Petition for Writ of Certiorari — Stanley Brewer, Petitioner v. William Lee, Superintendent, Eastern New York Correctional Facility

Supreme Court briefDec 27, 2019

Ask Donna

What actually matters in this document.

Text

;

IN THE

SUPREME COURT OF THE UNITED STATES

supreme Court, US

FILED

DEC 2 7 2019

OFFICE OF THE hi pp^

■SVfr-*rAg-)/

—PETITIONER

(Your Name)

vs.

WlUrcuA^ l_e,£-

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

U\TwVj\ SVqVc5 C O i/fV o£ /)pp£cAs

7k y\c\ CtY^

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

PETITION FOR WRIT OF CERTIORARI

S~Vrxv\\~f V

(Your Name)

\- I sNa\"\U1

(Address)

?/Q .fi>\3sL15 Re.qcor\j a/*//.'12 sag

(City, State, Zip Code)

(Phone Number)

;

QUESTION(S) PRESENTED

)

(1)

The judgment of the United States District Court has

violated long standing precedent of the United States Supreme Court

and the United States Court of Appeals. This court has complete

jurisdiction to hear cases that involves violation of Title 28 USC§ 2254

(d) (2), (e) (l), and misapplication and misapprehension of the facts

and evidence that was presented by petitioner that is debatable among

jurist of reasons. That this court should see that the district court

upholds the letter of th,e law.

;

'■!

■.i.

LIST OF PARTIES

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

Brewer v. Lee

•'

;

TABLE OF CONTENTS -

OPINION BELOW

7 ..

I '

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED

9 ;

STATEMENT OF THE CASE

REASON FOR GRANTING THE WRIT

ACTUAL BACKGROUND

CONCLUSION

;

INDEX

TO APPENDICES:

APPENDIX-A COA

APPENDIX'B Show Cause Order

A.PPENDIX-C Decision order 440.10 motion 2015

APPENDIX'D See Decision Order of 58/03 August 3rd, 2007

APPENDIX-E 440.10 Motion

■ W

APPENDIX-F Habeas Petition and Addendum

APPENDIX-G Leave Application

A’PPENDIX-H Stephen Terry Affirmation

• r.

APPENDIX-I Dept, of Transportation

APPENDIX-J Google Map 1179

!•

APPENDIX'K People’s Opposition

APPENDIX-L Picture Map

; i

APPENDIX-M Reply Motion

APPENDIX-N Dept, of Transportation’s of “Westminster Road.’’

APPENDIX-0 Google Map 189

APPENDIX-P Google Map 197

APPENDIX-Q Google Map 200

APPENDIX-R. Detective Florenci Arquer Arrest Report

APPENDIX'S New York Appellate Court Decision

APPENDIX T United States Court of Appeals Decision

APPENDIX-U United States District Court Decision Order

TABLE OF AUTHORITIES CITED

CASES:

PAGE NUMBER:

Slack v. McDaniel, 529 U.S. 473, (2000).

484

Marmolejos v. U.S. 789 F.3d 66, (2015)

70-71

Magwood v. Patterson, 561 U.S. 320 (2010)

331-333

Johnson v. U.S. 544 U.S. 295, (2005)

302

Rompilla v. Beard, 342 U.S 374, (2005)

387

Kimmelman v. Morrison, 477 U.S. 365, (1986),

372-375

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

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

55-57

Gonzalez v. U.S. 722 F.3d 118, (2013)

127-128

People v. Maxwell 89 AD3d 1108, (2011)

1109-1110

Napue v. Illinois, 360 U.S. 264, (1959).

269

United States v. Valentine 591 F. Supp. 2d 238, (2008)

242

New York v. Harris, 495 U.S. 14, (1990)

Wong Sun, 371 U.S. 471, (1963)

484-485

People v. Pope, 190 Misc. 2d 508, (2002)

People v. Ingle N.Y. 2d 67 (1975)

516

People v. Robertson 74 N.Y. 2d 773 (1989)

People v. Roman 30 Misc, 3d 1218(A), (2011)

1224

People v. Rizwan, 165 Misc. 2d 985, (1995).

986

Miller El v. Cockrell, 537 U.S. 322, (2003),

346

Taylor v. Maddox 366 F.3d 992 (9th Cir. (2004),

Harris v. Kuhlman 346 F.3d 350-351, 2nd Cir. (2003).

350-351

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

154-155

Shill Wei su v. Fillion 355 F.3d 119, (2003)

127-129

Petition, Harris vt. Nelson 394 U.S. 286, (1969)

300

Williams v. Schriro, 423 F. Supp. 2d 994, (2006)

1003

STATUTES AND RULES:

28 U.S.C. §2243 (l) (c).

28 U.S.C. §2254 (d) (2):,(e) (l).

C:P.L. 440.10 (b) (c) (d)

(

J-

C.P.L. 440.20

(Rule 7 Expansion of Records)

OTHER:

4th Amendment

6th Amendment

14th Amendment

OPTNTQNS BELOW

For cases from federal courts'The opinion of the United States Court of Appeals appears at

Appendix-T, is unpublished.

The opinion of the United States District Court appears at

Appendix-U is reported at United States District Court E.D. New

York May 26 2019; 2019 WL 1384074

For cases from the state court'There is no opinion of the highest state court to review the merits

of petitioner’s claim on a 440.10 motion.

The opinion of the lower state court appears at unreported at

2007 WL 2814018, N.Y. Aug. 03, 2007.

JURISDICTION

For cases from federal eourts:

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

case was on November 11, 2019. Appendix-T

No petition for rehearing was timely filed in my case.

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

(1).

For cases from state courts'

The Date which the highest state court decided my case was the

New York Appellate Division, decision appears at Appendixes.

The date the Countj^ Court decided my case appears at

Appendix-C, and Appendix-D.

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

;

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED

(l)

The United States District Court Southern district denied

petitioner’s petition.

The United States Court Appeals Second Circuit

denied petitioner COA, against the rule announced by the United States

Supreme Court ruling in Miller El v. Cockrell, 537 U.S. 346, (2003),

Slack v. McDaniel 529 U.S. 473, at 484, (2000); 28 USCA §2253, § 2254

§ 2241 (c) and the 6th and 14th Amendment.

‘f

STATEMENT OF THE CASE

(1)

This case involves the violation of the petitioner rights to

an effective assistant of counsel where counsel has given the

defendant/petitioner improper advice to take a plea without counsel

doing any investigation of the illegal stop of the defendant/petitioner’s

vehicle for a moving violation of running a stop sign or traffic light

that does not exist on the corners of Beverly Rd. and Westminster Rd.

(2)

The petitioner also raises prosecutorial misconduct, where

the prosecution should of knew or should have known or should have

been aware that there are no traffic light or stop sign on the corners of

Beverly Rd. and Westminster Rd.

(3)

The petitioner raise judicial misconduct where the State

Court and the District Court misstate the facts of the record rendering

their fact finding process unreasonable.

REASONS FOR GRANTING THE PETITION

(1)

The petitioner’s Federal Constitutional Rights has been

violated and offended by the District Court and Second Circuit Court of

Appeals. Based on the petitioner’s inherent right to the Constitution of

the

United

States

6th

and

14th Amendment.'

Claims

founded on

prosecutorial misconduct, judicial misconduct and ineffective assistance

of counsel. The petitioner has shown that the case at hand is riddled

with Federal Constitutional violations, which, cannot be denied by

procedural bars and procedural grounds.

ACTUAL BACKGROUND

(1)

On December 31, 2002, the defendant/petitioner was illegally

stop for a so-called traffic violation for running a stop sign or traffic

light that don’t exist on the corners of Beverley and Westminster Road,

in the County of Kings New York.

On October 16th, 2003, petitioner

pleaded guilty to three counts of burglary in the second degree.

Petitioner was sentence on October 30th, 2003 to concurrent term of five

years and five years post-supervision, under indictment 58/03. While

serving his sentence petitioner was arrested on new charges of 23 counts

of burglary and was sentenced to a new term of sentence on August 2nd

2007

under Indictment 06/222.

i(2)

In 2006, before petitioner was sentenced under Ind. 06/222,

petitioner filed a 440.20 motion to vacate his predicate status sentence,

which was granted on August 2nd 2007. In 2013, petitioner filed his

motion

under

CPL

440.10

raising

that

the

stop

the

petitioner/defendant was unconstitutional and the fruits thereof should

have been suppressed as a matter of law, under indictment 58/03. Based

on the submission of the Certified and Official Documents from the

Department of Transportation, in the defendant/petitioner’s CPL 440.10

sub. (b) (c) (d) (h) motion stating that the corners of “Beverly Road’ and

Westminster Road” in

Kings

County New York have

controlled by any traffic signals or stop signs.

never been

(3)

The

district

court

has

totally

ignored

the

petitioner’s

“Continuous Stream of Custody” under the consecutive sentences for the

purposes of federal habeas corpus” and “Equitable Tolling” based on the

renewal

of AEDPA,

beginning

from

petitioner’s

2007*2015

post

conviction Decision Orders. This violation constitutes an unreasonable

determination of the facts in light of the evidence presented in the state

court, and the clear and convincing evidence in the petitioner’s Show

Cause Order, and application for COA that is debatable among jurists of

reason.

■i

POINT ONE

THE DISTRICT COURT PREJUDICED THE PETITIONER BY

DENYING HIM RELIEF UNDER THE CONTINUOUS STREAM OF

CUSTODY AND EQUITABLE TOLLING.

(l)

The district court has totally ignored the petitioner’s Show

Cause Order under the “Continuous Stream of Custody”

and the

“Equitable Tolling”, and the unreasonable determination of the facts in

light of the evidence presented in the state court, 28 USC § 2254 (d) (2),

in .connection with the clear and convincing evidence under 28 USC §

2254 (e) (1), See COA at Appendix-A.

In the Show Cause Order,

Appendix B. Petitioner has invoked the continuous stream of custody as

announced in Garlotte v. Fordice, 515 U.S. 39, 41, (1995) and , and

misapplied the standard announced in Miller El v. Cockrell, 537 U.S.

322, 346, (2003).

(2)

The district court failed its obligation by misapplying the

“Continuous Stream of Custody” in which petitioner showed in the “Show

Cause Order” in the violation of petitioner’s 4th, 6th, 14th Amendment

that it is debatable among jurists of reasons. Slack v. McDaniel, 529 U.S.

473, 484 (2000). The defendant/petitioner Stanley Brewer, Din #03R5744,

was declared an Absconder on January 8th, 2006 10^00 p.m., failing to

return from Furlough to Edgecombe Work'Release Facility. On January

19th, 2006, petitioner was arrested on new charges of Burglary in the

Second Degree that culminated in a conviction under indictment 06/222.

The sentence was enhanced to a Second Violent Felony Offender Status,

based on the previous conviction under Ind. 58/03. Smith v. McGinnis,

208 F. 3d 13 (2000).

(3)

Thus, the sentence under indictment #58/03 was interrupted

on January 8th, 2006, and the remaining time owed under Ind. #58/03,

was 716 days. As the operation of law, under New York Penal Law §

70.25, subdivision 4, any undischarged Sentence, meaning the 716 days

under # 58/03, runs consecutively to the new 15 years determinate

sentence under indictment 06/222. The new sentence under indictment

06/222 has already been served, and as of date, the petitioner is still in

custody and subjected to the “continuous stream of custody” of the

remaining time owed on indictment #5803. Garlotte v. Fordice 515 U.S.

39, 41, (1995). See Exhibit-B. Show Cause Order.

(4)

The district court improperly concluded in its judgment that

petitioner has not made any efforts between his 2003

and 2006

convictions, Brewer v. Lee, 2019 WL 1384074, at 3. This assertion is

debatable among jurists of reason, Slack v. McDaniel, supra.

The

petitioner was sentenced under indictment 58/03 on October 30th, 2003

as a predicate felony offender, with an enhanced sentence based on his

•'V

prior federal conviction of September 15th, (1992). The defendant,

pursuant to indictment 58/03, was declared an absconder from workrelease on January 8th, 2006, a total of 11 days elapsed due to

petitioner’s arrest on January 19th, based on new charges.

;

' (5)

The record holds that petitioner’s C.P.L. 440.20 motion to

vacate the predicate status of indictment/judgment 58/03 was granted

on August 3,

2007

thus, rendering a new judgment in 2007,

announced by the United States Supreme Court in Marmolejos v. U.S.

789 F.3d 66, 70-71, (2015), Magwood v. Patterson, 561 U.S. 320, 331-333

;

(2010).

(6)

This new judgment has closed the gap of the due diligence

requirement and the equitable tolling between 2003 and 2007, the

AEDPA has been renewed in 2007. The defendant/petitioner under

Indictment 06/222, was sentenced on August 2nd, 2007, to predicate

violent felony offender,

and his sentence was enhanced based on

indictment #58/03 of October 30th, 2003. From 2007 petitioner has with

due diligence worked pursuant to both consecutive sentences, by way of

challenging

indictment

06/222

and

Indictment

58/03

that

are

interconnected because petitioner is legally in custody of the two

consecutive sentences, pursuant to P. L. 70.25[4]. 28 USCA § 2254 (a)

;;

Garlotte v. Fordice at 41 supra.

(7)

Another date that has renewed the AEDPA for the petitioner,

is January 23, 2015. On this date, Judge Carolyn E. Demarest denied

petitioner’s 440.10 motion indictment #58/03, by stating New Facts in

reference to petitioner’s 2007 440.20 motion, Ind. #58/03, by stating,

The defendant subsequently moved to vacate his sentence pursuant to

CPL§ 440.20, on the grounds that he was erroneously adjudicated a

second felony offender. On August 3, 2007, that motion was denied

(Demarest).”

See Appendix-C.

In fact, defendant/petitioner’s 440.20 motion Ind. #58/03 was granted,

“Accordingly, Defendant’s adjudication as a second felony is vacated”

See Decision Order of 58/03 August 3rd, 2007, Appendix-D. •

(8)

Judge Carolyn E. Demarest’s reference to petitioner’s 440.20

motion, is “new facts” that has triggered and renewed the one year

statute of limitations period in which petitioner seeks collateral review”

paraphrasing Johnson v. U.S. 544 U.S. 295, 302, (2005). The new facts

are, Judge Carolyn E. Demarest is now prevaricating her prior judgment

of petitioner’s 440.20 motion of 2007, in her 2015 Decision Order of the

petitioner’s 440.10 motion, of January 23, 2015. Petitioner timely'filed

and exhausted this issue in his Certificate Granting to Leave to New

York Appellate Court Second Department Pg. 3-4, of the denial of his

440.10 Motion, See Appendix-E.

The New York State Appellate Court

Decision Appendix-S. “affirmed”

the (Equivocation) of the new facts on July 8th, 2015 of the Decision

Order of January 23, 2015, See Appendix-D

;

Also, Appendix-F the

(Habeas Petition, Addendum at 6), and Appendix-B. Show Cause Order

at 3-7.

(9)

Petitioner is still in legal custody of both judgment when he

filed the instant petition, 28 U.S.C. § 2254 (a). The district court’s

judgment of the denial of petitioner’s equitable tolling is debatable

among jurists of reason, Slack v. McDaniel, supra. In Peyton v. Rowe

391

U.S

54,

67,

(1968), it was announced that prisoner serving

consecutive sentence is in “custody” under any one of them under 28 USC

§ .2241 (c) (3) “is constituent with the statutory language and with the

purpose of the writ of habeas corpus in federal courts” Peyton v. Rowe

supra. The continuous stream of custody passes through the AEDPA to

the petitioner’s prosecutorial and judicial misconduct and the ineffective

assistance of counsel claim, in which counsel failed to investigate the

illegal stop, Rompilla v. Beard, 342 U.S. 374, 387, (20059, based on the

Certified and Official Document from the Department of Transportation.

That has been established by the petitioner, which constitutes a

requisite showing by the petitioner that a reasonable jurists could find

debatable that the petitioner has presented his “continuous stream of

custody” that deserves encouragement to proceed further Miller El v.

Cockrell, 537 U.S. 322, 336, (2003).

POINT TWO

THE DISTRICT COURT HAS TOTALLY IGNORED AND FAILED TO

RULE ON THE PETITIONER’S “INEFFECTIVE ASSISTANCE OF

COUNSEL” CLAIM THAT A JURISTS OF REASON WOULD FIND

F.-1

DEBATABLE

)

t *

(10)

The District Court has failed to apply the standard of Slack

vi. McDaniel, 529 U.S. 473, 484, in which jurists of reason could find

debatable in the violation of the petitioner’s 4th, 6th and 14th Amendment

Rights announced in Kimmelman v. Morrison, 477 U.S. 365, 372-375,

■

v*;

(1986), See Appendix-F. Habeas Petition (Addendum pgs. 1-4), the

defendant/petitioner was denied his 6th Amendment Right to Counsel

when given the advice by counsel to plead guilty without counsel taking

any steps of investigation. The defendant/petitioner raised that counsel

was ineffective in violation of Strickland v. Washington, 466 U.S. 668

(1984) and Hill v. Lockhart, 474 U.S. 52, 55-57, (1985). See Appendix-E.

440.10 motion. Also, ineffective of counsel, where counsel failed to raise

(Prosecutorial Misconduct), that the prosecutor knew or should have

known or been aware of, that the stop was fabricated (False), and

(Arbitrary) Shih Wei Su v. Filion, 355 F.3d 119, 127-128 (2003).

(ll)

Counsel failed to raise that the procurement of the conviction

(Judgment), under C.P.L 440.10 (b), (c), (d) See (Appendix-G

Leave

Application pg. 3, Sub Paragraph 4), that the Material Evidence Seized

was known by the prosecution and Court at the time of the (Plea

Agreement and Sentence). The standard announced by the United State

■ t

Supreme Court, in Kimmelman v. Morrison, All U.S. 365, 372-375,

(1986), is applied here to petitioner’s right under the 6th Amendmen that

counsel failed to raise, that the possession of a (Forge License and

Possession of Stolen Property) was a direct consequence of the unlawful

stop of the vehicle, against petitioner’s 4th Amendment Right, see

Kimmelman v. Morrison, at 372-375, People v. Pope, 190 Misc. 2d 508,

]

a(t 516, (2002), and a (Fruit of a Poisonous Tree), People v. Ingle, 36 N.Y.

2d 413, 419, (1975). See Appendix-G.

■i

(12)

The defendant/petitioner did not won’t to enter a plea at first,

it, was the unprofessional advice from counsel to the petitioner to plead

•

~‘

guilty, Annendix'H. pg. 8~9, without counsel investigating the illegal

stop. The investigation was vital to the defendant/petitioner’s defense

that the probable cause for the stop was fabricated. Record has it that

counsel visits the corners in question, and stated, erroneously, that

there is a “traffic control light at Beverly Road.” Affidavit of Stephen

Terrv Annendix-H. pg. 8. The Certified and Official Document from the

Department

of Transportation

refutes

his

so-called

investigation.

Annendix-I.

Counsel, Mr. Stephen Terry, basically lied to the court

r:;

concerning his so-called investigation, the defendant/petitioner would

never had pleaded guilty and would have considered going to trial where

the out-come would have been different, Gonzalez v. U.S. 722 F.3d 118,

127-128 (2013).

(13)

Because there never was a Traffic Light or Stop Sign on

“Beverly Road” and Westminster Road, Google Map 1179, Appendix-J.

This is what the district court failed to view and considered under the

clear and convincing evidence of the state court’s judgment, Miller El v.

Cockrell, at 323-324, that is debatable among jurists of reason, Slack v.

McDaniel, 529 U.S. 473, 484 (2000), See Appendix-F, Habeas Petition

(Addendum pg. 5~9.

The petitioner has request an expansion of the

record under Rule 7, in in his Habeas Petition, Harris v. Nelson 394 U.S.

286, 300 (1969), Williams v. Schriro, 423 F. Supp. 2d 994, 1003, (2006),

to1 the

habeas

court to

include

GOOGLE

MAPS,

see Appendix-F

(Addendum at 9-10).

(14)

The Visual Documents from Google Maps, that supports the

the Certified Document form the Department of Transportation, that

there are no (Traffic Lights or Stop Signs on the Corners of Beverly Road

and Westminster Road). See (Appendix-J Visional Google Maps 1179

Beverly Rd.), is consistent with the Certified and Official Written

Document from the Department of Transportation in Appendix-I.

The

vehicle in the picture of Appendix-J, is identical to the petitioner driven

eastbound on Beverly Rd, as stated in the People’s Affirmation in

Opposition Appendix-K, page 2, to the Petitioner’s C.P.L. Motion to

Vacate the Judgment, Appendix-E.

(15)

The

Westminster

picture

Rd.,

where

Appendix-L,

the

Stop

Sign

unquestionably

exist,

that

shows

supports

the

petitioner’s argument in his Reply Motion pages 5~7, Appendix M. The

Certified Documents from the Department of Transportation states, that

Westminster Rd. runs one-way, North to South, AppendixyN. Which is

the not the

direction of the petitioner’s Route,

according to the

Opposition to Vacate the Judgment, Appendix-L. By viewing (Appendixy

O; Google Maps of 189), (Appendix-P, Google 197) and Appendix-^,

Google Maps of 200 Westminster Rd.) From these view points, of

Westminster Rd. shows no Stop Sign or Traffic Lights, on Beverly Rd.

that the petitioner could have ran.

(16)

The Prosecution should of knew or should have known or

should of been aware of, Shih Wei Su v. Fihon 355 b. 3d 119,127-129

(2003), that there was no Traffic Light or Stop Sign on Beverly Rd. at its

intersection which is Westminster Rd. At the time of the Plea Agreement

and Sentence which makes the procurement of the conviction (Judgment),

CPL 440.10 (b) (c) (d), in violation of the petitioner’s 4th 6th and 14th

Amendment that The defendant/petitioner has presented m his 440.10

motion a mixed claim, based on Certified and Official Document from the

Department of Transportation, See Appendix-I, used was was off-therecord, in relation to the ineffective assistance of counsel claim, People

vJ Maxwell 89 AD3d 1108, 1109-1110, (2011). Judge Carolyn E. Demurest

and the District Court denied the petition without an evidentiary

hearing, in violation of petitioner’s 14th Amendment. Jurists of

reason

would find debatable that the petitioner did not run a stop sign

or a

Traffic Light.

POINT THREE

THE DISTRICT COURT HAS IGNORED AND PRF.TTTmnrn THf.

PETITIONER BY FAILING TO APPLY THE STAND AT? r> OF THE

FRUIT OF A POISONOUS TREE RAISED BY THE PETITIONER TN

HIS CLAIM OF JUDICIAL MISCONDUCT CLAIM

(17)

The district court has “prejudged the issue of the

non-

existing stop sign or stop light”, by stating in its order,

“Even the court were to stretch the information about the intersection

enough to consider it “critical physical evidence” it was not the type of

evidence that would be “presented at trial” and it is hardly

compelling” ... i.e., more likely than not to raise reasonable doubt in a

reasonable juror”

The above view from the district court is in violation of the long held

federal precedents, that were decided in the law of the land and in the

State New York under the Federal Constitution, the petitioner has

raised (Fruit of a Poisonous Tree) under prosecutorial misconduct 440

.10

(l) (b), (c), (d) that the stop and arrest was a violation of petitioner’s

1 4th Amendment under Duress, Misrepresentation, Fraud and deceit due

to the illegal seizure of evidence, in which petitioner raised in his

petitioner’s 440.10 motion at Appendix-E at 5-fi. Reply

pg. 4>

Appendix-N,

3-7,

and

Appendix-G,

Leave

application

pg.__IL and

Appendix.-F. Petition for Habeas Corpus (Addendum pgs. 2-4)., as

announced in Napue v. Illinois, 360 U.S. 264, 269, (1959).

(18)

United States v. Valentine 591 F. Supp. 2d 238, 242, (2008),

states, “It is well-settled that evidence obtain pursuant to an unlawful

seizure or search must be suppressed as the fruit of a poisonous tree

New York v. Harris, 495 U.S. 14, 18, (1990), states,

“Indirect fruits of an illegal search or arrest should be suppressed

when they bear a sufficient close relationship to the underlying

Illegality...the challenged evidence is in some sense product of illegal

government activity.”

’ '

(19)

Wong Sun, 371 U.S. 471, 484-485, (1963), states,

“This doctrine precludes the admission of primary, second or derivative

evidence.”

People v. Pope, 190 Misc. 2d 508, at 516, (2002), where it states,

“I find...at bar...unconstitutional...and therefore* grant defendant’s

Pbpe’s motion to suppress the alleged forged license...as the direct

consequence of the unlawful stop of her vehicle.”

People v. Ingle N.Y. 2d 67 (1975); People v. Robertson 74 N.Y. 2d 773

(i989); People v. Roman 30 Misc, 3d 1218(A) at 1224, (2011); People v.

Rizwan, 165 Misc. 2d 985, 986, (1995). Jurists of reason could find the

district court judgment debatable, Slack v. McDaniel’s, supra.

■

(20)

Judicial misconduct that has been committed by the district

cpurt and Judge Carolyn E. Demarest, by misapplying the standard and

misstating the facts of,the record in relation to defendant/petitioner’s

440.10 motion in regards to the ineffective assistance of counsel claim

and prosecutorial misconduct,

due to Judge Carolyn E. Demarest

Prevarication of the decision order of January 23, 2015, in which the

district court failed to review rendering the fact process unreasonable in

violation of Miller El ■ v. Cockrell, 537 U.S. at 346, supra, Taylor v.

Maddox 366 F.3d 992 (9th Cir. (2004), Harris v. Kuhlman 346 F.3d 350351, 2nd Cir. (2003).

POINT FOUR

THE DISTRICT COURT HAS IGNORED ANT) FAILED RULE ON THF.

PETITIONER’S PROSECUTORIAL MISCONDUCT CLAIM WHERE THE

PROSECUTION SHOULD HAVE KNOWN OR SHOULD HAVE KNEW~

OR SHOULD HAVE BEEN AWARE OF ALL THE FACTS CONCERNING

i THE POLICE MISCONDUCT OF THE ILLEGAL STOP. ARREST OF

THE PETITIONER RIGHTS UNDER THE 14™ AMENDMENT

(2l)

The

petitioner

has

raised

prosecutorial

misconduct

that

piosecution knew or should have known or should have been aware that

there was no traffic light or stop sign on “Beverly Road” and Westminster

Road, and that the stop'was fabricated by the arresting officers, Giglio v.

ds.. 405 U.S. 150, 154-155, (1972), Shih Wei Su v. Fillion 355 F.3d 119,

128-129 (2003). The language in C.P.L. 440.10 (c), the judgment was false

apd was prior to the entry of judgment ‘plea’ known by the Prosecutor. In

People v. Bermudez states,

“Thus, both the first and second department have acknowledge that C.P.L

440.10 1 (c) encompasses both actual knowledge and situation where the

prosecutor should have known of false testimony, a judgment of conviction

must be vacated”

People v. Bermudez Misc. 3d 1226 (A) (2009).

(22)

The defendant/petitioner has argued that the stop of was

(Arbitrary), See Appendix-R. Solely based on detective Florenci Arquer

authority to stop the defendant/petitioner without probable cause of a

moving violation. “Thus an arbitrary stop of a single automobile for a

purportedly ‘routine traffic check is impermissible unless the police

officer reasonably suspect a violation of the Vehicle and Traffic Law

People v. Ingle, 36 N.Y: 2d 413, 419, (1975).

That the Rule announced

from the Ingle court, this conduct by detective cannot not'be considered,

by law, a (pretext stop). A pretext stop is valid only when a traffic

violation has occurred.

“Hence, the stop was an illegal seizure of the defendant s autom obile and

the evidence obtained by that seizure may not be used as evidence

against him” Ingle supra.

People v. Robertson, 97 N.Y. 2d 341 (2001), where it states

“But the officer’s authority to stop a vehicle is circumscribed by the

requirement of a violation of a duly enacted law. In other words, it is

the violation of a statute that both triggers the officer’s authority to

make the stop and limits the officer’s discretion”

See People v. Lopez, 20 Misc. 3d 737, 741, (2008X

See Annendix-E and Appendix-G.

I!-'

(23)

The

prosecution

defendant/petitioner’s

right

this

under

the

case 14

has

violated

Amendment,

and

the

has

prejudiced the defendant/petitioner with prosecutorial misconduct. The

prosecution should have known or should have been aware of based on

the Certified Document from the Department of Transportation stating

that there is no traffic light or stop sign on the corners of “Beverly Road”

and

Westminster

Road.

The

Police

has

violated

the

dfefendant/petitioner’s rights by the illegal stop,, arrest, and seizure of

property. In which the prosecution should have known or should been

aware of before the entry of the defendant’s plea/sentence (Judgment).

C.P.L 440.10 (b) (c).

(24)

Appendix-E.

This fact cannot be ignored by the prosecution who serves as

an investigative unite within the judicial system. And the New York

Police Department is merely an extension of the Prosecution’s Office, the

Prosecution has turned a blind eye to the petitioner’s The Certified Doc

uments

from

the

Department of Transportation,

Appendix-1.

The

articulated facts cannot be met by the NYPD Detective or Police Officers,

based on the Department of Transportation Certified and Official

Documents that the corners in question has never been controlled by any

traffic light or stop signs. The People of the State of New York, has failed,

waived and is procedural barred from any opposition of Inevitable,

Attenuation and Independent Exception Rule, to the

A *

defendant/petitioner’s claim of ineffective assistance of counsel under

the 6th Amendment by failing to argue or investigate the violation of the

defendant/petitioner’s 4th Amendment right against the illegal stop

search and seizure.

(25)

The People of the State of New York has waived its opposition

the defendant/petitioner’s claims using the Inevitable, Attenuation and

Independent

Exception

Defendant/petitioner’s

Misrepresentation,

Rule

claim

fraud

and

procedurally

of Prosecutorial . Misconduct

and

deceit,

Based

the

barred.

claim

violation

the

defendant/petitioner’s 4th, 6th and 14th Amendment Right against the

illegal stop search and seizure. This court should grant petitioner

Certiorari. Jurists of reason could find that, the prosecution should have

known or should have knew or should have been aware of that there was

no Traffic Light or Stop Sign on the corners of Beverly Rd., at its

intersection which is Westminster Rd.

CONCLUSION: The petition for a writ of certiorari should be granted

because of the District Court’s Judgment Unreasonable and is Contrary

to a Federal Application

Respectfully submitted,

Dated

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.