Petition for Writ of Certiorari — Harvey Eugene Larson, Petitioner v. Doug Moore, Parole Officer, et al.

Supreme Court briefFeb 6, 2018

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

Harvey E

Larson

PETITIONER

(Your Name)

vs.

Hon., Cynthia Bashant

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Cdurt of Appeals for the Ninth Circuit

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Harvey B- Larson P-82258

(Your Name)

California Correctional Institution

(Address)

P - O- Box 1905, Tenachapi, CA 93581

(City, State, Zip Code)

(Phone Number)

RECEIVED

JUN - 52018

OFFICE OF THE CLERK

SUPREME COURT, U.S.

QUESTION(S) PRESENTED

Did claim(s) state a cause of action?

LIST OF PARTIES

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

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

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

Hon. Cynthia Bash.ant

United States District Judge

United States District Court

Southern District .of :CalifOrnia

333 West Broadway, Suite 420

Sa n Diego, CA 92101

Tashirna, Circuit Judge

U.S. Courthouse

940 Front St..

San Diego, CA 92101

W Fletcher, Circuit Judge

U.S. Courthouse

940 Front St.

San Diego, CA 92101

Tallman, Circuit Judge

U.S. courthouse

940 Front St.

San Diego, CA 92101

TABLE OF CONTENTS

OPINIONSBELOW........................................................................................................1

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

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

STATEMENTOF THE CASE ............................................................................................

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

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

INDEX TO APPENDICES

APPENDIX A United States Court of Appeals for the Ninth Circuit, Order

dismissing appeal case number 17-56429

APPENDIX B United States District Court for the Southern District of

California, Order dismissing case number 3:17-cv-01635-BAS-JMA

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F complaint case number 17-cv--01635-BAS-JMA complaint attachment

ncic record; primary case transmission specification and drawings;

psychological examination pre-sentence evaluation; personal data;

medical file; marsden hearing July 21,.1999; crime/incident report

and common report narrative; affidavit, Miranda violation;

preliminary hearing transcript; trial transcript; rnarsden hearing

April 10, 2000 transcript; result of specific issue polygraph

examination; effective communication determination for formal

level cdcr-602 inmate/parolee appeal; select a case

TABLE OF AUTHORITIES CITED

CASES

Harper v. Young, 64 F.3d 563 (10th Cir. 1995)

PAGE NUMBER

Morrissey v. Brewer, 408 U.S. 471 (1972)

Calhoun v. New York state Div. of Parole Officers, 199

F.2d 647 (2d Cir. 1993)

People v. Pearl, (2009 4th Cir.) 172 Cal.App. 1280

Neal v. Shimoda, 131 F.3d 818 (th Cir. 1997)

Sandin v. Conner, 515 U.S. 472 (1985)

Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454 (1989)

Cruz v. Goner, 202 F.3d 597 (2d Cir. 2000)

Leslie v. Doyle, 125 F.3d 1132 (7th Cir. 1997)

Chambers v. Co1bradoDept of Corr, 205 F.3d 1237 (10th

Cir. 2000)

Wolff v. McDonnell, 418 U.S. 539 (1974)

2, 11, 13

STATUTES AND RULES

28 U.S.C. Section 1915(a)

28 U.S.C. Section 1915(g)

4, 5

28 U.S.C. Section 1915(e)(2)

Evidence Rules 702 and 403

6-13

OTHER

California Penal Code 2010 Edition, West

Part 4. Prevention of Crimes and Apprehension of Criminals.

Seeadditina1 pages.,

CASES

Dent v. Virginal 129 U.S. 114 (1889)

Estelle v. Gamble, 429 U.S. 97 (1976)

Bazzette v. McGinnis, 286 F.3d 311(6th Cir. 2002)

PAGE NUMBER

Mendoza v. Borden Inc., 195 F.3d 1238 (11th Cir. 1999)

U.S. v. Stevens, 192 F.3d 263 (2d Cir. 1999)

U.S. v. Cooper, 274 F.3d 230 (5th Cir. 2001)

Jeffers v. U.S. 137 (1977)

Exparte Lange, 85 U.S. (18 Wall.) 176 (1873)

Benton v. Maryland, 395 U.S. 784 (1969)

Wood v. Rubenstein, 2013 U.S. DIST. LEXIS 141736 (2013)

M.L.B. V. S.L.J., 519 U.S. 102

3 4

Mayor v. Chicago, 404 U.S. 189 (1971)

Shobe v. People, (C.A.9(Ca1.)1996) 362 F.2d 545

Weller v. Dickerson, 314 F.2d 598 (9th Cir. 1963)

Boddie V. Connecticut, 401 US. 371 (1971)

United States v. Kras, 409 U.S. 434 (1973)

ortwein v. Schwab, 410 U.S. 656 (1973)

Carson v. Johnson, (C.A.(Tex.)1997) 112 F.3d 818

Brown v. Plaut, 131 F.3d 163 (D.C. Cir. 1999)

Abdul-Akbar v. McKelvie, (C.A.3(De1.)2001) 239 F.3d 307

4, 5

Lyon v. Kroll (C.A.(Iowa)1997) 127 F.3d 763

Howlett v. Rose, 496 U.S. 356 (1990)

In re Green, 669 F.2d 779 (D.C. Cir. 1981)

Ayers v. Norris, 43 F.Supp.2d 1039 (1999)

5, 25

Wilson v. Yaklich, (C.A.6(0hi0)1998) 148 F.3d 596

McCarthy v. Madigan, 503 U.S. 140 (1992)

Rodriquez v. Cook, (C.A.9(0r.)1999) 169 F.3d 1176

Dolney V. Lahammer, DSD 35 (8th Cir. 1999)

Heck v. Humphrey, 512 U.S. 477 (1994)

Piggie v. McBride, 277 F.3d 922 (7th Cir. 2002)

Moorman v. Thalacker, 83 F.3d 970 (8th Cir. 1996)

Carver v. Lehman, 540 F.3d 1011 (9th Cir. 2008)

CASES

Edwards V. Balisok, 520 U.S. 641 (1997)

PAGE NUMBER

Santiago V. Garcia, 821 F.2d 829 (1st Cir. 1987)

Helling v. McKinney, 509 U.S. 25 (1993)

Hudson v. Palmer, 468 U.S. 517 (1984)

81 12

Taylor v. Rodriquez, 238 F.3d 188 (2d Cir. 2001)

Colon v. Howard, 215 F.3d 227, (2d Cir. 2000)

Dominique v. Weld, 73 F.3d 1156(1st Cir. 1996)

Davis v. Kelly, 160 F.3d 817 (2d Cir. 1998)

U.S. v. Gilcrist, 106 F.3d 297 (9th Cir. 1997)

Cruz V. Beto, 405 U.S. 319 (1972)

0 Lone v. Estate of Shabazz, 482 U.S. 342 (1987)

Snider v. Melindez, 199 F.3d 108

Witherspoon v. Superior Court, (Ca1.App. 2Dist. 1982) 133

Ca1.App.3d 24, 183 Cal.Rptr. 615

Yono v Northwest Airlines, (9th dr. 2000) 2000

US. DIST. LEXIS

Daubertv. Merrel Dow Pharmaceuticals, Inc., 509

579 (1993)

United States v. Cordoba, 194 F.3d 1053 (9th Cir. 1999)

People v. Reeder, (Ca1.App.3Dist. 1976) 135 Ca1.Rptr.

421

20, 22

People v. Minor, (1980) 104 C.A.3d 194

People v. Coleman, 9 C.A.4th 493

U.S. V. Galbreth, 980 F.Supp. 877 (D.N.M. 1995)

Lucas v. Department of Corr., 66 F.3d 245 (9th Cir.

1995)

Christiansen v. Clarke, 147 F.3d 655 (8th Cir.

Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001)

Haney v.. Htay, U.S. DIST. LEXIS 24109 (9th Cir.

2017)

Noll V. Carson, 809 F.2d 1446 (9th Cir. 1987)

OTHER

Title 1 Investigation And Control Of Crimes And Criminals

PAGE NUMBER

Chapter 2 Control Of Crimes And Criminals. Article 3.5

Interstate Compact For Adult Offender Supervision, Section

11189 Interstate corrections compact; content Article II.

Definition (c)"Receivinq state"...

Section 11190 Western interstate corrections compact; form;

contents. Article II Definitions (c)"Receivinq state"

means a state to this compact to which an inmate is sent

for confinement...

Penal Code Section 3057 Confinement upon revocation of

parole; parole period; extension or reduction (c)(3)...

Penal Code Section 2932 Denial of time credits; grounds;

limitations; procedure; effect; review; criminal

prosecution; notice to prisoner subdivision (a)...

California Evidence Code 402

California Evidence Code 402-406

California Code of Regulations Title 15

Article 5 Inmate Discipline, Section 3312 Discplinary

Methods

Article 10 Classification, Section 3375.4 CDCR

CDCR Reclassification Score Sheet, CDCR Form 840

Article 10 Classification, Section 3375 Classification

process (f)(A)

Article 81Appea1s1 Section 3084.7 Levels of appeal

review and disposition (a)(2)...

JURISDICTION

[ ] For cases from federal courts:

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

was November 14, 2017

[x] 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:

, and a copy of the

order denying rehearing appears at Appendix

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

to and including

(date) on ____________________ (date)

in Application No.

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

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

and a copy of the order denying rehearing

appears at Appendix

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

to and including

(date) on

(date) in

Application No.

A_______

________________

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

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

[ ] reported at

; or,

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

[x] is unpublished.

B to

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,

[x] is unpublished.

[ ] For cases from state courts:

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

Appendix

to the petition and is

[11 reported at

; or,

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

[ ] is unpublished.

The opinion of the

appears at Appendix

______________________________________________

to the petition and is

[I reported at

; or,

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

[I is unpublished.

court

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

PAGE NUMBER

14th Amendment Due Process Clause

14th Amendment Constitutional Liberty Interess

1, 2

14th Amendment Fundamental Liberty Interests

14th Amendment Fundamental Interests

5th Amendment Double Jeopardy Clause

8th Amendment against Cruel And Unusual Punishment

1st Amendment

United States Sentencing Guidelines Sections 4A1.1(a),

4A1.2(e)(l)

10, 11

STATEMENT OF THE CASE

•

I. CASE CRIMINAL OR QUASI CRIMINAL IN NATURE MAY NOT TURN

ON THE ABILITY TO PAY FEES.

61 6 years 6 months on parole supervised release for burglary that carries 3 years

7 is in violation of Penal Code Section 3000(b) (1). Remained free from custody for

8 only 2 months. Parole revocated for being under the influence of methamphetamine

9 and a pocket knife blade ½ inch over the limit rusted shut. Claim states a cause of

l0i action see complaint pages

Appendix F. The 14th Amendment Protcted :Liberty

11 Interest can be granted (1) by the Due Process Clause of Its own force. Inherent

12 Constitutional liberty interests arise when a prisoner has squired substancial

13 freedom such that deprivation requires due process protectipn. Harper v. ..Young,

14 64 F.3d 563, 566 (10th Cir. 1995), aff'd. The Supreme Court has found several such

15 liberty interests. Remaining free from revocation of parole. Morrissey v. Brewer,

16 408 U.S. 471, 482 (1972). Liberty interest in release upon expiration of maximum

17 term of imprisonment. Calhoun v. New York State Div. of Parole Officers,'•199 F.2d

18 647, 653 (2d Cir. 1993). The term "in custody" in Penal Code Section 3000(o)(5),

19 must mean !'.confinement" because a parolee is always deemed to be "in custody" until

20 the expiration of the parole period. People v. Pearl, (4th Cir. 2009) 172 Cal.App.

21 1280. See complaint page 5, footnote 6, Appendix F. Protected Liberty Interests can

22 be created (2) by a court order, (3) by treaty or (4) by states through statutes or

23 regulations. State statutes and regulations may confer liberty interests that

II invoke due process protections. Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir. 1997).

liberty interests are characterized as inherent in the Constitution. Sandiri v.

r, 515 U.S. 472, 484 (1995). Petitioner has stated a claim of due process both

of protected liberty interest and lack of requisite process before being deprived

2 of that interest. Kentucky Dep't of Corr. v. Thompsoni 490 U.S. 454 460 (1989:

e.g., Cruz v. Gonez, 202 F.3d 597 (2d Cir 2000). Petitioner was also denied

4 representation by counsel at revocation hearing. Petitioner retains right to be

free of arbitrary and purposeless use of authority. Leslie v Doyle, 125 F.3d 1132,

6 H 1135 (7th Cir. 1997).. Due Process -protections apply when a prisoner is deprivd of

7 . life, liberty, or property.. Chambers v. Colorado Dep't of Corr., 205 F.3d 12.371

A H 1242 (10th Cir. 2000). United States Constitution Amendments V1 XIV., The Due Process.,

9 1 Clauses are designed to protect the individual against arbitrary government action.

10Wo1ff v. McDonnell! 418 U.S. 539, 558 (1974) citing Dent v. West Virgina, 129 U.S.

1lII.14I 123 (1889). Detention beyond the termination of the sentence constitutes cruel,

12 and unusual punishment when it results from "deliberate indifference" to

13 petitioner's interest in liberty. Estelle 1. Gamhie 429 U.S. 97' 50 L...Ed.2d 251

1497 S.ct. 285 (1976). The 8th Amendment protects an accused from a dispropriate

15 sentence. Bazzette V. McGinnis! 286 F,,3d 311 (6th Cir. 2002). Purpose of Title VII

is to strike at disparate treatment of women and men. Mendoza v. Borden Inc-4 195

17 F.3d 1238 (11th Cir. 1999). Resentencingis necessary if the supervised release

18 term impermissih1' falls outside the statutory range. U.S v. Stevens 192 F.3d

263, 268 (2d Cir. 1999)z Error under .Apprendi requires reversal when sentence

20 exceeds the 'statutory. maximums U.S. v. 'Cooper, 274 F.3d 230 (5th Cir. .2001) The

21 5th Amendment prohibition of double jeopardy applies not only to "life or limb,"

22 but to prison sentences and criminal fines as well. See Jeffers v. U.S. 137, 155

23. 'l977).(p1ur3lity opinion). The Double Jeopardy Clause prohibits courts from

4 punishing defendants twice for the saws of fens.: F,xparte Lange,' 85 U.S. (18 Wall')

25 1.76 (1873). Petitioner served almost twice the supervised release sentence imposed

26 , The 14th Amendment Due Process Clause extends to the Double Jeopardy Clause

1 protections. Benton v. Maryland, 395

784. 794 (1969) Purpose and requirements

2 of Section 1983 is criminal punishment for anyone who under the color of any law!

3. statute ordinance, regulation, or custom, willfully subjects any person in any

4 State, Territory; Commonwealth; Possession, or Di.trict to the deprivation of any

5 rights, privileges, or immunities secured or protected by the Constitution or laws

6, of the United States." Wood v. Rubenstein, 2013 U.S. DIST. LEXIS 141736 (2013)

7 California Criminal Defense Practice, Query 11519 Us 102" M.L.B. v. S.L.J., Matches

8 1 Title Supreme Court Reports, Lawyers' Edition 2nd Series, Vols. 134 to Present.

9 Classified to U.S. Supreme Court Digest Lawyers' Edition, 1-Teadnote 11. With respect

10 to due process and equal protection of the Federal Constitution 14th Amendment,

11 access to judicial processes in cases criminal or quasi criminal in nature may not

12 turn on the ability to pay fees, <oq.477> 519 U.S. 124 àt[il](12] But our cases

13 solidly establish two exceptions to the general :rule. The pe:ties right to

14 participate in political processes as voters and candidiates cannot be limited to

Nor may judicial processes in cases criminal or

15 those who can. pay for a license

16 "q..iasi criminal in nature," Mayor U.S. at 196, .30 L.Ed.2d 372, 92 S.Ct. 410

17 (Citation and <*pg.493> internal marks omitted), turn on the ability to pay...

18 Ti.1.e 28 U.SC. §1915(g) prevents access to the courts with respect to a criminal

].9 matter. Shebe v. People, (C.A.9(Ca1..)l996) 362 F.2d 545 at [3]. There is

'exceptional ci rcurstances' (Weller v

with respect to the matter of damages that would dictate ialinediate litigation at

Dickerson, 314 F. 2d 598, 600 (9th Cif- . 1963))

22 the expense of others. Shobe, supra at [4]. Include fraud and false imprisonment

23 statutes. Claim does not lack arguable basis in law. 28 U.SC. §1915(e)(2)

II.. GRANT LEAVE TO PROCEED IN FOPJYIA PAUPERIS. IT IS SUFFICIENTLY PLAUSIBLE

THAT CLAIM STATES A CAUSE OF ACTION OR FUNDAMENTAL INTEREST FOR "BODDIE"

PURPOSES. SECTION 1915(g). THERE ISN'T ANY OTHER FORUM TO VINDICATE A

CONSTITUTIONAL RIGHT.

In the civil context, the test is whether the litigant has a "fundamental

interest at staked." MtB. v. S.L.J.; 519 US. 102,

117 S.Ct. 555

5€2

136

3 L.F.2d 473 (1996). If petitioner does, the courts must waive filing fees when he

4 is unable to pay. Fxamples of proceedings that implicate fundamental interests ae

5 divorce actior, see Boddie v. Connecticut, 401 uS. 371, 376, 91 S.Ct. 780, 785,

6 128 r.Ed.2d 113 (1971), and termination of parental rights, see M.L.B. at

1.17

7 SCt. at 568. Examples of interests that do not rise to this level are bankruptcy

8 filings: see United States v. Kra, 409 ti.s. 434, 444-45 93 s,ct. 631, 637-38, 34

!JL.EcL2d 626(1973) and welfare benif it determinations, see ortwein v. Schwab, 410

10 U.S. 656, 659, 93 S.Ct. 1172, 1174, 35 L.Ed02d 572 (1973)(per curiam). Carson v.

11 Johnson (C.A.(Tex.)1997) 112 F.3d 818 at [7]. If Carson could of proven hc; had a

12 fundamental liberty interest in avoiding displinary segregation and was denied due

process see Brown v. Plaut, 131 F.3d 163, 169 (D.C. Cir. 1999) a fundamental

14 interest would also he shown and waiver of filing fees. Cooare current claim of

15 I unwarranted parole revocation and expiration of parole term a fundamental liberty

16 plus a fundamental interest is shown for "Boddie" purposes and waiver of filing

17 fees. Section 1915(q) runs counter to the protections assured by the 8th Amendment.

18 Therefore, filing fees must be waived as a matter of law. Other underlying rights

19 not at issue in Boddie that represent a fundamental interest are the right to be

20 ! free from serious physical injury, including the 1st Amendment right to free

exercise of religion. An. underlying Constitutional entitlement of access to the

22 courts rises to. the level of .Boddie fundamental Interests only when

. the government.

23 blocks' the sole means for safeguardinq that entitlement. Abdul-Akhar v. McKelvje,

24 (CA.3(De1.)2n01) 239 F.03d 307 at (FN2.). Like the parties in Boddie', petitioner

Lyon v. Krol.. (C.A.(Iowa)1997) 127 F.3d 763: *767 Hon. 0 Newman, Pro Sc

Prisoner Litigant; Looking for Needles in Haystacks, 62 Brook, L.Rev. 519-21

26 (1966)(citing important victories won by prisoners through judicial claims regarding

prison conditions.

is precluded from filing his Section 1983 compl a int in another court system that

has a "three strikes" provision. State courts have currentt iurisdiction. over

3' Section 1983 cases. Howlett v Rose, 496 U.S. 3.56, 358, 110 S.Ct. 2430, 110 L.Ed.2d

4 j 332 (1990).. Abdul-Akbar, supra at (23]r24]. Vexatious litigant statutes prevent

5' filing claims. -Prisoners, have the--right tfil 14wsuits in for pauperis. Title

8 28 U.S.C.- Section 191 5(a). Particu1arj ones that migh b Anvolv4, constitutional :--;

rights. Leading 'caseIfl're Greene 669 F.2d 779 (D.C. Cir. 1981) in oartpages

T'.pper dix

Construing limitation of "claims alleging actual or threatened

9 physical harm" to be an "unconstitutional denial of access" statutory

J. bar of

10 Section 1915(g). Abdul-kbar v. McKelvie, 239 F.3d 307 (C.A.3(Da1.)200J.) dissent

11 (FN2.). -bo, .Appendix;. C414 fornia Crimth& Defense Practice, Query "Vindicating

12 Basic Fundamental Right3",11 1915(q)" Matches 1, Title U.S. District Court 8th

1.3 (Prior to 2005)

Hit List UNITED STATES DISTRICT COURT OF THE EIGHTH CIRCUIT 1999

14 43 F.SUPP..2D 1039 AYERS V. NORRIS LVIARCFI 31, 1999 OPINION, hot:

15 ...The court concludes that section 1915(g) is not narrowly tailored to...

Wilsoñv. YakLich,. (CaA6(ohi6)1998).- 148 F.3d 596 C0NCLUSI0N-W6 have recognized

..Court therefore holds that section 1915(q) is unconstitutional under equal.

18' that the right of access to the courts is fundamental. To the extent any provision

19 of 28 U.S.C. Section 1915(g) that restrict the right to have arguab1y:neritoris

20 claims reviewed, those provisions could be demd unconstitutional.. Ahdul-Akbar V.

2.1 McKeJ.vi , (c..3(De1.)20Ql at

is important for equal protection

22 purposes is that the right of access is fundamental, at, least when underlying

23 fundamental rights are involved. See McCarthy v.. Medigan, 503 U.S. 140, 1.53, 112

24 S.Ct. 1081, 117 L.Ed. 29). (1992). Because Section 1.915(q) is purely procedural rule

which does not control the ultimate decision of claims ...Rodriquez v. Cook, (C.A.9-

(0r.)2,999) .169 F.3d 1176 at [7] page 7, column 1., oaraQraph 2 hot.

I See Dolney V. Lahamer DSD 35 (8th Cir. 1999) at C Spencer V. Kerna tP13) ... These

opinions reveal that fi.ve Justices are. of the viiew that the Heck rule does not does

3 not apply to a §1983 plaintiff who is no longer in custody, and therefore unable

4 as a matter of law, to bring a habeas petition and challenge his conviction or ,

5 sentence. Id. Heck v. Humphrey, 51.2 U.S. 477, 486..(1.994). Immediate claim does not

6 Jack arquahle basis in law. 28 U.S.C., Section 1915(e)(2).

Court. order filed 8/28/17 allegedly shows claims that count as strikes, Appendix

8 B:

Larson v. Schwarzeneqgar, et al., No. 2: 06-cv--0940-'GEB-GGH $tatemant O claim

:Tobacco bn...:.Filed same ;claim seéjarson.v. Runnels, No. 2:06cv-1413-ALA suirinary.

11. Judgment dismjssal should not count as a strike in either case.

1.2

Larson v. Patton, et al., No.. 2O7-cv-1043-FCD-JFM Statement of claim

Counee1,or

15 Patton fired petitioner from his work assignment as porter without any repremands

1.6 for insufficient work performance from c/a or hearing nor chronc explaining the

17 reasons for firing petitioner. In violation of California Code of Regulations Tithe

18 15 Article 5 Inmate Disipline, Sccion 3312 Disc i.p.linary Methods (a)(3) Rules

19 Violations Report.. When misconduct is believed to be a violation of law or not

20 minor in nature, it shall he reported on. a CDC Form 115 (Rev.. 7/88), Rules 7

21 Violation Report. Fired from work assignment prevented petitioner from earning a

22 lower classification score. Section 3375.4 CDCR Reclassification Score Sheet, CDCR

23 Form 840 Calculation (a)(2).—For each six month ... no serious disciplinaries two'

24 points...: and (a)(3) average performance in work two points subtracted from

classification score. Section 3375 Classification Process (c), (d) and (e). Non

26 -iio1.ent alleged three strike offender were not awarded credits earned that affected

I the duration of sentence until the passage of Proposition 57 new credit rules on

2. 5/1/17 (good conduct credit) for non-violent felony offenders are now awarded

3 33.3% means a prisoner gets credit for two days actually served and thus serves

4 about 66.7% of the actual time imposed. Which was 34 years to life. Must mean that

the new credit law is retroactive and applies when the prison, sentence begins.

6 Liberty interest in prisoner's good time credits. Piggie v. McBride, 277 F.3d 922,

7 924 (7t1b Cir. 2002). Prisoners have a. liberty interest in good time credits in state.

8 created rnandaory scheme that inevitably affects duracion of sentence. Moorman v.

9 Thal.acker, 83 F.3d 970, 973 (8th Cir. 1996). See Carver v. Lehman, 540 F.3d 1011

10 (9th Cir. 2008). Prisoner entitled to recover at least nominal damages under Section.

U. 1983 if proves hearing resulting in deprivation of good-time credits was in

12 violation of procedural due process, even if prisoner cannot prove that deprivation

13 of good-time credits was wrong. See Edwards v. Ba.lisok, 520 U.S. 641, 645 (1997).

14 Inmate entitled to nominal damaged for constitutional injury although

15 -,)rova actual damages for emotional distress Santiago v Garcia 821 F.2d 829 (1st

16 Cir. 1.987). Case dismissed- - without prejudice see list attached to complaint,

Appendix Y. Claim does not lack arguable basis in law. 28 U.S.C. Section 1915(e)(2).

18 Case criminal or quasi criminal in nature may not turn on the ability to pay fees.

19 See Claim I page 3,1-23.

Larson v. Runnels, at al., No 2:07-cv-0806-FCD-DAD statement of claim

Recall of

21 Commitment Recommendation based on invention entitled "Primary Case Transmission"

22 a positive asset to the community. Revealed the invention to prison guards... and

23 petitioner's exceptional behavior. california Code of Regulations, Title 15, Section

3076(a)(1) pursuant to Penal Code Section 1170(d). Primary Case Transmission

2.5 specification and drawings pages

Appendix F. 'Claim does not". lack - ar9 uable

26 basis in law. 28 U.S.C. Section 1915(e)(2) Cases criminal or quasi criminal in

I nature may not turn on the ability to pay fees See Claim I

3,1-23.

Larson v. Runnels, et a].., No. 2:08-cv-00348-MCS-KJM statement of claim

ooacco cessation in violation of California Code of Rag Lila

3189 Inmate Violations and Cessation Assistance. After tobacco was banned: snuff

Denied

Section

5 should of been provided or a nicotine free substance 'Nicoban. Petitioner was

6 prejudiced. Helling V. McKinney, 509 U.S. 25 (1993). Medical claim does not lack

7 arguable basis in iaw. 28 U.S.C. Section 1915(e)(2). Case criminal or quasi criminal

8 :in nature may not turn on the ability to pay fees. See Claim I page 3,1-23.

Larson v. McDonald, et aL, No. 2:07-cv-01512-FCD-GGH statement of claim

Prison

officials stold package of 4th quarter 2006. Had letters from home showing that

11 petitioner's Mother mailed the package. 602 grievance was denied. CaselawHüdson

12 applies when official conduct is unauthorized. Hudson v Palmer, 468 US. 517 at

13 1532 & n.13. Case dismissed without prejudice Claim does not lack arguable basis in

14, law. 28 US.C. Section 1.915(e)(2). Case criminal, or quasi criminal in nature may

15 not turn on the ability to pay fees. See Claim I page 3,1-23.

Larson V. McDonald, et aL, No. 207-cv-0l.955-HDM-RM statement of claim

Transfer from High Desert State Prison level IV, B yard (270) to California

18 Correctional Institution IV, A4 yard (180) because of a program change of making

1.9

B yard (270) a protective custody yard. Involuntary transfer to a higher security

20 level 180 yard at CCI from a security level 270 yard at HDSP is not consistent with

21 petitioner's placement score is in violation of California ('.009 of Regulations

22 Title 15 Section 3375 Classification Process (f)(A). At CCI level IV, yard A4 (1.80)

23 the shift commander falsely charged petitioner with being a suspect in the attempted

24: murder of a peace officer on 04/08/08, cleared of the :chacge

06/23/08/and was

25 not released from segregation because the classification commity falsely accused

26? 'petitioner continued to he a threat to the safety and security of the institution.'

F;]

I Then months later the classification commity informed oetitiorier that there..wasa

2 planned assault olt for petitioner a CCI level Iv (180). Petitioner was put in the

3 "HAT" by the "WOODCAR" and transfered to Corcoran State Prison level IV (270) SNY

4 on 03/09/09. While in segregation at CCI pe:i:ioaer was denied access to yard, law

5 library, sparc.e meals, no quarterly packages nor canteen, television and radio were

6 not allowed...ect. Privileges were lost without being found guilty. Prisoner's

7 sworn declaration of atypical hardship can form basis for protected liberty

8 interest. Taylor v. Rodriquez, 238 F.3d 188.. 195 (2d Cir. 2001). Confined in

9 segregation from 04/08/08-03/09/09 is 347 days. Confinement for 305 days in

adininis.trative segregation conditions is atypical and significant hardship- Colon

11 V. Howard, 215 F.3d 227, 231-32 (2d Cir. 2000) Transfer to CCI level IV, yard A4

12 (180) did subject petitioner to different conditions than those experianced. See

13 Dominique V. Weld, 73 F.3d 1156, 1160 (1st Cir. 1996). Holding premature a district

14, court's dismissal of at Section 1983 claim for allegedly retailatory transfer. Davis

15 v. Kelly, 160 F.3d 817, 920 (2d Cir. 1998). Petitioner had filed 17 civil suits

16 against High Desert State Prison and Gonzales warden at California Correctional

17 Institution. Select A Case pages

Appendix F. Claim does not lack arguable

18 basis in law. 28U.S.C. Section 1915(e)(2). Case criminal or quasi criminal in

19 nature may not turn on the ability to pay fees. See Claim I page 3,1-23.

Larson v. Williams, et al., No. 2:077cv-'00631-MCE-GGH statement of claim

Denied

21 access 'Co law library, except twice a year, often denied accesss to law library for

22 over .a year from 2000-2007. Submitted inmate request two or three times a month

23 and grievance explaining that access was recuired for researching caselaw shown in

24 court orders with leave to amend that would cure deficiencies in civil suits filed

25 since year 2000. Case dismissed without prejudice and Larson v. Hinzhuff, et at.,

26 No. CIVS-04-2521-LKK-GGH-P statement of claim

Denied access to law library

1 prevented researching claims for supplemental brief on appeal and grounds for writ

2 of habeas corpus, forms, copies ect. Explained in civil suit that petitioner didn't

3 know if there was time limitations for filing habeas petitions and was unaware of

4 the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Writ of habeas

5 corpus, Supreme Court of California case number S164455. Denied untimely filed. Case

'1 6 was dismissed without prejudice. Claim does not lack arguable basis in law. 28 U.S.C.

7 Section 1915(e)(2). Case criminal or quasi criminal in nature may not turn on the

8 ability ot pay fees. See Claim I page 3,1-23.

Larson v. Rhodes, No. 1:09-cv-00342-OWW-YNP-SMS statement of claim

(omitted ,

10 until obtain file stored in receiving and release, can't recall subject matter.)

Larson v. Judge Hanoian,.et a1.,NO 3:13-cv-01654-GPC-NLS stat?mentot claim

(Omitted until obtain file stored in receiving and release, can't recall subject

13 matter.)

L.son v. Governor Gerald Brown, et al., No. 3:16-cv-01188-AJB-RBB statement of

15 claim

NOTICE OF CLAIM OF UNCONSTITUTIONALITY OF STATE LAW. Plaintiff challenges

16 a state court's application of three strikes sentencing laws, that a serious/violent

17 : felony conviction may be used as a strike regardless of how long ago it occurred.

18 Penal Code Section 1170.12(a)(3) in violation of caselaw U.S. v. Gilcrist, 106 F.3d

19 . 297 (9th dr. 1997). OUTCOME: The court vacated defendant's sentence, and remanded

20 the case for resentencing. On remand the trial court was not to consider the

21 conviction3 for which the defendant had been released from incarceration on oarole

22 to serve another sentence more than 15 years before his current offense. 1. THE

23 PRIOR CONVICTIONS, A. Background-The district court found it permissible to include

24 all four of Gilcrist's prior convictions (106 F.3d 299) in calculating his criminal

25 :his-Loy category under U.S.S.G. §4A1.1(a) & §4A1.2(e)(l), of these four convictions,

26 Gilcrist contends that two of these convictions robbery in 1972 and for possession

of a weapon in 1974, were improperly considered. As relevant here, §4Pl.2(e)(l)

2 provides that, to be counted under §4A.l(a), a prior sentence of imprisonment must

3 have been imposed within 15 years of the defendant's commencement of the instant

4 offense. ..Also count any prior sentence of imprisonment exceeding one year and one

5 jmonth, whenever imposed, that resulted in the defendant being incarcerated during

6 any part of such 15 year period. Prosecution's alleged criminal history of other

7 crimes during the 15 year period does not affect the dismissal of petitioner's

8 priors that are 15 years old. Case dismissed without peiudice.. Claim does rot lack

9 ãrguàb1absis ir law. ..28.-U.SC. : Section 1915(e) (2).. Case criminal or quasi criminal

10 in -nature- may not turn .onthe ability to.payfees. See Claim I page 3,1-23.

Select A Case pages

Larson v. Gonzales, et al., No. l:08-cv-00685-0WW-WMW statement of claim

Appendix F.

Would

13 not let petitioner attend Church Services. Prison officials must afford prisoners

14 cprotunities to exercise their religious freedom. See Cruz v. Beto, 405 U.S. 319,

322 & n.2 (1972) (per curiam). Ad-Seg. inmates may attend Church Services in holding

l6 cages. See 0 Lone v. Estate of Shabazz, 482 U.S. 342, 351-53 (1987). Case dismissed

17 without prejudice. Ca-se criminal or quasi criminal in nature may not turn on the

l8 ability to pay fees. See Claim I page 3,1-23.

191 Larson v. Gonzales, et al., No. 1:08-cv_00740_AWI--tt7tv1W statement of claim

utility

, cage access for outdoor exercise when confined in ad-seg. Wolff v

418 U.S. 539,

Dented

McDonnell

(1974). Case dismissed without prejudice. Claim does not lack

22 arguable basis in law. 28 U.S.C. Section 1915(e)(2). Case criminal, or quasi criminal

23 may not turn on the ability to pay fees. See Claim I page 3,1-23.

Larson v. Gonzales, et al., No. 1:08-cv-0087i-r.jo-wiv1w statement of claim

Same

25 as above.

Larson v. Gonzales. et a].., No. 1:08-cv-00936-ro-SMs statement- of claim

Seminal

1 Ifluid in food. Case dismissed without prejudice. Claim does not lack arguable basis

2 liD law. 28 U.S.C. Section 1915(e)(2). Case criminal or quasi criminal in nature

3 may not turn on the ability to pay fees. See Claim I page 3,1-23.

Larson v. Doe, et al., No. I 08-cv-00998-DLB statement of claim

Prison

5 (conditions 13 claims. (Omitted until obtain file stored in receiving and relaese,

can't recall subject matter.) Claim does not lack arguable basis in law. 28 U.SC.

7 (Section 1915(e)(2). Case criminal or quasi criminal in nature may not turn on the

8 ability to pay fees. See Claim I page 3,1-23.

Larson v. Schiarzeneggar, et al.! No. 1:04-cv-02738-GEB-CMK statement of claim

Tobacco ban. Filed.sarae claim in civil suit Larson v. Runnels, et al., No. 2:06-

11 -cv-141.3-ALA summary judgment dismissal should not count as a strike in either

12 case

Larson v. Runnels, et al., No. 2:06-cv-01.794-GEB-DAD statement of claim

Prison

15 loft icials stold package for 4th quarter 2006. Had letters from hone showing that

16 Ipetitioner's Mother mailed the package. 602 grievance was denied. Caselaw Hudson

17 applies when official, conduct is unauthorized Hudson v. Palmer, 468 J-S. 517 at

18 532 & n.13. Case,-d

19 in law

cithout prejudice; .Claith doe notickarguablbaii

,Case icriminal or quasi crithinal in nature

20. iTlay ôt'.tun.oith&.ability to pay fees. See Claim I page 3,1-23.

Larson v. Runnels: et al.! No. 2:06-cv-01934-FCD-GGH statement of claim

(Omitted until obtain file stored in receiving and release, can't recall subject

23 (matter.)

Larson v. Runnels, et al., No. 2:06-cv-01985-LKK-KJN statement of claim

Guards

25 land mailroom employees prevented the lawyers of FORT BRAGG from being informed of

26 invention entitled "Primary Case Transmission" by tampering with petitioner's mail

1 and refused to notify., the President of the United States thereby committing treason

632 grievance denied. Case dismissed without prejudice. Primary Case Transmission

3 specification and drawings pages

Appendix F. Claini does not lack arguable

4 basis in law. 28 U.S.C. Section 1915(e)(2). Case criminal or quasi criminal in

5 nature may not turn on the ability to pay fees. See Claim I page 3,1-23.

Larson v. Runnels, et al., No. 2:06-cv-02094 statement of claim

Denied access

7 to yard 6 years out of 7 from 2000-2007 during prison lockdowns. Wolff v. McDonnell,

8 h418 U.S. 539,

(1974). Submitted 602 appeal for second level réiew, .first level

9 Jis waived whèa proedre'is-implemeritedsusendiñg'access toyatdhy warden

(.)

1:0 Runnèls section 3084.7Lvels.Of Appeal Review and- Dispositior1(a)(2) of California

11 Code of Reguiatiohs Title 15. 602 aopeIre€urned4 later with instructions to

12 icompl6te informal level response. Resubmitted' appeal on1ined paper. Could not .make

OPY, •dèniCd •access to law-,zlibeary6 Defendants failed to respond. Cancelled trial

14 that was setfo

at 930AMinc6urtroo

Judge Damrell, presiding.

Contemporaneous designation of failure to exhalst administrative remedies as failure

16 to state a claim counting as a "strike" is impermissible. See 28 U.S.C. Section

17 1915A, e.g., Snider v. Meljndez, 199 F.3d 108, 115. Case dismissed withot Prejudice. ,

18 Claim does not lack arguable basis in law. 28 U.S.C. Section 1915(e)(2). Case,19 criminal or quasi criminal in nature may not turn on the ability to pay tees. See

20 C1aim I page 3,1-23.

Larson v. Runnels, et al., No. 2:06-cv-02178-LKK-GGH statement of claim

Transfer

22 to Illinois. Prisoner exchange, overcrowding or hardship. Penal Code Sections 5058

23 Transfer of Prisoners, 11189 Interstate corrections compact; form; contents, Article!,

24 , II Definitions (c)"Receiving state" means a state party to this compact to which an

25 jnmate is sent for confinement other than that in which conviction or court

26 !commitment was had. Western Interstate corrections compact; form; contents and

1 111191 Commitment or transfer to instition within or without state; right to counsel;

2 consent of inmate; revocation of consent (a)Any court or other agency or officer of

3Lthi5

state having power to commit or transfer an inmate (as defined in Article II(d)

4 of the Interstate Compact or of the Western Interstate Compact... & (b)-(c).

5 Protected liberty interests can be created (1) by the Due Process Clause of its own

6 force, (2) by a court order, (3) by a treaty or (4) by states through statutes or

7 regulations. Case dismissed without prejudice. Claim does not lack arguable basis

8 in law. 28 U.S.C. Section 1915(e)(2). Case criminal or quasi criminal in nature

may not turn on the ability to pay fees. See Claim I page 3:1-23.

Larson V. Runnels, et a].., No. 2: 07-cv-00664-r.KK-KJM statement of claim

Tranàfer

11 to CMC East State Mental Hospital. "It would be appropriate to place him at Donovan

12 or CMC East..-SUMMARY & RECOMMENDATIONS by creqa A Michae]., Ph.D

13 Di1omate of the American Board of Forensic Examiners, Psycholoqical Examination

14 Pre-Sentence Evaluation and personal data Pages.

Appendix F. The court. had

15previously sentenced petitioner 2 years confinement at CMC East State Mental

16Hospital in August of 1992 for evading. Penal Code Section 2800.5 Deputy Public

17LDefender pled guilty for petitioner that had been diagnosed as suffering from

18 organic brain defects second to methamphetamine abuse. Collecting SSI assigned

191.pavee.1 Haven't obtained SSI Records pages

Aopendix F. Transported from the

20 courtroom to CMC East, not Donovan State Prion and then rférred to .CMC for.

21 Category "J" evaluation. Petitioner wasn't diagnosed by Donovan Mental Health

22 Doctors. It is SSI's Diagnostic Imoression Axis I: Organic mental disorder (defect.).

23cN0S, possibly secondary to amphetamine abuse, GAF 49. Medical File pages 1-9,24 Appendix F Petitioner vias not confined at Donovan State Prison at that time. CMC

—25 East Mental Health Doctor's Diagnostic Irnoression Axis I: Organic Mental Disorder

26 Secondary To Methamphetainine Abuse, GAF 48, Category "J". Medical File pages 10-20,

Collected SSI from 1992-1996. Drug addicts and alcoholics were cut. The old law

'was macted. Did not reapply

it Appendix F. (Request to submit entire file.) Hospitalized for 1½-2 years, released

Reported to parole agent under the influence of methamphetamine. Confined

at Donovan State Prison thrice, 9 months violations for under the influence of

methamphetaniine, years 1994-1996. Mental Health Doctor's Diagnostic Axis I:

5 Paranoid Schizophrenia and recommended transfer to CMC East for Cateory "J"

6 designation, GAF 30. Wasn't told of the pending transfer, not made. Medical File

23-31 and 40, Appendix F. Released from &novan State Prison and reported to

8 Iparole agent on

/ /

under the influence of methamphetamine. Confined at

Lifornia State Prison-Solono for 9 months. Mental Health Doctor's Diagnostic

10 Impression Axis I: Schozophrenia Paranoid Type, chronic (prov.) Medical File page

Ii 69, Appendix F., Department of Men tal Health .(DMH) Psychiatric Program-Vacaville

12 Acute Program Referral Form (Cat 101). Medical File page 95. Wasn't transferred.

13 Released from California State Prison and reported to parole agent on

/ /

under

14 the influence of methamphetamine. Confined rt Donovan State Prison for 9 months.

15 Not recorded in Medical File, Appendix F. Released from Donovan State Prison and

16 reported to parole agent on I' /

Knife blade ¼ inch over the limit was rusted

17 shut. Confined at Donovan State Prison 5½ months.. Parole revocated for 8 more months,

18 because of a serious displinary report

use of force or violence against another

19 IDerson, mutual combat, no injuries in violation of Penal Code Section 3057(c)(3)

20 "not more than 30 days for an act defined as a serious disciplinary offense pursuant

21 I to subdivision (a) of Section 2932. Not recorded in Medical File, Appendix F.

22 Released from Donovan State Prison and reported to parole , agent on

Handed

23 parole agent mandatory discharge parole papers and told him petitioner is off

24 ,parole. Parole agent said no your not. Asked whats the reason. Replied because I

25. said so. parole was. rev.ocated soon after for being under the .influence of metham26 phetamine for 9 months, twice more. Not recorded in Medical File, Appendix F

Parole terminated in-June of 1998. False -arrested for current charge on 02/19/991

trial 04/13/00 and sentenced 34 years

life on 06/15/00. Confined at DonoTan1State

3 Prison on 06/20/00. Mental Health Doctors evaluation: V. DSM IV ICD-9CM (Diagnosis

•..) Axis I: #298.9 Psychotic Disorder NOS, Axis IV. GAF 13. Medical File page 168,

5 Appendix F. Evidence of lobotomy. Medical File page 177, Appendix F. Progress notes:

Prior to arrest i/rn on SSI For "organic brain disorder", (defect)Axis I: Psychosis

NOS, II. defer III ... IV. Legal Sever, V. 45. Medical File page 187 Appendix F.

8iv. dsm iv icd-9CM Diagnosis...) Axis I: #298.9 Psychosis NOS R/S Org Issu, 296.

9 Bipolar usually hvpornanic, mai, 304.80 Polysubstance Dependence in

10 Remission, Axis II: PD NOS, Axis III: Headaches, Axis V: GAF=57 V. Problem/Symptom

List #1 Grandios beliefs, VII. ..Concedes EOP today and in the Future even though he

12 does not want to go there. Told Doctor Blanthorn petitioner did not want to transfer

13 to CMC East for two weeks until a $100.00 dept was paid for wine. Medical File pages1

14 851-852, Aopendix F. Petitioner told doctor that previously he'd been dect a

15 Organic brain Syndrome (defect) secondary to methamphetamine abuse. Medical File

16 page 911, Appendix F. PSYCHOLOGICAL EVALUATION FORM, III.. Mental Health History:

17 Mental Health Hx & Physical Problems 8 Hospitalized in Wisconsin, 1975

9 months,

18 State Hospital. Medical File page 51, Appendix F. Current level of care eop/cccrn.s

19 does not qualify a prisoner for purposes of PLRA t s 3 strikes provision. See

20 Kolocotronics v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001). Case dismissed without

prejudice. Claim does not lack arguable basis in law. 28 U.S.C. Section 1915(e)(2).

22 Case criminal or quasi criminal in nature may not turn pn the ability to pay fees.

23 See Claim I page 3,1-23.

Larson 'v.7 Gonzales, et- al., No. 2:08-cv-00938-FCD-JFM statement of claim

(Omitted until obtain file stored in receiving and release, can't recall sub- ect

26 matter.)

Larson v. Gonzales,, et al.,.. 2:08-cv-00960-JAM-KJM statement of claim

(Omitted

until obtain file stored in receiving and release, can't recall subject matter.)

Additional cases.

Larson v. Wallace, -etal., No. 3:17-cv-01135-JAH-JLB statement of claim

Actual

5 innocence is based on a request for a stipulated lie detector test scheduled by Fred

6 Small, Deputy Public Defender. Petitioner agreed to sign papers. Fred Small, Deputy

7 Public :Defender was -not there :during the examination. Question #1: "Is your name ,- f

Harvey Eugene Larson?" Replied yes. Question #2: "Did you point a screwdriver at

91 Officer Mark Baber?" Replied no.1 Examiner showed petitioner how to read the test

and mentioned a 10 point range, then a 6 point range left "truthful," middle

11 6 point range "inconclusive" and 6 point range right "not telling the truth."

12 Examiner stated, "that the score showed in the inconclusive rane last point tward

13 truth range, needed one more point and would have to check the results at her office

14 Test score "inconclusive 22" at bot right hand corner of half or full sheet of paperl

15 Requested a second stipulated lie detector test. Defendant Fred Small, Deputy Public,

16 Defender stated, "what you want the whole court to know it." Marsden Hearing on Juli

17 I21, 1999 transcript page 3,17, Appendix F. Petitioner did notmake any spbntaneous

18 lstatementswritten in Crime/Incident and Common Report Narrative pages

19 Appendix F. Affidavit pages

Appendix F. Evidentiary Hearing should of been

20 held on the results of the lie detector examination "if" non-stipulated.

22 Witherspoon v. Superior Court, ( Cal. App. 2Dist. 1982) 133 Cal. APP. 3d 24, 183 Cal-,

23 11 Rptr. 615 at [133 Cal.App.3d 2611 page 2, column 1, paragraph 1:

24 Code section 402, he requested a pretrial

Petitioner told the examiner that he had been drawing all night and can barely

stay awake. Fell asleep for half a second when asked if petitioner pointed the

26 screwdriver at Barber, woke startled recalling the question replied no. It didn't

seem to matter to the examiner except her fingers were covered with ink.

I determination of the admissibi]..ity of a confession

alleged to have been made by him. In connection

2 :withçthat motion he sought an evidentiary hearing at

hi.ch he proposed to prove the validity and hence the

3 admissibility of a nolygraph examination

administered to him on the issues of. the voluntariness

4 of the confession a nd his innocen of the charge.

The trial court denied the motion and refused to

hold anevidentiary hearing on the grounds that the

6 results of the polygraph examination would he

inadmissible regardless of what evidence the

7 defendant might offer concerning such axamination.

The trial court's decision was understandably the

result of an unbroken line of appellate decisions in

10 California restating a. blanket exclusion of such

evidence, absent a stipulation by the parties to permit

11 its introduction. In short, the trial court's ruling was

not an exercise of discretion but was simply a

12, statement that lacked any discretion in the matter.

Defendant petitioned this Court for a writ of

mandate to compel the trial court to consider the

14 evidentiary hearing. We denied the petition. The

Supreme Court, however, granted a hearing and

15 transfered the matter to our calendar.

161 ll][21 After extensive review of the statute and case

law along with defendant's offer of proof , we have

17 concluded that the writ should issue to compel the

holding of an evidentiary hearing. Of course the

18 holding of an evidentiary hearing would he an idle act

if the heretofore arbitrary and blanket exclusion of

191such evidence is to continue. Thus we have further

concluded that upon a proper showing pursuant to the

20orocedure [133 Cal.App.3d 271 outlined in Evidence

1 1 C- ode section *617 402 through. 406 (FNl) and

21consistant with the trial court's valid exercise of

discretion, as provided for by Evidence Code Section

22 352 (FN2). no legal reason exists for continuing to

iapply the judicially developed exclusion of such

23 evidence.

[2] Criminal Law Key 388.5(1)

110---11OXVII Evidence

lloXVii(I) Competency in General

110k388 Experiments and Tests; Scientific and

1 Survey Evidence

110k388.5 In GeneraL

(Formerly 110k388)

Upon proper showing pursuant to procedure

outlined in Evidence Code section and consistant with

trial court's valid exercise of discretion results of

polygraph examination are admissible in criminal

trial. West's Ann.Evid.Code §*352, 401-406

Young v. Northwest Airlines, (9th Cir. 2000) 2000 U.S. DIST. LEXIS

DISCUSSION

Exhibit is a report of a polygraph examination administered to Plaintiff regarding

this case. The polygraph examiner, Michael Orian, did not file an accompanying affidavit. After the Supreme Court's Ruling in Daubert v. Merrel Dow Pharmaceuticals,

Inc., 509 U.S. 579, 125 L.Ed.2d 459, 113 S.Ct. 2786 (1993). The Ninth Circuit

determined

that the former "bright line rule" which excluded non-stipulated

po1y9rah evidence offered in civil, oc criminal trials had been eradicated, United

11 States v. .Cordoba, 194 F.3d 1.053 1.056 (9th Cir. 1999). Instead, a court must make

a ftcual inquiry into the scientific validity of the proffered polygraph evidence

12 under Rule 702 as well as weigh, the probative value of the evidence against its

prejudicial effect under Rule 403." Id

14 Cordoba, supra at 1056, page 4, column 1, paragraph 2:

On appeal, we reversed, holding that Daubert, 509

U.S. 579, 113 S.Ct. 2786, overruled the" 'bright line

16 rule' excluding all unstiDulated polygraph evidence

offered in civil. or criminal trials." United States v.

17 Cordoba, 104 F.3d 225, 227 (9th Cir. 1996)("

Cordoba I."). We found that, under Daubert a

18 district court was required to make a particularized

factual inquiry into the scientific validity of the

19 proffered polygraph evidence under Rule 702 as well

as weigh the probative value of the evidence against

201 its prejudicial effect under Rule 403. Id. at 227-28.

We remanded with instructions to the district court to

21 "conduct individualied inquiries under Rules 702 and

403 to determine whether Cordoba's unstipulated

22 polygraph evidence is admissible." Id. at 230 We

provided that"[ilf the district court concludg,ldl that

23 the unstipulated oolvqrwh evidence [was)

inadmissible under Rule 702 or 403, the district court

24 couldI reinstate the judgment of conviction." Id.

Uon remand, the district court held a two day

evidentiary hearing, received extensive briefing, and

26 reviewed numerous affidavits and reports supplied by

l the parties.

31 People v. Reeder, (Cal. App. 3 Dist . 1976) 135 Cal .Rptr. 421. 65 Cal. App. 3d 235

[I][2][3][41 It has long been established that

submission to a polygraph test by a qualified

5 examiner and admission in evidence of the results are

proper subjects for stipulation (Robinson v. Wilson

6 11 (1974) 44 cal.App.3d *423 92, 103, 118 Cal.Rptr.

569...

8 [1] Criminal raw Key 388.5(4)

110---9

l10XVII Evidence

110XVII(I) Competency in General

110k388 Experiments and Tests; Scientific and

Survey Evidence

110k388.5 Lie Detector or Polygraph Tests and

I.l Procedures

.12

110k388.5(2) Stipulations or Agreements

110k388.5(4) Necessity and Effect

(Formerly 363k3)

Submission to polygraph test by qualified examiner

and admission in evidence of the results are proper

15 subjects for stipulation.

16: Request for a second stipulated' lie detector examination was made again to Judge

17Hanoian. Judge tatéd, "it '.is not .admissible tsic what is thepoint" Marsden Hearing

18 on April 10, 2000 (trial the 11th) transcript pages 5,18-6,1, Appendix F. Barbara

19 J. Wallace, Polygraph Examiner is registered with the court that often employed her

20 services. Expert testimony had been recieved by the court.

21 Reeder, supra

Defendant was convicted in Superior Court, Placer

county, William A. Newson, J., of oral sex

23perversion and forcible rape and he appealed. The

Court of., Puglia, P.J., held that record would

24 not support claim of incompetence of counsel in

stipulating to admissibility of results of polygraph

25 test where there was no showing that defendant did

not accede to the stipulation freely and intelligently;

26 and that failure to instruct on the weight and effect

1 of expert testimony was prejudicial errors it appearing

that the polygraph testimony materially influenced the

2 Jury and it was reasonably probable that a result more

favorable to defendant would have occured had the

3, instruction been given.

Reversed.

[8119) The instruction called for by Penal Code

section 1127b must be given sua sponte where expert

6 testimony has been received. (People v. Bowens

(1964) 229 Cal.Apo.2d 590, 600, 40 Cal.Rptr. 435,

8 [81 Criminal Law Key 824(5)

110---9

ll0XX Trial

110XX(H) Instructions: Requests

110k824 Necessity in General

110k824(5) Instructions as to Evidence in

117 General.

Instruction on weight and effect of expert testimony

must be given sonte where expert testimony has

14 1 been received. West's Ann. Pen. Code, §1127h

15 [6] Criminal Law Key 641.13(6)

110---16

110XX Trial

110xx(B) Course and Conduct of Trial in

17 General

110k641 Counsel for Accused

110k641.13 Adequacy of Representation

110k641.13(2) Particular Case and Problems

110k641 .13(6)

Evidence:

Procurement

Presentation and Objections.

21.

Record on appeal from conviction would not

support claim of incompetence of counsel in

22 stipulating to admissibility of results of polygraph

tests where there was no showing that defendant did

23 not accede to the stipulation freely and intelligently.

Idea to submit to polygraph test originated with the defendant. [65 Cal.App.3d 2401

Vista county Jail guards stold the copy of the lie detector test that showed a

1 score "inconclusive 22" atbot right corner of paper or half sheet of paper. Deputy

2 H public Defenders Fred Small and Stan Jones would not give petitioner another copy.

3 The court should of removed Fred Small and Stan Jones from the case. Grounds

4 sufficient to require reversal include the following: -Failure to investigate

5 adequately, People v. Minor, (1980) 104 C.A.3d 194, 200 and -Defendant's credibility

6 jundermined by trial error (People v, Colema n.. 9 C-.-4th 493. Copy of the original

7stipulated lie detector test could not be obtained.

Claim of actual innocence is based on

l.yrahExaffiinà•tionJobtaine83Ja)ày

201, App.nd.itiF 1oGd'JaC falêt

10 "inconclusive +3 and -4" to questions #33t 435

nd 437 that tëe not 1ës If th

11 Court believes that those questions were kdi then

12 icriminal intent and the 34 veer

life sentence that petitioier is serving. Question

13 #33: "On February 19, 1999, did you intend to use the screwdriver as a weapon

14 J against the officer?" Question #35: "Did you intend to strike the officer with the

15screwdriver on February 19, 1999?" Question #37: "Did you use the screwdriver to

16 threaten the officer on February 19, 1999?" "The examinee responded "No" to all

17.relevant questions. Test Results: The score for Questions #33 and #35 were combined

18 hecause they focus on the same issue. The final score for those questions was "+3"

19 which falls into the Inconclusive Zone but is only four points from being in the

20 Truthful Scoring Range The final score for Question #37, which focuses on a

21 seperate issue. was "-4" which fell into the Inconclusive Zone but leans toward the

22 .Deceptive Scoring Range.

23:People v. Reeder, (Cal.App.3 Dist . 1976) 135 CaLRptr. 421, 65 Cal. App. 3d 235 at

24 Headnote:

25 [7] Criminal Law Key 824(6)

110---26

110XX Trial

•.. ....

11OXX(H) Instructions: -Requests

110k824 Necessity in General

110k824(6) Instructions as to Presumptions and

Burden of Proof.

Where neither oolvaraoh examiner who testified in

criminal trial claimed evidentiary significance for

polygraph tests beyond the limits that defendant

would impose by his suggested instruction that

polygraph evidence was not to be considered upon the

elements of the charged offenses, court had no duty so

to instruct sua sponte.

Respondents Barbara J. Wallace, Polygraph Examiner and Bethany M. Ulch, Deputy

9 Public Defender falsified the scoring method number value of three charts of the

10 Result of Specific Polygraph Examination "inconclusive zone +6 to -12." A +6 shows

11 that an examinee is telling the truth. See U.S. v. Gaibreth, 980 F.Supp. 877 (D-N.M.,

12 1995) page 14! column 1, paragraph 5. Examiner had explained to petitioner that the

13 truth range, inconclusive range and not telling the truth range each had 6 points.

14 DEMAND FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF. Release from prison. An

evidentiary harinq n)usthe held on the stipulated or non-stipulated '.lte debectc..r

16 or -polygraph examination and request for a second $tipulated tçst be granted if

17 required, also on the facts presented in this motion with an attorney present.

An indepent review of the record, Federal Rules of Civil Procedure 15 and

19 intervention, Federal Rules of Civil Procedure 24.

21 J ~III, DENIED ACCESS TO LAW LIBRARY PREVENTED AMENDING COMPLAINTS.

NOR NOTICE OF DISMISSAL, THAT A VOLUNTARY DISMISSAL OF, THE

CASE WILL NOT BE COUNTED AS A STRIKE. 28 U.S.C. SECTION

22 17

1915(g) AND 42 U.S.C. SECTION 1997e(c)

The court granted leave to amend on it's own motion. - Prison authorities denied

25h access to law library that prevented reading caselaw shown in court orders to cure

26 1 deficiency in complaints listed herein. Court erred in dismissing pro se complaints

when the court knew that access-to law library was denied. See Larson v. Williams,

et al., No. 2:07-cv-00631-RLH-VPC previous page. 9, 20-25 and Larson v. Hinzhuff, et

3 al., No. CIVS-2521--LKK-GGH previous pages 9,25-1.0,8. The court must give specific

4 notice of complaints deficiency and opprotunity to amend. Lucas v. Department of

5 Corr., 66 F.3d 245, 248-49 (9th Cir. 1995). Now that petitioner has access to a law

6 1 library, he should be given a chance to amend complaints filed in years 2001-2007

7 and given notice of voluntary dismissal to avoid incurring a "strike" under Section

1915(g). Therefore, i.ndiqent inmates control whether the 3 strikes provision will

9 ever be applied to them. Cf. Christiansen v. Clarke 147 F.3d 655, 658 (8th Cir.

Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 200].). California Criminal

11 Defese Practice. Query "Notice","Strikes".."1915(g)" Matches 548, Title U.S.

12 District Court

9th Circuit (2014 to Present), Hit List UNITED STATES DISTRICT

13 COURT OF THE NINTH CIRCUIT 2017 U.S. DIST. LEXIS 24109::Haney v. Htay::February 17,

14 2017 OPINION

15 Three lines down16 ...matters properly subject to judicial notice, or allegations that are merely...

..rnust give defendant fair notice of what the ... claim...

.in this order or a notice of voluntary dismissal; and...

,. .

19 1 1

20 C.B. ZINGER

THE CITE BOOK

PRO SE COMPLAINTS

22 NOLL V. CARSON, 809 F.2d 1446 (9th Cir. 1987)

Pro se liti.gant bringing civil rights suit in forma pauperis is entitled to

five procedural protections:

Process

issued and served.

Notice

any motion thereafter made by defendant or the court to

dismiss the complaint and grounds therefore.

An opprotunity to at least submit a written memorandum in opposition to

such motion.

4) In the event of dismissal,

statement of the grounds

therefore.

5) An opprotunity to amend the

complaint to overcome any

deficiency unless it clearly

appears from the :complaint

that the deficiency cannot.

be overcome by amendment.

IV. SECTION 1915(g) IS UNCONSTITUTIONAL UNDER EQUAL PROTECTION

California Criminal Defense Practice? Query "Vindicating Basic Fundamental Rights

8 ,"1915(g)" Matches 1, Title U.S. District Court

8th Circuit (Prior to 2005), Hit

9 List, UNITED STATES DISTRICT COURT OF THE EIGHTH CIRCUIT 1999 43 F.SUPP.2D 1039

101 AYERS V. NORRIS MARCH 31, 1999 OPINION, bot

11 ...The Court concludes that Section 1915(g) is not narrowly tailored to...

.Court therefore holds that Section 1915(g) is unconstitutional under equal...

13 d

V. 40 CIVIL SUITS WERE NOT FILED

28 civil suits.

VI. MENTAL ILLNESS MAY OF PREVENTED MAINTAINING LAWSUITS

See civil suit Larson v. Runnels, et al., No. 2:07-cv-00664-LKK-KJM filed 04/06-

19 /07 previous pages 14,10-16,23

VII. READING GRADE POINT LEVEL .07 OR .7?

Effective Communication For Determination For Formal Level CDCR Inmate/Appeal

23 Lpaqe

Appendix F.

24 I'

VIII. STATUTE OF LIMITATIONS

Statute of limitations defense should be raised by defendants. Argument to

statute of limitations defense see civil rights lawsuit, Appendix B.

WHEREFORE, grant relief.

Sincere1y,

5 Date: 5/22/18

Declaration

: I declare under penalty of perjury that the foregoing is true and correct.

Date: 5/22/18

Signature of petitioner

REASONS FOR GRANTING THE PETITION

The United States Court of Appeals for the Ninth Circuit has entered a decision

that claims raised excessive termof supervised release, denied treatment for

methamphetamine abuse, organic brain defect and denied counsel are so insubstancial as to not warrant further review and has so far departed from the accepted

and unusual course of judicial proceedings. Rule 10(a). The importance of the

case not only to petitioner but to others similarily situated and that adequate

relief cannot be obtained in any other form or any other court. Rule 20.1. Vacate

conviction for prior burglary case numbers ECR1658 and ECR1972. See complaint

Appendix F. The priors are strikes. See trial on priors transcript, Appendix F.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date: May 22, 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.