Petition for Writ of Certiorari — William James Hastings, Petitioner v. Mary Berghuis, Warden

Supreme Court briefNov 16, 2017

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SUPREME COURT OF THE UNITED STATES

WILLIAM JAMES HASTINGS, Petitioner

CONNIE HORTON, Warden, Respondent

ON IvirrION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEAL FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BY: 'WI11ii J. Hastings #190617

Chippeva Correcona1 Facility

4269 West M-80

Iinche1oe, MI 49784

QUESTIONS PRESENTED

WILLIAM JAMES'HASTINCS IS ENTITLED TO A WRIT OF

HABEAS CORPUS BECAUSE INCARCERATING AN INDIVIDUAL

FOR A CRIME OF WHICH HE IS INNOCENT IN A TRIAL

WITHCONSTIT

CONSTrIONAL

UTIONALERROR VIOLATES THE DUE

PROCESS CLAUSE OF THE FEDERAL CONSTITUTION AND' PROTIDES A *GATEWAY FOR FEDERAL COURT REVIEW OF HIS

CLAI

•.

.•

. •.

P JUtTM JAl1 5' flASfl$.: IS ENTITLED TO HABEAS

RELIEF BECAUSE HIS CONSTITUTIGNAL' RIGHTS UNDER

NAPUE 'vs. ILLINOIS, 360 U.S. 264 (t950) AND BRADY

ye. MARYLAND., 371U.S. 83 (1963) WERE VIOLATED

WILLIAM JAMES HASTINGS' IS EWTIJD TO HABEAS

RELIEF ON 'THE BASIS OF N

lYE' ASSISTANCE OF

•

RIAL COUNSEL

.'.

•. .

-. .

•

WILLIAM JAMES HASTINGS IS ENTITLED TO HABEAS

RELIEF BECAUSE HE WAS DENIED HIS RIGHT TO THE

EFFECTIVE ASSISTANCE OF COUNSEL ON'DIRECT APPEAL.

•

LIST OF PARTIES

All parties appear in the caption of the case on the cover page and consist

of: WILLIAM JAMES HASTINGS, Petitioner and CONNIE HORTON, Warden, Respondent.

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED . .

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LIST OF PARTIES,... a a a a .

OPINIONS BELOW a a a • a •

JURISDICTION a

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . . . . . . . . . . . . iv, V

STATEMENT OF THE CASE . as....,. a. a a • • a a a ii .......1-4

REASONS FOR GRANTING THE WRIT .,.1 aS,

CONCLUSION. a

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INDEX TO APPENDICES

APPENDIX A: United States Court of Appeals for the Sixth Circuit, Case No.

16-2666 Dated May 9, 201

APPENDIX B: United States Court of Appeals f or the Sixth Circuit, Case No.

16-266, dated August 30, 2017 Opinion Denying Rehearing

APPENDIX C: United States District Court for the Eastern District of Michigan,

Case No. 14-cv-12010, Dated November 21, 2016

APPENDIX D: Michigan Supreme Court, Case No. 133095, Dated June 22, 2007

APPENDIX B: Michigan Court of Appeals, Case No, 262698, Dated June 16, 2006

APPENDIX F: Opinion and Order Denying Motion for Relief from Judgment (MCL

6.500), Jackson County (Michigan) Circuit Court, Case No.

04-0690-PC, Dated August 11, 2010

APPENDIX G: Opinion Denying Leave to Appeal, Michigan Court of Appeals, Case

No. 299960, Dated November 29, 2011

APPENDIX 14: Opinion Holding in Abeyance and Denying Leave to Appeal Michigan

Supreme Court, Case No. 144479, Dated February 28, 2014

TABLE OF AUTHORITIES

CASES

PAGE NUMBER

Arizona v. Fulminate, 499 U.S. 279 (1991)

Bents v. Workman, 692 F.3d 1133 (10th Cir, 2012)

Brady v.Maryland, 317 U.S. 83(1963)..

........ .

Chapman v. California, 386 U.S. 18 (1967)

Evitts v. Lucey, 469 U.S. 387 (1985)

90 10

9,11

.......

12, 13

. .

... .. . . .

Herrera v. Collins, 506 U.S. 390 (1993)

•

Hodges v. Colson. 727 F.3d 517 (6th Cir. 2013) .

. .

Jackson Y. Brown, 513 F.3d 1057 (9th Cir. 2008)

• S

. . . . . .

•

. . . . . .

. ,

. . .

. . . . .

Martinez v. Ryan, 132 S Ct 1309 (2012) .

Napue v. Illinois, 360 U.S. 264 (1950) .

Long v. Butler, 809 F.3d 299 (7th Cir. 2015)

04444*•S

. . . . . . . . . .

•

Kyles v. Whitley, 514 U.S. 419(1995).

Hayes v Brown, 399 F.3d 972 (9th Cir. 2005) . .

Barrington v. Richter, 562 U.S. 86 (2011)

Buries v. Ryan, 135 S Ct 710 (2014)

. . . . ,

Dansby Y. Norris, 682 F.3d 711 (8th Cir. 2012) rev'd

on other grounds, 133 S Ct 2767 (2013) .

•

. .

•I4

••

. . •.

•.

• 4

•

.11

Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013) . . . . . . . . . . . . . . . . 8

Ramonez v. Berghuis, 490 F.3d 482 (6th Cir. 2007) . . . . . . • . . . . . . . 6

Reed v. Stephens, 739 F.3d 753 5(6th Cit. 2014) - . . . . . . . . . . . . . . 8

Schlupv.Delo, 513 U.S. 298(1995).......... •....... 2,5,7

Strickler v. Greene, 527 U.S. 263 (1999) . . . . . . . . . . . • . . . • . . 13

Trevino v. Thaler, 133 S Ct 1911 (2013) . . . . . . . . . . . . . . . . . . . 7

United States v. Agurs, 427 U.S. 97 (1997) . . . . . . . . . . . . . . . . . 11

United States v. Arnold, 117 F.3d 1308 (11th Cit. 1997) . . . . . . . . . . . 12

United States v. Duke, 50 F.3d 571 (8th Cit. 1995) . 0 . . . . . . I I • • . 12

United States v. Lane, 474 U.S. 438 (1986) . . .

.. ,

. ... . , .

. . .

Von floitkev. Gillis, 332U.S,708(1948).., . a.... asia...., 6

STATUTES AND RULES

28U.S.C.2254(d)(1)(2) . .

..........

28 U.S.C. §2254(e)(1) . . . . . . . . . .

Supreme Court Rule 10(a) a . S

a •

. a

.....,..

. . . . . • • a • •

aa , a a • • a a •

10,11

. . . . .

, ,

a S I

a a

SupremeCourt Rule l0(c).........,.a.....a..,......8

OTHER

Michigan Court Rule (MCR) 6.500 et seq. . . . . A . . . • . 66 . . . 0 0 . 7, 8

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari: issue to review

the judgment below.

OPINIONS BELOW

For cases from federal courts:

The opinion of the United States court of appeals for the Sixth Circuit

appears at Appendix "A" to the petition and is an unpublished case dated May,

9, 2017 under Case No. 16-2666.

Petitioner then flied a Motion for Rehearing with the United States court

of appeals for the Sixth Circuit and that opinion/order appears at Appendix

"B" to this petition and is an unpublished case dated August 300 2917, under

Case No. 16-2666.

The opinion of the United States district court for the Eastern District

of Michigan appears at Appendix "C" to the petition and is an unpublished case

dated November 21, 2016, under Case No. 14-cv-12010.

For cases from state courts:

The opinion of the highest state court, Michigan Supreme Court, to review

the merits appears at Appendix "1)" to the petition and is an unpublished case

dated June 22, 2007, under Case No. 133095.

The opinion of the Michigan Court of Appeals appears at Appendix "B" to

the petition and is an unpublished cases dated November 16, 2006.

A Motion for Relief from Judgment was filed in the Jackson County circuit

court on December 23, 2009 pursuant to Michigan Court Rules (NCR). 6.502 and

was denied by Opinion and Order dated August 11, 2010 and appears at Appendix

iii

"F" to the petition and is an unpublished case under Case No. 04-0690-FC.

On September 1, 2010 Petitioner filed an application seeking leave to

appeal, which was granted by the Court of Appeals in an Order dated November

19, 2010, People v. William James Hastings, C.O.A. file No. 299960. The Court

of Appeals affirmed the conviction in an unpublished opinion per curium issued

November 29, 2011 (Docket No. 299960)., and appears at Appendix "6" to the

petition. The Michigan Supreme Court held the appeal in abeyance by order

dated March 29, 2013, M.S.Ct. file No. 144479. Subsequently, on February 28,

2014, the Michigan Supreme Court denied leave to appeal under the same case

number, and appears at Appendix "H".

The final decision of the United States Court of Appeals for the Sixth

Circuit was entered on August 30, 2017. This Court therefore has jurisdiction

under 28 U.S.C. §2254. and 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides in pertinent

part:

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an

"partial jury of the State and district wherein

the crime shall have been committed . . . to have

compulsory process for obtaining, witnesses In his

favor,, and to have the assistance of counsel for

his defense.

The Fourteenth Amendment to the United States Constitution provides in

pertinent part:

No state . . shall deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.

The Fifth Amendment to the United States. Constituti

on provi4es in pertinent

part:

No person shall be held to answer for a capital,

or otherwise infamous crime., unless on a presentment or indictment of a grand jury . . nor be deprived of life, liberty, or property, without due

process of law.

STATUTORY PROVISIONS

28 U.S.C. §2254

28 U.S.C. §1254(1)

28 U.S.C. §2254(d)(1)(2)

28 U.S.C. §2254(e)(1)

STATEMENT OF THE CASE

This case is about Mr. Hastings' factual innocence and of how, through

federal constitutional violations, he was wrongfully convicted.

This Court

held in Barrington v. Richter, 562 U.S. 86 (2011) that habeas review by federal

courts serves a crucial role in "guarding against extreme malfunctions in the

state criminal justice system." Convicting a factual innocent person through

federal constitutional violations, such in the case of Mr. Hastings, is an

extreme malfunction in the state criminal justice system.

This case involves the discovery of the body of Vicki Lynn Cook, a local

prostitute and drug addict found in a marshland in southwestern Jackson County,

Michigan in 2002. The case against Mr. Beatings was not overwhelming. This

assessment is not the unsupported statement of a petitioner, but rather an

assessment of the case by the original trial judge following a pose-conviction

hearing in 2005:

The case against William Hastings was largely circumstantial, based on witnesses whose credibility

can easily be questioned.

The key evidence against Mr. Hastings was the bargained for and

uncorroborated testimony of an ex-girlfriend, Teresa Merrifield, who claimed

Mr. Hastings had admitted to the killing of Vickl. Cook. fis. Merrifield had

been given a plea deal in exchange for her testimony, but that fact was not

disclosed to the jury. Another fact not disclosed to the jury was that a third

party confession to the killing had been made by one Mr. Thomas Mowrer, Mr.

14owrer confessed to relatives, law enforcement officers and prosecutors, and

at videotaped interview with a Jackson City police detective.

The presiding trial judge made the following determination in this case

regarding Mr. tlowrer'a confession and its impact upon reasonable doubt:

(T]hera is no question that this evidence would

make a different result probable on retrial. That

Is, if either Mr, tlowrer testifies, which is unlikely. or Deputy Kuhi's video is played to the

jury, I expect at least one juror will have a reasonable doubt as to fir. Hastings' guilt.

The uncertainty as to Mr. Hastings' guilt was expressed by Michigan Supreme

Court Justice flarkinan, Joined by Justice Kelly:

I do not know whether Vicki Cook was murdered by

the defendant or Thomas Mawrer, but I know that she

was murdered by only one of them. Both have confessed to her murder, yet neither one knows the

other. If it is defendant who committed this murder, justice is being done for he is serving a sentence of imprisonment without parole • If, however,

it is Mowrer who committed this murder, a double

injustice is being done for an innocent man is serving life imprisonment without parole, while a

guilty man escapes punishment.

In Schiup v. Delo, 513 U.S. 2980 315 (1995), this Court held that a

credible claim of actual Innocence will permit a petitioner to have his

constitutional claims reviewed by a habeas court, notwithstanding procedural

bars that ordinarily bar such review.

This is a case where a factual Innocent petItioner was found guilty by

way of a criminal prosecution fraught with federal constitutional violations.

This is not a freestanding claim of innocence, This is that rare case where

"an innocent man Is serving life in prison without parole, while a guilty man

escapes punishment" and where a state court Judicial system was unable to

formulate Judicial guidance to the lower courts on the interaction between

factual innocence and procedural bars.

This case is a textbook example of "extreme malfunctions- in the state

criminal justice system" which only this Court can remand to the lower federal

Court to correct on full habeas review.

TRIAL TRANSCRIPT RECORD

On August 20 2002, the badly decomposed body of a nude female was

discovered in an undeveloped marshland off McCain Road in. southwestern Jackson

County by the landowner James Prettenhofer and Wade Adancheck as they were

preparing to clear brush and overgrowth from the site, Mr. Prettenhofer

immediately contacted law enforcement and the Jackson County Medical Examiner's

Office sent a representative to the scene • The body was found about titceen

to twenty feet from a two-track drive, or path, in a swampy area hard to access.

(T.T. I, 3/7/2005 pp 69; 172). The body was face-down, and the right hand

appeared to be clenching some reeds or a branch. (T.T. I, 3/7/2005, pp 17213; 180). Due to the advanced state of decomposition, the body was transported

to the Oakland County morgue for autopsy. Approximately one week later, the

body was identified through dental records, evidence of former trauma to the

brain and injuries to the pelvic area as well as a distinctive tattoo as that

of Vicki Lynn Cook, a local prostitute and drug addict, who had not been seen

on the streets of Jackson since late July. (T.T. II, 3/8/2005 pp 257-260).

Forensic scientists from the Michigan State Police Crime Lab were also

assembled to process the scene and uncovered a lone sock and a denim shirt

with a Looney Tunes logo. (T.T. III, 3/10/2005 p 495).

A lengthy investigation ensued which culminated in the arrest of William

James Hastings on May 27, 2004 in Vero Beach Florida where Mr. Hastings had

been working for several months. Investigators had focused on Mr. Hastings

in 2002 when he was identified as one of the last people to be seen with Ma,

Cook before she disappeared but did not have sufficient evidence to charge

him with the homicide. (T.T. III, 3/10/2005, pp 556-566) Jackson County Sheriff

Department Investigator Robert Cole built his case against Mr. Hastings by

taking statements from acquaintances of the deceased and by re-contacting these

witnesses once they came into contact with area law enforcement. An arrest

warrant was finally obtained following a prison interview with Morris McBride

in Adrian, Michigan, an Investigative Subpoena Rearing involving witnesses

Brian Milligan on March 12, 2004 and subsequent interviews with Michael Cole

and Teresa Merrifield. (T.T, III, 3/10/2005 pp 571-586)

Mr. Hastings was tried for the homicide of Vicki Lynn Cook in March 2005.

In addition to the testimony surrounding the discovery and identification of

Ma. Cook's body and the medical examiner's testimony concerning cause of death,

the prosecution's case was highly circumstantial and consisted primarily of

testimony from former friends and acquaintances of the Petitioner and the

deceased—none of whom witnessed the homicide. Witnesses Kr. Milligan and

Ms. Merrifield testified regarding fir. Hastings' temperament and related

incidents of violent behavior. (T.T. 1, 3/7/2005 pp 238-39; T,T. II, 3/8/2005

pp 332, 350, 358-359) Ms. Merrifield also testified that Mr. Hastings had

admitted to killing Ms. Cook when she stayed with him in Myrtle Beach South

Carolina in August/September 2002, (T.T. U, 3/08/2005 pp 353-57). Most of

the prosecution's lay witnesses had been offered plea bargains or charge

reductions in -pending cases, Witness Merrifield denied receiving any deals

but admitted her pending cases had been adjourned multiple times. (T.T. II,

3/8/2005 pp 380-82)0 The Assistant Prosecutor denied any knowledge of any

deals and asserted that because Witness Merrifield was working with JNET

[Jackson Narcotics Enforcement Team] she should not be questioned further about

her pending case. (T.T. II, 3/8/2005 pp 474-76; 480-486). Mr. Hastings' jury

was not instructed to consider whether Witness Ms. Merrjf laid's pending charges

had any influence upon her testimony.

On March 11, 2005, Mr. Hastings was convicted of first-degree premeditated

murder. He was sentenced tot he mandatory term of life in prison on April

20, 2005.

Additional facts appear in the arguments herein,

REASONS FOR GRANTING THE PETITION

In Petitioner's first claim he clearly informed the habeas court and the

United States Court of Appeals for the Sixth Circuit that he was raising a

claim of actual innocence and that this claim is not a freestanding claim of

innocence but that his conviction was brought through federal constitutional

violations during his trial.

The Sixth Circuit mtscharacterlzed Petitioner's claim from that of an

actual innocence claim that is the result of a violation of his federal

constitutional rights to that of a freestanding actual innocence claim.

Petitioner reiterates, this is NOT a freestanding actual innocence claim and

the Sixth Circuit applied the wrong standard of review in denying Petitioner

relief. The Sixth Circuit applied the standard enunciated in Herrera

Collins, 506 U.S. 390, 404-05 (1993). The correct standard that should have

been applied in reviewing Petitioner's claim is that enunciated in Schiup v.

Delo, 513 U.S. 298, 316 (1995).

Petitioner's actual innocence claim rests with the confession of Mr.

Mourer, as well as with appellate counsel's failure to raise a significant

and obvious claim of ineffective assistance of trial counsel. Petitioner was

denied his right to the effective assistance of counsel guaranteed him under

the Sixth Amendment to the federal constitution.

Trial counsel was aware of the existence of a person claiming to have

been the murderer of Ms. Cook. Trial counsel was given funds for the purpose

of pursuing information that another person was the murderer. A Private

Investigator determined that a man who (ulses meth, coke and pills whenever

he can get them" had confessed to the murder. The name given to the

Investigator was uncertain as to spelling, but was thought to be a 25-year

old man named "Mauer," Evidently the Investigator found a criminal history

record for a "suspect" with the correct spelling, i.e., "Mowrer." (Petitioner

attached the Investigator's Report to his state appellate pleadings, i.e.,

Dalinan Investigations Report). Unable to locate Thomas t4owrer, trial counsel

gave the information to the police who encountered Howrer and interviewed him.

Mowrer Initially denied involvement in the crime.

Trial counsel's investigation was incomplete and denied Mr. Hastings a

substantial defense. "Counsel must make an independent examination of the

facts, circumstances, pleadings and laws involved.

. "

Von Moltke v. Gulls,

332 U.S. 708, 721 (1948). The duty to investigate and make an independent

examination of facts, circumstances, and law is the duty of counsel. Anderson

y, Johnson, 338 P.34 382, 392 (5th Cir. 2003), (unreasonable for criminal

defense, lawyer to forgo investigation based on "the investigative work of the

State.")

At no time did trial counsel speak with Thomas flouter, It is not a defense

attorney's role to forgo investigation and determine his client's guilt based

on a police rejection that another did not commit the crime. If it is not

the role of a trial judge to make credibility determinations, Ramonez v.

Berghuia, 490 F.3d 482, 490 (6th Cir, 2007), certainly an attorney may not

leave credibility determinations of defense witnesses to the police. It is

not as if Mr. Mowrer would not have admitted to the crime under questioning

of an attorney. That is established. It is not that fir, flouter was not willing

to wilt and admit to the crime under serious questioning from family members

and law enforcement. That fact is established, Mr. Mowrer did in fact confess

to his mother and step-father, to Detective Kuhl, Attorney Varga and her

paralegal., and he confessed as well to Investigator Hartman of the Jackson

County Prosecutor's office - the very person to whom he had originally denied

committing the offense.

This claim must be evaluated under the innocence standards set forth in

Scblup v. Delo, supra.

This Court should further grant this Petition based on ineffective

assistance of appellate counsel.

This Court held over 30-years ago that "[a] first appeal as of right

therefore is not adjudicated in accord with due process of law if the appellant

does not have the effective assistance of an attorney." Evitta v. Lucey, 469

U.S. 387, 396 (1985). Indeed, Evttts v. Lucey was decided upon the intersection

of the Due Process Clause found in the Fourteenth Amendment and the Sixth

Amendment's right to the effective counsel. 105 S Ct 830, 835-36 (1985). It

is hard to imagine two more "bedrock principles' in our criminal Justice system

that Due Process and the Right to Counsel•

Surely the legal parameter, to

say nothing of desideratum that we do not convict a man without due process

of law is a bedrock principle in a America. Second, seeing as ineffective

assistance of appellate counsel is cause to excuse a procedural default and

seeing as it is literally impossible to raise this issue in the first instance.

The only way to raise ineffective assistance of appellate counsel in Michigan

is pursuant to Michigan Court Rule 6.500, Motion for Relief from Judgment and

Motion to Remand for a Ginther hearing. If not raised, than quite literally,

no court would ever be able to review even the most powerful ineffective

assistance of counsel claim when not raised in MCR 6.500.

Even though in

Martinez v. Ryan, 132 S Ct 1309 (2012) and Trevino v. Thaler, 133 S Ct 1911 0

(20130, relate to state habeas counsel's failure to raise the claim, the

rational behind these two decisions should be applied in this case to find

cause and prejudice.

A SIGNIFICANT SPLIT IN THE FEDERAL COURTS: A federal Circuit Court Appeals

split has arisen. Following Martinez, the circuit courts have split on the

extension of Martinez and Trevino to defaulted ineffective assistance of

appellate counsel claims. The Fifth, Sixth, Seventh, Eighth, and the Tenth

Circuits held that Martinez cannot be used to excuse ineffective assistance

of appellate counsel claims in addition to ineffective trial counsel claims.

Long v. Butler, 809 F.3d 299, 315 (7th Cir. 2015; Reed v. Stephens, 739 F.3d

753, 778 n 116 (5th Cir, 2014); Hodges v. Colson, 727 F.3d 517, 530-31 (6th

Cir. 2013); Bents v. Workman, 692 F.3d 11330 1147-48 (10th Cir, 2012); Danaby

v. Norris, 682 F.3d 711, 728-29 (8th Cir. 2012) rev'd on other grounds, 133

S Ct 2767 (2013).

By contrast, as previously noted, the Ninth Circuit held that Martinez

can be used to excuse the default of ineffective assistance of appellate counsel

claims. Nguyen v. Curry, 736 F.3d 1287, 1289-90 (9th Cir. 2013). It should

also be noted that this Court denied certiorari to address the Ninth Circuit's

extension of Martinez. Runes v. Ryan, 135 S Ct 710 (2014).

This Court should grant Mr. Hastings petition for certiorari because the

Sixth Circuit's decision is "in conflict with the decisions of another United

States court of appeals" on the same issue. Sup. Ct, R. 10(a). The question

of whether or not properly raising ineffective assistance of appellate counsel

claim in a post-conviction proceeding, i.e., NCR 6.500, can be seen as cause

to overcome the procedural default of a substantial Ineffective assistance

of appellate counsel claim is also "an important question of federal law that

has not been, but should be settled by this Court." Sup. Ct. R. 10(c). Indeed,

without this Court's guidance petitioners in the Sixth Circuit who were denied

effective representation on direct appeal and raised during their

post-conviction proceedings will literally have no forum to raise a substantial

claim of ineffective assistance of appellate counsel.

This Court should therefore grant certiorari to resolve this claim, or

remand to the Sixth Circuit to address the ineffective assistance of appellate

counsel claim on its merits and to appoint counsel to further develop the claim

for the court's review.

CONSTITUTIONAL VIOLATION Under Napue v. Illinois, 360 U.S. 24 (1950),

and Brady Y. Maryland, 371 U.S. 83 (1963): The Sixth Circuit upheld the federal

district's ruling that this claim was harmless because it would have had no

effect on the outcome of the case in light of the inculpatory statements that

Mr. Hastings made to other individuals,

In the instant case it is important to place the nature of the perjured

testimony in context. An alleged confession is universally treated as damning

and compelling evidence of guilt. It is likely to dominate all other case

evidence and lead a trier of fact to convict.

As characterized by the Supreme

Court

A confession is like no other evidence. Indeed, the

defendant's own confession is probably the most

probative and damaging evidence that can be admitted against him. Arizona v. Fulminate, 499 U.S. 2790

296 (1991).

It is also important to place the character of this perjuring witness

in context vis-a-vis her evidence of a confession, Ms. Merrifield was a drug

addict. As a drug-addict witness the jury was first told they could convict

on addict-testimony, but that among the factors they should look for in

examining her testimony closely:

Does the witness expect a reward or some special

treatment or have they been offered a reward or

been promised anything that might lead them to give

false testimony? Have the witness's been promised

that they will not be prosecuted for any charge or

promised a lighter sentence or allowed to plead

guilty to a teas serious charge? If so, could this

have influenced their testimony? (T.T. IV, pp 81214).

Thus, the nature of the false evidence which is, according to the Supreme

Court, "the most damaging evidence that can be admitted" against a defendant

and the loss to Mr. Hastings of any benefit of the special cautionary

instruction as to the this witness, both dispute any suggestion of harmlessness,

especially in such a weak case.

Mr. Hastings recognizes that his Brady, supra end Naupe, supre, claims

most be viewed through the prism of the AEDPA. That is, he must show that

the state court treatment of his claim resulted in a decision that was (1)

contrary to, or involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court; or (2) resulted in a decision

that was based on an unreasonable determination of the facts in light of the

evidence presented In the state court proceedings. 28 U.S.C. §2254(d)(1)(2),

Furthermore, state court findings of fact are presumed correct unless rebutted

by clear and convincing evidence. 28 U.S.C. §2254(e)(1).

The state appellate court opinion on this issue gave three reasons for

not granting Mr. Hastings' a new trial on the basis of perjured testimony:

"First

the only significant testimony she presented was that he told

her that he killed Cook, which Defendant himself testified he had told

Merrifield,"

This is a clear vIolatton of 28 U.S.C. Z2254(d)(2), Mr. Hastings did

NOT testify at trial. In addition, a confession is not merely "significant

testimony," it is the most damaging evidence that can be admitted against a

defendant, Arizona v. Fulminate, supra, and assessing prejudice to a lesser

standard is arguably an unreasonable application of clear federal law. 28 U.S.C.

§2254(2)(1)

"Second, defendant's trial attorney testified that he probably would

not have cross—examined Merrifield on the matter even if he had known about

the deal,"

10.

This is a clear violation of 28 U.S.C. §2254(d)(2) in light of the actual

trial court record. At trial defense counsel extensively cross-examined

Merrifield about the possibility of a deal, her expectations of a deal, pending

charges vis-a-vis her testimony, asking the witness a total of 19 questions

on the subject. (T.T. II, pp 380-81). It was objectively unreasonable to look

to counsel's memory of the case and his ad hoc claim that he would "probably"

not cross-examined Merrifield about the deal, when be had in fact extensively

cross-examined Merrifield attempting to disclose the fact of her pending deal.

and 3. "But most significantly to us, after having had the benefit of

an evidentiary hearing regarding defendant's motion for a

new trial,

specifically found credible the prosecution's claim that they had no actual

knowledge of 14errifie1d's deal at the time of trial due to a coincidence and

a paperwork mix-up."

This too is clear violation of 28 U.S.C. §2254(d)(1). Almost twenty years

ago this stated that the Brady rule encompasses evidence "known only to police

investigators and the not the prosecutor." gyles v. Whitley, 514 U.S. 419,

437 (1995). More to the point, Brady applies "irrespective of the good faith

or bad faith of the prosecution." Brady, 373 U.S. at 87.

For purposes of this case, there is a subsidiary principle that is

pertinent; Innocence. This Court should evaluate the prosecution's suppression

of evidence "in the context of the entire record" - and, "if the verdict is

already of questionable validity, additional evidence of relatively minor

importance might be sufficient to" satisfy the materiality standard. United

States v, Agurs, 427 U.S. 97, 112-113 (1997). Here, the additional evidence

was not minor and the verdict of guilt is highly questionable.

The standard of materiality is less demanding if the case involves false

testimony* See Jackson v. Brown, 513 F.3d 10570 1076 (9th Cit. 2008),

recognizing difference between materiality standard in false testimony cases

and that in undisclosed evidence cases. United States v. Duke, 50 F.3d 571 1,

577-78 (8th Ciro 1995). Though it is alleged that the prosecutor failed to

disclose the deal, he knew, or should have known, that the testimony of

Merrifield was false with regards to a deal that was made for her testimony.

Thus, false testimony is a Napue violation and requires that the conviction

be set aside whenever there is "any reasonable likelihood that the false

testimony could have affected the Judgment of the jury." Hayes Y. Brown, $99

F.3d 972, 985 (9th Cit. 2005), see also United States v. Arnold, 117 F.3d 1308,

1315 (11th Ciro 1997) (stating "the standard of materiality is less stringent,

however, when the prosecutor knowingly use perjured testimony or fails to

correct testimony he or she knows to be false). It is undisputed that there

was a Brady violation. And there can be little dispute that the suppression

of t4errifield'a pleas deal undermines confidence in the outcome of Hr. Hastings'

trial, There is surely a reasonable probability that, if the Information had

been provided, the result of the trial would have been different. What took

place in this case was a miscarriage of justice and contributed to the

incarceration of an innocent man.

Mr. Hastings was denied due process and

a writ of certiorari should be granted and remand to the Sixth Circuit ordering

the lower court to apply the correct standard.

HAR14LESS ERROR: The Sixth Circuit relies on the state court's finding

that the error of prosecutorial misconduct was harmless.

The test for harmless error in cases of constitutional error is more

protective of the defendant and more exacting of the government • The government

must convince the court beyond a reasonable doubt that the error did not

contribute to the verdict. Chapman Y. California, 386 U.S. 18, 24 (1967)

Clearly, the opinions of the lower court's do not rest on a finding that

that the prosecutorial misconduct violation is harmless beyond a reasonable

doubt

In Chapman, the Court recognized that the defendant complaining of the

error, does not shoulder the burden of showing that the error was harmless,

Chapman, 386 U.S. at 24. Instead, "before a federal constitutional error can

be held harmless, the court must be able to declare belief that it was harmless

beyond a reasonable doubt." United States v, Dominguez Benitez, 542 U.S. 74,

81, n 7 (2007).

In applying the harm assessment tests, a court cannot simply ask whether

the prosecution introduced enough evidence to uphold the conviction but must

assess with particularity the role the identified error played in the overall

trial. See Strickler v. Greene, 527 U.S. 263, 290 (1999), United States v.

Lane, 474 U.S. 48, 449 (1986)..

In light of the record before this Court, it is clear that by not revealing

the deal made with Ms. Merrifield for her damaging testimony, i.e., that Mr.

Hastings confessed to her, testimony; the prosecutor did commit misconduct

that resulted in the constitutionally infirm conviction.

WHEREFORE, for the above reasons, this Court can and should grant

certiorari, or in the alternative remand to the lower court to address

the

actual innocence claim, ineffective assistance of trial counsel, ineffective

assistance of appellate counsel claim, prosecutorial misconduct claim.

Respectfully submitted,

DATED:

iLii dQ27

William

A ngs190617

J.Haa

Chippewa Correctional Facility

4269 West M-80

Kincheloe, MI 49784

A. /3

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