UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _____________________________________ SEPHORA K. DAVIS, Petitioner v. ANDREA W.

EVANS, as Chairwoman of the New York State Board of Parole; BRIAN FISCHER, as Commissioner of the New York State Department of Corrections and Community Supervision; and ANDREW CUOMO, as Governor Of the State of New York, Docket No. Respondents. For a Writ of Habeas Corpus Pursuant to 28 U.S.C. section 2254 _______________________________________ JOHN M. REGAN, JR., being duly sworn, deposes and says: 1. I am an attorney duly admitted in this Court and I represent the Petitioner herein. 2. This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254, presenting a very important question of constitutional law: whether a criminal defendant has a due process right not to be deliberately prosecuted by government officials based substantially or wholly upon perjury and fabricated evidence. Put colloquially, the question is whether an individual has a due process right not to be framed by the government. 3. Counsel is presenting this Order to Show Cause owing to the importance of the question presented by the Petition, the difficulty and rarity of achieving the factual and AFFIDAVIT

legal predicates for presenting the question, and the urgency and difficulty of the circumstances for Petitioners counsel. 4. It is perhaps not readily appreciated by a court that the very circumstances under which a petition such as this one would arise imply a certain degree of physical danger for the lawyer involved in representing a Petitioner: after all, the contentions are that public officials have engaged in malicious and criminal conduct including, inter alia, perjury, conspiracy to commit perjury, witness tampering, and associated federal crimes such as violations of 18 U.S.C. 241 and 242. This particular petition also contends that the Petitioner was violently raped, at knife point, by a police informant in connection with the very incident for which she was ultimately prosecuted by those officials. There is therefore a great deal at stake for the officials involved, whose careers and livelihoods, and potentially freedom, may well be at risk from the within proceedings. This in turn provides a strong motive for further criminal conduct directed at undersigned counsel by those same government officials, who have moreover already demonstrated a willingness to engage in serious and violent criminal conduct and who thus far remain in a very good position to continue. 5. Quantifying this risk with any degree of precision is not possible, but simple prudence dictates that the risk should be taken into account and precautions taken. One precaution undersigned counsel has taken is to seek the protection of another government through a claim for political asylum in Canada. This restricts undersigned counsels ability to be present in the jurisdiction to prosecute the petition. At the same time, undersigned counsels participation in the matter is essential, as the only person who can explain the evidence supporting the petition. Indeed, it is as though undersigned counsel is the main

witness in support of the Petition. Most of the relevant details are wholly outside the knowledge and comprehension of the Petitioner herself which, if the Court will devote some thought to the matter, makes perfect sense. The nature of the government conduct involved is such that it involves deception and secrecy that likely can be penetrated only through a successful counter-investigation conducted by a lawyer. This is precisely what has happened here. Thus despite the uncertainty in calculating the risk it is no exaggeration to say that undersigned counsel is at the very least a logical target for further criminal conduct by the relevant officials, who are of course in a favored and favorable position to act under color of law themselves. 6. These precautions have had a number of significant collateral effects that pose many practical problems in prosecuting the petition. Among these have been: extreme financial hardship, such that undersigned counsel no longer has a residence or an office in the jurisdiction, and has found even funds for travel back and forth difficult to obtain; along with anticipated complications crossing the US-Canada border owing to counsels irregular status as a refugee claimant in Canada. Accordingly, it is important to undersigned counsel, and for the orderly disposition of the petition, both to schedule this matter with a court order, so that the order can be presented to US officials at the US-Canada border and ameliorate any confusion they may otherwise have; and it is also important to address the petition promptly, which may alleviate - or at least limit going forward - the ongoing and very debilitating financial circumstances undersigned counsel has been experiencing. 7. An expedited procedure is further justified by the extreme difficulty of actually having a case with facts that properly present the issue, meaning that further opportunities to consider the legal issue involved will be quite scarce. By way of explanation, for a

petition to properly present the issue, the record must show that the state knowingly and deliberately used perjury and fabricated evidence to bring criminal charges against the petitioner. The record must also demonstrate that this was established in the course of the proceedings in state courts. And the record must further demonstrate that despite all this, the state afterwards pressed the matter to a conviction by a guilty plea anyway, preferably by way of an Alford plea. 8. All of that is demonstrated by the record in this proceeding. 9. As more fully appears below, it is also very important for a federal court to consider and decide the issue presented, since that will serve to confront an inimical but widely held opinion among the nations prosecutors. 10. Attached to this application and incorporated herein by reference is a true and correct copy of the petition for habeas corpus, and the petition for rehearing, that were filed in the United States Supreme Court (Docket No. 09-10613) on May 5, 2010. That petition was denied without comment on June 1, 2010. A petition for rehearing was filed on June 23, 2010. That petition was denied without comment on July 26, 2010. Under the Supreme Court rule 20.4(b): Neither the denial of the petition, without more, nor an order of transfer to a district court under the authority of 28 U.S.C. 2241(b), is an adjudication on the merits, and therefore does not preclude further application to another court for the relief sought. 11. It is submitted that this application is therefore proper. Furthermore, the jurisdictional and required prima facie allegations are contained in the attached petition and nothing has changed so as to render this application in any way legally barred. An affidavit

of the Petitioner concerning her current status on post release supervision is attached hereto and made a part hereof. 12. Owing to the nature of the question presented, the only proper relief is for this Court to not only hold that the Petitioners conviction was unlawfully obtained, but also to bar further prosecution, since it is the prosecution itself, and not just the judgment of conviction, that is at issue. If the Court is unwilling to grant this relief upon plenary consideration of the question presented, the Petitioner would prefer to withdraw the Petition rather than accept lesser relief which leave open the possibility of further prosecution by the state, a prosecution that in any event could only be undertaken with the further use of perjury and fabricated evidence.

ARGUMENT I. THE NATIONS PROSECUTORS AS A GROUP TAKE THE POSITION THAT THAT THEY CAN DELIBERATELY FABRICATE A CRIMINAL CASE AGAINST AN INDIVIDUAL USING PERJURY AND FALSE EVIDENCE AND OBTAIN A CONVICTION WITHOUT VIOLATING THE INDIVIDUALS RIGHT TO DUE PROCESS, SO LONG AS THEY DO NOT USE THE PERJURY AND FALSE EVIDENCE AT A TRIAL. 13. In other words, if the prospect of a lengthy prison or death sentence terrorizes a criminal defendant into a guilty plea, even though the criminal charges themselves are entirely made up to begin with and the prosecutor knows it, the nations prosecutors as a group believe that no due process right of the criminal defendant has been violated and that the judgment of conviction thereby obtained is lawful and valid, and that the prosecution was proper.

14. This was made clear in the briefing and argument of Pottawattamie County v. McGhee (Docket No. 08-1065) in the United States Supreme Court in late 2009. The way the prosecutors groups phrased the idea was that there is no free standing constitutional right not to be framed. 15. This rather shocking claim prompted an editorial in the Washington Post (November 2, 2009) which quite appropriately called it a breathtaking proposition that the Supreme Court should roundly reject. Unfortunately, the Supreme Court never got that chance, because in January of 2010, after the matter had been submitted for decision, the parties to Pottawattamie settled for a reported figure of $12 million and the case was dismissed under Supreme Court rule 46. Indeed, it is that development which prompted the Petitioners application in that Court shortly thereafter. 16. Yet shocking though it may be, there is a strained though ultimately perverse and (Petitioner submits) bad faith rationale for the prosecutors position based upon a twisted interpretation of decades of Supreme Court precedent, specifically culminating in a footnote in the pluralitys opinion in Albright v. Oliver, 510 US 266 (1994) The footnote itself is clearly in error and does not constitute any sort of binding precedent, but that has not prevented the nations prosecutors from seizing upon it and exploiting it to arrive at their lamentable position as asserted in the Pottawattamie case in 2009.

II. THE CASE LAW HISTORY OF THE PROSECUTORS SHOCKING ARGUMENT

A. THE MOONEY LINE OF CASES 17. The seminal case considering the due process implications of the deliberate and malicious use of perjury and fabricated evidence to obtain convictions in state courts is Mooney v. Holohan, 294 US 103 (1935). Mooney was convicted in California state courts and contended that the case against him was a knowing frame up job by police and prosecutors. He filed an original petition for habeas corpus in the United States Supreme Court (another reason the within petitioner believed her application to that court in 2010 to be justified) and the state took the position in response that the federal courts had no power to look behind facially valid state court procedures to examine whether the defendant had received due process. The Court famously ruled: Without attempting at this time to deal with the question at length, we deem it sufficient for the present purpose to say that we are unable to approve this narrow view of the requirement of due process. That requirement, in safeguarding the liberty of the citizen against deprivation through the action of the State, embodies the fundamental conceptions of justice which lie at the base of our civil and political institutions. Hebert v. Louisiana, 272 U.S. 312, 316, 317. It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. Mooney, 294 US at 112

18. The Court did not grant the writ, however. It remanded back to the State of California for further proceedings. Technically, then, the opinions discussion of due process was obiter dicta. 19. Even so, the Court reaffirmed the principle of Mooney in at least two subsequent cases dealing with the same question over the next two decades: Pyle v. Kansas, 317 US 213 (1942) and Napue v. Illinois, 360 US 264 (1959), so that by 1959 it was settled law that it was a violation of due process for a state to deliberately use perjury and fabricated evidence to obtain a conviction. 20. While it is true that all three cases involved state court convictions after a trial, and while it is also true that there is some language in Mooney referring to a trial that had in fact occurred in that case, it is nevertheless also true that the principle of law enunciated in each case was that the state could not deliberately use perjury and fabrication to obtain a conviction, a broader formulation than simply proscribing the use of perjury and fabrication at a trial. Indeed if that is what the Court had meant it would have said so, being surely aware that convictions are obtained both at trials and upon guilty pleas. In any case it should not occur to any sane and responsible person let alone lawyers and public officials, as prosecutors are to interpret a proscription against the use of perjury and fabricated evidence in one context to mean that it is permitted in another. Yet this is what has happened. B. THE BRADY VARIATION 21. A few years after Napue, the Supreme Court decided a very famous due process case: Brady v. Maryland, 373 US 83 (1963) In an opinion by Justice Douglas that he described as an extension of Mooney, the Court held that it was a violation of due

process for a state prosecutor to suppress evidence favorable to the accused, irrespective of the good faith or bad faith of the prosecution. Brady, 383 US at 87 In other words, in the case of suppressed exculpatory evidence as opposed to affirmatively manufactured false evidence and perjury, Brady held that the prosecutor scienter requirement of Mooney was unnecessary. Even if the prosecutors conduct was mistaken, as opposed to actively malicious, the due process requirement was violated when exculpatory evidence was suppressed. 22. But Justice Douglas also stated in his opinion that: The principle of Mooney v. Holohan is not the punishment of society for the misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Id. Interestingly and somewhat presciently, Justice White, newly appointed to the Court, wrote in his concurring opinion that the due process discussion by the Court is wholly advisory, and that while he concurred he would use more confining language. 383 US at 921 In any case, at the time Justice Douglas wrote the opinion in Brady, no one had yet conceived of an argument that Mooneys proscription of the use of perjury and fabricated evidence to obtain a conviction applied only to their use at trial and implicitly permitted their use at earlier stages of a criminal proceeding. C. THE PROBLEMATIC CASE OF UNITED STATES v. BASURTO, 497 F.2d 781 (9th Cir., 1974)
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Even so, one case in the Brady line that is, concerning a situation where a prosecutor fails to disclose exculpatory evidence in time for an accuseds trial reaffirmed both that no prosecutor malice is required for the suppression of that evidence to require a new trial; and also that the Supreme Court in that case was dealing with the defendant's right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution. United States v. Agurs, 427 US 97 at 107 (1976) Yet here again it is important to point out, given later developments, that while Agurs cites Mooney in the opinion it never states or implies that Mooney was relevant based upon its holding with respect to the deliberate and malicious use of perjury and fabricated evidence, but only because the Petitioner in Mooney also included allegations that prosecutors in California had suppressed evidence favorable to him, in addition to the deliberate and malicious use of perjury. It is only in the former respect that Mooney was part of the basis for Brady or Agurs.

23. Eleven years after Brady, the 9th Circuit confronted the problem of perjury before a federal (not state) grand jury which had handed down an indictment. While recognizing an already long standing proscription against a court looking behind a facially valid indictment to independently examine the evidence for sufficiency as held by Costello v. United States, 350 US 359 (1956), the 9th circuit held: that the Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached. Whenever the prosecutor learns of any perjury committed before the grand jury, he is under a duty to immediately inform the court and opposing counsel and, if the perjury may be material, also the grand jury in order that appropriate action may be taken. Basurto, 497 US at 785, 786 24. Basurto, unlike Mooney, did not involve the deliberate and malicious use of perjury or prosecutor bad faith; rather, the prosecutor had informed defense counsel that there was perjury before the Grand Jury but did not inform the Court or the Grand Jury. The Supreme Court did not take up the case. Other circuits, including the second circuit, follow Basurto after a fashion [cf., United States v. Ciambrone, 601 F.2d 616 (2nd Cir., 1979)] and it has never been overruled, but it does not constitute a ruling covering the situation where the perjury is maliciously, deliberately and in bad faith used by the government to obtain an indictment. The question of whether this kind of prosecutorial misconduct violates due process has never been explicitly taken up by any of the other circuits or the Supreme Court as the issue in a case2, although it stands to reason that if the
2

In 2004 the first circuit, for example, discussed the idea. While admitting that constitutional interpretation in the area can be recondite, it nevertheless opined: the plaintiffs asseverate that an individual's right not to be convicted by these tawdry meanshis right not to be framed by the government-is beyond doubtThis is easy pickings. Although constitutional interpretation occasionally can prove recondite, some truths are self-evident. This is one

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situation described in Basurto violates due process, then a far more egregious instance of government misconduct surely would as well. Technically, however and perhaps it is unfortunate to say this one could argue that it is an open question even in the wake of Basurto, given the Supreme Courts later decision in Albright. D. FRANKS v. DELAWARE, 438 US 154 (1978) 25. In Franks, the Supreme Court held: where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. 26. Of course, Franks is a 4th amendment case and does not involve due process, except in the formal sense that the 4th amendment is applied to the states through the due process clause of the 14th amendment. Nevertheless, the significance of the holding in Franks for the purposes of this application is that the Supreme Court agreed in principle that the governments knowing and deliberate use of perjury, or indeed even the use of testimony with reckless disregard for its truth or falsehood, entitled a state court criminal defendant to pre-trial relief. This would seem to foreclose any good faith argument that the state could prosecute an individual based substantially or wholly upon perjury and fabricated evidence but by implication, not by a direct holding.

such: if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit. See, e.g., Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir.2001)(en banc). Actions taken in contravention of this prohibition necessarily violate due process (indeed, we are unsure what due process entails if not protection against deliberate framing under color of official sanction). Limone v. Condon, 372 F.3d 39 (1st Cir., 2004)

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E. THE PROBLEM EXACERBATED: ALBRIGHT v. OLIVER, 510 US 266 (1994) 27. Albright was an action brought under 42 U.S.C. 1983 and involved the question of whether there was a substantive right under the Due Process clause of the Fourteenth Amendment to be free from criminal prosecution except upon probable cause. In a plurality opinion authored by Justice Rehnquist, the Supreme Court held that there was no such right. 28. It is very difficult to interpret the scope and significance of Albright. While the underlying facts of the case certainly permitted the inference that the state criminal prosecution at issue was brought in bad faith through a notoriously unreliable police informants allegations, this is not how the issue was framed for Supreme Court review. The outcome was decided by a plurality, and was accompanied by a total of five different opinions. There were two dissents, even as to the outcome. For present purposes, however, the most important aspect of Albright is contained in footnote 6 of the plurality opinion and in Justice Kennedys concurrence, for these appear to form the basis for the disturbing argument made by the nations prosecutors in the Pottawattamie case in 2009. 29. In footnote 6, Justice Rehnquist writes: Similarly, other cases relied on by the dissent, including Mooneyand Agurswere accurately described in the latter opinion as dealing with the defendants right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution. While it is true that Agurs contains that language, the language was not referring to Mooney or the problem of a prosecution brought in bad faith through the deliberate use of perjury and fabricated evidence. In other words this footnote mischaracterizes the holdings of both Agurs and Mooney.

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30. The other basis in Albright for the prosecutors Pottawattamie argument is the sweeping declaration in the concurrence of Justice Kennedy: In sum, the due process requirements for criminal proceedings do not include a standard for the initiation of a criminal prosecution. 510 US at 283 Because of the underlying facts of the case, not to mention Justice Stevens dissent, it is not obvious that Albright isnt relevant to a criminal prosecution brought in bad faith with the deliberate use of perjury and fabricated evidence. Moreover, taken literally, Justice Kennedys sweeping declaration is completely unqualified. That is, on its face it appears to indicate that Justice Kennedy believes a criminal prosecution brought in bad faith with the deliberate use of perjury and fabricated evidence does not violate an accused persons right to due process, because there is no constitutional standard whatever for the initiation of a criminal prosecution: prosecutors are free to just make it all up, extort perjury and conspire to commit it, all without violating anyones due process rights. 31. Albrights confusion may in part stem from the fact that it was an action under 42 U.S.C. 1983 seeking damages. When Albright was decided, the Supreme Court had recently considered the problem of prosecutors fabricating evidence in that context, but on the question of whether they were immune from suit, not whether they had violated a defendants due process rights. Buckley v. Fitzsimmons, 509 US 259 (1993) Even so, Buckley resulted in an explicit and detailed analysis partitioning criminal prosecutions into pre-indictment, pre-trial and trial stages for determining whether prosecutor functions were investigation or advocacy, the latter being encompassed by absolute immunity whereas the former was entitled only to qualified immunity.

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32. Different rules applied to different stages of a criminal prosecution with respect to prosecutor immunity questions after Buckley, but Albright suggested that the same partitioning-into-stages analysis would apply to substantive questions of due process, with due process applying only at the trial stage. This was a completely novel and unprecedented approach at odds not only with the Mooney line of cases - which made no such stages distinctions in connection with the malicious and deliberate use of perjury and fabricated evidence to obtain a conviction but the text of the constitution itself, in which the due process clause originally appears in the fifth amendment that sets forth constitutional considerations underlying criminal prosecutions from their inception, not the sixth amendment which identifies certain rights that are applicable only to trials. 33. In section 1983 actions, immunity questions are sometimes conflated with substantive constitutional questions, as the Supreme Court itself has admitted. Imbler v. Pachtman, 424 US 409 at 428 (1976)(fn 26); Buckley, 509 US at 274 (fn 5) Accordingly, restrictive inferences concerning substantive constitutional rights discussed in section 1983 actions should be entertained only with caution. Nevertheless, the nations prosecutors as a group and especially the prosecutor in the case sub judice have obviously taken some more or less stray language from the Albright case as an authorization for horrifying prosecutorial misconduct directed against innocent persons, although this was not entirely clear as a matter of record until the Pottawattamie case was argued in the Supreme Court in 2009. By then, the Petitioner had already been convicted on an Alford plea and was out of prison beginning her period of post release supervision. 34. As a further illustration of the confusion caused by Albright, the Courts attention is invited to the following:

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Undertaking the first step of the two-step qualified immunity inquiry, we are persuaded that there is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government. Perhaps because the proposition is virtually selfevident, we are not aware of any prior cases that have expressly recognized this specific right, but that does not mean that there is no such rightUnder Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214 (1942), the knowing use by the prosecution of perjured testimony in order to secure a criminal conviction violates the Constitution. While Pyle does not deal specifically with the bringing of criminal charges, as opposed to the securing of a conviction, we find that the wrongfulness of charging someone on the basis of deliberately fabricated evidence is sufficiently obvious, and Pyle is sufficiently analogous, that the right to be free from such charges is a constitutional right. Devereaux v. Abbey, 263 F.3d 1070 at 1075 (9th Cir., 2001) Of course, when Pyle - the first direct descendant of Mooney - was decided in 1942 the Supreme Court had not yet partitioned the criminal prosecution process into stages for a due process analysis, and so the question of whether due process applied at the charging stage, as opposed to the trial stage, did not even exist. It could not have been anticipated at that time that any sane person, let alone the representative organizations of the nations public prosecutors, would argue that the deliberate use of perjury and fabricated evidence at any stage of a criminal proceeding was consistent with an accused persons right to due process of law. Yet this is what has happened, and no court in the country has yet explicitly confronted that proposition in view of the history of the case law and held to the contrary. The Courts discussion in Devereaux, for example, is dicta. CONCLUSION 35. Lamentably, the foregoing is the state of the law of due process, as employed by apparently far too many of the nations prosecutors, both state and federal. It is impossible for a court of any kind, to say nothing of federal courts, to permit this state of affairs to continue - essentially granting to governmental prosecutors a privilege to defraud

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them but continue it apparently will, unless or until some federal court somewhere explicitly and formally holds otherwise. Given the tremendous difficulty of presenting the issue, it is submitted that this Court is obliged to do so upon the within Petition. Dated: March , 2012 _____________________________ JOHN M. REGAN, JR. Sworn to before me this ___ day of March, 2012

_________________________ Notary Public

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