Petition for Writ of Certiorari — Steven A. DeLoge, Petitioner v. DeSoto County Sheriff's Department, et al.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

STEVEN A. DeLOGE

-

PETITIONER

VS.

DeSOTO COUNTY SHERIFF'S DEPARTMENT, et al.

-

RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF MISSISSIPPI

PETITION FOR WRIT OF CERTIORARI

Steven A. DeLogé, No. 20652

Wyoming Medium Correctional Institution

7076 Rd. 55 F

Torrington, WY 82240-7771

QUESTIONS PRESENTED

WHERE PROPERTY AND EVIDENCE ARE SEIZED IN A STATE

CRIMINAL PROSECUTION AND TRANSFERRED TO ANOTHER STATE

IN VIOLATION OF DISCOVERY ORDERS AND WITHOUT BENEFIT OF

A SEARCH WARRANT SPECIFYING THAT THE EVIDENCE IS TO BE

REMOVED FROM THE JURISDICTION OF THE WARRANT-ISSUING

COURT, DOES IT VIOLATE CONSTITUTIONAL DUE PROCESS AND

EQUAL PROTECTION FOR THE RECEIVING STATE TO REFUSE TO

ALLOW DEFENDANT ACCESS TO THE SEIZED EVIDENCE BY

CLAIMING LAW ENFORCEMENT HAS AN INVESTIGATIVE INTEREST?

LIST OF PARTIES

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:

Steven A. DeLoge

-

Petitioner

DeSoto County Sheriffs Department, Sheriff Bill Rasco, and Lent Rice,

Director of Internal Affairs Respondents

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11

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................................................... H

INDEX TO APPENDICES.................................................................................iv

TABLE OF AUTHORITIES................................................................................v

PETITION FOR WRIT OF CERTIORARI .........................................................1

OPINIONSBELOW ............................................................................................1

JURISDICTION..............................................................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............3

STATEMENT OF THE CASE ............................................................................6

REASONS FOR GRANTING THE PETITION................................................27

CONCLUSION............................................................................................29

111

INDEX TO APPENDICES

APPENDIX A: Decision Of The Court Of Appeals Of The State Of

Mississippi affirming trial court judgment, March 14,

2017 (No. 2015-CP-01590-COA, rehear. den. July 18, 2017)

.....................................................................................App.1

APPENDIX B: Order On Defendants' Joint Motion To Dismiss, in the

DeSoto County Chancery Court, August 25, 2015 (No. 14cv-352) ......................................................................App. 12

APPENDIX C: Disposition Of The Mississippi Supreme Court denying

writ of certiorari review, October 26, 2017 (No. 2015-CT01590-SCT) ...............................................................App. 13

APPENDIX D: Opinion Of The Mississippi Ethics Commission, October

11, 2013 (No. R-13-017) ...........................................App. 23

APPENDIX E: Complaint, Chancery Court of DeSoto County, State of

Mississippi, February 27, 2014 (No.14-cv-352) ......App. 26

APPENDIX F: Motion For Reconsideration Of The Court's Order On

Defendants' Joint Motion To Dismiss, Chancery Court of

DeSoto County, Mississippi, September 8, 2015 (Cause

No. 14-cv-352) ...........................................................App. 43

APPENDIX G: Brief For Appellant, Mississippi Court of Appeals, August

30, 2016 (No. 2015-CP-01590-COA) ........................App. 51

APPENDIX H: Motion For Rehearing, Mississippi Court of Appeals,

March 28, 2017 (No. 2015-CP-01590-COA) ..........App. 107

APPENDIX I:

On Petition For Writ Of Certiorari To The Mississippi

Court Of Appeals, Mississippi Supreme Court, August 10,

2017 (No. 2015-CT-01590-SCT) .............................App. 118

APPENDIX J:

Transcript Of Hearings conducted on May 4th, 2015; June

29th, 2015; and August 24th, 2015. Chancery Court of

DeSoto County, (No.14-cv-352) ............................... App. 129

APPENDIX K: Complaint Exhibits A C, Chancery Court of DeSoto

County, State of Mississippi, February 27, 2014 (No.14-cv352) ..........................................................................App. 191

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iv

TABLE OF AUTHORITIES CITED

Page

Cases

Bowiby v. City of Aberdeen, Miss., 681 F.3d 215 (5th Cir. 2012)....................24

Brady v. Maryland, 373 U.S. 83 (1963) ................................................17, 18, 25

Burger King Corp. v. Rudzewicz, 105 S. Ct. 2174 (1985).................................23

DeLoge v. State, 123 P.3d 573 (Wyo. 2005)........................................................8

DeLoge v. State, 156 P.3d 1004 (Wyo. 2007)......................................................8

DeLoge v. State, 231 P.3d 862 (Wyo. 2010)........................................................8

Franchise Tax Bd., 77 L Ed 2d 420, 103 S Ct 2841(1983) ...............................18

Fuentes v. Shevin, 407 U.S. 67 (1972)..............................................................24

Glass v. City of Philadelphia, 455 F. Supp. 2d 302 (U.S. Dst. Ct. 3rd Cir,

2006) ...............................................................................................................22

Grant v. Cuellar, 59 F.3d 523 (5th Cir. 1995) ..................................................24

Gully v. First Nat. Bank in Meridian, 299 US 109, 81 L Ed 70, 57 5 Ct 96

(1936)..............................................................................................................18

Haskett v. T.S. Dudley Land Co., 649 Fed. App. 492 (5th Cir. 2016) .............24

Herb v. Pitcairn, 324 U.S. 117, 65S. Ct. 459 (1945)..........................................3

Kea v. Keys, 83 So. 3d 399 (Miss. Ct. App. 2011).............................................22

Kyles v. Whitley, 115 S. Ct. 1555 (1995) ....................................................17, 25

Matthias v. Bingley, 906 F.2d 1047 (5th Cir. 1990).........................................15

Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469 (1983)..............................2, 3

n re: DeLoge, et al, No. 14-8065 (10th Cir. Sept. 23, 2014) ...............................8

Newman v. Stuart, 597 So. 2d 609 (Miss. 1992) ..............................................22

Owens v. Book, 809 So.2d 1217 (La. App. 3rd Cir. 2002) ................................15

Pennsylvania v. Richie, 107 S. Ct. 989 (1987)............................................17, 25

People v. Shapiro, 409 N.E.2d 897 (1980) ........................................................13

Redd v. Lambert, 674 F.2d 1032, 982 U.S. App. LEXIS 19584 (5th Cir. 1982)

..............................................................................................18

United States v. Batato, 833 F.3d 413 (4th Cir. 2016).....................................23

Im

United States v. Geller, 560 F. Supp. 1309 (E.D. Pa. 1983) .............................13

Woods v. Nierstheimer, 328 U.S. 211, 66 S. Ct. 996 (1946)...............................2

Statutes

28 U.S.C. § 1257...................................................................................................2

5USC552 ..................................................................................................6, 9' 11

Miss. Code Ann. § 25-6143.................................................................................9

Miss. Code Ann. §25-61-1....................................................................................6

Rules

Mississippi Rules of Civil Procedure, Rule 12......................................15, 19, 26

SupremeCourt Rule 10 .....................................................................................28

United States Constitutional Provisions

FifthAmendment ......................................................................................passim

FourteenthAmendment............................................................................passim

FourthAmendment ...........................................................................3, 12, 13,23

SixthAmendment ...................................................................................... passim

United States Constitution, art. VI, ci. 2....................................................13, 21

vi

IN THE SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a Writ of Certiorari issue to the

Court of Appeals of the State of Mississippi to review the judgment below.

OPINIONS BELOW

The opinion of the Court of Appeals of the State of Mississippi, the

highest state court to review the merits, appears at Appendix A to the

petition and has been designated for publication, but is not yet reported.

The judgment of the DeSoto County Chancery Court appears at

Appendix B to the petition, and is unpublished.

The disposition of the Mississippi Supreme Court denying Writ of

Certiorari discretionary review appears at Appendix C to the petition and is

not yet reported.

JURISDICTION

The judgment below sought to be reviewed was entered on March 14,

2017 by the Mississippi Court of Appeals. A copy of that decision appears at

Appendix A. A petition for rehearing was denied on July 18, 2017. Petitioner

sought review in the Mississippi Supreme Court, the highest court in the

State of Mississippi, and on October 26, 2017 the Mississippi Supreme Court

denied certiorari review. A copy of that decision appears at Appendix C.

An extension of time to file this Petition for Writ of Certiorari was

granted by this Court, to and including March 26, 2018 on January 12, 2018

in Application No. 17 A736.

This Court has jurisdiction to review the decision of the Wyoming

Supreme Court in this case under 28 U.S.C. § 1257 (a), which provides as

follows:

(a) Final judgments or decrees rendered by the highest court of a

State in which a decision could be had, may be reviewed by the

Supreme Court by writ of certiorari where the validity of a

treaty or statute of the United States is drawn into question on

the ground of its being repugnant to the Constitution, treaties,

or laws of the United States, or where any title, right, privilege,

or immunity is specially set up or claimed under the

Constitution or the treaties or statutes of, or any commission

held or authority exercised under, the United States.

28 U.S.C.S. § 1257 (2017).

In its decision below, the Mississippi Court of Appeals did not provide

any statement indicating that its decision denying petitioner's request for

relief rested on state law grounds. This Court has jurisdiction for review of a

state court decision "in the absence of a plain statement that the decision

below rested on an adequate and independent state ground." Michigan v.

Long, 463 U.S. 1032, 1044, 103 S. Ct. 3469, 3478 (1983); Woods v.

Nierstheimèr, 328 U.S. 211, 213, 66 S. Ct. 996, 998 (1946) (Certiorari granted

"because of uncertainty as to whether denial of [Defendant's] petitions rested

on an adequate state ground.")

2

The Mississippi Court of Appeals interpretation of Mississippi state

law cannot be accepted by this Court where it is repugnant to the United

States Constitutional requirement that a citizen will not suffer from

unreasonable seizure of his personal property and papers, that any seizure of

must be based upon supported warrants describing in particularity the

things to be seized, that a citizen charged with a criminal offense shall have

access to the tools to defend himself, and equal protection under the law.

The Mississippi Court of Appeals has erroneously interpreted the

federal Constitution to allow a Mississippi law enforcement agency to

withhold from Petitioner the Wyoming seized property and evidence

necessary to defend himself against the Wyoming charges. This Court will

not allow obscure adjudications by state courts to stand as barriers to a

determination by this Court of the validity under the federal Constitution of

state action. Michigan v. Long, 463 U.S.at 1041.

This Court's power over state court judgments is to correct them to the

extent that they incorrectly adjudge federal rights. Herb v. Pitcairn, 324 U.S.

117, 125-26, 65 S. Ct. 459, 463 (1945).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

FOURTH AMENDMENT. Unreasonable searches and seizures.

The Fourth Amendment to the United States Constitution

guarantees the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons

or things to be seized.

The State of Mississippi has deprived this citizen of his property

by

allowing a Mississippi state law enforcement agency to obtain and

withhold

the fruits of a seizure in the state of Wyoming which did not name

or specify

Mississippi in warrant or affidavit as the intended recipient of the

seizure,

did not specify the things to be seized, and did not establish proba

ble cause to

remove the seized items from the jurisdiction of the Wyoming court.

FIFTH AMENDMENT. Criminal actions Provisions concerning

process of law and just compensation clauses.

-

-

Due

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, [nor be

deprived of life, liberty, or property, without due process of law];

nor shall private property be taken for public use, without just

compensation.

The State of Mississippi has deprived this citizen of due process of

by allowing a Mississippi law enforcement agency to withhold the

law

fruits of a

seizure in Wyoming in direct violation of discovery orders, and withou

t

affording a legal avenue by which to return his seized property to

the

jurisdiction of the court of seizure so that he may utilize it in defens

e of the

Wyoming case. Due process demands that a criminal defendant be

afforded

access to the evidence seized in his case to defend against the charge

s.

11

SIXTH AMENDMENT. Rights of the accused.

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; [to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense].

The State of Mississippi has subverted the confrontation process and

rendered Petitioner's trial and appellate counsel ineffective by allowing a

Mississippi state law enforcement agency to act in collusion with the

Wyoming state criminal prosecution to obtain and withhold evidence in that

state's case, to transfer it beyond the jurisdiction of the warrant-issuing

court, and prevent the Petitioner and his attorneys from accessing the

evidence for use in procuring witnesses and accessing impeachment and

exculpatory evidence which are essential to defend the case.

FOURTEENTH AMENDMENT. Section 1. Citizens of the United States.

All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and

of the State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of

citizens of the United States; [nor shall any State deprive any

person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the law].

The State of Mississippi has deprived Petitioner of Constitutional due

process and equal protection of the laws by applying a state statute which

deprives a citizen of access to his seized property and evidence when that

5

seized property and evidence has been illicitly removed from the jurisdiction

of the court in Wyoming and secured in the state of Mississippi, preventing

Petitioner from using it in the defense of the Wyoming criminal charges.

MISS PUBLIC RECORDS ACT

The Mississippi Public Records act, Miss. Code Ann. §25-61-1 et seq. is

lengthy. References to the Act are found in the Petition Appendices at:

Appendix A: Decision of the MS Court of Appeals (App. 2, 8-9);

Appendix D: Opinion of the MS Ethics Commission (App. 23-25);

Appendix E: Complaint (App. 26, 34, 37, 39-40);

Appendix F: Motion for Reconsideration, p. 5 (App. 47);

Appendix G: Brief for Appellant (App. 56, 62-63, 67, 83-86, 89);

Appendix H: Motion for Rehearing (App. 111-112).

FEDERAL FREEDOM OF INFORMATION AND PRIVACY ACTS

The Federal Freedom of Information and Privacy Acts, 5 USC 552 and

5 USC 552a are lengthy. Reference to the Act are found in the Petition

Appendices:

Appendix E: Complaint (App. 39);

Appendix F: Motion for Reconsideration (App. 47);

Appendix G: Brief for Appellant (App. 63, 83, 89).

STATEMENT OF THE CASE

Petitioner is incarcerated in the state of Wyoming under felony

convictions of second degree sexual assault. He has steadfastly maintained

innocence, that the plea was coerced, that his case involved prosecutorial

misconduct including coercion, witness tampering, withholding of evidence,

and that these acts rendered trial and appellate counsel ineffective.

in

Petitioner's challenges to his conviction in the state and federal courts

have been deficient in that the proof of his claims are contained within the

information and tangible exculpatory and impeachment evidence which the

Wyoming prosecution seized under local warrants, and then immediately

transferred beyond the jurisdiction of the trial court. The Cheyenne Police

Department and the Laramie County, Wyoming prosecutor delivered the

seized items to the FBI, who in turn delivered those items into the custody

and control of Respondents in this case, the Sheriffs Department of DeSoto

County, Mississippi (DCSD).

The Wyoming warrants authorizing the seizures did not specify that

anything was to be removed from the jurisdiction of the warrant-issuing

court. Neither the FBI, nor respondents DCSD were named or participated

in the process of obtaining search warrants in the Wyoming court.

The transfer of the seized items occurred prior to trial, plea, or

conviction, and in direct violation of the Wyoming court's discovery orders.

Petitioner has repeatedly litigated in the Wyoming courts for the

preservation and return of his seized property and evidence, asserting that it

is integral to his post-conviction relief and federal habeas corpus proceedings.

The Wyoming prosecution and DCSD acted in collusion to withhold

information from the defense and the Wyoming court which would reveal the

whereabouts of the seized items. After two Wyoming Supreme Court appeals

remanding the matter back to the trial court for further proceedings, the

7

Wyoming prosecution revealed that it had retained some items, and

transferred other items the to the DCSD in Mississippi. DeLoge v. State, 123

P.3d 573 (Wyo. 2005); DeLoge v. State, 156 P.3d 1004 (Wyo. 2007).

The Wyoming trial court ordered that the prosecution provide an

inventory of the items DCSD held, and in response to the Interim Order the

Wyoming prosecution claimed that DCSD would no longer cooperate with

them. (Appendix K: Complaint, Exhibit A, Attachment 2: State's Motion to

Close Case & attached Letter from District Attorney to DCSD)(App. 197-199).

The Wyoming court then ruled that because the fruits of the searches

had been transferred to Mississippi, the court had no jurisdiction over

Mississippi and no remedy was available. The Wyoming court dismissed the

return of seized property matter. DeLoge v. State, 231 P.3d 862 (Wyo. 2010).

Following review, Petitioner's appellate counsel issued a declaration

that the withheld evidence had prevented counsel from providing effective

assistance of counsel. (Appendix K: Complaint, Exhibit B: Declaration of

Appellate Counsel Tina N. Olson) (App. 217-222).

Petitioner used the newly-discovered evidence of prosecutorial

misconduct of [withholding seized evidence] to petition the Tenth Circuit

Court of Appeals to allow a successive habeas petition. The motion was

inadequately supported due to Petitioner's inability to access the withheld

evidence, and the motion was denied. In re: DeLoge, et al, No. 14-8065 (10th

Cir. Sept. 23, 2014).

8

Petitioner followed up on the revelation that his seized evidence and

property may be in the hands of the DCSD in Mississippi by filing a Freedom

of Information and Privacy Act (FOIPA) claim with the FBI, pursuant to 5

Usc 552 and 5 Usc 552a. This produced a factual basis for Petitioner to

request that DCSD return his seized evidence or reasonable facsimile thereof,

to provide chain of custody information, and to preserve the evidentiary

integrity of the items in their possession for their use in his Wyoming case.

DCSD refused. Petitioner then filed a formal request with the DCSD,

pursuant to the FOIPA' and the Mississippi Public Records Act of 1983

(MPRA), Miss. code Ann. § 25-61-1 et seq.. (Appendix K: complaint

Exhibit A, Attachment 4: Formal Request From DeLoge to DCSD) (App. 201204).

The DSCD refused to comply with the formal MPRA and FOIPA

request without a court order. Petitioner exhausted his administrative

remedies by following the established state procedure of first seeking review

by the Mississippi Ethics commission, pursuant to Miss. code Ann.

§ 25-61-

13 (1)(b). It was the opinion of the Ethics commission that because the

DCSD was a law enforcement agency, it could withhold information as

pertaining to their investigation. (Appendix D: Opinion of the Mississippi

Ethics Commission) (App. 23-25).

Petitioner invoked the FIOPA, 5 Usc 552 and 5 USC 552a in the state court proceedings

because of the involvement of the FBI, a federal agency, working inside the State of

Mississippi and cooperating with the DCSD and the Wyoming prosecution to remove the

seized evidence from the Wyoming court's jurisdiction and deliver it to DCSD.

01

Petitioner then sought recourse in the Mississippi courts by filing

a

Complaint in the DeSoto County Chancery Court, seeking equita

ble and

prospective relief to redress the denial of return of seized property;

the denial

of a Public Records Act Request by a public body; and, an order for

injunctive

relief to preserve his evidence and prevent permanent loss of the

seized

items. Petitioner's complaint and related filings in the chancery court

claims against DCSD for denying Petitioner access to exculpatory

raised

and

impeachment evidence in the Wyoming case, preventing a defend

ant access

to the defense of his case, depriving a citizen of his lawful possessions,

subverting his Due Process and Equal Protection rights under the

and

Fifth and

Fourteenth Amendments to the United States Constitution. (Appe

ndix E:

Complaint)(App. 26-41).

In the Chancery Court proceedings, an In Camera Review Hearin

g was

conducted wherein the Chancellor found that the Wyoming prosec

ution had

likely "dumped" the seized items on Mississippi to subvert the discov

ery

process in the Wyoming criminal trial (App.164-165, 171-172); that

DSCD

had retained the items in their possession for years but had not catalo

ged

them (App. 145-146, 164); had allowed items to become water damag

ed and

molded (App. 158, 162); had given items away to non-law enforcement

parties (App. 183); and, that DCSD had even marked boxes of items

disposal (App. 184). Regardless of this unconventional treatment

10

third

for

of what

was alleged to be evidence in an open investigation, DCSD asserted that the

items were relevant to their local investigation and nothing should be

returned to Petitioner or his Wyoming lawyer. (Appendix J: Transcript of

Hearings held in the Chancery Court)(App. 129-189).

The Chancery Court dismissed the Complaint. (Appendix B: Order

On Defendants' Joint Motion to Dismiss)(App. 12).

Petitioner filed a Motion for Reconsideration in the Chancery Court,

asserting that the decision failed to address Petitioner's claims made

pursuant to the MPRA, Miss. Code Ann. § 25-61-1 et seq.; the FOIPA, 5 USC

552 and 5 USC 552a; the Due Process Clause of the United States

Constitution; and, that .allowing DCSD to continue to withhold the fruits of

the Wyoming searches from Petitioner and his Wyoming lawyer denies

Petitioner Constitutional due process. (Appendix F: Motion For

Reconsideration) (App. 47).

Petitioner's Motion for Reconsideration asserted that the Chancery

Court's dismissal of the Complaint failed to address the declaratory and

injunctive relief requested by Petitioner including: a determination of which

records or information may be released in any reasonable format including

redacted sections; an Order instructing DCSD not destroy, dispose of,

transfer, or take any action which may render the seized property

permanently unavailable to Petitioner; and, an Order to provide Petitioner

with a full inventory of the withheld items including chain of custody and

11,

current status. (Appendix F: Motion For Reconsideration)(App. 48).

The Chancery Court denied the Motion for Reconsideration without

opinion on September 15, 2015. Petitioner appealed to the Mississippi Court

of Appeals, asserting that the chancery court had erred in failing to rule on

the merits of his claims that DCSD's withholding of access to seized property

and evidence removed from the jurisdiction of the Wyoming court has

deprived Petitioner of specific rights guaranteed by the Fourth, Fifth, Sixth,

and Fourteenth Amendments to the United States Constitution, and that the

chancery court erred in failing to rule on Petitioner's request for declaratory

and injunctive relief. (Appendix G: Brief For Appellant)(App. 51-106).

The Mississippi Court of Appeals affirmed the Chancery Court's

dismissal of the Complaint. (Appendix A: Decision of the Court of

Appeals)(App. 1-11).

Petitioner filed a timely Motion for Rehearing in the Mississippi Court

of Appeals asserting that: the Court of Appeals had overlooked legal error in

Chancery Court proceedings and the facts Petitioner had submitted in

support; and, that the Court of Appeals interpretation of Petitioner's claims

were a misapplication of the state and federal laws and statutes invoked in

the Complaint and related filings. (Appendix H: Motion for Rehearing)(App.

107-117).

Petitioner's Complaint sued for equitable and prospective relief to

redress the denial of return of seized property and evidence; the denial of a

12

Public Records Act Request by a public body pursuant to MPRA, § 25-61-1 et

seq. and the FOIPA Act, 5 U.S.C. 552 (a); the denial of a citizen's right to

personal property and due process of law as guaranteed by the United States

Constitution; and additionally, the Complaint sought an order mandating

specific action by the public body and/or injunctive relief. Petitioner asserted

that the Court of Appeals overlooked or misapprehended these claims.

(Appendix H: Motion For Rehearing)(App. 112).

Petitioner asserted in the Court of Appeals that his rights to access his

seized evidence and personal items are found in the Supremacy Clause of the

United States Constitution, which supersedes Mississippi law. United States

Constitution, art. VI, ci. 2; People v. Shapiro, 409 N.E.2d 897, 906 (1980).

"Title III.

.

.

and the Fourth Amendment to the United States Constitution

establish the outer limits of any intrusion into the protected privacy area.

United States v. Geller, 560 F. Supp. 1309, 1312 (E.D. Pa. 1983), affd 745

F.2d 49 (3d Cir.), cert. denied, 469 U.S. 1109, 105 S. Ct. 786, 83 L. Ed. 2d

780 (1985). (Appendix H: Motion For Rehearing)(App. 112).

The Mississippi Court of Appeals ruled that Petitioner's Constitutional

rights were not violated by DCSD's retention of his seized items because they

were seized under a search warrant issued in Wyoming and transferred to

DCSD "only at the close of the Wyoming case" against him. This finding is

factually inaccurate. (Appendix A: Court Of Appeals Decision)(App. 9, ¶20)

Petitioner's Motion for Rehearing pointed out that the Court of

13

Appeals misapprehended the facts which he had presented to the Chancery

Court, and also raised in his Appeal Brief. Petitioner was arrested in

Wyoming on November 3, 1999, and sentenced on December 1, 2000.

Petitioner's Complaint and attachments thereto, and the Appeal Brief filed

in the Court of Appeals, clearly assert and document that the transfer was

done prior to trial, plea, sentencing, or direct appeal:

Appendix E: Complaint (App. 34, T 33);

Appendix G: Brief for Appellant (App. 57, 59-60, 78-79, 84);

Appendix H: Motion for Rehearing (App. 113);

Appendix K: Complaint Exhibit A, Attachment 6: Cover Letter from

DCSD and 4 pg. s of FBI Property Evidence Sheets showing transfer to

DCSI in November and December of 1999, and January of 2000 (App.

207-211);

Appendix K: Complaint Exhibit A (App. 194).

DCSD also attests to this fact during the In Camera Hearing, referring

to having received the items from the FBI in 1999. (Appendix J: Transcript)

(App. 143, 152, 157).

Petitioner had asserted and documented in his Complaint and related

filings that the items in question were seized and transferred to Mississippi

prior to conviction in the Wyoming case, and in direct contempt of the

warrant-issuing court's Discovery Orders instructing that the items be

returned to the jurisdiction of the court, and access to defense counsel

provided. Had the transfer occurred only after conviction, there would have

been no such discovery orders issued by the trial court. (Appendix G: Brief

for Appellant)(App. 59-60, 79, 84)

Petitioner also presented an Affidavit from Tina N. Olson, counsel on

14

direct appeal in the Wyoming case, declaring that the deprivation of access to

the evidence withheld by DCSD had undermined both trial and appellate

counsel, and continued to hinder Petitioner in his post-conviction attempts to

present his evidence in that case. (Appendix K: Complaint Exhibit B:

Declaration of Appellate Counsel) (App. 218-223)

The Mississippi Court of Appeals finding that the Wyoming evidence

was received by DCSD after Petitioner's conviction became final is patently

wrong, and affirming the Chancery Court's dismissal of the Complaint based

upon this finding denies Petitioner Constitutional due process.

Petitioner's Appeal Brief and Motion for Rehearing asserted that

pursuant to Respondents' M.R.C.P. Rule 12 (b) motion to dismiss, he was not

afforded the requirement that the facts presented in his Complaint be treated

as true by the Chancery Court and the Court of Appeals, and this deprived

the proceedings of Constitutional due process. (Appendix H: Motion For

Rehearing)(App. 113).

Petitioner's Appeal Brief and Motion for Rehearing asserted that the

owner of the property, in fact, is entitled to request return of his property,

and this is true even where the owner has never been prosecuted or convicted

of any offense. Owens v. Book, 809 So.2d 1217 (La. App. 3rd Cir. 2002).

Where the government permanently deprives petitioner of his even lawfully

seized personal belongings, petitioner's due process property interest is

implicated. Matthias v. Bingley, 906 F.2d 1047, 1050 (5th Cir. 1990).

15

(Appendix H: Motion For Rehearing)(App. 113).

Petitioner's Appeal Brief and Motion for Rehearing asserted that the

failure of the Chancery Court to afford him opportunity to be heard before

dismissing his complaint at the hearing on DCSD's motion to dismiss violated

his Constitutional right to substantive and procedural due process of law.

(Appendix G: Brief for Appellant)(App. 98-101); (Appendix H: Motion for

Rehearing) (App. 114)

Petitioner's Appeal Brief and Motion for Rehearing asserted that his

Confrontation Clause claim pertained to the totality of DCSD's continuous

acts of withholding the seized evidence from the Wyoming court and from

Petitioner because it undermined trial counsel, undermined appellate

counsel, and prejudiced Petitioner in his post-conviction attempts to litigate

his innocence. Petitioner asserted that this deprivation continues to date,

and constitutes an egregious violation of his Sixth Amendment rights to a

fair trial, to access evidence for confrontation and impeachment of witnesses

against him and compulsory process to locate witnesses for his defense, and

to have effective assistance of trial and appellate counsel. (Appendix G:

Brief for Appellant)(App. 99); (Appendix H: Motion for Rehearing)(App. 114-

This Confrontation Clause claim is also supported by the Affidavit of

Tina N. Olson, Petitioner's Wyoming counsel on direct appeal, which was an

Exhibit filed in the original Complaint, and stated that the evidence withheld

16

by DCSD is pertinent to address issues of taint and competency of the

witnesses. (Appendix K: Complaint Exhibit B)(App. 221).

When law enforcement records are constitutionally material under the

Sixth Amendment, inspection of such records is not only allowed, it is

necessary. Brady v. Maryland, 373 U.S. 83 (1963); Pennsylvania v. Richie,

107 S. Ct. 989 (1987); Kyles v. Whitley, 115 S. Ct. 1555, 1567-68 (1995).

Petitioner's Appeal Brief and Motion for Rehearing asserted that this

matter, although required to be filed in the Chancery Court as a civil

complaint, was in fact a quasi-criminal matter due to the nature of the seized

items properly being under the jurisdiction of the warrant-issuing criminal

court in Wyoming; due to the seized items being the subject of the Wyoming

court's discovery orders requiring their return; and due to the seized items

status as exculpatory and impeachment evidence required by Petitioner to

support his post-conviction claims of actual innocence in the state and federal

courts reviewing his Wyoming conviction. (Appendix G: Appeal brief) (App.

97); (Appendix H: Motion for Rehearing)(App. 115).

That this is a quasi-criminal matter is supported by the Chancery

Court's findings as such when denying DCSD's objections to allowing DeLoge

to proceed in forma pauperis on appeal, and also by the Chancellor who

repeatedly recognized the relevance of this matter to the criminal case in

Wyoming in the transcript of the in camera review, most significantly when

he found that the [Wyoming authorities subverted the Wyoming discovery

17

orders by sending the seized items to Mississippi]. (Appendix G: Brief for

Appellant)(App. 73-74, 78-79).

The nature of Petitioner's request for access to the Wyoming seized

evidence and the actions of DCSD working in conjunction with the Wyoming

law enforcement from the very beginning of the prosecution in that state

require that the DCSD comply with Brady and the rules of discovery.

Petitioner's Complaint made numerous claims that the acts of the

DCSD in relation to the seized items have deprived him of the due process

and equal protections provisions of the United States Constitution. The

Chancery Court omitted any ruling on those Constitutional claims and the

Court of Appeals failed to address the omission of those claims. (Appendix

H: Motion for Rehearing)(App. 114-115).

State courts have concurrent jurisdiction to rule on federal

constitutional claims, and when properly presented, a duty to adjudicate

those claims. Franchise Tax Bd., 463 US, at 13, 77 L Ed 2d 420, 103 5 Ct

2841(1983); Gully v. First Nat. Bank in Meridian, 299 US 109, 112, 81 L Ed

70, 57 S Ct 96 (1936) (federal question exists when a "right or immunity

created by the Constitution or laws of the United States is an element, and

an essential one, of the plaintiffs cause of action"); Redd v. Lambert, 674 F.2d

1032, 982 U.S. App. LEXIS 19584 (5th Cir. 1982).

Petitioner's Motion for Rehearing asserted that he was deprived of

substantive and procedural due process when he was denied return,

18

preservation, access to his seized property, declaratory and injunctive relief,

and by exclusion from the hearing that resulted in dismissal of his complaint.

In dismissing the complaint under Mississippi Rules of Civil

Procedure, Rule 12 (b)(6), the Chancery Court failed to address Petitioner's

Constitutional claims, and entered a ruling allowing the DCSD to continue to

prejudice Petitioner by depriving him of his protected property interest and

material evidence. (Appendix H: Motion for Rehearing)(App. 116).

Petitioner's Motion for Rehearing asserted that the Chancery Court's

dismissal of the Complaint without allowing fact development on these

Constitutional claims, or opportunity to amend, deprived Petitioner of the

Fifth and Fourteenth Amendment protections of due process, that he suffered

prejudice thereby, and the Court of Appeals should reverse. (Appendix H:

Motion for Rehearing)(App. 116 )

Rehearing by the Mississippi Court of Appeals was denied without

opinion on July 8, 2017.

Petitioner filed a timely petition for Writ of Certiorari in the Supreme

Court of Mississippi on August, 10th, 2017, asserting that this is a matter of

significant public importance to both the jurists of the State of Mississippi,

and those in other state jurisdictions who may be impacted by the actions of a

Mississippi law enforcement agency. This matter also involves the question

of a citizen's Constitutional rights to his personal property when it resides in

the hands of a government agency. Further complicating the issue is the fact

19

that the items are asserted to be of evidentiary value in a court of law to the

private citizen from whom it was seized, and also have been asserted to have

investigative value by the governmental agency which retains possession.

(Appendix I: Mississippi Supreme Court Petition for Writ of Certiorari to

the Mississippi Court of Appeals)(App. 120).

Petitioner asserted that the facts and lower court record show that

while Petitioner's property and exculpatory evidence have languished for

years in the control of the DCSD, it has proven to have no realistic

evidentiary value to support DCSD's speculative claims that Petitioner may

have committed a crime in Mississippi. The record shows that DCSD allowed

the seized items to suffer degradation and loss. A reasonable person would

conclude from the facts in record that if the seized items did possess actual

investigative or evidentiary value to DCSD's cause, the agency would not

have allowed them to become destroyed, degraded, or transferred into the

hands of non-law enforcement third parties. Petitioner asserted that if the

Mississippi Supreme Court does not act to address these claims, the seized

items will continue to be destroyed, degraded, or given away without

safeguards for its evidentiary value in the Wyoming case which generated it.

(Appendix I: MS Supreme Court Petition for Writ of Certiorari)(App. 120).

Petitioner asserted in the Mississippi Supreme Court that the decision

of the Mississippi Court of Appeals failed to apply the controlling mandates of

the Due Process and Equal Protection clauses of the United States

20

Constitution to the facts and circumstances of this case. (Appendix I:

Mississippi Supreme Court Petition for Writ of Certiorari)(App. 120).

Petitioner asserted specific points of law and facts omitted or

misapplied by the Court of Appeals, including that the Chancery Court's

findings of fact regarding DCSD claim of investigative exemption, and

conclusion that the seized items were investigative, was clearly erroneous or

manifestly wrong (Appendix I: Mississippi Supreme Court Petition for Writ

of Certiorari)(App. 121-122).

Petitioner asserted that the rights to access his evidence and personal

items are found in the Supremacy Clause of the U.S. Constitution, which

supersedes Mississippi law. U.S. Const. art. VI, ci. 2. (Appendix I:

Mississippi Supreme Court Petition for Writ of Certiorari)(App. 123).

Petitioner asserted in the Mississippi Supreme Court that the Court of

Appeals review of his claim that his Constitutional rights were violated by

DCSD's retention of his seized items was manifestly wrong when the Court of

Appeals found the items at issue were seized in Wyoming and transferred to

DCSD only at the close of the Wyoming case against him. (Appendix I:

Mississippi Supreme Court Petition for Writ of Certiorari)(App. 123-124).

As detailed above, this finding is in error. The Complaint and related

filings assert that the seized items and additional items from a storage

garage in Green River, Wyoming were seized without benefit of search

warrant naming DCSC as a receiving agency, were transferred to DCSD prior

21

to conviction in the WY case, and such transfer of evidence was in direct

contempt of the warrant-issuing court's Discovery Orders instructing that the

items be returned to the jurisdiction of the court. It is a denial of due process

for the Court of Appeals to make findings of fact contrary to that asserted

and documented in the Complaint, and use that to deny relief. (Appendix I:

Mississippi Supreme Court Petition for Writ of Certiorari)(App. 124).

The Court of Appeals, citing Kea v. Keys, 83 So. 3d 399, 405, ¶15 (Miss.

Ct. App. 2011) and Newman v. Stuart, 597 So. 2d 609, 614 (Miss. 1992) used

this erroneous finding of transfer after conviction to construe legality to

DCSD's receipt, possession, and retention of the items. Petitioner rebutted

this contention in the Mississippi Supreme court, showing that Kea and

Newman stand for the legality of the State to retain property seized by

Mississippi within its jurisdiction, not property seized by another state and

obtained illegally which subverts the jurisdiction and discovery orders of the

warrant-issuing state. DCSD obtained the fruits of the Wyoming searches by

illegal transfer and were without jurisdiction to possess it. Glass v. City of

Philadelphia, 455 F. Supp. 2d 302 (U.S. Dst. Ct. 3rd Cir, 2006). (Appendix

I: Mississippi Supreme Court Petition for Writ of Certiorari)(App. 124).

Petitioner asserted in the Mississippi Supreme Court that the original

Complaint and related filings document that Wyoming dismissed his

preservation and return of seized property actions as moot after the State

asserted that it had given the items to DCSD, and that DCSD would no

22

longer cooperate with them to enable return. The Wyoming court ruled it

had no jurisdiction over Mississippi to compel return, and dismissed the case.

Petitioner was forced to pursue his remedies in the Mississippi courts

which are now ruling that DCSD's possession of his property and documents

is allowable by claim of investigative interest, regardless of the illegal

transfer into DCSD's possession. This places Petitioner in a "Catch 22"

between the jurisdictions of the two states, and violates his rights under the

Fourth, Fifth and Fourteenth Amendments to the United States

Constitution. United States v. Batato, 833 F.3d 413 (4th Cir. 2016) (citing

Burger King Corp. v. Rudzewicz, 105 S. Ct. 2174 (1985) (in rem jurisdiction

over assets, constitutional reasonableness, and "the burden on the defendant,

the forum State's interest in adjudicating the dispute, the Petitioner's

interest in obtaining convenient and effective relief, the interstate judicial

system's interest in obtaining the most efficient resolution of controversies,

and the shared interest of the several States in furthering fundamental

substantive social policies."). (Appendix I: Mississippi Supreme Court

Petition for Writ of Certiorari)(App. 124-125).

Petitioner asserted in the Mississippi Supreme Court that the Court of

Appeals review of his claims under the Confrontation Clause erred by finding

this was a civil proceeding, that he was not a criminal defendant, and that

the Confrontation Clause was not implicated. This finding disregards that

DCSC asserted criminal allegations against him in a Mississippi court, and

23

acted in companion with the Wyoming prosecution to deny him access to the

seized evidence required to confront his accusers in the Wyoming case.

The Complaint is adequately clear and straightforward. The lower

courts should not use Petitioner's novice filings to ignore the obvious issues.

Haskett v. T.S. Dudley Land Co., 649 Fed. App. 492, fn7 (5th Cir.

2016)(failure to liberally construe pro se pleadings informs our analysis of

whether dismissal was proper); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.

1995). (Appendix I: Mississippi Supreme Court Petition for Writ of

Certiorari)(App. 125).

Petitioner asserted in the Mississippi Supreme Court that he was

denied the opportunity to be heard in a meaningful time and manner by the

lower courts. The right to notice and an opportunity to be heard in a

meaningful time and manner were violated when the Chancery Court heard

new allegations of criminal acts at the in camera hearing where Petitioner

was not present and had no opportunity to rebut the allegations, and then

excluded Petitioner from the hearing on DCSD's motion to dismiss, while

giving the Respondents an opportunity to comment further after announcing

the Court's intention to dismiss the matter. This denied Petitioner

Constitutional due process. Bowiby v. City of Aberdeen, Miss., 681 F.3d 215,

222 (5th Cir. 2012); Fuentes v. Shevin, 407 U.S. 67, 80 (1972). (Appendix I:

Mississippi Supreme Court Petition for Writ of Certiorari)(App. 126).

Petitioner asserted in the Mississippi Supreme Court that his

IM

Confrontation Clause claim pertained to the totality of DCSD's continuous

acts of withholding the seized evidence from Petitioner and the Wyoming

court of jurisdiction because it undermined trial and appellate counsel and

prejudiced his ability to litigate his innocence. Petitioner asserted that this

deprivation continues to-date, and constitutes an egregious violation of his

Sixth Amendment rights to a fair trial, to confrontation and compulsory

process, and to have effective assistance of trial and appellate counsel.

(Appendix I: Mississippi Supreme Court Petition for Writ of Certiorari)(App.

126).

When law enforcement records are constitutionally material under the

Sixth Amendment, inspection of such records is not only allowed, it is

necessary. The rules of discovery and disclosure [apply to the prosecutor and

any agent thereof]. By acting in unison with the Wyoming prosecution to

spirit the seized items beyond the jurisdiction of the warrant-issuing court,

DCSD became an agent of the Wyoming prosecution. Brady v. Maryland, 373

U.S. 83 (1963); Pennsylvania v. Richie, 107 S. Ct. 989 (1987); Kyles v. Whitley,

115 S. Ct. 1555, 1567-68 (1995).

Petitioner asserted in the Mississippi Supreme Court the Complaint

filed in the Chancery Court is a quasi-criminal matter by the nature of the

seized items properly being the jurisdiction of the Wyoming court; by that

court's Discovery Orders requiring return of the items to that jurisdiction;

and, the by the asserted status of the seized items as exculpatory and

25

impeachment evidence required to support Petitioner's claims of actual

innocence in the state and federal courts reviewing the Wyoming conviction.

Petitioner pointed out that the Chancery Court repeatedly recognized

the relevance of this matter to the Wyoming criminal case during in camera

review, finding significantly that the Wyoming authorities subverted the

discovery orders by their act of sending the seized items to Mississippi.

(Appendix I: Mississippi Supreme Court Petition for Writ of Certiorari)(App.

126).

Petitioner asserted in the Mississippi Supreme Court that the original

Complaint made numerous claims that the acts of DCSD in relation to the

seized items have deprived him of the protections of the United States

Constitution. The Chancery Court omitted ruling on those Constitutional

claims, and the Court of Appeals in turn failed to address this omission.

Petitioner was deprived of substantive and procedural due process

when he was denied return, preservation, access to his seized property,

declaratory relief, and by exclusion from the hearing that resulted in the

dismissal of his complaint. In dismissing the complaint under Rule 12 (b)(6),

the Chancery Court failed to address these constitutional claims and entered

a ruling allowing the DCSD to continue to prejudice Petitioner by depriving

him of his protected property interest and material evidence. Dismissal

without allowing fact development on these constitutional claims, or an

opportunity to amend, deprived Petitioner of due process under the Fifth and

Fourteenth Amendments, and he suffered prejudice thereby. (Appendix I:

Mississippi Supreme Court Petition for Writ of Certiorari)(App. 127).

The Mississippi Supreme Court denied certiorari review on October 26,

2017. (Appendix C)(App. 13).

REASONS FOR GRANTING THE PETITION

The state court's factual findings are erroneous and have misapplied

properly stated Constitutional provisions and rules of law. Such treatment of

the case may independently be sufficient reason to grant the writ. What is

additionally significant on a national level is that, as the matter now stands,

a defendant in a state criminal prosecution may be subverted in his defense

by the police simply seizing evidence relevant to his defense, and then

spiriting that evidence out of the jurisdiction of the warrant-issuing court and

into the custody and control of a law enforcement agency in a different state.

The resulting game of prosecutorial "keep away" has no remedy when

the trial court subsequently claims to have lost jurisdiction over the fruits of

the search, regardless that the transfer was done illegally without properly

issued warrants allowing delivery to another jurisdiction, and regardless of

the violation of the discovery orders of the warrant issuing court which had

ordered that the evidence be returned and access provided to the defendant.

The defendant is forced to proceed without access to the seized

evidence, and expend years searching for the location and condition of the

seized items. Once located in the hands of the out-of-state agency, the

27

defendant must petition courts of that state for the tools necessary to defend

against the criminal charges in the state where the evidence was seized.

This presents compelling reasons for This Court to grant the Writ

pursuant to Supreme Court Rule 10 (b) and (c).

The individual state courts have no United States Supreme Court

precedent mandating that they afford an other-state criminal defendant

access to items in the possession of their own law enforcement agency, as long

as that agency asserts, however implausibly, that they have an "interest" in

withholding it. This catch-22 denies a citizen charged with a state criminal

offense the ability to defend himself, and clearly violates the Due Process

guarantees contained in the Fifth and Fourteenth Amendments to the United

States Constitution.

Petitioner can find no United States Supreme Court, Federal District

or Circuit court case which is factually similar to the legal question now

before This Court. The decision of the Mississippi Court of Appeals

upholding the denial of defendant access to withheld evidence seized in a

other-state case and illicitly transferred beyond the jurisdiction of the

warrant-issuing court, and the refusal of the Mississippi Supreme Court to

review the merits of the defendant's claims, is a first instance wherein

unconstitutional precedence has now become established by the lower court

rulings in the matter of DeLoge v. DeSoto County Sheriffs Department.

Should This Court decline to grant certiorari review, state court

28

prosecutors will be empowered by the Mississippi and Wyoming tactics and

even encouraged thereby to subvert due process to severely undermine a

citizen's United States Constitutional right to a fair trial, a citizen's right to

confront his accusers with impeachment evidence, and a citizen's right to

access exculpatory evidence to defend against state criminal charges.

CONCLUSION

For the reasons set forth herein, the petition for a writ of certiorari

should be granted.

Dated this 19th day of March, 2018.

Respectfully submitted,

Steven A. DeLogé, Petitioner