Petition for Writ of Certiorari — Efrain J. Rosa, Petitioner v. R. L. Rhodes, Warden

No.

IN THE

SUPREME COURT OF THE UNITED STATES

EFRAIN J. ROSA

— PETITIONER

(Your Name)

Supreme Court, U.S.

FILED

VS.

DEC 0 3 2019

ACTING WARDEN AT USP TUCSON- RF.QPONnFNT7.cfo OFFICE OF THE CLERK

ON PETITION FOR A WRIT OF CERTIORARI TO

Ninth Circuit court of Appeals

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

PETITION FOR WRIT OF CERTIORARI

F,train ,T . Rosa

(Your Name)

United States Penitentiary Tucson

P.0. Box 24550

(Address)

Tucson, Arizona 85734-4550

(City, State, Zip Code)

(Phone Number)

QUESTIONS PRESENTED

I.

When the Government affirms that all the requisite documents

ation

under the rule of Brady v. Maryland, 373 US 83 (1963)

will be provided, but then suppresses documentation that is

favorable to the defense and material to the defendant's

guilt or punishment, has a violation of DUE PROCESS of the

Federal Constitution's FIFTH AMENDMENT accured requiring

reversal of the conviction?

II.

When a conviction arises based upon a record lacking any

evidence as to the crucial elements of the offense, due to

the Government's suppression of documentation proving the

evidence was lacking, has a denial of DUE PROCESS in

violation of the Federal Constitution's FIFTH AMENDMENT

accured requiring reversal of the conviction?

III. When the police charged with an investigation acts in such a

way as to shock the conscience destroying the fairness,

integrity, and honor of the operation of the criminal justice

system by replacing seized property with another item and

then falsely claim to have found incriminating evidence to

secure a conviction and then suppress their own documentation

proving this fact, has a crucial denial of DUE PROCESS in

violation of the Federal Constitution's FIFTH AMENDMENT

accured, requiring reversal of the conviction?

LIST OF PARTIES

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

[ ] 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:

RELATED CASES

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

4

REASONS FOR GRANTING THE WRIT

JL9

CONCLUSION

24

INDEX TO APPENDICES

APPENDIX A

Rosa v. Rhodes, No.: 19-15637 (9th Cir. 2019)

APPENDIX B

Rosa v. Baltazar, No.: cv-18-438-TUC-CKJ (DTF) (Tucson Dist. Feb.

APPENDIX C

14, 2019)

Rosa v. Baltazar, No.: cv-18-438-TUC-CKJ (DTF) (Tucson Dist. March

6, 2019)

APPENDIX D

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Brady v. Maryland, 373 US 83 (1963)

8, 10, 19, 24

Cregory v. Chicago, 394 US 111 (1969)

14, 22

Harris v. United States, 404 US 1232 (1971)

14, 22

Kyles v. Whitley, 514 US 419 (1995)

10

McDonough v. Smith, 139 S. Ct. 2149 (2019)

22

Melendez-Diaz v. Massachusetts, 557 US 305 (2009)

17

Moran v. Burbine, 455 US 412 (1986)

17

Sherman v. United States, 356 US 369 (1958)

23

Smith v. Cain, 565 US 73 (2012)

10

Strickler v. Green, 527 US 263 (1990)

7, 10

Turner v. United States, 198 Lv Ed. 2d 443 (2017)

10

United States v. Laursen, 847 F.3d 1026 (9th Cir. 2017)

13

United States v. Rosa, 5:07-cr-443-NAM (N.D.N.Y.)

4

United States v. Rosa, 626 F.3d 56 (2d Cir. 2010)

5

United States v. Rosa, 634 F.3d 639 (2d Cir. 2011)

5

United States v. Russell, 411 US 423 (1973)

23

Rosa v. Baltazar, 4:18-cv-438-CKJ-DTF (Tucson Dist. 2018)‘5, App B

Rosa v. Rhodes, No.: 19-15637 (9th Cir. 2019)

6, App A

Rosa v. [Warden at USP Tucson], 4:16-cv-CKJ-JR (Tucson Dist.)

5

Rosa v. United States, 132 S. Ct. 1632 (2012)

5

Rosa v. United States, 758 F.3d 856 (2d), cert, denied

136 S. Ct. 270 (2015)

5

STATUTES

18 USCS 2251(a)

18 USCS 2252A(c)(2)(A)

18 USCS 2252(a)(5)(B)

18 USCS 1512(b)(1)

28 USCS 2241

28 USCS 2255

4, 13, 14, 22,l*lcu

4 j /*■/<*

4, Me.

4 J Wck

5, 19

5, 19, 20

OTHER

USA Today Weekend Ed., Oct. 18-20, 2019 la, 4a

25

TABLE OF ATTACHMENTS

ATTACHMENT

PAGE NUMBER

Search Warrant Executed on September 27, 2007

ATT.

EVIDENCE/PROPERTY REPORT (Newly Discovered)

ATT. 2-16

1

/

First Search Warrant Inventory (Hand-written)

ATT. 17-19

Second Search Warrant Inventory (Typed)

ATT. 20-21

Filed Forensic Report

ATT. 22

Letter to U.S. Attorney's Office Requesting

Record or Documents

ATT. 25

Reply from the U.S. Attorney's Office

ATT. 26 -

Oswego County Sheriff B. Blake's Federal Affidavit

ATT. 29

6/5

TeJety

BJ

^

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r\rr. si

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

lx] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix _A

the petition and is

to

[ ] reported at

; or,

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

[x] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

B

[ ] 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

[ ] reported at

; or,

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

[ ] is unpublished.

The opinion of the_

appears at Appendix

court

to the petition and is

[ ] reported at

; or,

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

[ ] is unpublished.

1.

to

JURISDICTION

^ For cases from federal courts:

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

was September 13, 2019

IxJ 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

[ ] 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).

[ ] 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_______

[ ] 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____

(date) on

(date) in

Application No.__ A

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The FIFTH Amendment to the United States Constitution |J 1791J

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a prentment or indictment of a Grand

Jury, except in cases arising in the land or navel 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 offence to be

twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself; nor be deprived

of life, liberty, or property, without due process of law; nor

shall private property be taken for public use, without just

compensation.

The SIXTH Amendment to the United States Constitution [1791]

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law, and

to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory,

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

Assistance of Counsel for his defence.

STATEMENT OF THE CASE

BACKGROUND:

On September 27

2007, members of the Oswego County, New

York, Sheriff's Office executed a search warrant at Petitioner's

residence for computers, computer equipment, firearms, and "notes

or records which would tend to identify criminal conduct". The

warrant, however, never identified the criminal conduct, nor was

there any incorporated documents to identify the criminal conduct.

(ATT. 1) That same day Petitioner was charged with 6 counts in the

state court, these charges were dismissed 4-years later when

Petitioner refused to drop his demand for a trial

since the

states own experts had confirmed there was no evidence to convict

Petitioner on in the state court.

On March 13, 2008, a grand jury in the Northern District of

New York (herein after NDNY) returned a 19 count indictment

charging Petitioner with 3 counts of Producing Child Pornography

18 USCS 2251(a); 1 count Witness Tampering 18 USCS 1512(b)(1); 2

counts Receiving and Attempting to Receive Child Pornography 18

USCS 2252A(a)(2)(A); and 12 counts of Possessing Child Pornography

18 USCS 2252(a)(5)(B). 5:07-cr-443-NAM

On October 9, 2008, Petitioner was deceived into accepting a

guilty plea to 3 counts of 18 USCS 2251(a) and 1 count of 18 USCS

1512(b)(1), with a promise of 15 to 30 years.

On February 12, 2009, Petitioner was sentenced to 120-years.

(4)

Petitioner appealed in the Second Circuit court of appeals.

The couxttaffirmed the denial to suppress the evidence obtained

under the search warrant

unbeknownst to Petitioner there was no

evidence to suppress, granting the officer the Leon Good Faith

exemption. United States v. Rosa, 626 F.3d 56 (2d Cir. 2010),

then on March 8, 2011, denied Petitioner's motion for rehearing,

with one dissent. 634 F.3d 639 (2d Cir. 2011).

On February 27, 2012, this Court denied Petitioner's motion

for a writ of cert., Rosa v. United States, 132 S. Ct. 1632 (2012)

on May 14, 2012 then denied Petitioner's motion for rehearing.

On May 13, 2013

Petitioner filed a motion to vacate the

conviction pursuant to 28 USCS 2255. On March 7, 2014, the NDNY

denied the motion as time barred. Rosa v. United States, 758 F.3d

856 (2d)

and cert, denied 136 S. Ct. 270 (2015).

On October 27, 2015, Petitioner filed for a successive 2255

motion. On January 14, 2016 the Second Circuit denied the motion.

On April 11, 2016, a 28 USCS 2241 motion was filed with the

Tucson Arizona District court and was denied. 4:16-cv-3-CKJ-JR

In Septmeber 2017, Petitioner recieved unsollicited, a copy

of the Oswego County New York Sheriff's Departments Evidence/

Property Report, newly discovered evidence, (ATT. 2-16), Brady

material, suppressed by prosecution and law enforcement, u«

(5)

uneqiiivically proving there never was any child pornography

discovered in the case and that the law enforcment charged with

the investigation

had replaced the seized Compaq model EVO

laptop serial number pl06x420bcl2xol, the same laptop they falsly

claimed to have discovered child pornography on, with another

Compaq laptop, one with no model or serial number. (Compare ATT.

17 and 20 with 8)

On August 29, 2018, Petitioner filed a motion under 28 USCS

2241 with the Tucson District court

4:18-cv-438-CKJ_DTF,

challenging Petitioner's conviction as violating Due Process

since it was obtained with a total lack of evidence, Petitioner's

Due Process had been violated by the prosecution's withholding of

Brady material, and that Petitioner was actually and factually not

guilty of the crime convicted.

On February 14, 2019, the Tucson District court denied the

motion

On April 4, 2019, a motion for a certificate of appealability

was filed with the Ninth Circuit. Rosa v. Rhodes, No. 19-15637.

On September 13, 2019, the Ninth Circuit denied the motion.

(Appendix A.)

This motion follows.

(6)

FACTS:

After Petitioner was indicted in the NDNY

the United States

Attorney's Office affirmatively stated that all Brady material

had been given to the defense and that any newly discovered Bhddy

material will be provided in a timely manner to be used. Based irp

upop this affirmation

Petitioner had no reason to believe that ...

any Brady material had been suppressed or would be suppressed.

Stickler v. Green, 527 US 263, 287 (1990)

Upon discovery of the facts in the newly discovered Evidence/

Property Report, Petitioner has made every available attempt to it

have his conviction overturned. The facts being that the Prosecu^

tion did not have any evidence to convict Petitioner, the

investigators tampered with the seized property and replaced the

seized property with another, the prosecution withheld this

information from the defence for over 9-years after his conviction.

It is clearly plain that this newly discovered evidence was

not made available for the defence to utilize before the signing

of the plea deal on October 9, 2008, the sentencing on February

12, 2009, or the first 2255 motion on May 13, 2013.

The last entry in the newly discovered Evidence/Property

Report is June 16, 2010, when items were removed and released

to an Inv. B. Blake for the FBI. (ATT. 16).

(7)

I. WHEN THE GOVERNMENT AFFIRMS THAT ALL THE REQUISITE

DOCUMENTATION, UNDER THE RULE OF BRADY V. MARYLAND

373 US

83 (1963) WILL BE PROVIDED, BUT THEN SUPPRESSES DOCUMENTATION

THAT IS FAVORABLE TO THE DEFENSE AND MATERIAL TO THE

DEFENDANT'S GUILT OR PUNISHMENT, HAS A VIOLATION OF DUE PROCESS

OF THE FEDERAL CONSTITUTION'S FIFTH AMENDMENT ACCURED REQUIRING

REVERSAL OF THE CONVICTION?

Petitioner was arrested September 27, 2007, after the local

sheriff's executed a search warrant (ATT.il) for computers,

electronic media, firearms, and notes or records "which would tend

to identify criminal conduct". During the execution of the warrant

police seized several desktop computers, hard-drives, two laptop

computers. On the seizure lists (ATT. 17-19, 20-21) each computer

is identified by its unique make, model, and serial number, even ,

the hard-drives are identified as such. Within four (4) days of

the seizure of the items, members of the sheriff's office were

ordered to secure the "items in accordance with their standard

operating procedure" (ATT. 21) Only thirty-one (31) of the seized

items that day were secured, but none of the computers, cameras,

or other electronic media was secured. While the officer claims

to have been conducting a forensic exam on the seized media from

"September 27th through December 18th, 2007" (ATT. 22) it was not

until January:. 04, 2008 that evrything had been secured. (ATT. .13)

At no time was there ever any images of child pornography

secured or entered in the the Evidence/Propert Report. (ATT. 2-16)

(8)

Further there no evidence that the seized items which the officer

claims to have been conducting a forensic exam on were ever

stored or removed from a secure storage during this time. While

the officer claims to have discovered alleged "photographic and

video files" "which would be considered child pornography" (ATT.

23) these mysterious photographic and video files along with the

"DVD labeled Videos" were never secured in the evidence locker or

entered into the Evidence/Property Report. There is no evidence

these even existed.

This brings to question the fact that while a Compaq model

EVO laptop serial number pl06x420bcl2xol along with six (6)

specific hard-drives identified by their unique serial numbers

are listed as being seized, these specific items were also never

secured in the evidence lcoker or recorded on the Evidence/

Property Report. Though there is a Compaq laptop and six harddrives listed as stored in the evidence locker this is not the

original Compaq model EVO laptop serial number pl06x420bcl2xol

or six (6) hard-drives seized one September 27, 2007. This also

ignores the fact that it is unknown what DVDs, floppy discs or

zip disc were seized, secured, or examined as the officer merely

listed these items as "numerous" and "various". (ATT. 18,21,22,12)

This information was suppressed by the prosecution for nearly

ten (10) years after the plea offer and sentencing, even though

the prosecution affirmed that all Brady material would be provided

to the defense early in the proceedings. Petitioner relied upon

(9)

the affirmation by the Government and did not seek additional

documentation.

This information and documentation, if made available to

the defense prior to the plea offer, it is clear the plea offer

would never have been accepted and defense would have demanded a

trial and no less. The Government withheld and suppressed this

material documentation in violation of Brady v. Maryland, 373 US

83 (1963), totally disregarding their affirmation that all Brady

material would be provided. This Court in Strickler v. Green, 527

US 263, 287 (1999), stated as much, "Given that representation

[the Petitioner] had no basis for believing the [government] had

failed to comply with Brady."

"In Brady v. Maryland, 373 US 83 (1963), this Court held

that the Government violated the Constitution's Due Process Clause

if it withholds evidence that is favorable to the defense and

material to the defendant's guilt or punishment.

Smith v. Cain,

565 US 73, 75 (2012)." Turner v. United States, 198 L. Ed. 2d 443

446 (2017). This extends to any "favorable evidence known to

others acting on the government's behalf in the case, including

the police." Kyles v. Whitley, 514 US 419, 437 (1995).

While the Ninth Circuit in their denial for a certificate of

appealability stated that "appellant has not shown that 'jurist

of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that

(10)

jurist of reason would find it debatable whether the district

court was correct in its procedural ruling", is plainly incorrect,

Due Process is a Constitutional guarantee and it is clear that

Petitioner's due process has clearly been denied in this case.

(See Appendix A)

(U)

II. WHEN A CONVICTION ARISES BASED UPON A RECORD LACKING ANY

EVIDENCE AS TO THE CRUCIAL ELEMNETS OF THE OFFENSE, DUE TO

THE GOVERNMENT'S SUPPRESSION OF DOCUMENTATION- PROVING THE

EVIDENCE WAS LACKING, HAS A DENIAL OF DUE PROCEES IN

VIOLATION OF THE FEDERAL CONSTITUTION'S FIFTH AMENMENT

ACCURED REQUIRING REVERSAL OF THE CONVICTION?

On Septmeber 27, 2007, member sof the Oswego County

York

New

Sheriff's Office executed a search warrant at Petitioner's

residence seizing computers, laptops,a firearm, electronic media,

etc... During the execution of the search warrant a Compaq model

EVO laptop serial number pl06x420bcl2xol, six hard-drives of

various makes, models, and serial numbers, along with "Numerous

Compact disc" (ATT.

17-19, 20-21) were allegedly seized, and

forensically examined, were "photgraphic and video files" were

allegedly recovered "that would be considered child pornography"

(ATT. 23-24)

It is vital to bring this Court's attention to the fact

that the Compaq model EVO serial number

pl06x420bcl2xol, the

Fijitsu model MPE3136AT hard-drive serial number 30KTT401046595

the alleged "photgraphic and video files" (ATT. 23-24) and the

mysterious "DVD labeled Videos" are all absent from the

Evidence/Propert Report (ATT. 2-16) and it is evident that these

1 item were never secured in the first place in any evidence locker.

However, it was these items are what formed the the basis for the

conviction and provided the crucial elements for the offense

(12)

charged and convicted, yet are missing.

While waiting for the Ninth Circuit to reply to the motion

for a certificate of appealability or appeal, the U.S. Dept, of

Justice, after two (2) years, replied to the request for any and

all records "to the chain of custody of all items and evidence,

i.e. computers, hard drives and all related items secured in the

case". (ATT. 25) Amazingly the "United States Attorney's Office

for the Northern District of New York has located no records

regarding the [] specific subjec’t(s). After an extensive search,

the records which [Petitioner] requested cannot be located."

(ATT. 26)

It cannot be any clearer, Petitioner's conviction is totally

devoid of any evidentiary support. Petitioner i£ not guilty of the

crimes charged.

For a conviction under 18 USGS 2251(a) to stand there must

have been a "visual depiction .produced". United States v. Laursen,

847 F?3d 1026, 1032 (9th Cir. 2017). Congress in its construction'

of 18 USCS 2251(a) mandates that there must be photographic

and/or video files produced using items that had at one time

traveled in interstate commerce. While the computers, elctronic

storage media, and the cameras seized did at one time travel in

interstate commerse, production of child pornography still

requires at least one photograph or video, and in this case there

is not one photograph or video.

(13)

As this Court so plainly stated in Harris v. United States,

404 US 1232, 1233 (1971), "It is beyond question, of course, that

a conviction based on a record lacking any relevant evidence as

to a crucial element of the offense charged would violate due

process." This follows the decision in Gregory v. Chicago, 394

US 111, 112 (1969), "Under the principle first established in

Thompson v. City of Louisville, 362 US 199 (1960), convictions

so totally devoid of evidentiary support violate due process".

Due process is a Constitutional Guarantee under the Fifth

Amendment, making the decision from the Ninth Circuit incorrect.

Petitioner has stated a valid claim of a denial of a

constitutional right, and based upon the fact that the newly

discovered evidence did'not come to light untill September 2017

years after Petitioner had appealed and filed his first 2255

-

motion, jurist of reason would have found the district court was

i

incorrect in its procedural ruling.

It cannot be any more‘clear, there never was any images of

child pornography discovered in this case to support a conviction

under 18 USCS 2251(a), as such the conviction is totaly devoid

of any evidentiary support. A fact suppressed by the U.S. Attorney

Office for the Northern District of New York and the investigating

law enforcement agency, the Oswego County, New York, Sheriff's

Department.

This violation requires reversal.

(14)

As 18 USCS 2251(a) reads; Any person who employs, uses, pers­

uades. induces, entices, or coerces any minor to engage in • . . any

sexually, explicit conduct for the purpose of producing any visual

depiction of such conduct .,. shall be punished as provided under

subsection (e), if such person knows or has reason to know that

such visual depiction wil be transported or transmitted ... if

that visual depiction was produced ... or if such visual depiction

has actually been transported

The plain reading of this statute requires a visual depiction

to have been produced and that the person who produced the

visual depiction to know it will be transported or ith was actuallly

transported. Without a visual depiction there cannot be a convict­

ion. The same goes for 18 USCS 2252(e)(2)(A) and 18 USCS 2252(a)

(5)(B). They all require

an image or visual depiction of actual-

child pornography, with any visual depiction or image there is

no evidence to convict a person.

Further 18 USCS 1512(b)(1) , not only requires the use of

"intimidation, threatens or corruptly persuad[ingl another person,

or attempting] to do so, or engag[ing] in misleading conduct

toward another person, with intent to influence, delay, or prevent

the testimony of any person" it requires to do so with the intent

to do "in an official proceeding".

Not only is Petitioner not guilty of the crime of producing

child pornography, because there never was any visual depiction,

Petitioner is not guilty of any of the other crimes accussed of.

Again there was never any visual depiction of child pornography

disocovered in this case and the proceeding was not an official

proceeding in which testimony was influenced in, it was a state

proceeding which does not fall under "an official proceeding".

Petitioner in not guilty, and the violations require reversal.

(14a)

III. WHEN THE POLICE CHARGED WITH AN INVESTIGATION ACTS IN SUCH

A WAY AS TO SHOCK THE CONSCIENCE DESTROYING THE FAIRNESS,

INTEGRITY, AND HONOR OF THE OPERATION OF THE CRIMINAL JUSTICE

SYSTEM BY REPLACING SEIZED PROPERTY WITH ANOTHER ITEM AND

THEN FALSELY CLAIM TO HAVE FOUND INCRIMINATING EVIDENCE TO

SECURE A CONVICTION AND THEN SUPPRESS THEIR OWN DOCUMENTATION

PROVING THIS FACT, HAS A CRUCIAL DENIAL OF DUE PROCESS IN

VIOLATION OF THE FEDERAL CONSTITUTION'S FIFTH AMENDMENT

ACCURED, REQUIRING REVERSAL OF THE CONVICTION?

On September 27, 2007

the Oswego County, New York, Sheriff's

executed a search warrant at Petitioner's residence seizing among

other items a Compaq model EVO laptop serial number pl06x420bcl2xol

and a Fijitsu hard-drive model MPE3136AT serial number

30ktt401046595. Then during an alleged forensic examination of

these items, the same office who conducted the search, claims to

have discovered "photographic

and video files" wich-'"would be

considered child pornography". (ATT. 23-24) The officer claims

his computer forensic examination was conducted from""September

27, 2007 through December 18, 2007" (ATT. 22) Other than this

unsigned and undated forensic report there is no evidence that a

forensic examination was actually conducted, even the Evidence/

Property Report uterly fails to show the items ever being removed

for a forensic examination.

Before the end of September 2007, a Magistrate had ordered

the seized itmes secured "in accordance with their standard

(15)

operating procedures arid pursuant to CPL section 690.55." (ATT. 21)

On October 3, 2007, a member of the sheriff's office,

identified in the Evidence/Property Report as B.J. Blake, gave to

L.J. Totman a generic Compaq laptop with no^model or serial

number for storage in the evidence locker and entry in the

Evidence/Property Report. On June 16, 2010, an R. Pitcher

removed the generic Compaq laptop and gave it back to B. Blake.

(ATT. 8, 16) This clearly was not the same Compaq laptop model

EVO serial number pl06x420bcl2xol seized on September .'27, 2007.

The same goes for the Fijitsu hard-drive model MPE3136AT

•

serial number 30KTT401046595, a total of six (6) hard-drives

are listed as being seized by B. Blake, each with unique and

identifiable make, model, and serial numbers, however, again

B.J. Blake secured six^generic hard-drives with no make, model,

or seriaj. numbers in the evidence locker on December 31, 2007,

and on January 4, 2008. (ATT. 17-19, 20, 11-12, 15) One must

ask himself, where did these generic hard-drives and generic

Compaq laptop come from if not the sheriff's own stock and

supply.

This is a unique circumstance, one in which Petitioner has

not been able to find happening in any other case in the .'district

courts

the courts of appeals, or this Court's own cases.

This is not simply a bald asertion unsupported, but quite the

opposit. These allegations are one hundred persent supported by

(16)

the Government's own documents. Documentation, that nevertheless,

was suppressed by the Government and law enforcement until

anonymously mailed to Petitioner at the Institution through

the regular prison mail with no indication of the sender or the

date it was mailed.

Being there is no published case law pertaining to such a

situation, this Court should provide guidance in this case. Every

court that Petitioner had addressed this issue in has glossed

over the claim with no response.

The actions of the Oswego County, New York, Sheriff's

Department in this case should shock the conscience of any reason­

able person, as the law enforcement in this case so clearly

trampled on the "fairness, integrity, and honor in the operation

of the criminal justice system", which Due Process requires.

Moran v. Burbine, 455 US 412, 467 (.1986).

"It is the obligation of the prosecution to establish the

chain of custody ... that is to establish the identity and

integrity of physical evidence by tracing its continuous

whereabouts." Melendez-Diaz v. Massachusetts, 557 US 305, 33536 (2009). The prosecutions own documentation in this case make

that obligation an impossibility in this case. This case even

transends into the Sixth Amendment to the U.S. Constitution which

provides that, "in all criminal prosecutions the accused shall

enjoy the right ... to be confronted with the witnesses against

(17)

him." The witnesses in this case, the alleged photographs and

video files, never existed.

An investigating agency, such as law enforcement, cannot be

permitted to ever again replace seized items with items of their

own and then falsely claim to have found evidence on those items

in order to obtain a conviction.

This conviction cannot stand and must be vacated.

(18)

i

REASONS FOR GRANTING THE PETITION

The Tucson Arizona District court has decided an important

federal question in a way that has so far departed from the

accepted and usual course of judicial proceedings in a way that

conflicts with relevant decisions of this Court, calling for an

exercise of this Court's supervisory power. The Ninth Circuit

court of appeals has declined to issue a certificate of appealability on the issues presented, falsely claiming a lack of a

denial of a constitutional right. On February 14, 2019, after

filing a motion under 28 USCS 2241 in the Tucson District court,

bringing to light newly discovered evidence that; (1) clearly

proves a total lack of evidence for the conviction; (2) was

provided to Petitioner in September 2017; (3) has a last entry

date of June 16, 2010; (4) could not have been discovered even

with due dilligence as it was suppressed by law enforcement; (5)

was required to be provided to the defense under the rule of

Brady v. Maryland, 373 US 83 (1963); (6)>/was promised by the

prosecution to have been provided under the rules of Brady and

Giglio, the Tucson District court denied relief under 28 USCS

2241. In denying relief the Tucson District court claimed that,

"Even if true" that Petitioner is actually innocent of his

convictions, he has not shown that he lacked an unobstructed

procedural shot to pursue his claims and "that the legal basis

for his claims did not arise until after he had exhausted his

first 2255 motion."

This claim by the Tucson District court ignores the facts

presented, as well as the fact that; (1) Petitioner is a Pro Se

(19)

litigant with no legal training and that the pleading was to be

liberally construed; (2) Petitioner did show that he lacked an

unobstructed procedural shot to pursue his claims, as the legal

basis for the claim did not arise until after he had exhausted

his direct appeal and first 2255 motion; and (3)’it was on

March 6, 2014 the trial court denied the first 2255 motion while

the newly discovered evidence (EVIDENCE/PROPERTY REPORT) did not

come to light until September 2017, 3-years later.

Petitioner, however, did not stop with that decision, being

a Pro Se litigant, Petitioner filed a motion for rehearing

showing how the court was incorrect in their ruling. Petitioner

attempted to prove; (1) the newly discovered evidence did not come

to light until Septmber 2017, 3-years after the denial of the

first 2255 motion; (2) the newly discovered evidence shows a total

lack of evidence for a conviction; (3) the law enforcement agency

charged with the seizure, storage, and forensic examination of the

seized items tampered with the seized items by replacing certain

items with ones from their own supply; and (4) how-all of this

proves the police falsely claimed to have had evidence for a

conviction. The court denied the motion on March 6, 2019.

Petitioner then filed for a Certificate of Appealabilty with

the Ninth Circuit court of appeals, and was denied on September

13, 2019. The court failed to see the Brady claim and the denial

of Due Process as a denial of a Constitutional right and that

Petitioner did show "that jurist of reason would find it debateab

le whether the district court was correct."

(20)

Petitioner, while Pro Se and in artful in his pleadings,

is at a loss to be any plainer. On September 27, 2007, the

Oswego County, New York, Sheriffs Department executed a general

warrant for items "which would tend to identify criminal conduct."

The affiant of the warrant swore that he "was responsible for

identifying and collecting the evidence and items to be seized

within the scope of the warrant". It would have been very

difficult to have not noticed the warrant was for any evidence of

any criminal conduct without limit. The Second Circuit, however,

claimed the officer had good faith in believing the warrant valid.

This Court denied certiorari on the issue. Finally in September

2017

Petitioner is provided in the until mail a copy of the

Sheriff's EVIDENCE/PROPERTY REPORT, with no indication of the

sender.or the date mailed. Petitioner had believed that all

documentation including all Brady material had been provided as

the Assistant U.S. Attorney on the case had affirmed she would

provide all requisite Brady and Giglio material early in the

proceedings. After receiving the EVIDENCE/PROPERTY REPORT,

Petitioner noticed that not all the property seized on

September 27, 2007,-had been secured until 6-days to over three

months later. Leading to the logical conclusion that these items

remianed unsecured, susceptable to tampering and replacement. It

was then noticed that the Compaq model EVOPlaptop serial number

pl06x420bcl2xol on which the same office claimed to have discover

ed evidence was missing, and never secured, and had been replaced

with another Compaq laptop, one with no model or serial number.

This was strange since every other computer was secured and logged

(21)

with its unique identifiable make, model, and serial numbers.

Then upon further inspection it was noticed that the six harddrives seized on September 27, 2007 and listed on the seizure

sheet

each identified by its unique make, model, and serial

numbers were missing from the report, replaced by six unknown

hard-drives. Then there is the issue of the "numerous" CDs,

floppy disc, and zip disc, these were never individually

indified and there is no way to know what was seized let alone

stored in the evidence locker, since they are logged in as "one

paper bag containing various CD'S". Finally and most important of

all is the fact that there is no mention or evidence of child

pornography in the case or the EVIDENCE/PROPERTY REPORT. As such

there never was any evidence to charge or convict Petitioner of

the crime 18 USCS 2251(a) Production of Child Pornography.

Petitioner is not guilty of the crimes convicted of.

This, Court numerous times, has very clearly stated that

convictions totally devoid of evidentiary support violates Due

Process. Harris v. United States, 404 US 1232, 1233 (1971);

Gregory v. Chicago, 394 US 111, 112 (1969); and Thompson v. City

of Louisville

362 US 199 (1960). The Due Process violations in

this case cannot be made any plainer.

In McDonough v. Smith, 139 S. Ct. 2149, 2155 n.2 (2019), this

Court left open the proper handling of fabricated evidence claim

founded on an allegation that the use of fabricated evidence was

so egregious as to shock the conscience, the actions by the law

(22)

enforcement in the case go far beyond shocking the conscience. We

are not talking just fabricated evidence to obtain a conviction,

this was pure purjury by law enforcement and the Government to

claim there was evidence, when truely there never was any,

combined with the suppression of the truth by the same law

enforcement officers and prosecutor.

This Court in United States v. Russell, 411 US 423, 431-32

(1973), stated, "We may some day be presented with a situation in

which the conduct of law enforcement agents is so outrageous that

Due process principles would absolutely bar the government from

invoking judicial process to obtain a conviction ..." This is the

day. "Public confidence in the fair and honorable administration

of justice, upon which ultimately depends the rule of law is the

transcending value at stake" here. Sherman v. United States, 356

US 369, 380 (1958).

This case calls for the exercise of this Court's supervisory

power to correct, and has been in the past, but should be sttled

by this Honorable Court.

(23)

CONCLUSION:

This case involves blatant violations to the Due Process

guarantee of the Fifth Amendment to the United States

Constitution and a violation of the Sixth Amendment to the United

States Constitution. The law enforcement in this case, along with

the United States Attorney's Office for the Northern District of

New York, suppressed documentation material to the defendant's

guilt and punishment that is favorable to the defense in violation

of Brady v. Maryland, 373 US- 83 (1963). Documentation which proves

the innocence of Petitioner and unequivically proves the fact

that the law enforcement officer who wrote the search warrant in

this case, executed the search warrant, seized items , and

performed the forensic examination on the seized items willfully

replaced the Compaq model EVO laptop the Fijitsu model MPE3136AT

hard-drive with items from his own supply and tampered with the

items. This documentation proves beyond any doubt that there

never was any evidence to convict Petitioner.

Had this documentation been provided to the defense prior to

any plea offer, as the Assistant U.S. Attorney had affirmed

would be provided, the results of the proceedings would have been

different, Petitioner never would have accepted any plea offer

and would have demanded a trial or dismissal of the charges, just

as what happened in the Oswego County, New York State court when

Petitioner was provided medical reports and a rape examination

both of which were negative for any evidence of child sexual abuse

(24)

and negative for any history of sexual abuse, Petitioner demanded

a trial and refused all plea offers even when the judge on the

case told Petitioner that he would still be found guilty and the

judge would sentence Petitioner to life.

Law enforcement and prosecutors committing perjury or

submitting false reports to obtain a conviction is a rampant

problem, begging this Honorable Court to step and put a stop to.

As a USA Today article states/ "Since 1988, data from the

National Registry of Exonerations shows 987 people have been

convicted, then exonerated in cases that involve a combination

of official misconduct by prosecutors and perjury or a false

report by police and other witnesses." USA Today Weekend Ed.,

October 18-20, 2019. (hlj. 3l'll)

(25)

In a USA Today Weekend, October 18-20, 2019, reporters

published a report on an investigation on prosecutors lack of

compliance with the 1963 U.S. Supreme Court ruling in Brady v.

Maryland, 373 US 83. What they found includes, that "Thousands

of people faced criminal charges or went to prison based in

part on testimony from officers deemed to have cridibility

problems by their bosses or prosecutors. At least 300 prosecutors'

offices across the nation are not taking steps necessary to comply

with the Supreme Court mandates.

... The National Registry of

Exonerations shows that cases overturned because of perjury and

official misconduct by prosecutors or police have more than

doubled from 2008 to 2018." Investigators also uncovered a slide

presentation for Miami prosecutors which "cast the strategy of

hiding officer misconduct as a contest between prosecutors and

the defense." One slide quotes United States v. Bagley, 473 US

667 (1985), "The evidence is material only if there is a

reasonable probability that, had the evidence been disclosed to

the defense, the results of the proceeding would have been

different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome", accompanied with a

picture that reads, "You were happily playing Scabble ... but

now your playing Chess, THAT'S A GAME CHANGER SON".

This is clearly a rampant problem crying out for this Court

to step in and put a stop to. "Since 1988, data from the National

Registry.of Exonerations shows 987 people have been convicted,

then exonerated in cases that involve a combination of official

misconduct by prosecutors and perjury or a false report by police

and other witnesses."

This case involves official misconduct by the prosecutor in

suppressing documentation showing her officers had tampered with

evidence by replacing items seized with items from their own

inventory, then created a false report claiming that they had

found images of child pornography, when in fact there never was

any images or video discovered of child pornography. This was

nothing more than law enforcement conducting a general search

for any evidence of any criminal conduct without limitation,

then them fasley claiming to have found evidence of the most

heinous crime, than for nother more to just get a feather in

their cap for stopping a crime which never happened. Conduct

of this nature cannot be allowed to persist.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date: /f/a !/&/*>bzJ' /'7,2.£>\^

7