07-5222cr/09-0851cr/11-4181cv (01S)

In the U.S. Court of Appeals

For the Second Circuit
EMERGENCY ACTION REQUESTED
Filed on 4/18/2023 11:52:22 AM
____________
The Office of Ulysses T. Ware
123 Linden Blvd.
Ste 9-L
Brooklyn, NY 11226
(718) 844-1260
Utware007@gmail.com

Tuesday, April 18, 2023, 11:52:22 AM

Via email to Chief Circuit Judge

Office of the Chief Circuit Judge
The Hon. Debra Ann Livingston
U.S. Court of Appeals for the Second Circuit
Thurgood Marshal Courthouse
40 Foley Sq.
New York, NY 10007

Re: Local Rule 27-1 Emergency Motion for leave to file petition to recall mandates based on
(i) newly discovered actual innocent Brady exculpatory evidence, new circuit precedent,
Adar Bays v. GeneSYS ID, Inc., 28 F.4d 379 (2d Cir. 2022), and (iii) actual innocent fraud
on the court, pursuant to circuit precedent, Sargent v. Columbia Forest Products, Inc., 75
F.3d 86, 89 (2d Cir. 1996), and Supreme Court precedent in Hazel Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238 (1994). Ulysses T. Ware has Article III standing to file
and have the Court of Appeals adjudicate the merits of the claims in the April 17, 2023,
applications.

Page 1 of 9
Tuesday, April 18, 2023
(02S) Supplemental Memorandum of Law I re Recall of mandate authorities.
From: Applicant Ulysses T. Ware

To: United States Court of Appeals For the Second Circuit

Date: April 18, 2023, 11:52:22 AM

Re: Supplemental Memorandum of Law I—Recall of

mandate authorities in support of the April 17, 2023,
application for emergency reliefs.

Respectfully submitted by:

The Office of Ulysses T. Ware
123 Linden Blvd.
Ste 9-L
Brooklyn, NY 11226
(718) 844-1260
Utware007@gmail.com

Applicant Ulysses T. Ware

/s/ Ulysses T. Ware
April 18, 2023

Page 2 of 9
Tuesday, April 18, 2023
(02S) Supplemental Memorandum of Law I re Recall of mandate authorities.
 Local Rule 27-1 Supplemental Memorandum of Law I

I Supreme Court recall of mandate authority.

The Court in Calderon v. Thompson, 523 U.S. 538 (1998) noted citing Hazel Atlas Glass

Co. v. Hartford-Empire Co., 322 U.S. 238 (1994) that the courts of appeals had the “inherent

authority” to recall their mandates, which would be reviewed for an “abuse of discretion.”

“Although some Justices have expressed doubt on the point, see, e.g., United
States v. Ohio Power Co., 353 U. S. 98, 102-103 (1957) (Harlan, J., dissenting), the
courts of appeals are recognized to have an inherent power to recall their
mandates, subject to review for an abuse of discretion. Hawaii Housing
Authority v. Midkiff, 463 U. S. 1323, 1324 (1983) (Rehnquist, J., in chambers); see
also Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238, 249-250 (1944).”
Id. at 549-50. (emphasis added).

II. Circuit Courts of Appeals Recall of Mandate Authority.

In United States v. Davila, 890 F.3d 583 (5th Cir. 2018) the Court granted the recall of its

mandate, and granted leave to file an out-of-time petition for panel rehearing where a later en

banc decision by the Court created an “injustice” in the sentence of a criminal defendant.1 The

Court explained, Id. at 587,

1
“Defendant-Appellant Jesus Montalvo Davila moves to recall the mandate and for leave to file an out-of-
time petition for panel rehearing in light of United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc).
In addition, the Federal Public Defender moves to be reappointed as Montalvo's counsel on appeal. We
grant the motions.”

Cf. with this Court’s March 15, 2022, decision in Adar Bays v. GeneSYS ID, Inc., 28 F.4d 379 (2d Cir. 2022)
which annulled, vitiated, voided ab initio the government’s indictment and trial exhibits, GX 1-4 (the
criminal usury convertible promissory notes), GX 5 (the criminal usury illegal underwriting contract), GX
7 (the 02cv2219 (SDNY) final judgment), and orders of the 02cv2219 (SDNY) litigation GX 11, GX 24, and
GX 34 collectively (the “Annulled Judgments”); notwithstanding the 02cv2219 (SDNY) plaintiffs’
12.20.2007, Dkt. 90, voluntary Fed. R. Civ. P. 41(a)(2) dismissal with prejudice of the 02cv2219 (SDNY)

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Tuesday, April 18, 2023
(02S) Supplemental Memorandum of Law I re Recall of mandate authorities.
 “Courts exist not merely to decide cases, but to decide them correctly. The public
interest in correcting an erroneous conviction or sentence may counsel a more
generous recall rule in criminal cases than in other contexts. 16 CHARLES ALAN
WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND
PROCEDURE § 3938, p. 880 (3d ed. 2012) (hereinafter, "WRIGHT & MILLER").”
(emphasis added). (internal quotes, and citations omitted).

The Court was concerned and guided its equitable consideration to grant the recall of the

mandate, and granted the petitioner permission to file the out-of-time petition for a panel

hearing to make sure that an ”injustice” was not committed--that is, the Court’s primary

consideration and concern as a disinterest, and impartial democratic institution for the

protection of the “public interest” was to do justice, and get it right regarding the petitioner’s

liberty interests, the highest interest, then in play.

In Taylor v. United States, 822 F.3d 84, 86 (2d Cir. 2016) (Katzmann, C.J.) this Court granted

a defendant in a criminal proceeding Local Rule 27-1 motion, remanded to the district court for

fact-finding, and delayed its decision whether or not to recall the mandate—that is, this Court

remanded the criminal proceedings to the district court for further fact-finding to determine

whether the mandate should be recalled.2 The overriding consideration in the Court’s decision to

lawsuit which rendered the criminal proceeding U.S. v. Ware, 04cr1224 (SDNY) and the appeal U.S. v.
Ware, 09-0851cr (2d Cir.) null and void ab initio, and moot—that is, “good cause” and “actual innocent
special circumstances.”
2
“In Nnebe v. United States, we held that the “unusual remedy” of recalling a mandate is available when
counsel appointed under the CJA interferes with that right by “promis[ing] to file a certiorari petition, but
failing] to do so.” 534 F.3d 87, 88, 91 (2d Cir.2008). Recalling the mandate allows us to reenter judgment
in the direct appeal and, thus, restart the clock for filing a petition so that the defendant may timely
seek relief.” (emphasis added).

Id. at 90, “We possess an inherent power to recall a mandate, subject to review for abuse of discretion.
No formal test governs the exercise of this discretion. See 16 Charles A. Wright, et al, Federal Practice and

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Tuesday, April 18, 2023
(02S) Supplemental Memorandum of Law I re Recall of mandate authorities.
tentatively grant recall of the mandate pending fact-finding in the district court and restart the

appeals clock was predicated on the equitable judicial concept to do justice in every criminal

proceeding—special circumstances, where the equities require a remedy. In other words,

formality and rigidity should not outweigh the liberty interest of a defendant in a criminal

proceeding to receive justice according to equitable considerations.

Compare Id. at 913 this Court’s equitable process undertaken in the Nnebe case, supra.

Nnebe’s 2255 motion was denied by the district, and on appeal of the denial of the 2255 motion,

Procedure § 3938 (3d ed.2015). In recognition of the need to preserve finality in judicial proceedings,
however, we exercise our authority sparingly ... and only in exceptional circumstances.” (internal citations
and quotation marks omitted). (emphasis added).

3
“When the case reached this Court, we declined to review the merits of the district court’s decision and
instead construed Nnebe’s appeal as a motion to recall the mandate in his direct appeal. We recognized
— and, indeed, the government did not dispute — that Nnebe’s counsel’s conduct violated the provision
of our CJA Plan that incorporates the requirement that, when a client requests assistance seeking review
in the Supreme Court, counsel must either file a petition for certiorari on the client’s behalf or move to
withdraw from the case if the petition would be frivolous. See id.; CJA Plan § IX.C (Dec. 12, 2007).

In light of this violation and in order to make relief available, we determined that the appropriate remedy
would be to “construe Nnebe’s appeal as a motion to recall the mandate and vacate our judgment so
that a new one can be entered in order to afford him an opportunity to petition for
certiorari.”3Nnebe, 534 F.3d at 91.

In doing so, we rejected the government’s argument that a defendant should be required to show
prejudice before the mandate can be recalled, reasoning that imposing such a requirement “would both
be inconsistent with our responsibilities to effectuate the CJA and to implement properly our CJA Plan,
and would unduly interfere with our obligation to supervise court-appointed counsel.” Id. at 91. At the
same time, however, we emphasized that we were “not retreating] from our view that recalling a mandate
is an unusual remedy intended for extraordinary circumstances,” and we cautioned that we likely would
not recall the mandate when a defendant fails to act with diligence or to proffer adequate proof [cf., with
Ulysses T. Ware’s April 17, 2023, Rule 27-1 Motion to Recall the Mandates, Exhibits A thru K, and
Appendices A thru U, actual innocent Brady exculpatory evidence] of his allegations. Id. at 91-92.”
(emphasis added).

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Tuesday, April 18, 2023
(02S) Supplemental Memorandum of Law I re Recall of mandate authorities.
this Court used its discretion to construe Nnebe’s appeal of the 2255 motion as “a motion to recall

the mandate” regarding the “direct appeal” of his criminal conviction.

In Taylor, Id. at 94, this Court delayed the recall of the mandate, and instead remanded

the proceedings to the district court with instructions to conduct fact-finding evidentiary hearings,

and adjudicate the petitioner’s ineffective assistance of counsel claim, and return the finding to

the Court of Appeals for a determination whether or not the mandate should be recalled.4

III. Application of the above legal standards to the pending Local Rule 27-1
Emergency to Recall Mandates.

Attacked to Applicant’s April 17, 2023, Local Rule 27-1 Emergency Motion to Recall

Mandate, (the “Recall Motion”), Applicant presented (i) “good cause” and (ii) “actual innocent

special circumstances” to the Court in support of the requested relief. Based on the newly

discovered actual innocent Brady exculpatory evidence attached to the Recall Motion, see

Exhibits A thru K, and Appendices A thru U, (the “Brady Exculpatory Evidence”)—that is, clear

and convincing actual innocent Brady exculpatory and impeachment evidence which established

Applicant’s actual and factual innocent of all charges in the sub judice U.S. v. Ware, 04cr1224

4
“We agree with the government that this deficiency precludes recalling the mandate at this stage.
Because Taylor’s [ineffective assistance of counsel] claim was rejected below on the ground that he had
failed to demonstrate prejudice without any inquiry into whether his allegations are true, however, the
appropriate course is to remand to allow the district court to make factual findings regarding whether
Taylor’s counsel failed to timely inform Taylor of our decision affirming his conviction and sentence.

On remand, the district court should also receive evidence on whether Taylor’s counsel ever informed
him of the opportunity to petition for certiorari or moved to withdraw from the case. See CJA Plan ¶
IX.C. Finally, in considering each issue, the district court should offer Taylor’s original CJA counsel “an
opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs”
regarding his allegedly deficient representation of Taylor.” (emphasis added).

Page 6 of 9
Tuesday, April 18, 2023
(02S) Supplemental Memorandum of Law I re Recall of mandate authorities.
(SDNY) and U.S. v. Ware, 05cr1115 (SDNY) criminal proceedings, (the “Criminal Proceedings”).

Applicant has (i) overwhelmingly presented the required factual predicates in support of “special

circumstance” and “good cause” requirements for this Court to recall his mandates, or

alternatively (ii) for the Court to undertake the procedure approved in Taylor or Nnebe and

“remand to the district court” to conduct fact-finding Kyles “cumulative materiality assessment”

evidentiary hearings apropos the actual innocent newly discovered Brady exculpatory evidence,

to wit, Exhibits A thru K, and Appendices A thru U.

Furthermore, Applicant presented to the Court of Appeals its March 15, 2022, Adar Bays

decision, which is subsequent, material, dispositive, and constituted new, actual innocent circuit

precedent similar to the subsequent en banc decision in the Davila, Id. at 587, which the Fifth

Circuit used to justify its recall of the mandate to “prevent an injustice” and correct an error, else

a fundamental miscarriage of justice would have gone uncorrected.

IV Conclusion.

The applicable rule is law is well-settled, and the factual predicates submitted to the Court

in the April 17, 2023, Recall Motion are clear and convincing--the Second Circuit Court of Appeals

regarding the 07-5222cr/09-0851cr/ and 11-4181cv appeals has the legal authority and

responsibility to recall its mandates to “prevent an injustice,” to correct an injustice, to protect

the integrity of its proceedings from all fraud on the court, and other instances of professional

misconduct; and the responsibility if opposed by the Respondents, to remand to the district

courts and allow Applicant to present the actual innocent Brady exculpatory evidence to the

district court for Kyle materiality assessment evidentiary hearing proceedings, and the

Page 7 of 9
Tuesday, April 18, 2023
(02S) Supplemental Memorandum of Law I re Recall of mandate authorities.
adjudication of the merits of all claims that would give the Court additional information on which

to base its recall of mandate decision.

V Relief requested.

I. Applicant respectfully requests that the Court of Appeals grant the Emergency Reliefs in

the April 17, 2023, Recall Motion.

II. Or, alternatively, grant a remand to the respective district courts with instructions to

forthwith conduct public, adversarial, impartial fact-finding evidentiary hearings on all

issues of disputed material facts regarding Applicant’s claims of judicial and prosecutorial

misconduct, professional misconduct, fraud on the court, and other nefarious acts and

actions committed during the sub judice Criminal Proceedings,

Committed during the Las Vegas 03-0831 (D. NV) proceedings,

III. committed during the In re Group Management Corp., 03-93031-WLH (BC NDGA),

IV. committed during the In re Ware (2008) State Bar of GA purported disbarment

proceeding,

V. committed during the September 1, 2004, RICO 18 USC 1961(6)(B) criminal usury unlawful

debt collection kidnapping proceeding, and

VI. committed during the RICO 18 USC 1961(6)(B) unlawful debt collection 02cv2219 (SDNY)

proceedings.

Page 8 of 9
Tuesday, April 18, 2023
(02S) Supplemental Memorandum of Law I re Recall of mandate authorities.
Respectfully submitted by:
The Office of Ulysses T. Ware
123 Linden Blvd.
Ste 9-L
Brooklyn, NY 11226
(718) 844-1260
Utware007@gmail.com

Applicant Ulysses T. Ware

/s/ Ulysses T. Ware
April 18, 2023

End of document

Page 9 of 9
Tuesday, April 18, 2023
(02S) Supplemental Memorandum of Law I re Recall of mandate authorities.