Petition for Writ of Certiorari — James T. Bagby, Petitioner v. William Hyatte, Warden

Supreme Court briefApr 5, 2018

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IN THE

SUPREME COURT OF THE UNITED STATES

JAMES T. BAGBY-PETITIONER

SUPERINTENDENT! STATE OF INDIANA -RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court of Appeals for the Seventh Circuit

Indiana District Court Northern District

PETITION FOR WRIT OF CERTIORARI

James T. Bagby

Petitioner/Defendant, pro se

D.O.C. #913111

New Castle Correctional Facility

1000 Van Nuys Rd.

New Castle, IN 47362-1041

QUESTION(S) PRESENTED

Did the United States 7th Circuit Court of Appeals err in denying a certificate of

appealability without specifically addressing any of Bagbys' claims by stating that there

was "no substantial showing of the denial of a constitutional right and did the United

States 7th Circuit Court of Appeals err in not equitably tolling time for Petitioners Habeas

Corpus?

Did the District Court fail to properly look into all the Post Conviction Relief Courts'

misinterpreting of law, Violation of Constitutional rights and violating Bagbys' due

process rights?

Did The Northern District Court err in not holding the Attorney General in contempt for

disobeying order to only show cause why the Habeas Corpus should be dismissed due to

timeliness?

Did the Indiana Court of Appeals err by denying P.C.R. By not recognizing cumulative

errors made by the prosecutor and Judge of the P.C.R. Court?

Why is all the Courts scared to give Petitioner relief for the Constitutional violations that

have been done to him?

LIST OF PARTIES

[X ] All parties appear in the caption of the case on the cover page.

•

Supreme Court of the United States

United States District Court, Northern District of Indiana

United States Court Of Appeals

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

3-10

11-12

INDEX TO APPENDICES

APPENDIX A The opinion of the United States Seventh Circuit Court of Appeals denying a

Certificate of Appealability. Case No. 17-2442, (7th Cir., January 8, 2018).

APPENDIX B The opinion of the United States District Court denying a writ of Habeas

Corpus and denying a Certificate Of Appealability. 3:16-cv-0 186 (June 14, 2017)

BI -B5

APPENDIX C The opinion of the Indiana Court of Appeals affirming the trial court's denial

of post-conviction relief. Cause No. A04-1309-PC-0453

Cl C22

(Ind. Ct. App., November 12th, 2014).

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

Moore v. Illinois, 434 U.S. 220, 229, 54 L. Ed. 2d 424, 98 S. Ct. 458 (1977) ..........................11

U.S. v. Bagley, 473 U.S. 667,105 S. Ct. 3375, 87 L. Ed.2d 481 (1985)..................................11,12

Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed.2d 490 (1995)................................ 11

Pennsylvania v. Ritchie, 480 U.S 39,58 n.15 (1987) .................................................................11

United States v. Agurs (1976), 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed.2d 342 ...........................12

Brady v. Maryland, 373 U.S. 83,83,S. CL 1194, 10 L. Ed.2d 215 (1963) ............................11,12

Steward v. State, 636 N.E.2d 143, 149 (Ind. App. 1994) ...........................................................7

Tague v. Richards, 3F. 3d 1133 (U.S. App.1993)........................................................................7

Richard v. State, 269 Ind. 607, 382 N.E.2d 899 (1978) ..........................................................4,12

Carey v. State, 275 Ind. 321, 416 N.E.2d 1252 (1981)................................................................12

Talley v. State, 442 N.E.2d 721 (1982) ......................................................................................10

Hunt v. State, 455 N.E.2d 307 (Ind. 1983) .................................................................................11

Bellmore v. State, 602 N.E.2d 111, 1992 Ind. LEXIS 240 (1992) .............................................13

Harrington v. Richter, 562 U.S.

---,

131 S. Ct. 770, 786-87; 178 L. Ed. 2D 624 (2011) ..........8

Johnson v. Hulett, 574 F.3d 428, 433 (7th Cir. 2009) ...............................................................8

Bynum v. Lemmon, 560 F.3d 678, 683 (7th Cir. 2009) .............................................................8

Badelle v. Correll, 452 F.3d 648, 655 (7th Cir. 2006) ...............................................................8

Holland v. Florida, 560 U.S. 631, 648 (2010) ...........................................................................9

Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2D 435 (1990). 9

Ross v. Varano, 712 F.3d 784, 803 (3d Cir. 2013) .....................................................................9

Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999) ...................................................................9

Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2D 669(2005) .............10

Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011) ...............................................................10

Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998) .......................................10

Munchinski v. Wilson, 694 F.3d 308, 329 (3d Cir. 2012) .........................................................10

STATUTES AND RULES

IC § 35-37-4-4 ..........................................................................................................................3,5

IC § 35-37-4-4(b)2 .....................................................................................................................6

28U.S.C.2254 ............................................................................................................................6

AEDA2244(d) ............................................................................................................................9

AEDA2254................................................................................................................................8

Indiana rules of Evidence Rule 412.............................................................................................8

111

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTRIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[X]

For cases from Federal Courts:

The opinion of the United States Courts of Appeals appears in Appendix A to the petition

and is unpublished.

The opinion of the United States District Court appears at Appendix B to the petition and

is unpublished.

[X]

For cases from state courts:

The opinion of the Indiana Court of Appeals to review the merits appears at Appendix C

to the petition and is unpublished.

JURISDICTION.

[X ]

For cases from Federal courts:

The date on which the United States Seventh Circuit Court of Appeals decided my

case was on January 8, 2018. See Appendix A

[X] No petition for rehearing was filed in my case.

[X] For cases from the State courts:

The date on which the highest state court decided my P.C.R. case was on November 12th

2014. See Appendix C.

[X] For cases from the Lower State courts:

The date on which the lower state court decided my P.C.R. case was on May 7th, 2013.

The jurisdiction of the Court is invoked under 28 U.S.C. § 1257(a).

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or

in the Militia, when in actual service in time of War or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken for public use, without just

compensation.

Amendment VI, Rights of the accused.

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

an impartial jury of the State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the witnesses against him; to have

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

Counsel for his defense.

Amendment XIV

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

The Respondent's statement of the facts fails to sufficiently or correctly map the

background of James Bagby's case (hereinafter Bagby or Petitioner). There were also relevant,

truthful events and facts conveniently left out of the Respondents Statement of Facts. Bagby

apologizes in advance if statements are repeated. Bagby isn't an attorney and greatly respects all

the hard work they do to prepare Motions and Petitions. Petitioner has done his best with the

knowledge he has to apply the facts and to obey all the rules he is aware of. Therefore to bring

clarity to the issues, Bagby presents the following:

On January 31(1, 2009, the Kokomo Police department kicked in the back door of James

Bagby and Kimberly Bagby's residence claiming that Mr. Bagby was confining Ms. Bagby. They

were both asleep at the time because it was around 1:00A.M. To 3:00 A.M. Bagby was arrested

for criminal confinement as a class D-felony. On 1/13/2009 Bagby filed with the Court a Motion

For Fast and Speedy Trial. On 1/14/2009 the State filed count I and II as class B sexual

misconduct with a minor against, Amanda Roe, (hereinafterA.R.). On 1/23, 2009 the State filed

count IV as a class D sexual battery, against Katelyn Vanmeter (hereinafter K.V.).

Petitioner was appointed a public defender, Mark Dabrowski, (hereinafter Dabrowski).

From the time of his appearance to the jury trial Dabrowski only came and seen Bagby one (1)

time on April 19th, 2009. Which Bagby entered into evidence the visit records from the jail in his

original Post Conviction Relief, (hereinafter P.C.R.), and his Amended P.C.R. 's. See Exhibit 4,

4(a), 4(b) as the jail log records from the Howard County Sheriffs Department and Bagbys'

personal calender records. On September 22' and 23rd 2009 the jury trial was held. Where

Dabrowski failed to represent Bagby which is a violation of his IV and XIV Amendment. He

advised Bagby not to testify which Bagby thought was not the best strategy, because Bagby

assumed that the jury would want to here his side of the case.

At no the time during the trial in this matter did trial counsel, Dabrowski, have the full

Indiana State Police DNA laboratory report with which to cross examine the DNA analyst,

review the case for cross contamination of samples, or to otherwise analyze the DNA evidence in

this matter. See Exhibit 5, Pg. 167 to 172, as part of the Post Conviction Relief Hearing,

(hereinafter PCRH). The DNA evidence relied upon at the underlying trial regarding the

potential mixture of A.R.'s DNA in the Petitioner's sperm sample on the bed sheet in A.R.'s

room, 2A8 was based upon only three (3) of the (16) sixteen loci normally used to determine a

(hereinafter PCRH). The DNA evidence relied upon at the underlying trial regarding the

potential mixture of A.R.'s DNA in the Petitioner's sperm sample on the bed sheet in A.R.'s

room, 2A8 was based upon only three (3) of the (16) sixteen loci normally used to determine a

DNA profile, pursuant to testimony presented at the hearing by Indiana State DNA examiner

Miranda Michael (hereinafter Michael), see ex. 5, Pg. 30-48. In the sample there were eight (8)

additional alleles. Michael only used three (3) Why ?, because there were only two individuals

not fully represented atall locations for the statistic, and for this statistic to work you need to

have everyone represented. Bagby and A.R.s' DNA profile was not at both locations. The

statistics in that are one in ten that it was the DNA mixture of Bagbys' sperm and that of A.R.'s

DNA was in the mixture, see ex. 5, Pg. 46, Ln. 10-12. One In Ten, the Petitioner was guilty!!!

The jury never got to hear any of this. Testimony at the trial from Virginia Maletic

(hereinafter Maletic), another State forensic examiner, revealed that a person's DNA could be

found on a bed, various furniture and other items in that person's home due to DNA transfer in

everyday living, Further, DNA transfer is possible through sweat, hair and dried bodily fluids.

The forensic expert also testified that DNA could still be present after washing. Bagby called

Dabrowski's office earlier in his representation and fired him due to his continuing the case and

other misrepresentations and Bagby was told he could not fire Dabrowski. Bagby will state the

numerous failures of Dabrowski in ground one (1) later in the Traverse. On 12/16/2009, Bagby

was convicted of two counts of sexual misconduct with a minor, as a class B felony, under cause

number 34A02-1001-CR-158, for which he was sentenced to 15 years on each count, to run

consecutively. The criminal confinement was dismissed by the state during trial and the jury

acquitted Bagby on the sexual battery. After the verdict was read Bagby turned to look at

Dabrowski and he had cut out/left. Said convictions were obtained regarding misconduct with a

female with the initials A.R.,date of birth. March. 7, 1993. The alleged misconduct was said to

have occurred on or around November and December 2008. Bagby appealed his conviction and

sentence on 1/15'2010, in this case number 34A02-1010-Cr-158. Bagby's appointed appellate

counsel, Mark Ryan, was later disbarred due to his miss treating of his clients and Bagby was

appointed Derrick Steele. Mr. Steele had to file a belated appeal However, the jury's verdict was

affirmed on February 18',2011.

At the time of Petitioner's trial, DNA evidence was presented revealing there were

areas wherein both Petitioner's and A.R.'s DNA were present in two mixtures; one area in which

relationships. There was also testimony at the Post -Conviction Hearing that was not presented at

trial due to the fact that the full DNA file was not given to defense counsel. Also Bagby and his

wife Kimberly Bagby had had sex in A.R.'s bed due to the fact that there was college kids that

lived next door and their living room door was within just a few feet from the Bagby's bedroom

window. The college kids would have loud parties at times and when A.R. was gone, staying all

night with her grandmother, Mr. and Ms. Bagby would sleep in A.R.'s room. Kimberly Bagby

produced affidavits which were entered into evidence as previously stated, affirm that her and

Mr. Bagby had had sex on A.R.'s bed. Kimberly Bagby. via affidavit (entered into evidence as

Petitioner's 1 a, lb and 1 c), swore that she told the prosecutor, Jim Fleming, (hereinafter

Fleming), prior to the underlying trial, that she and Petitioner had sex in the bed upon which the

DNA samples were found containing Bagby's semen, and that she heard A.R. state that Justin

Richard was her "one and only" sex partner. She also affirmed that Fleming told her not to talk

to Dabrowski about it. Although Ms. Bagby said she had washed the sheets, she never had. She

just said that because it made her sound like a bad mother not to wash the sheets. A.R took care

of her own laundry due to the fact she didn't like any one else to mess around with her clothes.

And Mr. Bagby doesn't recall A.R. ever washing the bed sheets. When Bagby ever witnessed

A.R. doing her laundry she would put too many clothes in the washer together, which would not

have cleaned them very well.

Bagby filed a P.C.R. May 20th, 2011, alleging the presence of new evidence and

ineffective assistance of counsel. The P.C.R included the affidavits from Ms. Bagby. Petitioner

filed an amended P.C.R. On February 27th, 2012. On February 23w, 2012 Bagby's mother hired

Noel Law office to represent him on his case. Katherine Noel, (hereinafter Noel) advised Bagby

that she wasn't very familiar with P.C.R.'s and that she had an attorney, she just recently hired

who knew a lot more about the P.C.R.'s. So Megan Schueler, (hereinafter Schueler), became my

attorney. Schueler filed an amended P.C.R. on February15th, 2013. On February 20th, 2013 we

had an evidentiary hearing with special Judge Brant Parry, (hereinafter Parry). Mark McCain

represented the state.

• 6. Taylor Yard (hereinafter Yard) testified he was having sex with A.R. during the time

around which she made allegations against Bagby. In Fact, Yard had sex with A.R. on his

birthday, December 23, 2008 prior to A.R.'s SAFE exam, which Dr. Haendiges testified at the

underlying trial, see ex. 5, Pg. 60, Ln. 12-24. Haendiges testified A.R. had hymeneal tearing,

•

which could be consistent with sexual intercourse, a bicycle accident, or she was born with. See

ex. 5, pgs.59-60 and 70-71 as Taylor Yard's testimony.

A.R. testified inconsistently regarding Yard at the P.C.R. Hearing. She initially

testified she met Yard during the 2008-2009 school year and that Yard lived with her family

shortly after Petitioner was jailed for the instant offenses, which was prior to her turning 17 years

old. She later testified she met and had sex with Yard when she was 17 years old.

A.R. testified at some point after the underlying trial , she recalled several nonconsensual sexual encounters with her biological father; her cousin Derek Hanley; a man in a

wheel chair, who lived on Main St; and a guy named Tommy, when she lived on Korby street,

prior to those she said occurred between herself and the petitioner. However, she denied vaginal

penetration by any of these persons at the P.C. R. hearing. Incidentally, in Sept 2010, A.R.

reported to Melisa Marner (hereinafter Marner), of the DCS, that there was , in fact, vaginal

penetration by Derek Hanley and Tommy. According to Marner, who testified at the P.C.R.

Hearing, A.R. disclosed Derek Hanley and Tommy, forced her to have sex with them, which

consisted of among other things, vaginal penetration, see ex. 5, Pgs. 206-209. Marner further

stated that said contact occurred prior to 2008. Marner also testified that nothing was done

regarding A.R.'s disclosures in Sept 2010, as A.R. had prior opportunities to disclose and did not.

A.R.'s testimony at the P.C.R. hearing both revealed inconsistencies in her pre-trial disclosures to

DCS and police, as well as cast doubt upon her credibility in general. Ex. 5, pgs. 90-107.Also see

DCS report as exhibit 9.

Dabrowski, Bagby's trial counsel , testified he spoke with no witnesses provided by

Bagby, including Sabrina Pollard, Trisha Ferguson, Tyler Sims, Justin Richard, and Laura

Groover (hereinafter Groover), because he determined , without speaking to the witnesses, they

would all lead to inadmissible or harmful evidence, or later testimony. Further, he testified he

believed each witness solely had information regarding prior sexual partners of A.R. Thus, he

believed any information the witness had to provide was not relevant to the case and was

inadmissible due to the Rape Shield statue, IC § 35-37-4-4. However, when asked about each

witness, he was unable to testify for what purpose each witness was actually provided or what

they could possibly have testified to. Dabrowski failed to prepare for the evidentiary hearing. He

didn't bring any of his files and at one time the Court had his office send his files so he could

view them to try to get him to remember the case. He commented at the P.C.R. Hearing that at

his age he couldn't remember what he had for lunch, see ex. 5, pg. 146, Ln. 6. When questioned

specifically about Groover, Dabrowski admitted he had no recollection about her being

mentioned in A.R.'s videotaped statement or the discovery. Pursuant to A.R.'s statement, with in

the interview video, which was exhibit 14, entered at the P.C.R. hearing and also entered at trial,

clearly stated that she provided letters, allegedly about abuse conducted by Bagby, to Groover.

Petitioner was unable to get the exhibit 14 that was entered into evidence at the original trial.

Schueler tried desperately to locate Groover, to the extent that she found out she had gotten

divorced and her last name was now Beane. Schueler had investigated and found her last place of

employment, but couldn't get any information where Ms. Groover/Beane may be. Schueler had

also found Ms. Groover/Beane's daughter working at a Goodwill in Kokomo, In. and she would

not disclose where her mother was. Dabrowski blew the chance for Bagby to have these

witnesses testify on his behalf and now there unattainable. Upon appearing at the P.C.R. Hearing

Dabrowski had no notes. No recollection, and about many material facts. He testified he made

no effort to find Groover and he made no effort to impeach A.R. at the trial. He failed to

investigate at all. Bagby had told Dabrowski that Groover was a very important factor for his

trial.

10. Dabrowski Believed he had all of the discovery in this matter, as it was his normal

course of conduct to obtain all discovery, and he believed he had all information regarding the

DNA evidence. Dabrowski did not have the entire discovery in this matter prior to trial. He did

not obtain the 2006 case file from Attorney Katherine Noel (hereinafter Noel), wherein A.R.

made statements to the officers. Said charges were dropped. The State had this evidence, and it

was readily available to Dabrowski. Dabrowski admittedly took no depositions in this matter and

did not obtain all portions of discovery matter, despite it being his normal practice. Dabrowski

never obtained videotaped interviews of Brad Vanmeter or Ashley Hanley, both persons

interviewed regarding alleged instances of abuse of A.R. and another child, see ex. 5, pgs. 157159. Dabrowski never obtained the full State Laboratory DNA file, Exhibit 11 from the P.C.R

hearing, only having,(Exhibit 10, partial DNA evidence) from the P.C.R hearing, consisting of

the summary reports, see ex. 5, Pg. 172, Ln. 4-7. In fact , he admitted to having no knowledge

that the information in exhibit 11 existed. He further admitted, when shown case law,

specifically, Steward v. State, 636 N.E.2d 143, 149 (Ind. App. 1994), and Tague v. Richards, 3F.

3d 1133 (U.S. App. 1993), argued infra, he did not believe he was aware of said research

specifically regarding the exception the Rape Shield law specifically outlined in IC §35-37-44(b)2, and Evidence Rule 412(2), ex. 5, Pgs. 132-133. Petitioner diligently tried to obtain exhibit

11, which was entered into evidence at the P.C.R.H. Noel Law Office said that they had lost it.

The P.C.R. Court said they sent it it to the Indiana Court of Appeals. Which the Indiana court of

Appeals ordered the Attorney General to release it to me, but they claim it went to the Northern

District Court. They say they don't have it. Just the evasiveness alone tells us that everyone is

trying to hide exhibit lithe full DNA evidence.

On 11/21/2014. Petitioner's mother, Mary Turnpaugh hired Noel Law Office to do a

Habeas Corpus Relief for Petitioner, see ex. 3 (a) and 3 (b). On 02/07/2016 Noel Law Office

wrote Bagby and informed him they were not going to do the Habeas any longer and that they

would come ans see him wit-in the next 30 days, Noels' Law Office never showed up, see ex.

2(a) thru (j). From the way Bagby was lead to believe because of the previous correspondence,

he thought the Habeas clock didn't start until the Petition To Transfer to the Supreme Court was

done. That is the end of his State remedies, which as stated he believed the toll clock started. See

ex. 13, CCS of Petition To Transfer and 2(a) thru 20) as the letters to and from Noel Law office.

These proceedings are governed by the Anti-Terrorism and Effective Death Penalty

Act of 1996 ("AEDPA") and 28 U.S.C. § 2254. "As amended by AEDPA, 2254(d)

...

preserves

authority to issue the writ in cases where there is no possibility fair-minded jurists could disagree

that the state court's decision conflicts with this Court's precedents." Harrington v. Richter, 562

U.S.

---,

131 S. Ct. 770, 786-87; 178 L. Ed. 2d 624 (2011) (citations omitted). When a State

court adjudicates a claim on the merits, habeas corpus relief may not be granted "unless the state

court's decision was contrary to or an unreasonable application of clearly established federal

law." Johnson v. Hulett, 574 F.3d 428, 433 (7th Cir. 2009). "A state court unreasonably applies

Supreme Court precedent if the state court identifies the correct legal rule but applies it in a way

that is objectively unreasonable." Bynum v. Lemmon, 560 F.3d 678, 683 (7th Cir. 2009) (internal

citations omitted). "[A]n unreasonable state court decision is one lying well outside the

boundaries of permissible differences of opinion or one that is at such tension with governing

U.S. Supreme Court precedents, or so inadequately supported by the record, or so arbitrary as to

be unreasonable." Badelle v. Correll, 452 F.3d 648, 655 (7th Cir. 2006) (internal quotations and

citations omitted). Additional standards provided as necessary.

ri,

EQUITABLE TOLLING:

As all previously stated Bagby had hired an attorney or his mother did, to complete a

Habeas Corpus. He did not believe he had the knowledge to do one himself He put his trust in

Noel Law Office to due the Habeas and was mislead into believing the Habeas was being done.

Due to no fault of his own Bagbys' time had run out. Bagby diligently wrote Noel Law Office to

confirm that they were doing the Habeas and Noel said they were working on it. See Ex. 2(a)

thru 20). Then at the last moment, from his calculations they sent a letter saying they were not

going to do it. It would be a grave miscarriage of justice not to allow Bagby to complete his

Habeas Corpus. The timeliness provision in the federal habeas corpus statute is subject to

equitable tolling. Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.S. 2244(d).

(Breyer, J., joined by Roberts, Ch. J., and Stevens, Kennedy, Ginsburg, and Sotomayor, JJ.).

A petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented

timely filing. (Breyer, J., joined by Roberts, Ch. J., and Stevens, Kennedy, Ginsburg, and

Sotomayor, JJ.) See also Holland v. Florida, 560 U.S. 631, 648 (2010).

Additional tolling of the AEDPA limitations period, beyond the provisions set forth by

2244(d)(2), may be available as a matter of equity where the Habeas petitioner "has been

pursuing his rights diligently," but has been prevented from timely filing his federal petition by

"some extraordinary circumstance [that] stood in his way." Holland v. Florida, 560 U.S. 631, 130

S. Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010). The Supreme Court has cautioned, however, that a

"garden variety claim of excusable neglect" by counsel that leads to noncompliance with the

limitations period will not constitute "extraordinary circumstances" to warrant equitable tolling.

Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990). In

order to obtain relief, a petitioner must show "a causal connection, or nexus, between the

extraordinary circumstances he faced and [his] failure to file a timely federal petition." Ross v.

Varano, 712 F.3d 784, 803 (3d Cir. 2013); see also Jones v. Morton, 195 F.3d 153, 160 (3d Cir.

1999) (finding that a "misunderstanding of the exhaustion requirement is insufficient to excuse

[petitioner's] failure to comply with the statute of limitations").

The Supreme Court of the United States has held that the federal Habeas statute of

limitations is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 648-49, 130 S. Ct.

2549, 177 L. Ed. 2d 130 (2010). Equitable tolling is allowed only if petitioner shows: "(1) that he

has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way and prevented timely filing." Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418,

125 S. Ct. 1807, 161 L. Ed. 2d 669(2005)). "The diligence required for equitable tolling purposes

is 'reasonable diligence[,]" but "the circumstances of a case must be 'extraordinary' before

equitable tolling can be applied." Id. at 652, 653. There are "no bright lines in determining

whether equitable tolling is warranted in a given case." Pabon v. Mahanoy, 654 F.3d 385, 399 (3d

Cir. 2011). Rather, equitable tolling is appropriate when "principles of equity would make the

rigid application of a limitation period unfair." Miller v. N.J. State Dep't of Con., 145 F.3d 616,

618 (3d Cir. 1998) (alterations omitted); Munchinski v. Wilson, 694 F.3d 308, 329 (3d Cir. 2012).

REASONS FOR GRANTING THE PETITION

It was at no fault what so ever form the Petitioner that the attorney that his mother had

hired Noel Law Office to represent him on his Habeas Corpus Relief and they failed to honor

their contract. Petitioner was denied a fair trail as guaranteed in the United States Constitution.

Petitioner was denied relief How can all these Courts' deny Petitioner the relief sought? The

Prosecution for the State withheld evidence. That evidence would have exonerated Mr. Bagby.

The evidence was DNA evidence and two witness DVD"S. Prosecution's obligation to disclose

Brady material is contingent upon a showing that the prosecution suppressed or withheld

evidence that was exculpatory and material. Moore v. Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33

L. Ed. 2d 706 (1972) and U.S. v. Bagley, 473 U.S. 667,105 S. Ct. 3375, 87 L. Ed.2d 481 (1985)

(regardless of nature of request by defendant, favorable evidence is material, and constitutional

error results from suppression by government "if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been different").

Brady violation is not subject to harmless error analysis. Prosecution properly bears burden of

determining whether evidence, including that in possession of police, is material and must be

disclosed to defense. Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed.2d 490 (1995)

(four aspects of materiality under Bagley: First, reasonable probability of different outcome does

not require showing that, more likely than not, defendant would have received different result

had evidence been disclosed, but rather that, governmental suppression undermines confidence

in the outcome. Second, defendant need not show that, discounting exculpatory evidence in light

of suppressed evidence, evidence would not have been sufficient to convict. Third, Brady

-Bagley error is not subject to harmless error analysis. Fourth, and finally, effect of suppressed

evidence must be considered collectively, not item-by-item).

Evidence that may "undermine" a conviction depends upon the facts of any particular

case, and nature of the request for information. The key is whether "the prosecutor's

response to [defendant's] discovery motion misleadingly induced defense counsel to

believe.. .the evidence did not exist, possibly causing counsel to abandon independent

investigation, defenses, or trial strategies..." Bagley, 473 U.S. at 683. Specific discovery

requests would probably meet this standard best. See Pennsylvania v. Ritchie, 480 U.S.

39, 58 n.15 (1987). If Dabrowski would have seen the full DNA file then he would have

discovered that; 1) DNA evidence was mis-treated or contaminated and because of the

contamination there was not enough DNA left to re-test. 3) He could have properly questioned

the States DNA annalist and discovered that the DNA evidence in question were Bagby's DNA

and the Alleged victim was a mixture of one to ten, which meant that it was a one in ten chance it

was our DNA mixed together.

Agurs Tests

Prosecutor's failure to disclose "material" evidence may result in reversal of conviction in

three different situations. United States v. Agurs (1976), 427 U.S. 97, 96 S.Ct. 2392, 49

L.Ed.2d 342. Specific Defense Request -Might Have Affected Outcome if the defense makes

specific request for material that is later shown to be exculpatory (called Brady material),

reversal is required if exculpatory evidence "might have affected the outcome of the trial." Brady

v. Maryland, 373 U.S. 83, 83, S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427

U.S. 97, at 104, 96, S.Ct. 2392, 49 L.Ed.2d 342 (1976). See also Richard v. State, 269 Ind. 607,

382 N.E.2d 899 (1978); Carey v. State, 275 Ind. 321, 416 N.E.2d 1252 (1981); Talley v. State,

442 N.E.2d 721 (1982). Where defendant's request is phrased in general terms, or where there is

no request, prosecutor's duty to disclose is determined by whether the evidence in his possession

is so obviously exculpatory that the failure to provide the evidence to defendant denies defendant

a fair trial. Hunt v. State, 455 N.E.2d 307 (Ind. 1983). General Request or No Request, "Creates

Reasonable Doubt" That Did Not Otherwise Exist. The omitted evidence, as evaluated in the

context of the entire record, must create a reasonable doubt that did not otherwise exist. United

States v. Agurs, supra, 96 S.Ct. at 2401. Also due to fact that the evidence is missing (believed to

be missing) and THAT THE STATE TRIED TO KEEP BAGBY FROM OBTAINING IT.

SHOWS THAT THE EVIDENCE WAS OBVIOUSLY EXCULPATORY.

Indiana Law (1) Use of Federal Tests to Determine "Materiality" Indiana has applied both

Bagley and Agurs on basis of federal constitution. Evidence is material only if there is a

reasonable probability that in the event of disclosure the result of the proceeding would have

been different. Bellmore v. State, 602 N.E.2d 111, 128 n.6 (Ind. 1992).

The Northern District Court ordered the Petitioner and the Indiana Attorney General to

only show cause why the Habeas Corpus Relief should not be dismissed due to timeliness.

Petitioner obey that order the District court did not. See Exhibit 15 as that order.

The P.C.R.H. Court and Prosecutor for the State of Indiana hurried Petitioner's counsel

which caused her to make errors. See exhibit 5, pgs. 201-203, 207. The rushing caused

Petitioner's counsel to not call witness, Kimberly Bagby, who was at the P.C.R.H. to testify to

the truthfulness of two affidavits that were submitted into evidence. The affidavits were part of

the evidence that the state later got thrown out dur to the witness not testifying. The hurrying also

caused counsel not to properly litigate the Brady violation form the prosecutor at trial. There is

very important DNA evidence that was not given to trial counsel.

CONCLUSION

The petition for writ of certiorari should be granted. Due to the miscarriage of justice allowed by

the Howard County Prosecutor and the Howard County Superior II court, and Northern District

Court, United States 7'Circuit Court of Appeals. Petitioner is innocent of these allogations and

humbly request for the SUPREME COURT OF THE UNITED STATES to pleas ego over this

matterial. Petitioner is sure he missed a lot, but did the best he could.

Respectfully Submitted,

18 ab•

James T. Bagby

Petitioner, pro se

Date: APRIL 5th ,2018

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.