Petition for Writ of Certiorari — David Souza, Petitioner v. California
Supreme Court briefOct 15, 2018
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No: ______________________________
_________________________
IN THE
SUPREME COURT OF THE UNITED STATES
_________________________
DAVID SOUZA – Petitioner
VS.
THE STATE OF CALIFORNIA – Respondent
On Petition for Writ of Certiorari
to the
Supreme Court of California
PETITION FOR WRIT OF CERTIORARI
Roger T. Nuttall (Cal. SBN 42500)
Counsel of Record
Nuttall Coleman & Drandell
2333 Merced Street
Fresno, California 93721
Tel: (559) 233-2900
Fax (559) 485-3852
Edgar E. Page (Cal. SBN 231147)
Page Law Firm
Post Office Box 994314
Redding, California 96099-4314
Tel: (916) 449-3970
QUESTIONS PRESENTED FOR REVIEW
QUESTION 1
Does it violate the Due Process Clause of the
Fourteenth Amendment to the United States
Constitution, the holding in Berger v. United States,
295 U.S. 78 (1935) [“”] and the mandate of Napue v.
Illinois, 360 U.S. 264 (1959) [“Napue”], when a state
prosecutor does not acknowledge and correct false
and/or misleading testimony at a preliminary
hearing and/or at any pretrial hearing where the
testimony was introduced, and where instead of
immediately correcting the testimony, the state
prosecutor continues to rely upon it even after being
made aware that the testimony was not truthful?
QUESTION 2
When a state prosecutor consolidates two
separate and distinct cases into one case, and then
proceeds to preliminary hearing, and thereafter files
an Information thereon, is the Due Process Clause of
the Fourteenth Amendment to the United States
Constitution and the holding in Berger implicated
when that same state prosecutor thereafter, several
years later, files a new Complaint (without seeking
the permission required by statute) alleging new
offenses based upon the same nexus of operative
facts as in the initial case?
i
LIST OF PARTIES
DAVID SOUZA:
•
•
•
Petitioner here;
Petitioner in
Court of Appeal and California Supreme
Court. and
Defendant in trial court.
THE STATE OF CALIFORNIA:
•
•
Respondent here, and
Respondent in Court of Appeal and California
Supreme Court.
THE PEOPLE OF THE STATE OF CALIFORNIA:
•
•
•
Real Party in Interest here,
Real Party in Interest in Court of Appeal and
California Supreme Court, and
Plaintiff in trial court.
Sup. Ct. R. 14(1)(b).
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW . . . . . . i
LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . viii
PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1
DECISION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 2
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED . . . . . . . . . . . . . . 3
A
UNITED STATES CONSTITUTION . . . . . . 3
B.
STATUTORY PROVISIONS . . . . . . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 5
A.
COURT OF APPEAL FOR THE STATE OF
CALIFORNIA , FIFTH APPELLATE DISTRICT
............................... 5
B.
CALIFORNIA SUPREME COURT . . . . . . . . 7
REASONS FOR GRANTING THE WRIT OF
CERTIORARI . . . . . . . . . . . . . . . . . . . . . . . . . 8
I.
THE USE OF FALSE TESTIMONY
WITHOUT IT HAVING BEEN PROMPTLY
CORRECTED AS MANDATED BY THIS
COURT IS RIPE FOR REVIEW WHEN THE
FALSE TESTIMONY OCCURS DURING
PRETRIAL PROCEEDINGS . . . . . . . . . . . . . 8
iii
A.
B.
PETITIONER NOTIFIED THE HIGHEST
STATE COURT THAT THE STATE
PROSECUTOR WAS NOT ABIDING BY THIS
COURT’S MANDATES REGARDING A
DEFENDANT’S FUNDAMENTAL RIGHTS AS
PROTECTED BY THE UNITED STATES
CONSTITUTION . . . . . . . . . . . . . . . . . . . 9
1.
Citations To Federal Authority In
The State Petition Claims . . . . 9
2.
Citations To Federal Authority
Within The Arguments Of The
State Petition . . . . . . . . . . . . . . 9
3.
State Court Was Notified In
Filings Submitted With Petition
That State Prosecutor’s Witness
Had Testified Falsely As To The
Application Of A Treaty To
Support The Delay In The
Investigation . . . . . . . . . . . . . . 10
REVIEW IS APPROPRIATE TO REVISIT THE
MANDATE OF NAPUE SO AS TO EXTEND
IT TO PRETRIAL MATTERS . . . . . . . . . . 11
1.
The Decision Of The State Court
Of Last Resort Conflicts With
This Court’s Unanimous Decision
In Napue . . . . . . . . . . . . . . . . . 11
2.
The Decision Of The State Court
Of Last Resort Conflicts With
This Court’s Holding In Berger
. . . . . . . . . . . . . . . . . . . . . . . . . 13
3.
The Decision Of The State Court
Of Last Resort Conflicts With A
Decision Of A United States
Court Of Appeals Decision As To
The Application Of Napue . . . 15
iv
II.
DUE PROCESS FORBIDS THE
PROSECUTION OF A SECOND CASE
BASED UPON THE SAME NUCLEUS OF
OPERATIVE FACTS . . . . . . . . . . . . . . . . . . 16
A.
PETITIONER NOTIFIED THE HIGHEST
STATE COURT THAT THE STATE
PROSECUTOR HAD FILED A SECOND CASE
WHILE MAINTAINING THE FIRST CASE ,
AND THAT BOTH CASES ARE BASED UPON
THE SAME NUCLEUS OF OPERATIVE
FACTS THEREBY DEPRIVING PETITIONER
OF HIS FUNDAMENTAL RIGHTS
PROTECTED BY THE UNITED STATES
CONSTITUTION . . . . . . . . . . . . . . . . . . 16
B.
THIS COURT HAS REPEATEDLY HELD
THAT STATE STATUES MAY BE
PROTECTED BY THE DUE PROCESS
CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . 16
C.
THE STATE COURT OF LAST RESORT WAS
INFORMED THAT THE STATE
PROSECUTOR HAD FILED AND
MAINTAINED TWO CASES BASED UPON
THE SAME NUCLEUS OF OPERATIVE
FACTS . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.
First Case Filed In September
2014 . . . . . . . . . . . . . . . . . . . . . 18
2.
In First Case, The Prosecuting
Attorney Opposed Severance On
January 15, 2015, Arguing
Judicial Economy As One Reason
To Keep The Tulare Incidents
Consolidated With The Out of
Tulare County Cellphone
Incidents . . . . . . . . . . . . . . . . . 19
3.
Second Case Allegations Based
Upon Same Or Similar Cellphone
v
D.
E.
Incidents As First Case . . . . . . 19
THE STATE PROSECUTORS THROUGHOUT
THE LITIGATION IN THE STATE COURTS
INSISTED THAT THE PROSECUTION HAD
THE RIGHT TO FILE AND MAINTAIN TWO
CASES . . . . . . . . . . . . . . . . . . . . . . . . . 20
THE STATE COURT OF LAST RESORT HAS
MADE A DECISION AS TO THE
APPLICATION OF THE DUE PROCESS
CLAUSE THAT CONFLICTS WITH THIS
COURT’S HOLDINGS . . . . . . . . . . . . . . 21
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
INDEX TO APPENDICES . . . . . . . . . . . . . . . . . . . 24
APPENDIX A
Order, Supreme Court of California,
July 18, 2018, denying Petition for
Review in case number S248793 . . . . 25
APPENDIX B
Petition for Review filed in case number
S249793 . . . . . . . . . . . . . . . . . . . . . . . 27
APPENDIX C
Order, Petition for Mandate, Prohibition
and/or Any Other Appropriate Relief in
the Court of Appeal of the State of
California for the Fifth Appellate
District, denied on May 3, 2018 . . . . 69
APPENDIX D
Excerpt of Petitioner's Motion to
Dismiss Which Was Referred To In The
Filing In The California Supreme Court
As Pet.Ex. 121-122 . . . . . . . . . . . . . . . 71
APPENDIX E
Excerpt of Detective Ford’s Testimony
During The Preliminary Hearing On
vi
February 23, 2017, Page 7 . . . . . . . . . 76
APPENDIX F
Reference To MLAT Excerpt from
Petitioner's Supplemental Opposition to
Consolidate Which Was Referred To In
The Filing In The California Supreme
Court As Pet.Ex. pp. 137-140. See also
https: // www. congress. gov / treatydocument / 100th-congress/ 14/ all-info
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
APPENDIX G
2014 Kik Guide For Law Enforcement
Which Petitioner Requested And Was
Granted Judicial Notice Of By Court Of
Appeal And Was Part Of Record
Considered By State Court Of Last
Resort . . . . . . . . . . . . . . . . . . . . . . . . . 85
APPENDIX H
Excerpt of California Attorney General’s
December 5, 2017, Response Filed In
Court Of Appeal In Which Attorney
General Continues To Rely Upon False
Testimony . . . . . . . . . . . . . . . . . . . . . . 97
APPENDIX I
Excerpt of California Attorney General’s
February 6, 2018, Response Filed In
Court Of Appeal In Which Attorney
General Continues To Rely Upon False
Testimony . . . . . . . . . . . . . . . . . . . . . 100
APPENDIX J
Except Of Trial Court Record In Which
Prosecutor Asserted Due Diligence And
The Right To File The Cases As Two
Separate And Independent Cases . . 102
vii
TABLE OF AUTHORITIES
UNITED STATES CONSTITUTION
Amendment VI . . . . . . . . . . . . . . . . . 16, 17, 22
Amendment XIV . . . i, ix, 3, 6-9, 11, 14-17, 22
UNITED STATES CODES AND RULES
TITLE 28
1257(a) . . . . . . . . . . . . . . . . . . . . . 2, 4, 8
RULES OF THE SUPREME COURT OF THE UNITED
STATES
10(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 15
10(c ) . . . . . . . . . . . . . . . . . . . . . . 1, 8, 22
13.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
14(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . ii
14(1)(e)(i) . . . . . . . . . . . . . . . . . . . . . . . 2
14(1)(e)(iv) . . . . . . . . . . . . . . . . . . . . . . 2
FEDERAL CASES
Berger v. United States, 295 U.S. 78 (1935) . i,
8, 9, 13-15
Colorado v. Connelly, 479 U.S. 157 (1986) . . 9
Dye v. Hofbauer, 546 U.S. 1, 4 (2005) . . . . . . 9
Giglio v. United States, 405 U.S. 150 (1972)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14
Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Hebert v. Louisiana, 272 U.S. 312 (1926) . . 22
Kyles v. Whitley, 514 U.S. 419 (1995) . . . . . . 9
Lisenba v. California, 314 U.S. 219 (1941) . . 9
Mooney v. Holohan, 294 U.S. 103 (1935) . 10,
22
Napue v. Illinois, 360 U.S. 264 (1959) . . i, 5-8,
viii
10-13, 21
Pyle v. Kansas, 317 U.S. 213 (1942) . . . . . . 10
United States v. Agurs, 427 U.S. 97 (1976) . 13
Vitek v. Jones, 445 U.S. 480 (1980) . 6, 16, 17,
22
Wolff v. McDonnell, 418 U.S. 539 (1974) . . 17,
22
CALIFORNIA CODES AND RULES
PENAL CODE
0654 . . . . . . . . . . . . . . . . . . . . . . . . . . 17
0954 . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1009 . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1382 . . . . . . . . . . . . . . . . . . . . . . . . 6, 17
1382(b) . . . . . . . . . . . . . . . . . . . . . . . . 17
1385 . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1387 . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1387(a)(1) . . . . . . . . . . . . . . . . . 6, 17, 21
STATE OF CALIFORNIA CASES
Dunn v. Superior Court, 159 Cal.App.3d 1110
(Ct.App. 1984) . . . . . . . . . . . . . . . . . . . . . . 6, 17
ix
IN THE
SUPREME COURT OF THE UNITED STATES
_______________________
DAVID SOUZA – Petitioner
VS.
THE STATE OF CALIFORNIA – Respondent
PETITION FOR WRIT OF CERTIORARI
David Souza, Petitioner, by and through his
counsel, Roger T. Nuttall, of Nuttall Coleman &
Drandell, and Edgar E. Page, of the Page Law Firm,
prays that this Court shall issue a writ of certiorari
to review the California Supreme Court’s decision
which “has decided an important question of federal
law that has not been, but should be, settled by this
Court, or has decided an important federal question
in a way that conflicts with relevant decisions of this
Court.” Sup.Crt. R. 10(c ).
The petition for a writ of certiorari does not
only seek review just because the “error consists of
erroneous factual findings or the misapplication of a
properly stated rule of law.” Id.
1
DECISION BELOW
The order of the California Supreme Court
denying Petitioner any relief was filed on July 18,
2018, and is attached as Appendix A. Sup.Crt. R.
14(1)(e)(i).
JURISDICTION
Petitioner invokes the jurisdiction of this
Court pursuant to 28 U.S.C. § 1257(a). Sup. Crt. R.
14(1)(e)(iv).
PETITION IS TIMELY FILED
Petitioner must file the instant petition within
90 days after the California Supreme Court issued
its order denying the petition for review on July 18,
2018. Sup. Crt. Rule 13.1
2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
A
UNITED STATES CONSTITUTION
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial ...,
and to be informed of the nature and cause of
the accusation; to be confronted with the
witnesses against him; to have compulsory
process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his
defence.
U.S. Const., amend. VI.
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.
U.S. Const., amend. XIV, Cl. 2.
3
B.
STATUTORY PROVISIONS
Final judgments or decrees rendered by the
highest court of a State in which a decision
could be had, may be reviewed by the Supreme
Court by writ of certiorari where the validity
of a treaty ... of the United States is drawn in
question ... where any title, right, privilege, or
immunity is specially set up or claimed under
the Constitution or the treaties ... held or
authority exercised under, the United States.
28 U.S.C. § 1257(a).
4
STATEMENT OF THE CASE
A.
COURT OF APPEAL FOR THE STATE OF
CALIFORNIA , FIFTH APPELLATE DISTRICT
On August 2, 2017, Petitioner filed a petition
for writ of mandate in the Court of Appeal for the
State of California, Fifth Appellate District.
Petitioner raised the federal issues addressed in the
instant filing in the Court of Appeal. These claims
were reiterated, Appendix B, in the state court of last
resort, the California Supreme Court, and denied,
Appendix A.
The first question was raised in all of the
filings as related to the false and/or misleading
testimony of a state prosecution witness in violation
of this court's holding in Napue, and the Due Process
Clause. The subject testimony asserted that a
Canadian company, in 2015, was "finally accepting
U.S. search warrants for investigations" when, in
fact, the Treaty with Canada on Mutual Legal
Assistance in Criminal Matters (referred to in all of
the State filings and herein as "treaty" and "MLAT")
had been ratified and applicable for over 30 years.
Appendices E, F.
In addition, the guide produced by the
Canadian company, the Kik Law Enforcement
Guide, specifically directed law enforcement to the
MLAT as the means to serve a United States search
warrant. Appendices B, F, G (see Page 6 of Kik
Guide).
The second question sought procedural
protections based upon the Prosecution having filed
and seeking thereafter to maintain two separate
cases based upon the same nucleus of operative facts.
Petitioner asserted in this regard that the State
5
prosecutor failed, pursuant to statute, to properly
attempt to demonstrate due diligence and the
existence of substantial new evidence.. See Cal. Pen.
Code, §1387(a)(1). In filing a second and separate
case, the Prosecution did not comply with the state
statutes enacted to keep the Prosecution from
“harassing defendants with successive prosecutions
[citation] and, in part, to pressure the prosecution to
bring the case to trial within the time limits of
section 1382 [citation].” Dunn v. Superior Court, 159
Cal.App.3d 1110, 1119 (1984). Appendix D.
The Prosecution’s actions violated the
protections of the Due Process Clause as discussed
inVitek v. Jones, 445 U.S. 480 (1980).
Further, even after the Prosecution had been
informed that the testimony which was relied upon
(to justify the filing of the second case) was not
supported by the MLAT and the Kik Law
Enforcement Guide, the Prosecution, in the trial
court and in the Court of Appeal as well, never
corrected this violation of Napue. Appendices B, F,
G.
Instead, the prosecution continued to rely
upon the testimony of the prosecution witness that
the Canadian company had not accepted United
States search warrants until 2015, which is not the
truth, in order to support the mandatory
requirement that the Prosecution had acted with
"due diligence" in pursuing the new allegations. Cal.
Pen. Code, §1387(a)(1). Appendix B.
Indeed, the Prosecution failed to comply with
the state statutes and proceeded to file and maintain
a second case while still maintaining the first case.
When Petitioner raised the violation of his due
process rights, the Prosecution throughout the entire
process maintained that it had the right to file and
6
maintain both cases and, as well, that they would
have gone to trial on both cases if the trial court had
not consolidated the cases.
In the Court of Appeal, Petitioner submitted
several guides, and obtained judicial notice of these
guides, produced by the Canadian company
establishing that the company was accepting search
warrants well before 2015.
The California Attorney General, hereafter
Attorney General, filed several responses and never
acknowledged that the prosecution witness had
testified in a false and/or misleading manner.
Ultimately, the Court of Appeal took no action
to correct the violation of this Court's holding in
Napue and/or the requirements of the Due Process
Clause.
On May 3, 2018, the Court of Appeal denied
the petition for writ of mandate, and granted the
deferred motion for judicial notice. Appendix C.
B.
CALIFORNIA SUPREME COURT
Petitioner timely filed a petition for review of
the California Court of Appeal decision in the highest
state court.
On July 18, 2018, the California Supreme
Court denied the petition for review. Appendix A.
7
REASONS FOR GRANTING THE WRIT OF
CERTIORARI
I.
THE USE OF FALSE TESTIMONY
WITHOUT IT HAVING BEEN PROMPTLY
CORRECTED AS MANDATED BY THIS
COURT IS RIPE FOR REVIEW WHEN THE
FALSE TESTIMONY OCCURS DURING
PRETRIAL PROCEEDINGS
Petitioner prays that this Court will exercise
“judicial discretion” and grant “[r]eview on a writ of
certiorari” to review the decision of the state court
which “conflicts” with this Court’s holdings in Napue,
Berger, and the Due Process Clause of the
Fourteenth Amendment to the United States
Constitution. Sup.Crt. R. 10(c ).
Petitioner prays that this Court shall grant
review to address the false and/or misleading
testimony of the state prosecution witness as to the
application of the MLAT. 28 U.S.C. § 1257(a).
Petitioner specifically notified the state court of last
resort that the testimony relative thereto was false
inasmuch as the MLAT had been ratified and
applicable for over three decades. Appendices B, D.
However, the prosecution witness had testified that
the Canadian company had just started accepting
United States search warrants in 2015, which is not
true. Appendices B, E, F.
8
A.
PETITIONER NOTIFIED THE HIGHEST STATE
COURT THAT THE STATE PROSECUTOR WAS NOT
ABIDING BY THIS COURT’S MANDATES
REGARDING A DEFENDANT’S FUNDAMENTAL
RIGHTS AS PROTECTED BY THE UNITED STATES
CONSTITUTION
1.
Citations To Federal Authority In The State
Petition Claims
The State of California was made aware that
claims made within the state petition involved
“specific allegations of prosecutorial misconduct,” as
the petition included references to the “Due Process
Clause” in the titles of several claims, and in the text
of the petition, and Petitioner also cited to the
“Fourteenth Amendments to the Constitution of the
United States.” Appendix B.
2.
Citations To Federal Authority Within The
Arguments Of The State Petition
Petitioner further alerted the State, as the
holding in Dye v. Hofbauer, 546 U.S. 1, 4 (2005),
suggests, by citing to “the following federal cases, all
of which concern alleged violations of federal due
process rights in the context of prosecutorial
misconduct”
•
Berger v. United States, 295 U.S. 78
(1935),
•
Colorado v. Connelly, 479 U.S. 157
(1986)
•
Giglio v. United States, 405 U.S. 150
(1972)
•
Kyles v. Whitley, 514 U.S. 419 (1995)
•
Lisenba v. California, 314 U.S. 219
9
•
•
•
(1941)
Mooney v. Holohan, 294 U.S. 103 (1935)
Napue v. Illinois, 360 U.S. 264 (1959)
Pyle v. Kansas, 317 U.S. 213 (1942).
Appendix B.
3.
State Court Was Notified In Filings
Submitted With Petition That State
Prosecutor’s Witness Had Testified Falsely As
To The Application Of A Treaty To Support
The Delay In The Investigation
The Treaty with Canada on Mutual Legal
Assistance in Criminal Matters (referred to in the
State Petition and herein as “treaty” and “MLAT”)
was ratified by the United States Senate on October
24, 1989, after being received from the President on
February 22, 1988. Appendices B, F.
Thus, the United States and Canada have had
MLAT protocols in place for nearly 30 years – well
before 2015.
The state prosecutor in the trial court relied
upon the officer’s false and/or misleading testimony,
and the Attorney General, as well, in its Second
Response arguing that the officer was diligent when
he testified that the Canadian company, in 2015 was
“finally accepting U.S. search warrants for
investigations” Appendices B, E, H.
The testimony of the officer at the preliminary
hearing that the Canadian company did not accept
search warrants until 2015 was not truthful.
This evidence was utilized by the state
prosecutor and the Attorney General to argue that
the officer had acted with due diligence and that
there was substantial new evidence based upon the
10
false assertion that before 2015, the Canadian
Company was not accepting United States Search
Warrants for investigation.
In addition to citing to the MLAT as being
available for decades, Petitioner also provided
several renditions of the Canadian company’s guide
to law enforcement explaining that it complied with
the MLAT.
Further, the officer had testified that he had
worked with federal agencies previous to starting the
investigation in this case; as such, it can be
concluded that he also had access, during his
investigation, to these agencies in order to assist him
with obtaining information from the Canadian
company and to understand the MLAT.
Indeed, the highest state court, as well, was
made aware of the fact that the evidence utilized by
the state prosecutor to support a showing of due
diligence was not truthful.
B.
REVIEW IS APPROPRIATE TO REVISIT THE
MANDATE OF NAPUE SO AS TO EXTEND IT TO
PRETRIAL MATTERS
This case brings to light that this Court’s
holding in Napue needs to be extended to the
pretrial matters regarding a prosecutor’s mandatory
duty to immediately inform the trial court and the
defendant of the knowing use of false testimony as
this conduct violates the Due Process Clause.
1.
The Decision Of The State Court Of Last
Resort Conflicts With This Court’s
Unanimous Decision In Napue
The State court’s denial of the petition is in
11
conflict with this Court’s unanimous holding in
Napue.
The State was alerted to the fact that the state
prosecutor allowed a police officer’s false testimony
at the preliminary hearing to be used to satisfy a
showing of due diligence in order to obtain additional
allegations.
Thereafter, the state prosecutor in the trial
court compounded the failure to comply with this
Court’s mandate in Napue by relying upon the
officer’s false testimony when Petitioner moved to
dismiss the charges which had been obtained
pursuant to the false testimony.
In the Court of Appeal, the Office of the
Attorney General continued to rely upon the said
false testimony. As such, this also represented an
ongoing violation of Petitioner's due process rights.
The utilization of emphasis so as to draw the Court
of Appeal's attention to that false testimony
compounded the on-going abuse of process and
violation of Petitioner's due process rights under the
Fourteenth Amendment. Appendices H, I.
In addition, the Attorney General was
provided a copy of the 2014 Kik Guide for Law
Enforcement which specifically indicates that the
Canadian Company abided by the MLAT well before
the officer testified that the Canadian company
supposedly not accepting U.S. search warrants until
2015. Appendices E. F, G, H, I.
We disclose account records in accordance with
our terms of service and applicable law. That
means that agencies outside of Canada will
need to submit an Mutual Legal Assistance
Treaty (MLAT) request through the proper
legal authorities to allow us to disclose details
12
about a Kik user's account.
Appendix G, 2014 Kik User Guide, p. 6
The state prosecutor and Attorney General’s
knowing use of false testimony violates this Court’s
mandate in Napue which is “implicit in any concept
of ordered liberty.” Napue, 360 U.S. at 269.
This Court has never tolerated the use of false
testimony and reaffirmed that mandate “[i]n a series
of … cases, the Court has consistently held that a
conviction obtained by the knowing use of perjured
testimony is fundamentally unfair.” United States v.
Agurs, 427 U.S. 97, 103 (1976).
Therefore, Petitioner contends that this Court
should reaffirm mandate in Napue and extend it to
pretrial matters involving testimony by prosecution
witnesses. Sup.Crt. R. 10(c ).
2.
The Decision Of The State Court Of Last
Resort Conflicts With This Court’s Holding In
Berger
The Berger holding is well-established:
The United States Attorney is the
representative not of an ordinary party to a
controversy, but of a sovereignty whose
obligation to govern impartially is as
compelling as its 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
peculiar and very definite sense the servant of
the law, the twofold aim of which is that guilt
shall not escape or innocence suffer. He may
prosecute with earnestness and vigor-indeed,
13
he should do so. But, while he may strike hard
blows, he is not at liberty to strike foul ones. It
is as much his 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.
Berger, 295 U.S. at 88.
The Attorney General, having taken the
position that the officer’s testimony as to when the
Canadian company was beginning to accept search
warrants was true, compounded the abuse of process
and the violation of due process when its Response
filed in the Court of Appeal actually emphasized the
false statement and argued that the officer was
diligent by citing the testimony as to when the
Canadian company was “finally accepting U.S.
search warrants for investigations” Appendices B, E,
H, I.
The Attorney General’s reliance and emphasis
upon this false testimony represents an on-going
misrepresentation as to officer’s due diligence in his
investigation, thereby violating Petitioner’s
substantial procedural due process rights. Berger,
295 U.S. at 88; Giglio, 405 U.S. 150.
The state’s highest court was made aware that
the prosecution in the trial court relied upon the
officer’s false testimony during and after the
preliminary hearing, and that the Attorney General
relied upon the same false testimony to argue
against Petitioner being granted any relief.
The California Supreme Court was made
aware of this Court’s mandates.
The California Supreme Court’s failure to take
any steps to correct the use of false testimony in this
14
case conflicts with this Court’s mandate that a
prosecutor “may strike hard blows, he is not at
liberty to strike foul ones” and that the prosecutor
has a “duty to refrain from improper methods.”
Berger, 295 U.S. at 88. The use of false testimony
represents a prosecutor striking “foul ones” and
using “improper methods.” Id.
Therefore, Petitioner contends that review
would be appropriate in this case. Sup.Crt. R. 10(c ).
3.
The Decision Of The State Court Of Last
Resort Conflicts With A Decision Of A United
States Court Of Appeals Decision As To The
Application Of Napue
The Ninth Circuit Court of Appeals has held
that the presentation of false evidence or testimony
during preliminary proceedings violates a
defendant’s due process rights. Hayes v. Brown, 399
F.3d 972, 979-80 (9th Cir. 2005).
Here, during the preliminary hearing, the
officer testified falsely as to when the Canadian
company was accepting United States search
warrants.
The “state court of last resort has decided an
important federal question in a way that conflicts
with the decision [] of a United States court of
appeals.” Sup. Crt. R. 10(b).
Therefore, Petitioner submits that review is
appropriate in this case.
15
II.
DUE PROCESS FORBIDS THE
PROSECUTION OF A SECOND CASE
BASED UPON THE SAME NUCLEUS OF
OPERATIVE FACTS
A.
PETITIONER NOTIFIED THE HIGHEST STATE
COURT THAT THE STATE PROSECUTOR HAD
FILED A SECOND CASE WHILE MAINTAINING
THE FIRST CASE , AND THAT BOTH CASES ARE
BASED UPON THE SAME NUCLEUS OF
OPERATIVE FACTS THEREBY DEPRIVING
PETITIONER OF HIS FUNDAMENTAL RIGHTS
PROTECTED BY THE UNITED STATES
CONSTITUTION
The state court of last resort was made aware
that claims made within the state petition assert
that the state prosecutor had filed two cases in
violation of his federal due process rights as
indicated with references to the Due Process Clause
in the titles of several claims, in the text of the
petition, and with citations to the Sixth and
Fourteenth Amendments to the United States
Constitution. Appendix B.
B.
THIS COURT HAS REPEATEDLY HELD THAT
STATE STATUES MAY BE PROTECTED BY THE
DUE PROCESS CLAUSE
"We have repeatedly held state statutes may
create liberty interests that are entitled to the
procedural protections of the Due Process Clause of
the Fourteenth Amendment." Vitek, at 488.
"Once a State has granted ... a liberty interest,
we held that due process protections are necessary 'to
16
insure that the state-created right is not arbitrarily
abrogated.'" Vitek, at 488-489 quoting Wolff v.
McDonnell (1974) 418 U.S. 539, 557.
Here, the state Legislature has duly enacted
Penal Code sections 654, 954, 1009, 1382, 1385, and
1387 so as to protect a defendant’s fundamental
federal and state constitutional rights to due process
of law, to a speedy trial, and to be free of
harassment. U.S. Const., Amends. 6th & 14th; Dunn
v. Superior Court, 159 Cal.App.3d 1110, 1119
(Ct.App.1984).
The state legislature has determined that a
felony must go to trial within “60 days of the
defendant’s arraignment on an [] information” unless
there has been a waiver of the speedy trial right by
the defendant. Cal. Pen. Code, §1382(b).
Once a case has been filed, the state
legislature has imposed requirements upon the
prosecution to file an application and demonstrate
that “substantial new evidence” has been discovered
to support any new allegations and that the
Prosecution had acted with “due diligence” in
pursuing the new allegations after the first case has
been filed before the first case will be dismissed to
allow a second action to be filed. See Cal. Pen. Code,
§1387(a)(1).
“The purpose of section 1387 is to prevent the
prosecution from harassing defendants with
successive prosecutions [citation] and, in part, to
pressure the prosecution to bring the case to trial
within the time limits of section 1382 [citation].”
Dunn v. Superior Court, at 1119.
17
C.
THE STATE COURT OF LAST RESORT WAS
INFORMED THAT THE STATE PROSECUTOR HAD
FILED AND MAINTAINED TWO CASES BASED
UPON THE SAME NUCLEUS OF OPERATIVE
FACTS
The state court of last resort was informed
that the two cases had been filed utilizing the same
nucleus of operative facts and that, in this regard,
the state prosecutor failed to comply with applicable
statutes.
Petitioner asserted in his state filings that his
federal due process rights along with his right to a
speedy trial had been violated by the state
prosecutor’s conduct.
1.
First Case Filed In September 2014
In case number VCF285006 (hereafter “first
case”), the case involved two separate and distinct
events with different facts.
The first set of operative facts involved
allegations of conduct with two children who resided
in Tulare County (hereinafter “Tulare incidents”)
but where the allegations did not involve
pornographic images.
The second set of operative facts related to
communications using a cellphone with children in
other locations outside of California including
Canada that involved texting and sending
pornographic images (hereafter “cellphone
incidents”). The cellphone was discovered and seized
by the police during the search of Petitioner’s home
in Tulare County which related to the allegations
18
associated with the first set of operative facts.
A holding order was issued at the end of the
preliminary hearing held on September 15, 2014.
Appendix B. The state prosecutor filed its
Information regarding these allegations on
September 25, 2014. Appendix B.
2.
In First Case, The Prosecuting Attorney
Opposed Severance On January 15, 2015,
Arguing Judicial Economy As One Reason To
Keep The Tulare Incidents Consolidated With
The Out of Tulare County Cellphone
Incidents
Petitioner’s initial defense counsel, on January
15, 2015, sought to sever all the counts involving the
cellphone incidents from the other counts which
involving the Tulare incidents; the state prosecutor
opposed the motion. Appendix B. One reason for
opposing the severance was that “a single proceeding
would be efficient use of the Court's time.” Id. The
trial court denied the severance motion brought by
the defense. Appendix B.
3.
Second Case Allegations Based Upon Same
Or Similar Cellphone Incidents As First Case
Roughly a year later, on October 21, 2015, the
state prosecutor filed a new felony complaint in case
number VCF325933 (hereafter “second case”) making
additional allegations which related to the same
nucleus of operative facts found in Counts 5, 6 and 7
of the first case involving the cellphone incidents.
The state prosecutor failed to file an
application with the trial court pursuant to
California Penal Code §1387(a).
19
A preliminary hearing in the second case was
held on February 23, 2017. Appendix B. An
Information was filed on March 22, 2017. Appendix
B.
D.
THE STATE PROSECUTORS THROUGHOUT THE
LITIGATION IN THE STATE COURTS INSISTED
THAT THE PROSECUTION HAD THE RIGHT TO
FILE AND MAINTAIN TWO CASES
The state prosecutor’s position throughout the
litigation in state courts was that the second case
(VCF325933) and the first case (VCF285006) were
two separate and distinct cases such that the
requirements of California Penal Code 1387 did not
apply. Appendices B, J.
The state prosecutor in the trial court argued
there is “no requirement under 1387 for the
People to have, you know, dismissed the
previous case. They’re two separate and
distinct cases.”
Appendix J.
The Prosecution further argued that if the
Court had disagreed with the motion to consolidate,
it would have then proceeded with two separate
cases. Appendix J.
The Attorney General adopted the state
prosecutor’s position in the Court of Appeal.
The Court of Appeal denied Petitioner any
relief. Appendix C.
Petitioner contested these issues in the state
court of last resort. Appendix B. This petition was
denied. Appendix A.
20
The state court of last resort was made aware
of the fact that the state statutes require that the
state prosecutor file an application in order to
demonstrate that “substantial new evidence” has
been discovered so as to support the new allegations
and that the Prosecution had acted with “due
diligence” in pursuing the new allegations after the
first case has been filed before the first case will be
dismissed so as to allow a second action to be filed.
See Cal. Pen. Code, §1387(a)(1).
It is respectfully submitted here that the State
prosecutor simply “skirted” the relevant statutory
requirement since, in truth and in fact, there was no
“due diligence” or purported “substantial new
evidence”, and as such, neither could have been
established by the prosecution by proceeding
pursuant to said statutory mandate.
E.
THE STATE COURT OF LAST RESORT HAS MADE
A DECISION AS TO THE APPLICATION OF THE
DUE PROCESS CLAUSE THAT CONFLICTS WITH
THIS COURT’S HOLDINGS
No state prosecutor even complied with the
statutory requirements and/or this Court’s
mandates. And then, when ultimately challenged,
the state prosecutor cited to the officer’s false
testimony referred to in the Napue argument above
to justify the delay in the investigation. However, as
heretofore noted, this testimony was false; yet again,
and ultimately, no prosecutor has ever acknowledged
that the testimony was false and/or that steps were
taken to correct it. See Appendices E, F, G, H, I, J.
The decision of the court of last resort in the
state deprived Petitioner of his fundamental due
process rights.
21
[Due Process] "safeguard[s] the liberty of the
citizen against deprivation through the action
of the State, embodies the fundamental
conceptions of justice which lie at the base of
our civil and political institutions . . . [and
prohibits] deception of court and jury by the
presentation of testimony known to be
perjured. . . [and] is as inconsistent with the
rudimentary demands of justice. . .."
Mooney v. Holohan, 294 U.S. at 112 citing Hebert v.
Louisiana, 272 U.S. 312, 316, 317 (1926).
The state prosecutor knew or should have
known the prosecution witness’ testimony was the
"presentation of testimony known to be perjured." Id.
Therefore, the state’s action was "inconsistent
with the rudimentary demands of justice" which "lie
at the base of our civil and political institutions." Id.
This conduct, it is submitted, was in direct
violation of Petitioner’s due process rights and this
Court’s decisions.
The state court of last resort took no action to
protect Petitioner’s fundamental federal
constitutional rights to due process of law, to a
speedy trial, and to be free of harassment. U.S.
Const., Amends. 6th & 14th.
The state court’s decision to deny the petition
deprived Petitioner of “the due process protections
are necessary 'to insure that the state-created right
is not arbitrarily abrogated.'" Vitek, at 488-489
quoting Wolff, at 557.
Petitioner submits that this issue is ripe for
review. Sup.Crt. R. 10(c ).
22
CONCLUSION
It is respectfully submitted that the instant
petition should be granted for the above noted
reasons.
Petitioner prays that this Court will grant his
petition for writ of certiorari.
Dated:
October 11, 2018
Respectfully submitted,
s/ Roger T. Nuttall
___________________________________
Roger T. Nuttall
Counsel of Record
23
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.