Petition for Writ of Certiorari — Mark E. Sells, Petitioner v. Scott Crow, Director, Oklahoma Department of Corrections

€

.d

Case-No.

IN THE SUPREME COURT OF THE UNITED STATES

MARK E. SELLS, Applicant, r"\ \

r ,o

; r

-vsSCOTT CROW, Director, Respondent.

To the Honorable Neil M. Gorsuch,

FILED

Associate Justice of the United States Supreme Court and

AUG 2 4 2021

Circuit Justice for the Tenth Circuit

OFFICE OF THE CLERK

SUPREME COURT. U,S.

ON PETITION FOR A WRIT OF CERTIORARI

FOR: UNITED STATES TENTH CIRCUIT COURT OF APPEALS,

CASE No. 21-5014 (En Banc rehearing denied 5-28-21)

PETITION FOR WRIT OF CERTIORARI

Counsel for Applicant:

Mark E. Sells, Pro Se

North Fork Corr. Center, O.D.O.C.

1605 E. Main

Sayre, OK 73662

i

'?

ki

TABLE OF CONTENTS

-Gov-er-page--------------------------------------------Table of Contents

Index to Appendices

Table of Authorities Cited

Statutes and Rules Cited

Opening Caption/Case No.

Opinions Below

Jurisdiction

Questions Submitted/ Constitutional & Statutory

Provisions Queried

Statement of the Case

Reasons for Granting Writ [Brief]

Conclusion

Pleading

Certificate of Verification

Certificate of Mailing

PAGE NUMBER

i11

11

111

V

1

1

2

3

9

ZI

xz

X5

X3

ZH

INDEX TO APPENDICES

APPENDIX A Order Denying ‘En Banc’ Hearing [10th Cir. 5-28-21]

APPENDIX B Order Denying ‘C.O.A.’ [10th Cir. 4-23-21]

APPENDIX C Order Dismissing Habeas Petition [N.D. Okla., 1-21-21]

APPENDIX D St. Dist. Court Order Denying Post-Conv. [12-2-19]

APPENDIX E Okla. Court Crim. Appeals Order Denying Appeal [3-2-20]

APPENDIX F Suppressed - Informant’s letter to Dist. Atty.

APPENDIX G Letter to U.S. B.O.P. asking IF detainer filed [dtd 5-13-19]

APPENDIX H Transcript of 10-13-05 Hearing (Judge Delapp lying in Court)

APPENDIX I

Suppressed Detainer, filed 4-26-05, Court swore didn’t exist

APPENDIX J

Transcript of Sentencing Hearing [12-26-06] ‘Brady’violation

APPENDIX K

Sworn Affidavit - Content of destroyed Audio Tapes

APfBtiOZX L

U'StM.C, - bto ZILlf tfo^cckUbisdnc.,ryt-i \

ii

V

S-j

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Alabama v. Bozeman, 533 US 146,150 L.Ed.2d 188,121S. Ct. 2079 (2001); 4,7,12/6,1*1

Banks v. Dretke, 540 U.S. 668 (2004); Banks v. Dretke, 2002 U.S. Briefs

8286, at 28, 30, 2003 U.S. S.Ct. Briefs LEXIS 837, at 47, 49.;

5,8,19,21

Bearden v. Georgia, 461 U.S. 660, 665,103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); 8,19

Brady v. Maryland,373 U.S. 83,10 L.Ed.2d 215, 83 S.Ct.(1963)

3,5,10,16,18,121

Bros., Inc. v. W.E. Grace Mfg. Co., 261 F. 2d 428,1 Fed. R. Serv.2d

(Callaghan) 862,119 U.S.P.Q. (BNA) 401 (5th Cir. 1958),

app. after remand, 320 F.2d 594, 7 Fed. R. Serv.2d (Callaghan)

1143, 138 U.S.P.Q. (BNA) 357 (5th Cir. 1963)

4,12

Brown v. Allen, 344 U.S., at 501-502, 73 S.Ct. at 443;

Brumfield v. Cain, 135 S.Ct. 2269 (2015);

20,21

9,10,14,16,17,18

Day v. McDonough, 547 U.S. 198,126S.Ct. 1675 (2006) reh'g

denied549 U.S. 1261,127S.Ct. 1394 (2007)

15

Delgado v. Dennehy, 503 F. Supp. 2d 411 (D. Mass. 2007);

6

Gallagher v. Shelton, 587 F.3d 1063.1067 (10th Cir. 2009);

2

Giglio v. U.S., 405, U.S. 150, 31 L.Ed.2d 104, 92 S.Ct. 763 (1972);

10

Haines v, Kerner, 404 U.S. 519-521, 92 S. Ct. 594, 30 L.Ed.2d 652 (1972);

2

Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99S.Ct. 2781, reh den.,

(US) 62 L.Ed.2d 126,100S.Ct. 195;

Johnson v. United States. 544 U.S. 295,125 S.Ct. 1571 (2005);

4,5,11,12

7/3/

Lyng v. Payne, 476 U.S. 926, 935,106S.Ct. 2333, 2339,

90 L.Ed.2d 921 (1986);

6/7,13,17/ /<£

Mackey v. United States, 401 US 667, 692-694, 91 S.Ct. 1160 (1971);

15

Massiah v. United States. 377 U.S. 201, 84 S.Ct. 1199,12 L.Ed.2d 246.

8,18

McClesky v. Zant, 499 U.S. 467, 111 S.Ct. 1454,113 L.Ed.2d 517 (1991)

13,17

McQuiggin v. Perkins, 569 U.S. 383, 392 (2013);

3,10

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

7,14,18/6

iii

V

Miller-El v. Dretke, 545 U.S. 231, (2005);

7,14,18, IG,

-Mooney vTHolohan, 294 US. 103,112, 79 L.Ed. 791, 794,

55 S.Ct 340, 98 ALR 406 (1935);

10,11,16,18

Murray v. Carrier, 477 U.S. 478, 495-496 (1986);

4,5,10,12

Napue v. Illinois, 360 U.S. 264, 268, 79S.Ct.1173,

3 L.Ed.2d 121(1959);

11,16

New Hampshire v. Maine, 532 U.S. 742, 750,112 S.Ct. 1808,1815,

149 L.Ed.2d 968 (2001)

6,16,15

Iff

Pacheco v. Artuz, 193 F.Supp.2d 756, 760 (S.D.N.Y. 2002);

Pyle v. Kansas 317 U.S. 213,215,216 87 L.Ed. 214, 216,63

S.Ct. 177(1984);

5,10,11,16,12,,

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154,170 (2010)

6,16,

Rose v. Lundy, 455 US 509, 544,102 S.Ct. 1198 (1982).

15

Schlup v. Delo, 513 U.S. 298, 329 (1995);

4,5,10,12

Slack v. McDaniel, 529 U.S. 473, 483 (2000);

5,12,13,19

Smith v. Robbins, 528 U.S. 259, 276,120 S.Ct.. 746 (2000)

8,19

Strickland v. Washington, 466 U.S. 668, 685,104 S.Ct. 2052, 2063,

80 L.Ed.2d 674 (1984);

16,17

Strickler [v. Greene, 527 U.S. 263 (1999);

6,8,19,21

SW Marine, Inc., v. Gizoni, 502 U.S. 81, 92 n.5,112 S.Ct.

486, 494 n.5,116 L.Ed.2d 405 (1991)

6

Swain v. Pressley, 430 U.S. 372, 381, 51 L.Ed.2d411,

97 S.Ct. 1224(1997);

6,15,

Townsend v. Sain, 372 U.S. 293, 319(1963);

Teague v. Lane, 489 U.S. 288, 311-314, 109 S.Ct. 1060 (1989);

7,17,20

15

United States v. Agurs, 427 U.S. at 111-112, 49 L.Ed.2d 342,

96S.Ct. 2392(1976);

5,10,11,13,16,18,12j

United States v. Bagley, 473 U.S. 667, 87 L.Ed.2d 481,

105 S.Ct. 3375(1985);

5,11,16,18,12,

United States v. Cronic, 466 U.S.648, 659,104 S.Ct. 2039, 2047,

iv

'-y

80 L.Ed.2d 657 (1984);

17

United States v. Hayman, 342U.S. 205, 223, 96 L.Ed. 232,

72 S.Ct. 263 (1952);

6, IS,

United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834,

56 L.Ed.2d 329(1978);

9,14,17,19,20

Walker v. True, 399 F.3d 315, 319 (4th Cir. 2005)(Luttig, J.)(Citation omitted),

vacated on other grounds by, 546 U.S. 1086,163 L.Ed.2d 849 (2006)

6,15

Williams v. Kuliman, 722 F.2d 1048 (2nd Cir. 2008).

2

Williams v. Taylor, 529 U.S. 362,146 L.Ed.2d 389,

120S.Ct. 1495 (2000);

17,21

Yun Hseng Liao v. Junious, 817 F.3d 678, 692, 94 (9th Cir. 2016);

STATUTES AND RULES

1

Page Number

28U.S.C. § 1254(1)

28 U.S.C. § 2244(d)(1)

28 U.S.C. § 2244(d)(1)(D)

28 U.S.C. § 2254(e)

2

3

5,14,19,21

9,14,17,20

Rules Governing Section 2254 Cases in the United States District Courts

Rule 5

Rule 8

7

7,17,18

OTHER

United States Constitution

Amendment VI

Amendment XIV

Interstate Agreement on Detainers (IADA)

Suspension Clause, Art. I, § 9, cl. 2

6,7,16,21,22

18

18

4,5,7,9,12,13,14,16,17,20/15

6,15

ti r

f

Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner prays that a writ of certiorari issue to review the judgement(s) below, as

they were made in intentional error. 1

OPINIONS BELOW

The Opinion/Order of the United States Court of Appeals for the Tenth Circuit,

denying ‘En Banc’ rehearing, in Case # 21-5014, appears at Appendix A, to the

Petition and is unpublished.

The Opinion/Order of the United States Court of Appeals for the Tenth Circuit,

denying ‘Certificate of Appealability’, in Case #21-5014, appears at Appendix B,

to the Petition and is unpublished.

1 Yun Hseng Liao v. Junious, 817 F.3d 678, 692, 94 (9th Cir. 2016)- saying, “state court’s fact based

decision that Liao suffered No prejudicefrom his counsel’s error, failed to acknowledge essentialfacts,

inexplicably minimizedfacts contradicting state court’s conclusions, discounted unimpeached evidence

and improperly submitted [court’s own]flawed understanding, and highlighted only those [facts] that

[supported court’s own conclusions], [while] omitting those that did not.” “But in this case, the facts

omitted from the the court’s discussion are so slarins and essential to a proper weighing and evaluation

of the evidence that when exposed and viewed in context, they render objectively unreasonable the court’s

conclusion that... Liao did not suffer and prejudice. ” “With all due respect to our colleagues..., we do

not see how any fair mindedjurists could have arrived at such a faulty determination. ”

1

The Opinion/Order of the United States District Court for the Northern District of

Oklahoma, denying ‘Petition for Habeas Corpus’, in Case # 20-CV-323-CVE-CDL,

appears at Appendix C, to the Petition and is unpublished.

JURISDICTION

The date on which the United States Court of Appeals for the Tenth Circuit refused

to issue a Certificate of Appealability for case (No. 21-5014), was: 4-23-2021; and

a copy of the Order appears in Appendix B.

A Petition for rehearing ‘En Banc’ was timely filed in case #21-5014.

A timely Petition for rehearing ‘En Banc’, in Case # 21-5014, was denied by

the United States Court of Appeals for the Tenth Circuit, on 5-28-2021; and a copy

of the Order Denying Rehearing appears at Appendix A.

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

The Pro Se Movant/Petitioner requests the protection of Hall v. Bellmon, 935, F.2d

1106 00th Cir. 1991); Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009);

Haines v, Kerner, 404 US. 519-521 92 S. Ct. 594. 30 L.Ed.2d 652 (1972);

Williams v. Kullman, 722 F.2d 1048 (2nd Cir. 2008).

2

V

^

Ji L

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED QUESTIONS QUERIED

Statement:

Petitioner holds that his Petition for Habeas Corpus overcomes the

AEDPA time-bar (28 U.S.C. §2244(d)(l), THREE (3) separate ways! (1)

Petitioner’s Petition was ‘timely’ filed; (2) Petitioner is ‘Actually Innocent’; (3)

Petitioner’s circumstances and U.S. Supreme Court law support the application of

either ‘Equitable Tolling’, or ‘Judicial Estoppel’.

The following questions of Constitutional Law are presented for consideration and

adjudication by the United States Supreme Court:

1. Can the District Court2 refuse to ‘Hear’ and Time bar under 28 U.S.C. § 2244

(d)(1), Petitioner’s Actual Innocence claim #2, based upon Respondent’s

claim and the Court’s ruling, “the evidence that was available to him at the

time of his ‘Direct Appeal’”, on the admitted and confessed ‘Brady’3 violation

by Respondent, who suppressed and ‘destroyed’ exculpatory evidence4, thus

the District Court, in refusing to consider Petitioner’s claim, ruled contrary

to U.S. Supreme Court law in ‘McOuiggin v. Perkins, 569 U.S. 383, 392

(2013); which says an actual innocence claim is a ‘gateway’ through the

2 United States District Court, Northern District of Oklahoma

3 Brady v. Maryland, 373 U.S. 83,10 L.Ed.2d 215, 83 S.Ct.

4 Suppressed statement (Appendix F), and 'misplaced/destroyed' audio tapes (Appendix J)

3

w

AEDPA, also saying an actual innocence claim, can be raised at any time, and

need not prove Due Diligence to cross a Federal Court’s threshold. Further,

Petitioner’s claim is ‘materially indistinguishable’ from Schluv v. Delo, 513

U.S. 298, 329 (1995); and easily meets the ‘Carrier’ standard. See: Murray v.

Carrier. 477 U.S. 478, 495-496 (1986);

2. Is Petitioner’s Actual Innocence claim #1, a ‘technical defense’ as the District

Court ruled, or is it as Petitioner claims, ‘Actual Innocence’, based upon the

State’s ‘lack of any factual evidence’ upon which to prove the crime of

‘shooting with the Intent to Kill’. Jackson v. Virginia. 443 U.S. 307, 61

L.Ed.2d 560, 99 S.Ct. 2781, reh den., (US) 62 L.Ed.2d 126, 100 S.Ct. 195.

That, coupled with the fact the newly discovered evidence (Detainer- see

Appendix I) required dismissal of all charges with prejudice at pre-trial

hearing on 10-13-05 (I.A.D.A.5 Art. IV (e); Alabama v. Bozeman. 533 US 146,

150L.Ed.2d 188, 121 S.Ct. 2079 (2001)) which would preclude the State from

gaining a conviction through ‘artful pleadings’ (Bros., Inc, v. WE. Grace Mfe.

Co.. 261 F.2d 428, 1 Fed. R. Serv.2d (Callaghan) 862, 119 U.S.P.Q. (BNA)

401 (5th Cir. 1958), app. after remand, 320 F.2d 594, 7 Fed. R. Serv.2d

(Callaghan) 1143, 138 U.S.P.Q. (BNA) 357 (5th Cir. 1963), and highly

debatable testimonial statements by the prosecution as to Motive and Intent.

5 Interstate Agreement on Detainers Act

4

>

-kt

The suppressed statement (Appendix F) and lost/destroyed audio tapes

(Appendix J), this suppressed evidence6 raised in Actual Innocence claim #2,

would raise ‘Reasonable Doubt’ in the mind of any fair minded jurist. Jackson

v. Virginia. supra. Petitioner’s Actual Innocence claim of suppressed

evidence [statement and destroyed audio tapes] meet the ‘Carrier’ standard,

as Petitioner’s claim is materially indistinguishable from Schluv v. Delo. 513

U.S. 298, 329 (1995). See also: Slack v. McDaniel. 529 U.S. 473, 483 (2000);

Murray v. Carrier. 477 U.S. 478, 495-496 (1986);

3. Is the start date under 28 U.S.C. § 2244 (d)(1)(D): the date Petitioner knew he

NEEDED a detainer to have been filed, for the I.A.D.A.7 to apply to him, as

Respondent and the Federal Courts claim and so ruled; OR, Is the start date

under 28 U.S.C. § 2244 (d)(1)(D), when Petitioner discovered the

EXISTENCE of the Detainer (Appendix I), that Judge Delapp lied8 in open

court9, saying, did not exist/was not filed, which Petitioner discovered on 515-19. See Appendix G, I. Petitioner holding that under Banks v. Dretke, 540

U.S. 668 (2004);Banks v. Dretke, 2002 U.S. Briefs 8286, at 28, 30, 2003 U.S.

6 Brady v. Maryland, supra; United States v. Agurs, 427 U.S. at 111-112, 49 L.Ed.2d 342, 96 S.Ct.

2392(1976); United States v. Bagley, 473 U.S. 667, 87 L.Ed.2d 481, 105 S.Ct. 3375(1985); Pyle v.

Kansas, 317 U.S. 213, 215,216, 87L.Ed. 214, 216, 63 S.Ct. 177(1984);

1 Interstate Agreement on Detainers Act

810th Cir. Court’s Order (Appendix B) omitted Petitioner’s supported claim that Judge Delapp lied in

open Court about this. (Appendix H)

9 Hearing on 10-13-05,(Appendix H)

5

>1

S.Ct. Briefs LEXIS 837, at 47, 49.;Strickler [v. Greene, 527 U.S. 263 (1999);

Sells had NO ‘good faith basis’ to look for what was sworn in open court, ‘did

not exist’. Appendix H.

4. If Respondent Crow and Oklahoma have confessed the Constitutional

violations claimed by Petitioner as TRUE, when they filed the Motion To

Dismiss as Time-barred (Walker v. True, 399 f.3d 315, 319 (4th Cir.

2005)(Luttig, J.)(Citation omitted), vacated on other grounds by, 546 U.S.

1086, 163 L.Ed.2d 849 (2006); Delsado v. Dennehy, 503 F. Supp. 2d 411 (D.

Mass. 2007)), is the Federal District Court obliged to consider these violations

to determine if they rise to the level requiring relief under Swain v. Pressley,

430 U.S. 372, 381, 51 L.Ed.2d411, 97 S.Ct. 1224(1997); and United States v.

Hayman, 342 U.S. 205, 223, 96 L. Ed. 232, 72 S.Ct. 263 (1952); and

qualifying for ‘Equitable Tolling’ or ‘Judicial Estoppel10’ to be applied, as the

failure to do so would violate the Suspension Clause, Art. I, § 9, cl. 2, of

the U.S. Constitution, rendering Habeas Corpus relief inadequate and

ineffective to test the legality of Petitioner’s confinement.

5. The Federal District Court to refused to consider the following questions of

Constitutional violations of Petitioner’s rights:

10 Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 170 (2010); Lyng v. Payne, 476 U.S. 926, 935, 106

S.Ct. 2333, 2339, (1986); SWMarine, Inc., v. Gizoni, 502 U.S. 81, 92 n.5, 112 S.Ct. 486, 494 n.5, (1991);

New Hampshire v. Maine, 532 U.S. 742, 750, 112 S.Ct. 1808, 1815, (2001).

6

. >

a.

The Court refused to Hear Petitioner’s claims of severe

Constitutional violations by the State Pre-Trial Court, which stripped

the State Court of jurisdiction, based upon a violation of Federal law

(IADA); Those being the suppression of evidence and the State Judge

and District Attorney lying in open court to deny Petitioner a fair

hearing; the defense attorney appointed by the court, conspiring with

the district attorney and court to violate Petitioner’s Constitutional

rights and send Petitioner to prison instead of getting him released and

the charges dismissed with prejudice. Alabama v. Bozeman, supra.

b. The District Court denied Petitioner an Evidentiary Hearing based upon

his ‘newly discovered’ evidence, by making unreasonable application

of Johnson v. United States, 544 U.S. 295, 125 S.Ct. 1571 (2005); to

claim that when Petitioner was told the IADA didn’t apply to him

because NO Detainer (Appendix H, I) had been filed, was the actual

start date for when Petitioner knew of the existence of the Detainer (that

didn’t exist), thus ruling contrary to Townsend v. Sain, 372 U.S. 293,

319(1963); and Petitioner’s right to an Evidentiary Hearing. See: Rules

Governing Section 2254 Cases in the Federal District Courts - Rule 8,5/

Miller-El v. Cockrell, 537 U.S. 322 (2003); Miller-El v. Dretke, 545

U.S. 231,(2005).

7

,1'

>'

c. In actual innocence claim #2, did the State commit a ‘Massiah’

violation when they put an informant, who was acting as an ‘agent of

the prosecution’, in the cell next to Petitioner to elicit an admission of

guilt from Petitioner, without Petitioner’s attorney present. Further, the

informant, on behalf of the State offered to commit first degree murder,

trying to ‘entrap’ Petitioner in an illegal act. See: Massiah v. United

States, 377 US. 201, 84 S.Ct. 1199, 12 L.Ed.2d246. Appendix F, J,

6. Did the District Court deny Petitioner Sells a ‘substantial benefit’ available to

the State, violating the ‘Equal Protection Clause’ and ‘Fair Practice’, when it

denied Sells’ Motion to appoint counsel. Bearden v. Georgia, 461 U.S. 660,

665, 103 S.Ct. 2064, 76L.Ed.2d221 (1983); Smith v. Robbins, 528 U.S. 259,

276, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

7. Did Sells act with appropriate ‘due diligence’ to warrant ‘equitable tolling’,

considering that Judge Delapp’s lies in open court convinced Petitioner Sells

that no detainer existed/had been filed, for him to look for and find. Did the

District Court rule contrary to and make unreasonable application of Banks v.

Dretke, 540 U.S. 668 (2004);

Banks v. Dretke, 2002 U.S. Briefs 8286, at28,

30, 2003 U.S. S. Ct. Briefs LEXIS 837, at 47, 49.; and, Strickler [v. Greene,

527 U.S. 263 (1999).

8

, *

8. Did the 10th Cir. rule incorrectly*when it stated the District Court’s ruling was

not debatable, when the District Court ruled contrary to the evidence

presented11, saving that Sells failed to present clear and convincing evidence

that the State Court’s finding was incorrect (28 U.S.C. §2254(e); Appendix B,

p.6; App. I), concerning the ‘Detainer’ (Appendix I), filed on 4-26-2005, that

Sells presented to prove his claim, which the State Court said was not filed

and therefore the I.A.D.A.12 did not apply. United States v. Mauro, 436 US.

340, 98 S.Ct. 1834,(1978); Brumfield v. Cain, 135 S.Ct. 2269 (2015)

STATEMENT OF THE CASE

Petitioner was tried by jury in November 6-9,2006, and found guilty; was Sentenced

on 12-20-2006; Petitioner filed for post-conviction in state district court on 7-12019, denied 12-2-2019; appealed to the OCCA on 1-6-2020, denied on3-2-2020,

exhausting state remedies; then filed for Habeas Corpus on 7-6-2020, in the N.D. of

Oklahoma, which was denied on 1 -21 -2021; with a COA being denied by the Federal

Tenth Circuit Court on 4-23-2021; rehearing ‘En Banc’ denied on 5-28-2021. Now,

on appeal to the U.S. Supreme Court, Petitioner argues the following issues:

11 Appendix I; United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329(1978); Atferf^x C,

12 Interstate Agreement on Detainer Act

'

9

*

>?

1. Petitioner’s Actual Innocence claim #2, k based upon respondent ’s claim and the

------------—pM-------------------- ----------

court’s ruling, “the evidence that was available to him at the time of his ‘Direct

Appeal’”, on the admitted and confessed ‘Brady’13 violation by Respondent, thus

ruling contrary to U.S. Supreme Court law in ‘McOuissin v. Perkins. 569 U.S.

383, 392 (2013); which says an actual innocence claim is not subject to the

AEDPA. Also saying the claim, can be raised at any time and ‘need not prove

Due Diligence to cross a Federal Court’s threshold’. See also: Brumfield v. Cain.

135 S.Ct. 2269 (2015)’; Schluv v. Delo. 513 US. 298, 329 (1995). Petitioner’s

claim is ‘materially indistinguishable’ from Schlup v. Delo, 513 U.S. 298, 329

(1995); and easily meets the ‘Carrier ’ standard. See: Murray v. Carrier, 477 U.S.

478, 495-496 (1986); The District Court makes the issue about when the claim

is filed, which is in error. The Court also declined to acknowledge or to consider

what weight to give the lost/destroyed tapes13 (Appendix ^Petitioner states, and

so now affirms, the tapes (plural) held hours of Petitioner talking about his

‘intent’ to send his father a ‘message’ to quit coming to his house, threatening

Petitioner that he would get DHS to ‘take’ his son from him, by showing up

unannounced at his parent’s house and firing a ‘shot’ OVER his father’s head

and then leaving, with his parents very much alive to ponder the message.

13 Brady v. Maryland, 373 U.S. 83,10 L.Ed.2d 215, 83 S.Ct. (1963); Mooney v. Holohan, 294 U.S. 103,112, 79 L.Ed.

791, 794,55 S.Ct. 340, 98ALR 406 (1935); Pyle i/. Kansas 317 U.S. 213,215,216, S.Ct. 177(1984); Giglio v. U.S., 405,

U.S. 150, 31 L.Ed.2d 104, 92 S.Ct. 763 (1972); United States i/. Agurs, 427 U.S. at 111-112, 96 S.Ct. 2392(1976);

10

>!>'

Petitioner talked about disconnecting the phone line at the house to give him a

head start in leaving before his parents called the police. The tapes showed that

Petitioner NEVER had any intention of hurting either of his parents in any way,

and certainly not trying to kill either of them. The informants written statement

(Appendix F) contradicts his sworn testimony (Appendix J), and even his

admissions on cross-examination are that Petitioner did talk extensively, just, not

saying what the Prosecution wanted/hoped he would say (Appendix J). Petitioner

holds that prompted the Prosecution to ‘lose’ exculpatory evidence (audio tapes)

and put Mr. Milligan on the stand to intentionally lie for the prosecution.14

Petitioner holds that the ‘materiality’ standard has been met, and the evidentiary

value of the ‘tapes’ should be viewed in the light most favorable to Petitioner,

and held to have held exculpatory evidence. United States v. Azurs, 427 US. at

111-112, 49 L.Ed.2d 342, 96S.Ct. 2392(1976); United States v. Bagiev, 473 U.S.

667, 87 L.Ed.2d 481, 105 S.Ct. 3375(1985); Pyle v. Kansas. 317 U.S. 213,

215,216, 87L.Ed. 214, 216, 63 S.Ct. 177(1984);

2. Is Petitioner’s Actual Innocence claim #1, a ‘technical defense’ as the District

Court ruled, or is it as Petitioner claims, ‘Actual Innocence’, based upon the

State’s Tack of any factual evidence’ upon which to prove the crime of ‘shooting

14 Mooney v. Holohan, 294 U.S. 103, 112, 79 L.Ed. 791, 794,55 S.Ct. 340, 98ALR 406 (1935); Napue v.

Illinois, 360 U.S. 264, 268, 79 S.Ct.l 173,3 L.Ed.2d 121(1959);

Kj

11

» >

>*

with the Intent to Kill’. Jackson v, Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99

S.Ct. 2781, reh den., (US) 62 L.Ed.2d 126, 100 S.Ct. 195. That, coupled with

the fact the newly discovered evidence (Detainer- see Appendix I) required

dismissal of all charges with prejudice at pre-trial hearing on 10-13-05 (I.A.D.A.

Art. IV (e); Alabama v. Bozeman, 533 US 146, 150 L.Ed.2d 188, 121 S.Ct. 2079

(2001)) which would preclude the State from gaining a conviction through ‘artful

pleadings ’ (Bros., Inc, v. WE. Grace Mf2. Co., 261 F.2d 428, 1 Fed. R. Serv.2d

(Callaghan) 862, 119 U.S.P.Q. (BNA) 401 (5th Cir. 1958), app. after remand, 320

F.2d594, 7Fed. R. Serv.2d (Callaghan) 1143, 138 U.S.P.Q. (BNA) 357 (5th Cir.

1963), and highly debatable testimonial statements by the prosecution as to

Motive and Intent. The suppressed statement (Appendix F) and lost/destroyed

audio tapes (Appendix J, K), this suppressed evidence15 raised in Actual

Innocence claim #2, would raise ‘Reasonable Doubt’ in the mind of any fair

minded jurist. Jackson v, Virginia, supra; Slack v. McDaniel, 529 U.S. 473, 483

(2000); Murray v. Carrier, 477 U.S. 478, 495-496 (1986); Schlup v. Delo, 513

U.S. 298, 329 (1995) This issue brings before the Supreme Court what weight

to give the lost/destroyed tapes (Appendix J, K). Petitioner demanded these

tapes be played to impeach the State’s witness/informant, whom the State put on

15 Brady v. Maryland, supra; United States v. Agurs, 427 U.S. at 111-112, 49 L.Ed.2d 342, 96 S.Ct.

2392(1976); United States v. Bagley, 473 U.S. 667, 87 L.Ed.2d 481, 105 S.Ct. 3375(1985); Pyle v.

Kansas, 317 U.S. 213, 215,216, 87L.Ed. 214, 216, 63 S.Ct. 177(1984);

12

f *

the stand to lie at the Sentencing Hearing (12-20-06) before leaming/hearing the

District Attorney’s claim [off the record] the tapes had been ‘misplaced’ and were

‘lost’. Petitioner holds the standard of materiality has been met, as the State called

the informant to testify as to what was said [on these tapes] by Petitioner Sells.

United States v. Agurs, 427 U.S. at 111-112, 49 L.Ed.2d 342, 96 S.Ct.

2392(1976). Petitioner states and so now affirms16, the tapes (plural) held hours

of Petitioner talking about his ‘intent’ to send his father a ‘message’ to quit

coming to his house, threatening Petitioner he would get DHS to ‘take’ his son

from him, by showing up unannounced at his parents’ house and firing a ‘shot’

OVER his father’s head. Petitioner talked about disconnecting the phone line at

the house to give him a head start in leaving before his parents called the police.

The tapes showed that Petitioner NEVER had any intention of hurting either of

his parents in any way, and certainly not trying to kill either of them, and would

have convinced ANY jury that Petitioner never had any [plan] intent to harm

either of his parents, in any way! Slack v. McDaniel, 529 U.S. 473, 483 (2000);

3. Can the Federal District Court and Appellate Court deny that Petitioner’s Habeas

claim was timely filed under 28 U.S.C. § 2244 (d)(1)(D) by ruling ‘Contrary to’

and making very ‘Unreasonable application of ‘ Johnson v. United States. 544

U.S. 295, 125 S.Ct. 1571 (2005) ’and ‘McCleskv v. Zant. 499 U.S. 467, 111 S.Ct.

16 Appendix K; Petitioner’s sworn Affidavit, as to the content of these misplaced/destroyed Audio Tapes

13

!'■ -*

,fc\%

1454, 113 L.Ed.2d 517 (1991) Pacheco v. Artuz, 193 F. Supp.2d 756 (S.D.N.Y.

2002)\ saying that when Petitioner learned in Court on 10-13-05, that IADA17

Art. IV (c) and (e)18 did not apply to Petitioner, because NO ‘Detainer’ had been

filed (See: United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d

329(1978)), the Court ruling/saying, that at that time, Petitioner had knowledge

of the EXISTENCE of the Detainer (Appendix I), that Judge Delapp and District

Attorney Esser had just sworn in that very Court, at that very Hearing, DID NOT

EXIST, was not filed (Appendix H); thus, the District Court19 saying that 10-1305 was the start date under 28 U.S.C. § 2244 (d)(1)(D) and therefore the Habeas

Petition was time-barred by the AEDPA, and Petitioner was not entitled to have

his Petition heard. They ruled thus (Appendix C), even when Petitioner offered

the Post-Conviction Habeas Court irrefutable evidence (Appendix G)20, that

Petitioner did not know of the existence of the Detainer (Appendix I,) until 5-152019, thus setting the start date to timely file habeas Petition at 5-15-2019,

making his Habeas Petition TIMELY FILED!!! See: Brumfield v. Cain. 135 S. Ct.

2269 (2015); Miller-El v. Cockrell 537 U.S. 322 (2003); Miller-El v. Dretke. 545

U.S. 231, (2005)

17 Interstate Agreement on Detainers Act

18 These paragraphs mandating dismissal of all charges with prejudice for violation of these provisions

19 Federal District Court for the Northern District of Oklahoma

20 28 U.S.C. § 2254(e); (Brumfield v. Cain. 135 S.Ct. 2269 (2015)).

14

4. If Respondent Crow and Oklahoma have confessed the Constitutional violations

claimed21 by Petitioner as TRUE, when they filed the Motion To Dismiss as

Time-barred (Walker v. True. 399 f.3d 315, 319 (4th Cir. 2005), (LuttigJ.)

(Citation omitted), vacated on other grounds by, 546 U.S. 1086, (2006), is the

Federal District Court obliged to consider these violations to determine if they

rise to the level requiring relief under Swain v. Pressley, 430 U.S. 372, 381, 51

L.Ed.2d 411, 91 S.Ct. 1224(1997); and United States v. Hayman, 342 U.S. 205,

223, 96L. Ed. 232, 72 S.Ct. 263 (1952); as the failure to do so would violate the

Suspension Clause, Art. I, § 9, cl. 222, of the U.S. Constitution, thus rendering

Habeas Corpus relief inadequate and ineffective to test the legality of Petitioner’s

confinement, as supported by Day v. McDonough. 547 U.S. 198, 126 S.Ct. 1675

(2006) reh ’g denied, 549 U.S. 1261, 127 S.Ct. 1394 (2007); and by the evidence

submitted, the Detainer (Appendix I), the 10-13-05 Hearing Transcript

(Appendix H), the Letter showing Petitioner trying to find out if a detainer or

anything that could be construed as such, existed, on 5-13-19 (Appendix G);

21 Petitioner was convicted by a court that had lost jurisdiction for violating Federal law (IADA Art.

IV(c)(e)) due to the suppression of evidence and lies about the suppression by the State Dist. Judge and

Dist. Atty., and the suppression of other evidence (Appendix F, J) that would have proved Sells innocent

of all charges.

22 It would strip Federal Court’s of the power to grant Habeas relief (Act of Feb. 5, 1867, ch 28, §1,14

stat 385), as ANY ‘crafty’ Judge and/or Prosecutor able to hide their suppression of evidence and lies

about it, long enough for a ‘Time-Bar’ to be applied, would be able to make a mockery of the Judicial

process (New Hampshire v. Maine, supra) and illegally convict innocent people at will, with no

repercussions and no recourse for those so convicted. See: Teague v. Lane, 489 U.S. 288, 311-314, 103

L.Ed.2d 334, 109 S.Ct. 1060 (1989); Mackey v. United States, 401 US 667, 692-694, 28 L.Ed.2d 404, 91

S.Ct. 1160 (1971); Rose v. Lundy, 455 US 509, 544, 71 L.Ed.2d 379, 102 S.Ct. 1198 (1982).

15

ignoring all this in violation of Brumfield v. Cain, 135 S.Ct. 2269 (2015);

Miller-El v. Cockrell 537 U.S. 322 (2003); Miller-El v. Dretke. 545 U.S. 231,

(2005); Petitioner asked for ‘Judicial Estoppel’ to be applied 27 times in his

Pleadings. The Tenth Circuit ruling ‘contrary to’ the evidence [Transcript of 1013-05 Hearing (Appendix H)] submitted, saying “the doctrine (Judicial Estoppel)

has no applicability to the question of whether his federal habeas petition was

timely or not.” Reed Elsevier, Inc, v. Muchnick, 559 U.S. 154, 170 (2010); New

Hampshire v. Maine. 532 U.S. 742, 750, 112 S.Ct. 1808 1815, 149 L.Ed.2d 968

(2001); Lyng v. Payne, 476 U.S. 926, 935, 106 S.Ct. 2333, 2339,(1986);

Brumfield v. Cain, 135 S.Ct. 2269 (2015);

5. To The Federal District Court to refused to consider the following questions of

Constitutional violations of Petitioner’s rights:

a. The Court refused to Hear Petitioner’s claims of severe constitutional

violations [suppression of detainer and lying in Court about the

suppression] by the State Pre-Trial Court (Appendix H), which stripped

the State Court of jurisdiction, based upon a violation of Federal law

(IADA); Those being the confessed, suppression and destruction of

evidence23 (Appendix F, J/j^and the State Judge and District Attorney lying

23 Brady v. Maryland. 373 U.S. 83,10 L.Ed.2d 215, 83 S.Ct.; Mooney v. Holohan. 294 U.S. 103, 112, 79

L.Ed. 791, 794, 55 S.Ct. 340, 98ALR 406 (1935): Napue v. Illinois. 360 U.S. 264, 268, 79 S.Ct. 1173, 3

L.Ed.2d 121(1959); Pvle v. Kansas. 317 U.S. 213, 215,216, 87L.Ed. 214, 216, 63 S.Ct. 177(1984);

16

in open court (Appendix H), to deny Petitioner a fair hearing; the defense

attorney appointed by the court, conspiring with the district attorney and

court24 to violate Petitioner’s Constitutional rights and send Petitioner to

prison instead of getting him released and the charges dismissed with

prejudice. Alabama v. Bozeman. supra. Part of Petitioner’s Ineffective

Assistance of Counsel claim is materially indistinguishable from Terry

Williams [upheld] claim in Williams v. Taylor, 529 US. 362, 146L.Ed.2d

389,120 S.Ct. 1495 (2000). Strickland v. Washington, supra; United States

v. Cronic, supra.

b. The District Court denied Petitioner an Evidentiary Hearing (Townsend v.

Sain, supra; 28 U.S.C. § 2254(e); Rules Governing Section 2254 Cases in

the United States District Courts - Rule 8), based upon his ‘newly

discovered’ evidence (Appendix I)25, by making unreasonable application

of Johnson v. United States, 544 U.S. 295, 125 S.Ct. 1571 (2005);

McCleskev v. Zant. 499 U.S. 467, 111 S.Ct. 1454 (1991); to claim that

when Petitioner was told the IADA didn’t apply to him because NO

Detainer (Appendix H, I) had been filed, was the actual start date for when

United States v. Asurs. 427 U.S. at 111-112, 49 L.Ed.2d 342, 96 S.Ct. 2392(1976); United States v.

Baslev. 473 U.S. 667, 87L.Ed.2d 481, 105 S.Ct. 3375(1985);

24 Strickland v. Washington. 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80L.Ed.2d674 (1984); United States v.

Cronic, 466 U.S.648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984);

25 Ruling ‘contrary to’: Brumfield v. Cain, 135 S.Ct. 2269 (2015);

17

,

'I*1

V*

92(1976); United States v. Bagley, 473 US. 667, 87 L.Ed.2d481, 105 S.Ct.

3375(1985); Mooney v. Holohan, 294 U.S. 103, 112,55 S.Ct. 340, 98 ALR

406 (1935);

6. Did the District Court deny Petitioner Sells a ‘substantial benefit’ available to the

State, violating the ‘Equal Protection Clause26’ and ‘Fair Practice’, when it denied

Sells’ Motion to appoint counsel. This applies under ‘Fundamental Fairness’, as

Petition for Habeas Corpus relief was timely filed27 and has MERIT, which could

have been better presented by appointed counsel, as Petitioner claimed in his

Motion to Appoint Counsel. Bearden v. Georgia, 461 U.S. 660, 665, 103 S.Ct.

2064, 76L.Ed.2d221 (1983); Smith v. Robbins, 528 U.S. 259, 276, 120S.Ct. 746,

145 L.Ed.2d 756 (2000).

7. Did Sells act with appropriate ‘due diligence’ to warrant ‘equitable tolling’,

considering that Judge Delapp’s lies in open court convinced Petitioner Sells that

no detainer existed/had been filed, for him to look for and find. Did the District

Court rule contrary to and make unreasonable application of Banks v. Dretke, 540

U.S. 668 (2004); Banks v. Dretke, 2002 U.S. Briefs 8286, at 28, 30, 2003 U.S. S.

Ct. Briefs LEXIS 837, at 47, 49.; and, Strickler [v. Greene, 527 U.S. 263 (1999),

when it said Sells did not exercise proper ‘due diligence’ in looking for and

26 U.S. Constitution, Amendments VI, XIV

27 28 U.S.C.§2244(d)(l)(D)

19

Ik ■*

finding the detainer (Appendix I). Petitioner Sells had no ‘good faith basis’ to

look for [detainer] what he had been convinced, by Judge and Dist. Attorney,

lying in open court, ‘DID NOT EXIST’. Banks v. Dretke, supra; Strickler v.

Greene, supra.

8. Did the 10th Cir. rule incorrectly when it stated the District Court’s ruling was not

debatable28, when the District Court ruled contrary to the evidence presented29,

saving that Sells failed to present clear and convincing evidence that the State

Court’s finding was incorrect (28 U.S.C. §2254(e); Appendix B, p.6;),

concerning the ‘Detainer’ (Appendix I), filed on 4-26-2005, the State Court said

was not filed and therefore the I.A.D.A.30 did not apply. United States v. Mauro,

436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329(1978) Petitioner provided the

‘newly discovered’ [‘detainer’] evidence to prove/validate his claim, with ALL

the State and Federal post-conviction courts refusing to hold an evidentiary

hearing to avoid having to admit that Appendix I is in fact, a detainer. This refusal

violating Townsend v. Sain, 372 U.S. 293, 319(1963), proving that Petitioner did

have ‘clear and convincing evidence’ (28U.S.C. §2254(e).

28 Appendix B; Slack v. McDaniel, 529 U.S. 473, 483 (2000);

29 Appendix I; United States v. Mauro. 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329(1978);

30 Interstate Agreement on Detainer Act

20

. >

REASONS FOR GRANTING THE PETITION [Briefl

The Tenth Circuit should not be allowed to diverge in its application of the law or

rules, from the other Circuits who follow U.S. Supreme Court law; as “the standards

or directions that should govern the District Judges in the disposition of applications

for habeas corpus,” this, “in order to preclude individualized enforcement of the

Constitution in different parts of the nation.” Brown v, Allen, 344 U.S., at 501-502,

73 S.Ct. at 443\ Petitioner holds that Federal Courts can also ‘abuse’ the Habeas

Writ by being overeager to dismiss a Petition, being willing to rule ‘contrary to’ and

to ‘make unreasonable application of31 Supreme Court law in order to do so. Brown

v. Allen, supra. Under the RULES [Law] (28 U.S.C. § 2244 (d)(1)(D), Petitioner

holds that MY Petition for Habeas Corpus was TIMELY filed!!!, and should have

been heard and adjudicated!!! That being said:

I don’t expect you to grant this Petition, despite the Constitutional Questions about

Actual innocence and suppressed evidence, and what weight to give destroyed

evidence in proving actual innocence; despite the Tenth Circuit Court’s setting the

Precedent that, ‘the date ‘you’ have knowledge of the NEED for a ‘thing/factual

predicate’, IS the date ‘you’ have knowledge of the EXISTENCE OF the

‘thing/factual predicate’, to deny a ‘Timely’ filed Habeas Petition under 22 U.S.C.

31 Williams v. Taylor, 529 U.S. 362,146 L.Ed.2d 389,

120 S.Ct. 1495 (2000);

21

- f

*

.1*

§ 2244 (d)(1)(D); despite the Tenth Circuit Court overruling Supreme Court

precedent in ‘Banks v. Dretke, supra’ and ‘Strickier v. Greene\ supra, to deny

Equitable Tolling; despite its refusal to consider or apply Judicial Estoppel, which

this Court should consider whether to make a ‘mandatory’ doctrine when a Court

itself takes a divergent, sworn position to the facts to the detriment of a Defendant;

despite the long list of Supreme Court precedents the Federal District Court ruled

‘contrary to’ and/or ‘made very unreasonable application of, to deny ME, a Human

Being and U.S. Citizen, an Honorably Discharged United States Marine, who is not

a piece of ‘crap’, the relief I am Due based on the Constitution. I ‘paid’ for my ‘Civil

Rights’, but that doesn’t seem to count for much nowadays.

L

CONCLUSION

Despite all the reasons listed above, I KNOW YOU WON’T HEAR MY

CLAIMS, because the Federal Courts no longer uphold a person’s Constitutional

rights and Civil Liberties. You champion keeping a person incarcerated at the

expense of the Constitution and its principles. So hurry up and deny me Certiorari,

finish pissing down my neck, so I can go take a shower and wash the stench of

American Justice off and go read a good novel in my 8 W X 12’ cell, knowing that

I followed the [rules] and tried to exercise my Constitutional rights, to the very END.

Mark E. Sells, U.S.M.C. - Semper Fidelis (Always Faithful)

22

4,

'■*

, i

I say that with my head held high, because I AM, and have always been \faithful to

the Constitution]. The smile on my face comes from knowing that each of you in

denying me Certiorari and refusing to correct these terrible Constitutional wrongs,

cannot, are not and will never be. Ooh Rah, Marine Corps!!!

PLEADING

Comes now the Petitioner, Mark E. Sells, Pro Se, and asks, as a formality, the

Supreme Court of the United States, for the ‘good cause’ shown repeatedly,

Grant Petitioner Certiorari to settle the questions of Constitutional law raised,

and to remedy the Constitutional violations of law stated herein.

IT IS SO PRAYED:

Mark E. Sells

CERTIFICATE OF VERIFICATION

I, Mark E. Sells, state under penalty of perjury under the law, that the foregoing is true and correct,

to the best of my knowledge, per Title 28 U.S.C.A. S 1746.

I certify that this Document is apprx. ZIomcS wofds long, not counting the Cert, of Verif. And

Cert, of Serv. Page(s). I so swear:

5T,

on,

Mark E. Sells

Date

23