Petition for Writ of Certiorari — Carlos Garcia, Petitioner v. Sherry Burt, Warden

Supreme Court briefApr 10, 2018

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NO.

TM THE

SUPREME COURT OF THE UNITED STATES

CARLOS tARCIA--PETITIONER

'is.

S.L. BURT---RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI TO

THE SIXTH CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

CARLOS GARCIA # 185607

Petitioner In Pro Se

Muskegon Correctional Facility

200 S. Sheridan Dr.

Muskegon, MI 49442

QUESTIONS PRESENTED

Mr. Garcia alleged that the prosecution in his case committed various

acts of misconduct during the course of his trial that were both highly prejudicial and violative of his constitutional rights under the United States

Constitutions Fifth, Sixth, and Fourteenth Amendments. Mr Garcia was convicted

of crimes never committed, based primarily on nothing more than word of mouth,

the presentation by the prosecution of facts not in evidence, the presentation

of false and misleading arguments, and the improper vouching for the credibility

of thoès witnesses by putting into the mouths of those witnesses, things which

they had not said. And, finally,, in a case that was weak from the start,

and one that presenteed no physical, medical, DNA, or eyeurtness evidence,

the prosecution willfully suppressed exculatory evidence that was both favorable,

and material to Mr. Garcia's theory of fabrication and claim of actual innocence.

In finding no prejudice, the Sixth Circuit relied an the state courts record

on direct appeal and collatteral attack, but, significantly mistated even

those slanted and misleading versions of the facts.

Mr. Garcia also alleged that the prosecutions expert witness, Amy Allen,

improperly bolstered the credibility of the alleged victim when she testified

falsely before the jury that the allegations had been substantiated. When

in fsct, no such substantiation had been made by any other court or governmental agency. This testimony, which was highly prejudicial in a case that

presented no evidence that any crime had been committed, removed from the

jury thier duty to weigh the testimony, evidence, and or the credibility of

the witnesses presented. And in essence, was yet one more example of the prosecutions vouching for the alleged victim through the mouth of this witness,

and in her artful questioning of that witness todisguise what she could not

directly do hrself, and again placesbefore the jury misleading facts, prejudicial

to Mr, Garcia that were not in evidence, or factually true.

•

Mr, Garcia also alleged that his trial counsel was ineffective .- in various

ways when she failed to cell witnesses favorable to his defense, theory of

fabrication, and actual innocence, Though the Sixth Circuit, and lower state

courts continue to falsely allege that Mr. Garcia's theory of fabrication

is predicated on the assumption that he has at any time alleged the Tlcomplainantu

was the creator of this fabrication, this is ill placed. As it has always

been Mr. Garcia's contention that this fabrication was the creation of the

complainant's "mother" and was only later supported by the alleged complainant.

Counsel's failure to call witnesses denied Mr. Garcia the opportunity to present

defene. As the ommitted witnesses, in particular, Mr. Garcia's mother,

would have testified that the complainant's mother had all but admitted to

Mr. Garcia's mother during a phone call just weeks before the trail the seh

(i.e., the complainants mother Jennifer Hart) wa;Phe only one who could

"save him." Thhus supporting the claim that she in fact, had created the fabrication.

The Sixth Circuit, as did the District Court, continue to point to tesbirbony

not presented at trial, or addressed by Mr. Garcia to erroneously justify

the continued constitutional blindness of the Michigan State courts. It was

the testimony of Mr. Garcia's mother given "outside" the presence of the jury

that he contends counsel failed to place before the jury that constituted

ineffective assistance of counsel. Counsel further failed to object to the

multiple misstatements of fact argued by the prosecution as discussed above,

and the bolstering of the prosecutions witness, Amy Allen. Mr. Garcia also

madd allegations concerning trial counsels complete and total lack of any

investigation, failure to interview witnesses, and failure to admitt into

evidence favorable documentary evidence (i.e., letters written by the alleged

complainant, medical reports of the alleged complainant showing no history

of sexual intercourse, and vouluminious documents from Ciil proceedings pending

in the famil ou±tthtwould hàvé ±ëvèa1èd multiple other felse àflèâtions

against Mr Garcia, and the complainant's biological father made by both the

alleged complainat and her mother), and frfalhure

o call Mr. Garcia to testify

on his own behlf. Neither the Sixth Circuit, or the District Court addressed

any of these claims, and seemed to have addressed only those glimpsed in it's

peripheral as it drove right over the issues of true constitutional consequesnce.

Mr. Garcia further alleged that his appellate counsel had performed

ineffectively when he abandoned him on appeal without notice, and failed to

advocate his case on appeal as the Sixth Amendment so requires and guarantees.

And as this esteemed Court also requires of those who represent those confronted

with either criminal or civil matters in these United States.

The Sixth Circuit appears to have limited it's review to any procedural

defaults Mr. Garcia argued that the Court may have found to existed on this

issue and tht he believed could have been reviewed under this Court's past

preced ence and took that opportunity to, as stated above, drive right over

those constitutional claims raised in the state courts, the United States

District Court, and again in the Sixth Circuit where he argued that counsel's

abandonment denied him his right to counsel, and his right to present a defense.

Appellate counsel failed to prepare and investigate Mr. Garcia's case, failed

to interview witnesses, failed to identify issues on appeal, never even attempted

to retrieve Mr. Garcia's case file from trial counsel, and refused to meet

with Mr. Garcia. And while appellate counsel filed his brief in the Michigan

Court of Appeals on behalf of Mr. Garcia, he did so without the consent of

Mr. Garcia and presented two 11 DEAD SANG LOSER" issues that were both legally

infirm, and not relevant to any issues related to Mr. Garcia's case. When

Mr. Garcia attempted to communicate his dissatisfaction with appellate counsel,

all correspondence was ceased, and all of his letters marked "Return to Sender."

Counsel took no calls from Mr. Garcia, or from his friends and family who

also attempted to contact counsel on Mr.Garciats behalf.

As to his additional claim of his actual innocence. This was addressed

in the state court on collateral proceedings based on newly discovered evidence,

and since those pleadings Mr. Garcia has discovered additional evidence which

he presented to the state court in a successive Motion for Relief from Judgment

(currently in the state courts), and addressed his Motion in his Motion to

Hold Petition for Writ of Habeas Corpus in Abeyance to properly exhaust and

present those issues in the District Court. This new evidence, as presented

in his Motion before the state, and lower federal courts would have been subjected

to state procedural rules as well as exhaustion rules of rules for §2254 cases.

The Sixth Circuit held that this additional evidence (i.e., a 2007 undisclosed

Police Report) did not help Mr. Garcia's case as the allegations alleged were

consistent with predatory behavior, but failed to show in the recor or where

in the evidence proposed that the investigator or

the contents of the report

Mr. Garcia was found to have exhibited any type of preditory behavior or even

a dispositon for such behavior. Or that the report showed that Mr. Garcia,

as alleged by the complainant in this investigation (i.e., Holly IiJrathell,

the mother of states witness Marissa Latimer), had ever called her;. daughter

"sexy." Or that he had made any attempts to befriend" her for any purposes,

right, wrong, or otherwise. And such conclusions, as those made by the Sixth

Circuit should have been made by a Jury, who did not have this information

at the time of trial, which Mr. Garcia argues was "suppressed" and not by

a revieing Court who failed to hold an evidentiary hearing on this matter

in assessing the weight it may have had in the minds of the jury where ther

cisted no evidence of guilt other than bald faced allegations only weakly

suppprted by circumstantial evidence, misrepresentation of facts, perjured

testimony, suppressed evidence, and hearsay testimony of evidence and witnesses

that either did not exist, or were never presented at trial.

As sated-above, in finding no prejudice, the Sixth Circuit relied on

the state courts misstatement of the facts on direct and collateral appeal,

but sianifiacently misstated even that slanted version of the facts. This

case, thus presents the f011owing questions:

DID THE SIXTH CIRCUIT ERR IN DEFFERING TO THE STATE COURTS

ERRONEOUS FINDINGS THAT THE PROSECUTION HAD NOT COMMITTED

VARIOUS ACTS OF MISCONDUCT PREJUDICIAL TO MR. GARCIA' AND

VIOLATIVE OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF THE

LAW AND THE EQUAL PROTECTIONS THEREIN WHEN THE SIXTH CIRCUITS

DISCISION WAS BASED ON A FLAGRANT MISREADING OF THE TRIAL

RECORD AND STATE COURT HOLDINGS?

PETITIONER ANSWERS: "YES"

DID THE SIXTH CIRCUIT ERR IN DETERMINING THAT THE TESTIMONY

PROVIDED BY STATES EXPERT WITNESS HAD NOT DEPRIVED MR. GARCIA

OF HIS FUNDAMENTAL RIGHT TO DUE PROCESS WHEN SHE PROVIDED

KNOWN FALSE "SUBSTANTIATION" TESTIMONY BEFORE THE JURY?

PETITIONER ANSWERS: "YES"

DID THE SIXTH CIRCUIT AND DISTRICT COURT ERR IN DEFFERING TO

THE STATE COURT FINDINGS THAT MR. GARCIA HAD NOT BEEN DENIED

HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL

AT TRIAL, WHERE COUNSEL FAILED TO CONDUCT ANY INDEPENDANT

INVESTIGATION INTO READILY AVAILABLE INFORMATION, CALL WITNESSES,

AND ENTER INTO EVIDENCE EVIDENCE IN SUPPORT OF HIS ACTUAL

INNOCENCE AND THEORY OF FABRICATION?

PETITIONER ANSWERS: "YES"

DID THE SIXTH CIRCUIT ERR IN DEFFERING TO THE STATE COURT

FINDINGS THAT MR. GARCIA HAD NOT BEEN DENIED HIS SIXTH AMENDMENT

RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL WHERE

COUNSEL HAD EFFECTIVELY ABANDONED HIM, FAILED TO INVESTIGATE

HIS CASE, FAILED TO CONSULT OR MEET WITH HIM, AND FAILED TO

RAISE MERITORIOUS ISSUES DIRECTLY RELATED TO HIS ACTUALL INNOCENCE

AND THEORY OF FABRICATION?

PETITIONER ANSWERS: "YES"

DID THE SIXTH CIRCUIT CAUSE MR. GARCIA TO SUFFER A MISCARRIAGE

OF JUSTICE WHEN IT FAILED TO PROPERLY ASSESS HIS CLAIM OF ACTUAL

INNOCENCE BASED ON NEWLY DISCOVERED EVIDENCE "MATERIAL" TO MATTERS

OF CONSEQUENCE AND SUPPRESSED BY THE PROSECUTION AND WHERE STATE

AND DISTRICT COURT MISAPPREHAENDEDTHEFACTS AND ERRONEOUSLY

CONSTRUED HIS EVIDENCE AS EVIDENCE PREVIOUSLY PRESENTED WHEN

IN FACT, IT HAD NOT BEEN?

PETITIONER ANSWERS: "YES"

LIST OF PARTIES

All Parties appear in the caption of the case on the cover page

TABLE -OF -CONTENTS

OPINIONS BELOW ...........................................................1

JURISDICTION.............................................................

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

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

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

CONCLUSION...............................................................

INDEX TO APPENDICES

APPENDIX A---Opinion (unpublished) of the Sixth Circuit Court of Appeals

Case No. 17-1951

APPENDIX B --- Opinion (unpublished) of the U . S. District Court for the Eastern

District of Michigan (Southern Div.) Case No. 2:15-cv-14019

APPENDIX C---Order of the Oakland County Circuit Court (mi.) on Motion for

Motion for New Trail; Case No 08_22134_FC

APPENDIX D---Unpublished Opinion of the Michigan Court of Appeals on direct

Appeal. Case No. 269432

APPENDIX E---Order of Michigan Supreme Court on Application for Leave to Appeal

• Case No, 141584, and Motion for Reconsideration Case No, 141584(1+9)

APPENDIX F---Order of Oakland County Circuit Court (Mi.) on collateral Motion

for Relief from Judgment in original Case No. 06_221344_FC

APPENDIX G---Michigan Court of Appeals Order Granting Leave to Appeal Order

of Circuit Court, Case No. 309081

APPENDIX H--- Unpublished Opinion of Michigan Court of Appeals Case No. 309081

APPENDIX I---Order of Michigan Supreme Court on Application for Leave to Appeal

Case No. 149340; and on Motion for Reconsideration Case No,

149340 (108)

APPENDIX 3--- Formal Complaint, Attorney Disciplinary Board Hearing and Sanctions

on Complaint filed by Mr. Garcia against Appellate Attorney James

C Hall

APPENDIX K---Suppressed and Newly discover Prior Police investigation concerning

witness Letimer, Alleged predatory communication

APPENDIX L --- Order of Oakland County Circuit Court (Mi.) on Successive Motion

for Relief from Judgment in original case No, 06-22131+4_FC

vii.

TABLE OF AUTHORITIES

PAGE

Alcorta v. Texas, 335 U.S. 28 (1957) ....................

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

Argensinger v. Hamlin, 407 U.S. 25,31 (1972).............................21,24

Berger v. United States, 295 U.S. 78,88 (1935) .............................10,13,15

Brady v. Maryland, 373 U.S. 83 (1963).....................................15,16,314.,37

Chambers v. Mississippi, 4.10 U.S. 284(

).................

Cuyler v. S1lin,44.6,U0S. 335,.34.4.(1980) .............................21,21.

Donnely v. DeChristofono, 1.16 U.S. 637 (1974)..., .......................10

Douglas v. California, 372 U.S. 353 (1963) .....................

Engle v. Iaacc, 4.05 U.S. 107, 135 (1982) .................................40

Entsminger v. Iowa, 386 U.S. 784, 752 (1967) .............................30

Evitta v. Lucay, 496 U.S. 387 (1985) ...........

. .

29,30

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

Gid&on v. Wainwright, 372 U.S. 335, 343-44. (1963) ........................21

Giglio v. United States, 405 U.S. 150 (1972) .............................35

Griffin v. Illinois, 351 U.S. 12, 20 (1956)...............................29

Haskins v. Lecraux, 1994 U.S. App. LEXIS 2693 (6th Cir.).................32

Johnson v. Zerbst, 304 U.S. 458, 462 (1938) ..............................21,24

Kimmelman v. Morrison, 1.77 U.S. 356, 383 (1986) ..........................22

Kyles v. Whitely, 514U.9. 419 (1995) .......... ..........................16,40

Kuhlman v. Wilson, 1.77 U.S. 436 (1986) ....................................40

Lavender Adm'r v. Kurn, 327 U.S. 64.5, 653-66 (1946) .....................37

Lucey v. Kavanaugh, 724 F.2d 560 (6th Cir. 1964)..... . .................. 29

Maples v. Thomas, 565 U.S. 266 (2012) ....................................30

McMann v. Richardson, 397 U.S. 759, 771 (1970) ............................28

Miller v. Pt,386 U.S.1 (1976) .......................................... 12,13

Montana v. Englehoff, 518 U.S. 37, 43 (1996)... .......................

Mooney v. Holohan, 294 U.S. 103 (1935) ..................................19

viii

TABLE OF AUTHORITIES

PAGE

Murray v. Carrier, 477 U .S. 478, 495-96 (1986) ...........................40

Naoue v. Illinois, 360 U.S. 264 (1995) ...................................17,19,20,36

16,38

People v. Chenault, 495 Mich. 1142, 152 (2014) ..............................

People v. Savides, 136 N.E. 2d 853 84•NV(1956) ............................17

21,21i,29

Powell v. Alabama, 387 U.S. 45, 67 (1932) .......... ...

Pyle v. Kansas, 317 U.S. 213 (

)........................................19

Roeencrantz v. Lafler, 568 F.3d 577 (CA 6. 2009) .........................36

Schuip v. Delo, 513 U.S. 298 (

)......................................33

Seymeure v. Walker, 224 F.3d. 5142, 552 (6th Cir. 2000) ...................18

Strickland v. Washington, 466 U.S. 668, 687 (1984) .......................21-24,33

United States v. Bagely, 437 U.S. 667 (1985) ..............................38,40

United States v. Cronic, 1.66 U.S. 648, 658 (1984)..: .....................32,33

Wsahington v. Watkins, 655 F.2d 1346, 1356 (5th Cir. 1981) .......... ....27

Wilson v. Workmen, 577 F.3d 1284, 1308 (10th Cir. 2009) ..................34

OTHER AUTHORITIES

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

8 U.S.C. § 2254

.......

27,30

Mich. Const. 1963 Art. 1 § 17,20................. .. ..........................

U.S. Cnat, Am .......

....

........

U.S. Const.. Am 6 ........................................................2,17,21

2,17,21

U.S. Const. Ami6 ...... ..................................................

_______-

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitoner respectfully Preys that a wrot of certiorari issue

to review the judgment below of the Si<th Circuit Court of Appeals

and thier judgment rendered in these proceedings on February

5, 2018.

OPINIONS BELOW

The Opinion of the United States Court of Rppealfar

the Sixth Circuit in it's cause No. 17-1951 appears at Appendix

A. The Opinion of February 5, 2018 is Unpiblished.

The Opinion of the United States District Court for

the Eastern District of Michigan (Southern Division) in it's

Cause No. 2:15_cv_14018 appears at Appendix B. The Opinion of

August 1 , 2017 is Unpublidhed,

Oakland County Trial Court (i.e., Michigan) denied

Pro Per Motion for New Trail in it's original cause No. 08-221344FC on November 13, 2008 and appears at Appendix C

Michigan Court of Appeals denied Appeal of Right in

Cause Na. 289432 on June 17, 2010 in an Unpublished Opinion,

and appears at Appendix D

Michigan Supreme Court Denied Application for Leave

to Appeal in cause Na. 141584 on November 22, 2010 reported at

1+88

Mich. 91+9; 790 N.W.2d 399 (2010). Motion for Reconsideration

was denied at 489 Mich. 862; 795 N.W.2d 142 (Dec. 13, 2010) And

appears at Appendix E

Oakland County Trial Court (i.e., Michigan) denied

Pro Per Motion for Relief from Judgment on collateral review

in original cause No. 08-22131+1+-FC on December 11+, 2011 and appears

at Appendix F

Michigan Court of Appeals granted Leave to Appeal on

November 26, 2012 in the above cause No. 309081 and appears at

Appendix G

Michigan Court of Appeals on March 27, 2011+ denied

Application in the above cause No. 309081 and Appears at Appendix

H. This is an Unpublished Opinion

Michigan Supreme Caurt'denied Application for Leave

to Appeal on October 28, 2011+ in an Unpublished Opinion duèNo.11+93L,.0

at 1+97 Mich. 888; 851+ N.IJ.2d 738 (2011+): Motion for Reconsideration

was denied an March 31, 2015 and is listed at 1+97 Mich. 985; 861

N.W.2d 21 )12015) Cause No. 11+031+01108) and appears at Appendix I

Order of Oakland County Circuit Court (ML) on successive Motion

for Relief from Judgment in original cause No. 08.221341+_FCAppendix L

STATEMENT UNDER RULE 29,6

Petitioner, In Pro Se hereby discloses and notes that there is no parent

or publicly held company owiiig.10% or more of any corporation's stock involved

in this matter.

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

UNITED STATES CONST. 5th AMEND:

person shall be held to answer for a capital, or otheruis 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 malitia + when

in actual service in the time of war or public danger; nor shall any

person be subject to the same offence to be twice put in jeapordy of

life or limb; nor shall be compl1ed jo anv.riinal case to be a witness

against himself, nor he deprived of lire, 11 er y, or, property, without

due process of law; nor shal private property be taken for public use,

without just compensation.

UNITED STATES CONST.. 6th AMEND:

"In all criminal prosec'!itions, 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 corhmited, 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 witnesses against

him; to have cotnpusory process for obtaining witnesses in his favor,

and to have the assistance..-- of counsel for his defense.

UNITED STATES CONST. 14th AMEND.

"Section 1. 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

ot the United States; nor shall any state deprive any person of life,

liberty, or property without due process of law; nor deny any person

within it's jurisdiction the equal protection of the laws,"

STATEMENT OF THE CASE

Mr. Garcia was accused, tried by a jury, and convicted of multiple counts

of first and second degree criminal sexual misconduct (MCL 750.520b(1)(c);

MCL 750.520c(1)(a)) alleged to have been committed against his step-daughter

when she was betwee the ages of 11-13. And was sentenced to a term of 23 years

9 months to 50 years in the Midhigan Department of Corrections in Case No.

00-221 3L+LF _FC.

Mr. Garcia's trial consisted of no physical, medical DNA, or eyewitness

evidence that would support the allegations against him. The states case rested

entirely an circumstantial evidence, hearsay testimony, perjured testimony,

and the prosecutions artful'misrepresentation of the facts, suppression of

evidence, cieating facts not in evidence and as stated above, the presentation

of known false ttinony. The prosecution called Four witnesses, the alleged

complainant, a friend of the complainant, the complainant's mother, and an

expert in the field of why children delay disclosure.

The prosecutions theroy was that Mr. Garcia had taken advantage of his

position and the complainant ' s trust and love for him to sexually abuse her

while her mother worked. And that the alleged crimes were nothind more than

crimes of opportunity. While at the same time advising the jury that there

was "no physical evidence to show a crime had been committed.

The states first witness was a childhood aqusintence, Marissa Latimer,

who testified that her only alleged knowledge of the allegations against Mr.

Garcia came in the form of a letter she had found taped to the complainant's

school locker some years prior to the actual trial. (TI Vol. I p. 253-55)

The letter, as she testified, was a communication that she says made allegations

of something sexul had allegedly taken place between Mr. Garcia and the alleged

complainant. (Id at 253-255) There was conflicting testimony as to how -this

note came to the attention of Mr. Garcia. However, witness Latimer testified

that she had taken this letter to her mother, (Id at 254) whO in turn gave

this note to Mr. Garcia as a result of her allegedly calling him to discuss

the contentd.'of this note (Id at 254). Latimer's mother was never celled or

questioned on this matter.

Latimer testified that she had suspected a mutual friend may have participated

in the writing of this note. However, no questions were asked to identify

this person, or who these people may have been. Latimer also testified that

some years earlier to trial, and during a sleep over she had at the complainant's

home, that Mr. Garcia had made inappropriate comments about his genitals.

(Id at 257-59).

The prosecutions next witness was Jennifer Hart, (Complainant's mother)

who testified to the closeness of the complainant and Mr. Garcia (TI Vol.

II p. 9-10, 30-31), and that she Hart) had dated Mr. Garcia in highschool

and had not reconnected with him until years later, ndthàt the[hd thrrid

in 2006. (Id at p. 6-8). Hart testified that her and Mr.Garcia had a child

together in 2005 (0.0.0. 5-13-2005) (Id at p. 6) Hart testified that the complainant

had been Jealous of her half-sister. 1.

Hart testified that it was Mr. Garcia who had brouoht the "letter" and

it's disturbing nature to her attention, and that she had advised him to take

it to the parent of the child they beleived had written or taken port in the

writing of the letter.(d at p. 12_11+, 34) Hart, herself did not speak to

the parent (Latimer's mother) (Id at p. 13-14) But testified that because

of the disturbing nature of the note, that she had saved it so that she could

"possibly" present it to authorities in the future. However, at the time of

trail she testified that she could not find the letter. That it had come up

missing.. (Id at 11+_15) Hart Never testified that the note-mentioned Mr. Garcia

by name or title, (step-father).

Hart testified that the complainant had not mentioned the allegations

until after Mr. garcia had left the horns in 2007 (Id at p. 15). However, also

providing testimony that prior to the complainant's alleged disclosure, she

had confronted the complainant, and had asked on multilpe occsassions if anything

had taken place between her and Mr. Garcia, To which the complainant had answered

"NO11 on multiple accessions (Id at p. 15-16). Yet, the following day she alleges

that ther complainant conceaded to the allegations, but decided not to report

them, and this was to respect her minor daughters I1privacey.11 (Id at p. 1618).

Hart later testified that she reported the allegations to her Court Ordered

therapist in November of 2007, but that nothing ever came of it. (Id at p.

19, 37-38). It wasn't until March of 2000 when Hart informed complainant's

biological father, who was in California, of theses allegations. Thoughthere

•

exists no testimony

tà why

decided to dicloe to the

€her iththt

than to authorities. (Id at p. 6, 31). Hart then testified falsely that the

complainant and her sister were removed from her care and custody after she

was forensically interviewed at the Care House, and that her parental rights

were terminated. (Id at p. 21-23, 45).

Hart testified that "it was the strangest thing" that while she sat in

her home in Walled Lake Michigan, Mr. Garcia at some-unknown location, and

the complainant's father in California, she picked up the receiver to her

telephone in her home, and somehow, she heard the voice of Mr. Garcia, and

of the complainant's father having a conversation saying uncaniplimentiary

things about her. Which she then put on speaker phone for the complainant

to hear. Which upset the complainant. (Id at p. 39-43).

Several allegations arose, which undermined Hart's testimony. First,

Hart took complainant to the Doctor in July of 2007 for a physical. At the

appointment, and in his/her official report, (which was documented), the physician

noted that the complainant had "No History of Sexual Intercourse'.11 (Id, at

P. 48-49). Second, Biological father had heard Hart telling the complainat

to recant, that they ndeded to end the joke, and that if the investigation

continued, to plea the Fifth. And had threatened the biological father that

she and the children would flee to Canada, (Id at p. 45) Which was in fact,

the REAL reason that the children were removed from the home, HArt also palced

a call to Mr. Garcia's mother just days before the trail began, informing

her that Mr. Garcia needed to contact her and that she "was the only one who

could save him,' Hart, however, testified that she "Did not recall" ever making

that statement. (td at p. 46, 52).

The Complainant who was 15 at the time of the trail testified that she

and Mr. Garcia had a normal father/daughter relationship (Id at p. 71), but

taht it had changed before she entered the 6th grade, that he and put his

hand down her pants while they watched TV. (Id at p. 73-75) Also during the

same year that the letter was found taped to her locker indicetiong that her

and her "dad" had a sexual relationship, which SHE took home and gave to Mr.

Garcia. The letter did not specifically name Mr

Garcia, but rather referenced

her "dad". Complainat believed that witness Latimer had written the letter,

(Id at p. 112-113).

Pccordino to the complainat, ths activity escalated into oral sex and

intercourse (Id at p. 93_94) and Mr. Garcia would place his fingers into her

vagina, and that he had made inappropriate comments in her presence and in

the presence of witness Latimer. (Id at p. 99).

Complainant testified the alleged sexual contact continued until around

Christmas of 2005, and as a result of a "Dr. Phil" show that she had watched

during a Court Ordered visitation with her father. (Id at p. 102).

Complainat

did not discios alleged abused to her mother until she was in eighth grade

and after she was repeatedly questioned by her mother, who had woke her up

in the middle of the night. And after having initially denied any such activity,

later conceaded that it had happened. (Id at p. 105).

Complainat testified to never haiihg been forced or threatened by Mr.

Garcia, and that she had been untruthfull to her mother, and the Care House

interviewer, but that she was being truthfull at trial (Id at p. 136-137).

Complainat testified that she had over heard the conversation between her

father and Mr. Garcia where they were talking about helping him got custody

of the complainant. She also testified that this call took place "Before"

she had disclosed the alleged abuse to her mother or the authorities. (Id

at p. 109), That she felt betrayed by Mr. Garcia (Id at p. 1B),and that she

did not like her father and did not want to live with him. (Id at P. 138).

The st~or-q final witness, Amy Allen, a social worker atcarehouse, testified

as a forensic interviewer of chidren and in charicteristics of children who

report abuse (Id at p. 171, 180). Allen testified falsely that cases of this

nature would be refered to her by carehouse once the allegations had been

substantiated for sexual abuâe,: Intimating that she had only/gotten involved

in the case aginst Mr. Garcia because CarehOuse/CFS Had Substantiated that

the complainat Had Been Abused. When asked by the prosecution what sfie meant she

answered "meaning they had at lenst.substantiated that the child had been sexually

abused. (Id at p. 208-209). The witness did not testify as to how this alleged

substantiation was made.

For the Defense, Mr. Garciats coulel celled one witness,. who testified

outside the presence of the jury. Sudie Super. Mrs Super testified that witness

Hart had called her prior to the trial asking that she have Mr. Garcia call

her (i.e.., Hart) because she was the only one who could save him. (Id at p.

221). Vet, while armed with this testimony, favorable to Mr. Garcia's theory

that witness Hart had in fact fabricated the allegations against him, Mrs.

Super was never called to testify before the jury. In fact, counsel called

no witnesses, even though Mr. Garcia had provided several witnesses he wished

to be called, and were present and available to do so. Most notably was Mr.

Thomas Jaworski, a former paramou of Hart, whom she had also previously accused

of rape and would have raised serious issues regarding. Hart's credibility

and matiie to fabricate the allegations against Mr. Garcia. Morever trial

counsel did not call Mr. Garcia to testify at hi trial dispite his overwhelming

desire to do so. Nor did counsel consult with or call an expert witness to

rehutt the testimony of the prosecutions expert.

Pain, this was a case riddled with misrepresentations of the evidence,

the creation of evidence and testimony that simply did not exist. Hearsay

testimony of non-existent evidence at trial used to corroborate that evidence,

though never having been seen by the jury or presented in any court room prior

to trial known false testimony of witnesses and even the solicitation of

known false testimony of witnesses (i.e., the states own expert), as well

as sup'essed evidence favorable to Mr.. Garcia in support of his actual innocence

and theory of fabrication. There was NO physical evidence, NO medical evidence,

NO DNA, and NO eyewitnesses to this alleged crime that would even remotely

have linked Mr. Garcia to the crimes alleged. And an overwhelming abundance

of evidence to support his innocence never presented. And there could have

been no evidence of guilt as there was NO CRIME COMMITTED.

REASONS FOR GRANTING THE WRIT

I. THE SIXTH CIRCUIT ERRED IN DEFFERING TO THE STATE COURTS ERRONEOUS

FINDINGS THAT THE PROSECUTION HAD NOT COMMITTED VARROUS ACTS OF

MISCONDUCT PREJUDICIAL TO MR. GARCIA AND VIOLATIVE OF HIS CONSTITUTIONAL

RIGHTS TO DUE PROCESS OF THE LAW AND THE EQUAL PROTECTIONS THEREIN

WHERE THE SIXTH CIRCUIT COURTS DECISION WAS BASED ON A FLAGRANT

MISREADING OF THE TRIAL COURT RECORD AND STATE COURT HOLDINGS.

AND AN UNREASONABLE APPLICATION, AND CONTRARY TO CLEARLY ESTABLISHED

SUPREME COURT LAW.

In this case, Mr. Garcia argued before the state courts, and federal court's

below, that he had been denied his right to a fair trial, and his right to

Due Process of the Law as guarenteed by the United States Constitution's Sixth

Amendment, and Fourteenth Amendment by way of various acts of prosecutor misconduct. The various acts alleged, and supported by a complete reading of

the record below, consist of; 1). the prosecutions improper and prejudicial

bolstering of witness credibility; 2) the withholding and deliberate suppression

of exculpatory evidence; 3) the artful arguing of facts not on the record,

or in evidence; 4) the presentation of known false testimony; 5) prejudicially

misrepresenting the- facts that were in evidence, and; 6) becoming an unsuorn

witness against Mr. Garcia by placing into the mouths of witnesses things

they had not said.

In determining whether certain offensive comment which are made during

the course of the prosecutors closing argument rendered a trial fundamentally

unfair, the relevant question for the court is whether those comments so

infected the trial with unfairness as to make the resulting conviction a denial

of Due Process." Donnely v. DeChristofono, 1+16 U.S. 637 (197/4). Moreover,

the appropriate standard of review for such a claim on writ of habeas corpus

is "the narrow on of due process, and not the broad exercise of superviosory

power." Id at 61+2.

The Court in Berger v. United States, 295 U.S. 78,88 (1935) stated:

"The United States Attorney is the representive not of an ordinary

party to a controversy, but of a soverignity whose obligation to

govern impartially is as compelling as it's obligation to govern at

all, and whose interest, therefore, in a criminal prosecution is

not that it shall win a case, but that Justice shall be done. As such,

he is in a particular and very definate sense the servant of the

law, the two-fold aim of which is that the guilty shall not escape

or innocence suffer. He may prosecute with earnest and vigor--indeed,

he should do so. But whll he may strike hard blows, he is not at

liberty to strike foul ones. It is as much his duty to refrain fromimproper methods calculated to produce a wrongful conviction as it is

just one."

to useevery legitimate means to bring about

Though the prosecution in this case is a state official, this court must

still deal with the aspect of a fair trial which is implicit in the Due Process

Clause of the Fourteenth Amendment by which the states are bound. Chambers

v. Mississippi, 1+10 U.S. 281+ (

). The state court's and the lower federal

courts, on this matter in reviewing Mr. Garcia's claims seem to have, and

without the benefit of an evidentiery hearing, and what appears to be only

a partial reading of the record with seemingly no reading of the pleadings

filed and placed before the court by Mr. Garcia,centered around "one part"

of Mr. Garcia's argumnet having to do with the prosecutions vouching for the

alleged victrims credibility, and discounting all other comments made before

the jury thateither bolstered credibility, vouched for witnessea,or placed

words into the mouths of witnesses things they had not said, created evidence

that did not exist, and grossly misrepresented the facts that had been presented.

It wasn't simply the prosecutors comments at closing; 'She must tell the truth

when I ask it." That Mr. Garcia believed was an improper suggestion to the

jury that she believed the complainant HAD told the truth. It want much deeper

than that. The prosecution argued falsely to the jury that Mr. Garcia, when

addressing the letter alleged to have been found on the complainant's school

locker, and the presentation of the false testimony concerning it's contents

which was alleged to have said that Osomething sexual" had taken place between

Mr. Garcia and the complainant that he "laughed and joked" about it. (IT Vol.

III p. 25) This testimony did not exist. And she in essessence asked the jury,

by way of reference to this created testimony and evidence to believe, that

in fact, Mr. Garcia, because of his reaction (alleged) was some how presenting

a consciousness of guilt, and that they should beleive he had commited the

crime because of it. And there was nothing in the content of the testimony

presented at trial that even remotely suggested that Mr. Garcia had not taken

the contenttlof this letter seriously. In fact, testimony supports that Mr.

Garcia in his concern, actually confronted the parent of the child beleivad

to have been involved in the creation of this letter. As well as his contacting

school officials to address what he believed was an escalating feud between

the complainant and witness Latimer. And Mr. Garcia would ask this court as

the prosecution did the jury, "Does this speak to his mindset? He would suggest

that it certainly does not infer or point to someone who is guilty of such

horrible allegations, that he would bring attention to himself by confronting

the parent of the person who is alleged to have found the latter and then

to communicate this information to school authorities to prevent further escalation.

And it should be noted, that this alleged letter was a communication between

multiple parties. Something the prosecution failed to address,and it was intended

to hurt or humilliate the complainant. As the note stated specifically:

"Marich told me that she made out with her "dad",

she said he video taped it, and she liked it."

and

This note was testified to having been kept by the complainant's mother

yet was never presented in court. And none of the possible authors of this

note, which was testified to by witness Latimer to have known or suspected

who had written it. (IT Vol. I p. 246). The state court's, however, assumed

the authors of this note wished to remain anonymous. And the prosecutions

unsubstantiated claims and manipulation of this evidence, which was more than

merely disturbing, if true, is likely to have had an important effect on the

jurys determination, as it was the only link that might possibly connect Mr.

Garcia to the allegations against him. See Miller v. Pate, 356 U.S. 1 (1967);

where in that case, the prosecution had falsely described a paint stained

pair of underweer as being covered in blood.

The prosecution in the instant case, not only in it's misrepresentation

of a never produced letter threw the presentation of false testimony of it's

alleged contents by three witnesses, and also passed a family photo around

the jury that was taken by the complainant's mother at a beach outing, presented

it at closing argumnets as a photo of a boyfriend and girlfrieid. In spite

of testimony that clearly stated that the photo was an innocent family photo..

(TI Vol. III p.26).

P long series of decisions by this court has established the proposition

that the fourteenth Amendment "cannot tolorate a state criminal conviction

obtained by the knowing use of fals evidence." Miller 386 U.S. at 7. It is

one thing for the prosecutions witness to present false testimony, known or

unknown to the prosecution. However, it is an entirely differnt thing when

it is the prosecution itself who is the presentor, and creator of evidence

it knows to be false. And then attempts to mislead the jury into believing

it is anything other than what the testimony claimed it to be. Such improper

suggestions, and insinuations with no evidentiary support are apt to carry

much weight against an accused, when they should carry none. The prejudice

created to the cuase of Mr. Garcia was so highly probable that this court,

in reviewing the entire record could not be justified in assuming it's nonexistance. See Berger 295 U.S. at 88, 89."Such acts of the prosecution are

wholly incompatible with his or her duty to refrain from improper methods

calculated to produce a wrongful conviction, as it is to use every legitimate

means to bring about a just one." Id at 88 and is violative of Mr. Garcia's

Constitutional right to Due Process and a fair trial as guaranteed by the Sixth and

Fourteenth Amendments.

The prosecutthn, also argued falsely, that the complainant

testified that she had waited until Mr. Garcia was "out ot the

home" until, she "felt safe," before she decised to come forward (TI

Vol. III p. 18). This is a total misrepreOentation of the facts and contrary

to the testimony of the complainant and her mother. Complainant never testified

to ever having felt unsafe around Mb. Garcia. Further her testimony was

no that she had gone to her mother, but that her mother had "come .,to her."

She testified that she had woke her up-in the middle of the night and questioned

if anything had ever happened between her and Mr. Garcia. To which she repeatedly

answered "NE]." The complainat's mother testified that over th course of the

relationship between her and Mr. Garcia, that he had been out of the home

for days, weeks and mnths at a time. And notably, at no time during any of

theses extended absences from the home did the complainant ever disclose to

her mother, not did her mother ever confront her on such matters, when there

was more than ample opportunity on the part of both to do so.

The prosecution would then argue, "if she thas lying, if this was all some

plot scheme ... why /not say he abused Haley (his 2 yr. old daughter)." When

in fact, the prosecution know that she and her mother HAD accused him in Family

court of not only assaulting his own daughter, but also his two

ultsisteis,

and an unnamed cousin. The prosecution would also argue that the complainant

couldn't possibly be smart enough to come up with such a plan." But would

infer that she we somehow smart enough to know the law on this matter and

that her mother could get in trouble for failing to disclose the allegations.

When in fact, testimony was presented to the contrary. Testimony stated that

thier reason for not disclosing was not because of any possible legal ramifications,

but rather to "protect the privacy , of the complainant. It should be further

noted that at no time was Mr. Garcia's theory of fabrication attributed to

the complainant. But that the mother was the creator" of the scheme, plot

and plan, and that it bnly came into existence afteMr; Garcia had threated

to expose her criminal activities, drug and alcohol abuse, and the neglect

of the children during the times that he wa not present in the home. And it

was only after the complainant had heard a three-way phone conversation between

her father and him and Mr. Garcia's willingness to aide him in his custody

efforts and to expose her mothers activities that the cornplainat came forward

in support of the allegations.

On more than one accession, the state court of appeals conceaded that

Mr. garcia had substantiated that the prosecution had a r gued facts not in

evidence. That he had prcved witnesses had lied on the stand, and that perhaps

the prosecution had even suppressed evidence favorable to his defense. Yet

for reasons beyond Mr. Garcia's ability to comprehend, these blatant and continued

acts were viewed by the state court and deffered to by the lower federal court

as harmless, not material, or simply back ground noise of no consequence.

However, these continued misstatement of facts, intended to manipulate and

mislead the jury were far from ambigious., These remarks, misrepresentations,

and the litteral creattion of evidence and placing into the mouths of witnesses

things they had not said,..."I waited to disclose until I felt safe'..'He

laughed and joked about the al1egations'...'If this is all a lie, why not

say he abused Haley',. .'why not accuse her father?'... 'This looks like a boyfriend/girl-friend photo to me These and many more, were all lies, misrepresentations

or absolute creations of the prosecutions imagination with no record support.

The misconduct here was not slight or confined to a single instance, but rather

was pronounced and persistent, with a probable and cumulative effect upon

the jury which cannot be disregarded as inconsequential. Berger 295 U.S. at

89.

Finaly Mr. garcia argues that the prosecution violated his right to Due

Process when it willfully suppressed eveidance that was both exculpatory and

material in violation of this court's holdings in Brady v. Maryland, 373 U.S.

93 (1963). The evidence in question was that of the lead detective who had

investigated the case against Mr. Garcia, and. the doubts he had concerning

the allegations and the credibility of his accusers. And then much later,

as discovered by Mr. Garcia via Third Party F.0.I.A. resquest for information

an investigation conducted in 2007 by the same lead detective that included

allegations against Mr. Garcia concerning the states Star witness Marissa

Latimer who had testified at trial to having been called sexy by Mr. Garcia.

The investigation which is discussed later in more detailwas never made available

to Mr. Garcia prior to or during trail. The Michigan Court of Appeals on the *

matter of the detectives doubts as to the allegations stated 'Although the

state could be said to have possed the evidence and the evidence was favorable

to the defendant, defendant could have obtained the evidence with reasonable

dilligence.t A requirement in total contrast with this courts holdings in

Brady supra. Something that even the michigan Supreme Court reiterated only

eight days after teh Michigan Court of Appeals decision in Mr. Garcia's case

in People v. Chenault, 495 Mich. 142, 152 (April L, 2014). Vet that same court

on Application for Leave to Appeal in Mr. Garcia's case did not even address

the question presented by Mr. Garcia, and affirmed the Court of Appeals decision.

The Michigan Court of Appeals also found this evidence of the officers

doubts were not admissible as it was the opinion of another witnesses credibility.

It failed to even consider whether or not his doubts night have been based

on the fact that he had conducted a prior investigation of a similar nature

involving one of the states star witnesses and the evidence that did or did.

not exist in that investigation. This evedence was more than material to the

defense as it uouod have further supported Mr. Garcia's theory of fabrication

and the admission of the detective's doubts to the allegations may, and would

have lead directly to admissible evidence. That is, the suppressed invest

gation of 2007. That include allegations that were later testified to fa1sel,

at trial, regarding the alleged inappropriate use of the internet, and his

alleged calling witness latimer sexy. An

that found that no

crime had existed, and at no time had Mr. Garcia referenced Latimer as sexy.

And it is significant to note, that the evidence against Mr. Garcia as presented

at trial was far less than overwhelming. In fact, there was no physical, medical,

DNA, or eyewitness evidence presented to support that any crime had been committed

at all. Let alone the crimes alleged.

As to matters concerning the withholding and willfull suppression of favorable

evidence against Mr. Garcia, as well as that which was newly discovered, and

proved perjury on thepart of all of the witnesses presented by the state,

and known to be such by the prosecution, Mr. Garcia would point to this courts

rulings in Brady and it's progeny, as well as this court's holdings in Kyles

v. Whitely, 514 U.S. 419 (1995)(The prosecution in a criminal case shall make

timely discloser to th defense of all evidence or information known to the

to the prosecutor that tends to negate the guilt of the accused or mitigates

the offense.)And in Napue v. Illinois, 360 U.S. 264 (1995)(11 A conviction obtained

through the use of false evidence, known to be such by the representives of

the state, must fall under L-S. Const. Amend XI\J, The same result obtains

when the state, although not soliciting false evidence, allows it to go uncorrected

when it appears.'). As stated above, even the Michigan Court of Appeals acknowledged that at least one witness had Had, and rather than remanding, the

court found the lie to be immaterial. A diem that this court should find

offensive in light of the fact that Mr. Garcia's assertion from the statrt

was that it was the complainant's mother who had created this LIE for which

he now stands wrongfully convicted of. As this Court found in Napue supra,

(quoting People v Savides, 136 N.E. 2d 553, BSLfOBSSN.Y. 1956)) 'It is of no

consequence that the falsehood bore upon the witness' credibility rather than

directly upon defendant's guilt. A lie is a lie, no matter what its subject,

and if it is in any way relevant to the case, the prosecution has the responsibility

and duty to correct what he knows to be false and ellicit the truth.' The

prosecution failed to do so here, and the court of eppeles upon finding the

witness to be lying failed to remand this case which is alleged by Mr. Garcia

to have been based on lies. And his exposing of those lies, especially that

of the one's he alleges created the lies would most definátely have been relevant

to Mr. Garcia's case.

For the reasons stated above, The Judgment of the Court of Appeals should

be remanded for further Proceedings consistent with the discussion above,

and tnelysis as presented on Mr. Garcia's claims of prosecutor misconduct

and the deprivation of his Sixth and Fourteenth Amendment rights to Due Process

and a fair trial.

'17

II. THE SIXTH CIRCUIT ERRED IN DEFFERING TO DISTRICT COURTS

RULING AND DETERMINING THAT THE TESTIMONY PROVIDED BY

STATES EXPERT WITNESS HAD NOT DEPRIVED MR. GARCIA OF HIS

FUNDAMENTAL RIGHT TO DUE PROCESS WHEN SHE PROVIDED KNOWN

FALSE "SUBSTANTIATION" TESTIMONY BEFORE THE JURY.

The Sixth Circuit on this matter, as did the District Court, simply missed

the mark when bath court's found Mr.Garcia's claim to be nothing more than

an evidentiary error. Mr. Garcia's clanwas that the states expert hadn't

just provided testimony that we substantially unfair and prejudicial, but

that it was alitogether "FALSE',' and rising to the level of a Due Process violation

where it "offend[s] some principle of justice so rooted in the traditions

and conscience of our people as to be ranked fundamental

Seymour v Walker,

224 F.3d 542, 552 (6th Cir. 2000)(quoting Montana v. Egeihoff, 515 U.S. 37,

43 (1996). Neither the Sixth Circuit or the District Court addressed the falsity

of the testimony presented by Mr. Garcia. The District Court erroneously reasoned

that it would have been unsurprising to the jury that some govermental agency

had thought the allegations had been substantiated enough to warrant criminal

charges. (See Appendix-B E.D.Mich. Opinion and Order, Garcia v Burt, 2:15-

cv-14018p. 20). As argued by Mr. Garcia before the Sixth Circuit, the mere

fact that he sat before the jury accused was more than sufficient to inform

them that some governmental agency thought something existed that warranted

criminal charges.

However, that was nottha testimony that was fraudulently advanced by

the expert. And at the instruction and urging of the prosecution, who knew

prothis testimony to be false, as there had been no prior hearing or formal proceedingq

ceeding to make such determinations of fact.

Ms. Allen, the states expert testified that she had accepted refferals

from Protective Services who had substantiated them for abuse. To be sure

as to what Ms. Allen meant by this testimony, and to clarify any doubts the

jury may have had concerning this testimony, the prosecution questioned Ms.

Allen. in the following manner;

El: "When you say substantiate for sex abuse, what do you mean?"

A: "Meaning they had at least substantiated that the child HAD BEEN

SEXUALLY ABUSED."

Thus removing any notion as to What any other governmental agency may

have Thought. Which may be construed as to "what some other governmental agency

may have "imagined." There is a huge gap in terms of definition as to what

it means to have a thought, and what it means to substantiate something. Thought

as defined by Webster 's New World College Dictionary (Fourth Ed.) means;

1) The act or process of thinking; reflection; meditation; 2) Power

of reasoning or conceiving ideas. imagination

To substantiate as defined by the same dictionary is defined as;

) to show to be true or real by giving evidence, to prove, confirm.

And Ms. Aliens testimony was clear and unarnbigious. It wasn't a matter of

what she believed about children who claimed abuse. It was that she had testified to

falsely, and with the knowledge of the prosecution. Nothing had been substantiated

at that point. Nothing had been proved, or made real. And there was no evidence

presented by the Protective Services on this alleged substantiation upon which

the jury might weigh and determine the credibility of the testimony or the

evidence for themselves.

This Court, again in Napue supra, held;

A conviction obtained through

use of false evidence, known to be such by the represantitives of the state

must fall under the Fourteenth Amendment." See also Mooney v. Holohan, 2914

U.S. 103 (1935); Pyle v. Kansas, 317 U.S. 213 "The same result obtains when

the state, although not soliciting false evidence, allows it to go uncorrected

when it appears." See AlcortaTexas 335 U.S. 28 (1957). However, in Mr. Garcia's

case, and as addressed above, the prosecution clearly solicited what she had

to know, or should have known to be false testimony. And neither the District

courts finding that it would not have been surprising that some other govermental agency "thought" a crime had been committed, and the Sixth Circuit's misplaced

holdings that Mr. Garcia had "not clearly identified how Child protective

services determination alone proved to be "crucial, critical highly significant

factor," removes the taint of this f alse testimony,. The Court uainmiees

the point, "Protective Services HAD NOT yet made any determinations to auport

the false and prejudicial testimony of the expert. See Napus supra it 261,.

Futhnr, it wasn't simply the alleged unsubstanticted"subetantiation"

. that Child protective services that Mr. Garcia was attacking.

testimony, or claig

It was the false and highly prejudicial testimony of the states expert, and

the state, that presented no such proof of this alleged "substantiation" by

Protective Services, which was in fact, a crucial, crictical highly significant

factor," in the guiltys determination of guilt. As Mr. Garcia haN alleged

from the beginning, he id Actually Innocent, and the allegattdra3 were a fabrication

of the complainant's mother, and only later supported by the complainant.

The false testimony of the states expert gave the jury. the false impression

that the allegations had, in fact, already been proven to be true. And this

is not in accord with the Due Process of the law and unfairly prejudiced Mr.

Garcia and tended to refute his claims of innocence. end fabrication before

ever even being given the opportunity to present his defense ., An& further

removed from the jury, thier duty to judge and weigh the evidence presented

on thiar own, and free of such cunclusive statements that had not been, in

fact, substantiated by any one.

As such, the decision of the Court of Appeals should be reversed. The

case should be remanded for development of the evidence and a determination

of whether Mr. Garcia's Due Process rights were violated in the presentation

of known false testimony. Napue v.. Illinois, 360 U.S. 26 (1959), and should

result in the reversal of his wrongfull conviction..

III. THE SIXTH CIRCUIT AND DISTRICT AND: CIRCUIT COURT ERRED IN

GARCIA HAD

DEFFERING TO THE STATE COURT FINDINGS THAT MR.

THE 7EFFECTIVE

NOT BEEN DENIED HIS SIXTH AMENDMENT RIGHT TO

ASSISTANCE OF COUNSEL AT 'TRIAL

COUNSEL:"FAILED ro

CONDUCT ANY INDEPENDENT.INVESTIGATION" INTO READILY AVALIABLE

INFORMATION, CALL WITNESSES, OR' ENTER INTO'EVIDENCE tVIOEJICE

IN SUPPORT OF HIS ACTUAL INNOCENCE AND THEORY OF FABRICATION.

A claim of ineffective assistance of counsel, is made when a defendant

shows; (1) that,'he did not receive representation within the range of competence

demanded of attorneys in criminal cases and (2) that counsels failing impaired

the presentation of his defense without regard to whether the outcome would

necessarily have been different. The Sixth Amendment is violated by representation

that falls outside the range of competence demanded of attorneys in a criminal

case.

In this case, trial counsel was ineffective for a multitude of reasons,

and contrary to those rulings of the state and federal lower courts they were

objectively unreasonable applications of Strickland v. Washington, 466 U.S.

668, 687 (1984). The Federal Constitution guarentees that"(i)n.11 criminal

prosecutions the accused shall enjoy the right. ..to have the, assistance of

counsel for his defense." U.S.Const. Am. VI, XIV. The Court has frequently

emphasized the "fundamental" nature of this Constitutional provisior,'Gidson

v. bliinwright, 372 U.S. 335, 343-1+4 (1963). Sincet (t]he assistance of counsel

is,often a requisite to the very existance of a fair 'trial.'!. 'Areinger V.

Hamlin, 407 U.S. 25, 31 (1972) See e.g., Cuyler V. Sullivan, 1+46 U.S. 335,

341+ (1980); 3ohneon.v. l.rb.t, 301+ U.S. 458, 462. (1938);...P

liv. Alsba,

387 U.S. 65,67 (1932).

The test established by this court for determining effective assistance

is two fold; Whether "counsel's parformace was deficient, "and if so" whether

that deficient performance prejudiced the defense," Strickland supra at 687.

Counsel's performance is deficient if it falls below an "objective standard

of reasonableness" under "prevailing norms." Id at 688. The defendant is prejudiced

where "there is a reasonable probility that, but for counsel's unprofessional

errors, the result of the proceedguould •heve'beendiffrent:. A reasonabl

probablity is a probability sufficient to undermine confidence in the outcome."

Id at 694. A single serious error by counsel is adequate grounds for an effective

assistance of counsel claim. Kk.sI.ui v. Harrison, 477 U.S. 3569 383 (1986).

First, in Mr. Garcia's case, the trail counsel was ineffective when she

failed to call, or interview Witnesses. Mr. Garcia had presented counsel with

a list of ten (10) witnesses who would have attacked the credibility of the

prosecutions witnesses and would have supported Mr. Garcia's claimof actual

innocence, and theory of fabrication.. These names were provided long before

trial began. Trial counsel, however, in an attempt to give the "appearance

of effective representation, scheduled a "group" interview with at least seven

of Mr. Garcia's witnesses. Prior to actually interviewing the witnesses, she

was asked repaetedly if she planned to defend Mr. Garcia to the fullest, and

advocate his innocece vigioriously. Trail counsel instantly took offence to

theses questions and terminated the scheduled meeting. No other interviews,

or attempts to conduct them individually was ever made. Mr.Gt'cia argues

that this decision was "objectively unreasonable." As without ever having

questioned any of his witnesses, or the detective in charge of the investigation,

and failing at any time to even consult, or meet with any potential rebuttal

experts in the field, or to investigate Mr. Garcia's claim of innocence and

theory of fabrication. She had no way of knowing the value of these witnesses

or what evidence such an investigation might uncover. Further, she made a

determination as to what the jury might think of these ipotential witnesses.

A duty that was not for her to decide. It would have been the province of

the jury to determine the weight and credibilty of teevidence or testimony

presented. Counsels duty was simply to "make resonable investigations, or

to make reasonable decisions that make particular investigations unnecessary ,"

Strickland supra at 690.=Here, counsel made no investigation at all. Which

cannot be deemed reasonable by any "normal standards" of that day or 'any day

to follOw. Especially in a case where the -'prosecution offered no physical,

medical, DNA, or eyewitness testimony or evidence that a crime of any kind

had been committed. Let alone a crime with such serious consequences., and

where Mr. Garcia had provided counsel with an abundance of evidence consisting

of alleged complainant's medical report from July~lof 2007 that showed NO HISTORY

of SEXUAL INTERCOURSE. Tattoo and birth mark evidence, a letter written by

the complanent to California courts making similar claims against her biological

father of sexually inappropriate comments and acts, Fémily Couttl documents

where complainant and her mother had made prior false allegations that Mr.

Garcia had assaulted his Two year old daughter, two of his sisters, and an

unknown cousin. As well as documentation that the alleged complainant's mother

had attempted to recant allegations, and when confronted, threatened to flee

the country, and that she would plea the fifth. And finally there was a phone

call made to Mr. Garcia's mother only days before the trial where witness

Hart (the mother of complainant) had asked Mr. Garcia's mother to have him

call her (Hart) expalin his need to do so because she (Hart) was "The Only

One who Could Save Him." Supporting Mr. Garcia's actual innocence, and thoery

that it was in fact, the complainant's mother who had fabricated the allegations

in responce to Mr. Garcia's threats to expose hor crimal activities, neglect,

and continued drug and alcohol abuse in violation of her court ordered probation

in his own efforts to gain custody of his daughter.

This court held that a covicted defendant 'must identify acts or omissions

of counsel that are alleged not to have been the result of reasonable professional

judgment and then, the court must detevine if in light of ALL circumstances,

the identified acts or omissions were outside the wide rang of professional

competent assistance." Strickland supra at 666 U.S. 690. Mr. Garcia argues

tht thoughe is aware that the burden of proof is on the state in proving

guilt, when counsel is armed with an arsenal of evidnence in support of his

innocence, and evidence that rebuttt the testimony of every one of the states

witnesses and shows a history of past false allegations made by the complainant

and her mother,n at just again3t him, but others as well, and counsels failure

to place this evidence before the jury or to call witnesses on his behalf,

and then for the state and lower federal courts to find that these acts or

omissions were within the "presumed" wide range of professions competence,

or that these decisions were somehow reasoanably "Stratigic," is a slap in

the face to this courts previous rulings to the contrary in Strickland, and

the multitude of decisions that followed. And such a finding further negates

the United States Constitutions Sixth Amendment guarentee that "(in all criminal

prosecutions the accused sahil enjoy the right. to have the assistance of

. .

counsel for his defense." Further, when this court makes it's determination

on Mr. Garcia's claim of ineffective assistance, it must consider the totality

of the evidanc before the jury. "Moreover, a verdict or conclusion only weakly

supported by the record is mote likely to have been affected by errors than

one with overwhelming record support." Strickland 466 U.S, at 695-96. At no

time has any court held the evidence against Mr. Garcia to be overwhelming.

In fact, there appears ot.to even exist a "sufficiency".determination, And

as such, the testimony of witnesses not called and evidence not presented

by counsel denied Mr. Garcia o1hthe effective assistance of counsel and hisright to a fair trial. SeeO Argereinger, Cuyler, Johnson, Powell supra.

The state appellate court held thqt "failure to investigate witnesses does

not hoever, establish inadequate !preparation unless the defendant can show

that the failure to investigate resulted in a failure to find valuable evidence

that would have substantially benefited the defendant."

2L,

The District Court found that based on the pr.etai.d, detailed fact-sensitive

analysis conducted by the state appellate court that thier findings did not

constitute an objecti4ely unreasonable application of Strickland standard.

Mr. Garcia would argue that the state court's and lower federal court's have

found arrosnously, and contrary to those standards. As had counsel conducted

ANY investigation, she would most likely have discovered and presented that

those matters of great evidentiary value were highly favorable to Mr. Garcia's

defense, as discussed above. Counsel rnay,have also discovered that witness

Hart had lied about disclosure of assaults to her?alleged Court Ordered therapist,

where in Michigan, the Law MANDATES that varoius professionals (i.e., therapists)

must disclose such allegations, or face criminal charges of thier own. And

assuming Ms. Hart made such a disclosure, and a report was in fact made as

terstified to (TI. Vo1.1, p.4counsel could have investigated the claim,

or argued, (as Mr. Garcia believes to be the case) that this report does not

exist, and Hart had told yet another lie. Or that the prosecution has continued

a pattern of suppression in Mr.Garcia's case. Counsel may have also discovered

that the lead detective in the current case, had also conducted a prior investigation relevant and material to testimony presented at trial by the alleged

complainant and her mother concerning Mr. Garcia's alleged online activities

and efforts to befriend complainant's minor friends for inappropriate purposes.

And that this prior investigation was specific to the states witness Latimer.

Latimer's trail testimony made no mention of nthis investigation which was

conducted in 2007. Though that investigation stated that Mr. Garcia was alleged

to have been attempting to befriend Latimer foit "the wrong reasons" and that

he hd been calling her sexy online. The investigation, Unknown to Mr. Garcia

at the time of trail, s:seled no such attempts by Mr. Garcia and at no time

during this communication did Mr. Garcia ever refeto Latimer as sexy. The

sate court never addressed this suppressed investigation. Vet it did address

a letter written to Mr.Garcia addressing his doubts as to the allegations

against him and the credibility of the witnesses. The state court responded

with, '

tughths state could be said to have passed the evidence and the

evidence was favorable to defendant, defendant could have obtained it with

reasonable diligence," (A requirement in clear opposition to Brady as discussed

herein.

Counsel also failed to investigate or object to the presentation of testimony

deemed to be hearsay, concerning a note found on the complainats school locker

that made allegations that something of a sexual nature had taken place between

the complainant and Mr.Garcia. This note wasinaver presented at trial, and

the contents of this note never verified beyond the inadmissible hearsay testimony

of those who testified to its alleged contents. And counsel, at no time made

any attempts to stop the presentation of this testimony or to seek a continuance

in an effort to discover who the authors of this note may have been. To which,

Mr. Garcia would argue in the face of the above actions. or inactions of counsel,

he has more than 5ati2fi5d the states requirement that he show counsels failure

to investigate resulted in a failure to discover or admit valuable evidence

that would have substantially bensfitted his defense.

On matters concerning the calling of witnesses, the Sixth Circuit md

a grossly unreasonable determination of the facts when it determined that

counsels failure to.call Mr. Garcia's mother and step-father, who Mr. Garcia

stated would have testified that the complainant begged to stay wit Mr. Garcia

after he thretaned to move out because the complainant didn't want to live

with her mother. That rather than helping, this testimony would have contradicted

his theory of the case. This was not only untrue, but not consistent with

the facts on the record. The testimony of complainant was that she did not

disclose abuse to anyoneuntli AFTR she had heard the conversation between

Mr. Garcia and her father. (IT Vol II p. 109) Mr. Garcia left the home on

March 22, 2007. And this call took place on or about March 27, 2007. The testimony

that would have been offered by Mr. Garcia's parents would have been that

on March 13, 2007 while his parents were in his home and he discussed moving

out, is when the complainant begged his parents not to let him leave the home

without ntaking her, and that she didn't want to be left alone with her drunken

mother. So, contrary to the courts contention, and without the benefit of

any evidentiary hearing or support, and an eppearent failure to make a complete

reading of the record, this would not have conflicted with his theory. And

the complainant did not accuse M; Garcia on her own accord. Or without the

influence of her mother. Wheput into the proper perspective, and context

a reasonable jurist could, and would. in fact, debate the District Courts decision

was an unreasonable application of clearly established supreme court law and

an unreasonable determination of the facts in light of the evidence presented.

See 28 U.S.C. § 2254(d)

Mr. Garcia, in his Sixth Amendment claim directs this court to what he

:blieves to be the principle inquiry now before it. Whether the actions or

inactions of counsel in this particular case were that which a reasonably

competent attorney, fed.-'with similar circumstances, and the lack of any

physical, medical, DNA or eyewitness evidence to support the allegations,

and being armed with an arsenal of physical, medical, documentary evidence

and a list of corroborating witnesses in support of Mr. Garcia's actual innocence

and theory offabriotion, would have undertaken. See W.ehjntonv.Witkins,

655 F2d 1346, 1356 (5th Cir. 1981) The Sixth Amendment's guarantee requires

ties théveryicriminal proceeding.

counsel to discharge certain basic responsibili

And it's against these responsibilities that counsels competence and effectiveness

must be measured. Counsel in Mr. Garcia's case failed on every level, and

in essence was nothing more than a companion for a hpless lay p5son wandering

through the intricacies of a criminal trial to a foreordained result.

The Sixth Amendment embodies the protection "for the sodused," not a communications

privilege for the attorney or a shield to insulate from inquiry counsels decisions

on behalf of the accused when they are challenged by the defendant. And this

court has recognized that some degree of judicial supervision over the performance

of attorneys is essential so that "defendant's cannot be left to the mercies

of incompetent counsel. " PMann v. Richardson, 397 U.S. 759 771 (1970).

Trail counsel was unable to meet her Sixth Amendment duties because she

lacked the factual ingreadients that an adequate investigation would have

provided, and then failed to present those "factual ingredients" that she

did have, that would have cast this case against Mr. Garcia in a completely

different light.

In sum, Mr. Garcia has shown that he did not receive representation within

the range of competence demanded of attorneys in criminal cases and that counsels

ineffectiveness impaired the presentation of his defense at in a trial that

resulted in the finding of guilt for crimes never committed.

For the reasons stated above, the judgment of the Court of Appeals should

be reversed and the case should be remanded for further proceedings consistent

with the analysis and discussion as presented by Mr. Garcia above. And his

conviction should upon review be reversed.

IV. THE SIXTH CIRCUIT ERRED IN DEFFERING TO THE STATE COURT

FINDINGS THAT MR. GARCIA HAD NOT BEEN DENIED HIS SIXTH

AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL ON

APPEAL II4ERE COUNSEL HAD EFFECTIVELY ABANDONED HIM, FAILED

TO INVESTIGATE, FAILED TO CONSULT OR MEET WITH HIM, AND

FAILED TO RAISE MERITORIOUS ISSUES DIRECTLY RELATED TO

HIS ACTUAL INNOCENCE OR THEORY OF FABRICATION.

Under Michigan's Constitution 1963 Art. 1 § 20, Michigan Court Rule 7.203

(A)(1), and Code of Criminal Proceedure MCL 770.3(1) Mr. Garcia has an absolute

right to direct appeal of his criminal conviction, and to the effective assistance

of counsel on appeal. And thouh an appeal may not be considered a cónstitutional

right, many courts consider a direct appeal of a conviction to be a critical

stage of ithe criminal proceeding. And as such, a criminal defendant has a

constitutionla right to an attorney on direct appeal.. And the appellate counsel,

in this capacity serves two rolls. He not only serves his client by actively

representing the critical issues, legal analysis, and reasoning urging reversal

of the conviction, but also assist the court in reaching it's ultimate determination

of the merits of the case. It's because of this inherent role ina direct

appeal of a criminal conviction that the courts have unanimiously concluded

that an attorney cannot abandon his client in the middle of an appeal. Both

ethically and constitutionally, counsel on appeal must represent his client

to the bestof his ability. Such was not the case for Mr. Garcia, as he hopes

this Honorable Court will also determine after a complete review of the record

below, and the arguments presented herein.

Mr. Garcia's right to the effective assistance of counsel includes he right

to the effective assistance of appellate counsel. U.S. C0nst. Amend. VI; Mich.

Const. 1963 Art 1 § 1;20; Powell v. Alabama, 287 U.S. 45 (1932). Under state

and federal constitutions, a criminal defendant persuing a first appeal of

right is guaranteed certain minimum safeguaids necessary to make that appeal

"adequate and effective." Griffin v. Illinois, 351 U.S. 12,20 (1956). Furthermore,

if a state has granted appeals as of right to criminal defendant's seeking

review of alleged trail coutt erros, the prodedures used in deciding appeals

must comport with demands of Due Process and the Equal Protections Clause

of the constitution. Griffin supra; Douglas v. California, 372 U.S. 353 (1963).

See also L.ucey v. Kavanaugh, 724 F.2d 560 (6th Cir. 1984).

In Evitte v. Lucey, 496 U.S. 387 (1985) This Court held that the Due Process

Clause of the Fourteenth Amendment guaranteed a defendant the effective assistance

of counsel on appeal. And noted that nominal representation of an appeal of

right, like nominal representation at trail does not suffice to render the

proceedings constitutionally adequate; A party whose counsel is unable to

provide effective assistance and representation is no better than one who

has no counsel at all. Id.Y

In Mr. Garcia's case, both the District Court and the Sixth Circuit held

that he did not warrant relief on this claim. The courts held that because

they had bypassed any procedural bars that may have existed, and because the

state court had found hie claims without merit that reasonable jurists would

not debate that the state courts decision on this matter was neither an unreasonable

application of clearly established law, nor an unreasonable determination

of the facts in light of the evidence presented. citing 28 U .S.C. 52254(d).

The Sixth Circuit points to Mr flscia's citing of Maples v. Thomas, 565 U.S.

266 (2012) in support of his claim that counsel had abandoned him on appeal.

While M. Garcia did cite Maples in the context of excusing procedural defaults,

he did so because the state court, in reviewing his collateral attack on this

claim held that hi claims of ineffective assistance of txel

counsel

had not been preserved. And Mr. Garcia's citing of Maples was inresponse to

the states holdings. And though the lower federal courts may have found Maples

to be inapplicable, "Abandonment is Abandonment," and as stated above, "It

is perciesely because of the Due Process Clause that the court made it clear

that an indigents appellate counsel cannot abandon his appeal in midstream."

Entsminger v. Iowa, 386 U.S. 7148, 752 (1967). ("Here there is no question

but that pé tioterwaprer±luded from obtaining complete and effective appellate

review of his conviction.. .") And in Mr. Garcia's case, it wasn't simply that

counsels abandonment, which was established as fact by the Michigan Attorney

Disciplinary Board (Appendix-a), had created procedural barriers that he was

prevented from overcoming, but that counsels abandonment had "precluded him

from obtaining complete and effective appellate review of his conviction.

And notably, the topic of abandonment came up numberous times during the Attorney

Disciplinary hearing on July2'.2012. Bee Appendix-a.

The record ibn the instant case establishes that appellate counsels performance

fell below an objective standard of reasonableness. Appellate counsel failed

to prepare and investigate when he ignored correspondence from Mr. Garcia

which identified issues and important witnesses in his case. Failed to interview witnesses, filed to identify relevant issues on appeal, and failed to

request an evidentiary hearing to establish and clairify matters of factual

dispue in the record, or to establish a testimonial record in support thereof.

Apellata counsel in this case failed to even attempt to retrieve trial counsels

file. Moreover, counsel failed to discuss the case with Mi. Garcia and would

not meet with him. His only communication with him consisted of three 15 minute

phoine calls from the prison yard on an uneecure phone thus preventing Mr.

Garcia from discussing the sensitive nature of his case. These short comings

translated into a deficient Appealate brief, that ultimately identified the

wroing issues when arguing ineffective assistance of trial counsel.

After expressing what Mr. Garcia believed were legally infirm arguments

and the presentation of "Dead Bang Losers," appellate counsel ceased ALL communications and without the knowledge of Mr. Garcia, filed a motion to withdraw.

The motion was denied and provided to Mr., Garcia some te later. Not surprtingly,

the Michigan Court of Appeals affirmed Mr. Garcia's convictions and finding

as Mr.. Garcia had pointed out to counsel, that the arguments presented were

not properly presented under the correct rules of evidence and that they were

not meritrioua. (See Appendix-D). Further, appellaticounsel never even informed

Mr. Garcia of the Courts decision, nor did he provide him with a mathenisim

to appeal that ruling.

Appellate counsel's performance and failure to raise important issues

cannot be shielded under the protection of "trail strategy". Although an appellate

attorney my withhold issues, th.4ecision must be done as part of an exercise

of "sound professional judgment of counsel." Haskins v. tecreux, 1994 U.S.

App. LEXIS 2693 (6th. Cir.). Failure to investigate, or to interview witnesses

cannot be condoned under the guise of sound professional judgment, and counsels

inaction deprived Mr. Garcia of his constitutional right to the effective

assistance of counsel as guaranteed under the Sixth Amendment, and violated

his right to Due Process and Equal Protections asguarenteed undet, the Fourteenth

Amendment.

The same Michigan Court of Appeals held that because Mr. Garcia had not

missed any deadlines and because a brief was filed by counsel, albeit uithcut

the consent or knowledge of Mr. Garcia, that he had not been denied the effective

assistance of appellate counsel. Again, this decision was made without the

benefit of an evidentiary hearing, and based on a saverel anorexic trail

and appellate record. Firther,because Mr. Garcia filed his own Standard Four

brief (In Pro Per) which is allowed under Michigan Court Rules, and because

of Mr. Garcia's OWN DILIGENCE prevented him from missing any deadlines has

Absolutely no bearing on the constitutional depravations suffed by counsels

abandonment and ineffectiveness.. Nor is a defendant's diligence, or lack thereof,

a matteer for this court's consideration when determining Mr. Garcia's claims

of Sixth and Fourteenth Amendment violations.

The purpose of an appeal and the role of an appellate attorney are inhearantly

intertwined, Without active assistance of counsel, a defendant's right to

a direct appel of his criminal conviction becomes a hollow gesture. The Court

in United States v. Cronic, 466 U.S. 68, 658 (1984) Held; "Right to the affective

assistance of counsel is recognized not for it's own sake, but because of

the effect it hag---,on the ability of the accused to receive a fair trail. Mr.

Garcia argues that in light of those facts as presented by him in the state

and lower federal courts, both the state and feddral courts have unreasonably

applied the standards established by the court on such matters, and contrary

to the principles and guarantees implicated by the Sixth and Fourteenth Amendments

of the Constitution. See also Strickland and Cr,nic supra.

Mr Garcia was abandoned by counsel, and did not have the benefit of being

informed of this abandonment. Counsel simply teased all communications leavir)9

Mr. Garcia unsure of whetheie: he had counsel or not. And but for the continued

"return to Sender" of his correspondence, he would not have had any idea that

counsel had ceased to act as counsel. Vet Mr. Garcia, with no leagal experience

was left to navigate the appellate process on his own and submitt an inferior

suplemental pro per brief on his own. And then forced to suffer the consequences

of counsels actions. And in the face of overwhwlming evidence to the contrary,

the state and lower federal courts concluded that Mr. Garcia had received

the effective assistance of counsel. He hopes this court will riot find the

same.

For the reasons dlineated above, Mr. Garcia submits trhat he was denied

the effective assistance of appellatecounsel in vóioltion of the Due Process

Clause of the Fourteenth Amendment. Accordingly, and to prevent a gross miscarriage

of justice, the opinion of the Sixth Circuit must be reversed.

V. THE SIXTH CIRCUIT CAUSED MR.GARCIA TO SUFFER A MISCARRIAGE OF

JUSTICE WHEN IT FAILED TO PROPERLY ASSESS HIS CLAIM OF ACTUAL

INNOCENCE BASED ON NEWLY DISCOVERED EVIDENCE MATERIAL. TO

MATTERS OF CONSEQUENCE AND SUPPRESSED BY THE PROSECUTION AND

L1HCRE THEISTME AND DISTRICT COURT MISAPPREHENDED THE FACTS

AND ERRONEOUSLY CONSTRUED HIS EVIDENCE AS EVIDENCE PREVIOUSLY

PRESENTED, WHEN IN FACT IT HAD NOT BEEN.

Generally, most claims of actual innocence are reviewed thnder the statndariis

developed by the Supreme Court in Schuip v. Delo, 513 U.I. 298 (

), which

reviewed Oslo's procedurally defaulted claims under the "miscarriage of justice"

exception. However, Mr. Garcia's case is not one in which he is seeking excusal

of a procedural evroi It should however, be noted that because Mr. Garci's

claim of actual innocence was further supported by the discovery of new evidence

that had been willfully suppressed by the police or prosecution and that was

favorable and material to his defense in violation of his right to Due Process,

and those standards established by this Honorable Court in Brady and it's

progeny, he requested and was denied his request for abeyance to present this

new evdence tp the state Court and for an evidentiary hearing on this matter

to expand the record to inclUde this meritOrious claim in his petition for

writ of habeas corpus.

A state court adjudicates a claim "on the merits" for ptrposes of §2254(d)

when it decides the petitioner's right to relief on the basis of the substance

of the federal claim advanced, rather thn. on procedural or other rule precluding

state court merits review. Wilson v. Workman, 577 F.3d 1284, 1308 (10th Cir.

2009). The Sixth Circuit, an Mr. Garcia's claim did not make such a "substance"

based analysis of his constitutional claim of Due Process violation where

the prosecution has suppressed favorable and material evidence. The District

court on this matter, which Mr. Garcia attempted to present concluded tht this

was the same evidence he attempted to present in his first Motion for Relief,

It WAS NOT. The evidence in his first motion for relief consisted of postconviction discovery of a phone number request form that Mr. Garcia had submitted

while he was incarcerated in the Michigan Department of Corrections for a

1986 conviction. Testimony at trial by witness Hart was that her and Mr. Garcia

had been highechool sweethearts, and that she had had absolutely no contact

with him until his release in 2002 (IT Vol.11 p. 6,8). This evidence showed

that witness Hart had clearly lied, which was also found to be the case by

the Michigan Court of Appeals in it's March 27, 2014 Opinion Appendix-H),

where it stated; "First, there is no question that the phone records, which

argues shows that the victim's mother was lyingwhen sh claimed not to have

spoken to defendant untii.2002..." However, the court held that this evidence

not to concern a material matter.

Mr Gracia argues to the contrary. His claim has been, and remains to be

that the allegations against him were a fabrication of withes Hart whom Mr.

Garcia had threatened to report for her criminal activities, neglect of the

children, and continued drug and alcohol abuse in violation of her court ordered

probation. All in effort to gain custody of his two yrea old daughter the

two shared. As a result, witness Hart made threats of her own, stating that

she would call the police herself and tell them that he had been sexually

eseulting his daughter and hers, the alleged complainant. The Michigan Court

of Appeals in holding this evidence, (i.e., the evidence of the phone request

farm, and Hart's lies) to not be of a "material matter," which flies in the

face of this courts holdingdin Giglio v...tinited States, 405 U.S. 150 (1972)

where it held:

"When relsiabUity of a given witness may well be determinative

of guilt or innocence, nondisclosure of evidence affecting

credibility falls within the rule that suppression of material

evidence justifies a new trial irrespective of good or bad faith

of the prosecution.."

Though it could be said that the testimony of witness Hart was not that

of the kind suppressed by the prosecution, Mr. Garcia would argue that once

the Michigan Court of Appeals acknowledged it's falsity and in a case that

had no medical, Physical, DNA, or eyewitness evidence EVERY WITNESS became

a "given witness" upon which thier reliability became determinative of guilt

or innocence and was "material. And the Court's failur to remand for an evidentiary

hearing becomes tantamount to the allowing the presentation of known false

testimony to stand uncorrected when it appears. And rather than having been

perpitrated by the prosecution this abuse was now being committed by the court

itself and thus removed from the jury thier duty to weigh and determin the

evidence for themselvs. Under the Giglio standard, and in most cases involving

perjury or it's equslivent, the result will likely be the finding of constitutional

error. (See Roaencrantz v. Lefler, 568 F. 3d 577 (CA. 6. 2009). Agsin, niether

the District Court Sixth Circuit, or even the state courts subjected this

claim to AEDPA merits revie, but rather it weighed this evidence, and each

piece of evidence presented by Mr. Garcia individually rather than "ccllectively

as required by Kyles v. Whitley, 514 U.S. 1.19 (1995).. And as argued above,

When the Michigan Court of Appeals recognized the testimony of witness Hart

to be a "clear lie" based on the newly discovered evidence presented by Mr,

Garcia on collateral attack and then further recognized this evidecne as "favorable

impeachment evidence" and failed to remand for at the very least, an evidentiary

hearing, it became complicit in Mr. Garcia's Due Process violation committed

by the prosecution. See Ncpue v. Illinois, 360 U.S. 264, 269-270 (1959).

Mr. Garcia's next claim of new evidence also established that the complainant

had lied when she testified falsely that it was her viewing of a Dr. Phill

show that she watched while she was visiting her biological father in December

of 2005. And that it was this show that convinced her that the alleged abuse

must stop. Mr. Garcia diligently, and on his own, searched, found, and presented

an online print out of the shows that had aired during the time period complainant

had testified to having watched this show. He established thatno such show,

of the nature testified to had in fact aired during this time period.

The Michigan Court of Appeals agreed, that hb had presented evidence proving

that that "there was no show, and that such evidence of it's non-existence

"concerns a material matter." However, once again, they found,'in.plece of

the jury, that the evidence did not make a different result probable as the

complainnt on retrial could claim that she was mistaken about the host of

the show, or the date that it aired, and that her testimony would not be impeached to the extent that her credibility diminished. (See Appendix-H p.10).

Mr. Garcia contends that such a holding without the benefit of an evidentiary

ear, ng iObsurdTThe ccmpIãit ttiy was very "rnttir fit"

tY:T

this point. And thougtthe court stated that "she could have testified differently,"

Had the jury heard this evidence, that no such show aired during the time

testified to, coupled with the multiple other instances of perjured, or highly

misleading testimony presented in Mr. Garcia's casethat was not supported

by the record or evidence, also conceaded to by the state court, there is

more than a reasonable probibilty of a differnt outcome. Further, any credibility

determinations of the evidence or the witnesses was to be made by the jury,not

on an appellate court based on anirieiifficient paper record.

In Lavender Adm'r v. Kurn, 327 U.S. 645, 653-66)(196) This court went as

far as to say that "When facts are in dispute or the evidecne is such that

fair minded men may draw different inferencer, a measure of speculation and

conjecture is required on the part of those whose duty it is to settlie he

dispute by choosing what seems to be the most reasonable inference. Sich duty

in a jury trial rests upon the jury and it is not incumbent upon the court

to invade the provence of the jury in that respect, where there is conflicting

evidence." As was the case in Mr. Garcia's case.

Mr. Garcia's final piece of evidence presented on his first motion for

relief was a letter received by him from the lead detective in charge of investigating his case. Dective Robert McGhee advised mr. Garcia that he and

proevided the prosecution with everything he had concernig the case against

him but that he had doubted both the allegations and the credibility of his

accusers. This information was never made known to Mr. Garcia prior to or

during the course of his trial. Which Mr, Garcia argued as a Brady violation

and viciated his right to Due Process of the law and his right to a fair trial.

The Michigan Court of Appeals held that Mr. Garcia had failed to establish

a Brady viloation arid sated "Although the o te;couldbe said to have passed

the evidence, and the evidence was favorable to the defendant, the defendant

could have obtained the evidence with reasonable diligence. (See AppendixH p. 11). Such a holding is both an "unreasonable application" and "contrary

to" the standards this very court held in Brady where it established that

"suppression by the prosecution of evidence favoreblia to the accused upon

request, violates due process where the evidence is material to guilt or punishment, irrespective of good or bad faith of the prooecution." Brady 373

U.S. at 87 (1963).. Mr. Garcia, did in fact, make a pretrial request for all

favorable evidence in the control of the prosecution. The prosecution failed

to present this informatio,.

..-•

The Court in United States v. Bagley, 437 U.S. 667 (1985) Held; "Impeachment

evidence, as well as exculpatory evidence, falls within the Brady rule." And

"government failures to assist defense by disclosing information that might

have been helpful in conducting cross-examination amounts to a constitutional

violation only if it deprives defendant of a fair, trial." Such was the case

here. As has Mr. Garcia been aware of the lead detectives doubts, he most

assuredly would have called him before the jury to question him as to the

techniques he used in his investigation, and what it is that leads him to

believe whether or not a crime had- been committed, who may have committed

the crime, and what it is he uses to determine whether or not witnesses are

providing accurate information.

The Michigan Court of Appeals, then add insult to injury by placing upon

Mr. Garcia, in the face of what it personally found to be favorable evidence,

a diligence requirement to seek end find evidence thta had been suppressed

by the state, ether willfully, or inadvertantly. A requirement that only eight

days later, the Michigan Supreme Court in People v. Chenault, 495 Mich. 142

(2014) Held that a "diligence requirement was not consistent with, or even

implied by United States Supreme Court presedence." Though imposing on Mr.Garcia

such a requiremnet.

The fthi1 claim of newly discovered evidence argued recently by Mr. Garcia

was that of the 2007 investigation spoken of above which consisted of a complaint

filed by Holly Wrathell in April of 2007. Mrs. Wrathell i the mother of states

witness Latimer in the 2008 trial. Her complaint alleged that Mr. Garcia had

been contacting her daughter on "MySpace," an internet web cite and attempting

to befriend her for "the wrong reasons, and calling her sexy." (See Appendix

K). Latimer was crucial to the states case at trial in corroborating the complainant's

allegations, and providing the only link to such allegations via her testimony.

This investigation was never made know to the defendnat and is both material

and re1vant to testimony presented by the complai.nat,and hger mother regarding

thier reasons for deciding to disclose when they did. They said it was to

protect others, and they alleged that Mr, Garcia was using the internet to

communicat with the complainant's minor friends in an attempt to befried them

for inappropriate reasons. Though offering no proof in support. And at no.

time during the trial did Latimer ,ever testify to this online attempt or the

prior investigation. And the prosecutio who could have been reasonably assumed

to know of this investigation never mentioned or questioned any witnesses

about it. And most certianly should have been aware of it since it made similar

claims as those being presented at trial and involved Latimer. Vet this weas

also suppressed. And revelations of it in court, and:it'o 1faucrable results

to the defense would most definately have cast an unfavorable light on at

least three of the four witnesses called by the state. The District Court

on this matter, mistakenly held that this undisclosed report "substantiated

that Mr. Garcia had in fact called Latimer sexy. Vet no where in the report

was this substantiated. Nor did the Court point to where it had. Mr Garcia

understands as explained by nudge Henry 3. Friendly in his article "Is innocence

Relevant?" 38 IJ.Chi,L.Rev (1970); "A prisoner does not make a colorable showing

Oil innocence by showing that he might not, or even would nOt, hèbééOOriitéd

In the absence of evidence claimed to have been unconstitutionally obtair'ed."

Rather,"the prisoner must show a fair probability that, in light of ALL the

evidence, including that alleged to have been illegally admitted (but with

due regard to any unavailability of it) and evidence tenably claimed to have

been wrongfully excluded, or to have been available only after the trial,

the trier of fact would have entertained a reasonable doubt of his guilt."Ibid,

(footnotes emitted) . Mr. Garcia argues that had ALL the evidence presented

been considered COLLECTIVELY, and not item by item as this court required

in Kyles supra, his claim of innocence and theory of fabrication creates more

than a reasonable probability of a diffent result, and the governments sCippressiqn

of evideence favorable to him "undermines the confidence in the outcome of

the trial." Bagley supra at 678. Mr. Garcia would suffer a miscarrige of justice

if this conviction is allowed to stand as he has clearly shown suppression

on the pert of the state in violation of his right to due process. And this

court held in Murray v. Carrier, 477 U.S. 478, 49596 (1986)(quoting Engle

v. Isecc, 405 U.S. 107, 135 (1982) "principles of comity and finality.. .must

yield to the imparitive of correcting a fundamentally unjust incarceration."

As such, the descision of the Court of Appeals should be reversed. The

case should be remanded for developement of the evidence and a determination

of whether a miscarriage of justice has occured here under the appropriate

constitutional standard. Kuhlman v. hlilson,477 U.S. 436 (1986)

Rpop

:qro

Date:

'----

Carlorcie #185607

Petitioner In Pro Se

Muskegon Correctional Facility

2400 S. Sheridan Dr.

Muskegon Correctional Facility

,2017

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.