Petition for Writ of Certiorari — Chatha Tatum, Petitioner v. Tommy Williams

FILED

FEB 1 6 2021!

. ►,

No.

9A - 5 27 I

IN THE

SUPREME COURT OF THE UNITED STATES

Chatha M. Tatum

_ PETITIONER

(Your Name)

vs.

Tommy Williams

— RESPONDENT (S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Tenth CircuitnCourt of Appeal

(NAME OF

___________ _

COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

/UA-rtiA M.T/OVM

(Your Name)

NA

(Address)

/V A

(City, State, Zip Code)

IU

(Phone Number)

(QUESTION ONE)

Did District error in denying Petitioner Evidentiary

Hearing to develop the facts validating his Const, claims:

And thereafter committing compound error in denying defendant

his right to a (COA) in which reasonable jurist would readily

have agrred.

Petitioner has made prima face showing that Petitioners

claims of Const.errors impact the reliability of his state.

(QUESTION TWO)

Did the 10th Circuit Court of Appeals error in denying

Petitioner his rights to a (COA) to proceed on his Const,

claims in which reasonable jurist would readily have agreed.

Petitioner has made a prima facie showing that his

claims of Const, errors impugn the reliability of his state

convictions.

pg

in

TABLE OF CONTENTS

Questions Presented ________________________________

Table of Contents

________________________________

Table of Authorities ________________________________

Opinions Below

________________________________

Jurisdiction

________________________________

Constitutional and Statutory Provisions Involved

Statement of The Case _______________________________

Proof of Service ____________________________________

Fif th-jAmendment'______________________

Appendix A ____________________________________________

Appendix B ____________________________________________

Appendix C ____________________________________________

Appendix D ____________________________________________

Appendix E ____________________________________________

Appendix F ____________________________________________

Appendix G ____________________________________________

Appendix H ____________________________________________

Appendix I ____________________________________________

Appendix J ____________________________________________

Appendix K ___________________________________________

Appendix L ____________________________________________

Appendix M ____________________________________________

Appendix N ____________________________________________

Trial Transcripts Vol.III 440-442 ________________

Trial Transcripts Vol. II 308-312 _______________ _

Evidence Transcripts p.166 _________________________

( A )

_pg.9

_pg-A

_pg • b

_pg. 1

_pg • 2

_pg. 3

_pg. 6

_pg.18

_pg.4

_pg.1,15

_pg.1,14

_pg.1,2

_pg.1,12

_pg • 2

_pg•11

_pg•ll

_pg.11

_pg•il

_pg.11,16

pg . 11,16,17

_pg.14

_pg.14,16

_pg.16

_pg.11,16

_pg.11

_pg.16

Doc. 1 _________

L.S.A. 60-1507

Rule 183

pg. 11

pg.

££•

( B )

TABLE OF AUTHORITIES

Miller-el v. Cocherell,

L.2d 931 (2003)

537 U.S.322,336,123 S.ctl029,154

Murray v. Carrier 477 U.S.478,489 (1986)

Slach v. McDaniel 529 U.S.473,120 S.ctl595 146 L. 2d 542

(2006)

State v. Tatum 281 Kan.1098,135 P.3d 1088 (2006)

Tatum v. State 353 P.3d 470 (2015)

Tatum v. State 423 P.3d 1065 (2018)

28 U.S.C.§ 2254

pg.14,15

pg. 15

_ P9-15

_pg-V

_pg- 7

_pg • 8

_pg.11,14,15

Supreme Court Rule 6.02 ___________________

28 U.S.C.§ 2253 (c)(1) -_____________

Constitutional and Statutory Provisions Involved

Questions Presented ____________________

Statement of the Case

_pg. 14

_pg. 15

_pg • 3

_pg .9,10

.pg - 6

( C )

Relevant Facts Concerning Underlying Conviction

INeffective Assistance of Counsel _______________

Reasons For Granting the Petition _______________

Unreasonable Determination of the Facts ____ ■

Argument for Allowance of Merit __________

( D )

Pg. 11

_pg. 11

pg. 1 3

_pg. 14

pg. 1 5

LIST OF PARTIES

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

petition is as follows:

RELATED CASES

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

[ ] For cases from federal courts:

opinion of the United States court of appeals appears at Appendix _ A" _ to

The

the petition and is

; or,

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

£ 3 is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

; or,

[ ] reported at -----[ ] has been designated for publication but is not yet reported, oi,

b _ to

[ ] is unpublished. Uflkv&Yvti

[ ] For cases from state courts:

The opinion 'T the highest state court to review the merits appears at

Appendix _d__to the petition and is

[ ] reported at---------------------------------------- — '

~ ’ °r’

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

[ ] is unpublished.

The opinion of the

Cf'd C)f h pfXSO-L

appears at Appendix . Q:— to the petition and is

; or,

[ ] reported at---------:--------—------------------------- —

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

[ ]

[Vl is unpublished.

1.

court

JURISDICTION

[ ] For cases from federal courts:

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

was

O 6i- 3; Qo

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

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

Appeals on the following date:

------ > an^ a C0Py of the

order denying rehearing appears at Appendix _ o -•

v/\ An extension of time to file the petition for a writ of certiorari was granted

;--------------- (date)

to and including — /way70Lj 9 02U (date) on—.

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 06T 3.^20/?

A copy of that decision appears at Appendix _ G _.

[ ] 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

(date) on -------------------- (date) in

to and including __—

Application No. —A

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

QU

9

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

i

3

FIFTH AMENDMENT

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

infamous crime, unless on a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces, or in the Militia,

when in actual service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case, nor shall

private property be taken fo public use, without just compensation.

Pg. :

J

FOURTEENTH AMENDMENT

All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States wherein they

reside.

No State shMll make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall abridge

the privileges or immunities of citizens of the United States; nor shall

any person within its jurisdiction deny the equal protection of the laws.

Pg

:

STATEMENT OF THE CASE

On July 13,2004 a jury trial in the District Court of

Wyandotte County Kansas convicted Chatha M. Tatum of One

Count of First Degree Murder in violation of K.S.A. 21-3401

and attempted First Degree Murder of K.S.A.21-3401 and on

K.S.A.21-3301, Case No. 03-CR-2186.

On September 10,2004 the Wyandotte County District Court

entered judgment and sentenced Petitioner to a term of Life

imprisonment without the possibility of parole for (50) yrs.

(Hard 50) on Count One. With 195 months to run concurrently

on Count Two.

This judgment and sentence was affirmed on June 9,2006

by the Kansas Supreme Court, in which time Petitioner could

have sought A Writ of Certiorari that expired on Sept.7,2006,

and the conviction then became final.............

SEE: State v. Tatum 281 Kanv1098,135"P.3d 1088 (2006)

On June 11,2007 Petitioner filed a POst-Conviction under

K.S.A.60-1507 to vacate and set aside the judgment of the

conviction, along with a Supplemental Motion, Case No.07-CV-984.

On Hajral2, 2012 the District Court held an Evidentiary

Hearing.

On June 17,2013 the District Court entered a judgment

denying the K.S.A. 60-1507. Case No. 07-CV-984

On July 17, 2015 the Kansas Court of Appeal entered

judgment that affirmed the denial of Petitioners K.S.A. Motion

60-1507.

SEE: Tatum v. State,353P.3d 470(2015) WL4486775

(Case No.110,299) Kan. Ct. App.2015 (unpublished opinion).

On Feb.18,2016 the Kansas Supreme Court entered judgment

denying review.

On May 11, 2016 Petitioner filed a second Motion for

Post-Conviction relief pursuant to K.S.A 60-1507 Case No.

16-CV-388.

On August 24,2016 the District Court summarily denied the

Petitioners second K.S.A. 60-1507 on Case No.l6CV-388.

On Sept.13,2016 Petitionertfiled a motion to alter or

amend judgment along with a Supplement Affidavit of Truth in

support of habeas. Case No.l6-CV-388

The District Court granted a Evidentiary Hearing <bn Sept.

21,2016. The State then submitted their response to Petitioners

motion to Alter or Amend Judgment on Sept. 30,2016.

The District Court entered judgment "Order denying change

p9 ■ . I i

!

of prior order " No.16-CV-388.

On Oct.13,2016 Petitioner filed a Noticemof Appeal to the

Kansas Court of Appeal.

On Aug.24,2018 the Court of Appeals entered judgment and

affirmed the denial of Petitioners second K.S.A. motion.

SEE: Tatum v. State, 423 P.3d 1065 (table)2018

WL 4039222 (No.117,062) (unpublished opinion).

On Sept.27,2019 the Kansas Supreme Court entered judgment

which denied review.

On Nov.1,2019 Petitioner placed his Habeas Corpus Relief

application pursuant to USC§2254 in the prison mail system

for filing in the United States District Court for the

District of Kansas,(Doc.1)19-CV-03228

On 0ct31,2022 the United States District for the District

of Kansas entered a Memorandum and order which dismissed

Petitioners Habeas Corpus without certificate of appealability

being issued.

On 0ct3,2023 the United States Court of Appeals for the

10th Circuit entered judgment denying certificate of

appealability No.22-3280.

On DEc1,20231 the United States Court of Appeals for the

10th Circuit entered judgment denying rehearing.. Rehearing

en banc No.22-3280.

pg ,

n »

(RELEVANT FACTS CONCERNING UNDERLYING CONVICTION)

II. The relevant facfcs are contained in Chatha M. Tatum's

motion under 28USC§ 2254,(Doc.1)App. during Petitioners

criminal trial in the District of Wyandotte COUNTY Court.

On_ July 8,2004 the state

subpoenaed Antonio Ford who was

.

one of the exculpatory witnesses to the shooting of DamonWalls,

his girlfriend Kyea Himbrough on Dec 17,2003. (No.03-CR-2186)

On July 8,2004 the state also subpoenaed Antonio Ford to

testify at the Petitioners trial.

The District Court judge acknowledge that Mr. Ford had made

his first appearance without counsel and appointed counsel,

GaryyStone to advise Mr. Ford on his r-ightsto testify at the

Petitioners trial.

After consulting withbbhe prosecutor, Mr.Stone briefed the

record that Mr. Ford is not purposivilry refusing to testify here

today. But advised Mr.Ford to invoke the Fifth Amendment in

light of Mr.Fords felony murder charae. SEE: (NO.03-CR-2186)

trial transcripts Vol.II 308-312

On July 9,2004 Petitioners trial Counsel presented oral

motion to submit Mr.Fords murder charges to the jury.

The state reiterated it's previous motion directing the

defense counsel not to disclose Mr.Fords murder charge.

The District Court denied the motion to present eveidence

to the jury that Mr.Ford was charged with Felony Murder.

(No.03-CR-2186) (trial transcripts Vol.III 440-442)

INEFFECTIVE ASSISTANCE OF COUNSEL

On Sept.6,2016 Petitioner filed a (motion to Alter or

Amend Judgment) with a (Supplemental support of Habeas Corpus)

raising Ineffective Assistance of Counsel for failing to in­

vestigate, prosecutorial misconduct for failing to disclose

Mr .Fords charges, intimidating Mr.Ford into invoking his

Fifth Amendment rightrto testify at Petitioners trial.

App

'F'_____ ._Ap p.

Gr_______ .

— On Sept.30,2016 the District Court entered a (Order denying

change of prior orde£) which the prior order was an Evidentiary

hearing and the District Court based it’s denial on this is

(new evidence that could have been presented in an earlier

filing). (New evidence is not the absolute rule in this state).

App.

H

Pg

On Oct.13,2016 Petitioner filed a Notice of Appeal to

the Kansas Court of Appeals briefing the (prosecutrial mis­

conduct claim) arguing the state intimidated Mr.Ford into

invoking his Fifth Amendment right to testify at Petitioners

trial,failing to disclose that Mr.Ford was charged with

Felony Murder at Petitioners trial App

•X

The Court of Appeals in the second 60-1507 case argued

that Petitioner was incorrect and on June 10,2004 the state

filed an amended complaint charging Mr.Ford and Dwayne Coates

with First Degree Murder Ado. t"*)

P.

•

*

On Sept.3,2004 Mr.Ford entered guilty pleas to con­

spiracy to sell marijuana as well as attempted sell of

marijuana in exchange for the dismissal of the First Degree

murder charge. App._______________ . j

I_______ .of the state

brief in the Court of Appeal, the district Court, in disposing

of Petitioners motion under section 2254, held that there is

no showing here that the prosecutor somehow intimidated Mr.Ford

One important point that needs addressing is that the Court of

Appeals in the section 2254 appeal relied on the states exhibits

App.

_______ in their brief.

ks

Petitioners brief was not properly drafted to show the Court of

Appeals that the state used the first amended complaint App.

to intimidate Mr.Ford into invoking hisdFifth Amendment right

not to testify to his exculpatory statement in Petitioners

trial.

There is newly discovered evidence in the record on

appeal that will show Mr.Ford was never charged under the fisfet

amended complaint at any time and was not giving plea for

pleading to lesser charges.

pg

. rt’ j

UNREASONABLE DETERMINATION OF THE FACTS

This is an appeal from the Tenth Circuit Court of Appeals

for a (COA).........

Did Petitioner make a substantial showing of the denial of

a constitutional right under 28§ 2253(c)(2) to the Tenth Circuit

of Appeal to have the merits of his case heard under; Miller-el

v. CoCtirell, 537 U. S . 3 2 2 , 3 36,1 2 3 S.Ct.1029, 154LL.2d,2d 931 (2003)

Petitioner seeks a (COA) on two arguments;

(1). Prosecutorial misconduct in connection with the exculpatory

statement of Mr.Ford as well as his trial counsel failing

, to investigate his alibi witnesses defense. Apo. P>

p.

(2). The prosecutorial misconduct argument is surely defaulted

under the Kansas SuprfemeriiCourt rule 183(d)(3), " A proceeding

under K.S.A.60-1507 ordinary may notube used as a substitute for

a second appeal, mere trial errors must be corrected by direct

appeal, but trial errors affecting constitutional rights may be

raised even though the error could have been raised on. appealed

provided exceptional circumstances excused the failure to

appeal.

Petitioner was unable to show the Kansas Court of Appeal

exceptionally to overcome his procedure default due to Petitioner

relying on an unlicensed paralegalsservice for prisoners, which

was actually fraud.

Petitioner became aware of this through a Victim Notifi­

cation System from the U.S. Departmental of Justice App.

L*.

The un licensed paralegals name, Leslie Love, has submitted a

affidavit App.__

, for failing to follow the Supreme

tA

Court rule 6.02.

10-

2) .

The state court rejected this claim for two reasons.

Petitioner was incorrect on Mr.Ford not being charged with

Felony Murder and on Sept.3,2004 Mr.Ford entered guilty

pleas to have his First Degree Murder charges dismissed,

App.

pPetitioner had procedurally defaulted his claim by failing

to raise it on direct appeal as well as not establishing

cause and prejudice to overcome that default which he

did not present ineffective assistance to the state court

as an independent claim before it may be used to establish

Pg

IS

cause for a procedural default" of another constitutional

claim. Carpenter,529 U.S. et 451-52 (quoting Murray v.

Carrier, 477 U?S.478,489.(1986)

The District Court denied Petitioners motion.

It first explained he could not assert it as grounds to establish

cause for the procedural default of his claim of prosecutorial

mis-conduct.

Likewise, Petitioner cannot establish that mis-carriage of

justice will occur if his claim is not considered.

To show a mis-carriage of justice Petitioner must show that

an error asserted probably resulted in the conviction of an

innocent person... Petitioner has not made this showing.

ARGUMENT FOR ALLOWANCE OF MERIT

II.

The Court of Appeal errored in affirming the District

Court denying of a (COA) because Petitioner did not show

goverraent coercion on a exculpatory witness involving his

Fifth Amendment right to testify.

A state prisoner whose petitioner Writ of Habeas Corpus is

is denied by federal District Court does not enjoy an absolute

right to appeal.

Federal law requires that he first obtain a (COA) from a

circuit justice or judge,28 USC§2253(c)(1).

A (COA) from a issue "only" if the applicant has made a

substantial showing of the denial of a constitutional right.

28 USC§2253(c)(2). until the prisoner secures a (COA).

The Court of Appeal may not rule on the merits of his case.

Miller-el v. Cochrell 537 U.S.322,336. 123 S.ct 1029,154 L.2d

2d 431 (2003)/

The Tenth Circuit finds that, after consideration of

Petitioners combined opening brief and application for a (COA)

and the record on appeal, the Tenth Circuit Court concluded

thbt reasonable jurist could not debate whether Petitioners

claims should have been resolved in a different manner or that

the issue presented were adequate to deserve encouragement to

proceed further, Slach v. McDaniel 529 U.S.473,120S.ct1595,

146 L.2d.2d 542(2000) App.

3

A

.pAlso the court explained that the Petitioner had no

showing of government coercion to prevent Mr.Ford testimony

and he made no showing that the alleged alibi witness could

provide favorable testimony for smbstafttially the same reasons

given by the District Court in denying relief under U.S.Cf?

2254, we deny Petitioners reguest for a (COA).

% ../9

Here the District Court and the Tenth Circuit Court are

relying on the state records that Mr.Ford was charged--.on

Jllne 10,2004 with Felony Murder App.

and his murder

i.

charges were dropped per plea to lesser charges App.

3

P-

K

The reason for the record not being properly developed

at the Court of Appeals stage was because the un-licensed

paralegal, (Leslie Love) App.

.incompetency on

M

preparing Petitioners brief and failing to direct the Court of

Appeals to record on appeal.

This would have shown both trial counsel?s, post-conviction

counsel were on record confirming that Mr.Ford was charged

with First Degree Murder.

Post-conviction counsel at Petitioners Evidentiary Hearing

said he discussed Mr.Ford being charged with Felony Murder.

(er.dhhi,trans p.166).

Trial counsel argued that she would show the jury"those who

were not willing to testify for the state would be charged". And

requested to present Mr.Fords charges to the jury,the District

CourtCdenied that motion (trial transcripts Vol.III p.440-442).

Had both counsel properly investigated Mr.Fords charges at

trial and Post-conviction hearing, it would have shown that the

state used the First Amendment complaint to coerce Mr.Ford into

involving his Fifth Amendment right not to testify at the

Petitioners trial.

Mr.Ford is a exculpatory witness that gave a statement to

the detective that he did not see Petitioner on the scene of the

crime.

III.

The Questions raised in this are important and Un-resolved

d

Petitioner has a fifth grade reading level App.

There is no question as to if he is capable of arguing his

constitutional violation to overcome the procedural default

without special counseling assistance.

Petitioner has been diligent in presenting newly discovered

evidence that was not properly presented to the District

Court to show that the state has violated Petitioners right

to a ffeora (fair trial).........

%

2.0 y

CONCLUSION

The judgment below will rest in a (mis-carriage of justice).

Petitioner has been diligent claiming his innocence.

Did the state use the First Amendment complaint to intimidate

a exculpatory witness into involving his Fifth Amendment

right to testify?at Petitioners trial?

And that both trial counsel, post-conviction counsel all

rendered ineffective assistance of counsel for failing to

investigate Mr.Fords charge and plea hearing App.

fa

?

3

PThis is a clear violation of the Fourteenth Amendment due

process right to a fair trial.

This petition for a Writ of Certiorari

be reviewed........................

Respectfully,

p9

XI

should therefore