FBI (David Makol), and others by using the 2003 Las Vegas SEC-DOJ 03-0831
(D. NV) commingled alleged civil proceedings as a bootleg grand jury to illegal gather and
obtain evidence to be used against Applicant in the imminent 04cr1224 and 05cr1115
criminal proceedings, as the illegal and unconstitutional means and methods to circumvent
the Federal Rules of Criminal Procedures, and to violate Applicant’s Fifth Amendment right
to remain silent and not self-incriminate himself in violation of the legal standard in U.S. v.
Kordel? Yes.
i. Did the government violate the Due Process Clause of the Fifth Amendment by colluding,
conspiring, or acting in concert with the Securities and Exchange Commission, (“SEC”),
District Judge Kent J. Dawson, the FBI (David Makol), and others in using the 2003 Las
Vegas SEC-DOJ 03-0831 (D. NV) commingled alleged civil proceedings as a bootleg grand
Page 129 of 209

jury to illegally gather and obtain evidence to be used against Applicant in the imminent
04cr1224 and 05cr1115 criminal proceedings, thus violating Applicant's right to a fair
trial? (violation of Fifth Amendment Due Process Clause) (Brady v. Maryland, 373 U.S. 83
(1963))? Yes.
ii. Did the government's use of the commingled alleged Las Vegas 03-0831 (D. NV) civil
proceedings as a bootleg grand jury constitutes an illegal and unconstitutional means—
prosecutorial misconduct, and a violation of the District Court (SDNY), and DOJ’s Rules of
Ethics and Professional Conduct, Rules 3.3, 3.4, 8.4, and duty of complete candor, of
circumventing the Federal Rules of Criminal Procedures and unlawfully obtaining evidence
against Applicant in violation of Fifth Amendment Due Process Clause and U.S. v. Williams,
504 U.S. 36 (1992)? Yes.
iii. Did the government's and the SEC’s illegal use of the 2003 Las Vegas 03-0831 (D. NV) the
commingled alleged civil proceedings as a bootleg grand jury unlawfully and
unconstitutionally circumvent the Federal Rules of Criminal Procedure, which govern the
conduct of criminal proceedings, and which were designed to protect the rights of the
accuse violate the Fifth Amendment Due Process Clause and Fed. R. Crim. P. 1? Yes.
iv. Did the government's use of the commingled alleged civil proceedings as a bootleg grand
jury violate Applicant's Fifth Amendment right to remain silent and not self-incriminate
himself by obtaining evidence through unconstitutional means and methods, thus
violating the legal standard set forth in U.S. v. Kordel, 397 U.S. 1 (1970)? Yes.
Page 130 of 209

4. The U.S. v. Ware, 04cr1224 (Sweet, J.) (deceased) and U.S. v. Ware, 05cr1115 (SDNY)
(Pauley, J.) district courts erred and violated the Due Process Clause and Steel Co. v. Citizens
for a Better Environment, 523 U.S. 83 (1995) by conducting the criminal proceedings in lack
of Article III and 18 USC 3231 subject matter jurisdiction where the respective indictments
failed to charge an “offense” required by 18 USC 3231?
Applicant is actually innocent of all 18 USC 401(3) criminal contempt charges in U.S. v.
Ware, 04cr1224 (SDNY) because:
I. It is not an 18 USC 401(3) criminal contempt “offense” for Applicant, GPMT’s securities
counsel, to not violate the federal securities laws, 15 USC 77e, 77x, and 77ff, and issue
bogus, fraudulent, and void ab initio Rule 144 legal opinions to the 02cv2219 (SDNY)
plaintiffs—who are, (i) Section 2(a)(11) statutory underwriters, (ii) unregistered broker-
dealers, (iii) 15 USC 78p(b) statutory insiders, and (iv) affiliates of GPMT, legally ineligible
for any exemption to 15 USC 77e, Section 5, to enable an unregistered, criminal public
offering of GPMT’s unlawful debt, criminal usury convertible promissory notes, GX 1-4,
to circumvent Section 5 registration requirements. See SEC Release 33-7190 n. 17 (1995)
(“Section 2(a)(11) statutory underwriters [the 02cv2219 (SDNY) plaintiffs, cf., 04cr1224
indictment at ¶¶8-11, also see GX 5, ¶10.1(iv)] required to register all distribution [public
offering] of securities.”) (emphasis added); also see Berckeley, 455 F.3d at 220 (same citing
SEC Release 33-7190).
Page 131 of 209

4.1 The government and the U.S. v. Ware, 04cr1224 (SDNY) district court (Sweet, J.)
violated Steel Co., due process of law, 28 USC 1332(a), 28 USC 547, Article III, 18 USC 3231,
and 18 USC 401(3) by (i) procuring the moot 04cr1224 indictment on Nov. 17, 2004, and
(ii) prosecuting 04cr1224 in 2007 while knowing, or reckless not knowing the underlying
02cv2219 (SDNY) proceedings were null and void ab initio for (I) lack of 28 USC 1332(a)
diversity, and (II) lack of Article III subject matter jurisdiction where each 02cv2219 (SDNY)
plaintiff was (a) an unregistered broker-dealer, and (b) and a 15 USC 78p(b) statutory insider
of defendant IVG Corp., a/k/a Group Management Corp., (“GPMT”)? Yes.
See 4.0, supra for the legal analysis and explanation.
5.0 The government violated the rule of law in the decisions Napue v. Illinois, 360 U.S.
264 (1959) and Mooney v. Holohan, 293 U.S. 103 (1935), and the Due Process Clause by
the knowing and/or the reckless use of perjury and/or false and/or misleading testimony
and false evidence at trial in 05cr1115 by its trial witnesses Jones, Epps, Sadler, Williams,
and Jackson during; and by Zitter, Norris, Rabinowitz, and Quinn during the 04cr1224 trial?
Yes.
i. Did the government's use of perjury, false and/or misleading testimony, and false
evidence at trial in 05cr1115 and 04cr1224 violate Applicant's Sixth Amendment right to
a fair trial and his Fifth Amendment right to due process under the rule of law established
in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, by withholding exculpatory
and/or impeachment evidence regarding its trial witnesses Jones, Epps, Sadler, Williams,
and Jackson, and by Zitter, Norris, Rabinowitz, and Quinn during the 04cr1224 trial? Yes.
ii. Did the government's knowing and/or reckless use of perjury, false and/or misleading
testimony, and false evidence at trial in 05cr1115 and 04cr1224 violate Applicant's Fifth
Amendment right to due process and the rule of law established in Giglio v. United States,
405 U.S. 150 (1972), by failing to disclose favorable agreements and/or benefits provided
Page 132 of 209

to its trial witnesses Jones, Epps, Sadler, Williams, and Jackson, and by Zitter, Norris,
Rabinowitz, and Quinn during the 04cr1224 trial, that could have impeached their
credibility? Yes.
5.1 The government violated the Due Process Clause and the above legal principles in
5.0 by not bringing to the attention of the district courts, the courts of appeals, and the
Supreme Court that its grand jury, and trial witnesses in 04cr1224 and 05cr1115 knowingly
with the consent and knowledge of the government’s prosecutor and supervisors in the
Office of the U.S. Attorney (SDNY), (the “USAO”), lied, committed, perjury, and gave false,
and/or materially misleading testimony to the grand jury, during the 04cr1224 and
05cr1115 trial, and during the associated appeals? Yes.
The government violated the Due Process Clause and the legal standards in Nepue and
Mooney by not bringing to the attention of the courts indisputable proof its trial witnesses in
04cr1224 Zitter, Rabinowitz, Norris, and Quinn) knowingly lied, committed perjury, and gave false
and misleading testimony, with the consent of the government;156 and in 05cr1115 (Epps, Jones,
Williams, Sadler, and Jackson) knowingly lied, committed perjury, and gave false and materially
misleading testimony during the 05cr1115 trial.157
156 The government’s 04cr1224 trial witnesses’ testimony was false, misleading, and perjury—the
government’s prosecutors did not correct the witnesses’ testimony that the Moot Orders, GX 7,
GX 11, and GX 24 were null and void ab initio; and did not correct the false and misleading
testimony that Applicant not was required to issue bogus and fraudulent Rule 144 legal opinions
of Section 2(a)(11) statutory underwriters in violation of 15 USC 77e, 77x, and 78ff.
157
The government knowingly had its trial witnesses, lie, commit perjury, and give false and misleading
testimony, regarding, (i) the press releases of INZS and SVSY “artificially” “inflated” the “prices” of the
stocks; (ii) the existence of a conspiracy between Applicant and the witnesses, which was contradicted and
Page 133 of 209

5.2 The government conspired and colluded with the SEC, District Judge Pauley, and
District Judge Kent J. Dawson and violated due process of law and Napue and Mooney,
when it deliberately, intentionally, and in bad faith fabricated and falsified and created
materially misleading trial exhibits, GX 92 and 93, and introduced the same into evidence
in 05cr1115 via FBI analyst Maria A. Font, by AUSA Alexander H. Southwell, while Southwell
knew, or was reckless and negligent in not knowing that GX 92 and GX 93 were materially
false, fraudulent, misleading, and contradicted—that is, impeached, and vitiated by ¶33 in
the 2003 Las Vegas, SEC-DOJ Bootleg Grand Jury Proceedings complaint—ergo, a
Government actual innocent, Brady exculpatory affirmative defense, and judicial admission
that nullified, annulled, and abrogated all charges in 05cr1115? Yes.
During the 05cr1115 trial, the government called FBI analyst Maria A. Font to testify
regarding the fabricated, false, misleading, and bogus GX 92 and GX 93 (summary chart evidence
purporting to show “artificial” “inflation” in stock “prices”) prepared by Font under the
supervision and with the consent of AUSA Alexander H. Southwell according to Font’s testimony.
The district court (Pauley, J.), Font, and Southwell all knew, and/or were reckless and
negligent for not knowing that “artificial” “inflation” of stock “prices” can be proved beyond a
reasonable doubt only by and through trial expert testimony, supported by an event study
prepared by a government expert witness.
impeached by the SEC’s lawyers involved in the 2003 SEC-DOJ Las Vegas Bootleg Grand Jury Proceeding
(03-0831 D. NV).
Page 134 of 209

6. Ramos, J. erred regarding his refusal to recuse from 04cr1224, 05cr1115, 22cv3409,
and 22cv10566 given that he was named in the 22cv3409 (SDNY) 2241 habeas corpus
statement of facts, named as a hostile, adverse, material fact witness violated the Due
Process Clause, and Supreme Court precedent, In re Murchison, 349 U.S. 133, 136 (1950)
(no man or judge is permitted to be a judge in his own case … due process of law prohibits
that …)? Yes.
As a matter of law and fact, the district judge, Ramos, J. who is named as a hostile, adverse,
material fact witness, adverse-party opponent, unindicted coconspirator, and named in the
Statement of Undisputed Material Facts attached to the 22cv3409 2241 Petition (see Section 3,
supra), and a knowing participant in the government’s conspiracy to obstruct justice, and a
material and knowing participant in the implementation of 2255(f)(2) “impediments”158 which
delayed, obstructed, hindered, and prevented Applicant from timely filing a 2255 motion was
required to recuse and disqualify himself pursuant to 28 USC 455(a), 455(b)(1-5), and the
Constitution’s Due Process Clause and Sixth Amendment.
158
According to the District Court (SDNY) records department on Oct. 7, 2022, Ulysses T. Ware was
informed that “Judge Ramos has those documents [the alleged Sept. 2006 Rule 11 proceeding’s files and
judicial public records] in his Chambers … we do not have them in this office … you will have to get them
from Judge Ramos or the government who should also have them … we do not have them here in this
office ….” (emphasis in original). According to the records department Judge Ramos had removed,
suppressed, concealed, and stolen Jeremy Jones’ files and judicial public records from the custody of the
District Clerk (SDNY), and had taken personal possession of the judicial public records to prevent Ulysses
T. Ware from access to the Brady exculpatory and impeachment evidence which violated the Constitution
and the laws of the United States, 18 USC 2, 241, 242, 371, 1519, 2071, and 42 USC 1985(2), and 1985(3)—
per se ipso fact 2255(f)(2) and 2255(f)(4) exceptions to 2255(f)(1).
Page 135 of 209

7.0 The Due Process and Sixth Amendment right to a fair, impartial, and unbiased
judicial officer in a criminal proceeding were violated by Pauley, J. error in his refusal to
recuse from 05cr1115 given that Pauley knowingly, intentionally, and in bad faith conspired
and colluded with the government and did suppress and conceal the alleged Sept. 2006
Rule 11 proceedings, the government’s USSG 5k1.1 letter granted to Jeremy Jones, and
other judicial public records related to government’s “principal witness” Jeremy Jones and
the government’s witnesses in 05cr1115? Yes.
See Section 7, Exhibits 5 thru 9—the indisputable fact and proof District Judge Pauley
knowingly colluded, conspired, acted in concert, and confederated with the government and
suppressed, concealed and hid the Sept. 2006 alleged Rule 11 proceedings and associated judicial
public records, and had the district clerk, Ruby Krajick knowingly produce fraudulent, false, and
fabricated 05cr1115 dockets to deceive the trial jury, Applicant, and the public of the true nature
(the facts) of the government and Jeremy Jones’ relationship—that is, a paid government
informant, a snitch. An ipso facto 2255(f)(2) and 2255(f)(4) exception to 2255(f)(1).
Judge Pauley committed and implemented unconstitutional “impediments” which
violated the laws of the United States to cover up and protect his, the government, the SEC, and
Jones’ criminal exposure, and implemented bogus, fraudulent, and manifestly frivolous leave-to-
file sanction, Dkt. 222 (05cr1115) to hide the fact that he (Judge Pauley), the government, District
Judge Kent J. Dawson, the FBI, the SEC, Thomas W. Thrash, Jr., Edward T.M. Garland, Michael F.
Bachner, Marlon G. Kirton, and others all had knowingly and willingly colluded, conspired, and
coordinated a broad conspiracy to obstruct justice and suppress and conceal actual innocent
Brady exculpatory and impeachment evidence which would have acquitted Applicant of all
charges in 05cr1115.
Page 136 of 209

7.1 The government and the district court violated Murchison, Tumey v. Ohio, 273 U.S.
510 (1927), the Due Process Clause, and the Sixth Amendment right to a fair, impartial, and
unbiased judicial officer in the 04cr1224 criminal proceedings was violated by District Judge
Robert W. Sweet’s collusion and conspiracy with the government to suppress and conceal
Brady exculpatory and impeachment evidence related to SEC lawyer Jeffrey B. Norris, Ari
Rabinowitz, LH Financial Services, and the 02cv2219 (SDNY) plaintiffs’ unregistered broker-
dealer and unregistered investment adviser status? Yes.
8. The rule of law in In re Winship, the Sixth Amendment, and the Due Process Clause
were violated by Sweet, J. in 04cr1224 by charging the jury, Tr. 889 L 2-11, that the
government was not required to prove beyond a reasonable doubt the “lawful[ness]” of
each of the null and void ab initio 02cv2219 (SDNY) orders (GX 11, and GX 24), and
judgment (GX 7) was a “lawful” order to convict Applicant of the alleged 18 USC 401(3)
charges? Yes
9. The Sixth Amendment, In re Winship, and the Due Process Clause were violated by
Sweet, J. error in charging the 04cr1224 jury, Tr. 889 L 2-11, “as a matter of law” the orders,
GX 7, GDX 11, and GX 24, were “lawful” and Sweet, J. rather than the trial jury convicted
Applicant on the “lawful” element of 18 USC 401(3) in violation of due process of law and
Winship? Yes.
9.1 Sweet, J. erred and violated the Due Process Clause of the Fifth Amendment by
charging the jury in 04cr1224 that the government was not required to prove beyond a
reasonable doubt the “lawful[ness]” of each of the null and void ab initio 02cv2219 (SDNY)
orders (GX 11, and GX 24), and judgment (GX 7) was a “lawful” order to convict Applicant
of the alleged 18 USC 401(3) charges, thus allowing for a conviction based on insufficient
evidence? Yes.
Supreme Court precedent in In re Winship, 397 U.S. 358 (1970), established the
constitutional requirement that the government must prove beyond a reasonable doubt
every element of a criminal offense charged against the defendant. By not requiring the
Page 137 of 209

government to prove beyond a reasonable doubt the "lawful[ness]" of the orders and
judgment in 02cv2219, Sweet, J. violated this constitutional standard.
Sweet, J. erred and violated the Sixth Amendment right to a fair trial by charging the jury
in 04cr1224 that the government was not required to prove beyond a reasonable doubt the
“lawful[ness]” of each of the null and void ab initio 02cv2219 (SDNY) orders (GX 11, and GX 24),
and judgment (GX 7) was a “lawful” order to convict Applicant of the alleged 18 USC 401(3)
charges, thus allowing for a conviction based on insufficient evidence? Yes.
In Sullivan v. Louisiana, 508 U.S. 275 (1993), the Supreme Court held that the Sixth
Amendment right to a fair trial includes the requirement that the government must prove
every element of a criminal offense beyond a reasonable doubt. By not requiring the
government to prove beyond a reasonable doubt the "lawful[ness]" of the orders and
judgment in 02cv2219, Sweet, J. violated this constitutional right.
Did Sweet, J. erred and violated the Due Process Clause of the Fifth Amendment by
allowing a conviction based on insufficient evidence in 04cr1224? Yes.
The Due Process Clause of the Fifth Amendment guarantees that no person shall
be deprived of life, liberty, or property without due process of law. In re Winship, 397 U.S.
358 (1970), established that the government must prove every element of a criminal
offense beyond a reasonable doubt. By allowing a conviction based on insufficient
evidence in 04cr1224, Sweet, J. violated this constitutional standard.
Page 138 of 209

Sweet, J. erred and violated the Sixth Amendment right to a jury trial by deciding the
"lawful" element of the 18 USC 401(3) charge “as a matter of law,” see Tr. 889 L 2-11,159 instead of
allowing a jury to decide, in violation of the legal standard established in United States v. Gaudin,
515 U.S. 506 (1995)? Yes.160
159
See Ware v. USA, et al., 22cv3409 (SDNY) 2241(a) actual innocent habeas corpus claim #6: “I instruct
you that as a matter of law [and I, the District Judge, in violation of the Constitution, find the defendant
guilty on the lawful element] the order [GX-7, GX-11, and GX-24] was lawful and proper in every respect
and did not violate any constitutional or other legal rights of the defendant or anyone else, and, therefore,
the first element of the offense would be satisfied.” (emphasis added). District Judge Sweet illegally and
unconstitutionally in violation of the Due Process Clause and the Sixth Amendment found Applicant guilty
on the “lawful” element as a matter of law, rather than the trial jury as a matter of fact. The egregious
legal error committed by Sweet, J. is an actual innocent, constitutional structure error that requires
automatic reversal of the conviction and sentence entered in U.S. v. Ware, 04cr1224 (SDNY).
Cf., Sullivan v. Louisiana, 508 U.S. 275 (1993). Held that the Due Process Clause of the Fourteenth
Amendment requires that a jury be instructed that the state must prove every element of a criminal
offense beyond a reasonable doubt.
160
In United States v. Gaudin, 515 U.S. 506, 509-23 (1995), a case decided by the Supreme Court of the
United States that addressed whether a trial judge [Sweet, J. in U.S. v. Ware, 04cr1224] may submit an
element of an offense to the jury for determination as a matter of law, rather than as a matter of fact. In
the case, Gaudin was charged with making a false statement to a federally insured bank. The trial judge,
cf., 04cr1224, Sweet, J., charge, Tr. 889 L 2-11, instructed the jury that the government did not have to
prove that Gaudin intended to defraud the bank, but rather only that he knowingly made a false statement.
Gaudin was found guilty and appealed on the grounds that the trial judge's instruction was erroneous.
The Supreme Court agreed with Gaudin, affirmed the Court of Appeals judgment which reversed the
District Court, and held that "the Constitution gives a criminal defendant the right to have a jury
determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.
The Court further explained that "the right to a jury trial guarantees to the criminally accused a fair trial
by a panel of impartial, 'indifferent' jurors," and that the trial judge [Sweet, J.] may not usurp the role of
the jury by deciding an essential element of the crime.
As a result of the Gaudin decision, trial judges are required to submit all elements of an offense to the
jury for determination as matters of fact, and may not decide any essential element of the crime
themselves as a matter of law.
Page 139 of 209

10. The 22cv3409 Ware v. USA, Garland, Ramos, and Taylor-Swain, 28 USC 2241(a)
habeas corpus district court (Ramos, J.) ipso facto, erred as a matter of law and fact and
violated the Due Process Clause by its unconstitutional Dec. 12, 2022, Dkt. 126, Order
(Ramos, J.) sua sponte conversion of the 2241 habeas corpus petition to a (i) moot, and (ii)
time-barred, “untimely” purported 2255(a) motion? Yes.
28 USC 2255(f)(2) and 2255(f)(4) are exceptions to 2255(f)(1) 1-year statute of limitation—
an affirmative defense required to be “expressly pleaded” by the government in its responsive
answer in opposition to relief rather than raised sua sponte by the district court. The government
deliberately did not appear in 22cv3409 or 22cv10566, did not file any oppositional response, and
accordingly waived the 2255(f)(1) affirmative defense, assuming, arguendo, 2255(a) and
2255(f)(1) applied to the 22cv3409 actual innocent 2241 habeas corpus petition. They do not.
Wood v. Milyard, 566 U.S. 463 (2012) (2255(f)(1) affirmative defense is waived if not expressly
pleaded by the government in a 2255 proceedings); Day v. McDonough, 547 U.S. 198, 205 (2006)
(Scalia, J.) (dissenting) (same).
11. District Judge Edgardo Ramos erred and violated the Code of Conduct for Federal
Judges, the Due Process Clause, and In re Murchison on Dec. 12, 2022, by the entry of Dkt.
126, order, and again on April 3, 2023, by the entry of Dkt. 213 and 214 in 22cv3409 and
Dkt 1, Dkt. 6, and Dkt. 7 in 22cv10566 (SDNY), respectively, while knowing that there was
rational or good faith opposition that he was judicially disqualified from all judicial
participation in 22cv3409, 04cr1224, 22cv15066, and 05cr1115, (i) by being named in the
22cv3409 habeas corpus statement of facts, (ii) being named as a hostile, adverse, material
fact witness, and (iii) being named as an unindicted coconspirator of the government with
respect to Ramos’s theft, suppression, concealment, and removal of judicial public records
associated with the government’s “principal witness” Jeremy Jones, and other matters,
which violated Due Process Clause and 18 USC 2, 241, 242, 371, 1519, and 2071? Yes.
Page 140 of 209

11.1 Judge Ramos erred and violated the Due Process Clause, and the Supreme Court’s
decisions in Tumey, and Murchison by entering Dkt. 126, order, and again on April 3, 2023,
by the entry of Dkt. 213 and 214 in 22cv3409 and Dkt 1, Dkt. 6, and Dkt. 7 in 22cv10566
(SDNY), without disclosing his disqualification and allowing the parties to be heard, and
thereby prejudicing the Applicant? Yes.
See 11.3, infra, reasoning.
11.2 Judge Ramos erred and violated In re Murchison by not being impartial in the above
proceedings as required by the Due Process Clause, the Sixth Amendment, and 28 U.S.C. §
455, where he participated in the 22cv3409 (SDNY) proceedings while being named as a
hostile, adverse, material fact witness, and being named as an unindicted coconspirator of
the government with respect to Ramos’s theft, suppression, concealment, and removal of
judicial public records associated with the government’s “principal witness” Jeremy Jones,
and other matters? Yes.
See 11.3, infra, reasoning.
11.3 Judge Ramos erred and violated the Code of Conduct for Federal Judges by failing
to recuse himself from the proceedings in 22cv3409, 04cr1224, 22cv15066, and 05cr1115,
despite being judicially disqualified, and thereby engaging in conduct prejudicial to the
effective administration of justice in violation of the Due Process Clause?161
161
See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988). Under the Liljeberg standard, a
judge's conduct may be found to violate the Due Process Clause if it creates an appearance of bias or
partiality that would lead a reasonable person to question the judge's impartiality. The COA claims allege
that District Judge Edgardo Ramos violated the Due Process Clause by knowingly participating in cases
(04cr1224, 05cr1115, 22cv3409, and 22cv10566) in which he had a personal interest and was potentially
biased against one of the parties involved. Specifically, he was named in 22cv3409 (SDNY) 2241 habeas
corpus statement of facts, named as a hostile, adverse, material fact witness, and named as an unindicted
co-conspirator. These claims show that Judge Ramos created an unconstitutional appearance of bias or
partiality that would violate the Liljeberg standard, and violated the Due Process Clause and the Sixth
Amendment right to a fair trial or other judicial proceeding.
Page 141 of 209

12. The 22cv3409 district court (Ramos, J.) erred and violate the Due Process Clause,
and Steel Co., by refusing to enter the 28 USC 2243 show cause order and order the
government to respond to the 2241 habeas corpus petition’s actual innocent claims? Yes162.
13. The 22cv3409 district court (Ramos, J.) erred and violated the Due Process Clause
and 28 USC 2243 by not conducting an evidentiary hearing regarding the actual innocent
claims in the 22cv3409 habeas corpus petition? Yes.163
162
In the context of 2241 habeas corpus proceedings, the Due Process Clause of the Fifth Amendment
requires that a petitioner be afforded a meaningful opportunity to be heard. Here, by refusing to enter
the 28 USC 2243 show cause order and order the government to respond to the 2241 habeas corpus
petition's actual innocent claims, the 22cv3409 district court under Ramos, J. violated the Due Process
Clause. The petitioner has a right to have the government respond to his claims, and the court's refusal to
order such a response denied him the opportunity to present his case fully. This is supported by the
Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001) which held that the Due Process
Clause requires a hearing on a petitioner's claim and that this hearing must be held promptly. Moreover,
the district court's refusal to enter the 28 USC 2243 show cause order may have violated Steel Co. v.
Citizens for a Better Environment, which requires that a court must first determine whether it has
jurisdiction over a case before it can address the merits of a claim.
163
The Due Process Clause of the Fifth Amendment provides that no person shall be deprived of life,
liberty, or property without due process of law. Additionally, 28 USC 2243 provides that a court shall
examine the habeas corpus petition and, if it appears from the application that the petitioner may be
entitled to relief, the court shall order the respondent to show cause why the writ should not be granted.
In Townsend v. Sain, 372 U.S. 293 (1963), the Supreme Court held that a federal court must grant an
evidentiary hearing to a habeas petitioner if the petitioner alleges facts which, if proven, would entitle
him to relief and the state has not provided a full and fair evidentiary hearing. The Court emphasized
the importance of factual determinations in habeas cases and stated that the habeas court has a duty to
hold an evidentiary hearing when the facts are in dispute and an adequate record has not been made
in the district court.
Page 142 of 209

14. The 22cv3409 and 22cv10566 (SDNY) district courts (Ramos, J.) erred and violated
the Due Process Clause regarding the moot, and ultra vires orders of April 3, 2023, orders,
Dkt 213 and Dkt. 214, respectively, entry of a moot, ultra vires leave-to-file sanction without
giving Applicant (i) proper notice, and (ii) a meaningful opportunity to be heard by
conducting a due process hearing prior to entry of the unconstitutional leave-to-file
sanction? Yes.164
15. The 22cv3409 district court (Ramos, J.) erred and violated the Due Process Clause
and Steel Co., by (I) conducting moot and ultra vires extra-judicial proceedings in 04cr1224
given the Dec. 20, 2007, Dkt. 90, voluntary, actual innocent Rule 41(a)(2) dismissal with
prejudice of the 02cv2219 (SDNY) lawsuit; and (II) conducting moot and ultra vires
proceedings in 05cr1115 given the U.S. Attorney General’s Nov. 7, 2008, voluntary, actual
innocent, Article II appellate political decision to abandon, terminated, and dismiss with
prejudice the government’s cross-appeal, U.S. v. Ware, 07-5670cr (XAP), Gov-I? Yes.165
164
The Due Process Clause of the Fifth and Fourteenth Amendments requires that before the government
deprives a person of life, liberty, or property, it must provide notice and an opportunity to be heard. In this
case, the district court imposed a leave-to-file sanction on the Applicant without providing notice or a
hearing, thereby violating the Due Process Clause. The Supreme Court has held that due process requires
notice and an opportunity to be heard before sanctions are imposed. In Mathews v. Eldridge, 424 U.S.
319, 332 (1976), the Court held that the fundamental requirement of due process is the opportunity to be
heard "at a meaningful time and in a meaningful manner."
Similarly, in Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998), the Second Circuit held that before
imposing a sanction, a district court must give adequate notice and a meaningful opportunity to be
heard. The court noted that notice and an opportunity to be heard are essential components of due
process explaining: “The unequivocal rule in this circuit is that the district court may not impose a filing
injunction on a litigant sua sponte without [first] providing the litigant with notice and an opportunity to
be heard. See Moates v. Rademacher, 86 F.3d at 15; Board of Managers of 2900 Ocean Ave.
Condominium v. Bronkovic, 83 F.3d 44, 45 (2d Cir.1996) (per curiam); In re Martin-Trigona, 737 F.2d 1254,
1260 (2d Cir.1984); In re Hartford Textile Corp., 613 F.2d 388, 390-91 (2d Cir. 1979) (per curiam). Indeed,
we strictly enforced this rule when a district court in our circuit had earlier imposed a filing ban on this
very litigant without providing him with notice or a hearing. See Moates v. Rademacher, 86 F.3d at 15.”
(emphasis added).
165
The COA claim raises two issues: (I) whether the 22cv3409 district court violated the Due Process Clause
and Steel Co. by conducting extra-judicial proceedings in 04cr1224 after the dismissal of the 02cv2219
lawsuit, and (II) whether the court violated the Due Process Clause and Steel Co. by conducting moot and
ultra vires proceedings in 05cr1115 after the government's dismissal of the cross-appeal in U.S. v. Ware,
07-5670cr (XAP) (2d Cir.) Gov-I.
Page 143 of 209

16. The 22cv3409, 04cr1224, and 05cr1115 district courts erred and violated the Due
Process Clause and Kyles v. Whitney, 514 U.S. 419 (1995) doctrine by not conducting the
required cumulative materiality assessment evidentiary hearing with respect to post-trial
newly discovered Brady exculpatory and impeachment evidence presented to the court?
Yes.166
In Steel Co., the Supreme Court held that federal courts lack jurisdiction over moot cases or cases that
present only abstract or hypothetical issues. A court's failure to address jurisdictional issues can result in
a violation of the Due Process Clause if the parties are not given adequate notice and an opportunity to
be heard.
Regarding issue (I), the 22cv3409 district court conducted extra-judicial proceedings in 04cr1224 after the
02cv2219 (SDNY) lawsuit plaintiffs’ voluntary dismissal with prejudice of the 02cv2219 lawsuit, Dkt. 90,
Dec. 20, 2007, and those proceedings were moot or lacked jurisdiction, then the court violated the Due
Process Clause and Steel Co. by failing to provide notice and an opportunity to be heard on the
jurisdictional issue.
Regarding issue (II), if the 22cv3409 district court conducted moot and ultra vires proceedings in 05cr1115
after the government's USAG’s Article II, actual innocent, appellate political decision Nov. 7, 2008,
voluntary dismissal with prejudice of the cross-appeal in U.S. v. Ware, 07-5670, Gov-I (2d Cir.) then the
court violated the Due Process Clause and Steel Co. by failing to provide notice and an opportunity to be
heard on the jurisdictional issue. The court should have determined whether the dismissal of the cross-
appeal in U.S. v. Ware, 07-5670 (2d Cir.), Gov-I affected the jurisdiction of 05cr1115 before proceeding
with any further proceedings.
In summary, the 22cv3409 district court violated the Due Process Clause and Steel Co. by conducting extra-
judicial proceedings in 04cr1224 or moot and ultra vires proceedings in 05cr1115 without providing notice
and an opportunity to be heard on jurisdictional issues, the court's unconstitutional actions are subject to
challenge.
166
The Supreme Court has held that when the government withholds exculpatory evidence, it violates the
Due Process Clause, and such a violation can result in a new trial if the evidence is material, and its
omission undermines confidence in the verdict. Furthermore, in Kyles v. Whitney, the Supreme Court held
that the government's disclosure obligations under Brady include the duty to disclose not only exculpatory
evidence but also impeachment evidence that could materially affect the jury's assessment of the
witness's credibility. The district court's failure to conduct the cumulative materiality assessment required
evidentiary hearing regarding the newly discovered Brady evidence violated the defendant's due process
rights under the Constitution, as well as the Supreme Court's interpretation of the Brady rule in Kyles v.
Whitney.
Page 144 of 209

17. Ramos, J., Pauley, J., and the government colluded, conspired, confederated, acted
in concert, violated the Due Process Clause, the Brady doctrine, the Code of Conduct for
Federal Judges, the DOJ’s Code of Conduct for Federal Prosecutors, and 18 USC 2, 241, 22,
371, 1519, and 2071, by their suppression, concealment, removal, and theft of judicial
public records regarding and associated with 05cr1115 and 04cr1224? Yes.167
167
On March 20 2023, the DOJ’s EOUSA certified and stipulated as fact in In re Ware, 22-000907 FOIA
response the government had violated the Brady doctrine’s “duty to search and produce all Brady
evidence” by its admission the USAO (SDNY) had not conducted the required Brady search and production
of “over 15 boxes of materials” which “could be” Brady materials apropos the U.S. v. Ware, 04cr1224 and
U.S. v. Ware, 05cr1115 (SDNY) criminal proceedings.
Page 145 of 209

18. The 04cr1224, 05cr1115, 22cv3409, and 22cv10566 district courts, Sweet, J., Pauley,
J., and Ramos, J., respectively, Kilpatrick, Townsend, & Stockton, LLP, and the government
colluded, conspired, acted in concert, and coordinated—an illegal association-in-fact, with
the Atlanta, GA In re Group Management Corp., 03-93031 (BC NDGA) bankruptcy court,
(Murphy, J., Bihary, J., Mullins, C.J., and Hagenau, C.J.), Kenneth A. Zitter, District Judge
Thomas W. Thrash, Jr., (NDGA), and the Atlanta, GA bankruptcy court and its judges, and
hid, concealed, suppressed, obstructed justice, violated the Due Process Clause, 18 USC
1961(6)(B), and NYS Penal Law, section 190.40, the criminal usury law, a class E felony, by
rigging, and fixing the 03-93031 proceedings to obstruct the production and disclosure of
actual innocent Brady exculpatory and impeachment evidence uncovered during the 03-
93031 proceedings? Yes.
i. Did the district courts in 04cr1224, 05cr1115, 22cv3409, and 22cv10566,
violate the Due Process Clause by colluding with Kilpatrick, Townsend, & Stockton, LLP, the
government, the Atlanta, GA In re Group Management Corp., 03-93031 (BC NDGA)
bankruptcy court, and other judges, to obstruct the production and disclosure of actual
innocent Brady exculpatory and impeachment evidence uncovered during the 03-93031
proceedings and conceal it from the defense, in violation of Brady v. Maryland, 373 U.S.
83 (1963)? Yes.
ii. Did the district courts in 04cr1224, 05cr1115, 22cv3409, and 22cv10566,
violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961
et seq., by colluding with Kilpatrick, Townsend, & Stockton, LLP, the government, the
Atlanta, GA In re Group Management Corp., 03-93031 (BC NDGA) bankruptcy court, and
other judges, to obstruct the production and disclosure of actual innocent Brady
exculpatory and impeachment evidence uncovered during the 03-93031 proceedings and
conceal it from the defense?
Page 146 of 209

19. Did the actions of Judges Murphy, Bihary, Mullins, and Hagenau in the 03-93031
Chapter 11 proceedings in collusion and conspiring with the government violate
Applicant's Due Process rights under the Fifth and Fourteenth Amendments, and Brady by
intentionally concealing Brady evidence that was favorable to Applicant and material to
his defense, and thus depriving him of a fair trial in violation of Brady v. Maryland, 373
U.S. 83 (1963)? Yes.168
168
The undisputed material facts presented to the district court show that Judges Murphy, Bihary, Mullins,
and Hagenau, and the Atlanta, GA law firm, Kilpatrick, Townsend, & Stockton, LLP, (“KTS”), colluded,
conspired, and confederated with the government to violate due process of law, and concealed and
suppressed actual innocent Brady evidence during the In re Group Management Corp., 03-93031 (BC
NDGA) Chapter 11 proceeding—that is, specifically they knowingly, deliberately, intentionally, and in bad
faith and concealed and suppressed the Brady exculpatory evidence that the 02cv2219 (SDNY) plaintiffs
were unregistered broker-dealers and lacked standing to file the 02cv2219 (SDNY) lawsuit, and therefore,
lacked standing to have appeared in the 03-93031 (BC NDGA) Chapter 11 proceedings, which rendered
the government’s U.S. v. Ware, 04cr1224 (SDNY) GX 1-4, GX 5, GX 7, GX 11, GX 24, GX 34, and GX 250-253
trial evidence, (the “1224 Trial Evidence”), and related testimony null and void, and required to be stricken
from the 04cr1224 record.
The intentional and bad faith suppression and concealment of this favorable evidence by the government,
the Atlanta, GA bankruptcy court’s judges, KTS, and the district courts (Sweet, J.) (deceased), and Ramos,
J. deprived the Applicant of his constitutional right to a fair trial in 04cr1224 (SDNY) to effectively confront,
cross-examine, and impeach the government’s 1224 Trial Evidence, and related witness testimony. Under
Brady v. Maryland, 373 U.S. 83 (1963), the prosecution had a duty to disclose to the defense any
exculpatory evidence that is material to the guilt or punishment of the defendant. The evidence that the
plaintiffs in 02cv2219 (SDNY) were unregistered broker-dealers and lacked standing to file the 02cv2219
(SDNY) lawsuit is actual innocent, Brady exculpatory evidence that was materially favorable to the
Applicant's defense in the criminal proceedings, and would have acquitted Applicant of all charges in
04cr1224, or at the very least given the jury a different perspective of the case.
The suppression and concealment of this evidence by the Atlanta, GA bankruptcy court judges, KTS, the
04cr1224 district court, and the government is, therefore, a violation of the Brady doctrine. Furthermore,
the alleged collusion and conspiracy between the bankruptcy judges, KTS, and government to conceal this
evidence raise serious concerns about the Applicant's Due Process rights under the Fifth and Fourteenth
Amendments. The judges were expected to be impartial and ensure a fair trial, and their collusion with
the government to conceal evidence violated the Applicant's Due Process rights.
Page 147 of 209

i. The government violated the Due Process Clause and the rule of law
established in Brady v. Maryland during the 04cr1224 trial and appeal proceedings by
failing to disclose Brady evidence that was favorable to the Applicant and material to his
defense uncovered during the 03-93031 Chapter 11 proceedings.
ii. Bankruptcy Judges Murphy, Bihary, Mullins, and Hagenau deliberately,
intentionally, and in bad faith violated Applicant's Due Process rights under the Fifth and
Fourteenth Amendments by intentionally concealing Brady evidence uncovered during
the 03-93031 Chapter 11 proceedings that were favorable to Applicant and material to his
defense in 04cr1224.
iii. The district court (Sweet, J.) in 04cr1224 violated Applicant's Sixth
Amendment right to a fair trial by allowing the government to introduce evidence, GX
250-253, that was obtained by the government through unconstitutional means and
methods during the 03-93031 Chapter 11 proceedings—that is, the government colluded,
conspired, and coordinated with KTS, and the Atlanta, GA bankruptcy court and judges to
rig and fix the 03-93031 proceeding in favor of the 02cv2219 (SDNY) plaintiffs to prevent
their exposure of being unregistered broker-dealers, and to prevent exposure of the
illegality of GX 1-4, the criminal usury convertible promissory notes.169
169
The constitutional violation in this fact pattern is a violation of the Sixth Amendment right to a fair trial.
The Supreme Court has held that the use of evidence obtained through unconstitutional means and
methods violates the Due Process Clause of the Fifth Amendment and the Sixth Amendment's guarantee
of a fair trial. The Supreme Court case that prohibits this conduct is Mapp v. Ohio, 367 U.S. 643 (1961),
where the Court held that evidence obtained through an unreasonable search and seizure is inadmissible
in state criminal proceedings. This principle has been extended to apply to evidence obtained through any
unconstitutional means and methods.
Page 148 of 209

iv. Judges Murphy, Bihary, Mullins, and Hagenau violated 18 USC 1961(6)(B)
and NYS Penal Law, section 190.40, the criminal usury law, by rigging and fixing the 03-
93031 proceedings to obstruct the production and disclosure of actual innocent Brady
exculpatory and impeachment evidence uncovered during the 03-93031 proceedings in
violation of the Brady doctrine.
v. Judges Murphy, Bihary, Mullins, and Hagenau in the 03-93031 Chapter 11
proceedings violated Applicant's Fifth and Fourteenth Amendment Due Process rights by
intentionally concealing Brady evidence uncovered during the 03-93031 Chapter 11
proceedings that were favorable to Applicant and material to his defense, thus depriving
him of a fair trial.
20. The 04cr1224 district court (Sweet, J.) colluded, conspired, and coordinated with
the government and prohibited and deliberately impeded Applicant's Sixth Amendment
right to effectively cross-examine, confront, and impeach the government's trial witnesses
in 04cr1224 by preventing Applicant from cross-examining Kenneth A. Zitter, Esq. and
unregistered broker-dealer Ari Rabinowitz on the terms and provisions of government trial
exhibit GX 5, the criminal usury subscription agreement, and GX 7, the Nov. 2002
purported default judgment entered in 02cv2219 (SDNY).170
170
Applicant was deliberated prohibited and prevented by the 04cr1224 district court (Sweet, J.), with the
coordinated, deliberate, manifestly frivolous, and ridiculous obstructive objections made by the
government’s AUSAs Nicholas S. Goldin and Maria E. Douvas from fully exercising his Sixth Amendment
right and effectively cross-examining and impeaching the government’s witnesses Quinn, Rabinowitz, and
Zitter regarding ¶10.1(iv) in GX 5—that is, Applicant was prevented from establishing before the jury that
para. 10.1(iv) was an actual innocent, government affirmative defense introduced into evidence by the
government before the grand jury, and during the trial, where the government agreed, stipulated, and
judicially admitted that each 02cv2219 (SDNY) lawsuit plaintiff was, in fact, a 15 USC 77b(a)(11) statutory
underwriter of GPMT’s null and void ab initio, and unenforceable Criminal Usury Convertible Promissory
Notes, GX 1-4, and ipso facto, legally ineligible for Rule 144 exemption from 15 USC 77e, Section 5, strict
liability registration requirements, see SEC Release 33-7190 n. 17 (1995) (“Section 2(a)(11) statutory
Page 149 of 209

COA claims and substantial constitutional violations:
Sweet, J. at trial in 04cr1224 in 2007 violated Applicant's Sixth Amendment right
to effectively cross-examine and confront the government's trial witnesses in 04cr1224
by preventing Applicant from cross-examining Kenneth A. Zitter, Esq. on the terms and
provisions of government trial exhibit GX 5, the criminal usury subscription agreement?
Yes.
Sweet, J. violated Applicant's Due Process rights by prohibiting and deliberately
impeding Applicant's Sixth Amendment right to effectively cross-examine, impeach, and
confront the government's trial witnesses, specifically, Kelley Quinn, Kenneth A. Zitter,
Esq., and Ari Rabinowitz on the terms and provisions of government trial exhibits GX 5
and GX 7? Yes.
Sweet, J. violated the rule of law in Davis v. Alaska, 415 U.S. 308 (1974), which
recognized the importance of cross-examination in testing a witness's credibility, by
preventing Applicant from effectively cross-examining and impeaching Kelley Quinn,
Kenneth A. Zitter, Esq. and Ari Rabinowitz on the terms and provisions of government trial
exhibits GX 5 and GX 7? Yes.
Sweet, J. violate the rule of law in Delaware v. Van Arsdall, 475 U.S. 673 (1986),
which held that the right to cross-examination is essential to the right to a fair trial, by
underwriters required to registered [with the SEC] all distribution of securities.”), which as a matter of law
and fact acquitted Applicant of all 18 USC 401(3) criminal contempt charges in 04cr1224.
Page 150 of 209

prohibiting Applicant from effectively cross-examining and impeaching Kelley Quinn,
Kenneth A. Zitter, Esq. and Ari Rabinowitz on the terms and provisions of government trial
exhibits GX 5 and GX 7? Yes.
21. The government and the 05cr1115 trial judge, William H. Pauley, III (deceased), and
Edgardo Ramos, colluded, conspired, acted in concert, and confederated to hide, conceal,
suppress, and remove from the official court records all traces of the alleged Sept. 2006,
Rule 11 proceeding’s judicial public records-that is, Jones’ alleged Rule 11 perjury contract,
Jones’ USSG perjury cooperation contract, Jones’ Rule 11 perjury transcript, and other
concealed and suppressed judicial public records in violation of the First Amendment right
of access; and there is no record proof submitted by the government the person involved
in the Sept. 2006 Rule 11 proceedings was in fact Jeremy Jones, the government’s
“principal witness” at trial in 05cr1115 in 2007.171
171
The COA claim is supported by a violation of (i) the Brady doctrine and (ii) the First Amendment right
of access to judicial proceedings and judicial public records—Jones’ Rule 11 proceedings records. The
government and the trial judges (Pauley, and Ramos, J.) colluded, conspired, acted in concert, and
confederated to hide, conceal, suppress, and remove from the official court records all traces of the alleged
Sept. 2006 Rule 11 proceeding judicial public records without any record proof that the person involved
in the proceedings was in fact Jeremy Jones. This violates the First Amendment right of access to judicial
proceedings, which includes the right to access court records. Supreme Court Citations: Nixon v. Warner
Communications, Inc., 435 U.S. 589 (1978); Press-Enterprise Co. v. Superior Court of California, 478 U.S.
1 (1986); Press-Enterprise Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501 (1984).
Applicant was prejudiced by the district court’s (Pauley, J., and Ramos, J.) theft of the judicial public
records, a violation of 18 USC 2, 241, 242, 371, 1519, and 2071 as follows: If the Rule 11 proceedings
judicial public records had been available to the Applicant, it could have and would have materially
affected the outcome of the 05cr1115 trial by undermining the credibility, veracity, and integrity of the
government’s “principal witness” Jeremy Jones. The suppressed records could have been used to show
that Jones had a motive to testify falsely and commit perjury with the consent of the government against
the Applicant in exchange for leniency in his own criminal case. The suppressed records could also have
been used to show that the government and the trial judges engaged in misconduct by colluding to hide,
conceal, suppress, and remove the records from the official court records—prosecutorial and judicial
misconduct which violated the Due Process Clause and the Sixth Amendment right to a fair trial.
Page 151 of 209

22. The government’s evidence was insufficient at trial to convict petitioner in U.S. v.
Ware, 05cr1115 (SDNY) as a matter of law, and fact—Applicant is actually and factually
innocent of all charges.
The United States on July 14, 2003, pleaded itself out of the federal courts by pleading
actual innocent, judicial admissions and stipulation, see COA, Section 7, Exhibit 13, infra, 13—
paragraph 33 in the SEC-DOJ’s Las Vegas 03-0831 (D. NV) unsigned complaint, which stipulated as
fact, equitable and judicial estoppel, the management of INZS and SVSY’s press releases did not
affect the stocks “prices”—that is, the press releases did not cause any “artificial” “inflation”
“increase” or “pumped up” the stocks’ “prices.” The paragraph 33 factual stipulation and binding
judicial admission abrogated and vitiated all probable cause to arrest or indict Ulysses T. Ware in
U.S. v. Ware, 05cr1115 (SDNY) in 2005 predicated on the immaterial and moot INZS and SVSY
press releases.
Because the United States and its privies were judicially and equitably estopped from
asserting, or contending INZS and SVSY’s management’s immaterial press release were material,
as a matter of fact, the government’s trial proof failed on the materiality element, and accordingly
the July 14, 2003, factual stipulation was an acquittal on the merits of all charges in U.S. v. Ware,
05cr1115 (SDNY).
Therefore, as a result of the July 14, 2003, factual stipulation, paragraph 33, the United
States lacks “concrete adverseness” with respect to materiality, and accordingly, voluntarily
precluded itself, its privies, proxies, surrogates, and alter-egos as Article III real party in interest
Page 152 of 209

status in all subsequent proceedings between Ulysses T. Ware and the United States regarding
03-0831 (D. NV) and 05cr1115 (SDNY). The 05cr1115 proceedings are moot.
23. The evidence was insufficient to convict Applicant in U.S. v. Ware, 04cr1224 (SDNY)
as a matter of law and fact—Applicant is actually and factually innocent of all charges.
The district court erred and decided the matter wrongly, and/or the correctness of the
district court’s ruling is debatable—the evidence admitted by the government at trial in 2007 as
a matter of law and fact was insufficient to have convicted Applicant beyond a reasonable double
on all elements of the 18 USC 401(3) criminal contempt charges apropos the 02cv2219 (SDNY)
moot lawsuit’s null and void ab initio, “unlawful”172 orders (GX 11 and GX 24), and judgment (GX
7), jointly, (the “Moot Orders”).
Secondly, the 04cr1224 indictment filed to charge a criminal contempt 18 USC 3231
“offense”173 apropos the issue of bogus and fraudulent 17 C.F.R. 230.144, Rule 144, legal opinions
to judicially admitted and confessed 15 USC 77b(a)(11) statutory underwriters,174 and Id.
77b(a)(12) unregistered broker-dealers.
172
See 18 USC 401(3). The statute is applicable only to a “lawful” order over which a federal court had
subject matter jurisdiction over the claims and proceedings.
173
GX 7, GX 11, and GX 24, the Moot Orders are null and void ab initio for lack of the 02cv2219 (SDNY)
district court’s Article III and 28 USC 1332(a) subject matter jurisdiction over the lawsuit’s claims, and
accordingly, as a matter of law the Moot Orders legally cannot form the basis of a 18 USC 401(3) criminal
contempt 18 USC 3231 “offense.”
174
See SEC Release 33-7190 n. 17 (1995) (“Section 2(a)(11) statutory underwriters [the 02cv2219 (SDNY)
lawsuit’s plaintiffs] required to register all distribution [(public offering)] of securities [GX 1-4, GPMT’s
Page 153 of 209

Thirdly, the 04cr1224 indictment’s 18 USC 401(3) charges failed for lack of probable cause
on Nov. 17, 2004—that is, former U.S. Attorney (SDNY) David N. Kelley175 and AUSA Alexander
H. Southwell, colluded, conspired, orchestrated, and coordinated a bogus and fraudulent illegal
plan and scheme with former District Judge Leonard B. Sand (deceased), Ari Rabinowitz, Kenneth
A. Zitter, Robert A. Katzmann, Peter W. Hall, William H. Pauley, III, KTS, the Atlanta, GA bankruptcy
court’s judges and employees, Thomas W. Thrash, Jr., and others, and committed grand jury
perjury, fraud, and lied to the grand jury that:
I. the 02cv2219 (SDNY) plaintiffs were lawfully registered with FINRA as broker-dealers,
II. lied, committed perjury, and intentionally misled the grand jury the plaintiffs were not
Section 2(a)(11) statutory underwriters,
III. lied and committed perjury and misled the grand jury the plaintiffs were not 15 USC
78p(b) statutory insiders and affiliates of Group Management.
IV. Kelley, Southwell, Sand, and others on Nov. 17, 2004, then knew that each of the
02cv2219 (SDNY) plaintiffs had never lawfully registered with FINRA as broker-dealer, and
therefore all lacked Article III and 28 USC 1332(a) standing to have filed the moot and
manifestly frivolous 02cv2219 (SDNY) lawsuit.
criminal usury, 18 USC 1961(6)(B) unlawful debt, convertible promissory notes’ conversion securities]”
with the SEC). (emphasis added).
175
See SEC v. Honig, 18cv08175 (SDNY) (Sec. & Exch. Comm'n v. Honig, 18 Civ. 8175 (ER) | Casetext Search +
Citator )(Ramos, J.), Alpha Capital, AG (Anstalt) was represented by Kelly and his law firm Dechert, LLP as
part of a kickback, bribery, gift, favor, unlawful gratuity criminal conspiracy for Kelley bring the bogus and
fraudulent 04cr1224 indictment.
Page 154 of 209

V. Kelley and Southwell lied, intentionally misled, and committed perjury on the grand jury
by misinforming, or omitted from the grand jury the material fact the 02cv2219 (SDNY)
Moot Orders were not “lawful” orders within the scope of 18 USC 401(3) criminal
contempt.176
24. 28 USC 2255(a) is ineffective and/or inadequate to test Applicant’s detention or

custody because Applicant was not a federal prisoner, not in custody, and not in federal
detention on Dec. 12, 2022, pursuant to a federal sentence imposed by the 04cr1224 or
05cr1115 sentencing courts—that is, the date of the district court’s order, Dkt. 126 (Ramos,
J.), which purported converted Applicant’s 28 USC 2241(a) habeas corpus petition to a
moot 2255(a) motion Applicant was not a federal prisoner then in detention, or custody
raising a challenge to an expired by operation of law moot sentence.177
28 USC 2255(a) is the motion, the procedural remedy, which is presumptively effective or
adequate for a federal prisoner then in custody or detention to challenge the “legality” of that
“detention” when the 2255 motion is filed.178 The 2255(a) statute, authorize the 04cr1224 or
176
18 USC 401: A court of the United States shall have power to punish by fine or imprisonment, or both,
at its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of
justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
177
28 USC 2255(e): “An application for a [2241(a)] writ of habeas corpus on behalf of a prisoner who is
authorized to apply for relief by [2255(a)] motion pursuant to this section, shall not be entertained if: [(i)]
it appears that the applicant has failed to apply for relief, by [2255(a)] motion, to the court which
sentenced him, or [(ii)] that such court has denied him relief, unless it also appears that the remedy by
[2255(a)] motion is inadequate or ineffective to test the legality of his detention.” (emphasis added).
178
28 USC 2255(a): “A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that the sentence was imposed in violation
of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such
Page 155 of 209

05cr1115 “sentencing court” to entertain a claim by the federal prisoner “claiming the right to
be released” from the detention or custody. Ostensibly, if there is no “prisoner” status and no
detention or custody the sentencing district court ipso facto, as a matter of law and fact lacks a
live, justiciable controversy—extant subject matter, “a claim” over which it is lawfully authorized
to invoke its Article III jurisdiction;179 and the United States Attorney (SDNY) conversely lacks
Article III and 28 USC 547 (no interest) in an expired by operation of law sentence vis-à-vis a
2255(a) motion, other than with respect to 2255(e).
Therefore, given the district court (Ramos, J.) found as fact, 22cv3409 (SDNY), Dkt. 126
(Dec. 12, 2022) order—which the government did not file a timely notice of appeal according to
the Office of the District and Circuit Clerks, that Applicant was not in detention, was not in
custody, or was not a federal prisoner on Dec. 12, 2022, the 22cv3409 and 22cv10566 district
sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the
sentence.” (emphasis added).
179
The 22cv3409 (SDNY) district court in its Dec. 12, 2022, order, Dkt. 126, and in its March 3, 2023, orders,
Dkt. 213, and Dkt. 214, respectively, was apparently disoriented and confused, and thus, conflated “a
claim” for the purpose of 2255(a), which flows from an extant federal sentence, and a claim in regard to
2241(a) which flows from unlawful restraint or conviction—that is, the district court erred as a matter of
law and fact, decided the issue wrongly, and/or the correctness of the rulings is debatable by reasonable
jurists. The district court’s sua sponte found as fact, which was not appealed by the government, that
Applicant was not a “federal prisoner,” was not then in “custody” or “detention” on Dec. 12, 2002, under
an extant sentence imposed by either the 04cr1224 or 05cr1115 sentencing courts, and therefore, the
district court implicitly found Applicant was not raising “a claim” to challenge release from nonexistent
custody or detention regarding a federal sentence then in effect. The district court therefore manifestly
erred and decided the issue wrongly—it was clear error for the district to have found “Ware currently
resides [on Dec. 12, 2022] in Brooklyn, NY” and at the same time found that Ware is a “federal prisoner”
raising “a claim” to be released from custody or detention. Cf., Dkt. 128 (22cv3409) (Documents of U.S.
Bureau of Prisons’ May 24, 2019, termination of Applicant’s prisoner status).
Page 156 of 209

courts (Ramos, J.) lacked 2255(a) and Article III jurisdiction over expired by operation of law
federal sentences or detention—the subject matter required to trigger 2255(a) subject matter
jurisdiction is moot—that is, the sentencing court lacked jurisdiction to redress (i.e., “vacate,” “set
a side,” or “correct”) an expired by operation of law sentence within the scope of 2255 relief. 180
Accordingly, 2255(a) is both “ineffective” and “inadequate” to test the “legality” of moot
subject matter, the expired by operation of law sentences and/or detentions regarding 04cr1224
and 05cr1115 sentencing courts. Only 28 USC 2241(a) provides a “meaningful opportunity” for
Applicant to present his actual innocent claims that challenge the convictions entered in 04cr1224
and 05cr1115 for review in the federal courts. 28 USC 2241 habeas corpus petition does not
require a 2253 certificate of appealability.181
180
28 USC 2255(e) legal standard. A 2255(a) motion is considered "ineffective" or "inadequate" when it
is incapable of testing the legality of a federal prisoner’s detention. In other words, a 2255 motion may be
deemed ineffective or inadequate when it is (i) unavailable, or (ii) unable to remedy a particular defect or
constitutional violation that would render a prisoner's detention unlawful. A 2255(a) motion redressability
and thus, jurisdiction, is over detention under a “sentence” imposed by the “sentencing court” which gives
the sentencing district court jurisdiction via the 2255(a) motion—that is, a continuation of the sub judice
criminal proceeding (cf., Figure 6-A, infra, Rule 1 of Rules to 2255 motion (scope) to redress a federal
sentence by the available remedy to “vacate,” “set aside,” or “correct” its previous sentence.
For example, where no extant (i) sentence, or (ii) detention exists imposed by the “sentencing district
court” a 2255 motion is ineffective or inadequate if a defendant is claiming actual innocence based on
newly discovered evidence that was not available at the time of trial, but the motion is time-barred under
the one-year statute of limitations. In this case, the defendant must be permitted to seek relief through
a habeas corpus petition under 28 U.S.C. § 2241(a).
181
After an exhaustive search of all online legal research databases, Applicant was unable to find one single
case where a U.S. Court of Appeals has ever in the history of the United States since the first Judiciary Act
of 1789 has ever affirmed an order entered by a federal district court that converted a pending 28 USC
2241(a) actual innocent habeas corpus petition to a moot 2255(a) motion where the petitioner was not a
federal prisoner, not in federal custody, or not in federal detention. Not one single case! The 22cv3409
district court decided the issue wrongfully, and/or there is serious debate regarding the correctness of the
district court’s 22cv3409 (SDNY) Dec. 12, 2022, Dkt. 126, and March 3, 2023, Dkt. 213, and Dkt. 214 orders.
Page 157 of 209

Therefore, the district court and the Court of Appeals both lack lawful Article III and
appellate jurisdiction to conduct 28 USC 2253 judicial review, cf., Steel Co., 523 U.S. at 93-95. See
Figures 1-A, 2-A, and 3-A, infra (Court of Appeals for the Second Circuit’s public information for
federal “prisoners” challenging their extant custody or detention via 2255(a) motion in the district
courts).
1. A federal prisoner appealing a 2241 habeas corpus does not need a 2253 certificate of
appealability, see 28 USC 2253(c)(1)—on 2254 state habeas corpus, and 2255 federal prisoners
required to obtain as COA before appealing the denial of their district court proceedings. (See
Figure 2-A, infra).
The AEDPA COA statute 28 USC 2253(c)(1) is expressly applicable according to the
Congressional mandate exclusive to, (i) 2253(c)(1)(A) to a state prisoner’s proceedings in the
district court, and (ii) 2253(c)(1)(B) a federal prisoner pursuant to a 2255 proceeding in the
sentencing district court with respect to a federal prisoner’s “claiming the right to be released
[from custody or detention] … by the sentencing district court authority to (a) “vacate,” (b) “set
aside,” or (c) “correct the sentence.”
Accordingly, the live182 Article III required subject matter of a federal prisoner’s 2255
motion is his (1) detention, or his (2) custody resulting from an extant federal sentence imposed
by the sentencing court—that is, where there is no extant, unexpired federal sentence pending at
the time the 2255 motion is filed in the sentencing district court causing the detention or custody
182
Ergo, an expired by operation of law federal sentence is not “live” justiciable Article III subject matter
over which a 2255 sentencing district is lawfully authorized to exercise its 18 USC 3231 and 2255(a)
jurisdiction and adjudicate a 2255(a) motion.
Page 158 of 209

of the federal prisoner the sentencing court is not authorized to invoke the 2255 subject matter
jurisdiction, and as a matter of law the 2255 motion is “ineffective” and “inadequate” to test the
legality of current detention or custody of the federal prisoner where there is not detention or
custody of a federal prisoner.
Page 159 of 209

Figure 1-A—Federal prisoners that proceed under 2241 are not required by federal law to first seek
a 2253 certificate of appealability to appeal the denial of the habeas corpus matter.
Page 160 of 209

Taken from the U.S. Court of Appeals for the Second Circuit’s public website on May 2, 2023.
Figure 2-A--Court of Appeals public information regarding a "prisoner's detention."
Page 161 of 209

Figure 3-A--Court of Appeals public information regarding a "prisoner's detention." Note that
according to the Court of Appeals public information, a 2255 motion is filed in the sentencing
district court and is applicable only to a “prisoner” that is challenging his detention or custody.
The Court of Appeals information only applies to “pro se [a federal] prisoner in actions [2255(a) motions]
or appeals challenging his [] sentence or conditions of detention in federal or state prison[.]”
Page 162 of 209

Figure 4-A--Court of Appeals public information regarding a "prisoner's detention."
Page 163 of 209

Figure 5-A—Rule 1 that governs a 2255 motion filed in the federal courts and Advisory
Committee Notes.
Page 164 of 209

25 The deliberate and intentional suppression and concealment of actual innocent
Brady exculpatory and impeachment evidence by the government and the district courts
constitute an impediment to making a motion created by governmental action in violation
of the Constitution or laws of the United States under 28 USC 2255(f)(2). Therefore, the
one-year limitation period under 28 USC 2255(f)(1) is required to be tolled, and to the
extent the 2241 petition was properly converted to a 2255(a) motion, which it was not,
petitioner's 2255 motion should be considered timely, and the merits of the actual
innocent claims adjudicated.
Preliminary statement.
The district court (Ramos, J.) in its orders, Dkt. 126, Dkt. 213, and Dkt. 214 erred as a
matter of law and fact, and wrongly decided the matter that to the extent Applicant’s 2241
petition was properly converted to a 2255 motion on Dec. 12, 2022, see Dkt. 126, which it was
not, the 2255 motion was untimely—to wit, 28 USC 2255(f)(2) provides a statutory exception for
governmental “impediments” which violated the Constitution and the laws of the United States,
implemented by the district courts, the court of appeals, and the Atlanta, GA bankruptcy court’s
manifestly frivolous “leave-to-file” sanctions, which are still in place and have not been removed,
such that Applicant has been and was delayed, hindered, frustrated, prevented, and obstructed
from timely filing an initial 2255(a) motion.183
183
The courts implemented manifestly frivolous, and bad faith “leave-to-file” sanctions as the overt act in
the “unconscionable plan and scheme” to hide, conceal, suppress, and deny Applicant access to the actual
innocent Brady exculpatory and impeachment evidence Applicant has uncovered and presented in the
2241 petition; and to delay and prevent Applicant from filing an initial 2255(a) motion and presenting
credible claims of actual and factual innocent of all charges and other constitutional violations committed
by the government, the district court, the Atlanta, GA bankruptcy court, the Las Vegas District Court
(Dawson, J.), and the U.S. Court of Appeals for the Second Circuit’s judges Kearse, Sack, Hall, Katzmann,
and Barbara S. Jones (sitting by designation in 09-0851).
Page 165 of 209

The district court overlooked the statutory exception of 2255(f)(2), overlooked the
indisputable fact of the EOUSA’s March 20, 2023, FOIA’s response’s confession and admission of
violation of the Brady doctrine; and overlooked that fact the district court (Ramos, J.) stole and
removed the alleged Sept. 2006, Rule 11 proceedings judicial public records, see Section 7,
Exhibits 5 thru 9, infra, a governmental constitutional “impediment” that has not been removed,
which 2255(f)(2) tolled the 2255(f)(1) 1-year limitation until such time as the district court
produces the Sept. 2006 Rule 11 and USSG 5k1.1 perjury contracts associated with a person
claimed to be “Jeremy Jones”—that is, the 2255(f)(1) limitation is tolled until the EOUSA and the
USAO (SDNY) certify that all Brady evidence contained in the “over 15 boxes of materials” has
been disclosed and produced to Applicant, and the Sept. 2006 Rule 11 proceedings judicial public
records have been disclosed and produced to Applicant.
Because Applicant was not (i) a federal “prisoner” and (ii) was not in custody or detention
under an extant (unexpired) federal sentence on Dec. 12, 2022, the date of Dkt. 126, order,
purporting to convert Applicant’s timely 2241 petition to a moot 2255(a) motion, and (iii) because
Applicant raised credible claims of actual and factual innocent in the 2241 petition supported by
newly discovered Brady exculpatory and impeachment evidence, the 22cv3409 2241 petition was
the only effective remedy to raise the actual innocent claims in compliance with the legal
standards on Schlup and McQuiggins, and Rivas.
Applicant’s 2241 habeas corpus petition was timely filed on March 21, 2022, which contained
credible claims of actual innocent supported by newly discovered and available exculpatory and
impeachment evidence such that the Schlup v. Delo “more likely than not” legal standard was
Page 166 of 209

satisfied within the context of the legal standard of McQuiggin’s “fundamental miscarriage of
justice” exception to 2255(f)(1) 1-year limitation period.
Statutory basis for the claim.
28 USC 2255(f) provides that (1) 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;
(2) the date on which the impediment to making a motion created by governmental action in
violation of the Constitution or laws of the United States is removed, if the movant was prevented
from making a motion by such governmental action;
Discussion and argument.
The legal standard for the claims--Supreme Court precedent.
In McQuiggin v. Perkins, 569 U.S. 383 (2013) the Supreme Court held that actual
innocence could serve as a gateway through which a petitioner can pass to overcome the one-
year statute of limitations set forth in 28 U.S.C. § 2255(f)(1). The Court reasoned that the
miscarriage of justice exception to the limitations period in § 2255(f)(1) extends to cases where
the petitioner can demonstrate actual innocence. In such cases, the petitioner can overcome the
Page 167 of 209

limitations period if he or she can show that the government deliberately withheld evidence
that would have proven the petitioner's innocence.184
Here, the Applicant argues that the government deliberately and intentionally suppressed
and concealed actual innocent Brady exculpatory and impeachment evidence until after the one-
year statute of limitations set forth in 28 U.S.C. § 2255(f)(1) had expired.185 The Applicant asserts
that this deliberate suppression of Brady exculpatory and impeachment evidence should toll the
statute of limitations under 28 U.S.C. § 2255(f)(2) and allow the Applicant to pursue his actual
innocence claim.186
Under the reasoning of McQuiggin and Rivas v. Fisher, 687 F.3d 514, 548 (2d Cir. 2012),187
the Applicant's argument should be persuasive. The Court recognized that the miscarriage of
184
See Section 7, infra, Exhibits 1 thru 9, governmental imposed statutory “impediments” which violated
the Constitution and the laws of the United States (i.e., 18 USC 2, 241, 242, 371, 1519, 2071, 3500, and 42
USC 1985(2), 1985(3)) actual innocent Brady exculpatory and impeachment evidence deliberately,
intentionally, and in bad faith concealed, suppressed, hidden, and covered up by the government and the
district courts in violation of the Brady doctrine and in willful resistance to the Brady court orders, Dkt. 32
(04cr1224) and Dkt. 17 (05cr1115).
185
See Id.
186
See Id. Exhibit 1, the EOUSA’s March 20, 2023, FOIA response which admitted and confessed that “over
15 boxes of materials that could be” Brady evidence in the possession of the USAO (SDNY) had never been
searched, inventoried, produced or disclosed to Applicant. A per se violation of the Brady doctrine, 18 USC
2071, and 3500.
187
In Rivas, the Second Circuit Court of Appeals interpreted 28 U.S.C. § 2255(f)(4) and held that a movant
may file a § 2255 motion within one year of the date on which the Supreme Court recognizes a new right,
even if the right was previously available but the movant did not assert it. The court reasoned that §
2255(f)(4) was intended to allow prisoners to take advantage of new legal developments that expand their
rights and remedy injustices. The court stated that "where a petitioner has already filed a § 2255 motion,
§ 2255(f)(4) does not permit the petitioner to re-raise claims that were available but not raised in an earlier
§ 2255 motion."
Page 168 of 209

justice exception to the limitations period in § 2255(f)(1) applies to cases where the petitioner can
show actual innocence, even if the petitioner cannot show that the evidence was deliberately
withheld. The Court held that a petitioner's claim of actual innocence "does not fit easily within
the 'categories of cases in which actual innocence makes a difference,' but is, nevertheless, a
compelling reason to override the limitations period." Id. at 380.
In the present case, however, the Applicant can demonstrate more than just actual
innocence. The Applicant can show that the government deliberately suppressed evidence that
would have proven his innocence. This deliberate suppression of evidence constitutes a
fundamental defect in the proceedings, which tolls the statute of limitations under 28 U.S.C. §
2255(f)(2). As the Court in McQuiggin recognized, "the miscarriage of justice exception may also
apply when a petitioner can prove that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence." Id. at 386.
In this case, the Applicant can demonstrate that the newly discovered evidence is of such
a nature that it undermines confidence in the outcome of the trial. The Applicant can show that
the government deliberately and intentionally suppressed evidence that would have proven his
innocence. Such a deliberate and intentional suppression of exculpatory evidence constitutes a
fundamental defect in the proceedings that undermines the reliability of the verdict. Therefore,
the Applicant should be entitled to relief under 28 U.S.C. § 2255(f)(2).
Page 169 of 209

Furthermore, the denial of relief to the Applicant would result in a fundamental
miscarriage of justice. As the Court explained, Id. at 382, "the miscarriage of justice exception is
grounded in the 'equitable concern[s]' that 'limited procedural barriers' should not prevent an
innocent person from vindicating his or her rights." Here, the Applicant's actual innocence claim
is strong, and the deliberate suppression of evidence by the government has prevented him from
vindicating his rights. To deny the Applicant relief under these circumstances would result in a
fundamental miscarriage of justice.
In conclusion, under the reasoning of McQuiggin, the Applicant's argument that the
government's deliberate and intentional suppression of actual innocent Brady exculpatory and
impeachment evidence should toll the one-year statute of limitations under 28 U.S.C. § 2255(f)(2)
is compelling, and meets the legal standard the Court has established to combat governmental
misconduct in criminal proceedings.188
Summary and conclusion.
The issue of whether the government and the federal courts’ deliberate and intentional
suppression and concealment of actual innocent Brady exculpatory and impeachment evidence
188
Cf., Rivas v. Fischer, 687 F.3d 514, 518 (2d Cir. 2012) (“Here presented with a “proper case,” we now
conclude, as a matter of first impression in this Circuit, that a credible and compelling showing of actual
innocence under the standard described by the Supreme Court in Schlup and House warrants an equitable
exception to AEDPA's [2255(f)(1)] limitation period, allowing the petitioner to have his otherwise time-
barred claims heard by a federal court. Because Rivas has made such a showing, we reverse the decision
of the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge ) dismissing
his petition for habeas relief and remand for full consideration of his underlying constitutional claims.”).
(emphasis added).
Page 170 of 209

can extend the statute of limitations under 28 USC 2255(f)(2), (f)(4) is an important and complex
one. The Supreme Court has recognized the importance of the Brady rule in ensuring that
Applicant received a fair trial and has imposed a duty on prosecutors to search for, disclose, and
produce all exculpatory and impeachment evidence to the defense.189
When such unconstitutional suppression and concealment of actual innocent Brady
exculpatory and impeachment evidence occur as it did in the sub judice Criminal Proceedings,
the law gave Applicant an avenue to seek relief. Under 28 USC 2255(f)(1), a one-year period of
limitation applies to a motion for collateral relief, which runs from the latest of several possible
dates, including the date on which the judgment of conviction becomes final. However, under 28
USC 2255(f)(2), a separate exception applies if the movant can show that an “impediment”—the
manifestly frivolous leave-to-file sanctions, and other impediments imposed by the government
and the federal courts’ unconstitutional, criminal, nefarious coordination, and collusion—the
willful refusal to enforce and willful resistance to the Brady court orders,190 etc. created by the
government or the federal courts in collusion and conspiracy with the government prevented him
from making the 2255 motion earlier. The 2255(f)(2) and 2255(f)(4) impediments, which have yet
to be removed, did prevent Applicant from filing a 2255 motion prior to termination of federal
prisoner status on May 24, 2019. Cf., March 20, 2023, EOUSA’s response to In re Ware, 000907
189
See Brady court orders: (i) Dkt. 32, 04cr1224 (SDNY), and (ii) Dkt. 17, Tr. 5-10, 05cr1115 (SDNY); and
Fed. R. Crim. P. Rule 5(f).
190
See 18 USC 401(2), (3), and civil contempt.
Page 171 of 209

FOIA request for search, disclosure, and production of all Brady exculpatory and impeachment
evidence associated with the sub judice Criminal Proceedings (04cr1224 and 05cr1115).
The unconstitutional Brady violations and other “impediments” which have yet to be
removed, have delayed, obstructed, frustrated, hindered, and maliciously in bad faith prevented
Applicant from raising credible claims of actual and factual innocent supported by Brady
exculpatory and impeachment evidence currently being suppressed and concealed by William H.
Pauley, III, Robert W. Sweet, Leonard B. Sand, Peter W. Hall, Robert A. Katzmann, Amalya L. Kearse,
Robert D. Sack, Ruby Krajick, Edgardo Ramos, Andre Damian Williams, Jr., Daniel Gitner, Margaret
M. Garnett, Merrick B. Garland, Lisa Monaco, Vanita Gupta, Wendy L. Hagenau, the Court of
Appeals for the Second Circuit, Baker & McKenzie, LLP, Kilpatrick, Townsend, & Stockton, LLP, and
others.
The deliberate and intentional suppression and concealment of actual innocent Brady
exculpatory and impeachment evidence by the government and its agents are such an
impediment, and did extend the 2255(f)(1) statute of limitations under 28 USC 2255(f)(2) and
2255(f)(4). The government's duty to disclose such evidence is a constitutional obligation, and its
failure to do so led to a fundamental defect in the proceedings.
Moreover, the Supreme Court has recognized that the actual innocence of an Applicant is
a separate and independent ground for relief in a collateral attack on a conviction. The Court has
held that a claim of actual innocence may be raised even if it is untimely under 28 USC 2255(f)(1),
Page 172 of 209

if the Applicant can show that the claim relies on newly discovered evidence that could not have
been discovered earlier through the exercise of due diligence.191
Thus, in cases where the government, the district court, the bankruptcy court, or the
court of appeals, and their proxies, surrogates, agents, and alter-egos—a violation of NYS
equitable fraud and conspiracy to obstruct justice law, have deliberately and intentionally
suppressed and concealed actual innocent Brady exculpatory and impeachment evidence,192
Applicant is entitled and authorized to extend the 2255(f)(1) statute of limitations pursuant to 28
USC 2255(f)(2) or 2255(f)(4) and raise a claim of actual innocence, even if the evidence was
discovered after the one-year period of limitation has expired.193 To deny Applicants this
opportunity to have his actual innocent claims adjudicated on the merits undermined the fairness
and integrity of the criminal justice system, and failed to hold the government’s prosecutors
accountable for their constitutional violations.
191
Trussell v. Bowersox, 447 F.3d 588, 590-91 (8th Cir. 2006) (“Nonetheless, because neither the
[2255(f)(1)] statute of limitations nor procedural default constitutes a jurisdictional bar to our
review, Day v. McDonough, 547 U.S. 198 (2006), we shall, in the interest of judicial economy, proceed to
the merits of Trussell's [habeas corpus] petition. See Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir.
1999) (en banc).”). (emphasis added).
192
The imposition of 2255(f)(2) “impediments”—the frivolous leave-to-file sanctions, designed with the
evil and insidious, and depraved purpose, an overt act, NYS equitable fraud, in the conspiracy to obstruct
justice.
193
To the extent that AEDPA and 2255(a) are authorized, which they are not, because Applicant on Dec.
12, 2022, and April 3, 2023, was not (i) a federal prisoner, (ii) then in custody under a federal sentence
entered by the sentencing courts. Cf., Dkt. 128 (22cv3409) (US Bureau of Prison’s documents that
terminated by operation of law Applicant’s federal prisoner status on May 24, 2019). See concealed and
suppressed Brady evidence, COA, Section 7, Exhibits 1-15, infra.
Page 173 of 209

26. The District Court erred as a matter of law and fact and wrongly decided the
2255(f)(1) affirmative defense issue affirmatively (implicitly) waived by the government and
strictly precluded by the USAG’s Nov. 7, 2008, voluntary, actual innocent, Article II appellate
political decision which dismissed with prejudice the government’s cross-appeal, U.S. v.
Ware, 07-5670cr (XAP)(2d Cir.), Gov-I, see Section 7, Exhibit 10, infra, which triggered the
absolute finality of the Double Jeopardy Clause’s prohibition on all fact-finding.194
Contention.
Applicant contends to resolve the factual dispute regarding the district court’s sua sponte
imposition of the 2255(f)(1) affirmative defense, see Dkt. 126 (Ramos, J.), 12.12.2022, order, an
evidentiary hearing is required to take testimony and receive evidence from Ramos, J. and the
government to determine:
(i) the government’s intentions regarding its waiver of the 2255(f)(1) affirmative defense;
(ii) whether or not the government and the district court (Ramos, J.) have unclean
hands, and therefore ineligible for any 2255(f)(1) equitable relief,
(iii) whether or not Ramos, or the government, are bound by res judicata and the
absolute finality of the Double Jeopardy Clause and its prohibition on all fact-finding
194
The government is strictly precluded by the absolute finality on all fact-finding from pleading any
affirmative defense which contradicts, undermines, vitiates, or challenges the USAG’s Nov. 7, 2008,
decision to dismiss with prejudice Gov-I (07-5670)—the district court lacks subject matter jurisdiction over
05cr1115, and therefore, lacked 2255 subject matter jurisdiction regarding 22cv3409 as a 2255
proceeding. The district court is prohibited from sua sponte raising a moot affirmative defense which the
government is precluded from “affirmatively pleading” in a responsive pleading else Separation of Power
doctrine is violated and usurped. Accordingly, the district court’s Dec. 12, 2022, Dkt. 126, and April 3, 2023,
sua sponte raise of the 2255(f)(1) affirmative defense is null and void ab initio, and moot.
Page 174 of 209

resulting from the USAG’s Nov. 7, 2008, voluntary,195 actual innocent, Article II appellate
political decision which dismissed with prejudice Gov-I, the government’s U.S. v. Ware,
07-5670cr (XAP), (2d Cir.) cross-appeal, and
(iv) whether the 2255(f)(1) 1-year limitation period has yet to be triggered due to 2255
(f)(2) governmental impediments which have not been removed, or 2255(f)(4) the
concealment and suppression of factual predicate necessary to advance actual innocent
claims have not been disclosed by the government or the district court?196
195
On Nov. 7, 2008, see COA, Section 7, Exhibit 10, infra, the USAG on behalf of the Executive Branch,
which cannot be reviewed within the scope of Article III judicial review, voluntarily waived, abandoned,
terminated, and abdicated, ipso facto, subject to res judicata and the Double Jeopardy Clause, the
2255(f)(1) affirmative defense of untimeliness or any other affirmative or legal defense regarding a moot
2255 motion or predicated on the annulled and vitiated 05cr1115 proceedings. The district court’s record
contains the USAG’s Nov. 7, 2008, decision regarding Gov-I, thus, the government and the district court
were on notice of the application of the Double Jeopardy Clause, res judicata, and Executive Branch Article
II discretionary, prosecutorial estoppel—only the United States Attorney General, rather than the federal
courts is lawfully authorized to prosecute (“defend”) and maintain a criminal prosecution [a 2255 motion
is a continuation of the sub judice criminal proceeding] in the name of the United States. Therefore, on
Nov. 7, 2008, the USAG irrevocably terminated, abrogated, vitiated, and mooted U.S. v. Ware, 05cr1115
(SDNY), and consequently by necessary implication and extension did the same with respect to 22cv3409
to the extent 22cv3409 is a 2255 motion, which is binding, absolutely without exception on all federal and
state courts, agencies, and their agents, proxies, surrogates, and alter-egos. Federated Dept. Stores, 452
U.S. at 398, 401-02.
196
Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000) (“Section 2255[f](4) is not a tolling provision
that extends the length of the available filing time by excluding certain periods that post-date the start of
the limitations clock from the calculation of how much time has run. Rather, it resets the limitations
period's beginning date, moving it from the time when the conviction became final, see § 2255[f](1), to the
later date on which the particular claim accrued. See Smith, 208 F.3d at 15 (distinguishing tolling provisions
from those that restart the limitations period). ”). (emphasis added).
Therefore, the 2255 1-year limitation clock regarding 22cv3409 and 22cv10566 is reset, prospectively,
pending full and complete Brady evidence and judicial public records disclosure and production by the
district court and the government and is not triggered until the district court and the government certify
complete disclosure and production of “all” materials on which the factual predicates for additional habeas
claims exists. Wims, 225 F.3d at 190. See Brady court orders, Dkt. 32 (04cr1224) and Dkt. 17 (Dkt. 17, Tr.
Page 175 of 209

Yes, on all issues.
The government and Ramos hands are not only unclean, both are bound by the Double
Jeopardy Clause’s absolute finality and prohibition on all fact-finding apropos all issues, facts, and
claims actually and/or necessarily resolved by the USAG’s Nov. 7, 2008, actual innocent, Article II,
appellate political decision which abandoned, terminated, waived, forfeited, and dismissed with
prejudice in Gov-I (07-5670cr (XAP) (2d Cir.)—the government’s cross-appeal, and the
government, via Andre Damian Williams, Jr. and Merrick B. Garland, exercised unreviewable
Article II, discretionary, prosecutorial prerogative, disregarded and did not appear to “defend”
(see 28 USC 547) the United States’ legal position as an intentional and conscious decision to
continue to conceal and suppress actual innocent Brady exculpatory and impeachment evidence
contained in the “over 15 boxes of materials” the EOUSA admitted the USAO had never conducted
a proper Brady search for Jeremy Jones’ Rule 11 judicial public records, and other judicial public
records required to have been disclosed and produced to Applicant.
The district court (Ramos, J.) had no lawful Article III authority to override the USAG’s
Article II discretional, prosecutorial political decision to waive and abandon the government’s
2255(f)(1) affirmative defense.197 Accordingly, to the extent the 22cv3409 petition was correctly
5-10); note that the government’s Brady obligation is a “continuing obligation” even after trial. See Brady
order, Dkt. 17, Tr. at 5-6 (quoting Pauley, J.).
197
Whether or not to plead an affirmative defense in a 2255 proceedings is the Article II prosecutorial
litigation position and executive branch prerogative of the respondent, or defendant, the United States,
not the trial court, or court of appeals—the respondent (the government), the real party in interest,
defends a 2255 or 2241 civil action, see 28 USC 547; the district court nor the court of appeals are real
parties in interest in a 2255 motion, and thus, are not lawfully authorized to “defend” a civil proceeding
Page 176 of 209

recharacterized as a 2255(a) motion, it was not, the 2255 motion was timely pursuant to
2255(f)(2) and 2255(f)(4).
Discussion and argument.

The district court (Ramos, J.) erred and wrongly decided the matter--28 USC 2255(f)(1)
governmental affirmative defenses are required to be “affirmatively state[d]” (pleaded with
involving the United States—that is, an affirmative defense must be pleaded in a 2255 action by the
government’s lawyers on behalf of the real party in interest (the government) with facts in a responsive
answer, not raised sua sponte by the district court, else the defense is waived—an Article III federal court
lacks lawful Article II authority to make any binding assertion, contention, or make any pleading on behalf
of the United States. The district judge, Ramos, J. was named as a real party in interest, an adverse-party
respondent, on the face of the 22cv3409 2241 petition, and also named in the Undisputed Statement of
Material Facts, see COA, Section 3, ¶¶ 32, 35, 36, 38, 39, 40, and 41, supra, the Facts and therefore, Ramos
responded, usurped Article II authority, and ostensibly, risibly, raised the 2255(f)(1) affirmative defense in
his personal and individual capacity, as an adverse party respondent, to protect his personal and
individual pecuniary and penal interests, and not as an unbiased, and impartial Article III federal judge.
Accordingly, if the 2255(f)(1) alleged affirmative defense is not immediately withdrawn by Ramos, Ramos,
J. ipso facto, per se disqualified himself from the adjudication of the merits of the proceedings as a
matter of law and fact, see In re Murchison, 349 U.S. 133, 136 (1950) (a man or a judge is not permitted
to be a judge in his own case, which would violate due process of law). (emphasis added). Therefore,
Dkt. 126, 213, and 214 (22cv3409), and Dkt. 1, 6, and 7 (22cv10566) are null and void ab initio, and moot.
See 28 USC 455(a), 455(b)(1-5); cf., Tumey v. Ohio, 273 U.S. 510 (1927), and Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847 (1988) the Supreme Court addressed the issue of a judge's financial interest
in a case and its impact on due process rights and found the judge was required to have recused himself
from the proceedings given his financial interest in the outcome of the proceeding. Ramos, J. knows that
when the 2241 habeas corpus claims are adjudicated on the merits he will be exposed for the theft,
suppression, concealment, and removal of Jeremy Jones’ and others’ judicial public records from the
custody of the District Clerk (SDNY), a criminal violation (a substantial personal criminal legal jeopardy)
of 18 USC 2, 241, 242, 371, 1519, and 2071, and 42 USC 1985(2), and 1985(3). Accordingly, Ramos was and
is biased, partial, and has a substantial personal penal and pecuniary interest in the adjudication of the
merits of the 2241 habeas corpus petition’s actual innocent claims given Ramos was put on notice that he
was designated as a hostile, adverse, material fact witness in the proceedings. CF., Edgardo Ramos’
personal and official criminal judicial misconduct and violations of the Code of Conduct for Federal Judges,
federal laws, 18 USC 2, 241, 242, 371, 1519, and 2071, and the Constitution with former federal judge G.
Thomas Porteous’ impeachment charges and allegations that mirror Ramos’ criminal judicial misconduct
and violations of the Codes of Conduct for Federal Judges committed in the 22cv3409, 22cv10566,
04cr1224 and 05cr1115 proceedings.
Page 177 of 209

facts) in the government’s responsive pleadings,198 see Fed. R. Civ. P. Rule 8(c),199 and therefore
the 2255(f)(1) untimely affirmative defense was waived by the government who did not appear
and did not file any responsive pleading asserting the “affirmative defense” in 22cv3409 or
22cv10566; and (ii) assuming arguendo, that the 2255(f)(1) affirmative defense was not waived
by the government, which it was; and assuming, arguendo, the district court was authorized to
sua sponte raise the non-jurisdictional 2255(f)(1) issue, it was not, Applicant contends the
government (Andre Damian Williams, Jr., Merrick B. Garland, et al.) and the district court (Ramos,
J.): (I) they have unclean hands and, (II) they are prohibited and precluded from pleading, or
raising and sustaining the equitable affirmative defense of untimeliness200—that is, (III) Garland,
198
An Article III federal court is not lawfully authorized and has no jurisdiction to “plead” governmental
affirmative defenses in civil proceedings that involve the United States else 28 USC 547 and Separation of
Powers be violated by the federal court’s usurpation of Article II discretionary prosecutorial power. See
United States v. Nixon, 418 U.S. 683, 693-94 (1974) (a federal court’s judicial review of the Executive
Branch’s discretionary Article II prosecutorial political decisions is beyond the scope of lawful Article III
judicial review, else Separation of Powers doctrine be violated); see the Confiscation Cases, 74 U.S. 454
(1868) (the Attorney General [not a federal judge, Edgardo Ramos] has Article II absolute, plenary power
to decide and determine the litigation position of the United States in any proceeding where the United
States is concerned). (emphasis added).
199
Rule 8(c) does not authorize a federal district court to file pleadings, respond to a pleading, or plead
“affirmative defenses” on behalf of a defendant or respondent in a civil matter—see Rule 8(c): Affirmative
Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or
affirmative defense, including: [2255(f)(1)] statute of limitations.
200
The absolute finality of res judicata, and the Double Jeopardy Clause was triggered by the USAG’s Nov.
7, 2008, actual innocent, Executive Branch, Article II, voluntary, discretionary, appellate political decision
to dismiss with prejudice the United States and its privies’ Rule 28.1 cross-appeal, U.S. v. Ware, 07-5670cr
(XAP) (2d Cir.), Gov-I. The USAG strictly prohibited Ramos, or the government, the USAO (SDNY),
respectively, from (A) sua sponte raising, or (B) “affirmatively stat[ing]” any affirmative defense which
contradicts, abrogates, undermines, or vitiates the USAG’s voluntary decision to dismiss with prejudice
Gov-I and U.S. v. Ware, 05cr1115 (SDNY). The affirmative defense issue is res judicata and Executive Branch
estopped against the United States, therefore the issue is moot.
Page 178 of 209

Williams, and Ramos maliciously and insidiously violated NYS tort law, conspiracy, negligence,
intentional infliction of emotional distress, equitable fraud, violated the Due Process Clause,
violated the Brady doctrine, and violated the laws of the United States, to wit, 18 USC 2, 241, 242,
371, 1519, 2071, and 42 USC 1985(2), and 1985(3) by their and the federal courts’ collusion,
conspiracy, and coordinated “unconscionable plan and scheme”—conspiracy and equitable fraud
on the court, and concealed, suppressed, and in bad faith stole Jeremy Jones’ and other judicial
public records, and concealed and suppressed actual innocent Brady exculpatory and
impeachment evidence, unconstitutional 2255(f)(2) impediments, and 2255(f)(4) exceptions to
2255(f)(1).
To the extent the 2241 habeas corpus petition was properly recharacterized as a moot
2255(a) motion, see Dkt. 126, it was not, the non-jurisdictional 2255(f)(1) 1-year statute of
Page 179 of 209

limitation does not begin to run—excepted by 2255(f)(2)201 and 2255(f)(4)202, until the district
court and the United States “remove” the “impediments”—that is, (A) certify that all judicial
201
The [1-year] limitation period shall run from the latest of—
(f)(2): the date on which the impediment [i.e., (1) the concealment and suppression of the “over 15 boxes
of materials” in the possession of the USAO (SDNY); and (2) concealment and suppression of Jeremy Jones’
alleged Rule 11 judicial public records—unclean hands] to making a motion created by governmental
action [the USAO and Edgardo Ramos, et al.] in violation of the Constitution [the Brady doctrine] or laws
of the United States [18 USC 2, 241, 242, 371, 1519, 2071, and 42 USC 1985(2), and 1985(3), the theft of
Jeremy Jones’ and others’ judicial public records] is removed, if the movant was prevented from making
a motion by such governmental action.
The government and/or the district courts (Ramos, J., and Pauley, J.; and Sweet, J.) prevented Applicant
from filing the 2255 motion and raising claims based on the contents of Jones’ Rule 11 records, and the
contents of the “over 15 boxes of materials” in the possession of the USAO, and have never disclosed or
produced Jeremy Jones’ alleged Sept. 2006 Rule 11 perjury contract, USSG 5k1.1 cooperation perjury
contract, all benefits paid, provided, or delivered to Jones by the USAO and Pauley, J., all USSG 5k1.1
substantial assistance perjury letters, the government’s perjury sentencing memorandum, Jones’ perjury
sentencing transcript, Jones’ perjury debriefing notes and transcripts, Jones’ grand jury perjury testimony,
all ex parte proceedings in 04cr1224 and 05cr1115, and other judicial public records required to have been
disclosed and produced “prior to trial” in 2007; and the USAO has never disclosed or produced actual
innocent Brady exculpatory evidence the 02cv2219 (SDNY) plaintiffs as of Feb. 2001 and all time thereafter
have been unregistered broker-dealers legally ineligible for Rule 144 exemption to 15 USC 77e, 77x, and
78ff. Cf., Section 7, Exhibit 3, infra (FINRA’s May 17, 2021, certification of unregistered broker-dealer status
for each 02cv2219 (SDNY) lawsuit’s plaintiff, and LH Financial Service, their agent).
The government in 04cr1224 had the trial burden of proof of proving beyond a reasonable doubt each
02cv2219 (SDNY) lawsuit’s plaintiff was a registered broker-dealer, a legal and factual impossibility in Nov.
2007—Ulysses T. Ware, Esq. is actually and factually innocent of all charges in U.S. v. Ware, 04cr1224
(SDNY).
202
(f)(4) the date on which the facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence.
Cf., EOUSA’s March 20, 2023, FOIA response, Section 7, Exhibit 1, infra, the USAO (SDNY) admitted,
confessed, and stipulated as fact it has never searched, inventoried, disclosed, or produced to Ulysses T.
Ware, despite numerous requests and demands, see 22cv10566, Dkt. 5 (discovery motion) frivolously
denied by Ramos, J. on April 3, 2023, “over 15 boxes of materials which could be Brady evidence.”
(emphasis added) (paraphrased). The government’s deliberate, intentional, and bad faith suppression and
concealment of the Brady evidence triggered 2255(f)(4) which reset the purported 2255(f)(1) 1-year
limitation—ergo, Applicant’s recharacterized 2241 petition as a moot 2255 motion is therefore timely;
however, because 2255 was unavailable on Dec. 12, 2022, Dkt. 126—Applicant was not a federal
“prisoner” then in custody or detention under an extant federal sentence within the scope of AEDPA, 2255
Page 180 of 209

public records associated with the sub judice Criminal Proceedings have been disclosed and
produced to Applicant, and (B) certify as officers of the court subject to DOJ and the District Court
(SDNY) Rules of Ethics and Professional Conduct, Rules 3.3, 3.4, 8.4, and duty of complete candor
to the tribunals, the government has searched for, inventoried, disclosed and produced “all”
Brady evidence in accordance with the Brady doctrine, the Brady court Orders, and Fed. R. Crim.
P. 5(f).
Until both A and B are satisfied by the district court and the government, 2255(f)(2) and
2255(f)(4)203 reset the 2255(f)(1) 1-year limitation period until certification is made; therefore,
even if the 22cv3409 (SDNY) 2241 petition was properly characterized as a 2255 motion, it was
not, the Supreme Court has definitively rejected the district court's reasoning, analysis, and ruling
the purported 2255 motion was untimely given the numerous “impediments”--unclean hands of
the district court (Ramos, J.) and the government.
Furthermore, given the district court did not review the merits of the actual innocent
claims, a remand is required for an evidentiary hearing and other proceedings to make a record
was “inadequate” and “ineffective,” therefore, 2241 was the only available procedural remedy to
adjudicate the merits of the actual innocent claims in 22cv3409 (SDNY) and 22cv10566.
203
Rivas v. Fischer, 294 F. App'x 677, 678-79 (2d Cir. 2008) (“The District Court dismissed Rivas's claims as
time-barred under 28 U.S.C. § 2244(d)(1)(D). We are unable to review this determination, however,
because (1) "the date on which the limitation clock beg[ins] to tick is a fact-specific issue," Wims v. United
States, 225 F.3d 186, 190 (2d Cir. 2000) (rev’d denial of 2255 motion as time-barred, remanded for an
evidentiary hearing for the district court to develop the record regarding timeliness--a “fact-specific
issue.”), and (2) the District Court did not develop a record as to (a) whether "a duly diligent person in
petitioner's circumstances" would have discovered the evidence proffered by Rivas before May 8,
1999, id., or (b) whether this evidence provides factual predicates for any of Rivas's habeas claims … we
remand in order for the District Court to make specific factual findings regarding at least these
questions.”) (emphasis added).
Page 181 of 209

of the permissible fact-finding, and conclusion of law applied to the actual innocent claims based
on the new evidence presented in COA, Section 7, Exhibits 1-16, infra, and presented to the
district court during the proceedings which led to Dkt. 126, and Dkt. 213, 214; and Dkt. 1, 6, and
7 (22cv10566).204
Conclusion.
However, even assuming arguendo (I) the government’s and the district court’s hands are
not unclean—that is, not soiled in conspiracy, collusion, grand jury fraud, kidnapping, bankruptcy
fraud, 18 USC 2071 theft of judicial public records, perjury, obstruction of justice, bribery, RICO
unlawful debt collection, and fraud, also (II) assume the government did not waive the 2255(f)(1)
defense, and (III) assume the district court was authorized to sua sponte raise the 2255(f)(1)
affirmative defense, on behalf of the government in violation of the Separation of Power
doctrine and due process of law,205 nevertheless, Applicant was and is authorized to petition the
204
See Rivas, 687 F.3d at 543, “Because the determination as to whether no reasonable juror would find
a petitioner guilty beyond a reasonable doubt is a mixed question of law and fact, we review [a] district
court's ultimate finding relating to actual innocence de novo.” (emphasis added). (brackets omitted).
205
See Nixon, 418 U.S. at 693-96 (Id. at 694: “Under the authority of Art. II, § 2, Congress has vested in the
Attorney General the [exclusive] power to conduct the criminal litigation of the United States Government.
28 U.S.C. § 516.“) (emphasis added). Article III federal court lacks lawful Article III power to “conduct the
criminal litigation [for] the United States” vis-à-vis a 2255 motion and to conduct judicial review regarding
the Executive Branch’s discretionary, Article II prosecutorial political decisions [to waive a 2255(f)(1)
affirmative defense while knowing the government has unclean hands], else Separation of Powers doctrine
is violated.
Applying the logic and reasoning of Nixon to the district court’s (Ramos, J.), Dec. 12, 2022, Dkt. 126 sua
sponte, ultra vires, and unconstitutional plea of untimeliness 2255(f)(1) affirmative defense on behalf of
the real party in interest, the United States, ipso facto, on its face is null and void ab initio—it is hornbook
law only the USAO (SDNY) is lawfully authorized by the Separation of Powers doctrine, Article II, and 28
USC 547 and due process of law to “defend” or “prosecute” on behalf of the United States, where the
Page 182 of 209

district court via 28 USC 2241 and Article I, section 9, the Suspension Clause, and have a federal
court adjudicate the merits of his actual innocent claims in the Ware v. USA, et al., 22cv3409
(SDNY), 2241 petition under the fundamental miscarriage of justice legal standard, given
2255(f)(1) is an affirmative defense required to be “affirmatively state[d]”, see Rule 8(c), and is
not a jurisdictional requirement.206
The Court’s decisions in McQuiggins, and Schlup both rejected the district court’s
decision/ruling, Dkt. 126, Dkt. 213, Dkt. 214; and Dkt. 1, 6, and 7 (22cv10566) that a non-
jurisdictional affirmative defense, 2255(f)(1), a procedural bar, precluded adjudication of the
merits of the actual innocent claims under the fundamental miscarriage of justice standard,
whether a 2255 motion or a 2241 petition.207 It does not.208
United States is “concerned,” absolutely not Edgardo Ramos, or any other federal judge. Which is obvious
to one sufficiently and competently trained in the law. Thus, the question is raised and must be answered
by Ramos, J., “What maliciousness and recklessness motivated Ramos on Dec. 12, 2022, Dkt. 126, and on
April 3, 2023, Dkt. 213, and 214 (22cv3409), and Dkt. 1, 6, and 7 (22cv10566) to irresponsibly usurp Article
II power, egregiously violate the Code of Conduct for Federal Judges, violate due process of law, and enter
unconstitutional, null and void ab initio, and moot purported judicial orders void ab initio on their face?
An evidentiary hearing is required to be conducted where Ramos is required to show cause why he shall
not be sua sponte referred for criminal prosecution by the DOJ’s Office of Public Integrity for 18 USC 2, 241,
242, 371, 401(2), 401(3), 1519, 1956-57. 1961(6)(B), and 2071 violations.
206
Rivas, 687 F.3d at 548, “We therefore join the Sixth, Ninth, Tenth, and Eleventh Circuits in concluding
that the Schlup actual-innocence gateway extends to claims otherwise barred by [§2255(f)(1)].” (emphasis
added).
207
The district court (Ramos, J.) abused its discretion, made a clear error and overlooked the fact that if
2255 is unavailable or was made unavailable by 2255(f)(2) or 2255(f)(4) governmental or the federal
courts’ unconstitutional and illegal “impediments” which prevented Applicant from access to 2255, which
have not been removed—that is, “unclean hands,” accordingly, 2241 is the available remedy under the
Suspension Clause, Article I, section 9 to adjudicate the merits of the actual innocent claims.
208
Rivas v. Fischer, 687 F.3d 514, 517 (2d Cir. 2012) (“The Supreme Court has recognized that a “credible”
and “compelling” claim of actual innocence may provide a “gateway” through other procedural barriers
Page 183 of 209

The district court’s erroneous decisions, Dkt. 126, 213, 214, and Dkt. 1, 6, and 7
(22cv15066) must be reversed, vacated, set aside, and remanded to a new district court for
adjudication of the merits of the 2241 or 2255 actual innocent claims.
“All evil deeds eventually come into the light.”209 Ramos, Williams, and Garland will have
to come into court, take off their white gloves, come into the light, and show their soiled hands
to the public soiled by numerous Brady violations, and criminal judicial and prosecutorial
misconduct210—“There is something rotten in the State of Denmark.”211
to habeas relief, see Schlup v. Delo, 513 U.S. 298, 324, 315, (1995) (successive petitions); House v.
Bell, 547 U.S. 518, 521–22 (2006) (state procedural default)”). (emphasis added).
209
This case is a perfect example and reflects what Hannah Arendt referred to as "the banality of evil." In
other words, it captures the idea that evil acts can be perpetrated in ordinary, everyday contexts by
individuals who may appear ordinary themselves. Ethical pliancy can manifest in various ways. It may
involve turning a blind eye to wrongdoing, participating in unethical practices for personal benefit, or
rationalizing morally questionable actions. The persons involved in this case malignant flexibility in ethics
in this case led to a disregard for principles such as honesty, fairness, respect for others, and the greater
good.
210
Lonchar v. Thomas, 517 U.S. 314, 324 (1996) (“Dismissal of a first federal habeas petition is a
particularly serious matter.”). (emphasis added).
211
“Here presented with a “proper case,” we now conclude, as a matter of first impression in this Circuit,
that a credible and compelling showing of actual innocence under the standard described by the Supreme
Court in Schlup and House warrants an equitable exception to AEDPA's limitation period, allowing the
petitioner to have his otherwise [2255(f)(1)] time-barred claims heard by a federal court. Because Rivas
has made such a showing, we reverse the decision of the United States District Court for the Northern
District of New York (Gary L. Sharpe, Judge ) dismissing his petition for habeas relief and remand for full
consideration of his underlying constitutional claims.” Rivas, Id. at 518, 540. (emphasis added).
Applying the reasoning in Rivas to the 22cv3409 and 22cv10566 proceedings, the Court of Appeals for the
Second Circuit in 2012 rejected the district court’s (Ramos, J.) reasoning, analysis, fact-finding, and rulings,
Dkt. 126, 213, 214 (22cv3409, and Dkt. 1, 6, and 7 (22cv10566) and held that Ulysses T. Ware’s “actual
innocence” claims are an “equitable exception” to 2255(f)(1) untimeliness, or other procedural bars.
Therefore, the district court (Ramos, J.) rulings sub judice all are required to be reversed, vacated, set
Page 184 of 209

Respectfully submitted by:
Ulysses T. Ware, Appellant, Applicant
/s/ Ulysses T. Ware
May 20, 2023
aside, and the 22cv3409 2241 habeas corpus petition’s actual innocent claims “remand[ed] for full
consideration” on the merits.
Page 185 of 209

5 OMITTED----
6. OMITTED----
Page 186 of 209

7 Actual Innocent Brady Evidence Exhibits in support of moot
2255(c)(1)(B) application for a moot certificate of appealability—28 USC
2255(f)(2) constitutional “impediments” deliberately, intentionally, and in
bad faith implemented by the government and the district courts’
collusion and conspiracy to prevent Applicant from access to evidence and
facts, 28 USC 2255(f)(4) to timely raise credible claims of prosecutorial
and/or judicial misconduct, and Brady violations assuming arguendo that
AEDPA 2255 applies, which it does not. The constitutional impediments
have not been removed by the government or the district courts (Ramos,
J.), et al. as of the filing of this pleading.
Page 187 of 209

Exhibit 1—March 20, 2023, EOUSA’s In re Ware, 000907 FOIA response that confessed and
admitted to Brady violations—28 USC 2255(f)(2), and 2255(f)(4) exceptions to 2255(f)(1)
by the Office of the United States Attorney (SDNY) regarding U.S. v. Ware, 04cr1224 and
U.S. v. Ware, 05cr1115 (SDNY) which triggered 28 USC 2255(f)(2) access to 28 USC 2241
habeas corpus relief, 22cv3409 (SDNY).
Page 188 of 209

Exhibit 2—Rule 1 Advisory Committee’s Notes (scope) of 28 USC 2255 motion—2255 and
AEDPA applies only to “prisoners” in custody under a federal or state “sentence.”
Page 189 of 209

Exhibit 3—FINRA’s May 21, 2021, certification of unregistered broker-dealer status for each
02cv2219 (SDNY) lawsuit’s plaintiff which annulled and mooted the 02cv2219 (SDNY)
lawsuit and 04cr1224 indictment for lack of Article III standing and subject matter
jurisdiction.
Page 190 of 209

Exhibit 4—Dec. 20, 2007, post-trial, voluntary Rule 41(a)(2) dismissal with prejudice of the
02cv2219 (SDNY) lawsuit, a subsequent event which mooted and annulled the 02cv2219
(SDNY) lawsuit, and annulled and vitiated the government’s 04cr1224 (SDNY) trial exhibits
GX 1-4, GX 5, GX 7, GX 11, GX 24, and 34, which as a matter of law and fact acquitted
Ulysses T. Ware, Esq. (Applicant) of all 18 USC 401(3) criminal contempt charges in
04cr1224—that is, actual and factual innocent, subsequent events.
Page 191 of 209

Exhibit 5—Marlon G. Kirton, Esq., letter to the 05cr1115 sentencing district court which
admitted and confirmed that the government’s “principal witness” in 05cr1115, Jeremy
Jones had covertly cooperated with the government, was a paid witness, and was given a
“5k1.1 letter” by the government for Jones’ known perjured trial testimony.
Page 192 of 209

Exhibit 6—suppressed and concealed alleged Dkt. 24, purported Sept. 2006 Rule 11
proceedings of Jeremy Jones which the government and the 05cr1115 district court have
never disclosed to Applicant—that is, a governmental 28 USC 2255(f)(2) statutory cause
and prejudice, a constitutional actual innocent “impediment” which has never been
removed that prevented Applicant from credible and effective relief via timely 2255(a)
motion. Note that Dkt. 24, a judicial public record, does not appear on the alleged public
05cr1115 docket, see Exhibit 7, infra. Nor does Jones[ Rule 11 plea, USSG 5k1.1 cooperation
agreement, not USSG 5k1.1 substantial assistance letter, cf., Exhibit 5, supra. Which triggers
28 USC 2255(f)(2) government “impediment” exception to 2255(f)(1) 1-year limitation.
Page 193 of 209

Exhibit 7—fabricated and counterfeit 05cr1115 docket, government, and the district
court’s deliberate, intentional, and bad faith cover up, suppression, and concealment of
the existence of the alleged Sept. 2006 Rule 11 proceedings, cf., Exhibits 5, and 6, supra—
a 28 USC 2255(f)(2) “impediment” created to prevent Applicant from raising Brady,
prosecutorial, and judicial misconduct claims in post-conviction collateral proceedings. The
government and the 05cr1115 district court (Pauley, J. and Ramos, J.) conspired and
colluded with the government to prevent Applicant from raising any timely challenge to
the government’s and the district court’s prosecutorial and judicial misconduct crimes
committed before, during, and after the 05cr1115 proceedings.
Page 194 of 209

Exhibit 8—05cr1115 district court (Pauley, J.) order denying Applicant’s 2006 pre-trial Brady
discover motion based on the government’s lies, fraud on the court, and 2255(f)(2) Brady
constitutional “impediment” to a fair trial, cf., EOUSA’s March 20, 2023, FOIA response,
Exhibit 1, supra. The government made a deliberate fraud on the court, and violated DOJ
Rules of Ethics and Professional Conduct Rules Rule 3.3, 3.4, 8.4, and duty of complete
candor to the tribunals. The government did not produce and disclose all Brady evidence
“prior to trial” as ordered in the May 19, 2006, Dkt. 17 Brady order, Tr. 5-10.
Page 195 of 209

Exhibit 9—suppressed and concealed (Dkt. 20, 23, and 24 do not appear on the 05cr1115
docket, see Exhibit 7, supra) by the 05cr1115 district court’s pre-trial 10.11.2006
acceptance of Jeremy Jones’ alleged Sept. 2006 Rule 11 plea. See Exhibit 7, supra, the
05cr1115 (SDNY) 2009 docket which does not show any reference to Dkt. 23, the alleged
acceptance of Jones’ Rule 11 plea. A 2255(f)(2) governmental and judicial constitutional
“impediment” which has yet to be removed, which prevented Applicant from raising any
credible challenge to the government’s Brady violation apropos the alleged Rule 11 and
USSG 5k1.1 perjury contracts—First Amendment judicial records.
Page 196 of 209

Exhibit 10—USAG’s voluntary, Nov. 7, 2008, actual innocent Article II, appellate political
decision to abandon, terminate, and dismiss with prejudice the government’s U.S. v. Ware,
07-5670cr (XAP) (2d Cir.), Gov-I, cross-appeal—an acquittal on the merits of all charges in
05cr1115 (SDNY).
Page 197 of 209

Exhibit 11—suppressed and concealed SEC lawyer Jeffrey B. Norris’ internal actual
innocent, Brady exculpatory and impeachment official SEC email which confirmed the SEC-
DOJ 2003 Las Vegas 03-0831 (D. NV) bootleg grand jury proceeding was rigged and fixed as
an overt act in a conspiracy to obstruct justice by the District Judge Kent J. Dawson (D. NV)
to assist the USAO (SDNY) to circumvent the Federal Rules of Crim. P. and the Constitution
and use the commingled 03-0831 civil proceedings as an unconstitutional bootleg grand
jury to gather evidence for use by the USAO in the imminent U.S. v. Ware, 04cr1224 (SDNY)
and 05cr1115 (SDN) criminal proceedings, and to have Applicant bullied into waiving his
Fifth Amendment right to remain silent.
Page 198 of 209

Exhibit 12—suppressed and concealed SEC lawyer Jeffrey B. Norris’ actual innocent Brady
exculpatory and impeachment official SEC email sent pretrial (circa 2005) to Jeremy Jones
the government’s “principal witness” in U.S. v. Ware, 05cr1115 (SDNY). Norris informed
Jones the SEC’s lawyers involved in the Las Vegas 03-0831 (D. NV) Bootleg Grand Jury
Proceedings believed his and the government’s 05cr1115 witnesses’ SEC deposition
testimony “they were not involved in any conspiracy with Mr. Ware, and had they known
of any conspiracy would not have gotten involved.” (paraphrased). The district court
(Pauley, J.) in limine order, Dkt. 35, prohibited Applicant from calling any SEC employee as
an exculpatory or impeachment witness in violation of the Sixth Amendment’s right to
“effectively cross-examine” the government’s witnesses, and put on “a complete defense.”
Page 199 of 209

Exhibit 13—suppressed actual innocent Brady exculpatory and impeachment evidence.
Paragraph 33 in the SEC v. Small Cap Research LLC, et al., 03-0831 (D. NV) lawsuit. In 2003
the SEC on behalf of the United States stipulated, pleaded, and judicially admitted in the
complaint, equitable and judicial estoppel against the United States, there was no
“artificial” “inflation” or “increase” or “pumped up” stock “prices” regarding the securities
of INZS and SVSY which rendered probable cause in U.S. v. Ware, 05cr1115 (SDNY) a legal
and factual impossibility.
Page 200 of 209

Exhibit 14—suppressed and concealed Brady evidence--former SEC lawyer Jeffrey B.
Norris’ official SEC email to the official DOJ email account of AUSA Alexander H. Southwell,
the government’s lead prosecutor in 05cr1115, and the prosecutor who procured the
04cr1224 indictment—AUSA Southwell admitted to Norris that Ulysses T. Ware, Esq. was
“improperly arrested” by District Jude Thomas W. Thrash, Jr. (NDGA) and the U.S. Marshals
who stormed Mr. Ware’s law office on Sept. 1, 2004, in Atlanta, GA conducting 18 USC
1961(6)(B) unlawful, criminal usury debt collection activities regarding government trial
exhibits GX 1-4, and GX 5, the criminal usury convertible promissory notes, the subject
matter of the 02cv2219 (SDNY) lawsuit, and the U.S. v. Ware, 04cr1224 (SDNY) indictment’s
charges. See Exhibit 15, infra.
Page 201 of 209

Exhibit 15—suppressed and concealed U.S. Probation Office (SDNY) assessment that
Ulysses T. Ware, Esq. was improperly arrested in Atlanta, GA on Sept. 1, 2004, by District
Judge Sand (SDNY) (deceased), District Judge Thomas W. Thrash, Jr. (NDGA), the SEC, the
USAO (SDNY), and the U.S. Marshals conducting RICO money laundering, and Hobbs Act
extortion18 USC 1961(6)(B) unlawful debt collection activities in violation of U.S. v. Grote,
961 F.3d 105 (2d Cir. 2020) (aff’d conviction, sentence, and RICO $3.0 billion forfeiture
judgment for unlawful debt collection activities) and Adar Bays v. GeneSYS ID, Inc., 28 F.4d
379 (2d Cir. 2022) (criminal usury convertible promissory notes are unenforceable, null and
void ab initio, and violate NYS Penal Law, section 190.40, the criminal usury law, a class E
felony).
Page 202 of 209

Exhibit 15—con’t.
Page 203 of 209

Exhibit 16—Norris v. SEC, 675 F.3d 1349 (Fed. Cir. 2012)---the USAO (SDNY) suppressed and
concealed the fact its FRE 404(b) witness, disgraced former SEC lawyer Jeffrey B. Norris,
own SEC professional ‘bad acts’—when Norris testified for the USAO in 2007 in U.S. v. Ware,
04cr1224 (SDNY), the USAO suppressed and conceal Brady evidence that Norris then had
been sanctioned twice by the SEC for professional bad act, and was then under the care of
a psychiatrist taking drugs for his mind.
Page 204 of 209

Exhibit 16--(con’t).
Page 205 of 209

Page 206 of 209
Page 207 of 209
Certificate of Service
I Ulysses T. Ware have this 20th day of May 2023, served the United States, Edgardo Ramos, Laura-
Taylor-Swain, and Merrick B. Garland, the appellees with a copy of the Notice of Appeal and (2)
application for a moot 28 USC 2253(c)(1)(B) certificate of appealability to their respective public
email accounts.
Ulysses T. Ware
/s/ Ulysses T. Ware
Page 208 of 209

End of document.
Page 209 of 209


AF (01) - Notice of Appeals and Application For 2253 Certificate of Appealability

Uploaded by

Copyright:

Available Formats

You might also like

AF (01) - Notice of Appeals and Application For 2253 Certificate of Appealability

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

AF (01) - Notice of Appeals and Application For 2253 Certificate of Appealability

Uploaded by

Copyright:

Available Formats

22cv3409 (SDNY)/22cv10566 (SDNY)(AF01)

Ware v. United States, Garland, Ramos, & Taylor-Swain.

I Notice of Appeal—Ware v. USA, et al., 22cv3409 and 22cv10566 (SDNY). ..................................... 14

Appellant specifically appeals:

time-barred, untimely “affirmative defense” or opposing or any challenge to the actual

innocent claims factual predicates.9

Dkt. 214, and Dkt. 2, 6, and 7 (22cv10566);

214, and Dkt. 2, 6, and 7 (22cv10566);

H. appeals the denial of recusal;

I. appeals the denial of an evidentiary hearing;

not been disclosed or produced to Appellant, i.e., 2255(f)(2) government “impediments;”

1 Forward the complete certified record to the Court of Appeals.12

this COA and appeal.13

other legal process.

judicial public records have been disclosed and produced to Appellant.

4 Summary of the appeal issues, and COA claims.

motion, (the “Motion”).

the fundamental miscarriage of justice legal standard.

unreviewable, discretionary, prosecutorial prerogative to dismiss Gov-I and 05cr1115 with

stipulation removed all required “concrete adverseness” and justiciable controversy

matter of the Supreme Court of Georgia in In re Ware disbarment proceedings.

stipulation of fact, and the actions of the United States.

F. Accordingly, the government is strictly prohibited from any appearance in 22cv3409

purchased to conduct an immediate public offering.

II Omnibus Jurisdictional Statement.

proceedings, (the “Criminal Proceedings”).

opinions to the 02cv2219 (SDNY) lawsuit’s plaintiffs.

GX 7, GX 11, and GX 24, as if the lawsuit had never been filed.

"offenses" that violated the laws of the United States.

rulings, and finding null and void ab initio and moot.

initio, and moot.

an extant federal sentence entered by the Criminal Proceedings district courts.

void ab initio, and currently moot.

null and void ab initio and moot.

(GPMT’s criminal usury convertible promissory notes), and GX 5 (criminal usury

initio, unenforceable, and 18 USC 1961(6)(B) criminal usury unlawful debts;

registration requirements, see SEC Release 33-7190 n. 17 (1995).32

Respectfully submitted by:

2253(c)(1)(B) application for a certificate of appealability.

(SDNY), for the following jurisdictional “threshold matters” reliefs, to wit:

(i) Request for a jurisdictional status conference and evidentiary hearing.

conference, and (ii) jurisdictional evidentiary hearing36 and;

databases, records, or forms of documents, in whatever format for lack of,

jurisdiction over and;

understanding of the law, the facts, and the proceedings.

ab initio and moot.

courts or the government.

Signed this 20th day of May 2023 in Brooklyn, NY

v. Ware, 04cr1224 (SDNY) and United States v. Ware, 05cr1115 (SDNY).

The following substantial, actual innocent constitutional claims are “substantial

showings” of the denial of a constitutional right—that is, a fundamental miscarriage of justice,49

and the government had implemented constitutional “impediments” as defined in 28

challenge the convictions entered in 04cr1224 and 05cr1115;

assessment55—an egregious error of constitutional procedure whether under 2255 or

the 22cv3409 (SDNY) actual innocent 2241 habeas corpus petition;

05cr1115 (Dkt. 17);

EOUSA’s March 20, 2023, response to In re Ware, 22-000907 FOIA response;56