Petition for Writ of Certiorari — Tony Don, Petitioner v. Eddie Miles, Warden

No.

IN THE

~§upreme Court of the Vniteb*

-.tateo

TONY DON,

Petitioner,

STEVE HAMMER,

Respondent.

On Petition for a Writ of Certiorari

To the Eighth Circuit Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

Tony Don, PRO SE

OlD #226322

MCF-Oak Park Heights

5329 Osgood Ave North

Stillwater, MN 55082

QUESTION PRESENTED

Does the admission of Identification Testimony at trial contravene the Due Process Clause

when the court conducts the first test, but failing to conduct the Full Test when it requires

Two Tests?

-

Does the Due-Process Clause protect against Injustices whereas Officials from both State

and Federal systems confirm that your [Unlawfully Imprisoned], but awkwardly fails to

remedy the Illegality in other words is that practice Constitutional or Unconstitutional?

TABLE OF CONTENTS

QUESTION PRESENTED

.

TABLE OF AUTHORITIES ...................................................................... .................ni

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

.

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

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

RELEVANT STATUTORY PROVISIONS ..................................................................... 1

STATEMENT OF THE CASE .................................................................................... 1

REASONS FOR GRANTING THE WRIT.....................................................................7

I.

The Question Presented Significantly Impacts

The Administration of Criminal Justice ............................................................9

CONCLUSION.......................................................................................................13

APPENDIX A, Motion to Suppress and Dismiss Memorandum........................Pet. App. la

APPENDIX B, Unpublished Opinion of the Minnesota Court of Appeals...........Pet. App.5a

APPENDIX C, Docket Entry, Order of Minnesota Supreme Court Denying Discretionary

Review.....................................................................................................Pet. App. lla

APPENDIX D, State Habeas Response from Prosecutor: Terence Swihart to Judge: John T.

Cajacob................................................................ ................................... Pet. App. 12a

.

APPENDIX E, 2nd Report & Recommendation from Magistrate Judge: Steve E. Rau, in a

28 U.S.C. § 2254 Proceeding .............. ......................................................... Pet. App. 15a

APPENDIX F, Order of MN US District Court Denying Federal Habeas Corpus

Relief..................................................................................................... Pet. App.28a

APPENDIX G, Docket Entry, Order of Eighth Circuit Court of Appeals Denying COA.

.............................................................................................Pet. App.36a

APPENDIX H, Docket Entry, Order of Eighth Circuit Court of Appeals Denying Petition

forRehearing..........................................................................................Pet. App.37a

I

TABLE OF AUTHORITIES

Cases

Brecht v. Abrahamson, 507 Us 619, 637, 113 S. Ct. 1710 (1993)........................5,12

Biggers v. Tennessee, 390 US 404, 407, 19 L Ed 2d 1267, 1269, 88 S Ct 979..........12

Foster u. California, 394 Us 440, 89 S. Ct. 1127(1969) .............................. 10,11,12

Engle v. Isaac, 456 US, 102 S. Ct. 1558 (1982)...................................................5

Estes v. Texas, 381 U.S. 532 (1965)..................................................................3

Goudy v. Basinger, 604 F. 3d 394 (CA7 2010)...................................................10

Kotteakos v. United States, 328 US 750, 776, 66 S. Ct. 1239 (1946).....................12

Manson v. Brathwaite 432 US 98, 97S. Ct. 2243 (1977) ........................ 5,6,10,11,12

Neil v. Biggers 409 US 188, 93S. Ct. 375 (1972) .......................................... 12,13

Portuondo v. Agard, 529 U.S. 61 (2000)............................................................3

Robb v. Connolly, 111 US 624, 637128 L Ed 542, 4S .Ct. 544].............................4

Stovall v. Denno 388 US 293, 87S. Ct. 1967 (1967):......................................11,13

Simmons v. United States, 390 US 377, 88S. Ct. 967 (1968)..............................19

United States v. Wade, 388 US 218, 87S. Ct. 1926 (1967) ............................... 7,11

United States ex rel. Kirby v. Sturges, 510 F. 2d 397, 406 (CA7 1975)..................11

Ward v. Sternes, 334 F. 3d 696, 704 (7th Cir. 2003)............................................10

Zwickler v. Koota, 389 US 241, 248, 19 L Ed 2d 444, 88S. Ct. 391 (1967)..............4

Statutes and Rules

28 U.S.C. § 1254(1).......................................................................................1

28 U.S.C. § 1257 (a)......................................................................................1

Other Authorities

I Ic

28 U.S.C. § 2254 ....................................................................................... 5,13

William $ Hammelmann, Identification Parades- I, Crim L. Rev 479 482 (1963)... 7

PETITION FOR A WRIT OF CERTIORARI

Petitioner Tony Don respectfully petitions for a writ of certiorari to review the

judgment of the Eighth circuit Court of Appeals.

OPINIONS BELOW

Unpublished Opinion of the Minnesota Court of Appeals, APPENDIX B

JURISDICTION

The 8th Circuit Court of Appeals denied my Petition for Panel Rehearing Pet.

App.37a This court jurisdiction pursuant to 28 U.S.C. § 1257 (a) & 28 U.S.C. §

1254(1). This is a State case procedurally appealing to the Federal System.

RELEVANT CONSTITUTIONAL PROVISION

The 14th Amendment to the United States Constitution provides, in relevant part:

"No State shall

deprive any person of life, liberty, or property, without due

process of law."

.

.

.

I

STATEMENT OF THE CASE

As the Minnesota State of Court of Appeals puts it, In December 2012, appellant

Tony Don was charged with aggravated robbery in the first degree. The complaint

alleged that appellant and an accomplice robbed a pedestrian at knife point in

Northfield. Prior to trial, appellant moved to suppress the evidence of the victim's

pretrial identification of appellant, arguing that the show-up identification of

appellant was unfairly suggestive and unreliable. The district court denied the

motion, concluding that the identification procedure "unnecessarily suggestive," but

that "it did not create a substantial likelihood of irreparable misidentification"

because the "identification was based upon the distinctive tattoos."

At trial, evidence and testimony was presented establishing that at about 1:00 a.m.

on December 11, 2012,, J.H. realized that his car was parked on the street in

violation of a winter parking ban. After moving his car to avoided be ticketed, J.H.

decided to go for a walk. According to J.H. it had started to snow, and he was

listening to music through his headphones when he noticed two "suspicious" men

"wearing bandanas around their faces." J.H. testified that he attempted to avoid the

men, and when he did not see them anymore, he continued his walk. But when he

rounded a corner, and turned around, he saw two men with the heavy coats, hats,

and bandanas, approaching him from around the corner, and one was "holding a

knife

."

The man identified as appellant demanded that J.H. "give him what [he] had," and

J.H. gave him his iPod and cell phone. He also gave him a "pile of cards" that he

keeps in his front pocket in lieu of a wallet, which included his driver's license and a

credit and debit card. According to J.H., appellant looked at his driver's license and

warned J.H. that he would remember him and come after him if he went to the

police. Appellant also demanded money, so the group went to a nearby ATM where

J.H. withdrew $300 and gave it to the robbers. The two men then left heading

north.

After the men were out of sight, J.H. ran to a friend's house where he called 911 to

report the robbery. Northfield police were then able to find footprints the snow and

followed them until they located appellant and C.W. at the rear of a private

2

residence. When police detained appellant and C.W., they were not "appropriately

attired for the weather," wearing only shirts and long pants. The men were

subsequently arrested and brought to J.H. to see if he could identify them. C.W. was

taken out of a squad car first and shown to J.H.

Was unable to identify C.W. because he was not wearing a jacket and had no

distinguishing features. But J.H. was able to identify appellant because of the

tattoos around his eyes.

REASONS FOR GRANTING THE WRIT

This is a State case in Violation of Federal laws; an" INJUSTICE" stands

uncorrected.

The Minnesota State & Federal Judicial system including the Federal 8th Circuit

Court of Appeals decisions conflicts with the United States Constitution and U.S.

Supreme Court precedents. The criminal justice system relies heavily upon the

"centrality of the truth seeking function of the courts." (See Portuondo v. Agard,

529 U.S. 61 (2000), Estes v. Texas, 381 U.S. 532 (1965)

1st Issue

On 12-1-15, my- State Habeas got denied. The prosecutor set forth in its

pleading to the judge as a notification of illegality ("or in the habeas context,

that he is imprisoned unlawfully.") However, the Judge failed to remedy the

Injustice. Pet. App.12a

In the Federal Habeas Corpus in the District of Minnesota, the (Magistrate

Judge: Jeffrey J. Keyes) noted in the 1st Report and Recommendation on Page

-5-," What is in dispute is whether Don's incarceration is unlawful because he

is in custody" in violation of the constitution or laws or treaties of the United

States." Id (R&R not annexed because I don't have any copies, but

its Certified in the Record in my case. It should be on file

electronically.)

I set forth in other pleadings as a reminder (Motion for Certificate of Appealability,

Petition for Panel Rehearing) about the confirmation of Illegality of my

Custody/Imprisonment, but no judicial official took just measures and granted

relief, Awkwardly, ignores the predication. Something is Wrong here unjustly.

That's confirmation from both State and Federal System that my Prison

Confinement is ILLEGAL and runs afoul of the U.S. Constitution.

3

When is person "in custody, "so as to make him eligible for remedy, under federal

statutory provisions for habeas corpus, for violation of federal constitutional

rights. 36 L Ed 2d 1012. The very nature Of the writ of habeas corpus demands

that it be administered with the initiative and flexibility essential to insure that

miscarriages of justice within its reach are surfaced and corrected.

The great constitutional privilege of habeas corpus provides a prompt and

efficacious remedy for whatever society deems to be intolerable restraints; its root

principle is that in a civilized society government must always be accountable to the

judiciary for a man's imprisonment; if the imprisonment cannot be shown to

conform with the fundamental requirements of law, the individual is entitled to his

immediate release.

In Preiser v. Rodriguez, the court said: "In thus expanding federal judicial power,

Congress imposed the duty upon all levels of the federal judiciary to give due

respect to a suitor's choice of a federal forum for the hearing and decision of his

federal constitutional claims. Plainly, escape from that duty is not permissible

merely because the state courts also have the solemn responsibility, equally with

to guard, enforce, and protect every right granted or secured

the federal courts,

by the Constitution of the United States..., 'Robb v. Connolly, 111 US 624, 637 [28

L Ed 542, 4 S .Ct. 544]." Zwickler v. Koota, 389 US 241, 248, 19 L Ed 2d 444, 88 S.

Ct. 391 (1967). 411 U.S. at 514

'...

If petitioner was held in custody in violation of Constitution or law of United

States, or for act done or omitted in pursuance of law of United States, he would be

discharged. In re Loney (1890) 134 US 372, 33 L Ed 949, 10 S Ct 584; In re Neagle

(1890) 135 US 1, 34LEd 55, 10S Ct. 658

When federal court once determined that state court judgment under which

petitioner was sentenced to imprisonment in state penitentiary was entered in

violation of due process of law, it was court's duty to direct release of

petitioner. Voigt v Webb (1942, DC Wash) 47 F Supp 743

In Preiser v Rodriguez, supra, the court said: "It is clear. that the essence of

habeas corpus is an attack by a person in custody upon the legality of that custody,

and that the traditional function of the writ is to secure release from illegal custody."

411 US at 484.

.

.

Where a State prisoner is concerned, a writ of habeas corpus may issue only when

that prisoner is "in custody in violation of the Constitution or laws or treaties of the

United States." 28USC 2241, (3), 2254(a) [28 USCS 2241 (c) (3), 2254(a)]. See

O'NEAL.V. McANINCHat 513 US 446.

A defendant whose conviction has been upheld despite the occurrence of such a

violation certainly is "in custody in violation of the constitution or laws or treaties of

C

the United States. 28 U.S.C.S 2254(a). See BRECHT V. ABRAHAMSON at 507 US

646, 123 Led 2d 353, 113 S.Ct 1710 (1993).

I.

The Question Presented Significantly Impacts The

Administration of Criminal Justice.

This Court should resolve the constitutionality of the practice of the court failing to

grant relief when they confirm Illegality of a person's Imprisonment for this reason.

1.

The question presented implicates, the reliability and public integrity

of criminal trials. There is no doubt that when a court confirms your Unlawful

Imprisonment and fails to remedy it, that Justice is not served. The importance of

the public to the issue is the citizens enforcement of our Legal Rights.

A State prisoner is entitled to relief under 28 USC 2254 [28 USGS 2254] only if he

is held "in custody in violation of the constitution or laws or treaties of the United

States." See ENGLE V. ISAAC, 456 US at 119 Part 11,[2], 71 L Ed 2d. 783, 102

S.Ct. 1558 (1982)

I.

IMPROPER OVERLY SUGGESTIVE SHOW-UP

IDENTIFICATION ADMITTED AT TRIAL

The district court properly found that the show-up identification was improper.

However, the district court improperly allowed evidence of the identification at trial.

The district court concluded that the identification "did not create a substantial

likelihood of irreparable misidentification." Pet. App.3a

When it comes to identification procedures, there's a Two-Part Test to be conducted

in determining whether identification should be suppressed:

1st Test: Unnecessarily Suggestive

2nd Test: Totality of Circumstances Factors

That step entails considering the witness' opportunity to view the perpetrator,

degree of attention, accuracy of description, level of certainty, and the time between

the crime and pretrial confrontation, then weighing such factors against the

"corrupting effect of the suggestive identification." Brat hwaite, 432 U.S., at 108, 114,

97S. Ct. 2243, 53 L. Ed. 2d140.

While Hallen had an opportunity to view the suspects, the opportunity was

not a good. Both suspects were fully dressed and had bandanas around their faces.

(Omnibus at 8) Hallen did not have a good opportunity to view the suspects.

Hallen also did not appear to pay close attention to the two suspects, as he was not

5

able to describe the suspects' clothing. (Omnibus at 10, 11) Hallen also believed

that they were speaking an unidentified foreign language. (Omnibus at 8)

Hallen was not able to accurately describe the suspects. He described them as

being Hispanic. (Omnibus at 8) Despite being able to see the suspects' eyes, he

made no mention of the tattoos around my eyes during the 911 call. Officer Gigstad,

who present at the show-up testified that Hallen believed I was involved based on

the tattoos around my eyes, but gave no indication of his level of certainty.

(Omnibus at 30)

The record is not clear as to how much time has passed between when Hallen

was mugged and when the show-up occurred, but officer Gigstad believed that it

was half an hour. (Omnibus at 26)

The five factors were not analyzed by the district court. The five factors weigh

in favor of suppressing the identification and the district court erred when it ruled

that the evidence was admissible. In the 'Order Denying the Suppression Motion'

the Judge did not conduct the 2nd part of the test for such id testimony evidence.

Pet. App.3a

The standard of "fairness as required by the Due Process Clause, "id., at 113,

97 S. Ct. 2243, 53 L. Ed. 2d 140, Manson v. Brathwaite 432 US 98, 97 S. Ct. 2243

(1977)

This 'Structural Error' denied me fairness in due-process in the 14th Amendment

and affected the whole framework of the conviction process. I've been severely

Prejudice by this Judicial Misconduct. The court should have not allowed the ID

Evidence in because she did not conduct procedural requirements required by

judicial precedents in Federal U.S. Supreme Court Case law. The conviction is

Illegal.

SHOW-UP (SUGGESTIVE ELEMENTALS ERRORS)

POLICE TOLD J.H. THAT THERE GOING TO BRING OUT TWO GUYS

THAT THEY HAD APPREHENDED.( T.251)

I'VE BEEN SEEN DETAINED IN BACK OF A SQUAD CAR.(

RESP.APP.AT RC-097)

I WAS PRESENTED IN HANDCUFFS. (EXHIBIT-10 Show-Up VideoState Record)

I WAS BROUGHT CLOSER SO J.H. COULD OBSERVE MY FACIAL

TATTOOS.. (RESP.APP.AT RC-103)

'

I

POLICE TURN ME AROUND LEFT .& RIGHT DURING CLOSER

OBSERVATION. (T.677)

POLICE MADE AN IMPROPER REMARK TO J.H. AS IN TELLING HIM

TO LOOK AT BOTH SIDES OF MY FACE AND TO LOOK AT THE RIGHT

SIDE OF MY FACE TO OBSERVE TATTOOS AND ASKED HIM IF HE

HAD OBSERVED ANYTHING ON THE INDIVIDUAL'S NECK AT THAT

TIME. (T.260-261)

THE SUGGESTIVE ATMOSPHERE (THE DISTANCE) NOT TOO FAR

FROM WHERE THE ROBBERY OCCURRED PLUS, SNOWING AT THE

TIME.

(RESP.APP.AT RC-097)

When police officer unduly influences a witness to make an identification, it

undermines the reliability of the id itself. When an officer makes suggestive

comments to a witness... it psychologically prompts the witness to focus on the

suspect detracting him from making their own independent decision. While this

occurs, a witness would have no reasonable impression but to retain the

descriptions of the suspect that he is observing that the officer is singling out to be

the culprit.

Depending on what the comments were... it can be unfair leading a witness to

identify a particular individual whereas some remarks cannot taint such results. In

the nature of tainted beyond repair the damage has already been done. An officer

makes suggestive comments to a witness predetermines the witness's decision for

him to select that individual.

It leaves no room for a witness to render an unequivocal identification strongly the

assuring the likelihood that there is no misidentification. Where a pretrial

identification is tainted, the subsequent in-court identification is also faulty. As the

court noted in Wade: "'It is.a matter of common experience that, once a witness has

picked out the accused at the [pretrial confrontation], he is not likely to go back on

his word later on.. "' 388 Us, at 229, 18 L Ed 2 d 1149, 87 S Ct 1926, quoting

William $ Hammelmanñ, Identification Parades- I, Crim L. Rev 479 482 (1963)

In my case because of the comments by the police officer, the witness believed that

I'm the one who accosted him as he confirms it in the courtroom with the answer

"YES." (T.260-261)

And it is after he was making those comments to you that I take it you then

Q

felt like perhaps this was the individual that may have accosted you.

A

Yes. The only clarification is—we didn't hear it very well in the audio—but I

do believe before officer gigstad mentioned tattoos, I think I mentioned them first.

Its tainted however, in the 911 call the witness J.H. reports that he does not know

who mugged him, that it was two young men, bandanas over their faces that he

could only see their eyes, that they were speaking in a different language but

couldn't tell what the language was, he speculated they were Hispanic not black

after 911 dispatch officer leading him to with the racial suggestions and when the

911 dispatcher asked him" okay can you tell me what they were wearing? He replies

"Ah, I didn't get a good look at what they were wearing. They were wearing—you

know, they were completely clothed—the 911 officer asked him a couple of times as

to what the suspects had on and he certainly indicate that he didn't get a good

enough look that one guy was in white clothing and the other was in dark clothing.

(Omnibus Hearing T.7-11)

There's no report about any suspects "having tattoos" plus I'm not Hispanic for race

wise. I'm Asian (Cambodian & Chinese). Theirs a substantial difference between

those races. J.H. testified equivocally in trial in regards to the id testimony and

gave two descriptions of tattoos that I still don't possess on my face.

Even at trial J.H. said: I could say that the man who had approached me

with the knife had tattoos that looked very similar to the kinds of tattoos that I saw

on this person who was presented to me by the police. And I just recall that they

were dark tattoos, and they were just kind of past the rim of the eyes near the

temple. So I had clearly seen these almost bead-like, dark ink tattoos right there. So

it was very distinctive to me, and I could see that in the person who was shown to

me by the police. Id.( T.253 Direct Exam.)

J.H. at trial confirm he was unable to give an accurate description of what the

tattoos consisted of to the police and that if it's a distinctive tattoo he would be able

to describe it to police. Plus J.H. told my defense attorney," It was clear there was

some kind of design thing going on with the tattoos like little blotches." Id. ." (T.

273-274 Cross Exam.)

91

He contradicted himself on the distinctive nature and tattoo description founded in

direct examination and cross examination.

Plus, his tattoo descriptions "does not match Petitioner's tattoos is with Merit. J.H. is

equivocal. Petitioner does not have "any bead like tattoos or blotches tattoos."

Importantly petitioner is going to describe petitioner's tattoos:

Below my [left eye] are Dots and a Question Mark

There's an Arrow at the end of my [left eyebrow above my left eye]

My [right eye] area, consist of Tribal & Dots in Red Greyish Black.

Above my [right eye] eyebrow are Dots

It is, first -of all, apparent that the primary evil to be avoided is "a very substantial

likelihood of irreparable misidentification. "Simmons v. United States, 390 US, at

384, 377, 88S. Ct. 967 (1968).

In addition to trial during Cross examination as follows:

And at no time during that 911 call did you ever identify the fact that one of

Q

the assailants had tattoos around their eyes, did you?

A

No. From the call we just listened to?

Q

That's correct.

A

Yes.

Now, you are telling us today, however, that the most significant thing that

Q

you could recall from this encounter with these two guys was the fact that because

the only thing you could see was their eyes, that it was the tattoos around the eyes

that allows you to make this identification. Isn't that correct?

A

That's correct

(T. 257-258 Cross Exam.)

When you were asked to make the on-the-scene identification, one of the

Q

factors that you felt would have aided you in making that identification would have

been recognizing the clothing that they had worn. Is that correct?

A

Specifically, the coats.

(T. 263 Cross Exam.)

The Minnesota Court of Appeals & MN Attorney's General Agency acknowledged

that J.H. did not positively identify me but that J.H. was fairly certain that I was

one of the robbers base on my distinctive tattoo. (Resp. App. at RC-002,, RC-077)

The Minnesota Court of Appeals applied the Totality circumstances factors

governing eyewitness testimony and found that there was no likelihood of

irreparable misidentification but that the 3rd Factor: the accuracy of the prior

suspect's description weighs against that the identification was reliable.

However, the fairly certain is irrational cause there is no positive identification and

the Court made an "Unreasonable determination of the facts in light of the evidence

presented in the state court proceeding." When the Minnesota Court of Appeals

conducted a "DE NOVO" review of the ID issue... it obviously ignored the

Suggestive Elemental Errors that cause J.H. to Blame me for the robbery which

undermines the reliability of the eyewitness identification.

Under § 2254 (d)(2), a decision involves an unreasonable determination of the facts if

it rests upon fact-finding that ignores the clear and convincing weight of the

evidence. Ward v. Sternes, 334 F. 3d 696, 704 (7th Cir.2003) Goudy v. Basinger, 604

F. 3d 394 (CA7 2010)

.

The prosecution may not introduce witness identification testimony that it has

unduly influenced before putting the witness on the stand. Foster v. California, 394

US 440, 89 S. Ct. 1127(1969); See also Manson v. Brathwaite 432 US 98, 97 S. Ct.

2243 (1977). If the state "[in effect .... repeatedly [says] to the witness, 'This is the

man,"' the witness's testimony becomes tainted beyond repair. Foster, 394 U.S. at

443.

Where the prosecution sought to use evidence of a questionable pretrial identification,

Stovall required it exclusion, because due process had been violated by the

confrontation, unless the necessity for unduly suggestive procedure outweighed its

potential for generating an irreparably mistaken identification. Manson v.

Brathwaite 432 US at 122, 98, 97S. Ct. 2243 (1977).

Here, the police officer told J.H. to look at both sides of my face and to look at the

right side of my face to observe tattoos & asked him if he had observed anything on

the individual's neck at that time. Because of these comments. ..it led J.H. to make

an "Irreparable Mistaken Identification." Not including the other suggestive

elements that compounded the degree inherent in the suggestion in the manner I

was presented. (T.260-261)

Stovall thus established a due process right of criminal suspects to be free from

confrontations that, under all the circumstances, are unnecessarily suggestive.

Manson v. Brathwaite 432 US at 120, 98, 97 S. Ct. 2243 (1977).

10

k

I

"Suggestive confrontations are disapproved because they increase the likelihood of

misidentification "--and "lilt is the likelihood of misidentification which violates a

defendant's right to due process. "Id., Neil v. Biggers 409 US at 198, 93 S. Ct. 375,

34 L. Ed. 2d 401, see also United States ex rel. Kirby v. Sturges, 510 F.2d 397, 406

(CA7 19 75) (Stevens, J.) ("The due process clause applies only to proceedings which

result in a deprivation of life, liberty or property.

[hf a constitutional violation

results from a showup, it occurs in the courtroom, not in the police station'). In short,

"what the Stovall due process right protects is an evidentiary interest. "Bráthwaite,

432 U.S., at 113, n. 14, 97S. Ct. 2243, 53L. Ed. 2d 140.

.

.

.

Reliability is the linchpin in determining admissibility for identification testimony

for confrontations occurring both prior- to and after Stovall v. Denno 388 US 293, 87

S. Ct. 1967 (1967) Manson v. Brathwaite 432 US at 120, 98, 97S. Ct. 2243 (1977).

The U.S. Constitution protects defendants from convictions where the evidence is of

questionable reliability. The US Supreme Court in Foster v. California holds that:

"[J]udged by the 'totality of the circumstances,' the conduct of identification

procedures may be' so unnecessarily suggestive and conducive to irreparable

mistaken identification' as to be a denial of due process of law. ...Id at 394 US

447,448. Judged by that Legal standard in that precedent... supra, the facts I

present concludes that my due process was violated in the 14th Amendment of the

U.S. Constitution.

The admission of this Overly Suggestive Show-Up ID Testimony from J.H. caused

harm at my jury trial.

It "Misleads" the jury and caused the jury to "Credit Inaccurate Eyewitness

Testimony." Furthermore, It had "Substantial and Injurious Effect" with this

type of trial error of constitutional dimension that was admitted. The right to a fair

trial has been violated.

"the impetus for Stovall and Wade was repeated miscarriages of justice resulting

from juries' willingness to credit inaccurate eyewitness testimony. Manson V.

Brathwaitè 432 US at 126, 98, 97 S. Ct. 2243 (1977).

In Brecht v. Abrahamson, the Kotteakos standard, under which an error requires

reversal only if "had substantial and injurious effect. or influence in determining the

jury's verdict." Brecht v. Abrahamson, 507 US, at 631 [2c], 619, 637, 113 S. Ct. 1710

(1993), Kotteakos v. United States, 328 US, at 776, 750, 776, 66S. Ct. 1239 (1946).

11

The Minnesota Court of Appeals decision concerning this issue is contrary to the US

Supreme Court Precedent in Foster v. California and resulted in an "Unreasonable

determination of the facts in light of the evidence presented in the state court

proceeding."

In Foster v. California, the suggestive elements in this identification procedure made

it all but inevitable that David would identify petitioner whether or not he was in

fact "the man." In effect, the police repeatedly said to the witness, "This is the man."

See Biggers v. Tennessee, 390 US 404, 407, 19 L Ed 2d 1267, 1269, 88 S Ct 979 (

dissenting opinion). This procedure so undermined the reliability of the eyewitness

identification as to violate due process. Id. Foster at 394 US 443. For the Court has

in effect decided here that the officers of the law have so "arranged" lineups that the

eyewitness to the robbery has been led to make an "irreparable mistaken

identification." Id. Foster at 394 US 446.

In my case, the suggestive comments from the officer to J.H. caused him to blame

me for the robbery aside from other compounding suggestive elements involved in

my case... it's the improper remarks that triggered that unduly influencing

psychological power where J.H. was susceptible to suggestion... "if this wasn't the

truth in fact then J.H. would of never answered YES to a clear question that

produces the result that gets no more convincing then the answer YES."

The procedure employed in both cases reaches the same result... whereas the

suggestive elements led a witness to generate a "Irreparable Mistaken

Identification," in violation of due process.

The court said that prior to the decision in Biggers, except in cases of harmless error,

"a conviction secured as the result of admitting an identification obtained by

impermissibly suggestive and unnecessary measures could not stand." Ibid. Manson

v. Brathwaite 432 US at 108, 98, 97 S. Ct. 2243 (1977). The court also concluded

that for post -Stovall identifications, Biggers had not changed the existing rule. Thus:

"Evidence of an identification unnecessarily obtained by impermissibly suggestive

means must be excluded under Stovall. .No rules less stringent than these can force

police administrators and prosecutors to adopt procedures that will give fair

assurance against the awful risks of misidentification." 527 F.2d, at 371, See

Brathwaite 432 US at 108-109, 98, 97S. Ct. 2243 (1977).

.

In Stovall v. Denno 388 US 293, 87 S. Ct. 1967 (1967), the court held that the

defendant could claim that "the confrontation conducted

was so unnecessarily

suggestive and conducive to irreparable mistaken identification that he was denied

...

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due process of law." Id., at 301-302, 18 L Ed 2d 1199. Neil v. Biggers 409 US, at

196, 188, 93S. Ct. 375(1972).

A conviction which rests on mistaken identification is a gross miscarriage of justice.

Stovall v. Denno 388 US, at 297[1], 293, 87S. Ct. 1967(1967),

When the State Court in a State Trial allowed the state to reflect in the Record this

Constitutional Error of Dimension of Mistaken Identification... my Due Process

Right in the U.S. Constitution has been Violated. "The Verdict is Unconstitutional

along with the Warrant of Commitment to the Minnesota DOC." I was prejudiced by

this trial court error. The error is not harmless... it caused me to be in "Custody in

violation of the constitution or laws or treaties of the United States, "under 28

U.S.C. 2254 (a). "The Causal Connection."

I'm claiming I'm Innocent because of the Police Identification Procedure

that is conducive to Misidentification.

Impermissible Show-Up

CONCLUSION

For all reasons stated herein, Specifically, Appellant prays this Court Order

Petitioner's released forthwith.

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Date: 1 12 -1

Petitioner1

Tony Don, PRO SE

OlD # 226322

MCF-Oak Park Heights

5329 Osgood Avenue North

Stillwater, MN 55082

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