Petition for Writ of Certiorari — Robert Jay Heximer, Petitioner v. Michigan

Supreme Court briefAug 29, 2017

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IN THE

SUPREME COURT OF THE UNITED STATES

/kq0bF-f4

PETITIONER

(Your Name)

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

(NAME OF COURT THAT

RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

7 ôbac

\c\c

(Your Name)

Dcc

cc&,c\ FC\R

(Address)

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

WHETHER THE EVIDENCE ACQUIRED DURING MR. HEXIMER'S ILLEGAL

DETENTION IS/WAS INADMISSIBLE UNDER CLEARLY-ESTABLISHED LAW

WHETHER THE 53RD DISTRICT MAGISTRATE HAD ABSOLUTELY NO ADMISSIBLE

EVIDENCE, FACTS OR TESTIMONY

LET ALONE A COMPETENT WITNESS

BEFORE HIM TO: (A) CONFER JURISDICTION: (B) ESTABLISH THE REQUIRED

• FOURTH AMENDMENT FINDING OF PROBABLE CAUSE TO CHARGE ANY CRIME(S):

OR (C) ISSUE CRIMINAL PROCESS AGAINST MR. HEXIMER ?

WHETHER THE 53RD DISTRICT JUDGE HAD ABSOLUTELY NO ADMISSIBLE

EVIDENCE, FACTS OR TESTIMONY AT THE PRELIMINARY EXAMINATION

LET

ALONE JURISDICTION

TO FIND PROBABLE CAUSE THAT A CRIME WAS

COMMITTED UNDER MCL § 750-157B2 OR THAT MR. HEXIMER HAD COMMITTED

ANY CRIME(S)

TO BIND THE MATTER OVER TO THE CIRCUIT COURT ?

WHETHER A CONVICTION PRONOUNCED BY THE 44TH CIRCUIT COURT WITHOUT

ANY ADMISSIBLE EVIDENCE, FACTS OR TESTIMONY

AND WE WANT OF

PERSONAN & SUBJECT-MATTER JURISDICTION

IS UNCONSTITUTIONAL 7

WHETHER THE PROSECUTOR COMMITTED FRAUD UPON THE COURTS, MR.

HEXIMER AND PUBLIC

WHERE THERE WAS ABSOLUTELY NO ADMISSIBLE

EVIDENCE, FACTS OR TESTIMONY

LET ALONE JURISDICTION

PURSUE THE SOLICITATION CHARGE AGAINST MR HEXIMER (A DISABLED

VETERAN) DUE TO HIS ILLEGAL DETENTION 7

WHETHER THE PLAINTIFF'S FAILURE TO ANSWER OR MEET ITS BURDEN OF

DEMONSTRATING SUBJECT-MATTER JURISDICTION IN ANY OF THE MICHIGAN

COURTS (44Th CIRCUIT, COURT OF APPEALS, SUPREME COURT) CONSTITUTES

FORFEITURE AND/OR WAIVER?

111

LIST OF PARTIES

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

II] All parties do not appear in the caption of the case on the cover page. A list of

alipartiesto -theproceeding-in-the court whose -judgmentis-the-subject-of this

petition is as follows:

TABLE OF CONTENTS

OPINIONSBELOW........................................................................................................

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

CONSTITUTIONAL AND STATUTORY PROVISI ONS INVOLVED ...........

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

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

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

INDEX TO APPENDICES

APPENDIX A

APPENDIX B

APPENDIX

61 Aoirl)

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'D 1II OF QOO

APPENDIXD

P;as (

APPENDIX

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APPENDIX F

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S1~

TABLE OF AUTHORITIES CITED

CASES

PAGE

Adderley v Florida, 385 U.S. 39 (1966)

Aguilar v Texas, 378 U.S. 108 (1964)

Arbaugh v I & H Corp, 546 U.S. 500 (2006)

Arizona v Youngblood, 458 U.S. 51 (1988)

Ashley v Jaipersaud, 544 Fed Appx 827 (11th Cir 2013)

Augurs v United States, 427 U.S. 97 (1976)

Baskerville v United States, 2013 U.S. Dist LEXIS 104208 (July 2, 2013)

Berger v United States, 295 U.S. 78 (1935)

Bezeau v Palace Sports, Inc, 487 Mich 455

Brady v Maryland., 373 U.S. 83 (1963)

Butts v City of Bowling Green, 374 F.Supp.2d 532 (W.D. Ky. 2005)

Bynum v United States, 262 F.2d 465 (DC. Cir 1958)

California v Trombetta, 467 U.S. 479 (1984)

Campbell v Marshall, 769 F.2d 314 (6th Cir 1985)

Capron v Van Norden, 2 Cranch 126 (1804)

Charter Oak Homes v Detroit, 2011 Mich App LEXIS 1744 (Oct 2, 2011)

ohens v Virginia, 19 U.S. 264 (1821)

Davis v Mississippi, 394 U.S. 721 (1969)

Day v McDonough, 547 U.S. 198 (2006)

Divine v Commonwealth, 236 Ky. 579, 33 S.W.2d 627 (1930)

Fay v Noia, 372 U.S. 391 (1963)

Ford v Wainwright, 477 U.S. 399 (1985)

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

Gillespie v Warden. London Corr Inst, 771 F.3d 323 (6th Cli- 2014)

Giordenello v United States, 357 U.S. 480 (1957)

Glover v United States, 531 U.S. 198 (2001)

Graham v Mohr, 2002 Tenn App LEXIS 175 (March 12, 2002)

Cuilmette v Howes, 624 F.3d 286 (6th Cir 2010) (En Banc)

Hagans vLavine, 415 U.S. 528 (1974)

Harlan v McGourin, 218 U.S. 442 (1910)

Harris v United States, 404 U.S. 1232 (1971)

Harshman v Knox, 122 U.S. 306 (1887)

Heikkinene v Hovinen, 7 Mich App 542 (1967)

HexImer v Berghuis, 2:08-cv-14170 (2012)

Hill v Lockhart, 474 U.S. 52 (1985)

Hopt v Utah, 116 U.S. 616 (1886)

Hyde v Shone, 199 U.S. 62 (1910)

Imbler v Pachtman, 424 U.S. 409 (1977)

In re Contempt of Dorsey, 306 Mich App 571 (2014)

Jackson v Virginia, 443 U.S. 307 (1979)

Jackson City Bank & Trust Co v Fredrick, 271 Mich 538 (1935)

Johnson v Florida, 391 U.S. 596 (1968)

Kontick v Ryan, 540 U.S. 443 (2004)

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

Lee v State of Florida, 392 U.S. 378 (1968)

Longworth v Ozmint, 302 F.Supp.2d 535 (S.C. 2003)

Louisville & Nashville RR Co v Motley, 211 U S. 129 (1908)

Mallory v United States, 354 U.S. 449 (1957)

Mansfield v C & L.M.R. Co v Swan, 111 U.S 379 (1884)

Mapp v Ohio, 367 U.S. 643 (1961)

14, 15

6, 10

8, 9

6-9, 15

10, 11

13, 14

i, 15

:1.

TABLE OF AUTHORITIES CITED

CASES

PAGE

McCann v Magialardi, 337 F.3d 782 (7th Cir 2003)

McCarthy v United States, 394 U.S. 489 (1969)

McNutt v Geeral Motors Acceptance Corp, 298 U.S. 178 (1936)

Miller v Anglikar, 848 F.2d 1312 (2nd Cir 1988)

Missaukee Prosecuting Attorney v Missaukee Cli- Judge, 85 Mich 138 (1891)

Napier v Jacobs, 429 Mich 222 (1987)

Northrop v United States, 265 F.3d 372 (6th Cir 2001)

Nudd v Burrows, 91 U.S. 426 (1875)

Payton v New York, 445 U.S 573 (1980)

People v Evans, 72 Mich 367 (1888)

People v Glass, 464 Mich 266 (2001)

People v Goecke, 457 Mich 442 (1998)

People v Hentowski, 154 Mich App 171 (1986)

People v King, 412 Mich 145 (1981)

People v Locklear, 177 Mich App 331 (1989)

People v Peterson, 1997 Mich App LEXIS 3544 (Feb 14, 1997)

People v St John, 284 Mich 24 (1938)

People v Stafford, 434 Mich 125 (1989)

People v Walker, 27 Mich App 609 (1970)

Perry v Johnson, 37 Conn 32 (1870)

Pratt v United States, 279 F 263 (5th Cir 1922)

Price v Henkel, 216 U.S. 488 (1910)

RMI Titanium Co v Westinghouse Electrical, 78 F.3d 1125 (6th, dr. 1996)

Rivera v Dept of Corr, 915 F 2d 913 (7th Cir 1990)

Sanchez v U.S., 50 F3d 1448 (9th Cir 1995)

Santobello v New York, 404 U.S. 257 (1971)

Schwartz v Dutro, 298 S.W. 769 (

)

Scott v Collins, 286 F.3d 923 (6th Cir 2002)

Segura v United States, 468 U.S. 796 (1984)

Shadwick v City of Tampa, 407 U.S. 345 (1972)

Sheppard v United States, 544 U.S. 13 (2005)

Silverthorne Lumber Co v United States, 251 U.S. 385 (1920)

Standard v Olesen, 74 S-Ct. 768 (1958)

Starr v United States, 164 U.S, 627 (1897)

State v Almori, 3 Conn Cir Ct 641, 222 A.2d 820 (1966)

State v Carpenter, 2007 Ohio App LEXIS 5086 (Oct 27. 2007)

State v Fleming, 240 Mo App 1208 (MO 1958)

State v Surowiecki, 440 A.2d 798 (MT 1981)

State v Williams, 57 Ohio St 3d 24, 565 N.E.2d 563 (1991)

State v Williams, 2001 Ohio-1388 (

)

Steel Co v Citizens for a Better Env't, 523 U.S. 83 (1986)

Strickland v Washington, 466 U.S. 668 (1984)

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

Thompson v Gaskill, 315 U.S. 442 (1972)

Thompson v Louisville, 362 U.S. 199 (1960)

United States v Baumert, 179 F. 735 (N.D N.Y. 1910)

United States v Bosch, 209 F Supp 15 (E-D, Mich, 1962)

United States v Davila, 2003 U.S. Dist LEXIS 20186 (E.D.Pa Nov 5, 2003)

United States v Evans, 469 F. Supp2d 893 (D,Mt. 2007)

United States ex rel King v Gokey, 32 F. 793 (ND. N.Y. 1929)

vii

ii, 12

passim

5, 6

9, 13

6, 7

TABLE OF AUTHORITIES CITED

CASES

PAGE

United States v Langston, 115 F.Supp. 489 (W.D. Mo. 1953)

United States v Levin 186 F.Supp..3d 26 (D.Mass. 2016)

United States v Mendenhall, 446 U.S. 544 (1980)

United States v Payne, 63 F.3d 1208 (2d Cir 1995)

United States v Price, 1992 U.S. Dist LEXIS 3406 (Feb 27, 1992)

United States v Reed, 572 F.2d 412 (2nd Cir 1978)

United States v Schack, 165 F. Supp. 371 (S.D.NY, 1958)

United-States v Throckmorton, 98 U.S 61 (1878)

United States v Wells, 223 F. 320 (W.D. Tenn.. 1913)

tJpshaw v United States, 335 U.S. 410 (1948)

Vachon v New Hampshire, 414 U.S. 478 (1974)

Walker v Jotnston, 312 U.S, 275 (1941)

Weeks v United States, 232 U.S. 383 (1941)

White v United States, 858 F.2d 416 (8th Cir 1988)

Whiteley v Wardens 401 U.S 566 (1971)

Williams v caulderon, 52 F.3d 1465 (9th Cir 1995)

Williams v Katz, 2013 U.S. Dist LEXIS 155619 (E.D Mich. Oct 27, 2013)

Wong Sun v United States, 371 U.S. 471 (1963)

Wood v Milyard) 123 S.Ct. 1826 (2012)

Worthington v United States, 166 F.2d 557 (6th Cir 1948)

Yeatts v Angelone, 166 F.3d 255 (4th Cir 1999)

6, 13

STATUTES AND RULES

6 Cir I.O.P. 32.1

Fed.R.Civ. 8(b)(6)

14, 15

OTHER

1 Blackstone Commentaries 133

3 AmJur.2d Affidavits § 8

viii

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 appears at Appendix

the petition and is

[ I reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

[] has been designated for publication but is not yet reported; or,

[] is unpublished.

For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix 1' to the petition and is

*h\}J. 7 5\; 707 (1 cc LEL$ tO\E ; or,

Ml reported at

[I has been designated for publication but is not yet reported; or,

[I is unpublished.

C.cc

The opinion of the

ç'

appears at Appendix E to the petition and is

.,i reported at

; or,

[] has been designated for publication but is not yet reported; or,

rA is unpublished.

court

JURISDICTION

[ ] For cases from federal courts:

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

was

[1 No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

order denying rehearing appears at Appendix

and a copy of the

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

in Application No.

(date) on

(date)

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

II For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

kO \ 7.

[

A timely petition for rehearing was thereafter denied on the following date:

('t39 ?\

, and a copy of the order denying rehearing

appears at Appendix ?\

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

Application No.

(date) on

(date) in

A_______

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

CONSTITUTIONAL AND STAT1JIORY PROVISIONS INVOLVED

This Constitution, and the Laws of the United States, which shall be made in

Pursuance thereof; and all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme law of the land; and the

Judges in every State 5h311 be bound thereby any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding. U.$.Const, Art VI, 2.

STAT1ENT OF ThE CASE

On April 3, 2006, at approximately 645 a.m.., a lawless invasion of Mr.

Heximer's home occurred. This lawless intrusion took place in the absence of

any: consent; probable cause and exigent circumstances; or warrant. Mr. Heximer

and his four minor children were peaceably occupying their home. Mt. Heximer's

eleven-year-old daughter was awake and in the Kitchen preparing a bow], of cereal

for breakfast Mr. Heximer was still in bed, and the other three children were

either still asleep or just wakin up for school.. Mr. Heximer's daughter called

out to her father.- "Dad, someone. s at. the front door!"

It shall be noted, that, each of the Heximer children were raised and taught

from a very early age

open the door to strangers 1!!

Mr. Heximer climbed out of bed, got dressed (putting on pants and a shirt),

and then proceeded to the front door in response to his daughter's call for help.

As Mr. Heximer came around the corner of the hallway he was met by a large,

unidentified male. The intruder was already inside the Heximer home

having

crossed the threshold by at least eight to ten feet, with the front door wide

open. The intruder was armed when he assaulted Mr. Heximer; grabbing his arm and

forcing Mr. Heximer outside the safety and sanctity of his own home.

In order to completely understand the sequence and severity of these

"iUgaI" events, Mr. Heximer directs the Honorable Court's attention to his

'AFFIDAVIT OF PROOF IN SUPPORT ...', attached to his MOTION FOR AN EVIDENTIARY

HEARING, filed.in the U.S. District Court (eximer v. Berghuis, No. 2;08-'cv14170, Dkt # 23). See APPENDIX C ('AFFIDAVIT .

As this Court knows, "physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed." Payton v. New York, 445

U.S. 573, 585 (1980). To "be arrested in the home involves not only the invasion

attendant to all arrests but also an invasion of the sanctity of the home.. This

is simply too substantial an invasion to allow without a warrant (3 even when

probable cause is clearly present." Id., at 58889 n. 28 (quoting United States

v. Reed 572 F..2d 412, 4.3 (Cir. 2 i97). Mr. Heximer was clearly seized

insidehis home due to some "physical touching of the person of (his) citizen' by

the intruder. United.States v. •MendenhaU, 446 U.S. 544, 554 (1980).

On April 4, 2006, at 2:53 p.m., Mr. Heximer was arraigned by video monitor

for the charges of MCL 750.82 and MCL 750 .110A2 The WARRANT FELONY "does not"

contain any judicial signature whatever. See APPENDIX D (unsigned WAR

During Mr. Heximer's "UiaI detention", a solicitation to commit murder

plot (MCI.. 750,15782) was initiated by Confidential Informant (CI) Stephen Edward

Hunt (ceUmate to Mr. Heximer in County Jail). The solicitation matter was then

orchestrated by CI Hunt and Det. Gary Edward Childers (Livingston County

Sheriff's Department (LcSD)) over the course of the next two weeks.. However, all

evidence acquired in the solicitation matter occurred during Mr. Heximer's

AljUepal detention" and, therefore, "shall not be used before the court but that

it sha2ll not be

Silerthorne Lnber Co v United States, 251 U.S.

385, 392 'CI23' (Fphasis added).

REASONS FOR GRANTING ThE PgFITION

ISSUE ONE

THE EVIDENCE ACQUIRED DURING MR. HEXIMER'S ILLEGAL DETUMON IS/WAS

INADMISSIBLE UNDER CLEARLY-ESTABLISHED LAW

Because the WARRANT FELONY lacks the requisite signature of Magistrate

Brown, then, the warrant never "issued" as required by the Constitutional

mandates (Federal & Michigan), and Mr. Heximer's detention was illegal. The

Court Rules4MCR-6 102(C) (4)-& FedJ. Grim P. 4(b) (1) (D)X an&precedential

decisions throughout the united States require that a warrant must be signed to

be valid See People v Locklear, 177 Mich App 331, 334 (1989), citing Shadwick

V* City of Tarnpa, 407 U S 345, 350 (1972); Starr v United States, 164 U.S.. 627

k1897). The lientowski Court concluded "that a magistrate 'issues' a 'warrant'

only when he signs an appropriate document and turns it over to the proper

person." Lock].ear, 177 Mich App, at 334 (quoting People v Hentowski, 154 Mich

App 1719 .177 (1986)). There is "full compliance with requirement of Rule 4 that

warrant 'shall issue' when warrant is signed by commissioner (magistrate]."

United States v Schack, 165 F Supp 371, 374 (S D.N Y 1958)

It is clearly established that the Fourth Amendment applies to arrest

warrants as well as search warrants Giordenello v United States, 357 U.S., 480,

485 (1957), Muilar v Texas, 378 U.S. 108, 112 n. 3 (1964); Beck v Ohio, 379

U S 89, 96 n 6 (1964) See also Whiteley v Warden, 401 U S 560 (1971) The

'reliability and particularity requirements applicable where a search warrant is

sought also govern the issuance of arrest warrants.' People v. Dogans, 26 Mich

App 411, 418 (1970) (collected U.S. Supreme Court cases).

A"lawfui signature on the search warrant by the person authorized to issue

it (is] essential to its issuance[,]' such that an unsigned warrant is void under

state Law and confers no authority to act, despite existence of probable cause."

United States v Levin, 186 F.Supp 3d 26, 36 (D Mass 2016), quoting State v

.rgwieck,84 Conn 95, 440 A2d 798, 799 (MT 1981).

No lawful custody could .retained under a warrant which omitted any

constitutional or statutory requirements Schwartz v Dujro, 298 S.W. 769 A

lawful signature to a warrant for arrest is essential to its 'issuance.' If it

is not signed by one with authority to do so, the mere involuntary custody of one

held under it Will not waive the defect or confer jurisdiction ... 22 C.J.S. 481,

Sec. 327." State vTleming, 240 Mo. App 1208, 1213 (MO 1950)

The "failure of the county judge to sign the search warrant was fatal to its

validity." Divine v. Commonwealth, 236 Ky. 579, 580, 33 S W 2d 627 (1930) The

"unsigned warrant, however, is not a warrant within the meaning of the Fourth

Amendment.. An unsigned warrant is a blank paper and officers cannot reasonably

rely on such ." United States v Evans, 469 F Supp 2d 893, 895 (D MT 2007).

For example, Ptah unsigned warrant, being void ab initlo, cannot be executed in

good faith" State v Williams, 2001-0hio-1388 (citing State v Williams, 57

Ohio St. 3d 2433 NAM

-2-a=_

..E.2d

563 (1991)) See State v Carpéithr, 2007 Ohio App

LEXIS 5086 (Oct. .29, 2007) (Accordingly., we foi

the WilliAms holding and find

the unsigned search warrant void ab initio),

In State v. Alri, 3 Conn. Cir. Ct. 641, 644, 222 A.2d 820 (1966), the

Court heard an identical:c.ase and concluded that d[tjhe 'unsigned and undated

search warrant is fatally defective, invalid, and void and conferred no authority

to act thereunder.' [lit is important in the use of all criminal forms of

proceeding, the executing of which involves the Liberty of the citizen, tha the

greatest practicable strictness and reliability should be observed

Perry v. Johnson, 37 Conn,' 32, 35 (1870).

...

"Although there. Is no doubt that the judge in this case intended to 'áigñ the

search warrant, we conclude that he did not issue the search warrant until he

perforrned, this act. The signing of the search warrant was to be the identifiable

objective maniféstàt!ôfl of hi-s- subjective intent to issue the search warrant. It

is only when the' former act has been completed that we are able to say that á

search warrant was 'issued.' In other words, a lawful signature on the search

warrant by the person authorized to issue it was essential to its issuance.

(collecting cases)." ,Srowiecki, supra. The unsigned arrest warrant is fatally

defective, invalid and void. Therefore, detention of Mr. Heximer was "iUgai."

Under clearly-established law, all evidence acquired during Mr. Heximer's

"illegal detention" in the solicitation matter is/was inadmissible. See United

States v. Bosch, 209 F.Supp. 15, 21 (E.D..Mich. 1962) (Again, if the police have

obtained a statement from an accused person during his illegal detention, such

statement is inadmissible

(citing Mallory v. United States, 354 U.S. 449

(1957); Bynum V. United States, 262 F.2d 465 (D.C.Cir. 198)). See also Bynum,

262 F.2d, i466-67 (citing Upshaw v. United States, 335 U.S. 410 (1948);

Mallory, supra); Peqple v. Walker, 27 Mich App 609, 618 (1970) (Evidence has been

excluded where it was derived from an illegal detention).

...),

The legal landscape in Fourth Amendment jurisprudence is well-defined by our

Supreme Court in that: "The Fourth Amendment prohibits 'unreasonable searches

and seizures' U.S. Conat. amend IV. Evidence recovered from an illegal search

[or seizure] is inadmissible. Weeks v. United States, 232 U.S. 383, 398

(1914). Further, evidence recovered indirectly from an illegal search or seizure

is also inadmissible as 'fruit of the poisonous tree.' Segura v. United States,

468 U.S. 796, 804

(1984); Wong Sun v. United States, 371 U.S 471 494-85 [T

(1963); Silverthorne Lumber Co. v. United States, 231 U.S. 385, 392-9.3

(1920)." Northrqp v. Tripitt., 265 F.3d 372, 377-78 (6th Cir. 2001).

[],

[]

The Supreme Court succintly held: "The essence of a provision forbidding

the acquisition of evidence in a certain way is that evidence so acquired shall

not be used before th ecourt but that it shall not be used at." Silverthorne

Lumber Co, 251 U.

S., at 392. Therefore, absolutely none of the evidence acquired

in the solicitation matter could be used in any court proceedings and "it shall

mt be used atalL"

Plainly stated, there is/was absolutely no admissible evidence, facts or

testimony to commence/initiate any criminal proceedings

let alone sustain a

criminal conviction under MCL 750.157B2.

--•

Because the solicitation conviction "cannot be shown to conform with the

fundamental requirements of law, [Mr. Heximer] is entitled to his immediate

release." E&v. Noia, 372 U.S. 391. 402 (1963).

ISSUE TWO

THE 53RD DISTRICT MAGISTRATE HAD ABSOLUTELY NO ADMISSIBLE EVIDENCE,

FACTS OR TESTIMONY IZI ALONE A COMPETENT WITNESS

BEFORE HIM TO

(A) CONFER JURISDICTION; (B) ESTABLISH THE REQUIRED FOURTH AMENOMENT

FINDING OF PROBABLE CAUSE TO CHARGE ANY CRIME(S); OR (C) ISSUE CRIMINAL

PROCESS AGAINST MR. FIEXIMER.

As set forth above; absolutely all evidence, facts and testimony

in the

solicitation matter

was acquired during Mr. Heximer's illegal detention and,

therefore, is/was inadmissible.

The Complaining Witness (Det. Childers) had no admissible evidence or facts

and, therefore, "could not" testify before Magistrate Brown at the swearing of

the complaint. Hence, Det. Childers was barred/estopped from providing any

testimony whatever before Magistrate Brown or in any later proceedings.

The Court knows a "complaint [was] not based upon the complainant's [Det.

Childers] personal knowledge, and unsupported by other proof, confers no

jurisdiction upon the [magistrate] to issue a warrant." United Stes exrel.

King v. Gokey, 32 F. 793, 794 (M.D. N.Y. 1929). Cf. Worthington v. United

States, 166 F.2d 557, 563 (6th Ciro 1948) (same). See United States v. Langston,

115 F.Supp. 489, 491 (w.D.Mo 1953).

The Supreme Court, being fully cognizant of the law, knows that a: (1)

"complaint not based upon the complainant's personal knowledge, and unsupported

by other proof confers no jurisdiction upon the court." Worthington, supra; (2)

"barebones or conclusory affidavit [complaint] is not sufficient to establish

probable cause." Butts v. City of Bowling Green, 374 F.Supp.2d 532, 543 (W.D.Ky.

2005). See Bosch, supra; and (3) "complaint to justify an information must show

personal knowledge and probable cause. United States v. Banert, 179 F. 735,

738 (N.D.N.Y. 1910). See United States v. Wells, 225 F. 320, 321 (W.D.Tenn.

1913); Gokey, supra. Because an affidavit and complaint are synonymous, then,

the rules for an affidavit apply with equal force to complaints. Therefore, an

affidavit and/or complaint not based on personal knowledge is "legally

insufficient." 3 Am.Jur.24: Affidavits, § 8.

The Honorable Court can readily glean that there simply was no admissible

evidence, facts or testimony to: (1) confer jurisdiction upon the district court

or Magistrate Brown; (2) establish the required Fourth Amendment finding of

probable cause to charge any crime(s); or (3) issue criminal process against Mr.

Heximer (a disabled veteran).

The Honorable Court is advised that the pleadings of this disabled veteran

'discloses facts that amount to a loss of jurisdiction in the trial court, [and]

jurisdiction could not be restored by any decision above. Fay , 372 U.S., at

423.. See Heikkinen v Hovinen, 7 Mich App 542, 545 (1967), quoting Jackson v

City Bank & Trust Co. v. Fredrick, 271 Mich 538, 545 (1935) (same).

Magistrate. Brown proceeded in clear and complete absence of jurisdiction.

Because the solicitation conviction "cannot be shown to conform with the

fundamental requirements of law, [Mr. Heximer] is entitled to his immediate

release." Fay , 372 U.S., at 402

ISSUE THREE

THE 53RD DISTRICT JUDGE HAD ABSOLUTELY NO ADMISSIBLE EVIDENCE, FACTS OR

TESTIMONY AT THE PRELIMINARY EXAMINATION - LET ALONE JURISDICTION

FIND PROBABLE CAUSE THAT A CRIME WAS COMMITTED UNDER t1CL § 750.15782 OR

THAT MR. HEXIMER HAD COMMITTED ANY CRIME(S) -- ID BIND THE MATTER OVER

TO THE CIRCUIT COURT.

By this point, it should become crystal-clear that District Judge

Pikkarainen had absolutely no admissible evidence, facts or testimony before him

to conduct the Preliminary Examination.

Since Magistrate Brown never had authority, nor acquired jurisdiction, to

proceed against Mr. Heximer, then, all further proceedings occurred in clear and

complete absence of jurisdiction. Therefore District Judge Pikkarainen

proceeded in clear absence of any authority or jurisdiction.

In Cohens v. Virgii.ia, 19 U.S. 264, 403 (1821), the Court set forth; "We

have no more right to decline the exercise of jurisdiction which is given, than

to usurp that which is not given. The one or the other would be treason to the

Constitution."

In Napier v. Jacobs 429 Mich 222, 244 (1987), the Michigan Supreme Court

found that: "The United States Supreme Court has held that a conviction without

sufficient evidence is violative of the Due Process Clause. The Court cites six

U.S.. Supreme Court precedents. See Napier, 429 Mich, at n. 16 (Thompson v.

Louisville, 362 U.S. 199, 205-06 (19O); Vachon v. New Hampshire, 414 U-S. 478,

85-81 (1974); Harris v. United States 404 U.S.. 1232, T23-34 (1971); Johnson v

Florida 391 US. 596, 597-99 C1968); Adderley v. Florida, 385 U.S. 391 4445

U966); Jackson v. Virginia, 443 U.S. 307, 322-24 (19)).

The Honorable Court should easily recognize these errors reach the level of

constitutional magnitude; errors that must be corrected as a matter of clearlyestablished law. Indeed, no reasonable Judge or jury could/would convict any

defendant where there is absolutely no admissible evidence, facts or testimony.

In other words, District Judge Pikkarainen had any authority or jurisdiction

whatsoever to conduct a preliminary examination; let alone bind the matter or Mr.

Heximer over to the 44th circuit court. The bind over was fatally defective,

invalid and, therefore, void.

Without a valid bind over, the circuit court never acquired personam and

subject-matter jurisdiction. The Prosecutor "cannot" file an information without

a valid bind over. Hence, the Prosecutor was ESTOPPED from filing an information

in the solicitation matter. See People v. Glass, 464 Mich 266, 278 (2001). The

district court itself was also ESTOPPED from filing a return; which is required

for the circuit court to acquire personam and subject-matter jurisdiction. See

PeoDle v. Coecke, 457 Mich 442, 459 (1998), citing People v.. Evans, 72 Mich 367)

387-88 (1888) ("Had no return been filed, the circuit court would not have

acquired jurisdiction over the case or the accused').

Because the solicitation conviction '"cannot be shown to conform with the

fundamental requirements of law, [Mr. Heximer] is entitled to his immediate

release.' fay, 372 U.S., at 402..

1.11

ISSUE FOUR

A CONVICTION PRONOUNCED BY THE 44TH CIRCUIT COURT WITHOUT ANY ADMISSIBLE

EVIDENCE, FACTS OR TESTIMONY

AND THE WANT OF PERSONAM AND, SUBJECT— .

MATTER JURISDICTION

IS UNCONSTITUTIONAL.

By now; the Honorable Court

being fully apprised in the premises --shall

recognize that the 44th circuit court never had authority nor acquired

jurisdiction over the case or Mr. Heximer.

In fact, all proceedings which occurred in the 44th circuit court, were

accomplished in clear and complete absenceof jurisdiction..

It is axiomatic and well-established, that, a court cannot proceed without

jurisdiction.

By way of reminder, pursuant to Steel Co . v. Citizens for a Better'Env't,

523 U.S. 83, 95 (1986): Act When the lower court lacks jurisdiction, this Court has

jurisdiction not of the merits but merely for the purpose of correcting the error

of the lower court in" usurping jurisdiction in the first instance; which is

"treason to the Constitution," Cohens, 19 U.S., at 403.

The Court is duly advised, that, each and every appeal throughout the

Michigan courts and federal forum was taken in error

due to the want of

jurisdiction in the 53rd district and 44th circuit' courts An error which has

cost the taxpayers an undisclosed sum of money. The error must be charged

against the: (1) Defense attorneys (David E. Prine, Mark A. Gatesmar, & Mack T.

Spickard); Judges (district & circuit); (3) Magistrate; (4) Prosecutor; and (5)

State Appellate Defender's Office (Marla R. McGowan).

It appears that the 53rd district and 44th circuit courts became an

accomplice in the wilfull transgression of the laws of the united States. See

Lee v. State of Florida, 392 U.S. 378, 386 (1968) ("Under our Constitution no

court, state or federal, may serve as an accomplice in the wilfull trangression

of 'the laws of the United, States, laws by which 'the Judges in every State

(are] bound * * *.'t), quoting US. const., Art VI, § 2.

Circuit Judge Stanley J. Latreille had absolutely no admissible evidence,

facts or testimony

let aloneany authority or jurisdiction

to proceed

against this disabled veteran (Mr. Heximer). Absolutely every one of the

Government witnesses were prohibited from providing any testimony whatsoever due

to Mr. Hexicner' s illegal detention.. See Silverthorne Lumber Co.., 251 U.S.., at

392 (vidence so acquired shall not be used before the court but that it shall

not be used at all).

Plainly stated, the solicitation conviction pronounced by Circuit Judge

Latreille is illegal, invalid and void !!!

Because the solicitation conviction "cannot be shown to conform with the

fundamental requirements of law, [Mr. Heximer] is entitled to his immediate

release."

372 U.S., at 402.

ISSUE FIVE

THE PROSECUTOR COMMITTED FRAUD UPON THE COURTS, MR. HEXIMER AND PUBLIC

WHERE THERE WAS ABSOLUTELY NO ADMISSIBLE EVIDENCE, FACTS OR TESTIMONY

LET ALONE JURISDICTION ---TO PURSUE THE SOLICITATION CHARGE AGAINST MR.

HEXIMER (A DISABLED VETERAN) DUE TO HIS ILLEGAL DETENTION.

The Prosecutor and his staff attorneys knew, or were charged with knowing,

that: (1) the WARRANT FELONY "was not signed by Magistrate Brown; (2) Mr.

Hexirner s detention was illegal; ant3) all evidence, facts and testimony

acquired in the solicitation matter during "illegal detention" was inadmissible

Absolutely none of the evidence, facts or testimony could be used before the

court and *evidence so acquired shall not be used before the court but that it

shall not be used at all.' Silver thorneLumber Co., 251 U.S., at 392 (Emphasis

,added) .

"The important thing is that those administering the criminal law understand

they [must follow the law]." Davis, 354 U.S., at 725 n. 4 (quoting Bynum, 262

F, 2d at 468, 469)

phasis addedT

Several decisions clearly demonstrate that the Prosecutor knew, or was

charged with knowing, that the WARRANT FELONY "was not signed by Magistrate

Brown. A simple review of the WARRANT FELONY itself reveals the obvious fact

that it lacks the required signature.

As set forth in Santobello v. New York, 404 U.S. 2579 262 (1971), P staff

lawyers in a prosecutor's office have the burden of 'letting the left hand know

what the right is doing or has done." See People V. Peterson, 1997 Mich App

LEXIS 3544 (Feb. 14) 1997), at * 7 (same). In United States v. Davila, 2003 U.S.

Dist. LEXIS 20186 (E .D. Pa. Nov. 5, 2003), at * 21-22, the Court held: "Knowledge

of relevant information by one prosecutor is imputed to all prosecutors in the

same office. Giglio v. United States, 405 U.S. 150 (] (1972). The rule

encompasses evidence not known to a prosecutor but known to police investigators

working the case. Strickler v. Greene, 527 U.S. 263, 280-81 11 (1999); Kyles v.

Whit ley, 514 U.S. 419, 438 1] (1995)T See United States v Payne, 63 F 3d 1200

1208 (2d Cir. 1995) ("The individual prosecutor is presumed to have knowledge of

all information gathered in connection with the government's investigation.");

ngworth v. 0zmtnt, 302 F.Supp.2d 535 556 (S.C. 2003) ("The police are also

part of the prosecution, and the taint on the trial is no less if they, rather

then the State's Attorney, were guilty of the nondisclosure. If the police allow

the State's Attorney to provide evidence pointing to guilt without informing him

of evidence which contradicts this inference, state officers are pcticitg

deception not only on the State's Attorney but on the court and the defendant.")

(hasis added).

Under Imbler v. Pachtman > 424 U.S. 409, 425 n. 25 (1997)1 "the prosecutor is

bound by tcs

heethi

of his office to inform the appropriate authoritlies] of

after-acquired or other information that casts doubt upon the correctness of the

conviction. Cf. ABA Code of Professional Responsibility § EC 7-13 (1969); ABA

Standards supra, § 3-11."

However, despite being notified on numerous occasions of the after-acquired

information identified in this petition, both the Livingston County Prosecutor

and Michigan Attorney General's Office FAILED to uphold the ethics of their

offices and the rights of this disabled veteran. Several requests to commence a

suit ex rel. on behalf of this disabled veteran were made to both Government

Offices, but those requests apparently fell upon deaf ears despite the ethics

their Office and clear legal duties. See Giglio v. United State, 405 U.S. 150,

154-55 (1972) ("Deliberate deception of the courts in presenting false evidenc

is incompatible with the rudimentary demands of justice" and requires reversal).

At this point, a precedential decision of the Supreme Court is instructive.

In Ford v Wainwright, 477 U.S. 399, 428-29 (1986), the Court held:

"[RTegardiess of the procedures the State deems adequate for determining the

preconditions to adverse official actions federal law defines the kind of process

a State must afford prior to depriving an individual of a protected liberty or

property interest.." (Emphasis added).

The Prosecutor and his staff lawyers circumvented the law (Federal &

Michigan) and rights of this disabled veteran; thereby, practicing deception

upon

the courts in direct violation of their ethics, oaths and the Supremacy Clause

(U.S. Coost., Art VI, § 2). For the Prosecutor to commence and prosecute the

charge of solicitation to commit murder (MCL 750.15782) against this disable

veteran -- esoecially when there was absolutely no: (1) admissible evidence,

facts or testimony; or (2) jurisdiction -- is clearly deception of the highest

degree/magnitude which equates to fraud.

In the solicitation matter, the Complaining Witness (Dat. Childers) COULD

NOT bear any testimony during the swearing of the Complaint, or any other

hearings/proceedings either, for the reasons set forth in this petition. See

Graham v. Mohr, 2002 Tenn.. App. LEXIS 175 (March 12, 2002) (

"'With no admissible

evdience to offer, Officer Stack was excused.'); United States v. Price, 1992

U.S. App. LEXIS 3466 (Feb. 27, 1992) ("Hence, there was no admissible evidence

before the jury that any crack sales occurred.").

It is beyond question that competent testimony is necessary to bind over,

e.g., People v. King, 412 Mich 145 (1981); People v. Stafford, 434 Mich 125, 13334 (1989). Courts rely upon the integrity of prosecutors and police not to

introduce untrustworthy evidence. l3erger v. United States, 295 U.S. 78 (1935);

Augurs v. United States, 427 U.S. 97 (1976), The "law presumes that prosecu

ting

attorneys, in bringing and conducting such examinations, will act in good faith

towards the people and the accused ..." Missaukee Prosecuting Attorney v.

Missaukee Circuit Judge, 85 Mich 138, 139 (1891). However, the Court will

find

that is/as not the case with regards to Mr. Heximer since the Prosecutor clearly

knew, or should have known, that there was absolutely no admissible evidence to

commence - let alone sustain -- a solicitation conviction.

Moreover, the Prosecutor knew that the police reports admitted into evidenc

before Circuit Judge Latreille were contrary to Supreme Court precedent. See

Shepard v. United States, 544 U.S. 13, 15 (2005) (Sentencing Court not permitt

to look to police reports. 14).

The Prosecutor knew, or was charged with knowing, that there was no: (a)

admissible evidence, facts or testimony; and (b) competent witness

to confer

jurisdiction upon the district court or Magistrate Brown and establish the

requisite Fourth Amendment finding of probable cause to charge any crime(s)..

With no jurisdiction and probable cause to charge any crime(s), District

Judge Pikkarainen and the Prosecutor were ES)PPFD/PR0FIIBITED from conducting

preliminary examination. The bind over to circuit court was fatally defective,

invalid and void.

The Prosecutor was ESTOPPED from filing an information without a valid bind

over and preliminary examination.. The 44th circuit court never acquired personam

and subject-matter jurisdiction The circuit court proceeded in clear and

complete absence of jurisdiction. The solicitation conviction is void !!!

The Honorable Court is duly advised that the Prosecutor also withheld Brady

evidence-anddestroyed (or failed to preserve) material evidence contrary to

clearly-established law

See

Maryland, 373 U

83 (1963), Arizona v

Youngblood 488 U.S. 51 (1988); cIifornia v. Trombetta, 467 U.S. 479 (1984.

The United States District Court for the Eastern District of Michigan FAILED

to address the numerous Brady claims raised despite the fact that Brady claims

survive a guilty or nolo contendere plea. See Sanchez v.

50 F.3d 1448,

1453 (9tri Cir, 1995) ("'Three circuits have held that a defendant can argue that

his guilty plea was not voluntary and intelligent because it was made in the

absence of withheld Brady material.'), citing White v. United States, 858 F2d

416, 422 (8th Cir. 1988); Miller v Aniker, 848 F.2d 1312, 1319-20 (2d Cir.

1988); Campbell v. Marshall, 769 F.2d 314, 321 (6th Cir. 1985)! See also McCann

V. Mangiaiardi, 337 F,3d 782 (7th Cir. 2003). This fact clearly changes the

entire iegiiJandscape; thereby, establishing that the nob- contendere 'was not"

intelligent and voluntary due to the: (1) Government's withholding of Brady

material and destruction (or lack of preservation) of material exculpatory

evidence thereof; and (2) ineffective assistance of counsel (trial & appellate).

In fact, the plea 'cannot be truly voluntary unless the defendant possesses

an understanding of the law in relation to the facts ." McCarthy v. United

States, 394 U.S. 459, 466 (1969). Had defense counsel correctly advised Mr.

Heximer that the majority of, if not all, evidence "so acquired shall not be used

before the court hut that it shall not be used at all[j' see Silverthorne Lumber

251 U.S., at 392; then, Mr. Heximer "would not have pled -contest but

would have insisted on going to trial."' Hill v. Lockhart, 474 U.S. 52, 59

(1985). Indeed, without any admissible evidence or testimony in the solicitation

matter, the Prosecutor would not have chosen to initiate criminal process because

it would have been impossible to prove their case without any evidence whatever.

All federal cases involving this disabled veteran (Mr. Heximer), pertaining

to the solicitation matter, were coneaced in clear and complete absence of

jurisdiction and probable cause to charge any crime(s). The fraud committed, by

the Prosecutor and LCSD

destroys and/or vitiates all; contracts (pleas);

decrees; documents (i.e., Complaint Judgment of Sentence, Plea, Warrant, etc.);

and judgments. See Throcliorton, 98 U.S.? at 64-65; Nudd, 91 U.S., at 440-41.

The Honorable Court shall take Judicial Notice that a "defect in the

integrity of the federal habeas proceedings' exists, see Gonzales v. Cro, 545

U.S. 524, 531 (2005) because: Magistrate Brown; District Judge Pikkarainen; and

Circuit Judge Latreille

proceeded in clear and complete absence of

jurisdiction. Hence7 no judgment coul dbe obtained without jurisdiction. This

Court knows there could he no Michigan judgment issued without jurisdiction.

According to Gillespie v. Warden, London Correctional Institution, 771 F3d 323

328 (6th Cir. 2014): "For federal habeas jurisdiction to exist under § 2254,

therefore, a state prisoner must be held pursuant to a judgment." In other

words, numerous federal proceedings ensued in absence of jurisdiction due, in

part, to the fraud committed by the Prosecutor and LCSDI.

The Supreme Court's insistence that proper jurisdiction appear began as

early as 1804. Steel Co., 523 U.S., at 95 (citing Capron v. Van Worden, 2 Cranch

126 (1804)). Once jurisdiction is challenged, it must be proven and all elements

of jurisdiction placed on the record. Hagans V. Lavine, 415 U.S. 528, 534

(1974). No sanction can be imposed absent proof of jurisdiction. Standard v.

esen, 74 S.Ct_ 768, 771 (1954). If any court finds absnec of jurisdiction over

the person or the subject matter, the case must be dismissed. Louisville &

Nashville RR Co. v. Motley, 211 U.S. 129, 13471908) (Emphasis added).

Plainly stated, Mr. Heximer challenged subject-matter jurisdiction in all

three Michigan courts (44th circuit, Court of Appeals, Supreme court). However,

the Prosecutor never met their burden of demonstrating subject-matter

jurisdiction in any court, as required, by law (Federal & Michigan). See p i, IT

5, ante..

The early quotes of Blackstone and our Supreme Court are relevant herein

"The natural life, says Blackstone, cannot legally be disposed of or destroyed by

any individual, neither by the person himself nor by any other of his fellow

creatures merely upon their own authority. I BL. Comm. 133. The public has an

interest in his life and liberty, neither can be taken except in the mode

prescribed by law." Hopt v. city of Utah, 110 U.S. 574, 579 (1884).

In Weeks, supra, the Court held: "In order to make effective the

fundamental constitutional guarantees of sanctity of the home and inviolability

of the person, Boyd v. United States, [116 U.S. 616 (1886)], this Court held

nearly half a century ago that evidence seized during an unlawful search could

not constitute proof against the victim of the search."

The clarity of Supreme Court's precedents unequivocally sets forth that

absolutely none of the evidence, facts or testimony acquired in the solicitation

matter during Mr. Heximer's illegal detention can be used before the court In

fact, it shall not be used at all. Tellingly, it becomes crystal-clear that the

Prosecutor deliberately ignored the precedential decisions of this Honorable

Court and trampled upon the constitutional rights of this disabled veteran.

It is abundantly clear that the Prosecutor's deception, fraud and

withholding of Brady evidence resulted in an increased prison term. The

solicitation matter COULD NOT be initiated or sustained without nj admissible

evidence (facts or testimony) or jurisdiction. in Clover v. United States, 531

U.S. 198, 200 (2001),, the Court held: "'that if an increased prison term did flow

from an erro the petitioner has established Strickland [v. Washngton, 466 U.S..

668 (1984)) prejudice."

Irreparable Harm & Injury

After more than a decade (eleven plus years) of an imprisonment obtained by;

fraud; lack of any admisisble evidence, facts or testimony; and want of

jurisdiction

Mr. Heximer suffers "irreparable harm & inlury." To constitute

irreparable harm, an injury must be certain, great and actual. Williams

v. Jason

Michael Katz P.C., 2013 U.S. 01st. LEXIS 155619 (E.D.Mich.

Oct. 29, 2013).

ISSUE SIX

THE PLAINTIFF'S FAILURE TO ANSWER OR MEET ITS BURDEN OF DEMONSTRATING

SUBJECT-NATTER JURISDICTION IN ANY OF THE MICHIGAN COURTS (44Th CIRCUIT,

COURT OF APPEALS, SUPREME COURT) CONSTITUTES FORFEITURE AND/OR WAIVER.

The Honorable Court shall take Judicial Notice -- being respectfully

reminded - that the Prosecutor (Plaintiff's attorney of record) never met his

burden of demonstrating subject-matter jurisdiction in any of the three Michigan

courts (44th circuit, Court of Appeals, Supreme Court). As this Court knows, it

is the Plaintiff wo bears the burden, see .p I, 11 5, ante.. because 'once

jurisdiction is challenged, it must be proven and all elements of jurisdiction

placed on the record." Haans, 415 U.S., at 534 (Emphasis added). See p 13, 111

ante.

However, the Plaintiff's attorney FAILED to meet his burden

choosing

instead to remain completely silent on the issue (want of personam and subjectmatter jurisdiction); thereby, violating the: (a) ethics of his Office; (b)

Oaths (constitutional & statutory); and (c) Supremacy Clause (U.S. Const., Art

VI, § 2). In other words, the Plaintiff deliberately chose to remain silent;

iailing to submit an answer or meet their burden.

In accordance with clearly-established law, by choosing not to submit an

answer or meet their burden. "the Government has affirmatively [WAIVED] any

defense[s] or procedural defense that might otherwise apply." Baskerville v.

United States, 2013 U.S. Dist. LEXIS 104208 (July 2, 2013), at * 2-3. In

Bas kerville, the Supreme Court for the united States of America "construes this

concession as a waiver of any waivabie defenses that might otherwise apply, and

the Court will proceed on the basis of that waiver. See

V. McDonough, 547

U.S. 198, 202 [j (2006) (holding that it would be "an abuse of discretion to

override a State's deliberate waiver of a [) defense."); Wood v. Milyard, 123

S.Ct. 18267 1830 (2012) ("A court is not at liberty, we have cautionto

bypass, override, or excuse a State's deliberate waiver of a [I defense"); see

also Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir. 1999) ("[T]he issue of

procedural default is generally an affirmative defense that the state must plead

in order to press the defense thereafter.")."

Because the Plaintiff and their attorney of record (Prosecutor) FAILED to

meet their burden -- choosing to remain silent; then, respectfully, this

Honorable Court shall apply the Doctrines of Forfeiture and/or Waiver.

When the opposing "party does not 'respond to the substance of the

allegation' -- such allegation 'is admitted. "' Fed .R .Civ. P. 8(b)(2) & (6). The

Plaintiff and their attorney of record (Prosecutor) have "failed to file any

document that satisfies Rule 8(b)'s requirements." Ashley v. Jaipersaud, 544

Fed-Appx. 827 829 (11th Cit. 2013), citing Williams v. caulderon32 F.3d 1465

1483 (9th Cit. 1995) (noting that Rule 8(b) require1s] f9EF by-fact

responses."). In failing to meet their burden of demonstrating subject-matter

jurisdiction in any of the three Michigan Courts, Mr. Heximers pleadings stand

'judicially admitted ."'

In 'the absence of a denial, the fact[s] as stated in the [pleadings] of

[Mr. Heximerj is confessed [and] stands as an admission of the record, of its

truth by the (Prosecutor)." Harshman v. Knox, 122 U.S. 306, 317 (1887). See

Walker v. Johnston, 312 U.S. 275 (1941).

In Guilmette v. Howes, 624 F.3d 286, 292-93 (6th Cir. 2010) (En Banc), the

Court would not overlook state's forfeiture of its merit argument. See Scott v.

Collins, 286 F.3d 923,1 930 (6th Cir. 2002) (A Court commits error when itües

one party s waiver by ruling sua sponte); 6 Cir. I.O.P. 32.1. See also Rivera v.

Dep't of Corr.., 915 F.2d 280, 285 (7th Cir. 1990) (If the State waives its best

arguments it must live with the consequences); Charter Oak Homes v. City of

Detroit, 2011 Mich App LEXIS 1744 (Oct 2, 2011), at * 18 ("If it is not worth the

[Prosecutor's] time to defend a challenge to (subject-matter jurisdiction], the

Tribunal shouid-not—requ ire -a..{ Disabled veteran--Mr.-, Heximer] to put forth a

full blown case to prevail.").

Due to the Plaintiffs failure to meet their burden of demonstrating

subject - matter jurisdiction in any of the three Michigan courts, or file/submit

any document that satisfies Rule 8(b)'s requirements, the facts are deemed to be

"judicially admitted"; thus placing no further burden upon Mr. Heximer (a

disabled veteran) to prove his case factually. See Ashley, 544 Fed.Appx., at

829..

In Arbaugh v. Y& H Corp.., 546 U.S. 500, 506 (2006), the Court held

When

it appears by suggestion of the parties or otherwise that the court lacks

jurisdiction of the subject-matter, the court shall dismiss the action."

Tellingly, Arbaugh is but one of a plethora of cases illuminating this well

establisrted point of law.. A "party cannot be estopped from casing the issue."

In re Contempt of Dorsey, supra.

Plainly stated)because "there was no jurisdiction,, there was no

Esolicitation].0 People v. St. John, 284—Mich 24, 34 (1938).

Because the solicitation conviction "cannot be shown to conform with the

fundamental requirements of law [1r. Heximer] is entitled to his immediate

release.

, 372 U.S.., at 402.

Declaration & Verification

I declare under the pains of perjury the foregoing is true and correct by

personal knowledge. 28 USC § 1746; MGR 2.114(B)

Respectfully submitted,

Executed on

8-27-2017

By:

Robert Heximer, Sui juris #633833

Newberry Correctional Faci

lity

13767 E County Road 428

Newberry, Michigan 49868

CONCLUSION

The petition for a writ of certiorari should be granted.

•

Respectfully submitted,

Date:

O NI

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.