Petition for Writ of Certiorari — Terry Darrell Smith, Petitioner v. Troy Bowser, Superintendent, Two Rivers Correctional Institution

Supreme Court briefDec 22, 2017

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IN THE

SUPREME COURT OF THE UNITED STATES

TERRY DARRELL SMITH

PETITIONER

(Your Name)

vs.

MR. J. MYRICK, et.,al.

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT (COA);

UNITED STATES DISTRICT COURT; HABEAS CORPUS AND (COA).

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

TERRY DARRELL SMITH

(Your Name)

TRCI SID. 6295796

82911 BEACJH ACCESS RD.

(Address)

UMATILLA, OREGON 97882

(City, State, Zip Code)

NONE

(Phone Number)

QUESTIONS PRESENTED

DID THE UNITED STATES SEIZURE OF PETITIONER FROM CAMBODIA AND

UNLAWFUL EXTRADITION OF HIS PERSON TO THE UNITED STATES CONSTITUTE

OUTRAGEOUS GOVERNMENTAL DUE PROCESS MIS-CONDUCT IN VIOLATION OF

PETITIONER'S RIGHT TO DUE PROCESS, WHERE THE U.S. GOVERNMENT HELD

PETITIONER FOR ONE MONTH WITHOUT COUNSEL, DENIED MEDICAL TREATMENT,

AND FAILED TO PROVIDE NOTICE OF THE EXTRADITION PROCESS?

WAS PETITIONER'S WAIVER OF EXTRADITION FROM CALIFORNIA TO OREGON

INVALID, UNKNOWING, AND A RESULT OF COERSION?

WAS PETITIONER'S CONVICTIONS OBTAINED AS A RESULT OF PROSECUTORIAL MIS-CONDUCT AND A "BRADY" VIOLATION?

WAS PETITIONER DENIED EFFECTIVE ASSISTANCE OF EXTRADITION

HEARING COUNSEL, MARC HENTEL, IN THE MUNICIPAL COURT OF CALIFORINA

FOR THE COUNTY OF LOS ANGELES?

WAS PETITIONER DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL,

ANDREW VANDERGAW?

WAS PETITIONER DENIED EFFECTIVE ASSISTANCE OF DIRECT APPEALATE

COUNSEL, MARY SHANNON STOREY?

WAS PETITIONER'S CONVICTIONS OBTAINED PURSUANT TO UNITED STATES,

GOVERNMENT AGENTS UNLAWFUL, OUTRAGEOUS DUE PROCESS MISCONDUCT?

DID THE U.S.D.O.J. AND THE PROSECUTION SUPRESS EVIDENCE BENEFICAL

TO THE PETITIONER AT TRIAL?

DID THE COURTS LACK JURISDICTION OVER THE PETITIONER AS A RESULT

OF UNLAWFUL "ACTS", EXTRADITION FROM CAMBODIA AND A COERSED WAIVER

OF EXTRADITION FROM CALIFORNIA TO OREGON?

DID THE PROSECUTION VIOLATE "THE SPECIALTY DOCTRINE", WHEN

PETITIONER WAS PROSECUTED AND CONVICTED FOR OFFENCES THAT EXTRADITION

FROM CAMBODIA WERE NOT GRANTED?

(11), SUBPART A: DID THE IMPOSITION OF CONCECUTIVE SENTENCES BASED

ON JUDICIAL FINDINGS VIOLATE PETITIONER'S SIXTH AND FOURTEENTH

AMENDMENT JURY RIGHTS? SUBPART B: ACCORDING TO OR. REV. STAT. §

161.062(1), SHOULD COUNT TWO HAVE MERGED WITH COUNT ONE, AS IDENTICAL

VIOLATIONS OF THE SAME STATUTORY PROVISION?

WAS PETITIONER'S CONVICTIONS OBTAINED AS A RESULT OF UNCONSTITUTIONAL IMPROPER "VOUCHING" TESTAMONY OF A STATE'S OFFICER WITNESS?

WAS PETITIONER'S CONVICTIONS OBTAINED PURSUANT TO DEPREVATION

OLATING THE

OF LIBERTY OF MOVEMENT WITHOUT DUE PROCESS OF LAW VI

FOURTH AMENDMENT AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION?

WAS PETITIONER'S CONVICTIONS A RESULT OF VIOLATIONS OF THE

"EMTRAPMENT RULE"; McNABB-MALLORY RULE; THE FEDERAL KIDNAPPING ACT,

18 U.S.C. §1201; TWO INTERNATIONAL TREATIES, SUCH AS, THE UNITED..

NATIONS CHARTER, ART. 2, PARA 4; O.A.S. CHARTER ART 17; THE UNIFORM

CRIMINAL EXTRADITION ACT

RIGHTS OF ARRESTED PERSON, ORS 133.787;

FEDERAL EXTRADITION STATUTE, 18 U.S.C. § 3182; 18

U.S.C. § 3504;

SCOPE OF PROTECTIONS AND RIGHTS OF FUGITIVE DEFENDANTS; SPECIALTY

DOCTRINE OF THE FEDERAL EXTRADITION LAW; AND MULTIPLE AMENDMENTS

TO THE UNITED STATES CONSTITUTION?

WAS PETITIONER'S POST-CONVICTION RELIEF COUNSEL, MICHAEL

MAHONY, INEFFICTIVE WHEN HE FAILED TO PRESENT ALL THE ISSUES?

WAS PETITIONER'S POST-CONVICTION RELIEF, APPELLATE COUNSEL,

JAMES VARNER INEFFECTIVE FOR NOT PRESENTING AND. PESERV:LNG1ALI OFD

2TjI;TIQN:Ei' SERR .1 ijIS SUESOFOR FEDERAL WRT OFUABEASJcOR PUSSHOW;DNG

"CAUSE

AND PREDJUDICE" ONLY AND NOT FOR HABEAS RELIEF?

ii.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

ii-i.

TABLE OF CONTENTS

OPINIONS BELOW

•

PAGE NO.

.xi

JURISDICTION

& X

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED-

STATEMENT OF THE CASE

.2 & 3

•

4 .-& 5

REASONS FOR GRANTING WRIT OF CERTIORARI

ARGUMENT IN SUPPORT AND UNDERSTANDING QUESTIONS PRESENTED

CONCLUSION

INDEX TO APPENDICES

APPENDIX A: U.S. COURT OF APPEALS FOR THE 9TH CIRCUIT; ORDER DENYING

RECONSIDERATION TO ISSUE CERTIFICATE OF APPEALIBILITY,

(COA). DATED 10/2/17.

APPENDIX B: U.S. COURT OF APPEALS FOR THE 9TH CIRCUIT; ORDER DENYING

ISSUE OF (COA). DATED 8/18/17.

APPENDIX C: U.S. DISTRICT COURT FOR OREGON; JUDGMENT, HABEAS CORPUS

RELIEF DENIED. DATED 3/15/17.

APPENDIX D: U.S. DISTRICT COURT FOR OREGON; HABEAS CORPUS RELIEF,

OPINION AND ORDER. DATED 3/14/17.

APPENDIX E: U.S. DISTRICT COURT FOR OREGON; ORDER DENYING PETITIONER'S

MOTION-RECONSIDERATION AND ISSUE, (COA) ,[57], 4/7/17.

APPENDIX F: U.S. DISTRICT COURT FOR OREGON; ORDER DENYING MOTION

FOR ORDER,[35]; NOTION TO PRODUCEE36I, AND MOTION FOR

RECONSIDERATION,[37]. DATED 5/13/16.

APPENDIX G: U.S. DISTRICT COURT FOR OREGON; ORDER DENYING NOTION

FOR APPOINTMENT OF COUNSEL,[21]; MOTION TO PRODUCE,

[25]; MOTION TO PRODUCE,[26]. DATED 2/5/16.

APPENDIX H: IN THE SUPREME COURT OF OREGON; ORDER DENYING REVIEW.

2/5/15.

APPENDIX I: IN THE OREGON COURT OF APPEALS; ORDER, APPELLATE JUDGMENT

AND SUPPLEMENTAL JUDGMENT, ON PETITION FOR PCR. 4/16/15.

APPENDIX J: IN THE CIRCUIT COURT OF OREGON FOR UMATILLA COUNTY;

ORDER APPOINTING COUNSEL ; PCR APPELLATE PROCEEDINGS.

8/26/11 .

iv.

APPENDIX (CONT)

APPENDIX K: IN THE CIRCUIT COURT OF OREGON FOR UMATILLA COUNTY;

PCR JUDGMENT-GENERAL. 8/15/11.

APPENDIX L: IN THE U.S. SUPREME COURT; ORDER DENYING PETITION FOR

A WRIT OF CERTIORARI. DATED 6/7/10.

APPENDIX M: IN THE SUPREME COURT OF OREGON; ORDER DENYING REVIEW.

1/21/10.

APPENDIX N: IN THE OREGON COURT OF APPEALS; ORDER, APPELLATE

JUDGMENT ON DIRECT APPEAL PROCEEDINGS. DATE 3//2'5/J170.

APPENDIX 0: OREGON COURT OF APPEALS; ORDER APPOINTING COUNSEL FOR

DIRECT APPEAL PROCEEDINGS. DATED 8/7/07.

APPENDIX P: IN THE CIRCUIT COURT OF OREGON FOR JACKSON COUNTY;

JUDGMENT OF CONVICTION AND SENTENCE, INCLUDING

APPOINTMENT OF COUNSEL. DATED 7/6/07.

APPENDIX Q: INDICTMENT; 7/20/2000.

APPENDIX R: THE FEDERAL EXTRADITION STATUTE, 18 U.S.C. § 3182 AND

THE UNIFORM CRIMINAL EXTRADITION ACT, RIGHTS OF ARRESTED

PERSON, ORS 133.787.

APPENDIX S: U.S. DEPT. OF JUSTICE, CRIMINAL DIVISION; RESPONSE TO

PETITIONER'S FREEDOM OF INFORMATION

ji(OIA), REQUEST.

DATED 1/12/09.

TABLE OF AUTHORITIES

PAGE NO.

CASE NAME AND CITE NO.

-2

RUSSELL, 411 US AT 431-32 . . . . . . . .

HAMPTON V U.S., 425 US 484,490, 96 S CT 1646, 48 L ED

6,7

2D113(1976). . . . . . . . . .

BOGART, 783 F2D AT 1432-33. . . . . . . . . .

UNITED STATES V, TOSCANINO, 500 F 2D 267; 1974 U.S.

APP. LEXIS 8616. . . . . . . .

81 28

KER V. ILLINOIS, 119 US 436, 7 S CT 225, 30 L ED 421 )1888)22

FRISBIE V COLLINS, 342 US 519, 96 L ED 541, 72 S CT 509

(1952).

9,22

GRISWOLD, THE DUE PROCESS REVOLUTION AND CONFRONTATION,

119 U PAL REV. 711 (1971).

. 21

- 6,28

UNITED STATES V. RUSSELL, 411, US 423, 430-31, 36 L ED

2D 366, 93 B€fl 1637 (1973).

9,13

MAPPV. OHIO, 367 US 642, 81 S CT 1684, 6 L ED 2D 1081

(1961)

•

9,10,11

MIRANDA V ARIZONA, 384 US 436, 16 L ED 2D 694, 86 5 CT

1602 (1966)

WONG V. UNITED STATES, 371 US 471, 83 S CT 497 (1963). . 9

SILVERMAN V. UNITED STATES, 365 US 505, 5 L ED 2D 734,

81 S CT 679 (1961)

E. G., PITLER, "THE FRUIT OF THE POISONOUS TREE", REVISITED

•

9,10,28

AND SHERPARADIZED, 56, CALIF. L REV. 579, 600 (1968).

14"

SCOTT, CRIMINAL JURISDICTION OF A STATE OVER A DEFENDANT BASED

UPON PRESENCE SECURED BY FORCE OR FRAUD, 37 MINN. L REV. 91,102,

2,28

RACHIN V. CALIF., 342, US 165, 96 L ED 183, 72 S CT (1952). id

WOLF V. COLORADO, 338 US 25, 93, L ED 1782, 69 S CT 1359(1949) 11

WEEKS V U.S., 232 US 383, 58 L ED 652, 32 S CT 341 (1914). . 11

SILVERTHORME LUMBER CO. V. UNITED STATES, 251 US 385, 40 S CT

182, 64 L ED 319 (1920)

UNITED STATES V. EDMONS, 432 F 2D 571 (2ND dR. 1970).

GOVERNMENT OF VIRGIN ISLANDS V. ORTIZ, 427 F 2D 1043,1R04 n.2.

11,12,14

(3RD CIR. 1970)

WONG SUN V U.S., 371 US 471,488, 9 L ED 2D 441, 83 S CT 407

(1963).

vi.

9,12

CASE NAME AND CITE (CONT)

PAGE NO.

RE JOHNSON, 157 US 120,126, 42 L ED 103, 17 S CT 735(1896).

FITZGERALD CONSTRUCTION CO. V. FITZGERALD, 137 US 98,

34 L ED 608, 11 S CT 36 (1890).

•

FIOCCONI V. ATTORNEY GENERAL OF U.S., 339..F SUPP. 1242,

1244 (S.D.N.Y. 1972)

25 ' McNABB V. U.S., 318 Us 332, 87 L ED 819, 63 S CT 608(1943).

13,26

HOGAN & SNEE, THE McNABB-MALLORY RULE: ITS RISE, RATIONALE

AND RESCUE, 47 GEO. L.J. 29, 32 (1952)(THE "REAL ROOTS OF

THE MCNABB RULE" ARE FOUND IN A REFUSAL TO COUNTENANCE,

"TRIALS WHICH ARE THE OUTGROUTH OR FRUIT OF THE GOVERNMENT'S

13,28

ILLEGALITY". SINCE THEY "DEBASE THE. PROCESSES OF JUSTICE".

VINCENTI AFFAIR, 1 HACKWORTH, DIGEST OF INTERNATIONAL LAW...

624 (1920); THE CANTU CASE, 2 HACKWORTH.310 (1914); THE CASE

OF BLATT AND CONVERSE, 2 HACKWORTH 399 (1911).

••

•

COOK V. UNITED STATES, 288 US 102, 77 L ED 641, 53 5 CT

.. 305 (1933).

.. ..........

. .. .

14,22

•..

SULLIVAN V. KIDD, 254 US 433, 442, 65 L ED 344, 41 S CT

158(1921).

30 SHAPPIRO V FERRAMDINA, 478 F 2D 894,906 n. 10 (2ND CIR. 1973). 15

31" HENRY V. UNITED STATES, 361 US 09, 100-01, 4 L ED 2D 134,

15,34.'

805CT168(1959).

32 GIORDENELIO V. UNITED STATES, 357 US 480, 485-88, 2 L ED 2D

1503, 78 5 CT 1245 (1958).

33 FRANKEL, CONCERNING SEARCHES AND SEIZURES, 34 HARV. L. REV.

361(1921).

STATE V. PORTER, (1966)

COMMONWEALTH V. PASS, (1976)

. .17

HALEY V. OHIO, 332 US 596, 92 L ED 224, 68 S. CT. 302

(JUSTICE FRANKFURTER'S CONCURREANCE)

WATTS V INDIANA, 338 US 49,93 L ED 1801, 69 5 CT 1347,1357. P

RACHIN, THE COURT GRANTED CERTIORARI, 341 US 939, 95 L ED

.17

1366,715CT997.

SNYDER V. MASSACHUSETTS, 29'l US 97 105, 78 L ED 674, 677,

54 5 CT 330, 90 ALR. 575:.

•

PALKO V CONNECTICUT, 302 US '319,325,82 L ED 288,292, 5.8 5 CT 1491. 18

DAVIS 'V MILLS, 184 US 451,457, 48 L ED 1067,1071, 24 S CT 692. 19

U.S. V. RUSSELL, 411 US 423, 93 S CT 1637, 36 L ED 2D 266(1973)..22

UNITED STATES V. BOGART, 783 F2D 1428 (9th Cir. 1986).

vii.

.16

PAGE NQ.

CASE NAME AND CITE (CONT).

BETTS V. BRADY, 316 Us 455, 86 L ED 1595, 62 S CT 1252.

WOLF V. COLORADO, 338 Us 25, 93 L ED 1782, 69 5 CT 1359. . 19

rJOMSTEAD V U.S., 277 Us 438, 72 L ED 944, 48 S CT 564(1928). 11,20,27

20,27

U.S. V. ARCHER, 486 F 2D 670,. 674-75, (2ND CIR. 1973).

BRADY V. MARYLAND, 397 Us 742 (1970)

KYLES V. WHITLEY, 514 US 419 (1995)

STRICKLAND V. WASHINGTON, 466 US 668, 687-88, 104 5 CT

25,36

2052, 80 L ED 2D 674 (1984)

STEVENS V STATE OF OREGON, 322 OR 101,108,902 P 2D 1137(1995). 25,37

AIKENS V. MAASS, 122 OR APP 321, 324, .858 P 2D 148 (1993),

25,37

rev den 318 OR 350 (1994)

PEOPLE V. LIEBOWITZ, 140 MISC. 2D 820, 51 N. Y.A. 2D 719

(COUNTY COURT 1988)

•

23 1 29

U.S. V. RAUSCHER, 119 US 407, 30 L ED 425 (1886).

..•

OREGON V ICE, US US ,129 S CT 711,720-23,172 L ED 2D 517

(2009),(SCALIA, J., DESSENTING).

APPRENDI V. NEW JERSEY, 530 Us 566, 120 S CT 2348, 147 L ED

.29,30

2D 435 (2000).

STATE V. CROTSLEY, 308 ORE 272,278,779.P 2D 600 (1989).

STATE V. BARRETT, 153 ORE. APP. 621, 958 P 2D 215; (1998)

•30

ORE. APP. LEXIS 581.

SEE GENERALLY DAVID H. KYLE, DAVID E BERNSTEIN, AND JENNIFER

L. MNOOKIN, THE NEW WIGMORE; EXPERT EVIDENCE § 1.5, 23-25

. 32,33

(2004)(EXAMINING RULE AND ITS RATIONALE).

. 32,33

KELLER 315 ORE AT 285 (50 DEFINING HARMLESSNESS).

STATE V. LUPOLI, 348 ORE 346; 234 P 3D 117 (2010), ORE LEXIS 3881 32,33

. 33

STATE V SOUTHARD, 347 OR 127,142,218 P 3D 104 (2009).

. 33

MIDDLETON, 294 ORE. 427,428,657P 2D 1215 (1983).

.33

STATE V. BROWN, 297 ORE. 404, 687 P 2D 751 (1984).

.33..

STATE V. LEAHY, 190 OR APP 147, 152 (2003).

.33

STATE V. MILBRADT, 305 OR 621, 630 (1988).

STATE V. REMME, 173 OR APP 546, 562 (2001).

559

BLAKELY V. W4CHINGTON,542 US 296,i24 S CT 2531, 159 L ED 2D

403 (2004).

69.

UNITED STATES V ALVEREZ-MACHAIN, 504 US 655 (1992). • •

ALE

V. REESE,:

COLEMAN V. THOMPSON,501 US 722,111 S CT 2548,(182 L ED 2d 278)

35,37

......

115 L. Ed. 2d 640. . . . . . . .

7fl

V •

•.

71. MARTINEX V. RYAN, 132 S. CT. 1309.

viii.

.35,36,37

CONSTITUTIONAL AND STATURORY PROVISIONS INVOLVED

PAGE NO.

.8,11,12,15,16,19,24,25,33,34

U.S. CONSTITUTIONAL AMENDMENT IV

U.S. CONSTITUTIONAL AMENDMENT V

•

U.S. CONSTITUTIONAL AMENDMENT VI

U.S. CONSTITUTIONAL AMENDMENT VIII

U.S. CONSTITUTIONAL AMENDMENT XIV .

AND DUE PROCESS CLAUSE

•

16,24,25,27,34,36

.24,34

•

16,24,34

8,11,12,15,16,17,18,19,22,

24,25,27,33,34,36,.

QREGQN CPNTTUTIPNAL PROVISIONS (INCORPORATING ALL DUE

SOr AWA

EQUAL PROTECTION CITATIONS RELATING

TO ISSUES RAISED IN THIS PETITION FOR WRIT OF CERTIORARI. . 34,36

STATUTORY PROVISIONS

ORS 133.787

ORS 138.530

OR. REV. STST. § 161.062(l).

OR. EVID. CODE 403

ORA3 9.07(3)

ORAP 9.07(i)(a).

.19,22,23,34

ORAP 9.07(6) .

ORAP 9.07(4) .

OTHER AUTHORITIES

28 U.S.C. § 2253(c)(2)

FEDERAL EXTRADITION STATUTE, 18 U.S.C. § 3182

19,22,23-19,22,23,34

UNIFORM CRIMINAL EXTRADITION ACT, RIGHTS OF ARRESTED

PERSONS, ORS 133.787 .

19,22,23,34

FEDERAL KIDNAPPING ACT, 18 U.S.C. § 1201.

13,15,19,34

SPECIALTY DOCTRINE OF THE FEDERAL EXTRADITION LAW

•

BRADY VIOLATION

ix.

23,24,25,28,29,34

23,34

-I

OTHER AUTHORITIES (CONT)

PAGE NUMBER

EMTRAPMENT RULE

EXCLUSIONARY RULE

McNABB-MALLORY RULE

UNITED NATIONS CHARTER, ART. 2, PARA 4

ORGANIZATION OF AMERICAN STATES CHARTER, ART. 17.

18 U.S.C. § 3504.

26,34

6,34

13,34

34 ,21

CLASSIFIED TO U.S. SUPREME COURT DIGEST, LAWYERS EDITION. 33,34

SCOPE OF PROTECTION AND RIGHTS OF FUGITIVE-DEFENDANTS.

ORS 138.500(2)

*(INFORMA PAUPERIS COVER PAGE)

DUE PROCESS AND EQUAL PROTECTION.

20,21

JURISDICTION

[A For cases from federal courts: HABEAS CORPUS, 28 U.S. C. § 2254.

The date on which the United States Court of Appeals decided my case

was 8/18/17

Ii] No petition for rehearing was timely filed in my case.

[MOTION FOR RECONSIDERATIO!]

[Xj A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: 10/3/17

, and a copy of the

order denying rehearing appears at Appendix A[RECONSIDERATION]..

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

in Application No.

(date) on

(date)

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[x] For cases from state courts:

The date on which the highest state court decided my case was 4 / 1 6 / 1 5 _.

A copy of that decision appears at Appendix

[REVIEW]

[x] A timely petition for rehearing was thereafter denied on the following date:

2/5/15

, and a copy of the order denying rehearing

appears at Appendix

[] An extension of time to file the petition for a writ of certiorari was granted

to and including

Application No.

(date) on

(date) in

A_______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

Xi.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

c] For cases from federal courts: HABEAS CORPUS,

U.S.C. § 2254.

The opinion of the United States court of appeals appears at Appendix A & B to

the petition and is

[ ] reported at

; or,

{ ] has been designated for publication but is not yet reported; or,

[ is unpublished.

The opinion of the United States district court appears at Appendix C&D to

the petition and is

[ ] reported at

; or,

II I has been designated for publication but is not yet reported; or,

[ is unpublished.

[X] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix H & I to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[) is unpublished.

The opinion of the

appears at Appendix

court

to the petition and is

[ ] reported at

; or,

{ ] has been designated for publication but is not yet reported; or,

[I is unpublished.

STATEMENT OF THE CASE

NATURE OF THE CASE

THIS IS A PETITION FOR A WRIT OF CERTIORARI FROM A JUDGMENT

DENYING PETITIONER'S FORMAL PRO SE PETITION FOR A WRIT OF HABEAS

CORPUS RELIEF. (JUDGMENT, APPENDIX EA AND OPINION AND ORDER,

APPENDIX

PETITIONER ALSO INCLUDES U.S. COURT OF APPEALS FOR

THE NINTH CIRCUIT; ORDER DENIAL OF CERTIFICATE OF APPEALIBILITY

(APPENDIX AND ORDER DENIAL OF RECONSIDERATION. (APPENDIX

THEREFORE, PETITIONER SEEKS REVERSAL OF THE FOREGOING DECISION OF

THE FEDERAL HABEAS DISTRICT COURT AND THE U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT, WITH INSTRUCTIONS TO VACATE PETITIONER'S

CONVICTIONS AND SENTENCES, EXPUNGE THE RECORD AND RELEASE PETITIONER

FROM CUSTODY IN THE UNDERLYING CRIMINAL MATTER.

NATURE OF THE ORDER TO BE REVIEWED

PETITIONER SEEKS REVIEW FROM A JUDGMENT ENTERED IN FEDERAL

HABEAS U.S. DISTRICT COURT ON MARCH 15,2017, WHICH DENIED PETITIONER'S

PRO SE FORMAL PETITION FOR A WRIT OF HABEAS CORPUS RELIEF AND A

CERTIFICATE OF APPEALIBILITY, (COA). PETITIONER ALSO SEEKS REVIEW

OF A JUDGMENT ENTERED IN THE U.S. COURT OF APPEALS FOR THE NINTH

CIRCUIT ON AUG. 18,2017 AND DENIAL OF RECONSIDERATION JUDGMENT ON

OCT. 3,201,7,t

BOTH JUDGMENTS DENIED PETITIONER'S MOTIONS FOR

A CERTIFICATE OF APPEALIBILITY, (CoA).

PETITIONER WAS ORIGINALLY CONVICTED IN JACKSON COUNTY CIRCUIT

COURT CASE NUMBER 003700FE, FOLLOWING A JURY TRIAL, OF TWO COUNTS

OF SODOMY IN THE FIRST DEGREE(COUNTS 1 AND 2), SEXUAL ABUSE IN THE

FIRST DEGREE(COUNT 3) AND USING A CHILD IN DISPLAY OF SEXUAL CONDUCT

(COUNT4). IN THE SAME CASE PETITIONER ENTERED GUILTY PLEAS TO TWO

COUNTS OF FAILURE TO REGISTER AS A SEX OFFENDER(COUNT 5 AND 6). IN

A JUDGMENT ENTERED ON JULY 6,2007, THE SENTENCING COURT IMPOSED

CONSECUTIVE, 100-MONTH PRISON SENTENCES ON THE SODOMY I CONVICTIONS

(COUNT 1 AND- 2) AND A CONSECUTIVE, 70-MONTH PRISON SENTENCE ON THE

USING A CHILD IN DISPLAY OF SEXUALLY EXPLICIT CONDUCT CONVICTION

(COUNT 4). ALL OTHER COUNTS WERE SENTENCED CONCURRENTLY.

OJIN

CASE REGISTER, JACKSON COUNTY CIRCUIT COURT CASE NUMBER 003700FE;

(JUDGMENT, APPENDIX .p

PETITIONER UNSUCCESSFULLY PURSUED A DIRECT

APPEAL, WITH THE APPELLATE JUDGMENT(APPENDIX N. ENTERED ON MARCH

25,2012. ACMS, CA A136426; WRIT OF CERTIORARI, DENIED, (APPENDIX L

UMATILLA CIRCUIT COURT, ORDER AND JUDGMENT, DENIED POST-CONVICTION

RELIEF, (APPENDIX K I OREGON COURT OF APPEALS AFFIRMED POST-CONVICTION

RELIEF DENIAL, (APPENDIX

; SUPREME COURT OF OREGON DENIED REVIEW,

(APPENDIX H

THIS CASE ARRISES ON PETITIONERS FORMAL PRO SE PETITION FOR

HABEAS CORPUS RELIEF, WHICH WAS DENIED, SEE JUDGMENT AND ORDER AND

OPINION AT(APPENDIX C & D.

THE U.S. DISTRICT COURT FOR OREGON

HELD A HEARING ON OR ABOUT MARCH 14,2017, ON PETITIONER'S PRO SE

FORMAL PETITION FOR HABEAS CORPUS RELIEF AND DENIED RELIEF AND A

CERTIFICATE OF APPEALIBILITY,(COA). THE U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT, SUBSEQUENTLY DENIED A (COA) ON AUG. 18,2017

AND PETITIONER'S MOTION FOR RECONSIDERATION ON OCT. 3,2017.

THEREFORE, ACCORDING TO THE NINTH CIRCUIT COURT'S FINAL

DECISION AND RULING ON OCT. 3,2017, THIS PETITION FOR A WRIT OF

CERTIORARI IS TIMELY.

REASONS FOR GRANTING THE PETITION

PETITIONER HAS MADE A "SUBSTANTIAL SHOWING OF THE DENIAL OF A

CONSTITUTIONAL RIGHT". 28 U.S.C. § 2253(c)(2).

THIS CASE PRESENTS A SIGNIFICANT ISSUE OF CONSTITUTIONAL LAW.

ORAP 9.07(1)(a).

THE SAME OR SIMILAR ISSUES ARRISE OFTEN. ORAP 9.07(2).

THE DECISION AFFECTS MANY PEOPLE AND IS IMPORTANT TO THE

PUBLIC. ORAP 9.07(3).

THE DECISIONS OF THE LOWER COURTS APPEAR TO BE WRONG AND RESULTS

IN A SERIOUS OR IRREVERCIBLE INJUSTICE OR DISTORTION OF A LEGAL

PRINCIPLE. ORAP 9.07(14).

THE UNITED STATES SURPREME COURT APPEARS TO HAVE MADE 92) CONFLICTING SEPERATE INTERPRETATIONS OF THE TERM, DUE PROCESS. THE OLDER

VERSION FOUND IN THE "KER-FRISBE DOCTRINE", THAT MUST YIELD TO THE

MORE RECENT INLIGHTENED VERSION IN GRISWOLD, THE DUE PROCESS REVOLUTION AND CONFRONTATION, 119 UPA L REV 711 (1971).

WHERE NOTHING HAD BEEN DONE TO CORRECT DENIAL OF ASSISTANCE OF

COUNSEL IN PERFECTING EXTRADITION FROM CAMBODIA, ,CONSTITUTES EEVE

REVERSIBLE ERROR. U.S.C.A. § IV; VI; AND DUE PROCESS CLAUSE OF

THE XIV AMENDMENT TO THE UNITED STATES CONSTITUTION.

THE COURT IS DEPRIVED OF JURISDICTION OVER AN EXTRADITED FUGITIVE

DEFENDANT, IF EATHER; IT VIOLATED A TREATY, OR THE U.S. GOVERNMENT

AND ITS AGENTS ENGAGED IN KIDNAPPING TO OBTAIN HIS PRESENCE BEFORE

THE COURT. ORS 133.787; AND 18 U.S.C. § 3182.

BECAUSE OF "UNLAWFUL ACTS" AND "CRIMINAL OFFENCES" IMPOSED BY

U .S. GOVERNMENT AGENTS TO OBTAIN JURISDICTION OVER PETITIONER, IT

IS DUE PROCESS MIS-CONDUCT THAT "SHOCKS THE CONSCIENCE" .AND WOULD

GO FAR TO NULIFY THE PURPOSE AND EFFECT OF THE JUDICIAL PROCESS.

THE INSTANT CASE IS A TRIAL IN VIOLATION OF THE "McNABB-MALLORY

RULE", SUCH AS "TRIALS WHICH ARE THE OUTGROWTH OR FRUIT OF THE

GOVERNMENT'S ILLEGALITY", SENCE THEY "DEBASE THE PROCESSES OF JUSTICE

THE SENTENCING COURT ERRORED WHEN IT FAILED TO MERGE COUNT 2

WITH COUNT 1. OR. REV. STAT. § 161.062(l).

THE COURTS HAVE LONG HELD THAT ONE WITNESS CAN NOT "VOUCH" FOR

ANOTHER WITNESSES CREDIBILITY OR BELEAVIBLITY. OR EVID. CODE 403.

A CONVICTION OBTAINED THROUGH SUPPRESSION OF EVIDENCE, DENIAL

OF COMPLETE DISCOVERY AND A "BRADY" VIOLATION, MUST NOT BE SUSTAINED.

THE COURT IS OBLIGATED TO DIVEST THEMSELVES OF JURISDICTION

OVER THE PERSON OF A DEFENDANT WHO HAS BEEN FORCIBLY BROUGHT TO

BOOK IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS

PETITIONER IS UNLAWFULLY IMPRISONED AND RESTRAINED OF HIS

LIBERTY BY THE ABOVE-NAMED RESPONDENT, MR. J. MYRICK, et.,al.,

THE SUPERINTENDENT OF TWO RIVERS CORRECTIONAL INSTITUTION..

PETITIONER MAINTAINS HIS INNOCENCE AND CONTENDS HE DID NOT CO

COMMIT THE OFFENCES HE WAS CONVICTED ON, DISPITE THE FACT HE WAS

BROUGHT BEFORE THE COURT IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.

PETITIONER IS A SERVICE-CONNECTED 100% DISABLED VETERAN, WHO

SERVED TO PROTECT THE UNITED STATES AND U.S. CONSTITUTIONAL RIGHTS,

BUT NOW IT APPEARS HE HAS BEEN DEPRIVED OF THE VERY RIGHTS HE

SACRIFICED HIS PHYSICAL ABILITIES TO PROTECT.

FOR ALL THE REASONS STATED ABOVE, PETITIONER PRAYS THAT THIS

HONORABLE UNITED STATES SUPREME COURT WILL SCRUTINIZE THIS CASE AND

CONSIDER GRANTING THIS PITITION FOR A WRIT OF CERTIORARI.

SUMMARY OF ARGUMENT ON GROUNDS FOR RELIEF, (1-16)

TO ASSIST UNDERSTANDING QUESTIONS PRESENTED

GROUND ONE:

PETITIONER'S CONVICTIONS WERE OBTAINED PURSUANT TO AN

UNCONSTITUTIONAL, UNLAWFUL, ARREST AND SEIZURE OF HIS PERSON

AND EXTRDITION FROM CAMBODIA WERE NO EXTRADITION TREATY EXIST.

WITH THE UNITED STATES.

ARGUMENT

BECAUSE THE U.S. GOVERNMENT'S OUTRAGEOUS DUE PROCESS MIS-CONDUCT

IN SUCURING PETITIONER FOR TRIAL VIOLATED HIS RIGHT TO DUE PROCESS

AS GUARANTEED BY THE 14TH AMENDMENT TO THE U.S. CONSTITUTION, ALL

CHARGES SHOULD HAVE BEEN DISMISSED.

IN, RUSSELL, 411 US AT 431-32, THE COURT REAFFIRMED THn"SUBJECTIVE VIEW" OF EMTRAPMENT IN FEDERAL COURTS, BUT LEFT OPEN THE POSSIBILITY OF AN OBJECTIVE CONSTITUTIONAL DEFEENCE BASED ON DUE PROCESS.

IN, HAMPTON V. UNITED STATES, 425 US 484,490, 96 S CT 1646, 48 L ED

2D 113 (1976).

THE PLURALITY CONCLUDED THAT THE DEFENDANT'S PREDIS-

POSITION TO THE CRIME WOULD BAR AN OUTRAGEOUS CONDUCT DEFENSE. THE

CONCURRENCE STATED THAT A DUE PROCESS OUTRAGEOUS CONDUCT DEFENSE

WOULD BE AVALIABLE IN AN APPROPRIATE CASE, ALTHOUGH POLICE OVER

INVOLVEMENT IN A CRIME WOULD HAVE TO REACH A HIGH LEVEL OF OUTRAGEOUSNESS BEFORE IT WOULD BAR CONVICTION. ID. AT 495 N 7 (POWELL, J.,

CONCERING). THE DISSENT REAFFIRMED ITS BELIEF IN THE OBJECTIVE

EMTRAPMENT RULE AND WOULD HAVE HELD THAT THE POLICE CONDUCT IN THAT

CASE WAS SUFFICIENTLY OFFENSIVE TO BAR CONVICTION. ID. AT 497

(BRENMAN, J., DISSENTING). THUS THE MAJORITY OF THE COURT RECOGNIZED

THE AVAILABILITY OF THE DEFENSE REGARDLESS OF THE DEFENDANT'S PREDIS-

POSITION. THE NINTH CIRCUIT HAS HELD THAT THE DEFENSE HAS SURVIVED.

BOGART, 783 F2D AT 1432-33.

RUSSELL STATED THAT THE DEFENSE MIGHT APPLY IN CASES WHERE

GOVERNMENTAL CONDUCT WENT BEYOND "FUNDAMENTAL FAIRNESS, SHOCKING

TO THE UNIVERSAL SENSE OF JUSTICE." 411 US AT 432. IN HAMPTON, THE

CONCURRENCE STATED THAT DUE PROCESS WOULD BE VIOLATED ONLY BY GOVERNMENTAL CONDUCT OF -A "DEMONSTRATABLE LEVEL OF OUTRAGEOUSNESS." 425

US AT 495 N 7. THOSE CONCEPTS HAVE NOT BEEN DEFINED BY THE COURT.

ACCORDING TO DEFENDANT [PETITIONER], US MARSHALS EXTRADITED

HIM FROM CAMBODIA WITHOUT PROVIDING HIM NOTICE OF THE EXTRADITION

PROCESS, DENIED HIM ACCESS TO COUNSEL SO THAT HE WAS UNABLE TO

CHALLENGE HIS EXTRADITION, AND DENIED HIM MEDICAL TREATMENT. THERE

IS NO EVIDENCE TO THE CONTRARY. BECAUSE THAT CONDUCT EVINCES A

"DEMONSTRATABLE LEVEL OF OUTRAGEOUSNESS," THE CHARGES AGAINST

DEFENDANT SHOULD HAVE BEEN DISMISSED. THE TRIAL COURT ERRED IN

CONCLUDING OTHERWISE, AND THIS COURT SHOULD REVERSE AND GRANT

PETITIONER'S PETITION FOR WRIT OFCENTIORARI.

THE US COURT OF APPEALS FOR THE 2ND CIRCUIT, HOLDING THAT

IF THE CHARGES OF GOVERNMENT MISCONDUCT IN KIDNAPPING DEFENDANT AND

FORCIBLY BRINGING HIM TO THE U. S. SHOULD BE SUSTAINED, HE WOULD,

AS A MATTER OF DUE PROCESS, BE ENTILED TO RELIEF, BECAUSE DUE PROCESS

REQUIRED A COURT TO DIVEST ITSELF OF JURISDICTION OVER THE PERSON

OF A DEFENDANT WHERE IT HAD BEEN AQUIRED AS A RESULT OF THE GOVERNMENT'S DELIBERATE, UNNECESSARYAND UNREASONABLE INVASION OF THE

ACCUSED'S CONSTITUTIONAL RIGHT., NOT ONLY WERE LAWS ALLEDGEDLY

BROKEN AND CRIMES COMMITTED AT THE BEHEST OF THE US MARSHALS SERVICE.

THE CONDUCT WAS APPAIRENTLY UNNECESSARY, AS EXTRADITION OR WAIVER

THEREOF, MIGHT HAVE BEEN CONCULDED. U.S. CONSTITUTIONAL AMENDMENT

IV, PROTECTED DEFENDANT, AND DUE PROCESS CLAUSE OF THE XIV AMEND.

"AT NO TIME HAD THERE BEEN ANY LAWFUL CHANNELS IMPOSED NOR

ANY FORMAL REQUEST ON THE PART OF THE U.S. GOVERNMENT OR THE GOVERNMENT OF CAMBODIA FOR THE EXTRADITION OF PETITIONER [SMITH] NOR WAS

THERE ANY LEGAL BASIS TO JUSTIFY THIS RANK CRIMINAL ENTERPRISE.

THE U.S. GOVERNMENT AND THE U .S. MARSHALS SERVICE LOCKED ALL

POWER, AUTHORITY AND JURISDICTION TO ARREST, SEIZE AND EXTRADITE

PETITIONER [SMITH], FROM CAMBODIA. FROM START TO FINISH THE U.S.

GOVERNMENT UNLAWFULLY, WILLINGLY AND DELIBERATELY EMBARKED UPON A

BRAZENLY CRIMINAL SCHEME VIOLATING THE LAWS OF THREE SEPARATE COUNTRIES.

BOTH, THE ILLEGAL SEIZURE OF EVIDENCE PRESENTED AT TRIAL OR

THE SEIZURE OF THE PERSON OF A DEFENDANT ARE PROTECTED BY FOURTH

AMENDMENT GUARANTEES. THUS, HOW PETITIONER [SMITH], WAS UNLAWFULLY

AND FORCIBLY BROUGHT TO TRIAL BY U.S. GOVERNMENTAL DUE PROCESS H

MISCONDUCT IS RELEVANT. SEE UNITED STATES V. TOSCANINO, 500 F 2

267; 1974 U.S. APP. LEXIS 8616.

ALLEGED FORCIBLE ABDUCTION (MANSFIELD., 2ND CR.)

IN AN ERA MARKED BY A SHARP INCREASE IN KIDNAPPING ACTIVITIES,

BOTH HERE AND ABROAD, SEE, E.G., NEW YORK TIMES, JAN. 5,1974, AT

25, COL. 6, DEC. 13,1973, AT COL. 5, OCT. 17,1973, AT 14, COL. 5,

WE FACE THE QUESTION AS WE MUST IN THE STATE - OF THE PLEADINGS, OF

WHETHER iA FEDERAL OR STATE COURT MUST ASSUME JURISDICTION OVER THE

PERSON OF A DEFENDANT WHO IS ILLEGALLY APPREHENDED ABROAD AND FORCIBLY ABDUCTED BY. GOVERNMENT AGENTS TO THE UNITED STATES FOR THE

PURPOSE OF FACING CRIMINAL CHARGES HERE. THE ANSWER NECESSITATES

AND GUARANTEES OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION..***

A REVIEW AND APPRAISAL OF TWO SUPREME COURT DECISIONS, HEAVILY RELIED UPON BY GOVERNMENT AND THE COURTS, KER V. ILLINOIS, 119 Us 436,

7S CT 225, 30 L ED 421 (1888);AND FRISBIE V. COLLINS, 342 Us 519,

96 L ED 541, 72 S CT 509 (1952); FOR YEARS THESE TWO CASES HAVE

BEEN THE MAINSTAY OF A DOCTRINE TO THE EFFECT THAT THE GOVERNMENT'S

POWER TO PROSECUTE A DEFENDANT IS NOT IMPAIRED BY THE ILLEGALLTY

OF THE METHOD BY WHICH IT ACQUIRES CONTROL OVER HIM. THIS TEACHING

ORIGINATED ALMOST 90 YEARS AGO IN KER. SIXTY SIX YEARS LATER THE

SUPREME COURT AGAIN FACED THE QUESTION IN FRISBIE V. COLLINS, SUPRA,

IN A SLIGHTLY DIFFERENT CONTEXT.

SINCE FRISBIE THE SUPREME COURT, IN WHAT GkNDISTINGUISHED

LEGAL LUMINARY DESCRIBES AS A "CONSTITUTIONAL REVOLUTION", SEE

GRISWOLD, THE DUE PROCESS REVOLUTION AND CONFRONTATION, 119 U PA

LREV. 711 (1971), HAS EXPANDED THE INTERPRETATION OF "DUE PROCESS".

NO LONGER IS IT LIMITED TO THE GUARANTEE OF "FAIR" PROCEDURE AT

TRIAL. IN AN EFFORT TO DETER POLICE MISCONDUCT,-THE TERM HAS BEEN

EXTENDED TO BAR THE GOVERNMENT FROM REALIZING DIRECTLY THE FRUITS'

OF ITS OWN DELIBERATE AND UNNECESSARY LAWLESSNESSIN BRINGING THE

ACCUSED TO TRIAL. SEE U.S. Vi RUSSELL, 411, US 423, 430-31, 36 L

D 2D 366, 93 5 CT 1637 (1973); MAPP V. OHIO, 367 US 642, 81 5 CT

1,8.4, 6:L ED 2D 1081 (1961); MIRANDA V ARIZONA, 384 US 436, 16 L

.ED 2D 694, 86 5 CT 1602 (1966); WONG SUN V. UNITED STATES, 371 US

A21, 83 S CT 497 (1963); SILVERMAN V. UNITED STATES, 365 US 505.

.5 L ED 2D 734, 81 S CT 679 (1961). CONCURENT WITH THESE DECISIONS

THE KER-FRISBIE RULE HAS BEEN CRITISIZED AND ITS CONTENUED VALIDITY

REPEATEDLY QUESTIONED. SEE, E.G., PITLER, "THE FRUIT OF THE POISONOUS

TREE", REVISITED AND SHERPARDIZED, 56, CALIF. L REV. 579, 600 (1968);

-SCOTT., CRIMINAL JURISDICTION OF A STATE OVER A DEFENDANT BASED UPON

PRESENCE SECURED BY FORCE OR FRAUD, 37 MINN. L REV. 91, 102, 107

_(1953).

THE EROSION OFFRISBIE, APPEARS TO HAVE BEGUN IMMEDIATELY UPON

ITS FIRST APPEARANCE IN PRINT. IN RACHIN V. CALIF., 342, US 165,

96 L ED 183, 72 5 CT (1952), DECIDED AT THE SAME TERM AS FRISBIE,

THE SUPREME COURT BROADENED ITS INTERPRETATION OF DUE PROCESS TO

SET ASIDE FOR THE FIRST TIME A STATE COURT CONVICTION RESTING ON

EVIDENCE OBTAINED THROUGH POLICE BRUTALITY.

APPLYING THESE GENERAL CONSIDERATIONS TO THE CIRCUMSTANCES OF

THE PRESENT CASE, [PETITIONER'S], THIS COURT SHOULD BE COMPELLED

TO CONCLUDE THAT THE MANNER BY WHICH JURISDICTION OVER PETITIONER,

[SMITH], WAS OBTAINED DO MORE THAN OFFEND SOME FASTIDIOUS SQUEAMISHNESS OR PRIVATE SENTIMENTALISM ABOUT COMBATING CRIME TOO CATAGORICALLY. THIS IS CONDUCT THAT SHOCKS THE CONSCIENCE..."IT HAS LONG

SIJINCE CEASED TO BE TRUE THAT DUE PROCESS OF LAW IS HEEDLESS OF THE

MEANS BY WHICH THE ACCUSED IS ARRESTED, SEIZED AND PRESENTED FOR

TRIAL, THERE TO BE CHARGED AND PROSECUTED FOR THE COMMISSION OF A

CRIME.

THIS WAS NOT TRUE EVEN BEFORE THE SERIES OF RECENT CASES

ENFORCING THE CONSTITUTIONAL PRINCIPLE THAT THE STATES MAY NOT BASE

CONVICTIONS UPON CONFESSIONS OR SEIZURES OF THE ACCUSED, HOWEVER

MUCH VERIFIED, OBTAINED BY COERCION OR "WRONGFUL ACTS" IMPOSED.

THE UNDERPINNINGS OFFRISBIE WERE FURTHER WEEKENED BY THE

SUPREME COURT'S LANDMARK DECISION IN MAPP V. OHIO, 367 US 643, 6

10.

L ED 2D 1081, 81 5 CT 1684 (1961), WHERE OVERRULING'IG WOLF V.

COLORADO, 338 Us 25, 93, L ED 1782, 69 S CT 1359 (1949), IT

INTERPRETED THE DUE PROCESS CLAUSE OF THE 14TH AMEND. TO REQUIRE

THAT THE EXCLUSIONARY RULE BE APPLIED IN STATE PROSECUTIONS, JUST

AS IT HAD FOR YEARS BEEN BINDING ON THE FEDERAL COURTS, WEEKS V.

MNITED STATES, 232 US 383, 58 LED 652, 32 S CT 341 (1914). IT

REPRESENTS A JUDICIALLY-CREATED DEVICE DESIGNED TO DETER DISREGARD

FOR CONSTITUTIONAL PROHIBITIONS AND GIVE SUBSTANCE TO CONSTITUTIONAL

RIGHTS, [THIS HOLDS TRUE IN PETITIONER (SMITH'S) CASE PRETAINING

TO HIS UNLAWFUL SEIZURE IN CAMBODIA];U.S.C.A. § CONST. AMEND. IV.,

MAPP V. OHIO. IN THE WORDS OF JUSTICE HOLMES, TO ALLOW THE GOVERNMENT TO BENEFIT ILLEGALLY FROM SEIZED EVIDENCE [PETITI"T'JER ASSERTS,

ILLEGALLY SEIZED PERSONS], "REDUCES THE FOURTH AMENDMENT TO A FORM

OF WORDS,\" flVERTHORME LUMBER CO. V. UNITED STATES, 251 US 385,

40 5 CT 182, 64 L ED 319 (1920). THE PHILOSOPHY BEHIND THE RULE

AND PSSSIBLE BROADER APPLICATION OF THE BASIC PRINCIPLE UNDERLYING

IT WAS BEST DECRIBED BY JUSTICE BRANDEIS IN HIS DISSENTING OPINION

IN OLMSTEAD V. UNITED STATES, (1928).

SEE U.S.V.EDMONS, 432 F 2D 571 (2ND CIR. 1970), WHERE JUDGE

FRIENDLY STATED: "WE DO NOT FIND FRISBIE... AND ITS PREDECESSORS...

TO BE A TRULY PERSUASIVE ANALOGY. THOSE CASES WERE DECIDED BEFORE

THE FOURTH AMENDMENT AS SUCH WAS HELD APPLICABLE TO THE STATES,...

AND THUS RESTED ONLY ON GENERAL CONSIDERATIONS OF DUE PROCESS.OR,

WETHER THE COURT WOULD NOW ADHERE TO THEM MUST BE REGARDED AS

QUESTIONABLE." U.S. V. EDMONS, SUPRA AT 583. SIMULAR DOUBT WAS

INDICATED BY THE 3RD CIR. IN GOVERNMENT OF VIRGIN ISLANDS V. ORTIZ,

:AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION*.*

11.

427 F 2D 1043, 1045 N. 2 (3rd dr. 1970), where it stated "we

recognize that the validity ofthe frisbie doctrine has been

seriously questioned because it CONDONES illegal police conduct."

IN LIGHT OF THESE DEVELOPMENTS WE ARE SATISFIED THAT THE

KER-FRISBIE RULE" CANNOT BE RECONCILED WITH THE SUPREME COURT'S

EXPANSION OF THE.. CONCEPT OF DUE PROCESS, WHICH NOW PROTECTS THE

ACCUSED AGAINST PRETRIAL ILLEGALITY BY DENYING TO THE GOVERNMENT

THE FRUITS OF ITS EXPLOITATION OF ANY DELIBERATE AND UNNECESSARY

LAWLESSNESS ON ITS PART. HOWEVER, WE MUST BY THE, UNDERPLYING

PRINCIPLE THAT THE GOVERNMENT SHOULD BE DENIED THE RIGHT TO EXPLOIT

ITS OWN ILLEGAL CONDUCT, WONG SUN V. U.S., 371 US 471, 4881 9 LED

2D 441, 83 S CT 407 (1963), AND WHEN THE ACCUSED IS KIDNAPPED AND

FORCIBLY BROUGHT WITHIN THE JURISDICTION, THE COURT'S ACQUISTION

OF POWER OVER HIS PERSON REPRESENTS THE FRUITS OF THE G'BORNMENT'S

* DUE PROCESS*

EXPLOITATOON OF ITS OWN MISCONDUCT. HAVING .UNLAWFULLY SEIZED THE

DEFENDANT IN VIOLATION OF THE FOURTH AMENDMENT, THE GOVERNMENT SHOULD

AS A MATTER OF FUNDAMENTAL FAIRNESS BE OBLIGATED TO RETURN HIM T

HIS STATUS QUO ANTE. ALSODUE PROCESS CLAUSE OF THE 14TH AMENDMENT,.

FACED WITH THE CONFLICT BETWEEN THE TWO CONCEPTS OF DUE PROCESS,

THE ONE BEING THE RESTRICTED VERSION FOUND IN KER -FRISBIE ANDTHE

OTHER THE EXPANDED AND ENLIGHTENED INTERPRETATION EXPRESSED IN MORE

RECENT DECISIONS OF THE SUPREME COURT, WE ARE PERSUADED THAT TO

THE EXTENT THAT THE TWO ARE IN CONFLICT, THE KER-FRISBIE VERSION

MUST YIELD. ACCORDINGLY WE VIEW DUE PROCESS AS NOW REQUIRING A

COURT TO DIVEST ITSELF OF JURISDICTION OVER THE PERSON OF A DEFENDANT

WHERE IT HAS BEEN ACQUIRED AS THE RESULT OF THE GOVERNMENT'S

12.

DELIBERATE, UNNECESSARY AND UNREASONABLE INVASION OF THE ACCUSED'S

CONSTITUTIONAL RIGHTS. THIS CONCLUSION REPRESENTS BUT AN EXTENSION

OF THE WELL-RECOGNIZED POWER OF FEDERAL COURTS IN THE CIVIL CONTEXT

TO DECLINE TO EXERCISE JURISDICTION OVER A DEFENDANT WHOSE PRESENCE

HAS BEEN SECURED BY FORCE OR FRAUD, SEE IN RE JOHNSON, 157 US 120,

126, 42 L ED 103, 17 S CT 735 (1896); FITZGERALD CONSTRUCTION

V. FITZGERALD, 137 US 98, 34 L ED 608, 11 S CT 36 (1890).

IF THE CHARGES OF GOVERNMENTAL DUE PROCESS MIS-CONDUCT IN

KIDNAPPING AND FORCIBLY

HIM (PETITIONER, SMITH] INTO THE

U.S. SHOULD BE SUSTAINED, THE FOREGOING PRINCIPLES WOULD, AS A MATTER

OF DUE PROCESS, ENTITLE HIM TO SOME RELIEFI THE ALLEGATIONS INCLUDE

CORRUPTION, BRIBERY OF FOREIGN OFFICLIALS IN CAMBODIA AND THAILAND

AS WELL AS KIDNAPPING, ACCOMPANIED BY VIOLENCE AND BRUTALITY TO

[PETITIONER] AND TORTURE. DELIBERATE MISCONDUCT ON THE PART OF U.S.

MARSHALS, IN VIOLATION NOT ONLY OF CONSTITUTIONAL PROHIBITATIONS

BUT ALSO OF THE FEDERAL KIDNAPPING ACTT, 1201, AND OF TWO INTERNA-

TIONAL TREATIES OBLIGATING THE U.S. GOVERNMENT TO RESPECT THE

TERRITORIAL SOVEREIGNTY OF CAMBODIA, IS CHARGED. SEE U.N. CHARTER,

PARA4

ART. 2; O.A.S. CHARTER, ART. 17. THE CONDUCT ALLEGED HERE SATISFIES

THOSE TEST ARTICULATED BY THE SUPREME COURT IN ITS MOST RECENT

"EMTRAPNENT" DECISION, UNITED STATES V. RUSSELL, 411 US 423, 36 L

ED 2D 366, 96 S CT 1637 (1973). SEE FIOCCONI V. ATTORNEY GENERAL

QFUUS., 339 F SUPP. 1242,1244 (S.D.N.Y. 1972). SEE McNABB V. U.S.,

318 U5332. 87 L ED 819, 63 S CT 608 (1943). SEE HOGAN & SNEE

THE McNABB-MALLORY RULE: ITS RISE, RATIONALE AND RESCUE, 47 GEO.

L.J. 29,32 (1952)(THE"REAL ROOTS OF THE McNABB RULE" ARE FOUND

(

13.

IN A REFUSAL TO COUNTENANCE "TRIALS WHICH ARE THE OUTGROH OR FRUIT

OF THE GOVERNMENT'S ILLEGALITY." SINCE THEY "DEBASE THE PROCESSES

OF JUSTICE". SEE ALSO OOVERNMENT OF VIRGIN ISLANDS V. ORTIZ, 427

'2D 1043,

1045 n.2.

IF DISTINCTIONS ARE NECESSARY, KER AND FRISBIE ARE CLEARLY

DISTINGUISHABLE ON OTHER LEGALITY SIGNIFICANT GROUNDS WHICH RENDER

NEITHER OF THEM CONTROLING HERE. NEITHER CASE, UNLIKE THAT HERE,

INVOLVED THE ABDUCTION OF A DEFENDANT IN VIOLATION OF INTERNATIONAL

TREATIES OF THE UNITED STATES.. THIS COURT MUST RECOGNIZE A LONG

STANDING PRINCIPLE OF INTERNATIONAL LAW THAT ABDUCTIONS BY ONE STATE

OF PERSONS LOCATED WITHIN THE TERRITORY OF ANOTHER VIOLATE THE

TERRITORIAL SOVEREIGNTY OF THE SECOND STATE AND ARE REDRESSABLE

USUALLY BY THE RETURN OF THE PERSON KIDNAPPED. SEE THE VINCENTI

AFFAIR, 1 HACKWORTH, DIGEST OF INTERNATIONAL LAW 624 (1920); THE

CANTU CASE, 2 HACKWORTH 310 (1914); THE CASE OF BLATT AND CONVERSE,.

2 HACKWORTH 399 (1911 ),

SINCE THE UNITED STATES THUS AGREED NOT TO SEIZE PERSONS RESIDING WITHIN THE TERRITORIAL LIMITS OF A FORIEGN COUNTRY, SUCH AS

CAMBODIA, PETITIONER'S, ALLEGATIONS IN THIS CASE ARE GOVERNED NOT

BY KER BUT BY THE SUPREME COURT'S LATER DECISION IN COOK V. U.S.,

288 US 102, 77 L ED 641, 53 S CT 305 (1933), REJECTING. KER V. ILLINOIS.

THE RULE IN COOK IS CONSISTENT WITH THE TRADITIONAL DOCTRINE THAT

"THE CONSTRUCTION OF TREATIES IS JUDICIAL IN ITS NATURE, AND COURTS

WHEN CALLED UPON TO ACT SHOULD BE CAREFUL TO SEE THAT INTERNATIONAL

ENGAGEMENTS ARE FAITHFULLY KEPT AND OBSERVED. "SEE SULLIVAN V. KIDD,

254 US 433, 442, 65 L ED 344, 41 S CT 158 (1921), AND "THAT THE

3-UNITED STATES V. ALVEREZ-MACHIAN, 504 US 655 (1992)', IS DISTINGUISHABLE AND NOT BINDING ON THE INSTANT CASE.

14.

EXECUTIVE LIVES UP TO OUR INTERNATIONAL OBLIGATIONS," SHAPPIRO V.

RRANDINA, 478 F 2D 894, 906 n. 10 (2ND dR. 1973).

IN UNITED STATES V. TOSCANINO, (1974), THE CONCURRENCE, IN

PART, ANDERSON, CIRCUIT JUDGE (CONCURRING IN RESULT):

"I CONCURR IN THE RESULT." "MY CONCURRENCE IS SO LIMITED BECAUSE

THIS CASE CAN BE DISPOSED OF ON DUE PROCESS GROUNDS ALONE."

PETITIONER ASSERTS HIS CASE CAN ALSO BE DISPOSED OF ON DUE

PROCESS GROUNDS ALONEAND INVOKES THE FEDERAL KIDNAPPING ACT, 18

U.S.C. § 1201.) AS STATED IN THE FOREGOING, PETITIONER ALLEGES HE

WAS KIDNAPPED BY THE U.S. MARSHALS SERVICE, IN CAMBODIA, AT THE

BEHEST OF THE U.S. GOVERNMENT. AN ILLEGAL ARREST CONSTITUTES. A

-4

SEIZUREOF THE PERSON IN VIOLATION-OF THE FOURTH AMENDMENT, SEE

jENRY V. U.S., 361 US 09, 100-01, 4 L ED 2D 134,80 S CT 168 (1959);

GIORDENELIO V. U.S., 357 US 480, 485-88, 2 L ED 2D 1503, 78 S CT

1245 (1958); FRANKEL, CONCERNING SEARCHES AND SEIZURES, 34HARV.

L. REV. 361 (1921). WHEN LAW ENFORCEMENT AGENTS RESTRICT LIBERTY

OF MOVEMENT OF A PERSON WITH THE USE OF HANDCUFFS AND SHACKLES, IT

CONSTITUTES :ARREST, TIME AND LOCATION. IN PETITIONER'S CASE ARREST

OCURED EITHER WHEN THE U.S. EMBASSY REQUESTED HIS ARREST BY CAMBODIAN

IMMAGRATION ON SEPT. 20, 2006 OR MOST DEFFENATELY ON OCT. 13, 2006

WHEN THE U.S. MARSHALS CHAINED, HANDCUFFED AND SHACKLED HIM AT THE

CAMBODIAN IMMAGRATION JAIL. EVEN THOUGH A FORMAL ARREST IS MADE

AT A LATER TIME, THE ARREST IS COMPLETED WHEN FEDERAL AGENTS RESTRICT

LIBERTY OF MOVEMENT. THE COURT IS DEPRIVED OF JURISDICTION OVER

AN EXTRADITED DEFDNDANT, IF EATHER; IT VIOLATED A TREATY, OR THE

U.S. GOVERNMENT ENGAGED IN KIDNAPPING TO OBTAIN. HIS PRESENCE BEFORE

***AND THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE UNITED

STATES CONSTITUTION.

15.

**'

THE COURT. U.S.C.A. § CONST. AMEND. IV. THERE WAS NO LAWFUL

EXTRADITION OR DEPORTATION OF PETITIONER FROM CAMBODIA AND THERE

IS NO EVIDENCE TO THE CONTRARY.

DUE PROCESS AND EQUAL PROTECTION... IT IS ESTABLISHED PRACTICE

FOR THE SUPREME COURT TO SUSTAIN THE JURISDICTION OF FEDERAL AND

STATE COURTS TO ISSUE INJUNCTIONS TO PROTECT RIGHTS SAFEGARDED BY

THE CONSTITUTION AND TO RESTRAIN INDIVIDUAL LAW ENFORCEMENT AUTHORITIES FROM DOING WHAT THE 14TH AMEND. FORBIDS THEM TO DO. MOREOVER,

WHERE FEDERALLY PROTECTED RIGHTS HAVE BEEN INVADED, IT HAS BEEN THE

RULE FROM THE BEGINNING THAT COURTS WILL BE ALERT TO AJUST THEIR

REMEDIES SO AS TO GRANT THE NECESSARY RELIEF, AND IT IS ALSO WELL

SETTLED THAT WHERE LEGAL RIGHTS HAVE BEEN INVADED AND A FEDERAL

STATUTE PROVIDES FOR A GENERAL RIGHT TO SUE FOR SUCH INVASION, THE

COURTS MAY USE ANY AVALABLE REMEDY TO MAKE GOOD THE WRONG DONE AND

ON A DETERMINATION OF THE SCOPE OF THE 4TH AND 5TH AMENDMENTS

PROTECTION FROM UNREASONABLE SERCHES, SEIZURES AND DEPRIVATIONS OF

LIBERTY WITHOUT DUE PROCESS OF LAW. PETITIONER'S PRESENCE BEFORE

THE COURT WAS A RESULT OF AN UNCONSTITUTIONAL SEIZURE OF HIS PERSON

IN THE ABSENCE OF AN EXTRADITION TREATY BETWEEN THE U.S. AND CAMBODIA

AND ;IF NOTHING HAD BEEN DONE TO CORRECT DENIAL OF ASSISTANCE OF

COUNSEL IN PERFECTING EXTRADITION FROM CAMBODIA, IT CONSTITUTES

REVERABLE ERROR. U.S.C.A. § CONST. AMEND. IV AND XIV, & VI.

SEE STATE V. PORTER (1966), WHERE THE COURT APPEARED TO HOLD

THAT THE ILLEGAL ARREST AND RETURN OF AN ACCUSED CRIMINAL FROM

ANOTHER COUNTRY WOULD, WOULD IF PROPERLY CHALLENGED, PRECLUDE STAE

COURTS FROM EXERCIZING JURISDICTION OVER SUCH A DEFENDANT UNDER STATE

AND THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION

HOWEVER, PETITIONER'S (FOIA), REQUEST FOR RELEASE THE INTERNATIONAL

AFFAIRS, EXTRADITION REPORT, 18 PAGES WAS DENIED AS WELL AS THE

LOWER COURTS' DENIAL OF PETITIONER'S MOTION FOR AN INCAMERA REVIEW.

16.

LAW. IN AN EARLIER DECISION, THE COURT NOTED, IT HAD RULED THAT

A DEFENDANT WHO HAS BEE ILLEGALLY ARRESTED AND, AT THE EARLIEST

OOPPRtTUNITY, APPEARED SPECIFICALLY TO CHALLENGE THE JURISDICTION

OF THE COURT MUST BE RELEASED UNTIL REARRESTED IN A PROPER MANNnk

AND THAT UNTIL SUCH TIME THE COURT DID NOT HAVE JURISDICTION OVER

-Q

HIS PERSON. SEE COMMONWEALTH V. PASS (1976),[N WHICH THE COURT

APPEARED TO RECOGNIZE THAT THE POWER OF THE COURTS TO TRY A CRIMINAL

DEFENDANT MIGHT BE NEGATED IF THE DEFENDANT HAD BEEN BROUGHT INTO

THE JURISDICTION BY FORCE OR KIDNAPPING, SUCH AS IN THE PRESENT CASE.

INDEED, THE COURT HAS FOUND THAT THERE IS PRECEDENCE TO THE EFFECT

THAT PERSONS SUBJECTED TO EXTRADITION PROCEEDINGS WERE PROTECTED

BY CERTAIN CONSTITUTIONAL RIGHTS WHICH ASSURED THAT THE EXTRADITION

POWER WAS NOT APPLIED AGAINST THEM IN AN OPPRESSIVE OR ARBITRARY

MANNER. THE DUE PROCESS GUARANTEE OF THE 14TH AMEND. MEANS THAT

THE "PROCEDURES [LEADING TO CONVICTIONS] CANNOT INCLUDE METHODS THAT

MY FAIRLY BE DEEMED TO BE IN CONFLICT WITH DEEPLY ROOTED FEELINGS

OF THE COMMUNITY", HALEY V. OHIO, 332 Us 596, 92 L ED 224, 68 S

CT. 302, (JUSTICE FRANKFURTER'S CONCURRENCE); AND SEE WATTS V.

INDIANNA, 338 Us 49, 93 L ED 1801, 69 S CT 1347, 1357.

IN RACHIN, THE COURT GRANTED CERTIORARI, 341 Us 939, 95 L ED

1366, 71 S CT 997, BECAUSE A SERIOUS QUESTION IS RAISED AS TO THE

LIMITATIONS WHICH THE DUE PROCESS CLAUSE OF THE 14TH AMEND. IMPOSES

ON THE CONDUCT OF CRIMINAL PROCEEDINGS BY THE STATES. [PETITIONER]

RAISES THIS SAME QUESTION IN THE PRESENT CASE. DUE PROCESS OF LAW

IS A SUMMARIZED CONSTITUTIONAL GUARANTEE OF RESPECT FOR THOSE

PERSONAL IMMUNITIES WHICH, AS MR. JUSTICE CARDOZO TWICE WROTE FOR

THE COURT ARE "SO ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR

17.

PEOPLE AS TO BE RANKED AS FUNDAMENTAL", SNYDER V. MASSACHUSETTS,

291 US 97, 105, 78 L ED 674, 677, 54 S CT 330, 90 ALR. 575, OR ARE

"IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY". PALKO V. CONNECTICUT,

302 Us 319, 325, 82 L ED 288, 292, 58 S CT 149.

THE VAGUE CONTOURS OF THE DUE PROCESS CLAUSE DO NOT LEAVE

JUDGES AT LARGE. DUE PROCESS OF LAW IS NOT TO BE DERIDED AS RESORT

TO A REVIVAL OF "NATURAL LAW".

COERCED WAIVERS OF EXTRADITION OR JURISDICTION OFFEND THE

COMMUNITY'S SENSE OF FAIR PLAY AND DECENCY. THIS COURT SHOULD BE

COMPELLED TO CONCLUDE THAT THE PROCEEDINGS BY WHICH JURISDICTION,

EXTRADITION AND ANY SUBSEQUENT CONVICTION IS OBTAINED DO MORE THAN

OFFEND SOME FASTIDIOUS SQUEAMISHNESS - OR-- PRIVATE SENTIMENTALISM ABOUT

COMBATING CRIME TOO ENERGETICALLY, AS IN PETITIONER'S CASE, AS(THIS

IS CONDUCT THAT MOCKS THE CONSCIENCE./ ILLEGALLY ARRESTING--SEIZING

--ASSAULTING--BATTERING--TORTURING--ABDUCTING--KIDNAPPING---UNLAWFULLY

IMPRISONING—THIS COURSE OF PROCERDINGS BY (AGENTS OF U.S. GOVERNMENT TO OBTAIN JURISDICTION OVER PETITIONER) [SMITH], IS BOUND TO

OFFEND EVEN HARDENED SENSIBILITIES. THEY ARE METHODS TOO CLOSE TO

THE RACK AND THE SCREW TO PERMIT OF CONSTITUTIONAL DIFFERENTIATION.

SO HERE, TO SANCTION THEBRUTAL CONDUCT WOULD BE TO AFFORD BRUTALITY

THE CLOAK OF LAW. NOTHING WOULD BE MORE CALCULATED TO DISCREDIT

LAW AND THEREBY TO BRUTALIZE THE TEMPER OF A SOCIETY. TO SUGGEST

LEGALIZATION OF FORCE SO BRUTAL AND SO OFFENSIVE TO HUMAN DIGNITY

IN SECURING A FUGITIVE FOR TRIAL, BRING HIM TO BOOK, AS IS REVEALED

BY THIS RECORD, WOULD GO FAR TO NULIFY THE PURPOSE AND EFFECT OF

THE JUDICIAL PROCESS.

18,.

THE CALIFORNIA JUDGES WHO HAVE EXPRESSED THEMSELVES IN ROCHIN,

HAVE CONDEMED THIS KIND OF CONDUCT IN THE STRONGEST LANGUAGE.

WHILE NOT BEING UNMINDFUL THAT HYPOTHETICAL SITUATIONS CAN BE

CONJURED UP, SHADING IMPERCEPTIBLY FROM THE CIRCUMSTANCES OF ROCHIN,

TOSCANINO AND SMITH [PETITIONER'S CASE) AND BY GRADATIONS PRODUCING

PRACTICAL DIFFERENCES DESPITE SEEMINGLY LOGICAL EXTENSIONS, THE

CONSTITUTION IS "INTENDED TO PRESERVE PRACTICAL AND SUBSTANTIAL

RIGHTS, NOT TO MAINTAIN THEORIES".

DAVIS V. MILLS, 184 US 451,457,

48 L ED 1067, 1071, 24 S CT 692.

THE VIEW, CIRCUMSTANCES AND ALLEGATIONS IN PETITIONER'S[SMITH],

ARE PART OF THE SAME PHILOSOPHY THAT PRODUCED BETTS V BRADY, 316

US 455, 86 L ED 1595, 62 S CT 1252, DENYING COUNSEL.-TO AN ACCUSED

DEFENDANT IN A STATE TRIAL,[PETITIONER ASSERTS EXTRADITION OF AN

ACCUSED FUGITIVE IN A STATE TRIAL, FROM CAMBODIA],AGAINST THE

COMMAND OF THE SIXTH AMENDMENT, THE FEDERAL EXTRADITION STATUTE.,

18 U.S.C. § 3182; THE UNIFORMRIMINAL EXTRADITION ACT, ORS 133.787;

THE FEDERAL KIDNAPPING ACT, 1201 AND WOLF V. COLORADO, 338 Us 25,

93 L ED 1782, 69 S CT 1359, ALLOWING EVIDENCE OBTAINED AS A RESULT

OF A SERCH AND SEIZURE, [PETITIONER ASSERTS, OR SEIZURE OF HIS

PERSON FROM CAMBODIA], THAT IS ILLEGAL UNDER THE FOURTH AMENDMENT1 '

TO BE INTRODUCED,[PRESENCE PROCURED], IN A STATE TRIAL. IT IS PART

OF THE PROCESS OF EROSION OF CIVIL RIGHTS OF THE CITIZEN IN RECENT

YEARS. LIBERTY OF THE CITIZEN CANNOT BE ADEQUATELY PROTECTED BY

THE FLEXIBLE CONCEPTION OF DUE PROCESS

LAW;

)

'AND THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE UNITED

STATES CONSTITUTION.

19.

GOVERNMENTAL DUE PROCESS OUTRAGEOUS MIS-CONDUCT, .COMMITING A

CRIME OF KIDNAPPING IS BEST DISCRIBED BY JUSTICE BRANDEIS IN AN

OFTEN QUOTED PASSAGE FROM HIS DISENTING OPINION IN OLMSTEAD V.

UNITED STATES, 277 US 438, 72 L.ED. 944, 48 S..CT. 564 (1928),

RECENTLY INVOKED AGAIN IN, UNITED STATES V. ARCHER, 486 F 2D 670,

674-75, (2ND dR. .1973):

THE COURT'S AID IS DENIED ONLY WHEN HE WHO SEEKS IT HAS VIOLATED

THE LAW IN CONNECTION WITH THE VERY TRANSACTION AS TO WHICH HE SEEKS

LEGAL REDRESS. THEN AID IS DENIED DESPITE THE DEFENDANT'S WRONG.

IT IS DENIED IN ORDER - TO MAINTAIN RESPECT FOR LAW; IN ORDER TO

PROMOTE CONFIDENCE IN THE ADMINISTRATION OF JUSTICE IN ORDER TO

PRESERVE THE JUDICIAL PROCESS FROM CONTAMINATION..................

DECENCY, SECURITY AND LIBERTY ALIKE DEMAND THAT. GOVERNMENT OFFICIALS

SHALL BE SUBJECTED TO THE SAME RULES OF CONDUCT THAT ARE COMANDS

TO THE CITIZEN, IN A GOVERNMENT OF LAWS, EXISTENCE OF THE GOVERNMENT

WILL BE IMPERIILLED IF.IT FAILS TO OBSERVE THE LAW SCRUPULOUSLY.

OUR GOVERNMENT IS THE POTENT, THE OMNIPRESENT TEACHER. FOR GOOD

OR ILL, IT TEACHES THE WHOLE PEOPLE BY ITS EXAMPLE. CRIME IS

CONTAGEOUS. IF THE GOVERNMENT BECOMES A LAW BREAKER, IT BREEDS

CONTEMPT FOR LAW; IT INVITES EVERY MAN TO BECOME A LAW UNTO HIMSELF;

IT INVITES ANARCHY. TO DECLARE THAT IN THE AMINISTRATION OF THE

CRIMINAL LAW THE END JUSTIFIES THE MEANS--TO DECLARE THAT THE

GOVERNMENT MAY COMMIT CRIMES IN ORDER TO SECURE THE CONVICTION OF

A PRIVATE CRIMINAL--WOULD BRING TERRIBLE RETRIBUTION. AGAINST

THAT PERNICIOUS DOCTRINE THE COURT SHOULD RESOLUTELY SET ITS FACE.

277 U.S. AT 684 AND 685. SOCIETY IS THE ULTIMATE .LOSER WHEN, IN ORDER

TO CONVICT THE GUILTY, IT - USES METHODS THAT LEAD TO DECREASED

RESPECT FOR THE LAW.

[PETITIONER]

iXxx.. HERE, RESPECTFULLY REQUEST THIS, COURT TO REVIEW &

CONSIDER JUSTICE BRANDEIS' 'DISENTING OPINION IN OLMSTEAD V. UNITED

STATES, (1928), AND NOT ALLOW THE STATE TRIAL COURT TO EXPLOIT

THE GOVERNMENTS DUE PROCESS OUTRAGEOUS MIS-CONDUCT TO SUSTAIN

A CONVICTION.

SCOPE OF PROTECTION AND RIGHTS OF FUGITIVE-DEFENDANTS

IN AN EFFORT TO DETER POLICE MIS-CONDUCT, THE TERM "DUE PROCESS'

WAS EXTENDED.TO BAR THE GOVERNMENT FROM REALIZING DIRECTLY THE FRUITS

OF ITS OWN DELIBERATE AND UNNECESSARY LAWLESSNESS IN BRINGING THE

ACCUSED TO TRIAL..

20.

THE REQUIREMENT OF DUE PROCESS IN OBTAINING A CONVICTION EXTENDS

TO THE PRETRIAL CONDUCT OF LAW ENFORCEMENTAUTHORITIES.

WHEN AN ACCUSED IS KIDNAPPED AND FORCIBLY BROUGHT WITHIN THE JURISDICTION, THE COURT'S AQUISTION OF POWER OVER HIS PERSON REPRESENTS THE FRUITS OF THE GOVERNMENT'S EXPLOITATION OF ITS OWN MISCONDUCT. HAVING UNLAWFULLY SEIZED THE DEFENDANT IN VIOLATION OF

U.S. CONST. AMEND. IV, WHICH GUARANTEES THE RIGHT OF THE PEOPLE

BE SECURE IN THEIR PERSONS AGAINST UNREASONABLE SEIZURES, THE GOVERNMENT SHOULD AS A MATTER OF FUNDAMENTAL FAIRNESS BE OBLIGATED

RETURN HIM TO HIS STATUS QUO ANTE.

AN ILLEGAL ARREST CONSTITUTES A SEIZURE OF THE PERSON IN'-VIOLA

TION

OF U.S. CONST. AMEND. Iv.

THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT VIEWS

DUE PROCESS AS REQUIRING A COURT TO DIVEST ITSELF OF JURISDICTION

OVER THE PERSON OF A DEFENDANT WHERE IT HAS BEEN AQUIRED AS THE

RESULT OF THE GOVERNMENT'S DELIBERATE, UNNECESSARY, AND UNREASONABLE

INVASION OF THE ACCUSED'S CONSTITUTIONAL RIGHTS.

A FEDERAL APPELLATE COURT POSSESS POWERS NOT AVAILABLE TO A FEDERA

COURT REVIEWING A STATE TRIBUNAL'S RESOLUTION OF CONSTITUTIONAL

ISSUES. THIS POWER MAY LEGITIMATELY BE USED TO PREVENT DISTRICT

OR STATE COURTS FROM THEMSELVES BECOMITACCOMPLICES IN WILLFUL

DISOBEDIENCE OF LAW AND MAY BE EXERCISED IN ANY MANNER NECESSARY

TO REMEDY ABUSES OF A DISTRICT OR STATE COURT'S PROCESS.

THE CHARTER OF THE UNITED NATIONS OBLIGATES ALL MEMBERS TO REFRAI

FROM THE THREAT OR USE OF FORCE AGAINST THE TERRITORIAL INTEGR

ITY

OR POLITICAL INDEPENDENDENCE OF ANY STATE. U.N. CHARTER ART. 2 PARA.

THE CHARTER OF THE ORGANIZATION OF AMERICAN STATES PROVID

THAT

THE TERRITORY OF A STATE IS INVIOLABLE; IT MAY NOT BE THEES

OBJECT,

EVEN TEMPORARILY, OF MEASURES OF FORCE TAKEN BY ANOTHER STATE, DIRECT

LY OR INDIRECTLY, ON ANY GROUNDS WHATEVER. O.A.S. (HARTER ART. 17.

ABDUCTIONS BY ONE STATE OF PERSONS LOCATED WITHIN THE TERRITORY

ANOTHER VIOLATE THE TERRITORIAL SOVEREIGNTY OF THE SECOND STATE

AND

ARE REDRESSABLE USUALLY BY THE RETURN OF THE PERSON KIDNAPPED.

THE CONSTRUCTION OF TREATIES IS JUDICIAL IN ITS NATURE AND COURTS

WHEN CALLED UPON TO ACT SHOULD BE CAREFUL TO SEE THAT INTERN

ATIONAL

ENGAGEMENTS ARE FAITHFULLY KEPT AND OBSERVED AND THAT THE EXECUT

IVE

LIVES UP TO THE UNITED STATES' INTERNATIONAL OBLIGATIONS.

18 U.S.C. § 3504 DEFINES AN "UNLAWFUL ACT" AS INCLUDING ANY ACT

IN VIOLATION OF THE UNITED STATES CONSTITUTION.

THE UNITED STATES CONSTITUTION APPLIES TO THE CONDUCT ABROAD OF

AGENTS ACTING ON BEHALF OF THE UNITED STATES.

21.

STANDARD OF REVIEW

WHETHER GOVERNMENT CONDUCT CONSTITUTES A VIOLATION OF DUE

PROCESS IS A QUESTION OF LAW.

UNITED STATES V. BOGART, 783 F2D

1428, 1431 (9TH dR. 1986); AND SEE UNITED STATES V. RUSSELL, 411

US 423, 93 5 CT 1637, 36 L ED 2D 266 (1973).

ALSO PETITIONER'S

ALLEGATIONS IN THE INSTANT CASE ARE GOVERNED NOT BY THE KER-FRISBIE

DOCTRINE, BUT INSTEAD BY THE SUPREME COURT'S DECISION IN COOK V.

UNITED STATES, 288 US 1021 77 L ED 641, 53 S CT 305 (1933), REJECTING

KER V. ILLINOIS AND FRISBIE V. COLLINS.

(2) PETITIONER'S CONVICTIONS WERE OBTAINED PURSUANT TO AN UNKNOWEING, INVALID COERCED WAIVER OF EXTRADITION FROM CALIF. TO

OREGON SUBSEQUENT TO AN UNLAWFUL EXTRADITION FROM CAMBODIA TO THE

UNITED STATES. PETITIONER [EXTRADITEE], REPRESENTED BY COUNSEL,

MARC HENTEL,.ON OCT. 18, 2006, WAS FORCED TO APPEAR IN THE MUNICIPAL

COURT OF CALIF. FOR LOS ANGELES COUNTY FOR AN EXTRADITION HEARING.

EXTRADITEE, LEGALLY BLIND, UNDER DURESS, WAS COERSED AND COMPELLED

TO WAIVE EXTRADITION FROM CALIF. TO OREGON. HE WAS NOT INFORMED OF

HIS EXTRADITION STATUTORY PROTECTIONS AND PROVISION:S1S OR THAT THERE

WAS NO EXTRADITION TREATY BETWEEN THE UNITED STATES AND CAMBODIA

NOR THAT HE SHOULD CHALLENGE HIS EXTRADITION THROUGH A WRIT OF HABEAS

CORPUS AS PROVIDED FOR IN THE UNIFORM CRIMINAL EXTRADITION ACT,

RIGHTS OF ARRESTED PERSON, ORS 133.787; AND THE FEDERAL EXTRADITION

STATUTE, 18 U.S.C. §3182.

THROUGH COERCION, FRAUD, TRICKERY AND

COUNSEL MARC HENTEL GAVE EXTRDITEE MISLEADING ADVICE WITH

TOTAL DISREGARD FOR THE PROPER REMEDY HE SHOULD SEEK, RESULTING

IN INEFFECTIVE ASSISTANCE OF COUNSEL.

22.

STANDARD OF REVIEW

WHETHER A WAIVER OF EXTRADITION IS UNKNOWING AND INVALID IS

A QUESTION OF LAW.

THE UNIFORM CRIMINAL EXTRADITION ACT, RIGHTS

OF ARRESTED PERSON, ORS 133.787; AND THE FEDERAL

EXTRADITION STATUTE,

18 U.S.C. § 3182.

PROSECU(3) PETITIONER'S CONVICTIONS WERE OBTAINED PURSUANT TO

TORIAL DUE PROCESS MIS-CONDUCT. DISTRICT ATTORNEY, BETH HACKERT,

WITHHELD EXCULPATORY EVIDENCE BENEFICIAL TO THE DEFENDANT SUCH AS

THE OFFICE OF INTERNATIONAL AFFIRS, DETAILED EXTRADITION REPORT;

18 PAGES, PRETAININGTO PETITIONER'S EXTRADITION FROM CAMBODIA,

RESULTING IN A "BRADY VIOLATION" AND DENIAL OF COMPLETE DISCOVERY

THE PROSECUTION VIOLATED "THE SPECIALTY DOCTRINE" OF THE FEDERAL

EXTRADITION LAW WHEN PETITIONER [DEFENDANT], WAS PROSECUTED FOR

CRIMES FOR WHICH EXTRADITION FROM CAMBODIA WAS NOT GRANTED.

ATORY IT

DISPITE!HETHER OR NOT -THE WITHHELD EVIDENCE WAS EXCLUP

STILL RESULTED IN PROSECUTORIAL MISCONDUCT. THE DISTRICT ATTORN

FAILED TO INFORM PETITIONER [DEFENDANT], THAT HE HAD BEEN UNLAWFULLY

EXTRADITED AND THAT THERE WAS NO EXTRADITION TREATY BETWEEN THE

UNITED STATES AND CAMBODIA. THE COURTS OF THIS COUNTRY, IN DEALING

WITH CASES BROUGHT ..:.BEFORE THEM NO• LONGER COMPLETELY DISREGARD THE

BEHAVIOR OF OUR POLICE AGENTS 'WHEN THEY ARE OPERATING OUTSIDE OF

THE NATIONAL BOUNDARIES.

STANDARD OF REVIEW

WHETHER THE PROSECUTION COMMITTED A "BRADY VIOLATION" AND OR

ND,

PROSECUTORIAL MISCONDUCT IS A QUESTION OF LAW. SEE BRADY V. MARYLA

397 US 742 (1970); KYLES V. WHITLEY 514 US 419 (1995); AND UNITED

STATES V RAUSCHER (1886), 119 US 407, 30 L. ED. 425.

DISTRICT ATTORNEY, BETH HACKERT KNEW ABOUTUCH EVIDENCE5R NOT OR...

9 AND A "BRADY" VIOLATION.

23.

(4) (5) (6) COMBINED SUMMARY OF ARGUMENT AND STANDARD OF REVIEW

PETITIONER, PRO SE, ALLEGES THAT HIS CONVICTIONS AND SENTENCES

FOR HIS CHARGES WAS AND IS ILLEGAL AND IN VIOLATION OF ORS 138.530

ART. 1 SEC. 11 & 12 OF THE OREGON CONSTITUTION; THE 4TH, 5TH, 6TH,

ATH AMENDMENTS TO THE U.S. CONSTITUTION, INCLUDING THE DUE PROCESS

CLAUSE, MADE APPLICABLE TO THE STATES THROUGH THE 14TH AMEND. TO

-THE U.S. CONSTITUTION BECAUSE HE WAS DENIED THE EFFECTIVE ASSISTANCE

OF COUNSEL AS SET FORTH BELOW:

(4) PETITIONER [EXTRADITEE'S], COUNSEL, MARC HENTEL, IN THE

MUNICIPAL COURT OF CALIF. FOR LOS ANGELES COUNTY, FOR AN EXTRADITION

HEARING WAS INEFFECTIVE BY ADVISING PETITIONER, [EXTRADITEE], TO

WAIVE EXTRADITION TO OREGON, FAILED TO INFORM HIM OF HIS EXTRADITION

STATUTORY PROVISIONS, AND INFORM HIM THERE WAS NO EXTRADITION TREATY

BETWEEN THE U.S. AND CAMBODIA. COUNSEL'S INEFFECTIVENESS HAD A

TENDENCY TO AFFECT THE OUTCOME OF PETITIONER'S CRIMINAL TRIAL IN

AN UNCONSTITUTIONAL MANNER.

(5) PETITIONER'S TRIAL COUNSEL, ANDREW VANDERGAW, WAS INEFFECTIVE

IN A CONSTITUTIONAL SENCE AS SET. FORTH BELOW:

COUNSEL FAILED TO ARGUE THAT PETITIONER'S CHARGES BE DISMISSED

BECAUSE HIS PRESENCE IN OREGON FOR PROSECUTION WAS THE RESULT OF

ILLEGAL CONDUCT BY GOVERNMENT AGENTS, FAILED TO OBJECT WHEN ASTATES

OFFICER WITNESS VOUCHED FOR THE TRUTHFULNESS OF THE ALLEGED VICTIM,

DISTRICT ATTORNEY COMMITTED PROSECUTORIAL MISCONDUCT, THE COURT

LACKED JURISDICTION, WAIVER QZ EXTRADITION TO OREGON WAS COERCEDUNKNOWING AND INVALID, VIOLATION OF THE SPECIALTY DOCTRINE, SUPREESSION OF EVIDENCE BY THE PROSECUTION AND U.S. DOJ (THE OFFICE OF

24.

INTERNATIONAL AFFAIRS DETAILED EXTRADITION REPORT ON EXTRADITION

FROM CAMBODIA), TORTURE OF PETITIONER BY U.S. GOVERNMENT AGENTS,

IN CAMBODIA PRIOR TO ABDUCTION AND KIDNAPPING, UNCONSTITUTIONAL

CONSECUTIVE SENTENCES ON COUNT 2 & 4, NO.EMTRAPMENT DEFENSE AND

VIOLATION OF THE 4TH AMEND. TO THE U.S. CONSTITUTION RELATING TO

UNLAWFUL ARREST AND SEIZURE BY THE U.S. MARSHALS SERVICE.

(6) PETITIONER'S APPELLATE COUNSEL, MARY SHANNON STORY, WAS

INEFFECTIVE IN A CONSTITUTIONAL SENCE AS SET FORTH BELOW:

APPELLATE COUNSEL FAILED TO ARGUE IMPROPER VOUCHING TESTIMONY

OF A STATE'S OFFICER WITNESS; TRIAL COURT LACKED JURISDICTION;

PROSECUTORIAL MISCONDUCT; VIOLATION OF THE SPECIALTY DOCTRINE;..

SUPRESSION OF EVIDENCL (OFFICE OF.. INTERNATIONAL AFFAIRS EXTRADITION

REPORT PRETAINING TO PETITIONER'S EXTRADITION FROM CAMBODIA).

CALIF. EXTRADITION HEARING COUNSEL, COUNSEL AT TRIAL LEVEL

AND APPELLATE COUNSEL FELL BELOW A REASONABLE STANDARD, TO THE

PREJUDICE OF PETITIONER UNDER THE SIXTH AND 14TH AMEND. TO THE U.S.

CONSTITUTION,. AND UNDER ART. 1, SEC. 11 & 12 OF THE OREGON CONSTITUTION. THE LOWER COURTS ERRED IN DENYING RELIEF. 10

STANDARD OF REVIEW

gfflTHER

THERE WAS INEFFECTIVE ASSISTANCE OF COUNSEL IS A QUESTION

OF LAW. SEE STRICKLAND V. WASHINGTON, 466 Us 668, 687-88, 104 S

CT 2052, 80 L ED 2D 674 (1984); STEVENS V. STATE OF OREGON, 322 OR

101, 108, 902 P2D 1137 (1995); AIKENS V. MAASS, 122 OR APP 321, 324,

858 P2D 148 (1993), rev den 318 OR 350 (1994).

BOTH TRIAL AND DIRECT APPELLATE COUNSEL'S INEFFECTIVENESS HAD

A TENDENCY TO AFFECT THE OUT COME OF THE TRIAL AND DIRECT APPEAL,

25.

(7) PETITIONER'S CONVICTIONS WERE OBTAINED AS A RESULT OF

THE U.S. GOVERNMENT'S AGENTS UNLAWFUL OUTRAGEOUS DUE PROCESS MISCONDUCT WHEN ITS AGENTS ENGAGED IN ILLEGAL--ARRESTING--ASSULTING-BATTERING__TORTURING__ABDUCTING--KIDNAPPING--IMPRISONING AND

UNLAWFULLY EXTRADITIION OF HIS PERSON FROM CAMBODIA TO THE UNITED

STATES ON OCT. 13, 2006 DISPITE THE FACT THERE IS NO EXTRADITION

TREATY BETWEEN THE UNITED STATES AND CAMBODIA. THERE IS NO EVIDENCE

TO THE CONTRARY. THEREFORE, BRING PETITIONER BEFORE THE COURT FOR

PROSECUTION IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS. THUS RESUTING

IN A VIOLATION OF THE "McNABB MALLORY RULE", .SUCH AS "TRIALS WHICH

SENCE

THEY "DEBASE THE PROCESSES OF JUSTICE." SEE McNABB V. UNITED 9TATES,

318 Us 332, 87 L ED 819, 63 S CT 608 (1943).

WHERE THE U.S. GOVERNMENTENGAGES IN THE VIOLATION OF A TREATY

OR KIDNAPPING TO BRING A FUGITIVE TO THE UNITED STATES FOR PROSECUTION

IN VIOLATION OF THE DUE PROCESS CLAUSE, , SUCH AS IN THE INSTANT CASE,

THE COURTS ARE DEPRIVED OF JURISDICTION AND THE CASE SHOULD BE DISNISSED.

STANDARD OF REVIEW

W&ETHER CONVICTION OF THE ACCUSED IS THE RESULT OF THE GOVERNMENT

OR ITS AGENTS UNLAWFUL DUE PROCESS MISCONDUCT IS A QUESTION OF LAW.

SEE MCNABB V. UNITED STATES, 318 US 322, 87 L ED 819, 63 S CT 608

(1943); SEE HOGAN & SNEE, THE MCNABB MALLORY RULE: ITS RISE, RATIONALE

AND RESCUE, 47 GEO. L. J. 29, 32 (1952); SEE SCOTT., CRIMINAL JURISDICTION OF A STATE OVER A DEFENDANT BASED UPON PRESENCE SECURED BY

FORCE OR FRAUD, 37 MINN. L REV 91, 102, 107 (1953); AND GRISWOLD,

THE DUE PROCESS REVOLUTION & CONFRONTATION, 199 U PA L REV 711 (1971).

(8) PETIT

(COMBINED SUMMARY OF ARGUMENT WITH GROUND (1) & (3).

SSION

IONER'S CONVICTIONS WERE OBTAINED AS A RESULT OF SUPRE

THERE WAS

OF EVIDENCE BENIFICAL TO THE DEFENDANT [PETITIONER].

N, SUCH AS

SUPPRESSION OFVDDEMCE BY THE U.S. DOJ AND THE PROSECUTIO

N REPORT;

THE OFFICE OF INTERNATIONAL AFFAIRS, DETAILED EXTRADITIO

N FROM CAMBODIA

18 PAGES, RELATED TO PETITIONER'S UNLAWFUL EXTRADITIO

ASSIST

ON OCT. 13, 2006. THE FOREGOING WITHHELD RECORDS WOULD

T, SEIZURE,

PETITIONER IN PROVING HIS ALLEGATIONS OF UNLAWFUL ARRES

BY THE U.S.

ABDUCTION AND KIDNAPPING OF HIS PERSON FROM CAMBODIA

MARSHALS AT THE BEHEST OF THE U.S. GOVERNMENT.

• STAMDARD

OF REVIEW

GH SUPRESSION

WHETHER PETITIONER'S CONVICTIONS WERE OBTAINED THROU

DUE PROCESS

OF EVIDENCE IS A QUESTION OF LAW. SEE 6TH AMEND., AND

VERY AND

CLAUSE OF THE 14TH AMEND., WHICH GUARANTEES COMPLETE DISCO

TY. SEE

DUE PROCESS TO THE ACCUSED BEFORE DEPRIVATION OF LIBER

S CT 564 (1928);

OMSTE1.D)V. UNITED STATES, 277 US 438, 72 LED 944, 48

dR. 1973).

AND UNITED STATES V. ARCHER, 486 F 2D 670, 674-75, (2ND

LACK

COURT'S

PETITIONER WAS PROSECUTED AND CONVICTED DISPITE THE

FORCIBLY

OF JURISDICTION. WHERE THE PETITIONER [DEFENDANT], WAS

PROSECUTED

AND UNLAWFULLY BROUGHT BEFORE THE COURT, THERE TO BE

SS CLAUSE,

FOR THE COMMISSION OF A CRIMINAL OFFENCE, .THE DUE PROCE

ATES THE

NOT ONLY, DEPRIVES THE COURTS OF JURISDICTION, IT OBLIG

PERSON OF A

COURTS TO DIVEST THEMSELVES OF JURISDICTION OVER THE

WFUL ACTS" BY U.S.

DEFENDANT OREM HIS PRESENCE IS PROCURED BY "UNLA

SUPERVISORY

GOVERNMENT AGENTS, SUCH AS IN THE INSTANT CASE. THE

POWER OVER THE ADMINISTRATION OF CRIMINAL JUSTCE IN

THE DISTRICT

NCE THROUGH DENIAL

THE LOWER COURTS CONTINUED TO SUPRESS THIS EVIDE

OF PETITIONER'S MOTION FOR AN INCAMERA REVIE

27.

BE USED IN ANY

COURTS WITHIN ITS JURISDICTION MAY LEGITIMATELY

TS PROCESS AND TO

MANNER NECESSARY TO REMEDY AN ABUSE OF A COUR

ICES IN WILLFUL DISPREVENT THEY THEMSELVES FROM BECOMING "ACCOMPL

EXPRESSED ITS OPINION

OBEDIENCE OF LAW". THE U.S. SUPREME COURT

DEGRADED WHERE IT IS

THAT A COURT'S CRIMINAL PROCESS IS ABUSED AND

INTO THE TERRITORY OF

EXECUTED AGAINST A DEFENDANT WHO IS BROUGHT

THE PETITIONER IN THE

THE UNITED STATES BY THE METHODS ALLEGED BY

GRANTED TO AVOID A

INSTANT CASE. HABEAS CORPUS RELIEF MUST BE

MISCARAGE OF JUSTICES INCLUDING PETITION FOR WRIT OF CERTIORARI.

STANDARD OF REVIEW

LAW. SEE

A COURT LACKS JURISDICTION IS A QUESTION OF

LEXIS 8616;

ES V. TOSCANINO, 500F 2D 267, 1974 US APP.

," WHETHER

UNITED STAT

ATION, 119 U PA L

GRISWOLD, THE DUE PROCESS REVOLUTION AND CONFRONT

[PITLER]

"THE FRUIT OF THE POISONOUS TREE",

711 (1971); SEE-E.G.,

REV

REVISITED AND SRERPARADIZED, 56, CALIF. L REV.

579, 600 (1968); SEE

E OVER A DEFENDANT BASED

SCOTT, CRIMINAL JURISDICTION OF A STAT

UPON PRESENCE SECURED BY FORCE OR FRAUD,

37 MINN. L REV 91, 102,

, 783 F2D 1428 (9TH CIR (1986);

107 (1953); UNITED STATES V. BOGART

IONALE AND

ITS RISE, RAT

AND HOGAN & SNEE, THE MCNABB-MALLORY RULE:

RESCUE, 47 GEO. L.J. 29, 32 (1952).

SUMMARY OF ARGUMENTS (CONT)

(10) PETITIONER'S CONVICTIONS

WERE OBTAINED THROUGH A VIOLATION

THE FEDERAL EXTRADITION LAW. SUCH

OF "THE SPECIALTY DOCTRINE" OF

NT], WAS PROSECUTED

A VIOLATION OCCURED WHEN PETITIONER, [DEFENDA

WAS NOT GRANTED. THE

FOR CRIMES WHICH EXTRADITION FROM CAMBODIA

OF, IN THE ABSENCE OF

"SPECIALTY DACTRINE" IS APPLICABLE OUTSIDE

OR WITHIN AN EXTRADITION TREATY, UNDER A PRIN

28.

CIPLE SUCH AS INTER-

NATIONAL COMITY. THERE IS NO EXTRADITION TREATY BETWEEN THE U.S.

AND CAMBODIA, WHICH INVOLVES THE INSTANT CASE. THE DOCTRINE IS

DESIGNED TO ENSURE AGAINST A REQUESTING STATE BREACH OF TRUST AND

TO AVOID PROSECUTORIAL ABUSE. THE UNITED STATES RECOGNIZES THE

SPECIALTY DOCTRINE THROUGH ITS JURISPRUDENCE, TREATY PRACTICE, AND

NATIONAL LEGISLATION. THE U.S. SUPREME COURT INCORPERATED THE

DOCTRINE INTO LAW IN 1886, BY DECISION IN RAUSCHER AND IT HAS A

BASIS INDEPENDENT OF TREATIES. THE U.S. SUPREME COURT INDICATED

THAT BECAUSE THE DOCTRINE WAS THE SUPREME LAW OF THE LAND, IT WAS

TO BE OBSERVED BY ALL COURTS, STATE AND FEDERAL.

STANDARD OF REVIEW

WIETHER THERE IS A VIOLATION OF THE SPECIALTY DOCTRINE IS A

QUESTION OF LAW. SEE PEOPLE V. LIEBOWITZ, 140 MISC. 2D 820, 531

N. Y. A. 2D 719 (COUNTY COURT 1988); AND UNITED STATES V. RAUSCUER,

119 Us 407, 30 L ED 425 (1886).

SUMMARY OF ARGUMENT

PART A(11) UNCONSTITUTIONAL CONSECUTIVE SENTENCES ON COUNT 2 AND 4.

PETITIONER RELIES ON JUSTICE SCALIA'S DESEN' IN OREGON V. ICE, US_

129 S CT 711, 720-23, 172 L ED 2D 517 (2009). AS J. SCALIA STATED:

"THE RULE OF APPRENDI V. NEW JERSEY, 530 US 566, 120,S CT 2348,

147 L ED 2D 435 (2000), IS CLEAR: ANY FACT-OTHER THAN THAT OF A

PRIOR CONVICTION THAT INCREASES THE MAXIMUM PUNISHMENT TO WHICH A

DEFENDANT MAY BE SENTENCED MUST BE ADMITTED BY THE DEFENDANT OR

PROVED BEYOND A REASONABLE DOUBT TO A JURY. OREGON'S SENTENCING

SCHEME ALLOWS JUDGES RATHER THAN JURIES TO FIND THE FACTS, NECESSARY

TO COMMIT DEFENDANTS TO LONGER PRISON SENTENCES, AND THUS DIRECTLY

CONTRADICTS WHAT WE HELD EIGHT, YEARS AGO AND HAVE REAFFIRMED SEVERAL

TIMES SINCE, THE COURT'S JUSTIFICATION OF OREGON'S SCHEME IS A

VIRTUAL COPY OF THE DESENTS IN THOSE CASES".

ID AT 733 (SCALIA, J., DISENTING). JUSTICE SCALIA PROCEEDS TO

WALK THROUTH THE VARIOUS ARGUMENTS AND JUSTIFICATIONS IN THE MAJOR112

PETITIONER IS AWARE THE U.S. SUPREME COURT MADE AN AERERRUGOON

THIS ISSUE, BUT URGES THIS COURT TO RECONSIDER AND REVERSE ITSELF.

29.

ITY OPINION AND SHOW HOW EACH OF THEM IS DIRECTLY CONTRADICTORY TO

AND HAS BEEN RFECTED BY, PRIOR CASE LAW. HE CONCLUDES:

"IF THE DOUBLING OR TRIPLING OF A DEFENDANT'S JAIL TIME THROUGH

FACT—DEPENDANT CONSECUTIVE SENTENCING DOES NOT MEET [THE MAJORITY'S

DESCRIPTION OF THE APPRENDI RULE], NOTHING DOES. A DISTINCTION

WITHOUT A DEFERENCE, AND ITS REPEATED EXHUMATION OF ARGUMENTS DEAD

AND BURIED BY PRIOR CASES, SEEMS TO ME THE EPITOME OF THE OPPOITE.

TODAY'S OPINION MUDDIES THE WATERS AND GIVES CAUSE TO DOUBT WHETHER

THE COURT IS WILLING TO STAND BY APPRENDI'S INTERPRETATION OF THE

SIXTH AMENDMENT'S JURY—TRIAL GUARANTEE".

ID AT 733 (SCALIA, J., DISENTING).

FOR ALL OF THE REASONS STATED IN JUSTICE SCALIA'S DISSENTING

OPINION, THE UNITED STATES SUPREME COURT'S OPINION IN ICE WAS

WRONGLY DECIDED. THEREFORE, AT THE VERY LEAST PETITIONER SHOULD

BE REMANDED FOR RESENTENCING.

PART B (11)IN ADDITION, ACCORDING TO OR. REV. STAT. § 161.062(1),

CONVICTION AND SENTENCING ON COUNT 2 SHOULD HAVE MERGED WITH COUNT

1: THE CRIMINAL OFFENCE OF COUNT 1 & 2 WERE THE IDENTICAL VIOLATION

OF THE SAME STATUTORY PROVISION. COUNT 2 DID NOT CAUSE OR CREATE

A RISK OF CAUSING GREATER OR QUALITATIVELY DIFERENT LOSS, INJURY

OR HARM. COUNT 2 DID NOT REQUIRE PROOF OF AN ELEMENT DIFERENT THAN

COUNT 1. THERE ARE ONLY AS MANY SEPARRATELY PUNISHABLE OFFENCE

AS THERE ARE SEPARATE STATUTORY VIOATIONS. SEE STATE V. CROTSLEY,

272, 278, 779 P 2D 600 (1989). IN THE INSTANT CASE, THE TRIAL COURT

ERRED IN IMPOSING A CONSECUTIVE SENTENCE ON COUNT 2 OF 100 MONTHS.

SEE STATE V. BARRETT, 153 ORE. APP. 621, 958 P 2D 315 (1998) ORE.

APP. LEXIS 581.

STANDARD OF REVIEW

PART 4,WRETHER THE IMPOSSION OF QONCECUTIVE SENTENCES IS UNCONSTITU—

TIONAL IS A QUESTION OF LAW. SEE APPRENDI V. NEW JERSEY, 530 US

clip

466, 120 S CT 2348, 147 L ED 2D 435 (2000) AND BLAKELY V. WASHINGTON,

542 Us 296, 124 S CT 2531, 159 L ED 2D 403 (2004).

SUMMARY OF ARGUMENT

(12) AT PETITIONER'S TRIAL THERE WAS UNCONSTITUTIONAL IMPROPER

"VOUCHING" TESTIMONY OF A STATES' OFFICER WITNESS. PETITIONER ARGUES

THAT WITHOUT PHYSICAL, FORENSIC, OR DNA EVEDENCE, DET. BEDELL GAVE

IMPERMISSIBILE TESTIMONY WHEN SHE GAVE HER CREDIBILITY BASED OPINION

THAT THE ALLEGED VICTIM KNEW THE DIFFERENCE BETWEEN THE TRUTH AND

A LIE AND THAT THELLEGED VICTIM DEMONSTRATED IT TO HER PERSONAL

SATISFACTION, AND STATED THAT THE ALLEDGED VICTIM DID A PRETTY

GOOD JOB WHEN QUESTIONED BY THE DEFENSE. SEE TRIAL TRANS., P. 141

L. 17-21 AND P. 155 L. 24. THE SUPREME COURT HAS LONG HELD THAT

ONE WITNESS CAN NOT "VOUCH" FOR ANOTHER WITNESS'S BELEAVIBILITY.

SUCH OVERT VOUCHING DID NOT TELL THE JURY ANYTHING IT COULD NOT

HAVE DETERMINED ON ITS OWN. THEREFORE, THE PROBATIVE VALUE OF SUCH

TESTIMONY WAS OUT WEIGHED BY THE DANGER OF UNFAIR PREJUDICIAL EFFECT

ON THE PETITIONER, UNDER OR. EVID. CODE 403.

THE PROBLEM HERE IS THAT THOSE OTHERWISE PERMISSIBLE OF POTENTIALLY PERMISSIBLE PORTIONS OF DET. BEDELL'S TESTIMONY WERE INEXTRICABLY BOUND UP WITH PORTIONS THAT CONSTITUTED CLEAR VOUCHING.

DET. BEDELL'S TESTIJONY CREDIBILITY OPINION, GIVEN THE CERCUMSTANCES,

NECESSARILY WAS BASED ON HER ASSESSMENT OF THE ALLEDGED VICTIM'S

BELIEVIBILITY. WHEN DET. BEDELL WAS GIVING HER TESTIMONY, SHE WAS

INPLICITLY DECLARING WITH EACH STATEMENT AND DESCRIPTION, WHY SHE

HAD FOUND THE VICTIM TO BE CREDIBLE. PERMITING A TRIAL WITNESS TO

VOUCH FOR THE CREDIBILITY OF ANOTHER WITNESS IN SUCH A SITUATION

WOULD INTERFERE WITH THE ABILITY OF THE TRIER OF FACT TO DETERMINE

THE TRUTH OF THE ALLEGATIONS, AND WOULD BE PREJUDICIAL TO THE

DEFENDANT. THE USE OF EXPERT TESTIMONY RESPECTING THE SPECIFIC

QUESTIONS CONCERNING A WITNESS'S QUALIFICATIONS, THE HELPFULNESS

OF THE OPINION, AND THE LIKELIHOOD OF UNDUE CONFUSION OF ISSUES OR

PREJUDICE TO THE OTHER PARTW. SEE GENERALLY DAVID H. KYLE, DAVID

E. PERNSTEIN, AND JENNIFER L. MNOOKIN, THE NEW WICMORE; EXPERT

EVIDENCE § 1.5, 23-25 (2004),

UNDER THE CIRCUMSTANCES, VICTIM'S CREDIBILITY WAS PARMOUNT

AND IN THAT CERCUMSTANCE THIS U.S. SUPREME COURT SHOULD NOT CONCLUDE

THAT THERE WAS "LITTLE LIKELIHOOD" THAT DET. BEDELL'S TESTIMONY

AFFECTED THE VERDICT IN A PREJUDICIAL MANNER. SEE KELLER 315 ORE

AT 285 (SO DEFINING HARMLESSNESS); SEE STATE V. LTJPOLI, 348 ORE.

346; 234 P 3D 117 (2010) ORE LEXIS 388.

THE RESPONDENTS HAVE ARGUED THAT DET. BEDELL'S TESTIMONY WAS

NOT VOUCHING BUT INSTEAD, RELATED TO COMPETENCY OF THE VICTIM WITNESS.

COMPETENCY ISSUES ARE RESTRICTED, ONLY A JUDGE CAN DECIDE cH

ISSUES, WHICH SHOULD NOT BE HEARD BY THE JURY, TO AVOID PREJUDICE.

THUS THE PROBATIVE VALUE OF SUCH TESTIMONY WAS OUT WEIGHED BY

PREJUDICIAL EFFECT ON THE JURY AND AMOUNTS TO CLEAR VOUCHING. DET.

BEDELL'S TESTIMONY WAS BOTH UNNECESSARY AND UNCONSTITUTIONAL AND

HAD A TENDENTCY TO EFFECT THE OUTCOME OF THE JURY'S VERDICT IN AN

UNCONSTITUTIONAL SENSE. THE U.S. DISTRICT COURT SHOULD HAVE GRANTED

PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS AND REVERSED

HE POST-CONVICTION TRIAL COURT AND THE 2CR APPELLATE COURT ON THIS

ISSUE, WITH INSTRUCTIONS TO VACATE PETITIONER'S CONVICTIONS AND

32.

SENTENCES AND REMAND FOR A NEW TRIAL IN THE UNDERLYING CRIMINAL

MATTER, ALTHOUGH CONSIDERING ALL THE ISSUES PRESENTED HERETO, THE

ENTIRE CASE CAN BE DESPOSED OF AND DISMISSED ON DUE PROCESS GROUNDS.

STANDARD OF REVIEW

WHETHER THERE WAS IMPROPER VOUCHING, IN A CONSTITUTIONAL

9190E,fi, IS A QUESTION OF LAW. SEE GENERALLY DAVID H. KYLE, DAVID E.

BERNSTEIN, AND JENNIFER L. MNOOKIN, THE NEW WIGMORE; EXPERT EVIDENCE

§ 1.5, 23-25 (2004) (EXAMINING RLII1E AND ITS RATIONALE); SEE

STATE

V. SOUTHARD, 347 OR 127, 142, 218 P3D 104 (2009); STATE V. LUPOLI,

**(2010)**

348 ORE 346, 234 P 3D 117; 1010 ORE LEXIS 308; STATE V. MIDDLETON,

294 ORE 427, 428, 657 P 2D 1215 (1983); STATE V. BROWN, 297 ORE

404, 687 P 2D 751 (1984). SEE WITNESS VOUCHING--CREDIBILITY BASED

OPINION: STATE V. LEAHY, 190 OR APP 147, 152 (2003); STATE V.

MILDRADT, 305 OR 621, 630 (1988); STATE V. REMME, 173 OR APP 546,

562 (2001).

(13)' PETITIONER WAS DEPRIVED OF LIBERTY WITHOUT DUE PROCESS

VIOLATING THE FOURTH AMENDMENT AND THE DUE PROCESS CLAUSE OF THE

14TH AMENDMENT TO THE UNITED STATES CONSTITUTION, WHILE IN CAMBODIA,

BY THE U.S. MARSHALS SERVICE, fAET1E BEHEST OF THE U.S. GOVERNMENT,

ON OCT. 13, 2006. ARREST WAS MADE WITHOUT SERVICE OF A WARRANT.

SEE CLASSIFIED TO U.S. SUPREME COURT DIGEST, LAWYER'S EDITION.

ARREST §.2WiTHoUTWARRANT. (5) THE REQUIREMENTS OF AN ARREST WITHOUT WARRANT MUST BE STRICTLY ENFORCED, SINCE THE STANDARD SET BY

THE FOURTH AMENDMENT PROTECTS BOTH THE OFFICER AND THE CITIZEN.

FALSE IMPRISONMENT § 2-ARREST WITHOUT WARRANT. (8) THE IMMUNITY OF

OFFICERS MAKING AN ARREST WITHOUT 'WARRANT CANNOT FAIRLY BE ENLARGED

33.

WITHOUT JEOPARDIZING THE PRIVACY OR SECURITY OF THE CITIZEN.

ARREST § 1, 2-WITHOUT WARRANT-TIME. (10) EVEN THOUGH A FORMAL ARREST

IS MADE AT A LATER TIME THE ARREST IS COMPLETED WHEN FEDERAL AGENTS

RESTRICT LIBERTY OF MOVEMENT.

IN THE INSTANT CASE, ARREST WAS COMPLETED WHEN PETITIONER WAS

HANDCUFFED, SHACKLED AND DEPRIVED LIBERTY OF MOVEMENT BY THE U.S.

MARSHALS IN CAMBODIA ON OCT. 13, 2006. SEE HENRY V. UNITED STATES,

361 US 98, 4 L ED 2D 134, 80 S CT 168 (1959).

STANDARD OF REVIEW

WHETHER OR WHEN AN ARREST IS COMPLETE IS A QUESTION OF LAW.

HENY V. UNITED STATES, 361 US 98, 4 L ED 2D 134, 80 S CT 168 (1959).

(14) PETITIONER'S CONVICTIONS WERE OBTAINED PURSUANT TO VIOL13

ATION OF, BUT NOT LIMITED TO, THE EMTRAPMENT RULE, SUCH AS EXCLUSSIONARY RULE, McNABB-MALLORY RULES THE FEDERAL KIDNAPPING ACT, 18

U.S.C. § 1201; U.N. CHARTER, ART 2 PARA 4; O.A.S. CHARTER, ART 17;

THE FEDERAL EXTRADITION STATUTE, 18 U.S.C. § 3182; UNIFORM CRIMINAL

EXTRADITION ACT, RIGHTS. OF ARRESTED PERSON, ORS 13.3.787; THE SPECIALTY

DOCTRINE OF THE FEDERAL EXTRADITION LAW; THE BRADY RULE; 18 U.S.C.

§ 3504;; U.S. CONSTITUTIONAL AMENDMENTS, IV, V, VI, VIII, DUE PROCESS

CLAUSE OF THE XIV AMENDMENT TO THE U.S. CONSTITUTION AND THE OREGON

CONSTITUTION PROVISIONS (INCORPORATING ALL DUE PROCESS OF LAW AND

EQUAL PROTECTION CITATIONS RELATING TO ISSUES RASIED IN THIS PETITION

FOR A WRIT OF CERTIORARI.

STANDARD OF REVIEW

WHETHER CONVICTIONS WERE OBTAINED PURSUANT TO VIOLATIONS OF TFIR

13 FOREGOING IS A QUESTION OF LAW AND REQUIRES REVIEW

IN GROUND (14), ALL ALL RULES, ACTS, CHARTERS, LAWS, STATUTES, AND

• AMENDMENTS TO THE U.S. CONSTITUTION, PRESENTED HAVE BEEN ARGUED

jiQ1 I1IESICITED.

IN THE FOREGOING GROUNDS. Q

iLc2N;IJ

34.

COMBINED ARGUMENT: GROUND FIFTEEN AND SIXTEEN.

WHERE, UNDER STATE LAW CLAIMS OF INEFFECTIVE ASSISTANCE (IA)

OF TRIAL COUNSEL HAD TO BE RAISED IN AN INITIAL-REVIEW COLLATERAL

PROCEEDING (IRCP), A PROSEDURAL DEFAULT WOULD NOT BAR A FEDERAL

HABEAS CORPUS COURT FROM HEARING A SUBSTAINTIAL CLAIM OF IA AT TRIAL

IF, IN THE IRCP, THERE WAS NO COUNSEL OR COUNSEL IN THAT PROCEEDING

WAS INEFFECTIVE. TAKEN FROM THE OVERVIEW SECTION OF MARTINEZ V.

RYAN, 132 S. CT. 1309.

LEXIS NEXIS HEADNOTES, (PARTIAL REVIEW)

TO PROTECT PRISONERS WITH A POTENTIALLY LEGITIMATE CLAIM OF INEFFECTIVE ASSISTANCE (IA) OF TRIAL COUNSEL, IT IS NECESSARY TO MODIFY

THE UNQUALIFIED STATEMENT IN COLEMAN V. THOMPSON, 501 US 722, 111

S. CT. 2548, (182 L. Ed. 2d278) 115 L. Ed. 2d 640., THAT AN ATTORNEY'S IGNORANCE OR INADVERTENCE IN A POSTCONVICTION PROCEEDING DOES

NOT QUALIFY AS CAUSE TO EXCUSE A PROCEDURAL DEFAULT. COLEMAN IS NOW

QUALIFIED BY RECOGNIZING A NARROW EXCEPTION: INADEQUATE ASSISTANCE

OF COUNSEL AT INITIAL-REVIEW COLLATERAL PROCEEDINGS MAY ESTABLISH

CAUSE FOR A PRISONER'S PROCEDURAL DEFAULT OF A CLAIM OF (IA) AT TRIAL.

A PRISONER MAY OBTAIN FEDERAL REVIEW OF A DEFAULTED CLAIM BY SHOWING

CAUSE FOR THE DEFAULT AND PREJUDICE FROM A VIOLATION OF FEDERAL LAW.

PROOF OF CAUSE

AN ATTORNEY'S ERRORS DURING AN APPEAL ON DIRECT REVIEW MAY PROVIDE

CAUSE TO EXCUSE A PROCEDURAL DEFAULT; FOR IF THE ATTORNEY APPOINTED

BY THE STATE TO PURSUE THE DIRECT APPEAL IS INEFFECTIVE THE,

PRISONER HAS BEEN DENIED FAIR PROCESS AND THE OPPROTUNITY TO COMPLY

WITH THE STATE'S PROCEDURES AND OBTAIN AN ADJUDICATION ON THE MERITS OF

HIS CLAIMS. WHEN THE ISSUE CAN NOT BE RAISED ON DIRECT REVIEW,TA

PRISONER ASSERTING AN (IA) OF TRIAL COUNSEL CLAIM IN AN (IRCP) CAN

NOT RELY ON A COURT OPINION OR THE PRIOR WORK OF AN ATTORNEY ADDRESSINGITHATCCDII1. TO PRESENT A CLAIM OF (IA) AT TRIAL IN ACCORDANCE

WITH THE STATE'S PROCEDURES, THEN, A PRISONER LIKELY NEEDS AN

EFFECTIVE ATTORNEY. THE SAME WOULD BE TRUE IF THE STATE DID NOT

APPOINT AN ATTORNEY TO ASSIST THE PRISONER IN THE(IRCP).

115), INEFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL

MICHEAL MAHONY AND (16), (IA) PCR APPELLATE COUNSEL JAMES VARNER.

35.

EFFECTIVE TRIAL COUNSEL PRESERVES CLAIMS TO BE CONSIDERED ON APPEAL,

AND IN FEDERAL HABEAS PROCEEDINGS.

COUNSEL'S INEFFECTIVENESS IN AN (IRCP) QUALIFIES AS CAUSE FOR A

PROCEDURAL DEFAULT.

THE RULES FOR WHEN A PRISONER MAY EXTABLISH;CAUSE TO EXCUSE A PROCEDURAL DEFAULT ARE ELABORATED IN THE EXERCISE OF A COURT'S

DISCREATION. THESE RULES REFLECT AN EQUITABLE JUDGMENT THAT p9slLy

WHERE A PRISONER ISfrMPEDED OR OBSTRUCTED IN COMPLYING WITH THE

STATE' S ESTAEIIISEED(PROCEDURES MILL A FDER. HABEAS CDURT .EXC5SE.

THE PRISONER FROM THE USUAL SANCTION OF DEFAULT. ALLOWING A FEDERAL

HABEAS COURT TO HEAR A CLAIM OF (IA) OF TRIAL COUNSEL WHEN AN

ATTORNEY'S ERRORS (OR THE ABSENCE OF AN ATTORNEY)CAUSED A PROCEDURAL

DEFAULT IN AN (IRCP).AKNOWLEGES, AS AN EQUITABLE MATTER, THAT THE

(IRCP), IF UNDERTAKEN WITHOUT COUNSEL OR WITH INEFFECTIVE COUNSEL,

MAY NOT HAVE BEEN SUFFICIANT TO ENSURE THAT PROPER CONSIDERATION

WAS GIVEN TO-A SUBSTANTIAL CLAIM.

PETITIONER RELIES ON THE FOREGOING AND ADOPTS MARTINEZ V. RYAN,

132 S. CT. 1309;I$TS ENTIRETY,TO CONTINUE COMBINED ARGUMENT ON

HIS CLAIMS OF INEFFECTIVE ASSISTANCE: GROUND FIFTEEN AND SIXTEEN;

AND IN THE INTEREST OF BREVITY OMITS THE SAME HEREIN.

STRICKLAND STANDARD

AS ARGUED ABOVE, BOTH PCR TRIAL COUNSEL AND PCR APPELLATE

COUNSEL WERE INEFFECTIVE UNDER STRICKLAND V. WASHINGTON, 466 US 468

687-88, 104 S. CT. 2052, 80 L. Ed 2d 674 (1984).

BASED ON THE FOREGOING, PETITIONER HAS PROVEN, BY A PREPONDERANCE OF THE EVIDENCE, THAT HIS PCR TRIAL COUNSEL AND HIS PCR APPELLATE

COUNSEL FAILED TO EXERCISE PROFESSIONAL SKILL AND JUDGMENT UNDER

ARTICLE 1, SECTION 11 OF THE OREGON CONSTITUTION AND THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. TO ESTABLISH A VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION, A PETITIONER MUST PROVE THAT COUNSEL'S REPRESENTATION

36.

FELL BELOW AN OBJECTIVE STANDARD OF REASONABLENESS AND THAT COUNSEL'S

[PETITIONER]

PERFORMANCE PREJUDICED THE DEFENSE. BASED ON THE FOREGOING, THE

RECORD CLEARLY ESTABLISHES IN THE INSTANT CASE THAT COUNSEL WAS

CONSTITUTIONALLY INEFFECTIVE. THUS, THIS COURT SHOULD CONCLUDE

THAT THE ERROR HAD "A TENDENCY TO EFFECT THE RESULT OF PETITIONER'S

PCR TRIAL AND HIS PCR APPEAL, INCLUDING BUT NOT LIMITED TO HAVING

AN ADVERSE EFFECT ON PETITIONER'S ABILITY TO RAISE ALL OF HIS

INEFFECTIVE ASSISTANCE OF TRIAL AND DIRECT APPEAL COUNSEL CLAIMS

AS ARGUED ABOVE. STEVENS V. STATE OF OREGON 322 OR 101,108,902 P2d

1137 (1995); AIKENS V. MAASS, 122 OR App 321,324,858 P2d 148 (1993),

rev den 318 OR 350 (1994). COUNSEL AT PCR TRIAL AND PCR APPEAL

LEVEL FELL BELOW A REASONABLE STANDARD, TO THE PREJUDICE OF PETITIONER

UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION, AND UNDER ARTICLE I, SECTION 11 OF THE OREGON

CONSTITUTION. ALTHOUGH, THE POST-CONVICTION RELIEF TRIAL COURT

AND THE POST-CONVICTION RELIEF APPELLATE COURT ERRED IN DENYING

POST-CONVICTION RELIEF, SUCH INEFFECTIVENESS DEMONSTRATES "CAUSE"

AND"PREJUDICE" TO OVERCOME PROCEDURAL DEFAULT IN § 2254 REVIEW.

MARTINEZ V. RYAN, 132 S. CT. 1309, ; AND COLEMAN V. ThOMPSON, 501

US 722, 111 S. CT. 2548, 182 L. Ed. 2d. 640.

37.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

TERRY LRRELL SMITH

Date: DECEMBER 2 0

,2017.

'i:]

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