Petition for Writ of Certiorari — Kevin D. Loggins, Sr., Petitioner v. Jeff Zmuda, Secretary, Kansas Department of Corrections, et al.

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436 ORIGINAL

CASE NO.

(TO BE SUPPLIED BY COURT)

IN THE UNITED STATES SUPREME COURT-----FOR THE

FILED

OCT 2 7 2021

UNITED STATES OF AMERICA

KEVIN D. LOGGINS SR., PETITIONER:

VS.

JOESPH NORWOOD, RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

FROM THE TENTH CIRCUIT COURT OF APPEALS

FOR THE UNITED STATES

Respectfully,

Vt kx\

^ . \ mfii i a ft

Sf.

KEVIN D . LOGGINS SR.

KDOC NO. #63088

HCF PO BOX 1568

HUTCHINSON, KANSAS

67504

MAR 2 2 2022

QUESTION(S) PRESENTED

WHETHER THE U.S. DISTRICT COURT AND U.S. COURT OF APPEALS FOR THE

TENTH CIRCUIT ERRED IN FINDING PLAINTIFF FAILED TO STATE A CLAIM

REGARDING ENCROACHMENT UPON PLAINTIFF'S CONSTITUTIONAL PROTECTED

FREEDOM OF ASSOACTION?

WHETHER PETITIONER MET THE Turner v. Safely, (1987) 482 U.S. 78,96 L.Ed. 2d 64,

107 S.Ct. 2254

HI. WHETHER HEARING PLAINTIFF'S EX POST FACTO LAW VIOLATION CLAIM

WARRANTED TO PREVENT A MISCARRIAGE OF JUSTICE?

IV.

WHETHER THE U.S. DISTRICT COURT AND THE COURT OF APPEALS FOR THE

TENTH CIRCUIT ERRED IN HOLDING THAT THE HECK BAR APPLIES TO A VOID

JUDGMENT, AGAGINST TRESPASSERS OF OF LAW, AND ACCOMPLISHED THAT BY

AVOIDING ANSWERING PLAINTIFF/PETITIONERS MOTION TO IMPEACH THE VOID

.24

JUDGMENT?

WHETHER THE U.S. THE DISTRICT COURT AND U.S. COURT OF APPEALS

ERRED IN FINDING PETITIONERS' SLANDER/DEFAMATION OF CHARACTER CLAIM

DOESN'T MEET THE ANCILLARY JURISDICTION STANDARD?

WHETHER THE U.S. DISTRICT COURT AND U.S. COURT RULED IN ERROR OF

VI.

WELL-SETTLED LAW THAT STATE OFFICIAL SUED IN THEIR INDIVIDUAL CAPACITY

.36

SHOW UP TO COURT AS INDIVIDUALS PURSUANT TO 42 U.S.C. § 1983?

•J

LIST OF PARTIES

[X] 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

United States Supreme Court Case No. 21-435 (Petition for the

Great writ)

United States Supreme Court Case No.

_______________ »

(Appeal "No's 119*888^A/119,889-A)

(Petition for Writ of Cert.,)

VX.S

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(To be supplied by Court)

TABLE OF CONTENTS

WHETHER THE U.S. DISTRICT COURT AND U.S COURT OF APPEALS FOR THE

TENTH CIRCUIT ERRED IN FINDING PLAINTIFF FAILED TO STATE A CLAIM

REGARDING ENCROACHMENT UPON PLAINTIFF’S CONSTITUTIONAL PROTECTED

FREEDOM TO ASSOCATION?

Cleveland Bd. of Educ. v. LaFluer, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed. 2d 52 (1974).

American Communication Assn. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950)

Moore v. East Cleveland, 431 U.S. 494,97 S.Ct. 1932, 52 L.Ed. 2d 531 (1977).

5,6

Overton v. Bazzetta, 539 U.S. 126, 131, 123 S.Ct. 2162, 156 L.Ed. 2d 162 (2003)

Kaufman v. McCaughty, 419 F.3d 678, 685 (7th Cir. 2005)

6,36

42 U.S.C. § 1983

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed. 2d 694 (1966).

7, 20

Perry v. United States, 294 U.S. 330, 353 (1935)

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163,164, 122

L.Ed. 2d 517, 113 S.Ct. 1160(1993).

Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L.Ed. 2d 59,104 S.ct. 2229 (1984)

WHETHER PETITIONER MET THE TURNER V. SAFELY, (1987) 482 U.S. 78,96 L.Ed

8,9

64,107 S.CT. 2254 STANDARD?

TURNER V. SAFELY, (1987) 482 U.S. 78, 96 L.Ed 64,107 S.CT. 2254

8,9

Frazier v. Dubois, 922 F.2d 560, 562 (10th Cir. 1991)

Beard v. Banks, 548 U.S. 521, 528,126 S.Ct. 2572, 165 L.Ed. 2d 697 (2006)

Speiser v. Randall, 37 U.S. 513, 526

Dombrowski v. Pfister, 380 U.S. at 491 n. 7

.9,10

Cantwell v. Connecticut, 310 U.S. 296, 307

Wirsching v. Colorado, 360 F.3d 1191, 1199-1201 (10th Cir. 2004)

Morrison v. Hall, 261 F.3d 896, 904 (9th Cir. 2001)

Mann v. Smith, 796 F.2d 79, 83 (5th Cir. 1986)

Fraud

iii

Switzer v. Coan, 261 F.3d 985, 988 (10th Cir. 2001)

Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (10th Cir. 1995)

Weese, 98F.3dat552

Right to Impartial Administrator.

15,28

Goldberg v. Kelly, 397 U.S. 254, 271 (1970)

Ward v. Village of Monroeville, 409 U.S. 57, 61-62, 34 L.Ed. 2d 267, 93 S.Ct. 80 (1972)

Schweiker v. McClure, 456 U.S. 188, 195, 72 L.Ed. 2d . 102 S.Ct. 1665 (1982).

Turney v. Ohio, 273 U.S. 510, 522, 71 L.Ed. 749, 47 S.Ct. 437 (1927)

16, 28

Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 64 L.Ed. 2d 182, 100 S.Ct. 1610 and n. 2 (1980)

in.

WHETHER HEARING PLAINTIFF’S EX POST FACTO LAW VIOLATION CLAIM

WARRNTED TO PREVENT A MISCARRIAGE OF JUSTICE?

Lustgarden v. Gunter, 966 F.2d 552, 553 (10th Cir. 1992)

U.S. Const. Art. I, § 10

17,21

United States v. Bell, 991 F.2d 1445, 1450 (8th Cir. 1993)

Collins v. Youngblood, 497 U.S. 37, 50, 111 L.Ed. 2d 30, 110 S.Ct. 2715 (1990)

Cummings v. Missouri, 4 Wall. 277, 325-326 (1867).

17, 23

Lindsey v. Washington, 301 U.S. 397, 401 (1937)

Rooney v. North Dakota, 196 U.S. 319, 324-325 (1905)

In re Medley, 134 U.S. 160, 171 (1890).

Calderv. Bull, 3 Dali. 386, 390 (1798).

Fed. R. Crim. P. R. 52(b)

United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed. 2d 508 (1993).

18, 20

18, 19, 20

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)

Yakus v. United States, 312 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)

Thorpe v. Housing Authority of Durham, 393 U.S. 268,281, 89 S.Ct. 518, 21 L.Ed. 2d 474

(1969).

Ziffnn v. United States, 318 U.S. 73, 78, 63 S.Ct. 465, 87 L.Ed. 621 (1943).

United States v. Schooner Peggy, 5 U.S. 103,1 Cranch 103,110,2 L.Ed 49 (1801)

Hormelv. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037(1940)

United States v. Atkinson, 297 U.S. 157,160, 56 S.Ct. 391, 80 L.Ed. 555 (1936).

.20

.21

Article 1, § 9 U.S.C.S

Miller v. Florida, 482 U.S. 423,430,96 L.Ed. 2d 17, 101 S.Ct. 2446 (1987)

.21

Weaver v. Graham, 450 U.S. 24,29, 67 L.Ed. 2d 17, 101 S.Ct. 960 (1981)

.21,22, 23

State v. LaMunyon, 259 Kan. 54, 65, 911 P.2d 151 (1996)

.21

In re Petty, 22 Kan. 477,482-83 (1879)

.21

In re M.K.D., 21 Kan.App. 2d 541, 544, 901 P.2d 536 (1995)

.21

.21,22,31

46 Am. Jur. 2d, Judgments § 31, p. 393-94

Black's Law Dictionary, 1573 (6th ed. 1990) [Void Judgment]).

,21,24

Fletcher v. Peck, 6 Cranch, 138

.22

7 Moore's Federal Practice § 60.25[2], pp. 223-25 (2d ed. 1995).

.22,31

IV.

WHETHER THE U.S. DISTRICT COURT AND THE U.S. COURT OF APPEAL 10TH

CIRCUIT ERRED IN HOLDING THAT THE HECK BAR APPLIES TO A VOID JUDGMENT,

AGAINST TRESPASSER OF THE LAW, AND ACCOMPLISHING THAT BY AVOIDING

ANSWERING PLAINTIFF/PETITIONERS, MOTION TO IMPEACH THE VOID

.'.24

JUDGMENT?

Gonzales v. Crosbey, 545 U.S. 524, 529, 125 S.Ct. 2641, 162 L.Ed. 2d 480 (2005)

.24, 32

Restatement (Second) of Judgments 22 (1980)

.24

.24, 25, 32

Rule 60(b)(4)

.24

United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (CA1 1990)

Moore’s § 60.44[l][a]

11C. Wright, A Miller, & M. Kane, Federal Practice and Procedures § 2862 p. 331 (2d ed. 1995 Supp.

.24

2009),

Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 376, 60 S.Ct. 317, 84 L.Ed. 329

.24

(1940)

Stoll v. Gottlieb, 305 U.S. 165, 171-172, 59 S.Ct. 134, 83 L.Ed. 104(1938)

.24

United States v. Espinosa, 559 U.S. 260, 130 S.Ct. 1367, 176 L.Ed. 2d 155 (2010)

,24, 27

Elliott v. Peirsol, 1 Pet. 328, 340,26 U.S. 328, 340 (1823).

,25,34

V.T.A., Inc., v. AIRCO, Inc., 597 F.2d 220, 224 n. 8 (10th Cir. 1979)

.25

Buck, 281 F.3d at 1344

.25

In re TIP-PA-Hans Enterprises, Inc., 27 B.R. 780, 783 (1983)

.25

28 U.S.C. § 455(a)

.25

Beall v. Reidy, 457 P.2d 376

.25

Taylor v. O'Grady, 88 F.2d 1189 (7th Cir. 1989)

,25

Resolution of Judicial Conference, (Oct. 1971)

,25

Canon 3D Code of Judicial Conduct.

,26

,27

Nederv. United States, 527 U.S. 1, 119 S.Ct. 1827,144 L.Ed. 2d 35 (1999)

18 U.S.C. § 1512(c)(1).

46 Am. Jur. 2d Judges § 97

.28

Yazoo, etc R. Co. v. Kirk, 102 Miss. 41, 58 So. 710

.28

State v. Brown, 8 Okla. Crim. 40, 126 Pac. 245

.28

Re Perez, 194 La. 763, 194 So. 774

.28

Partial Transcript of Preliminary Examination, pg’s 10-11

.29

U.S. v. Leuth, 807 F.2d 719, 727 (8th Cir. 1986)

.30

Limitation of Judicial Activism in Criminal Trials, 33 Conn. L. rev. 243, 273-74 (2000)

State v. Williamson, 253 Kan. 163 (1993)

Thompson v. Walker, 583 F.Supp. 175 (E.D. Va. 1984)

Chambers v. Bridge Manufactory, 16 Kan. 270 (1876).

,30

Barkley v. Toland, 7 Kan. App. 2d 625, 646 P.2d 1124 (1982)

.31

Main v. Thiboutot, 100 S.Ct. 2502 (1980).

.32

Basso v. Utah Power & Light Co., 495 F.2d 906, 910

.32

v Joyce v. U.S., 474F.2d215

.32

Application of Boykin, D.C.N.Y., 165 F.supp. 25, 30

.33

People v. Eddington, 201 Cal. App. 2d 524, 20 Cal. Rptr. 122, 124

.33

Hope v. Pelezer, 536 U.S. 730, 122 S.ct. 2508, 153 L.Ed. 2d 666 (2002)

.33

Bender v. Williamsport, Area Sch. Dist., 475 U.S. 534, 546, 89 L.Ed. 2d 501,106 S.Ct. 1326

.33

(1986)

Phelps v. Hamilton, 122 F.2d 1309, 1326 (10th Cir. 1997)

.33

FW/PBS v. City of Dallas, 493 U.S. at 231

.33

Valley v. Northern Fire & marine Ins. Co., 254 U.S. 348,41 S.ct. 116 (1920)

.34

Old Wayne Mut. I. Assoc, v. McDonough, 204 U.S. 8,27 S.Ct. 236 (1907)

Williamson v. Berry, 8 How. 495, 540, 12 L.Ed. 1170, 1189 (1850)

Rose v. Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808)

.34

WHETHER THE U.S. THE DISTRICT COURT AND U.S. COURT OF APPEALS

ERRED IN FINDING PETITIONERS' SLANDER/DEFAMATION OF CHARACTER CLAIM

.35

DOESN’T MEET THE ANCILLARY JURISDICTION STANDARD?

.35

Mines Workers v. Gibbs, 383 U.S. 715, 725, 16 L.Ed. 2d 218, 86 S.Ct. 1130 (1966)

City of Chi v. Int'l College of Surgeons, 522 U.S. 156, 118 S.Ct. 523, 139 L.Ed. 2d 525 (1997)..... 35

VI.

WHETHER THE U.S. DISTRICT COURT AND U.S. COURT RULED IN ERROR OF

WELL-SETTLED LAW THAT STATE OFFICIAL SUED IN THEIR INDIVIDUAL CAPACITY

SHOW UP TO COURT AS INDIVIDUALS PURSUANT TO 42 U.S.C. § 1983?

Graham, 473 U.S. at 167; n. 14

36 *

Randall v. Brigham, 7 Wall. 523 74 U.S. 523. 19 L. Ed. 285 (1868)

36, 37

Bell v. Hood, 327 U.S. at 684..............................................................

.37

Marybury v. Madison, 1 Cranch 137, 163 (1803).............................

.37

vii

Appendix-(A) (United States Court of Appeals for the Tenth Circuit opinion)

Appendix-(B) (United States District Court for the District of Kansas Opinion)

Appendix-(C) (United States Court of Appeals for the Tenth Circuit denial for rehearing)

Appendix-(D) (Plaintiffs personally submitted request for Sex Offender override)

Appendix-(E) (Latest approved Overide to correspond with grandchildren)

Appendix-(F) (Censorship of Correspondence from Grandchildren)

Appendix-(G) (Partial Transcript of Preliminary Examination, 14-pg's [spolitated portion])

Appendix-(H) (Partial Transcript of Preliminary Examination, 52-pg's [Only portion of record supplied

to plaintiff/petitioner and appointed appellate counsel to perfect direct appeal])

Appendix-(1) (Transcript of Closing Arguments [Jurytrial, Case No. 95 CR 1859])

Appendix-(J) (Motion to Impeach/Response to Martinez Report/

Judicial Notice)

viii

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

[5Q For cases from federal courts:

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

the petition and is

[^ reported at 854 F^d A p p y QS4 .MOi-h Cir . 2021^; or,

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

[ ] is unpublished.

The opinion of the United States district court appears at Appendix _B

the petition and is

[x] reported at 2020 U.S. Dist. ILelxis 13184

; or,

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

[ ] 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.

JURISDICTION

[X] For cases from federal courts:

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

was May 4th. 2021

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

[X] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: June 11th, 2021

, 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

FREEDOM OF FAMILAL/INTIMATE ASSOCATION 1ST/14TH

AMENDMENT.......................................................................................

6, 7, 36

42 U.S.C. § 1983

U.S. CONST. ARTICLE I. § 10

17,21

Fed. R. Crim. P. R. 52(b).

18,20

Article I. § 9

.21

Rule 60(b)(4).

24,25, 32

28 U.S.C. 455(a),

.26

Canon 3D Code of Judicial Conduct.

.26

18 U.S.C. 1512(c)(1).

,28

STATEMENT OF FACTS

In 1996 a jury convicted my persons of a crime of Aggravated Sexual Battery under

aiding and abetting with a theory that although plaintiff did not commit the crime personally, was

not present when it was committed, nor encouraged, planned or shared intent in its commission

that it was reasonably foreseeable said crime would occur since these crimes often happen at

night time. The State courts held on appeal and post-conviction relief it was uphold the

conviction "although it toed the line", because Kansas Law holds that if the intended crime is

inherently dangerous to human life, its reasonably foreseeable that a felony would occur.

After being in prison for 8-years (2003), the defendant enacted IMPP. 11-115A which

labeled all offenders convicted of a sex crime as Sex Offenders, and to house said offenders of

such. The policy removed all minor visitors from inmates visiting list. Unit Counselor was

instructed to assist these offenders in obtaining overrides to resume their visits with their

children. However the ability to communicate via phones, letters and pictures remained intact.

In 2015 the defendant authorized an amendment to IMPP. 11-115A which abrogated the

right in its entirety prohibiting any contact with any minors family and friends. Plaintiff/

petitioner sought a complete override and to be removed from being housed as a sex offender.

KDOC Unit Counselor Rank ignored plaintiffs/petitioners request and submitted an override to

only visit and communicate with plaintiff/petitioners grandchildren and plaintiff being housed as

a sex offender. The Override board granted in part the privilege of communicating .with and

visiting my grandchildren and denied the requested to be removed from being housed as a sex

offender.

Said policy does not provide a means to appeal the boards decision. So plaintiff sued and

the district court summarily denied and the court of appeals affirmed the district courts summary

judgment and plaintiff filed this forgoing Writ of Cert to vindicate the federally protected

constitutional right.

WHETHER THE U.S. DISTRICT COURT AND U.S. COURT OF APPEALS FOR

THE TENTH CIRCUIT ERRED IN FINDING PLAINTIFF FAILED TO STATE A

CLAIM REGARDING ENCROACHMENT UPON PLAINTIFF'S CONSTITUTIONAL

PROTECTED FREEDOM TO ASSOCATION?

Standard of Review: "As early as 1909 that court said in such a case, Ex parte Dickens. 162

Ala. 272. at 276. 279-280. 50 So. 218. at 220. 221:

fi I

Originally, on certiorari, only the question ofjurisdiction was inquired into; but this limit has

been removed, and now the court 'examines the law questions involved in the case which may

affect its merits.'...

"... The judgment of this court is that the proper way to review the action of the court in cases of

this kind is by certiorari, and not by appeal.

We think that certiorari is a better remedy than mandamus, because the office of a 'mandamus'

is to require the lower court or judge to act, and not 'to correct error or to reverse judicial

action,'... whereas, in a proceeding by certiorari, errors of law in the judicial action of the lower

court may be inquired into and corrected." (Quoting, NAACP v. Ala, ex rel. Patterson. 357 U.S.

449. 78 S. Ct. 1163. 2 L. Ed. 2d 1488 (19581').

"This Court has long recognized that " freedom of personal choice in matters of marriage

and family life is one of the liberties protected by the Due Process Clause of the Fourteenth

Amendment. Roe v. Wade, 410 U.S. 113; Loving v. Virginia. 388 U.S. 1. 12; Griswold v.

Connecticut. 381 U.S. 479: Pierce v. Society of Sisters. 268 U.S. 510: Meyer v. Nebraska. 262

U.S. 390. "See also Prince v. Massachusetts, 321 U.S. 158; Skinner v. Oklahoma, 316 U.S.

535. (Quoting, Cleveland Bd. of Educ. v. LaFleur. 414 U.S. 632. 94 S. Ct. 791. 39 L. Ed. 2d 52

(1974)).

"In the domain of these indispensable liberties, whether of speech, press, or assocation.

the decisions of this Court recognize that abridgment of such rights, even though unintended,

may inevitably follow from varied forms of governmental actions". See American

Communication Assn, v. Douds, 339 U.S. 382. 70 S. Ct. 674. 94 L. Ed. 925 (1950)).

"Appropriate limits on substantive due process come not from drawing arbitrary lines but

rather from careful "respect for the teachings of history [and] solid recognition of the basic values

that underlie our society." " Griswold v. Connecticut. 381 U.S., at 501 (Harlan, J., concurring)."

See generally Ingraham v. Wright. 430 U.S. 651. 672-674. and nn. 41, 42 (1977); Joint AntiFascist Refugee Committee v. McGrath. 341 U.S. 123. 162-163 (1951) (Frankfurter, J.,

concurring); Lochner v. New York, 198 U.S. 45, 76 f** 19381 (1905) (Holmes, J., dissenting).

Our decisions establish that the Constitution protects the sanctity of the family precisely because

the institution of the family is deeply rooted in this Nation's history and tradition. " It is through

the family that we inculcate and pass down many of our most cherished values, moral and

cultural." (Quoting, Moore v. East Cleveland. 431 U.S. 494, 97 S. Ct. 1932. 52 L. Ed. 2d 531

(19771).

"Ours is by no means a tradition limited to respect for the bonds uniting the members of

the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a

household along with parents and children has roots equally venerable and equally deserving of

constitutional recognition. " Over the years millions of our citizens have grown up in just such

an environment, and most, surely, have profited from it. Even if conditions of modem society

have brought about a decline in extended family households, they have not erased the

accumulated wisdom of civilization, gained over the centuries and honored throughout our

history, that supports a larger conception of the family. Out of choice, necessity, or a sense of

family responsibility, it has been common for close relatives to draw together and participate in

the duties and the satisfactions of a common home. Decisions concerning child rearing, which

Yoder, Meyer, Pierce and other cases have recognized as entitled to constitutional protection,

long have been shared with grandparents or other relatives who occupy the same household indeed who may take on major responsibility for the rearing of the children. " Especially in times

of adversity, such as the death of a spouse or economic need, the broader family has tended to

come together for mutual sustenance and to maintain or rebuild a secure home life. This is

apparently what happened here." (Quoting, Moore v. East Cleveland. 431 U.S. 494. 97 S. Ct.

1932. 52 L. Ed. 2d 531 (1977)7

”[T]he Constitution protects 'certain kinds of highly personal relationships.'" Overton v.

Bazzetta. 539 U.S. 126, 131. 123 S.ct. 2162. 156 L.Ed. 2d 162 (2003T "Additionally, it is wellsettled that prison inmates have a First Amendment right both to send and receive mail."

Kaufman v. McCaughtrv, 419 F.3d 678. 685 (7th Cir. 2005).

Section § 1983. Civil action for deprivation of rights, provides.

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper proceeding for redress".

In the case at bar Kansas Department of Corrections policy writters at the Secretary of

^ ,

Corrections [Joesph Norwood] behest, draw up a policy that travels back in time to suspended

the fundamental protected freedom to Assocation with all offenders labeled as sex offenders,

with family and friends under the age of 18 years of age. This policy prohibits any

communication via mail, email, pictures as well as phone calls. "Where rights secured by the

Constitution are involved, there can be no rulemaking of legislation which abrogates them."

Miranda v. Arizona. 384 U.S. 436, 86 S.Ct. 1602.16 L.Ed 2d 694 (1966k "... the Congress

cannot revoke the Sovereign Power of the People." Perry v. United States, 294 U.S. 330, 353

(1935V

Since plaintifftpetitioners case was dismissed on the respondents motion, the Court of

Appeals was required to accept all the factual allegations in plaintiffs complaint as true. "Because

we review here a decision granting respondent's motion to dismiss, we must accept as true all of

the factual allegations contained in the complaint." See, e.g., Leatherman v. Tarrant County

Narcotics Intelligence and Coordination Unit. 507 U.S. 163.164. 122 L.ed. 2d 517,113 S.Ct.

1160 (1993V

When viewing plaintiffs complaint in this light, it cannot be said no relief is warranted.

For Plaintiffs established the right to assocation is a fundamental constitutional right, and that

after being in prison for 20 years the defendants in this case wrote a policy that encroached,

abridged and intruded upon said right. In complaince with federal rules "[a] court may dismiss a

complaint only if it is clear that no relief could be granted under any set of facts that could be

proved consistent with the alligation." Hishon v. King & Spalding. 467 U.S. 69. 73, 81 L.Ed. 2d

59. 104 S.Ct. 2229 (1984V

Wherefore, under the allegations and facts in this case, plaintiff is able to establish that

the Fundamental right to Freedom of Assocation 14th/1 st Amendment protected right was

abridged when Joesph Norwood sanctioned policy permitting KDOC official to deprive plaintiff

of exercising said right. Likewise, defendant Norwood also authorized the defamation and

slander of plaintiff by permitting KDOC official to post plaintiff on the worldwide web as a sex

offender. Plaintiffs case is ripe for trial and this Superior Court must find that the district court

erred in dismissing the case and order the U.S. Court of Appeals and district courts order

reversed and remanded for a full discovery and jury trial.

WHETHER PETITIONER MET THE Turner v Saflev (19871 482 U.S. 78, 96 L. Ed.

II.

2d 64. 107 S. Ct. 2254, PRONGS IN THE ALLEGATIONS IN THE COMPLAINT?

Standard of Review: We begin, as did the courts below, with our decision in Procunier v.

Martinez, supra, which described the principles that necessarily frame our analysis of prisoners'

constitutional claims. The first of these principles is that " federal courts must take cognizance of

the valid constitutional claims of prison inmates. Id., at 405. "Prison walls do not form a barrier

separating prison inmates from the protections of the Constitution. Hence, for example, prisoners

retain the constitutional right to petition the government for the redress of grievances, Johnson v.

Avery. 393 U.S. 483 (19691: and they enjoy the protections of due process, Wolff v. McDonnell.

418 U.S. 539 (T974k Haines v. Kerner, 404 U.S. 519 (19721. "Because prisoners retain these

rights, "when a prison regulation or practice offends a fundamental constitutional guarantee,

federal courts will discharge their duty to protect constitutional rights." Procunier v. Martinez,

416 U.S., at 405-406. (quoting, Turnery Saflev (19871 482 U.S. 78. 96 L. Ed. 2d 64. 107 S. Ct.

2254(19871.

"When a prison regulation impinges on inmates' constitutional rights, the regulation is

valid if it is reasonably related to legitimate penological interests. In our view, such a standard is

necessary if "prison administrators ..., and not the courts, [are] to make the difficult judgments

concerning institutional operations." Jones v. North Carolina Prisoners' Union. 433 U.S.. at

128. (quoting, Turner v Saflev (19871 482 U.S. 78. 96 L. Ed. 2d 64. 107 S. Ct. 2254 (19871.

"First, there must be a "valid, rational connection" between the prison regulation and the

legitimate governmental interest put forward to justify it. Block v. Rutherford, supra, at 586.

Thus, a regulation cannot be sustained where the logical connection between the regulation and

the asserted goal is so remote as to render the policy arbitrary or irrational. Moreover, the

governmental objective must be a legitimate and neutral one. We have found it important to

inquire whether prison regulations restricting inmates' First Amendment rights operated in a

neutral fashion, without regard to the content of the expression." See Pell v. Procunier. 417 U.S..

at 828; Bell v. Wolfish. 441 U.S., at 551. (quoting, Turner v Saflev (19871 482 U.S. 78. 96 L.

Turner v Saflev (19871 482 U.S. 78. 96 L. Ed. 2d 64. 107 S. Ct. 2254 (1987V

It is settled " a prison inmate "retains those [constitutional] rights that are not

inconsistent with his status as a prisoner or with the legitimate penological objectives of the

corrections system." Pell v. Procunier. supra, at 822." When viewing the Turner test prongs,

under the circumstances and facts in this case the goal of the policy [IMPP. 11-115-A] can not

be deemed legitment.

Turner Test:

The Turner test requires a court to weigh four factors: (1) whether there is a "valid,

rational connection between the prison regulation and the legitimate governmental interest put

forward to justify it"; (2) "whether there are alternative means of exercising the right that remain

open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will

have on guards and other inmates, and on the allocation of prison resources generally"; and (4)

the "absence of ready alternatives" to the regulation. 482 U.S. at 89-90 (quotations omitted).

"Courts must conduct this analysis giving "substantial deference" to prison authorities. Frazier v.

Dubois. 922 F.2d 560. 562 (10th Cir. 19911.

"In addition to the four-part test, Turner clearly establishes "restrictive prison regulations

[including restrictions on First Amendment rights] are permissible if they are reasonably related

to legitimate penological interests and are not an exaggerated response to such objectives."

Beard v. Banks. 548 U.S. 521. 528. 126 S. Ct. 2572. 165 L. Ed. 2d 697 (2006) (citation and

quotations omitted).

As to the first prong, whether there is a "valid, rational connection between the prison

regulation and the legitimate governmental interest put forward to justify it? The policy under a

particular case may have a rational connection to render it valid, however in its blanketed and

overbreadeth application it has to be deen arbitrary and irrational. This Superior Court has held in

similar cases: "This overly broad statute also creates a "danger zone" within which protected

expression may be inhibited. Cf. Speiser v. Randall. 37 U.S. 513. 526. Also see Dombrowski v.

Pfister. 380 U.S.. at 491 n. 7 ("in each of these cases the statute was not merely vague or overly

broad "on the face"; the statute was held vague or overly broad as construed and applied to

a particular defendant in a particular case."-) (Emphasis added).

Thus merely finding that a policy, regulation or statute has legitmacy does not answer the

question of the test as to prong-1, because said policy, regulation and statute may be deemed

legitment in one case, and arbitrary and irrational in another. In this particular case plaintiff was

subjected to said overly broad policy when after 20 years in prison, the defendant authorized the

drafting of said policy, that permits state officials to deprive plaintiff of the Fundamental Right to

Freedom of Assocation with all my minor family and friend members, on the basis that 20 years

previous to its enactment plaintiff was convicted of a sex crime.

Plainitiff ask that the Court take notice that for 20 years plaintiff exercised the right to

Intimate Assocation without incident. The policy was drawn after a state officials minor child

was found to be communicating with a KDOC inmate whom happen to be housed as a sex

offender. The vindictiveness of the policy to apply it to all inmates before evaluating any inmates

to determine if said regulation would be legitment under the circumstances or considered

arbitrary or irrational, in itself is capricious and irrational.

In respects to overbroad statutes this Superior Court said at least as early as 1940 that

when dealing with First Amendment rights we would insist on statutes "narrowly drawn to

prevent the supposed evil." Cantwell v. Connecticut. 310 U.S. 296. 307. In this case at bar the

defendants has authorized restraint upon constitution freedom 20 years after the trial. This Court

has held: "A statute authorizing previous restaint upon exercise of the guranteed freedom by

judicial decision after trial is as obnoxious to the Constitution as one providing for like restraint

by administrative actions." Cantwell v. Conn., Supra.

In the case at bar, the defendant in the implication of of its policy put into no place a

safeguard to plaintiffs constitutional rights. The application of the policy was blindly applied to

all defendants that the defendant and KDOC official themselve classified as sex offenders. This

application is not applied upon a case-by-case system, but a blanket application no matter the

circumstance nor facts of individual cases. In the case at bar the district court and court of

appeals looked to a Tenth Circuit case that actually disadvantage the respondents argument

because in said case, the defendant was evaluated before his restrictions by the State DOC was

applied.

Plaintiffs claims were based on a deprivation of contact with other's and family members

who are minors, the court held that he failed petitioner/plaintiff fails to identify any unreasonable

restriction on his constitutional rights. Wirsching v. Colorado. 360 F.3d 1191.1199-1201 (10th

Cir. 2004) (affirming as constitutional a ban on visitation between a convicted sex offender who

refused to comply with treatment program requirements and his child because the prisoner failed

to present evidence demonstrating the prison regulation was not reasonably related to legitimate

penological interests).

As stated above in the Wirsching case, the plaintiff was evaluated, showing that Colorado

Department of Corrections policy was being applied on a case-by-case basis. In the case at bar

the defendant and the created "Sex Offender Overview Board" all have undisputable evidence

that in the case at bar, plaintiff is not accused personally of any sexual misconduct, that plaintiff

wasn't present when the sexual misconduct occurred and that plaintiff had no knowledge of its

occurance previous to it occurring nor after its occurance.

As to prong-2 "whether there are alternative means of exercising the right that remain

open to prison inmates"? As stated in 2003 when the policy IMPP. 11-115-A was first

implemented, the policy only restricted visitation, until overides was granted. Said process was

expedient, because all unit counselors was instructed to assist inmates whom the policy affected

to achieve the overrides. However, the alternative means of talking via phone, writing, and

receiving mail and pictures was allowed. In 2015 when the current amendment was enacted to

the policy, no alternative was permitted, all contact was cut off and any incoming emails, letters,

and pictures was censored and inmates warned concerning phone calls.

The new policy prohibits any contact until a override is granted for every minor family

member. However, said overrides is dependant upon a unit counselor supporting the override. In

the case at bar when plaintiff petition to override the prohibition to visit, talk via phone, write via

email, and regular mail, as well as receive photos with my three grandchildren, the request to

override for my minor family and friend members (nieces, nephews, cousins, step grandchildren

and family friends minors). The unit counselor was permitted to disregard that request and only

submit the portion of the petition for override he supported. See Appendix-( D ).

This renders the alternative means of exercising the right contingent upon the opposing

parties support. Concerning the inmates' other alternative means to exercise their First

Amendment rights, we agree that the ability to listen to the radio or watch television is not an

adequate substitute for reading newspapers and magazines. Morrison v. Halt 261 F,3d 896. 904

(9th Cir. 2001); Mann v. Smith. 796 F.2d 79. 83 (5th Cir. 1986). Likewise, in the case at bar, it

must be held that the override process and the defendants employees dictating what will be

submitted for override is not a substitute for exercising the protected right.

Wherefore, there lies no alternative means to exercise the constitutional rights and that

which remotely resembles a alternative means is dictated by the same party encroaching upon the

right. Thus, as to prong-2 plaintiff case meets the criterion.

As to prong-3 "the impact accomodation of asserted constitutional right will have on

guards and other inmates, and on the allocation of prison resources generally". In support of this

prong plaintiff/petitioner states that for 20-years prior to the enactment of the amendment that

violates the right, plaintiff/petitioner exercised the right with no incident, or any call for plaintiffs

/petitioners right being infringed upon. The labeling of plaintiff/petitioner as a sex offender, and

depriving my persons of the right to assocate with any of my minor family and friend members,

puts a additional strain on the prison resource to monitor all inmates labeled as sex offenders, as

well as censoring those not allowed and distinguishing which minors correspondence is allowed

due to overrides.

In fact the defendants argued to the district court that petitioners claim is mute because a

override had been granted to communicate with and visit with my grandchildren. Plaintiff argued

on appeal that the defendants are commiting fraud by fraudeleiitly arguing that I'm permit to

communicate 'with my grandchildren. See Appendix-( e?). The defendant's employee's continue

to censor correspondences from my grandchildren. See Appendix-( F ). The defendant and

KDOC officials do not have a database to determine which minors are allowed to correspond

with their loved ones thats offenders. So theres no means for mailroom officials to identify whom

the minor is in the photo's or author of a email or letter. Therefore, complicating the process and

put a strain on its own resources, which results in even the overrides permitting the exercise of

the right, being infringed upon.

In the U.S. Court of Appeals for the Tenth Circuit petitioner argued that the defendants

was guilty of fraud, by continuing to deprive petitioner/plaintiff of the right in question by their

continued censoring/seizing correspondences with petitioner/plaintiffs grandchildren. The

defendants argued in the Martinez report, and in its response in the district court that petitioner/

plaintiff has failed to prove that current violation has occurred and that the issue is moot, since

petitioner/plaintiff was granted a override to communicate with three grandchildren. Yet the

censoring/seizing of correspondences continues. See Appendix-( p ).

FRAUD:

Standard of review: ’’Appellate court reviews disposition of action for fraud upon the

court under abuse-of-discretion standard". Switzer v. Coanu 261 F.3d 985. 988 (10th Cir. 2001-)

"Fraud on the court," whatever else it embodies, requires a showing that one has acted

with an intent to deceive or defraud the court. A proper balance between the interests

underlying finality on the one hand and allowing relief due to inequitable conduct on the

other makes it essential that there be a showing of conscious wrongdoing-what can

properly be characterized as a deliberate scheme to defraud-before relief from a final

judgment is appropriate .... Thus, when there is no intent to deceive, the fact that

misrepresentations were made to a court is not of itself a sufficient basis for setting aside

a judgment under the guise of "fraud on the court."Robinson v. Audi

Aktiengesellschaft. 56 F.3d 1259. 1267 (10th Cir. 1995).

Proof of fraud upon the court must be by clear and convincing evidence. See Weese.

98 F,3d at 552. In the case at bar the defendants argued before the district court their was

no controversy before the court and that an override had been granted permitting the

plaintiff to exercise the Constitutional Right, however during the proceedings the

defendant continued to infringe upon the right. This is fraud in its most basic form.

Wherefore, the enforcement of the policy requires hardship upon the guards and

inmates and a reallocation of prison resources to implement it, whereas plaintiff exercise

of the right for 20 years prior to the policy had no effect guards, inmates or the allocation

of the prison resources.

As to prong-4, "abscence of ready alternatives”, in the case at bar there lies no

alternative, since the defendants subordinates are allow to dictate what request will be

submitted to the overview board. See Appendix-( E ). Said request was submitted to

Unit Counselors at HCF, and the counselor did not submit plaintiffs request, instead drew

up his own override request exluding the override to correspond with all my family and

friends considered minors pursuant to the policy.

The override board does not meet the standard when it comes to safeguarding a

individual concerning the exercise of the Constitutionally protected freedom of

assocation. thus leaving petitioner without a avenue to demand the right to exercise my

protected constitutional right. This is equivalent to the State Actor under the Color of

State Law writing a policy that suspends constitutional freedoms under the federal

constitution. Then set up a review board (employee's of the party) violating the right, and

allowing them the authority to dictate what will be petitioned before the reviewing board,

and the authority to rule upon the infringed right.

Right to Impartial Administration:

Standard of review: ".The due process right to a competent and impartial tribunal is quite

separate from the right to any particular form of proceeding. Due process requires a competent

and impartial tribunal in administrative hearings, Goldberg v. Kelly. 397 U.S. 254. 271

(1970V'.

Due process requires a "neutral and detached judge in the first instance," Ward v. Village

of Monroeville, 409 U.S. 57, 61-62, 34 L. Ed. 2d 267. 93 S. Ct. 80 (1972). and the command is

no different when a legislature delegates adjudicative functions to a private party, see

Schweiker v. McClure. 456 U.S. 188,195, 72 L. Ed. 2d 1. 102 S. Ct. 1665 (1982V "That

officers acting in a judicial or quasi-judicial capacity are disqualified by their interest in the

controversy to be decided is, of course, the general rule." Tumev v. Ohio, 273 U.S. 510, 522, 71

L. Ed. 749. 47 S. Ct. 437 (1927). Before one may be deprived of a protected interest whether

in a criminal or civil setting, see Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 64 L. Ed. 2d

182,100 S. Ct. 1610. and n.2 (1980). one is entitled as a matter of due process of law to an

adjudicator who is not in a situation "'which would offer a possible temptation to the average

man as a judge ... which might lead him not to hold the balance nice, clear and true ...."

Ward, supra, at 60 (quoting Tumev. supra, at 532), Even appeal and a trial de novo will not

cure a failure to provide a neutral and detached adjudicator, 409 U.S. at 61.

Justice," indeed, "must satisfy the appearance ofjustice, and this stringent rule may

sometimes bar trial [even] by judges who have no actual bias and who would do their very best to

weigh the scales ofjustice equally between contending parties." Marshall v. Jerrico, Inc., supra.

at 243 (citations and internal quotation marks omitted).

In the case at bar, the adjudicator [Sex Offender Override Board] and the Defendant

Joesph Norwood are one and the same entity. Thus the defendants is not only the judicial branch,

its also the executive branch and controls the advocacy to petition the Override Board. Thus the

author of the policy that deprived plaintiff/petitioner of the fundamental constitutional right to

Intimate Assocation, also is the Sex Offender Override Board. This conflicts with the

fundamental right to due process of law.

Wherefore, there is abscence of a ready alternatives and "even appeal and a trial de

novo will not cure a failure to provide a neutral and detached adjudicator". Petitioners case

demands the case be reversed and remanded.

III.

WHETHER HEARING PLAINTIFF’S EX POST FACTO LAW VIOLATION

CLAIM IS WARRANTED TO PREVENT A MISCARRIAGE OF JUSTICE?

Standard of Review: A district court's determination that a state law does not violate the ex post

facto clause is a question of law we review de novo. See Lustgarden v. Gunter. 966 F.2d 552.

553 (10th Cir, 1992V

Although the constitution only prohibuts the states from passing an ex post facto law,

U.S. Const. Art. I. § 10. an agency regulation which is legislative in nature is encompassed by

this prohibition because a legislative body "cannot escape the Constitutional contraints on its

power by delegating its lawmaking function to an agency. United States v. Bell, 991 F.2d 1445,

1450 (8th Cir. 1993V

"To fall within the ex post facto prohibition, a law must be retrospective-that is, "it must

apply to events occurring before its enactment"—and it "must disadvantage the offender affected

by it," by altering the definition of criminal conduct or increasing the punishment for the crime,

see Collins v. Youngblood. 497 U.S. 37. 50. Ill L. Ed. 2d 30. 110 S. Ct. 2715 (1990V

The ex post facto prohibition " forbids the Congress and the States to enact any law

"which imposes a punishment for an act which was not punishable at the time it was committed;

or imposes additional punishment to that then prescribed." Cummings v. Missouri. 4 Wall. 277.

325-326 (1867). See Lindsey v. Washington. 301 U.S. 397. 401 (T937-); Rooney v. North

Dakota. 196 U.S. 319. 324-325 (1905): In re Medley. 134 U.S. 160.171 (1890^ Calder v.

Bull. 3 Pall. 386. 390 (1798).

In the case at bar the amendment to IMPP. 11-115A which infringes upon the right

[Intimate Assocation] was not enacted until 20-years after petitioner/plaintiff was "allegedly"

convicted of the crime of aiding and abetting Aggravated Sexual Battery. The policy, rule or

regulations permits the state officials to deprive plaintiff/petitioner of the fundamental right

based upon that 20-year old "alleged'' conviction. In the fall of 1995 neither Kansas Statute law

or KDOC policy annexed the lost of the Fundamental right to Intimate Assocation to a conviction

of Aggravted Sexual Battery.

So the policy authorized not only the encroachment upon the fundamental right by state

actors, but it authorized violating petitioner/plaintiffs constitutionally protected freedom, by

enacting policy in violation of law [Ex Post Facto Law]. The defendant in its response argued

that petitioner did not raise this claim in the district court and should not be able to raise the

claim on appeal, that the issue is abandoned.

Standard of Review: USCS Fed Rules Crim Proc R 52(b) "Plain error. A plain error that

affects substantial rights may be considered even though it was not brought to the court’s

attention".

"The Federal Rules of Criminal Procedure vest us with some discretion to consider

forfeited arguments for the first time on appeal. See Fed. R. Crim. P. 52(b) ("A plain error that

affects substantial rights may be considered even though it was not brought to the court's

attention."). But our discretion in these circumstances is "limited." United States v. Olano, 507

U.S.725.731. 113 S. Ct. 1770. 123 L. Ed. 2d 508 (1993).

The first limitation on appellate authority under Rule 52(b) is that there indeed be an

'error.'" Olano, 507 U.S. at 732. "Deviation from a legal rule is 'error' unless the rule has been

waived." Id. at 732-33. "Waiver is different from forfeiture. "Whereas forfeiture is the failure to

make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of

a known right.'" Id. at 733 (quoting Johnson v. Zerbst, 304 U.S. 458. 464. 58 S. Ct. 1019. 82 L.

Ed. 1461 (19381').

"Is the time for determining “plainness” the time when the error is committed, or can an

error be “plain” if it is not plain until the time the error is reviewed? The question reflects a

conflict between two important, here competing, legal principles. On the one hand, “ '[n]o

procedural principle is more familiar to this Court than that a constitutional right,' or a right of

any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely

assertion of the right before a tribunal having jurisdiction to determine it.' Plano, 507 U. S.. at

731. 113 S. Ct. 1770. 123 L. Ed. 2d 508 (quoting Yakus v. United States. 321 U. S. 414. 444.

64 S. Ct. 660. 88 L. Ed. 834 (1944V). (This principle favors assessing plainness limited to the

time the error was committed.)

"On the other hand, “[t]he general rule ... is that an appellate court must apply the law in

effect at the time it renders its decision.” Thorpe v. Housing Authority of Durham. 393 U. S.

268. 281. 89 S. Ct. 518. 21 L. Ed. 2d 474 (19691. See Ziffrin v. United States. 318 U. S. 73. 78.

63 S. Ct. 465, 87 L. Ed. 621 (19431. Indeed, Chief Justice Marshall wrote long ago:

tut

It is in the general true that the province of an appellate court is only to enquire

whether a judgment when rendered was erroneous or not. But if subsequent to the

judgment and before the decision of the appellate court, a law intervenes and positively

changes the rule which governs, the law must be obeyed, or its obligation denied.... In

such a case the court must decide according to existing laws, and if it be necessary to set

aside a judgment, rightful when rendered, but which cannot be affirmed but in violation

of law, the judgment must be set aside.” United States v. Schooner Peggy. 5 U.S. 103.1

Cranch 103,110. 2 L. Ed. 49 (1801).

"Rule 52(b) itself makes clear that the first principle is not absolute. Indeed, we have

said that a “ 'rigid and undeviating judicially declared practice under which courts of review

would invariably and under all circumstances decline to consider all questions which had not

previously been specifically urged would be out of harmony with .., the rules of fundamental

justice.' Plano, supra, at 732, 113 S. Ct. 1770.123 L. Ed. 2d 508 (quoting Hormel v. Helvering.

312 U. S. 552, 557. 61 S. Ct. 719. 85 L. Ed. 1037 (1941): ellipsis in original). Rule 52(b) does

not give a court of appeals authority to overlook a failure to object unless an error not only

“affectfs] substantial rights” but also “seriously affect[s] the fairness, integrity or public

reputation ofjudicial proceedings.” Plano, supra, at 732, 113 S. Ct. 1770. 123 L. Ed. 2d 508

(internal quotation marks omitted; brackets in original).

Rule 52(b)authorizes an appeals court to correct a forfeited error only if (1) there is “an

error,” (2) the error is “ plain,” and (3) the error “affect[s] substantial rights.” 507 U. S.. at 732.

113 S. Ct. 1770.123 L. Ed. 2d 508 (internal quotation marks omitted). "Pointing out that Rule

52 “is permissive, not mandatory,” id., at 735. 113 S. Ct. 1770. 123 L. Ed. 2d 508. we added (4)

that “the standard that should guide the exercise of remedial discretion under Rule 52(b) is

whether “the error 'seriously affectfs] the fairness, integrity or public reputation ofjudicial

proceedings,' id., at 736.113 S. Ct. 1770. 123 L. Ed. 2d 508 (quoting United States v. Atkinson,

297 U. S. 157.160. 56 S. Ct. 391. 80 L. Ed. 555 (1936): brackets in original)."

In the case at bar, in the district court, plaintiff did not specifically argue that the amended

policy violates the Ex Post Facto Clause of the U.S. Constitution, but implied that the forced

application of the policy raises serious question of Ex Post Facto violation. The defendant

argued that plaintiff/petitioners claim was barred due to time limitation to raise the claim. The

defendant also argued that plainitiff/petitioners should have anticipated this change in the law

that would affect a fundamental constitutional right when the KDOC first started the labeling of

"Sex Offenders" and housing inmates as such.

This would require plaintiff/petitioner to have intuition that 20 years after the alleged

crime, and 20 years of exercising the right, that state policy writers would draft a amendment to a

policy that was written 8 years after the alleged criminal conduct, that would trigger a

amendment that would all out abrogate the constitutional right. In Miranda v. Arizona.

384 U.S. 436. 86 S. Ct. 1602. 16 L. Ed. 2d 694 (\966\ this superior court has held, "Where

rights secured by the United States Consitution are involved there can be no rule making or

legislation to abrogate them."

Article 1, § 9, of the United States Constitution provides: "No Bill of Attainder or ex

post facto Law shall be passed." In addition, " Article 1, § 10, provides: "No State shall... pass

any ... ex post facto Law."

"The United States Supreme Court has developed " a two-pronged test to determine

whether application of a penal law violates the Ex Post Facto Clause. "First, the law 'must be

retrospective, that is, it must apply to events occurring before its enactment'; and second, 'it must

disadvantage the offender affected by it.'" Miller v. Florida, 482 U.S. 423. 430. 96 L. Ed. 2d

351. 107 S.Ct. 2446(1987') (quoting Weaver v. Graham. 450 U.S. 24. 29. 67 L. Ed. 2d 17. 101

S. Ct. 9601198111. See State v. LaMunvon. 259 Kan. 54. 65. 911 P.2d 151 (19961 " ("An ex

post facto violation occurs when a new law is retroactively applied to events that occurred before

its enactment and the new law disadvantages the offender affected by it.").

In the case at bar, 1.) there is a plain error, the amendment to the policy that permitted the

defendant to interfer with the fundamental right 20 years after the crime, is repugnant to the

constitution. 2.) The actions of the defendant disadvantage plaintifEpetitioner, because after 20

years the defendant authorized policy that abrogated the fundamentally protected freedom.

A retrospective law violates the Ex Post Facto Clause of the Constitution and is void.

See In re Petty. 22 Kan. 477. 482-83 (1879). It follows that a conviction resulting from ex post

facto application of the law is also void. A void conviction has no force or effect so that nothing

can cure it-not even a legal fiction as attempted by the trial court in the instant case. See In re

M.K.D.. 21 Kan. App. 2d 541. 544. 901 P.2d 536 (1995s) (quoting 46 Am. Jur. 2d, Judgments §

31, p. 393-94) ("A void judgment is not entitled to the respect accorded to, and is attended by

none of the consequences of, a valid adjudication."); Black's Law Dictionary 1573 (6th ed.

1990).

"If the act of 1872 is an ex post facto law, it is unconstitutional, and void, as the

legislature cannot pass such a law. The supreme court of the United States has defined an ex post

facto law to be one which renders an act punishable in a manner in which it was not punishable

when it was committed." ( Fletcher v. Peck. 6 Cranch. 138.)

Seeing as how the Ex Post Facto Law is void, it becomes a constitutional obligation to

end the miscarriage ofjustice and vindicate the Federally Protected Constitutional Right, because

a void judgment is a legal nullity with no legal binding effect.

"A void judgment is not entitled to the respect accorded to, and is attended by none

of the consequences of, a valid adjudication. Indeed, a void judgment need not be recognized

by anyone, but may be entirely disregarded or declared inoperative by any tribunal in which

effect is sought to be given to it. It has no legal or binding force or efficacy for any purpose

or at any place. It cannot affect, impair, or create rights, nor can any rights be based on it."

"Although it is not necessary to take any steps to have a void judgment reversed or

vacated, it is open to attack or impeachment in any proceeding, direct or collateral, and at any

time or place, at least where the invalidity appears upon the face of the record. "All proceedings

founded on the void judgment are themselves regarded as invalid and ineffective for any

purpose." (Emphasis added.) 46 Am. .Tur. 2d, Judgments § 31. p. 393-94. Also see, 7 Moore’s

Federal Practice § 60.25121. pp. 223-25 (2d ed. 1995).

"Two critical elements must be present for a criminal' or penal law to be ex post facto: it

must be retrospective, that is, it must apply to events occurring before its enactment, " and it

must disadvantage the offender affected by it. Lindsey v. Washington, supra, at 401: Calder v.

Bull, supra, at 390.Contrary to the reasoning of the Supreme Court of Florida, a law need not

impair a "vested right" to violate the ex post facto prohibition. Evaluating whether a right has

vested is important for claims under the Contracts or Due Process Clauses, which solely protect

pre-existing entitlements. "See, e. g., Wood v. Lovett. 313 U.S. 362. 371 (1941); Dodge v.

Board of Education. 302 U.S. 74. 78-79 (T937T See also United States Railroad Retirement

Board v. Fritz. 449 U.S. 166. 174(1980). The presence or absence of an affirmative,

enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the

imposition of punishment more severe than the punishment assigned by law when the act to be

punished occurred. "Critical to relief under the Ex Post Facto Clause is not an individual’s right

to less punishment, but the lack of fair notice and governmental restraint when the legislature

increases punishment beyond what was prescribed when the crime was consummated. Thus, even

if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the

Clause if it is both retrospective and more onerous than the law in effect on the date of the

offense." (Quoting Weaver v. Graham. 450 U.S. 24. 101 S. Ct. 960.67 L. Ed. 2d 17 (1981))

In the case at bar, the Right to Familal Assocation is deemed a fundamental/substantial

right that was guamteed before the Bill of Rights and when viewing the conduct of defendants in

light of the circumstances of plaintiffs case, the encroached upon the right based upon a alleged

crime committed 20 years prior to its creation.

We have also held that " no ex post facto violation occurs if the change effected is

merely procedural, and does "not increase the punishment nor change the ingredients of the

offense or the ultimate facts necessary to establish guilt." Hopt v. Utah. 110 U.S. 574. 590

(1884). See Dobbert v. Florida. 432 U.S. 282. 293 (1977). Alteration of a substantial right

however, is not merely procedural, even if the statute takes a seemingly procedural form.

Thompson v, Utah. 170 U.S. 343. 354-355 (1898); Kring v. Missouri, supra, at 232. (quoting

Weaver v. Graham. 450 U.S. at supa 39). (Emphasis added)

"The Constitution deals with substance, not shadows. Its inhibition was levelled at the

thing, not the name. It intended that the rights of the citizen should be secure against

deprivation for past conduct by legislative enactment, under any form, however disguised."

Cummings v, Missouri, 4 Wall. 277. 325 (1867). (Emphasis added).

This court has held when such violation occurs the remedy for such conduct effecting the

right is, "The proper relief upon a conclusion that a state prisoner is being treated under an ex

post facto law is to remand to permit the state court to apply, if possible, the law in place when

his crime occurred. See Lindsey v. Washington, supra, at 402. In re Medley, supra, at 173. In

remanding for this relief, we note that only the ex post facto portion of the new law is void as to

petitioner." (Weaver v. Graham. Supra at FN 22).

Wherefore, the Court should find that the Appellate Court erred in finding petitioner was

not entitled to relief under Rule 52(b) and order the case reversed and remanded back to the

district court for jurytrial.

IV.

WHETHER THE US DISTRICT COURT AND THE US COURT OF APPEALS

ERRORED IN HOLDING THAT THE HECK BAR APPLIES TO A VOID JUDGMENT,

AGAINST TRESPASSERS OF THE LAW AND ACCOMPLISHED THAT BY

AVOIDED ANSWERING PLAINTIFF/PETITIONER'S MOTION TO IMPEACH THE

VOID JUDGMENT?

Standard of review: Rule 60fbL however, provides an “exception to finality,” Gonzalez v.

Crosbv. 545 U.S. 524. 529. 125 S. Ct. 2641. 162 L. Ed. 2d 480 (20051. that “allows a party to

seek relief from a final judgment, and request reopening of his case, under a limited set of

circumstances”. Specifically, Rule 60(b)(4)—the provision under which United brought this

motion-authorizes the court to relieve a party from a final judgment if “the judgment is void.”

A void judgment is a legal nullity. See Black's Law Dictionary 1822 (3d ed. 19331: see also id.,

at 1709 (9th ed. 20091. Although the term “void” describes a result, rather than the conditions

that render a judgment unenforceable, it suffices to say that a void judgment is one so affected by

a fundamental infirmity that the infirmity may be raised even after the judgment becomes final.

See Restatement (Second) of Judgments 22 (19801: see generally id., $ 12. The list of such

infirmities is exceedingly short; otherwise, Rule 60(b)(4Vs exception to finality would swallow

the rule.

Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a certain

type ofjurisdictional error or on a violation of due process that deprives a party of notice or the

opportunity to be heard. See United States v. Boch Oldsmobile. Inc.. 909 F.2d 657. 661 (CA1

1990): Moore's § 60.44T1 lfal; 11 C. Wright. A. Miller. & M. Kane. Federal Practice and

Procedure § 2862. p. 331 (2d ed. 1995 and Supp. 2009): cf. Chicot County Drainage Dist. v.

Baxter State Bank. 308 U.S. 371.376. 60 S. Ct. 317. 84 L. Ed. 329 (1940): Stoll v. Gottlieb.

305 U.S. 165.171-172. 59 S. Ct. 134. 83 L. Ed. 104 (1938).

Federal courts considering Rule 60(b)(4) motions that assert a judgment is void because of a

jurisdictional defect generally have reserved relief only fbr the exceptional case in which the

court that rendered judgment lacked even an “arguable basis” for jurisdiction. Nemaizer v.

Baker. 793 F.2d 58, 65 (CA2 1986): see, e.g., Boch Oldsmobile. supra, at 661-662 (“[TJotal

want ofjurisdiction must be distinguished from an error in the exercise ofjurisdiction, and ...

only rare instances of a clear usurpation of power will render a judgment void” (brackets and

internal quotation marks omitted)), (quoting United Student Aid Funds. Inc, v. Espinosa. 559

U.S. 260.130 S. Ct. 1367.176 L. Ed. 2d 158 (2010)).

In the case at bar the defendant in its Martinez report argued that plaintiffs claim fails

because of the judgment of conviction for Aggravated Sexual Battery in Case No. 95 CR 1859

suffices to prove that plaintiff is correctly labeled as a sex offender. Thus the defendant argued

legal benefits of said judgment, thus bringing the matter of the judgment into the current matter.

This Superior Court as earily as 1828 answered this issue. In Elliott v. Peirsol. 1 Pet.

328. 340. 26 U.S. 328. 340 (1828) ("Where a Court has jurisdiction, it has a right to decide every

question which occurs in the cause; and whether its decision be correct or otherwise, its

judgment, until reversed, is regarded as binding in every other Court. But, if it act without

authority, its judgments and orders are regarded as nullities. They are not voidable, but

simply void: and form no bar to a recovery sought, even prior to a reversal, in opposition to

them. They constitute no justification: and all persons concerned in executing such

judgments or sentences, are considered, in law, as trespassers. This distinction runs through

all the cases on the subject; and it proves, that the jurisdiction of any Court exercising authority

over a subject, may be inquired into in every Court, when the proceedings of the former are

relied on and brought hefore the latter by the party claiming the benefit of such

proceedings.) Id. at 340-341.

In plaintiff/petitioner’s response to the Martinez report, plaintiff argued that the judgment

of conviction for Agg. Sexual Battery is a legal nullity, because it was imposed in contradiction

to Due Process of Law and for want of Subject-matter Jurisdiction. See Appendix-(‘ jJ).

The district court simply ignored answering the challenge and inserted a Heck Bar defense on

behalf of the defendant and summarily dismissed the case with prejudice.

A district court must grant relief under Rule 60(b)(4) if "the judgment is void." Fed. R.

Civ. P. 60(b)(4); see V.T.A.. Inc., v. AIRCO. Inc.. 597 F.2d 220. 224 n.8 (TOth Cir. 1979) ("If

voidness is found, relief is not a discretionary matter; it is mandatory."). Unlike the other

provisions of Rule 60(b). Rule 60(b)(4) is not limited by the timeliness provisions of Rule 60(0):

a motion under Rule 60(b)(4) may be made at any time. Buck, 281 F.3d at 1344; see also

V.T.A.. 597 F.2d at 224 n.9 (explaining that "if a judgment is void, it is a nullity from the outset

and any 60(b)(4) motion for relief is therefore filed within a reasonable time"). However, "[i]n

the interest of finality, the concept of setting aside a judgment on voidness grounds is narrowly

restricted." V.T.A.. 597 F.2d at 225. "A judgment is void only if the court which rendered it

lacked jurisdiction of the subject matter, or of the parties, or acted in a manner

inconsistent with due process of law." Buck. 281 F.3d at 1344 (quotation marks omitted).

(Emphasis added).

In In re Tip-PA-Hans Enterprises, Inc.. 27 B.R. 780. 783 (1983). it was held: ("a judge

lacks jurisdiction in a particular case until it has been demostrated that jurisdiction over the

subject matter exists*1) (when a judge acts "outside the limits of his or her jurisdiction, he or

she becomes a trespasser.,.".) (Emphasis added).

In the case at bar plaintiff/petitioner established from the record that the judgment was

void because the judge that presided over the trial, is the actual individual that brought the charge

of aggravated sexual battery, rendering her disqualified from setting in judgment on the case. See

28 U.S.C. § 455(a). "A fair trial, as required by due process, requires not only an absence of

actual bias on the part of the judge, but also that no man be a judge in his own case or try cases

where he has an interest in the outcome." In re Murchison. 349 U.S. 133. 75 S. Ct. 623. 99 L.

Ed. 942 (1955). In Beall v. Reidy, 457 P.2d 376. the court ruled and determined, "Except by

consent of all parties a judge is disqualified to sit in trial of a case if he or she comes within any

of the gounds of disqualification named in the constitution. See 28 U.S.C. § 455(a).

' In Taylor v. O'Gradv. 88 F.2d 1189 (7th Cir. 198$), the circuit ruled, "further, the judge

has a legal duty to disqualify, even if there is no motion asking for his or her disqualification. In

all cases involving actual, potential, probable or possible conflicts of interests, a judge should

reach his own determination as to whether he should recuse himself from a particular case.

without calling upon counsel to express their views as to the desirability of his remaining in

the case .,,Resolution of The Judicial Conference. Oct. 1971. Even the foregoing

admonition is now disapproved as too lax. See Canon 3D Code of Judicial Conduct: 28 U.S.C.

S 455.

This particular error or defect is considered structual, thus in conflict with due process of

law. As discussed in United States Aids Funds, v. Espinosa, supra, this is one of those rare

instances of clear usurpation of power, rendering this judgment void. In another United States

Supreme Court ruling, in Neder v. United States. 527 U.S. 1.119 S. Ct. 1827.144 L. Ed. 2d 35

09991.

"We have recognized that " most constitutional errors can be harmless." Fulminante.

499 U.S. 279. 309. 113 L. Ed. 2d 302. Ill S. Ct. 1246 09911: "[I]f the defendant had counsel

and was tried by an impartial adjudicator, there is a strong presumption that any other

[constitutional] errors that may have occurred are subject to harmless-error analysis." Rose v.

Clark, 478 U.S. 570. 579. 92 L. Ed. 2d 460. 106 S. Ct. 3101 09861. Indeed, we have found an

error to be "structural," and thus subject to automatic reversal, only in a "very limited class of

cases." Johnson v. United States. 520 U.S. 461. 468. 137 L. Ed. 2d 718,117 S. Ct. 1544 09971.

The error at issue here, ("Turney v. Ohio, 273 U.S. 510. 71 L. Ed. 749. 47 S. Ct. 437

09271 (biased trial judge)); is a constitutional violations this Court has found to defy harmlesserror review. This particular error in "cases, have been explained, to contain a "defect affecting

the framework within which the trial proceeds, rather than simply an error in the trial process

itself." Fulminante. supra, at 310. "Brecht v. Abrahamson. 507 U.S. 619. 630. 123 L. Ed. 2d

353, 113 S. Ct. 1710 09931. and "necessarily render a trial fundamentally unfair,” Rose.

478 U.S. at 577. "Put another wav, these errors deprive defendants of "basic protections"

without which "a criminal trial cannot reliably serve its function as a vehicle for

determination of guilt or innocence ... and no criminal punishment mav be regarded as

fundamentally fair." Id. at 577-578.

In the case at bar, not only was the judge bias, but she was aware of the bias and lack of

impartiality, and although disqualified by 28 U.S.C. § 445(a), she remained on the case, and at

the conclusion of trial ordered the court reporter Diana Nichols to spolitate the record. Thus,

committing a crime of Obstruction ofjustice. See 18 U.S.C. § 1512(c)(1).

In 46 Am. .Tur.2d Judges § 97 it is stated: "Thus, it would appear to be a rule of policy,

that if there is any doubt or question of the judge being 'interested' in the case, the doubt or

question should be resolved in favor of disqualification, rather than qualification of the judge and

where a judge has an interest in the result of litigation, it has been held he is disqualified to act

even if he acts in good faith without knowledge of the disqualification circumstances ...."

This judge was aware and committed a criminal act of concealing the record evidence

from appellate review of both state and federal courts. The record was made unavailable to both

petitioner and counsel until 2-days after the U.S. district court denied habeas relief. See

Appendix-( g )(Date Transcribed Sept., 13,2001). This portion of the record contains the first

9-pages and last 4-pages of the entire Preliminary Examination Transcript. These portions of the

record was spliced and contained in a seperate volume "Labeled" 'Partial Preliminary

Examination Transcript'. The remaining 52-pages was the only portion of the record turned

over to petitioner. See Related Case No. 21-436

The judge new her conduct was depriving me of my Fundamental right to an impartial

tribunal. "A fair trial in a fair tribunal is a basic requirement of due process." In re

Murchison. 349 UlS. 133.136 (1955).The due process right to a competent and impartial

tribunal is quite separate from the right to any particular form of proceeding. Due process

requires a competent and impartial tribunal in administrative hearings, Goldberg v. Kelly. 397

U.S. 254. 271 0970). and in trials to a judge, Turney v. Ohio. 273 U.S. 510 (1927)."

"Every litigant is entitled to nothing less than the cold neutrality of an impartial judge.

Yazoo, etc. R. Co. v. Kirk. 102 Miss. 41. 58 So. 710. This principle applies even to the state in

criminal cases. "State v. Brown. 8 Okla. Crim. 40.126 Pac. 245. "The law goes further than

requiring an impartial tribunal; it also requires that the tribunal appears to be impartial. Re Perez.

194 La. 763. 194 So 774."

Partial Transcript ofPreliminary Examination (containing 14-pages) Pg-10, lines 1-25:

1. a competent attorney like Mr. Zacharias would

2. recognize the danger in having a preliminary hearing

3. because additional charges can be filed.

THE COURT: I saw it immediately, so —

MR. KAUFMAN: Mr. Zacharias correctly does

6. perceieve that from my count, at least three charges

7. should be added. I'm not interested in an aggravated

8. sexual battery being added. I'm not interested in an

9. aggravated robbery against Sonia being added.

10.

Iam asking that the Court tack on against

11. both these defendants an aggravated kidnapping. That

12.- would be the confining of Daron for the puipose of

13. helping facilitate the commission of the crime, which

14. is the aggravated robbery, specifically by confining

15. Daron. It certainly makes it easier to go through the

16. house not worried about Daron trying to intercede or

17. prevent the robbery. The kick delievered by

18. Mr. Upchurch is the bodily harm. From where I was

19. standing, a good 15 feet away, I could see the scar or

20. the mark that was on Mr. Green's left cheek. That is

21. the only charge I'm requesting be added at this time

22. if the Court deems probable cause has been shown.

23.

THE COURT: Thank you. Mr. Zacharias?

24.

MR. ZACHARIAS: Well, I -1 think I'm

25. entitled to move to dismiss the chrages, but —

(Continues on page 11, linesl-12:)

THE COURT: You c^n make argument. Til

2. listen.

MR. ZACHARIAS: I dont think I'll take up

4. the court's time, Your Honor.

THE COURT: Thank you. Mr. Barbara? ,

MR. BARBARA:- I would move .that the Court

strike the aggravated burglary charge in this case,

don’t think evidence has been shown an aggravated

9. burglary occurred.

10.

THE COURT: Thank you. Well, I -1 am

11. interested in adding an aggravated sexual battery

12. charge, and I am adding aggravted sexual battery.

APPENDIX-(G) , pg.'s 10-11

"When a judge lose its color of neutrality and tends to accentuate and emphasize the

prosecution's case, he or she failed to play the role of Art. Ill Judicial Officer." U.S. v. Leuth.

807 F.2d 719, 727 (8th Cir. 1986J. "Once atrial judge steps outside the role of detachment, he or

she assumes the role of partisan or advocate. At that point the judge is no longer, nor even

appears to be neutral and impartial." Limitation of Judicial Activism in Criminal Trials, 33

Conn. L. rev. 243. 273-74 (2000).

It is not in a judges jurisdiction/authorization to file nor order charges filed against a

defendant, then set in trial on said charge. In re Murchison, supra Id. at 136, 75 S.ct. 623, 99

L.Ed. 942. "No man can be a judge in his own case” adding that "No man is permitted to

try cases where he has an interest in the outcome." It is the sole authority of the prosecution

on deciding what charges to file and on whom. State v. Williamson. 253 Kan. 163 ('1993). Also

see Thompson v. Walker. 583 F.Supp. 175 (E.D. Va. 19841 (the role of a judge, however is

fundamentally different from that of an advocate, a judge must remain impartial. A judge

must not forget the function of a judge and assume that of an advocate.)

In the case at bar the judge gave up her impartiality and allowed the prosecution to

present the case and the charge of Agg. Sexual Battery in such a way that the jury was not

required to consider any element of the charge to convict. Said lowering of the bar was

accomplished by the prosection during closing arguments, by telling the jury the definition of the

jury instruction on that "particular charge’ [sexual battery], doesn’t required petitioner to aid,

assist, encourage, participate or even have knowledge of the crime. That petitioner can be found

guilty, because sexual offense often happen at night time so by Kansas law it was reasonable

forseeable that said crime would occur, thus establishing petitioner/plaintiffs guilt. See

Appendix-( I ), pg's-( 40-42). The U.S. District Court in Batts, 811 F.

Supp. 625 (D. Kan. 1993), rejected such theory.

Although a petitioner/plaintiff need not have a void judgment reversed and has the

right to have it treated as it is "A Legal Nullity", See 46 Am. Jur. 2d. Judgments $ 31. p.

393-94. Chambers v. Bridge Manufactory. 16 Kan. 270 0876): 7 Moore’s Federal

Practice § 60.25121. pp, 223-25 (2d ed. 1995), which provides:

"A void judgment is not entitled to the respect accorded to. and is attended bv none of the

consequences of, a valid adjudication. Indeed, a void judgment need not be recosnized by

anyone, but may be entirely disregarded or declared inoperative by any tribunal in which

effect is sousht to be given to it. It has no legal or binding force or efficacy for any purpose or at

any place. It cannot affect, impair, or create rights, nor can any rights be based on it."

Thus, upon the defendant claiming he is justified in his actions and relying upon this void

judgment of conviction [Agg. Sexual battery], plaintifTpetitioner is entitled to impeach said

judgment and have it declared inoperative and with no legal or binding effect.

In 7 Moore’s Federal Practice $ 60.25 [***101 T21. pp. 300-301 (2d ed. 1982). the

following discussion is found:

"A void judgment is something very different than a valid judgment. The void judgment creates

no binding obligation upon the parties, or their privies; it is legally ineffective. And while, if it is

a judgment rendered by a federal district court, the court which rendered it may set it aside under

Rule 59. within the short time period therein provided, or the judgment may be reversed or set

aside upon an appeal taken within due time where the record is adequate to show voidness, the

judgment may also be set aside under 60(b)(4) within a ’reasonable time', which, as here applied,

means generally no time limit, the enforcement of the judgment may be enjoined; or the

judgment may be collaterally attacked at any time in any proceeding, state or federal, in

which the effect of the judgment comes in issue, which means that if the judgment is void it

should be treated as legally ineffective in the subsequent proceeding. Even the party which

obtained the void judgment may collaterally attack it. And the substance of these principles are

equally applicable to a void state judgment.

"A party attacking a judgment as void need show no meritorious claim or defense

or other equities on his hehalf; he is entitled to have the judgment treated for what it is, a

legal nullity, if he establishes that the judgment is void." (quoting Barkley v. Toland. 7 Kan.

Ann. 2d 625. 646 P.2d 1124 (1982)) fEmnhasis added).

In the case at bar both the district court and the court of appeals ignored petitioners

argument that the Heck Bar is not applicable because the judgment in which the defendants was

seeking to rely upon to justify its action is a legal nullity. See Appendix-( j ).

This Court in Gonzalez v. Crosbv. supra. Id. held:

Rule 60(b) has an unquestionably valid role to play in habeas cases. The Rule is often

used to relieve parties from the effect of a default judgment mistakenly entered against them, e.g.,

Klapprott. 335 U.S., at 615. 93 L. Ed. 266, 69 S. Ct. 384 (opinion of Black, J.), a function as

legitimate in habeas cases as in run-of-the-mine civil cases. The Rule also preserves parties’

opportunity to obtain vacatur of a judgment that is void for lack of subject-matter

iurisdiction-a consideration just as valid in habeas cases as in any other, since absence of

jurisdiction altogether deprives a federal court of the power to adjudicate the rights of the parties.

“Steel Co. v. Citizens for Better Environment. 523 U.S. 83. 94. 101.140 L. Ed. 2d 210.118 S.

Ct. 1003 (1998). (Emphasis added).

The district court and the court of appeals ignored applying the law in the case at bar. The

law provides: "The law provides that once State or Federal Jurisdiction has been challenged, it

must be proven." Main v. Thiboutot, 100 S.Ct. 2502 (1980). "Jurisdiction can be challenged at

anytime, "and" Jurisdiction, once challenged, cannot be assumed and must be decided. Basso v.

Utah Power & Light Co.. 495 F.2d 906. 910. "There is no dsicretion to ignore the lack of

jurisdiction." Joyce v. U.S.. 474 F.2d 215.

The Gonzalez v. Crosbv. supra court also held, "required a movant seeking relief under

Rule 60(b)(6) to show "extraordinary circumstances" justifying the reopening of a final

judgment. Ackermann v. United States. 340 U.S. 193.199. 95 L. Ed. 207. 71 S. Ct. 209 (1950).

In the case at bar, petitioner/plaintiff showed from the record that the judge and court reporter in

the case committed the crime of obstruction ofjustice, violation of 18 U.S.C. 1512(c)(1) to

prevent the discovery of this structual error which deprived the court (Judge) ofjurisdiction to set

in judgment on the case. A Judge committing a criminal act which resulted in the deprivation of a

individuals liberty for 26 plus years must be deemed a Extraordinary Circumstances.

"The destruction of evidence. It constitutes an obstruction ofjustice. The destruction or

'significant and meaningful alteration of documents' or instrument. See Application of

Bodkin. D.C.N.Y.. 165 F. Supp. 25. 30. (Emphasis added). "To hide or withdraw from

observation, cover or keep from sight, or prevent discovery of." People v. Eddington. 201 Cal.

App. 2d 524, 20 Cal. Rptr. 122. 124. In the case at bar, the removal of the first 9-pages and the

last 4-pages of the Preliminary Examination transcript, was a significant and meaningful

alteration of the document. Its purpose was to prevent higher reviewing courts State and Federal

from discovering the structual/jurisdictional error. This conduct also covers a element to

establish the 'knowingly' violation of plaintiffs right. "To be clearly established, the contour of a

right "must be sufficiently clear that a reasonable official would undestand that what he is doing

violates that right." Hope v. Pelzer. 536 U.S. 730.122 S.Ct. 2508. 153 L.Ed. 2d 666 (2002).

The law provides that the jurisdiction is never presumed but must be established from the

record and not averment therein. "We presume that courts lack jurisdiction "unless 'the

contrary appears affirmatively from the record."1 Bender v. Williamsport Area Sch. Dist..

>475 U.S. 534. 546. 89 L.Ed 2d 501, 106 S.Ct. 132&(T986T quoting King Bridge Co. v. Otoe

County. 120 U.S. 225. 226. 30 L.Ed. 623. 7 S.Ct. 552 (18871. "It is a long settled principle

that standing cannot be inferred argumentivelv from averments in pleadings but rather

must affirmatively appear in the record." Phelps v. Hamilton. 122 F.2d 1309.1326 flOth Cir.

1997) (quoting FW/PBS v. City of Dallas. 493 U.S. at 231). (Emphasis added).

Neither the district court or Court of Appeals comply with the principles of these laws,

both courts simply held that the Heck Bar applies and dismissed the complaint and denied the

appeal therefrom. This required both courts to ignore the long standing law in this country.

Which provides:

"Where a Court has jurisdiction, it has a right to decide every question which occurs in

the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is

regarded as binding in every other Court. But, if it act without authority, its judgments and

orders are regarded as nullities. They are not voidable, hut simply void: and form no bar to

a recovery soushU even prior to a reversal, in opposition to them. They constitute no

justification; and all persons concerned in executing such judgments or sentences, are considered,

in law, as trespassers. This distinction runs through all the cases on the subject; and it proves,

that the jurisdiction of any Court exercising authority f*3411 over a subject, may be inquired into

in every Court, when the proceedings of the former are relied on and brought before the latter by

the party claiming the benefit of such proceedings." Elliott v. Lessee of Peirsol, 26 U.S. 328. 7

L. Ed. 164 (1828). Id. at 340-341.

The law is well-settled that a void order or judgment is void even before reversal. Vallelv

v. Northern Fire & Marine Ins. Co.. 254 U.S. 348. 41 S.Ct. 116 0920) ("Courts are constituted

by authority and they cannot go beyond that power delegated to them. If they act beyond that

authority, and certainly in contravention of it. their judgments and orders are regarded as

nullities. They are not voidable, but simply VOID, AND THIS EVEN PRIOR TO

REVERSAL." [Emphasis added]); Old Wayne Mut. I. Assoc, v. McDonough. 204 U.S. 8. 27

S.Ct. 236 (T907T Williamson v. Berry. 8 How. 495. 540.12 L.Ed. 1170.1189 (T850E Rose v.

Himelv. 4 Cranch 241. 269. 2 L.Ed. 608, 617 (T808T (Emphasis added).

Wherefore, the judgment relied upon by the defendants to justify its actions within the

color of state law, is a legal nullity and incapable of establishing any rights on behalf of the

defendant, and since said defendant asserted the judgment in the current proceedings and relied

upon it as a defense, plaintiff/petitioners has a legal right to raise an inquiry into the jurisdiction

of said judgment. This Court must reverse and remand back to the district court and court of

appeals with orders to examine challenge of the voidness of the judgment, and answer the

question from the record. Or an alternative is that this Superior Court on its on motion examine

the record.

WHETHER THE DISRICT AND COURT OF APPEALS ERRED IN FINDING

PETITIONERS’ SLANDER/DEFAMATION OF CHARACTER CLAIM DOESN’T

MEET THE ANCILLARY JURISDICTION STANDARD?

Standard of review: Ancillary jurisdiction may extend to claims having a factual and logical

dependence on "the primary lawsuit," ibid., but that primary lawsuit must contain an independent

basis for federal jurisdiction. The court must have jurisdiction over a case or controversy before it

may assert jurisdiction over ancillary claims. "See Mine Workers v. Gibbs. 383 U.S. 715. 725.

16 L. Ed. 2d 218. 86 S. Ct. 1130 09661.

"This Court has long adhered to principles of pendent and ancillary jurisdiction by which

the federal courts' original jurisdiction over federal questions carries with it jurisdiction over state

law claims that "derive from a common nucleus of operative fact," such that "the relationship

between [the federal] claim and the state claim permits the conclusion that the entire action

before the court comprises but one constitutional 'case.'" Mine Workers v. Gibbs. 383 U.S. 715.

725. 16 L. Ed. 2d 218. 86S.Ct. 1130 (19661: see Hurn v. Pursier. 289 U.S. 238, 77 L. Ed.

1148. 53 S. Ct 586 (1933):SiIer v. Louisville & Nashville R. Co.. 213 U.S. 175. 53 L. Ed. 753.

29 S. Ct. 451 (1909).Congress has codified those principles in the supplemental jurisdiction

statute, which combines the doctrines of pendent and ancillary jurisdiction under a'common

heading. 28 U.S.C. S 1367. " The statute provides, "in any civil action of which the district

courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all

other claims that are so related to claims in the action within such original jurisdiction that they

form part of the same case or controversy under Article IH of the United States Constitution." §

1367(a). That provision applies with equal force to cases removed to federal court as to cases

initially filed there; a removed case is necessarily one "of which the district courts have original

jurisdiction." See $ 1441(a): Carnegie-Melion Univ. v. Cohill. 484 U.S. 343. 350-351. 98 L. Ed.

2d 720. 108 S. Ct. 614 (1988) (discussing pendent claims removed to federal court)." (quoting

City of Chi, v. Int’l College of Surgeons. 522 U.S. 156.118 S. Ct. 523. 139 L. Ed. 2d 525

(1997).

In the case at bar the federal claim [Deprivation of the Fundamental right to

Familal/Intimate Assocation] and state claim [Slander/Defamation of Character] stems from a

common nucleus, and is operative of the same facts, [The judgmet of Conviction for agg. Sexual

battery and labeling petitioner/plaintiff as a SEX OFFENDER] as a result. The defendants

claimed benefits of that 20 year old judgment, which plaintiff argued is a legal nullity for want of

jurisdiction and its imposition being in contradiction to due process of law.

Wherefore, the Constitutional abridgment of plaintiff/petitioners Fundamental right to

Familal/Intimate Assocation 1 st/14th Amendment was accomplished based off the defendants,

labeling plaintiff/petitioner "A Sex Offender” [The Slander/Defamation]. Therefore, the State

libel claim and the Constititional violation is one consitutional case, warranting the exercise of

Ancillary or Pendent Jurisdiction. Thus the district court and Court of Appeals erred in not

hearing the claim, and this Superior Court should issue the Writ and remand for hearing on the

matter in favor of exercising Pendent or Ancillary jurisdiction on the slander/defamation claim.

VI.

WHETHER THE DISTRICT COURT AND COURT OF APPEALS RULED IN

ERROR OF WELL-SETTLED LAW THAT STATE OFFICIALS SUED IN THEIR

INDIVIDUAL CAPACITY SHOW UP TO COURT AS INDIVIDUALS PURSUANT TO

42 U.S.C. § 1983?

Standard of Review: State officers sued for damages in their official capacity are not "persons”

for purposes of the suit because they assume the identity of the government that employs them.

Ibid. By contrast, "officers sued in their personal capacity come to court as individuals. A

government official in the role of personal-capacity defendant thus fits comfortably within

the statutory term “person." Cf. Will v. Mich. Dep't of State Police. 491 U.S. id., at 71, n. 10

" ("[A] state official in his or her official capacity, when sued for injunctive relief, would be a

person under § 1983 because ’official-capacity actions for prospective relief are not treated as

actions against the State"') (quoting Graham. 473 U.S. at 167. n. 14).

Under §1983. Section 1983 provides, in relevant part:

n h

Every person who, under color of any statute, ordinance, regulation, custom, or usage,

of any State ... subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party injured .. ..”

"In an action against a judge of any court, whether of record or otherwise, for any act

done by him or by his command, the question in every case to be determined is, was the act done

ajudicial act, done within his jurisdiction? If it was not, he can claim no immunity or

exemption by virtue of his office from liability as a trespasser: "for if he has acted without

jurisdiction, he has ceased to be a judge." See 2 Institutes. 427: The Marshalsea Case. 10

Reports. 76 A.. Flovd v. Barker. 12 Id. 23: Hoskins v. Matthews. 1 Levinz. 292: Martin v.

Marshall. Hobart. 63: Bushell’s Case. 1 Modem. 119: Hamond v. Howell. 2 Id. 219: Smith v.

Bouchier. 2 Strange. 993: Groenvelt v. Burwell, 1 Ld. Raymond, 454: Miller v. Seare. 2 W.

Blackstone. 1141: Perkin v. Proctor. 2 Wilson. 386: Mostyn v. Fabrigas. 1 Cowper. 161: Sutton

v. Johnstone. 1 Term. 493: Welch v. Nash. 8 East 402: Burdett v. Abbott. 14 Id. 1; Ackerlev v.

Parkinson, 3 Maule & Selwyn, 411: Mitchell v. Foster, 4 Perry & Davison, 153; S.C.^ 12

Adolphus & Ellis. 472: Garnett v. Ferrand. 9 Dowling & Ryland. 670: Van Sandau v. Turner. 6

O.B. 773; Gossett v. Howard. 10 Id. 411: Houlden v. Smith. 14 Id. 841: Kinning v. Buchanan. 8

C.B. 271; Watson v. Bodell, 14 Meeson & Welsbv. 70; Fergurson v. Kinnoull. 9 Clark & Finellv.

296; Miller v. Hope. 2 Shaw's Appeal Cases. H.L. 125: Calder v. Halket 3 Moore's Privy

Council. 28; Taaffe v. Downes. Id. 36: Gahan v. Lafitte. Id. 382; Hill v. Bigge. Id. 465: Wise v.

Withers. 3 Cranch. 331; Anderson v. Dunn. 6 Wheaton. 204; Kendall v. Stokes. 3 Howard. 89;

Mitchell v. Harmony. 13 Id. 144; Dynes v. Hoover. 20 Id. 65; Yates v. Lansing. 5 Johnson. 282;

Bigelow v. Steams. 19 Id. 39: Cunningham v. Bucklin. 8 Cowen. 178: Horton v. Auchmoodv. 7

Wendell. 200; Bevard v. Hoffinan. 18 Maryland. 479; Lining v. Bentham. 2 Bay. 1; Miller v.

Grice. 2 Richardson. 27; Greene v. Mumford. 5 Rhode Island. 472; Scovil v. Geddings. 7 Ohio.

566; Piper v. Pearson. 2 Gray. 120; Clarke v. May, Id. 410; Kelly v. Bemis. 4 Id. 83; Noxon v.

Hill. 2 Allen. 215; Revill v. Pettit. 3 Metealf. Kentucky. 314.

"Where legal rights have been invaded, and a federal statute provides for a general right

to sue for such invasion, federal courts may use any available remedy to make good the wrong

done." Bell v. Hood, 327 U.S.. at 684 (footnote omitted)." "The very essence of civil liberty

certainly consists in the right of every individual to claim the protection of the laws, whenever he

receives an injury." Marburvv. Madison, 1 Cranch 137. 163 (1803).

Plaintiff/petitioner seeks to sue Joesph Norwood [The Defendant] in his individual

capacity for monetary damages and in his official capacity for injunctive relief to cease and desist

the unlawful action of interferring with the Fundamental Constitutional right to Familal/Intimate

Assocation, and the slander/defamation of character by broadcasting my persons on the KDOC

website as a Sex Offender, Managing my person as a sex offender and requirement that petitioner

attend sex offender treatment classes, under the unique circumstance in this case.

Wherefore, this Superior Court should find that the district court and Court of Appeals

erred in finding that the defendant [state official] sued in his individual capacity was a suit

against a official in his official capacity, and that petitioner seeking said relief is not barred by the

11th Amendment, since the defendants actions based upon the void judgment renders him a

trespasser of the law.

CONCLUSION

After 8-years in prison the defendant enacted a policy IMPP. 11-115A which labels all

inmates convicted of a sex crime as "Sex Offenders", and housed them as such. The new

implementation of the policy, required inmates to seek sex offender overrides for visits of ones

minor children from the party implementing the policy [KDOC's Secretary of Corrections].

However, inmates fundamental right to Assocation remained unabridged because the offender

labeled as a sex offender still had alternative means to associate with loved ones via mail, phone

calls, pictures and cards.

After 20-years in prison, the KDOC's Secretary of Corrections authorized an amendment

to the policy [IMPP. 11-115A], which sanctioned depriving inmates considered sex offenders of

any right to association with friends or family under 18-years of age, including children,

grandchildren, siblings, nephews, nieces, cousins, other relatives or friends. This Amendment

left no alternative means to exercise the right There was no evaluations of each case on a case

by case basis, no due process hearings held before the infringement upon the constitutional right

nor any notice or an opportunity to be heard before said deprivation of the right.

The policy provides that a offender may request a override to associate with a particular

minor. Plaintiff/petitioner submitted a override requesting override of my grandchildren, nieces

and nephews, as well as all family and friend members. See Appendix-( p ). However, the

policy permits the KDOC assigned Unit Counselor to submit the override based on his own

approval and request. No Due Process hearing was held, and the board granted overrides for

plaintiff/petitioners three granchildren, and upheld housing plaintiff/petitioner as a sex offender

and requirement to atend sex offenders treatment despite the unique circumstances of the case.

The following law suit pursued and the district court granted summary judgment and

dismissed the case with prejudice. The defendant argued that there is no controversy since a

override had been granted for my grandchildren, and that the injury is not a ongoing injury, since

the deprivation of the Constitutional right is not additional punishment. The defendant also

argued that plaintiff was sueing the defendant in his official capacity which is barred by the 11th

Amendment. The court ultimately held plaintiffs claims was habeas in nature and that the Heck

Bars favorable termination is required.

The fact of the matter is that, KDOC's Secretary of Corrections, sanctioned the writing of

state penal policy that abrogated a fundamentally protected constitutional right. Article VL. The

Supremecv Clause provides:

"This Constitution, and the Laws of the United States which shall be made in Pursuance

thereof: and all Treaties made, or which shall be made, under the Authority of the United States.

shall be the supreme Law of the Land: and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any State to the Contrary

notwithstanding." (Emphasis added). This Superior Court in Miranda v. Arizona, supra echoed

this holding when it found, "Where rights secured by the consitution are involved, there can br no

rulemaking of legislation which abrogates them."

The right to Familal/Intimate Assocation is a secured right pursuant to the 1st & 14th

Amendment of the United States Constitution. Thus KDOC's Secretary of Corrections was

without authority to authorize policy writers to write policy that abrogated the right. Likewise,

Article 1 §§ 9,10 of the United States Constitution prohibits the enactment of Ex Post Facto

Laws. The defendant accomplished the encroachment/violation of the right through violation of

Article 1 §§ 9,10, Ex Post Facto Violation.

In 1995 when petitioner alleged sexual offense occurred there was no law, rule nor policy

that gave noticed to individuals that if one is convicted of a crime considered a sexual crime,

that the right to Familal/Intimate Assocation woud be taken away 20-years later. Ex Post Facto

Violation is defined as

"[EJvery law that changes the punishment, and inflicts a greater punishment, then the law

annexed to the crime, when committed." Calder v. Bull. 3 Dali. 386. 390. 3 U.S. 386. 1 L.Ed

648 (1798V "States are prohibited from enacting ex post facto law. U.S. Const., Art. I, § 10, cl.

1. One function of Ex Post Facto Clause is to bar enactments which, by retroactive operation,

increase the punishment for a crime after its commision". Collins v. Youngblood. 497 U.S. 37,

42. Ill L.Ed. 2d 30. 110 S.Ct. 2715 (1990) (citing Beazell v. Ohio. 269 U.S. 167. 169-170. 70

L.Ed. 216. 46 S.Ct. 68 (1925)1.

In the case at bar, the defendant did just that, changed my punishment and inflicted a

greater punishment, by the deprivation of my Familal/Intimate Assocation with all my minor

relatives and friends. The defendant accomplished that by labeling me as a sex offender 8-years

after the alleged conviction, and deprived me of the constitutional right 20-years after the alleged

conviction, implicitly in retrospect. The defendant claimed benefit of the alleged judgment of

conviction of Aggravated Sexual battery.

Plaintiff/petitioner challenged the judgment as void for want ofjurisdiction and the

judgment being entered in contradiction to Due Process of Law. V.T.A., Inc.. 597 F.2d at

224-25; Arthur Andersen & Co. v. Ohio (In re Four Seasons Sec. Laws Litig.L 502 F.2d 834.

842 ClOth Cir.L cert, denied. 419 U.S. 1034. 42 L. Ed. 2d 309. 95 S. Ct. 516 0974'): Automatic

Feeder Co. v. Tobev. 221 Kan. 17. 558 P.2d 101 (19761. There is no discretion in the matter for

relief from a void judgment is applicable, it is mandatory. Oraer v. Shalala, 30 F.3d 1307 (10th

Cir. 1994V Likewise, there is no discretion to ignore the lack ofjurisdiction. Joyce v. U.S.. 474

F.2d 215. Jurisdiction, once challenged, cannot be assumed and must be decided. Basso v. Utah

Power & Light Co.. 495 F.2d 906. 910.

Wherefore, neither the district court or court of appeals answered the challenge, nor did

the defendant refute the allegation of lack ofjurisdiction. The defendant is guilty of abrogating

the constitutional protected right in violation of law [Ex Post Facto law] and petitioner is entitled

to have this Superior Court vindicate the Federally protected right. The writ should issue and the

case reversed and remanded for a full discovery and jury trial.

V.U3 \n. X) . Varva VAjfi S ^ «

Kevin D . Loggi ns Sr.

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.