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I.

Petitioner abandons her 4th amendment claim On this Petition for rehearing1, Petitioner abandons her argument that she is entitled to be discharged due to a violation of her rights under the 4th amendment. Such a claim might be barred (although probably not) under Stone v. Powell, 428 US 465 (1976). More fundamentally, while it would be proper on the strength of this Courts holding in Franks v. Delaware, 438 US 154 (1978) to rule that Petitioners indictment and conviction were unreasonable per se under that amendment, from a larger perspective such a ruling would be unwise. It would invite lesser challenges to criminal prosecutions on reasonableness grounds, which would admittedly threaten the orderly adjudication of criminal cases. The meaning of reasonable is too vague to support a constitutional standard in that context (as opposed to the search and seizure context, to which the term traditionally applies). By contrast, the shocks the conscience and deliberate abuse of government power standards under the due process clause are reserved for exceptional circumstances (which in turn partially justify the original application to this Court), fully supported by this Courts precedents and traditions, and directly applicable to the facts of this case. Accordingly, on rehearing Petitioner predicates her request for relief entirely upon due process grounds. II. Preliminary statement and overview The strong trend of this Courts jurisprudence for roughly forty years has been away from concern for the rights of individuals under the Constitution, and towards concern for institutional and establishment litigants, often for reasons of policy. The Petition tests an important limit to this trend. It is worth noting at the outset and by way of comparison that this trend has not been confined to criminal cases and their occasional collateral proceedings.

In the text, Petition can refer to either this Petition (for rehearing) or the Petition for the Writ. References in brackets and bold type are to exhibits to and portions of the Petition for the Writ.

The 7th Amendment to the constitution provides: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; but that has not prevented the practice of judges granting summary judgment in suits at common law upon their own finding, without a determination by a jury, that no genuine controversy of fact exists. This practice, in arguable derogation of an explicit command of the Constitution, has been embraced on grounds of policy: the protection of scarce judicial resources from the time-consuming and expensive adjudication by juries of meritless claims [cf., McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir., 1995)]; and, significantly, the protection of defendants in civil cases from being forced to expend the time and resources, and to endure the tribulation of facing the often unpredictable outcomes that result from jury trials and verdicts. The practice, previously somewhat disfavored, was generally encouraged through a trilogy of cases from this Court in 1986: Celotex Corp. v. Catrett, 477 US 317 (1986); Anderson v. Liberty Lobby, 477 US 242 (1986); Matsushita Electric Industrial Corp. v. Zenith Radio, 475 US 574 (1986) See also, In Re School Asbestos Litigation, 977 F.2d 764, 794 (3rd Cir., 1992)(Under the policy of Rule 56, movants are entitled to avoid the expense and tribulations of trial if they can prove that there are no triable issues.) While neutral on its face, nevertheless the beneficiaries of this policy choice are overwhelmingly establishment and institutional litigants insurance companies, banks, other large business concerns and of course various levels of government that are often defendants in litigation by individuals seeking money damages for some alleged wrong.2 In criminal cases, the same tribulation producing and resource intensive trial by jury that is thought to be wasteful thus justifying summary judgment in potential derogation of an
2

Summary judgment alters the balance of power between plaintiffs and defendants resulting in a transfer of wealth from plaintiffs as a class to defendants as a class. Samuel Issacharoff and George Lowenstein, Second Thoughts About Summary Judgment, 100 Yale L.J. 73, 74 (1990) For a fuller discussion concerning the constitutional infirmities of the summary judgment procedure and the paucity of meaningful review of the issue by this Court, see Suja A. Thomas, Why Summary Judgment Is Unconstitutional, 93 Virginia Law Review 139 (2007)

explicit provision of the Constitution itself has been argued to be the only process due the criminal defendant, even when the accusation that defendant faces is not only meritless3, but the malicious product of deliberate perjury and fabrication by government officials. (Pottawattamie County v. McGhee, 08-1065 brief for Petitioners) [cf., Albright v. Oliver, 510 US 266 (1994)] From this perspective, the only alternative for a criminal defendant, once falsely accused, is to beg for mercy and accept a compromise guilty plea. Put another way, concern over harassing litigation and scarce judicial resources in the civil context seems to evaporate in the criminal context. In 2006 there were 1.1 million felony convictions nationwide in state courts alone4 and 14.4 million arrests.5 In the same year there were - at most - 18,000 civil rights complaints filed in federal courts stemming from state and federal enforcement of criminal laws (excluding prisoner petitions). Under one-third of these claims attained any degree of success.6 In other words, the ratio of federal court claims of infringement of constitutional rights in the constitutionally laden area of criminal law enforcement was (probably substantially) less than 2% of the state felony convictions in that same year. But the fairer comparison would be to the number of arrests, which are more closely analogous to the filing of claims in the civil setting. That ratio would be roughly one-tenth of 1% for the number of federal court claims to arrests. The successful claims would be less than onethird of that, or essentially 0% by comparison to arrests. This very implausibly implies that either there were no actionable constitutional violations in 14.4 million arrests; or that individual causes of action for such violations, though authorized by statute, have been effectively eliminated.
3

In this case the indictment of the Petitioner (Exhibit A to this Petition) accused her of knowingly aiding and abetting a man (Eric Harder) who, a few hours before the charged crime, had raped her at knife point and threatened to kill her. The prosecutor formally demurred to this fact in the criminal court where the Petitioner was prosecuted [Exhibit 46, third page para 1(d)(sic)] and never offered any proof to the contrary in collateral proceedings. Thus the relevant criminal charges against the Petitioner were impossible, as a practical matter. 4 US Department of Justice, Bureau of Justice Statistics (hereinafter BJS), Statistical Tables 2006, NCJ 226846 5 US Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division publication, Crime in the United States, issued September, 2007 6 BJS Special Report (Tracey Kyckelhahn and Thomas Cohen): Civil Rights Complaints in US District Courts, 1990-2006, NCJ 222989 (August, 2008)

And the number of civil rights claims in federal courts has been declining.7 There were less than 20,000 state non-capital case federal habeas corpus petitions filed in 2004 that is, less than 2% of the number of state felony convictions in 2006.8 And the number of state non-capital federal habeas corpus petitions has been declining.9 Moreover, even as this trend in the Courts jurisprudence to limit civil rights lawsuits and federal habeas corpus proceedings has solidified and arguably accelerated since 1980, national rates of incarceration have skyrocketed, resulting in the United States imprisoning more people both per capita and in absolute numbers - than any other country by some estimates.10 On March 22, 2010 this Court granted certiorari in Connick v. Thompson (09-571); thus it appears the Court is again concerned about the impact of civil rights actions in federal courts upon government district attorneys offices and is considering yet another ruling to limit that impact. The Connick case concerns a $14 million judgment against the District Attorney of Orleans Parish in Louisiana stemming from a wrongful conviction and lengthy imprisonment. The National District Attorneys Association histrionically maintains that such large verdicts will cripple the ability of District Attorneys offices to function. (Amicus brief of the NDAA, 09-571, p. 11 et seq.)11 Yet in 2006 the national direct expenditures on all law enforcement functions at the federal, state and local level was $214 billion.12 In every category this was an increase by several orders of magnitude from the same expenditures as recently as 1982. By contrast, the median award for other civil rights actions (the category into which law enforcement prompted claims would fall) was $100,000,13 and the number of such awards could not exceed 6,000, for a total of
7 8

Id. Seghetti and James, Federal Habeas Corpus Relief: Background, Legislation, and Issues, Congressional Research Service February 1, 2006 9 Id., Figure 1 10 Walmsley, Roy: World Prison Population List, 8th Edition; International Centre for Prison Studies, School of Law, Kings College, London (2009) 11 If the Court agrees that a more balanced approach in its jurisprudence is called for, perhaps it would be helpful and efficient to hear argument on this Petition simultaneously with the Connick case. 12 Justice expenditure and employment extracts, BJS NCJ224394 13 BJS Special Report, Tracey Kyckelhahn and Thomas Cohen, supra, tables 6 and 7

not more than $600 million in other words, about one-quarter of 1% of the amount spent nationally on law enforcement. The wrongfully prosecuted and convicted have no budget, no lobby in Congress, no division at the Justice Department and no comprehensive government statistical studies.14 The societal costs of even limited numbers of wrongful prosecutions and convictions are perhaps devastating anecdotal proof such as this Petition certainly suggests as much - but these costs are hidden or unheard and do not feature prominently, if at all, in the jurisprudence of this Court. Given this reality, it is fair to ask if the Courts dominant concerns as expressed in the forty year trend of its rulings and opinions are not misplaced or lopsided; and whether this Courts jurisprudence has unintentionally fostered an unacceptably extreme disparity of power in criminal prosecutions15 that would never be tolerated (at least in favor of Plaintiffs) in the civil setting.16 In sum, it is time for the Court to consider in a plenary manner whether, in the very limited and exceptional circumstances presented by the Petition, a criminal defendant is constitutionally entitled to dismissal of meritless criminal charges maliciously brought against her through the knowing use of fabrication and perjury. Unlike civil cases, there is not even an arguable constitutional bar to such dismissals; and, as Petitioner hereinafter shows, such a remedy is in fact constitutionally required. III. The Petitioners indictment and conviction deprived her of liberty
14

In addition, even the economic realities of obtaining private legal representation are more or less insurmountable. See Rule 39 motion attached to the Petition; see also, Seghetti and James, supra at fn. 7, pp. 18 et seq. Thus, while this Court may have been generous or even super-generous in extending habeas corpus [Bousley v. U.S., 523 US 614, 630-632 (1998)(Scalia, J., dissenting)] in theory, in practice the statistics could not be much different if the Court had done the opposite. 15 Traditionally, before the nationwide avalanche of criminal prosecutions, convictions and imprisonments, this Court readily acknowledged the disparity of power that existed even then (at least in the context of double jeopardy) as well as the resulting danger of wrongful convictions: the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offenseenhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 US 184, 187-188 (1957) 16 See, e.g., the long standing concern over strike suits, which are closely analogous to Petitioners prosecution: Koster v. Lumbermens Mutual Co., 330 US 518, 525-26 (1942)(referring to collusive settlements and abuses); Blue Chip Stamps v. Manor Drug Stores, 421 US 723 (1975) See generally, Issacharoff and Lowenstein, supra, 100 Yale L.J. at 105

without due process of law In his concurring opinion in Albright v. Oliver, 510 US 266 (1994), Justice Kennedy considered the question of whether the due process requirements for criminal proceedings include a standard for the initiation of a prosecution. In concluding that they did not, he stated: because the Constitution requires a speedy trial but no pretrial hearing on the sufficiency of the chargesany standard governing the initiation of charges would be superfluous in providing protection during the criminal process. If the charges are not proved beyond a reasonable doubt at trial, the charges are dismissed; if the charges are proved beyond a reasonable doubt at trial, any standard applicable to the initiation of charges is irrelevant because it is perforce met. 510 US at 281-283 (Kennedy, J. concurring) If Justice Kennedy is referring, as is likely, to a standard for testing the sufficiency of evidence supporting criminal charges he is of course correct. cf., Costello v. United States, 350 US 359 (1956) But if his statements are taken as literally as they could be and have been (Pottawattamie, 08-1065 Petitioners and Amicus briefs) that is, that there are no constitutional standards whatsoever pertaining to the initiation of criminal charges this would accomplish a radical and inexplicable departure from centuries of tradition, the consistent case law of this Court and the text of the Constitution itself in favor of government criminal prosecutions and against the rights of individual criminal defendants. There has never been any doubt, Albright aside, that due process considerations apply to the entire course of criminal judicial proceedings, including the constitutional propriety of the criminal charges themselves. This is not only obvious from the constitutional scheme and the sequence of the relevant amendments in the Bill of Rights,17 it is also a firmly entrenched principle in the case law of this Court. Hurtado v. California, 110 US 516 (1884)(applying due
17

Broadly speaking, the relevant part of the Bill of Rights tracks the basic chronological progression of the enforcement of criminal laws against individuals: the 4th amendment concerns the propriety of police conduct in performing searches and seizures and making arrests; the 5th amendment (which includes the original due process clause) concerns the process of charging (grand jury) and by implication prohibits prosecutions in violation of double jeopardy; and the 6th amendment concerns those few constitutional guarantees (confrontation, compulsory process, assistance of counsel) that could properly be called trial rights. Thus dicta in Albright that due process as invoked in the line of cases beginning with Mooney v. Holohan, 294 US 103 (1935) refers to a trial right (510 US at 273, fn. 6)(510 US at 283, Kennedy, J. concurring) is plainly incorrect textually.

process analysis to the initiation of state criminal charges in holding that due process did not require indictment by a Grand Jury); Rochin v. California, 342 US 165 (1952)(Regard for the requirements of the Due Process Clause inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings [resulting in a conviction] in order to ascertain whether they offend canons of decency and fairness )(quoting Malinsky v. New York, 324 US 401, 416-417 (Frankfurter, J., concurring)(1945)(emphasis supplied.) Of course due process is never implicated, in criminal proceedings or otherwise, where the government wrong complained of is trivial [Daniels v. Williams, 474 US 327 (1986)]; or where official conduct is negligent or reckless causing personal injury [Collins v. City of Harker Heights, 503 US 115 (1992); Davidson v. Cannon, et al., 474 US 344 (1986)]. It does not, of course, transform every tort committed by a state actor into a constitutional violation. DeShaney v. Winnebago County DSS, 489 US 189, 202 (1989) And it is not applied where there are more specific constitutional guarantees that can be applied [Graham v. Connor, 490 US 386 (1989)]. On the other hand, 14th amendment due process has traditionally been held to apply, even outside of the context of state criminal proceedings, to abusive government conduct deliberately employed as an instrument of oppression. See, e.g., Davidson v. New Orleans, 96 US 97, 107 (1878)(Bradley, J. concurring)(deprivation of property); Ingraham v. Wright, 430 US 651, 672-674 (1977)(corporal punishment in public schools) Yet even deliberate and oppressive conduct by state actors would fall short of violating due process if there were not something more, lest the clause become a font of tort law to be superimposeduponthe States. Paul v. Davis, 424 US 693 (1976) Since at least Rochin, this something more has meant conduct that

shocks the conscience and violates the decencies of civilized conduct.18 See generally, County of Sacramento v. Lewis, 523 US 833, 846 (1998) The Petition confronts the Court factually with a state-sponsored rape of the Petitioner [Exhibits 24, 26]; which was then followed by the retaliatory framing of the Petitioner through deliberate use of perjury and fabricated evidence by public officials [Exhibits 15, 16][see, Part III(A) of the Petition], all in turn resulting in those same officials criminally charging her, violently arresting her, indicting her, convicting her, imprisoning her, and subjecting her to post release supervision. Unless the standard is as meaningless as Justice Scalia has maintained (a position this Court rejected in 1998 in the County of Sacramento case), this Court should have no trouble concluding that this conduct shocks the conscience: the rape of the Petitioner is at least as egregious as the stomach pumping in Rochin; and the deliberate use of perjury and fabricated evidence to obtain a conviction has been specifically held to violate the 14th amendment guarantee of due process. Mooney v. Holohan, 294 US 103 (1935); Napue v. Illinois, 360 US 264 (1959); Pyle v. Kansas, 317 US 213 (1942) Moreover, while this Court has never specifically held that due process for a criminal defendant in state criminal proceedings guarantees anything other than a fair trial, it has never specifically held to the contrary either, and many members of the Court in keeping with traditions and the implications of such case law as Hurtado - have strongly resisted the more restrictive alternative. Gerstein v. Pugh, 420 US 103, 127 (1975)(Stewart, J., concurring); Albright, supra, 510 US 266 (1994)(Stevens, J., dissenting) Justice Ginsburg has hinted that a trial forced upon a defendant through the use of perjury and fabrication violates due process. (Pottawattamie v. McGhee, 08-1065, official transcript of argument, p. 12, lines 21-24) Even Justice Scalia has carefully avoided committing to the proposition that due process in state
18

Justice Scalia has ridiculed conscience shocking as a legal test, placing it on an intellectual par with popular music [See, County of Sacramento, supra, 523 US at 861 (Scalia, J., concurring)] while Justice Kennedy has somewhat more soberly lamented the unfortunate connotation of a standard laden with subjective assessments., but has endorsed the standard. Id. at 857, 858 In any case, the standard has at least this advantage in the criminal context: unlike the reasonableness standard of the 4th amendment, it is of limited applicability.

criminal proceedings applies only to the provision of a fair trial. (the knowing use of fabricated evidence before the grand jury and at trial or its use in a fashion that deprives someone of a fair trial or otherwise harms him are acts which might state a claim for denial of due process). Buckley v. Fitzsimmons, 509 US 259, 281 (1993)(Scalia, J., concurring) (emphasis supplied.) Fairly read, Justice Kennedys concurrence in Albright is not to the contrary, for the question in that case was broader than the deliberate government use of perjury and fabrication in a criminal prosecution, instead focusing on a responsible determination of probable cause to commence criminal proceedings. In sum, the events outlined in the Petition deprived the Petitioner of her liberty without due process of law, and as a result she is entitled to be discharged. IV. Consideration of the Petition is not barred by any of the numerous procedural barriers to federal habeas corpus Since the within Petition was denied summarily on June 1st, prior to the expiration of the Respondents time to answer or contest, the Court in so doing accepted the factual contentions of the Petition as true. They are in any case unarguable from the face of the Petition, and this Court is obligated to decide for itself facts or constructions upon which federal constitutional issues rest. Napue v. Illinois, 360 US 264, 271-272 [citing Martin v. Hunters Lessee, 14 US 304 (1816); Niemotko v. Maryland, 340 US 268 (1951); and Kern-Limerick, Inc. v. Scurlock, 347 US 110, 121 (1954)]. While this Court can deny a Petition for its own unstated reasons or perhaps none at all, there are a limited number of possible legal reasons underlying the summary denial. None of them are sufficient to justify denying relief, and undersigned counsel addresses them in turn. A. Petitioners Alford plea in Livingston County Court does not foreclose collateral review on federal habeas corpus As a general rule, federal courts will not review a conviction by guilty plea on habeas corpus for a constitutional infirmity that occurred before the plea. Tollett v. Henderson, 411 US 258 (1973) But as with most general rules, there are exceptions. This Court has stated that the

considerations underlying the general rule presuppose fairness in securing agreement between an accused and a prosecutor. Santobello v. New York, 404 US 257 (1971) It has been specifically held that the governments physical threats and the threat to use perjury and fabricated evidence at trial to extract a guilty plea will support federal habeas review notwithstanding the plea. Waley v. Johnston, 316 US 101 (1942) The Petitioner, in tendering her plea pursuant to North Carolina v. Alford, 400 US 25 (1970) made no factual admissions of guilt to any of the charges for which she was indicted. She was and remains factually innocent of all of the charges. In more than six years there has been no dispute, no fact finding to the contrary, or indeed any hearing of any kind. Moreover, at the very time of the plea (October 20, 2006)[Exhibit 29], she was contesting the entire process of her prosecution on constitutional and other grounds in a collateral proceeding in state court that was still pending [Exhibit 24]. Further motions and argument of that collateral proceeding occurred after the plea [Exhibit 30] and appeals from its dismissal continued after her sentence and imprisonment. That collateral proceeding essentially yielded the record that is before this Court on the Petition for the Writ. In addition, the same government officials who had indicted the Petitioner using perjury continued to threaten and intimidate witnesses to ensure there would be similar perjury at any trial. [see, Petition, Statement of the Case p. 11 and footnote 12][see also, Exhibit 32] Petitioner was accordingly advised by undersigned counsel that the prosecutor intended to use the perjury at trial, that the perjury might be believed by a jury, and if it was she would likely be convicted and potentially sentenced to life in prison [Exhibit 3, paragraphs 22-24] This was the entire reason for the plea [Exhibit 29]. In addition, the prosecutor with whom the bargain was struck was effectively - at least from Petitioners point of view - one of her rapists, albeit through ratification of the rapists conduct after the fact [Exhibit 46, third page para 1(d)(sic)].

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In short, it is not the general rule of Tollett that applies here, but the exceptions to that rule described in Santobello and Waley, since the Petitioner was subjected to the physical abuse of having been raped and was threatened with the use of perjury to obtain her conviction at trial. Finally, if the rule of Tollett is applied it will be impossible for this Court or any other federal court to ever visit the issue presented (the constitutional propriety of a criminal prosecution, as opposed to a conviction). Since that propriety is called into question by the use of perjury and fabricated evidence to prosecute, the issue cannot come to this Court through direct appeal from the judgment, for reasons set forth in the Petition at page 21. It cannot come through any appeal from collateral post-conviction review where there was a trial, because if there was a fair trial the issue would be foreclosed; on the other hand, if the trial was unfair due to the additional knowing use of perjury or fabricated evidence at the trial, the conviction would certainly be invalid under Mooney, but then the Court could not reach the question of whether the Petitioner was unconstitutionally prosecuted to begin with. So the truth is, this Court will visit the issue presented in the context of a guilty plea, or not at all. B. The Non-retroactivity doctrine of Teague v. Lane, 489 US 288 (1989) does not apply to the Petition for the Writ. Teague held that even if a new rule of constitutional law from this Court pertaining to criminal procedure would invalidate a state court criminal conviction, the rule would not be applied retroactively in a federal habeas corpus proceeding to a conviction obtained before the new rule was announced. In applying the Teague doctrine, a federal court engages in a three step process: 1) ascertain the date on which the Petitioners conviction and sentence became final; 2) survey the legal landscape then existing to determine if a state court would have felt compelled to conclude that the rule sought was required by the Constitution; and 3) if not, whether the case falls within the two narrow exceptions [i) rules prohibiting punishment for private, primary individual

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conduct beyond the power of the criminal law-making authority to proscribe; or ii) rules that are implicit in the concept of ordered liberty] Caspari v. Bohlen, 510 US 383 (1994); Lambrix v. Singletary, 520 US 518 (1997) Petitioners conviction became final on January 3rd, 2007 and the Teague analysis doesnt proceed beyond the second step: by then it had long since been settled law in New York that indictments obtained with evidence known by the prosecutor to be false violated the Constitution and had to be dismissed. People v. Pelchat, 62 NY2d 97 (1984) This is precisely the rule the Petitioner asks this Court to adopt nationally.19 Even if that were not true, however, Petitioners case would fall into the second exception under step three for reasons already cited, and a Teague objection would still fail. C. Petitioner is actually innocent; thus her indictment and conviction constitute a fundamental miscarriage of justice and procedural bars to habeas corpus do not apply. Even if there has been a procedural default, a Petitioner who is actually innocent may not be denied habeas corpus relief. Schlup v. Delo, 513 US 298 (1995) This applies not only to petitioners convicted after trial, but also those who have pleaded guilty.20 Bousley v. United States, 523 US 614 (1998) Such convictions have been held to be a fundamental miscarriage of justice. Calderon v. Thompson, 523 US 538, 557-58 (1998), citing Murray v. Carrier, 477 US 478 (1986) The test for showing actual innocence is whether a reasonable jury would have convicted the Petitioner in light of all the evidence. House v. Bell, 547 US 518 (2006) The conceded fact that the Petitioner was violently raped and then drugged to unconsciousness by one of her supposed accomplices a few hours before the alleged crime
19

This, along with the procedural history of this case, should also dispose of any argument that the Petitioners conviction could rest upon an independent and adequate state ground. See, Coleman v. Thompson, 501 US 722 (1991) Petitioner has never received a hearing or determination on the merits; but if she had, New Yorks highest court has held that on the presented facts both the conviction and the indictment itself would be constitutionally invalid. 20 In Bousley, the petitioner had made factual admissions of guilt; here, by contrast, the Petitioner asserted her innocence and was collaterally contesting her prosecution even as she pleaded guilty, as permitted by North Carolina v. Alford, 400 US 25 (1970)

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renders all of the charges against her factually impossible to begin with (see footnote 3, supra). The further undeniable fact that the only material evidence of her guilt that she was the driver for the crime was entirely the product of perjury and fabrication by government officials [see part III(A) of the Petition] insures that no reasonable jury, presented with that evidence would have convicted her of any of the charges. The fact that even though dehors the record this evidence is not new, and that the Petitioner has collaterally attacked her prosecution and conviction with this evidence continuously since May of 2006 should count in her favor, since she surely introduced the evidence and made objections at the appropriate time. Bousley, 523 US at 624-630 (Scalia, J. dissenting) V. Denying the Petition on the undisputed facts would effectively repudiate important precedent of this Court. This Court has not granted a petition for habeas corpus originally brought here since 1925.21 Ex Parte Grossman, 267 US 87 (1925) In 1925, Charles Lindbergh had not yet made the first successful powered transatlantic flight. There are few people now living who can even remember the relevant time. The Courts rules understandably state that the writ is rarely granted [Rule 20.4(a)]. Rarely does not mean never. In Felker v. Turpin, 518 US 651 (1996), this Court held that Congress Anti-Terrorism and Effective Death Penalty Act did not violate the suspension clause of Article I, section 9 of the Constitution, partly on the ground that the Act might not apply to petitions originally brought in this Court. 518 US at 658-663 If that reasoning is not to be seen as disingenuous (or even risible) the Court must, at some point, grant an original habeas corpus petition on proper grounds if only to show that such relief is actually possible. As shown, the within Petition convincingly defeats every normally formidable procedural objection to habeas corpus petitions in federal courts. It also meets all the criteria for bringing an

21

In 2009 the Court transferred an original petition for habeas corpus to a District Court. In Re Troy Davis, 557 US ____, 130 S.Ct. 1 (2009) The petition was not granted and, unlike here, outright granting of the petition was not requested.

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original petition in this Court. And granting the Petition is further supported - even compelled by this Courts own precedent because, arguably, the most significant habeas corpus petition originally brought here since Ex Parte Grossman was Mooney v. Holohan, 294 US 103 (1935). Mooney concerned the same phenomenon government use of perjury and fabricated evidence to obtain a criminal conviction as the within Petition. Mooney involved a state court criminal conviction, just like the within Petition. The Petitioner in Mooney made a showing that relief could not be obtained in any other court, which this Court ultimately did not accept (294 US at 113-115). By contrast, Petitioners showing that she cannot obtain relief in any other court is effectively beyond debate [Exhibits 24-34, 37, 38, 39, 40, 41, 42, 43]. The Court should not abdicate its statutory and traditional obligation to at least give plenary consideration to an original habeas corpus petition that clears every difficult hurdle this Court has imagined and prescribed for habeas corpus petitions to this Court or to federal courts generally. To do so would be turning its back on Mooney, both in its substance and procedural posture, and heedless of the Courts own role in restricting or perhaps unintentionally facilitating - the type of government conduct that resulted in the Petition. VI. Conclusion The Court cannot be content with the criminal prosecution and imprisonment of so many of our fellow citizens. There is little reason to believe that the nations population was overrun with a burst of criminality beginning about 1980; it is far more likely, in view of the within Petition and the acknowledged fact that law enforcement is a competitive enterprise carried on by zealous officers [Gerstein v. Pugh, 420 US 103, 112-113 (1975)(quoting Johnson v. US, 333 US 10 (1948)], that in that time the nation has, at least to a significant extent, endured a burst of mindless government criminal prosecutions. Yet during the same period this Court has largely retreated from solicitude for individual rights and causes of action in favor of institutional and establishmentarian policy concerns, particularly of the kind that tend to favor police and prosecutors. This trend has been so pronounced that the Courts characterization of police

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conduct in Rochin as conscience shocking in 1952 perhaps seemed quaint some fifty years later. [compare, Chavez v. Martinez, 538 US 760 (2003)] It is fair to wonder whether this trend precipitates an unfortunate moral coarsening that has especially affected law enforcement and prosecutors. In any case, the Petition is a plain indication that the trend must be checked by this Court. Nor can the Court be satisfied with criminal procedures where defense counsel are either discouraged from vigorous pre-trial investigation (since any information uncovered is incapable of providing pre-trial relief); or on the other hand encouraged to hide uncovered evidence of police misconduct or innocence from prosecutors and courts until trial, since in the absence of available pre-trial relief that would unquestionably be the better strategy. Also, other incentives and results of such a legal regime are perverse: the honest prosecutor is deprived of relevant and important evidence that can more quickly and effectively attain a just result; the dishonest prosecutor is encouraged to press his unfair advantage against a relatively helpless opponent with all the resources and power of the State precisely what happened to the Petitioner. The Petitioner asks for a very limited, frankly quite obvious and overdue rule of constitutional law from this Court. An analogous rule (Franks v. Delaware, supra) has posed no notable problems for orderly adjudication in the more than thirty years it has held sway, and indeed that thirty year period has been very friendly to the endeavors of police and prosecutors. Undersigned counsel respectfully submits, then, that the Court should reconsider its summary denial of June 1, 2010 and grant the Petition, or at least give it plenary consideration. Dated: June 23, 2010 _____________________________ JOHN M. REGAN, JR., ESQ. Attorney for the Petitioner SEPHORA K. DAVIS 48 Briar Lane Rochester, NY 14622 (585) 546-8880

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