Petition for Writ of Certiorari — Keith Walter Bullard, Petitioner v. Shane Jackson, Warden

in The

Supreme Court of the tJnit States

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.

F

U.S.

Keith Bullard,

19

Petitioner,

V.

Shane Jadwon,

.

TO

On Petition for a Writ of Certiorari Izu the

Sixth Circuit Court of Appeals

Pirm( FOR WRIT OF CERTIORARI

Keith Bullard

(Petitioner in Pro Per)

E.C. Brooks Correctional Facility

2500 S.Sheridan Dr.

Muskegon, MI. 49444-2665

OFFICEOF

LERK

Statement of Questions Presented ............ ........

Index of Authorities

. . .

iii

. . .

Opinions .........

1,2

Statement of Jurisdiction ...... ....... ...............2

Constitutional and Statutory Provisions . ...........2,3

Statement of the Case . . . . . • ......... ......... ..3,4,5,6

Reasons for Granting Certiorari ..........6,7,8,9,10,11

Conclusion .. ................ ........................12

Appendix A

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Appendix B

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Appendix C

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District Court JUDGMENT.

District Court OPINION AND ORDER.

Sixth Circuit Court of Appeals ORDER.

(i)

Are State's obligated to fund experts and/or

expert related services, to non-psychiatric

experts, in the non-capitol context, and if it

does apply to those situations, what is the

threshold determination to be made, and what

does that consist of?

(ii)

Cases Presented

Ake v. Oklahaua, 470 Us 68 (1985)

..7,8,10,11

.

Bright v. State, 265 Ga. 265 (Ga.1995)

....

..........

Caldwell v. Mississippi, 472 US 320 (1985) .........10

Cawley v. Stricldin, 924 F.2d 640 (11th Cir.1991) ..7

Dunn v. Roberts, 963 F.2d 308 (10th Cir.1992) .......8

Little v. Armontrout, 835 F.2d 1240 (8th Cir.1987)

........... ................................

.7,8,10

. . .

Maness v. Meyers, 419 US 449, 461 (1975) ...........11

Moore v. Kemp, 809 F.2d 702 (11th Cir.1987) ........10

People v. Stone, 195 Mich.App. 600 (1992) ...........

8

Rogers v. State, 1995 Ok.Cr.8 (1995)

.

...............

Scott v. Louisiana, 934 F.2d 631 (5th Cir.1991) .....8

State v. Barnett, 909 S.W.2d 423 (Tenn.1995) ......7,8

State v. Rogers, 313 Ore. 356 (Or.1992) .............8

Taylor v. State, 939 S.W.2d 148 (Tex.1996) ..........7

Terry v. Rees, 985 F.2d 283 (6th Cir.1993) ..........8

Statutes and Curt Rules

28 uSC §1 254

2

..............

..........................

cbnstitutial Provisions

Fifth

..

......

........

Amendment......................

Section 1, Fourteenth Amendment ...................2,3

(iii)

(1)

In The

Supreme zrt of the tkited States

Keith &il]ard,

Petitioner,

V.

Shane Jadscm,

.:.

PETrEm FCR 1IT

Petitioner, Keith Bullard, respectfully

petitions this Honorable Court for a writ of

certiorari to review the judgment of the Sixth

Circuit Court of Appeals.

Opinions Below

Petitioner filed a

delayed application for

leave to appeal. The Michigan Court of Appeals,

June 19, 2013, Docket No. 310854, affirmed

Petitioner's delayed application for leave to

(2)

appeal. See (People v. Bullard, 2013 Mich. App.

Lexis 2616). Petitioner then appealed that decision

to the Michigan Supreme Court, Docket No. 147562,

and on December 23, 2013, that Court denied

Petitioner's application for leave to appeal.

See (People v. Bullard, 495 Mich 913 (2013)).

Petitioner then filed a habeas petition in

the Eastern, Southern, District Court of Michigan,

Case No. 2:14-cv-12252. Judge Denise Page_Hood,

issued an "OPINION AND ORDER DYING THE P1r1T1ON

FOR WRIT OF HABEAS CORPUS, DECLINING 70 ISSUE

A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE

70 APPEAL IN FORMA PAUPERIS" on May 31, 2018.

And, in Case No. 18-1735, the United States Court

of Appeals, For the Sixth Circuit denied Petitioner

certificate of appealability, and therefore never

ruled on his notion for in forma pauperis.

The Sixth Circuit Court of Appeals issued

it's denial of Petition for certificate of

appealability September 19, 2018, and on January

3, 2019, Justice Sotciiiayor granted Petitioner

an extension to, and including February 18, 2019.

Thus, this Court has jurisdiction under 28 USC

1254.

Qxrrwri1AL AN STh1U1Y

ISI MWMVED

The Fifth Amendment to the United States

Constitution provides:

No person shall be held to answer for

a capital or other infanis crime unless

on a presentment of indictment of a

grand jury, except in cases arising

in the land or naval forces, or in the

militia, when in actual service, in

time of war or public danger; nor shall

any person be subject for the same

offense to be trice put in jeopardy

of life limb; nor shall be compelled

in any criminal case to be a witness

against himself, nor be deprived of

life, liberty or property without due

process of law; nor shall private

property be taken for public use without

just cause.

Section 1, of the Fourteenth Amendment to the

United States Constitution provides:

All persons born or naturalized in the

States, and subject to the

United

(3)

jurisdiction thereof, are citizens of

the United States and of the State

wherein they reside. No State shall

make or enforce any law which shall

abridge the privileges or immunities

of citizens of the United States; nor

shall any State deprive any person of

life, liberty or property, without due

process of law; nor deny to any person

within its jurisdiction the equal

protection of the laws.

Petitioner was originally charged with first-

degree criminal sexual conduct (person under the

age of 13) and second-degree criminal sexual

conduct (person under the age of 13). Following

a jury trial, the first count was dismissed by

the court and the jury convicted petitioner of

second-degree criminal sexual conduct.

Brooklyn, the alleged victim, was four years

old at the time of the offense, her mother, Kayla

Schetter, age 23, and Petitioner, age 42, were

in a dating relationship in which they lived

together from April 2009 through November, 2009.

(Tr.6/7/11.

pp.282-284,

291, 327). Petitioner

did not work and watched Brooklyn while her mother

worked milking cows. (Id. at 316-317). Kayla's

mother is Jane Scherret and her aunts are Janice

1iring and Joanne Kern. (Id. at 286-287). Jane

is the mother of Kevin and Kayla. (Id. at 315).

Kayla did laundry for herself and Brooklyn at

her mother's house. (Id. at 304-306, 311).

E*ring S5 teen-age nephew, Kevin, (Jane's son),

and daughter Elizabeth, occasionally baby sat

Brooklyn. (Id. at 314-315 0, 356).

Kayla had to work Thanksgiving week and

planned to have Brooklyn picked up on Wednesday

to stay at Brooklyn's grandmother's house through

(4)

the weekend. (Id. at 292-293). Brooklyn always

slept in her bad. (Id. at 285, 294). On Tuesday,

NovEnber 24, 2009, Kayla had to be at work.

Brooklyn was adamant that Kalya not leave for

work, but Kayla left her with the Petitioner.

Janice Dohring sent a text message to Kayla's

phone, which is left in the apartment when Kayla

went to work, to tell her that she was caning

to pick up Brooklyn. Aunt Janice was at the

apartment to pick up her about 45 to 60 minutes

later. When she arrived she noticed that Brooklyn

was "very nervous,

she was

very scared,

frightened." Janice testified that she noticed

that things in the home were "out of

order."

Brcoklyns bedding was on the couch, that she was

not packed or ready to go, and that she was "very

scared to get near [ the Petitioner]." Petitioner

placed dirty cloths from the bathroom into plastic

bags while Janice got Brooklyn ready to go, without

changing her clothes. Janice placed the plastic

bags of dirty cloths in the trunk of her car and

went to her sister Jane's house so that Jane could

see Brooklyn. (Id. at 296, 319-324). Janice left

the plastic bag of dirty laundry in Jane's utility

roan. (Id. at 324). Jane washed the clothing later

that day and threw out the plastic bag. (Tr. 6/8/11,

pp.415-416). When Kayla returned home, Petitioner

told her that her aunt had picked up Brooklyn

earlier that day instead of Wednesday, as Kayla

had planned. (Tr.6/7/11, p.298).

Brooklyn spent

the night with Janice and

her daughter, Elizabeth thring. Janice testified

that Brooklyn renamed afraid. (Id. at 325-327).

Her

cloths were dirty and she smelled.

Her

underwear appeared dirty and "pee stained." (Id.

at 345-347). She

picked up the cloths that

(5)

Brooklyn had been wearing since leaving the

apartment and placed them in her hamper, where

they remained until the Friday after Thanksgiving

Day. (Id. at 335-336). Brooklyn slept with Janice,

but had difficulty falling asleep, was frightened,

clingy, and incontinent on and off on Wednesday

and throughout Thanksgiving Day and into Friday.

On Friday morning, Janice went to work between

7:00 and 8:00 a, as a nursing assistant. (Id.

at 329-334). Brooklyn was asleep when Janice left

and her daughter (age 13) and nephew Kevin (age

16) remained hare with Brooklyn. (Id. at 334,

Tr. 6/8/11, p.372). Kevin watched "Finding NenO"

with Brooklyn around noon while trying to get

Brooklyn down for a nap. Brooklyn was "whiny,

crying, and scared" and would not let Kevin "leave

her side at all." (Tr.6/8/11, pp.365-366). While

trying to get her to calm down and nap, Brooklyn

told Kevin, "Uncle Kevin, do you know what Keith

did to me...Keith stuck his pee-pee in me." (Id.

at 368). Kevin called his mcxii, Jane Scherret,

who took Brooklyn to the hospital. (Id. at pp.

369, 407, 408).

After leaving the hospital, Jane Scherret

stopped by her sister Janice' s house for Brooklyn's

toys, and a basket of dirty laundry. Janice does

not have a washing machine. The clothes that

Brooklyn had on when she left on Tuesday were

among the items to launder. Jane called and

informed the hospital that she had the clothes.

She was advised to place then in a brown paper

bag and take then to the hospital. (Id. at 410414, 498).

Nurse Pamela Lueke performed an initial

assessment when Brooklyn arrived at the hospital

for evaluation on Friday. She testified that

(6)

Brooklyn did not say much at first, and when asked

why she was there, she "did say she was there

because he hurted (sic) my heart." Lueke testified

that Brooklyn said "he put his pee-pee in there,"

while pointing to her vagina between her legs,

"and that he stopped doing it when her aunt was

caning to pick her up." (Id. at pp.470-474, 490)

A vaginal and rectal smear was obtained by

Brooklyn. (Id. at pp.480-481).

The Michigan State Police crime lab in

Bridgeport conducted DNA tests on the underpants

and procured a DNA sample from Petitioner. (Id.

at 525, 539). Sperm cells were found within the

sample extracted from the underwear. (Id. at 545,

549-550). The IA profile from the skin cell sample

matched Brooklyn's known LA profile, and the

IA profile from the sperm cell sample match

Petitioner's. (Id. at 582-583).

The jury found Petitioner not guilty of firstdegree criminal sexual conduct, penile-vaginal

penetration, but convicted him of second-degree

criminal sexual conduct. Petitioner was sentenced

as a fourth-felony habitual offender, MCL §769.12,

and is currently serving a sentence of 14

30

years incarceration.

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both in the State and

Federal Courts that the trial court violated his

right to a fair trial in denying his notion for

funds to appoint a psychologist in forensic

interviewing to assist him in the preparation

Petitioner argued,

for trial.

The Defense sought a psychologist to testify

in connection with false allegations made by a

(7)

child, and the family

dynamics between

the

Petitioner and the vast majority of witnesses

used against him at trial. The trial judge denied

counsel's notion for funds and found that a

psychologist's testimony as to false allegations

made by child witnesses would not be of assistance

to Petitioner's defense. (Tr.1/10/11, pp.46-47),

although that was in fact the defense theory of

the case.

While this Court has recognized a criminal

defendant' s right to the assistance of an expert

witness in raising an insanity defense, see Ake

V. (klatna, 470 US at 68, 77 (1985), there has

been no Supreme Court precedence to support

Petitioner's claim that he had a Constitutional

right to an expert psychologist in forensic

interviewing, suggestability in children, and

false allegations made by child witnesses. This

Court has not addressed a defendant's entitlement

to a court-appointed expert outside the context

of

to Ake's

application to "non-capital" cases. However, the

majority of courts that have considered this

question have concluded that Ake does apply to

then. See Oiley v. Stricklln, 929 F. 2d 640, (11th

Cir.1991);Little v. Ann'tzwt, 835 F.2d 1240,

an insanity defense in regards

1243 (8th Cir. 1987) ;People v. Stone, 195 Mich.

App. 600 (1992);State v. Barnett, 909 S.W.2d 423,

427 (nn.1995);Taylor v. State, 939 S.W.2d 148,

152 (Tex.Crim.App.1996). Not all courts, however,

are in alignment with this adopted finding.

As to whether Ake applied to non-capital

cases, Petitioner would like to guide this court

to the Tennessee Supreme Court's rationale:

"we agree with the jurisdictions that

have applied the Ake principle in the

non-capital context because the due

(8)

process principle of fundamental fairness

requires that a State which prosecutes

an indigent defendant

assure

the

defendant of a fair opportunity to

present his defense. It is axiomatic

that fairness cannot exist where an

indigent defendant is deprived by poverty

of a meaningful opportunity to defend

when his liberty is at stake. The due

process principle of fundamental fairness

applies to all criminal prosecutions,

and does not rest upon the severity

of the sanction sought or imposed."

Barnett, 909 S.W.2d at 428.

Additionally, the majority of courts have

concluded that Ake extends beyond psychiatric

experts in the insanity defense. See, e.g., Terry

V.

Rees, 985 F.2d 283, 284 (6th

Cir.1993)(pathologist);Dunn v. Roberts, 963 F.2d

308, 313 (10th Cir.1992)(battered-spouse syndrome

expert):Soott v. Iiis4n, 934 F.2d 631, 633

(5th Cir.1991)(ballistics expert);Little

v.

Arnntrout, 835

F.2d

1240, 1243 (8th

Cir. 1987) (hyonotism expert);right V. State, 265

Ga. 265 (Ga.1995)(toxigologist):Crawford v. State,

257 Ga. 681 (Ga.1987)(serologist, psychologist,

survey expert) ;Rogers v. State, 1995 OK CR

8(Okla.Crim.App.1995);State v. Rogers, 313 Ore.

356, 1308, 1315 (Or.1992)(opinion polling expert),

and the list goes on and on.

The gravenan of Petitioner's defense pivoted

on two key components. (1) Due to the devastating

evidence found in the victim's

underwear, which corroborated the allegations,

Petitioner had to counter this evidence by using

an expert that would hypothesize that the sperm

cells were transferred onto the underwear through

sperm cell

contact with another item of clothing while in

that contained Petitioner's semen.

However, once the trial court excluded that

the hamper

(9)

proposed testimony, finding that there was no

evidence that the underwear were commingled with

any other garment, thus finding the testimony

irrelevant, (tr.6/9/2011, pp.608, 611-618),

Petitioner was left with only one other defense.

(2) He had to prove to the jury that the testimony

given was in fact false. Th prove this, Petitioner

sought an expert to show the jury that certain

family members not only had motive to fabricate

the charges against him, but also suggested the

idea of sexual abuse to Brooklyn. The trial court,

however, shot down this defense too. Basically,

the trial court sent the Petitioner up the river

without so much as a paddle. Simply put, the

Petitioner's guilt hinged on the jury's ability

to believe that not only could false memories

be made, but the importance of suggestibility

in assessing the credibility of Brooklyn' s

allegations. An expert in the suggestibility in

children's recollection and the family dynamic

between the Petitioner and Brooklyn' s extended

family was indisensible in Petitioner's defense.

It is blatant there is a significant difference

between simply attacking the prosecution's

witnesses through cross-examination, and attacking

those same witnesses through the testimony of

an expert witness. The simple cross-examination

of the prosecution's witnesses in child molestation

cases too often prove, on there own accord, to

be a futile gesture. In denying this motion too,

the trial court abused its gatekeeper function,

and effectively denied Petitioner "a fair

opportunity to present his defense." Ake, 470

US at 76.

That only leaves one more issue that Ake

left unresolved, which also requires an unified

(10)

scheme—the level and specificity of the threshold

showing a defendant must make to establish

entitlement to expert assistance. Most courts

that have considered the question of whether an

indigent is entitled to public funded appointment

of a non-psychiatric expert have applied the

rationale expressed by this Court in Ake. Reading

Ake and Caidwell. v. Mississii, (472 US 320

(1985)), together require a State to provide

indigent defendants with the "basic tools of an

adequate defense," Ake, 470 Us at 77, and when

the required showing is made, require the court

to appoint an expert accordingly. Due process

and equal protection also require the State to

provide non-psychiatric experts to indigent

defendants when the defendant makes a

particularized showing of the need for assistance

of such experts. See, e.g., Little v. Anintrcit,

835 F.2d 1240, 1245 (8th Cir.1987);Moore v. Keip,

809 F.2d 702, 721 (11th Cir.1987).

In the United States Court of Appeals, the

Eleventh Circuit enunciated in Moore v. Kelp,

809 F.2d 702, 721 (11th Cir.1987), that Ake and

Caidwell only require that a defendant to show

the trial court that there exists a reasonable

probability both that an expert would be of

assistance to the defense, and that the denial

of expert

assistance 'would result in a

fundamentally unfair trial. Id. at 712.

The analysis for whether or not a defendant

has fulfilled this requisite obligation should

be a simple one as there should be equality between

indigent and those who possess the means to protect

their rights by hiring their own experts. Simply

put, an indigent defendant should not have to

disclose to the state information that a

(11)

financially secure defendant would not have to

disclose.

Requiring

an indigent defendant to

prematurely disclose evidence in a hearing where

the state is present encroaches on the privilege

against self-incrimination, which applies at all

stages of a criminal proceeding and "does not

encompass evidence which may lead to

criminal conviction, but includes information

merely

which would furnish a link in the chain of evidence

that could lead to prosecution, as well as evidence

which an individual reasonably believes could

be used against him in a criminal prosecution."

Maness v. Meyers, 419 US 449, 461 (1975).

It is illogical that the trial court can

somehow know

what is best for a defendant's

particular defense. More importantly, it is not

the trial court that must live and die with what

defense is best to take. The trial court r*it the

Petitioner at an unfair advantage in denying the

Petitioner access to a defense expert who would

assist in evaluation, preparation, and presentation

of his defense.

Petitioner was never allowed to present his

defense at trial because he simply could not afford

its ruling in Ake

v. (klalxxna, 470 US 68 (1985) has not established

any precedence, and none of the Circuit Courts'

are consistent in their respective applications

in regards to State funding of experts, and

expert-related services, to no-psychiatric experts

and in the non-capital context, and if it does

apply to those situations, how the threshold

determination is made, and what does it consist

too. This Court, outside of

(12)

of. Therefore, Petitioner humbly prays this

Honorable Court will GRANT certiorari in this

matter and resolve the issues presented herein.

Respectively Submitted,

/5/

Kefth Bullârd #186819

(Petitioner in Pro Per)

Brooks Correctional Facility

2500 South Sheridan Drive

Muskegon Hieghts, MI 49444

Dated: February 18, 2019.