Petition for Writ of Certiorari — Jesus Manuel Moran, Petitioner v. Arizona

18-89

Supnm Ccurt, U.S.

FL ':D

MAR 2 0 2019

IN THE

SUPREME COURT OF THE UNITED STA

OF THE CLERK

PETITIONER

(Your Name)

vs.

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RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

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

PETITION FOR WRIT OF CERTIORARI

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S(Your Name)

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(Address)

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(Phone Number)

TABLE OF CONTENTS

TABLE OF CONTENTS

a

TABE OF CASES

b

LIST OF PARTIES

1

OPINIONS BELOW

2

JURISTICTION

3

QUESTION PRESENTED

4

STATEMENT OF THE CASE

4

REASONS FOR THE WRIT

4

APPLICATION TO THIS CASE

8

CONCLUSION

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APPENDIX

1

ORDER SUPREME COURT

2

ORDER APPEALS COURT

3-4

5

TRANSCRIPT EXCERPT

SUPERIOR COURT LETTER

-a-

TABLE OF AUTHORITIES CITED

CASES

VASQUEZ-v- HILLERY, 106 S Ct. 617 (1996)

4

CARTER -v- JURY COMM'N, 396 U.S 320 (1970)

6

nd

U.S -v- CIAMBRONE, 601 F2d 616 (2 Cir. 79)

7

TUMEY -v- OHIO, 273 U.S 510 (1927)

8

DAVIS -v- GEORGIA, 429 U.S 122 (1976)

8

SHEPPARD -v- MAXWELL, 384 U.S 333 (1966)

8

LIST OF PARTIES

[

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

[ I 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:

0

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

to

[ ] reported at

; or,

[1 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[ ] is unpublished.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

to

[ ] reported at

; or,

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

[] is unpublished.

[-11cr cases from state courts:

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

Appendix \,

to the petition and is

[ ] reported at

; or,

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

[-.'

is unpublished.

The opinion of the

appears at Appendix

'

2-

'

to the petition and is

[ ] reported at

; or,

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

[4-1unpublished.

court

JURISDICTION

[ ] For cases from federal courts:

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

was

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

[1 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

[ ] 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).

[/I/

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

[ ] 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).

3

QUESTION PRESENTED

It is a violation of the Sixth and Fourteenth Amendments to utilize the

Arizona Supreme Court rules and Arizona Code of Judicial Administration to

destroy Grand Jury records in a criminal case where the prosecutor has a

well documented history of manufacturing crimes. Petitioner asks this court

to exercise its supervisory powers and treat this as a habeas filed directly with

this court.

STATEMENT OF THE CASE

August 2, 2018 the Respondent judge advised the Petitioner that the Grand

Jury records have been destroyed pursuant to the Arizona Code of Judicial

Administration 3-402 (23).

At the time when the Grand Jury was selected, Petitioner was unaware that

the prosecutor has had a history of misconduct. When he became aware he filed

a request for the records and was told that they were destroyed.

REASONS FOR THE WRIT

16 Years after the conviction in Daniel Vasquez, Warden, Petitioner -vBooker T. Hillery, Jr. 106 S Ct. 617. In 1962, a Grand Jury indicted

respondent for murder. Before trial in California Superior Court, the judge

refused to quash the indictment on the alleged ground that it had been

issued by a Grand Jury from which

ME

blacks had been systematically excluded. Respondent was subsequently convicted of

first-degree murder. After unsuccessfully pursuing appeals and collateral relief in the

state courts for the next 16 years, respondent filed a habeas corpus petition in Federal

District Court, again raising his equal protection challenge to the grand jury that indicted

him. The District Court upheld the challenge, and the Court of Appeals affirmed.

Habeas corpus petition was filed challenging petitioner's state court conviction for

murder on the grounds that he was denied equal protection of the laws because blacks

were systematically excluded from the grand jury that indicted him. The United States

District Court for the Eastern District of California, Lawrence K. Kariton, Chief Judge,

563 F.Supp. 1228, upheld the challenge, and on appeal, the Court of Appeals, 733 F.2d

644, affirmed. Certiorari was granted. The Supreme Court, Justice Marshall, held that

conviction could not be understood to cure taint attributable to grand jury selected on

basis of race.

The longstanding rule requiring reversal of the conviction of a defendant indicted

by a grand jury from which members of his own race were systematically excluded will

not be abandoned in this case on the theory that discrimination in the grand jury

amounted to harmless error and that respondent's conviction after a fair trial purged any

taint attributable to the grand jury process. Intentional discrimination in the selection of

grand jurors is a grave constitutional trespass, possible only under color of state authority,

and wholly within the State's power to prevent. Even if the grand jury's determination of

probable cause to believe that a defendant has committed a crime is confirmed in

57

hindsight by a conviction on the indicted offense, that confirmation does not suggest that

discrimination did not impermissibly infect the framing of the indictment and,

consequently, the nature or existence of the proceedings to come. And just as a

conviction is void under the Equal Protection Clause if the prosecutor deliberately

charged the defendant on account of his race, a conviction cannot be understood to cure

the taint attributable to a grand jury selected on the basis of race.

The Court stated

Federal law provides a criminal prohibition against

discrimination in the selection of grand jurors, 18 U.S.C. § 243, but according to statistics

compiled by the Administrative Office of the United States Courts, that section has not

been the basis for a single prosecution in the past nine years. With respect to prior years,

for which precise information is not available, we have been unable to find evidence of

any prosecution or conviction under the statute in the last century. The other putative

remedy for grand jury discrimination is 42 U.S.C. § 1983, which, in theory, allows

redress for blacks who have been excluded from grand jury service. See Carter v. Jury

Comrn'n of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). These

suits are also extremely rare, undoubtedly because the potential plaintiffs, eligible blacks

not called for grand jury service, are often without knowledge of the discriminatory

practices and without incentive to launch costly legal battles to stop them. Yet intentional

discrimination in the selection of grand jurors is a grave constitutional trespass, possible

only under color of state authority, and wholly within the power of the State to prevent.

Thus, the remedy we have embraced for over a century—the only effective remedy for

2

this violation —is not disproportionate to the evil that it seeks to deter. If grand jury

discrimination becomes a thing of the past, no conviction will ever again be lost on

account of it.

It went on to hold that nor are we persuaded that discrimination in the grand jury

has no effect on the fairness of the criminal trials that result from that grand jury's

actions. The grand jury does not determine only that probable cause exists to believe that

a defendant committed a crime, or that it does not. In the hands of the grand jury lies the

power to charge a greater offense or a lesser offense; numerous counts or a single count;

and perhaps most significant of all, a capital offense or a noncapital offense—all on the

basis of the same facts. Moreover, "[t]he grand jury is not bound to indict in every case

where a conviction can be obtained." United States v. Ciambrone, 601 F.2d 616, 629

(CA2 1979) (Friendly, J., dissenting). Thus, even if a grand jury's determination of

probable cause is confirmed in hindsight by a conviction on the indicted offense, that

confirmation in no way suggests that the discrimination did not impermissibly infect the

framing of the indictment and, consequently, the nature or very existence of the

proceedings to come.

When constitutional error calls into question the objectivity of those charged with

bringing a defendant to judgment, a reviewing court can neither indulge a presumption of

regularity nor evaluate the resulting harm. Accordingly, when the trial judge is

discovered to have had some basis for rendering a biased judgment, his actual

motivations are hidden from review, and we must presume that the process was impaired.

See Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445. 71 L.Ed. 749 (1927) (reversal

required when judge has financial interest in conviction, despite lack of indication that

bias influenced decisions). Similarly, when a petit jury has been selected upon improper

criteria or has been exposed to prejudicial publicity, we have required reversal of the

conviction because the effect of the violation cannot be ascertained. See Davis v.

Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976) (per curiam): Sheppard v.

Maxwell, 384 U.S. 333, 351-352. 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966). Like these

fundamental flaws, which never have been thought harmless, discrimination in the grand

jury undermines the structural integrity of the criminal tribunal itself, and is not amenable

to harmless-error review.

APPLICATION TO THIS CASE

Unlike Vasquez in this case the court used the Rules of this court to destroy the

records thereby preventing petitioner from challenging the irregularities. Petitioner does

not believe the intent of these rules were/are to prevent challenges to grand jury

irregularities.

CONCLUSION

Review should be granted with instructions to reconstruct the records. Without the

records Petitioner is unable to challenge the grand jury irregularities. Petitioner asks this

court to exercise its supervisory powers and treat this as a habeas filed directly with this

court.

THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE GRANTED.

RESPECTFULLY SUBMITTED,THIS 18 DAY OF MARCH 2019

11

Jesus Manuel Moran

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