Petition for Writ of Certiorari — Scottie Bernard Shaver, Petitioner v. Russ Rurka, Acting Warden

Supreme Court briefDec 9, 2025

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Supreme Court, U.S.

FILED

DEC - 9 2025

IN THE

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 2025

SCOTTIE BERNARD SHAVER,

Petitioner,

-vsRUSS RURKA, (Acting Warden)

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Submitted by:

Scottie Bernard Shaver, #405867

Petitioner In Propria Persona

Lakeland Correctional Facility

141 First Street

Coldwater, Michigan 49036

Dated: 4/9/26

QUESTIONS PRESENTED FOR REVIEW

(I)

DID THE STATE TRIAL JUDGE DISPLAY JUDICIAL BIAS WHEN HE

CREATED A BRUTON VIOLATION DURING THE SECOND TRIAL

VIOLATING PETITIONER'S SIXTH AMEND RIGHT TO CONFRONTATION?

(ID

WERE PETITIONER'S CROSS EXAMINATION RIGHTS VIOLATED WHEN

ANOTHER WITNESS TESTIFIED TO DR. MILLARD'S CHANGES IN THE

DEATH CERTIFICATE WHERE DR. MILLARD DID NOT TESTIFY?

(Ill)

WERE PETITIONER'S RIGHTS VIOLATED WHEN THE STATE WITHHELD

CRUCIAL EVIDENCE PERTAINING TO HIS GUILT OR PUNISHMENT

UNDER BRADY V MARYLAND?

(IV)

WAS DEFENSE COUNSEL CONSTITUTIONALLY INEFFECTIVE FOR NOT

PROPERLY INVESTIGATING PETITIONER’S CASE PRIOR TO TRIAL?

(V)

DID THE PROSECUTOR PROVE, BEYOND A REASONABLE DOUBT, THAT

PETITIONER HAD THE NECESSARY SPECIFIC INTENT TO BE CONVICTED

OF MURDER?

(VI)

IS PETITIONER ENTITLED TO A NEW TRIAL BASED ON NEW EVIDENCE

OBTAINED BY PRIVATE INVESTIGATOR THOMAS BEREZA, SUPPORTING

PETITIONER'S INNOCENCE?

(VII)

DID THE STATE USE FALSE TESTIMONY TO OBTAIN A CONVICTION

VIOLATING PETITIONER'S DUE PROCESS RIGHT TO A FAIR TRIAL?

i

LIST OF PARTIES

The Parties listed in, or associated with, the instant Petition for Writ of Certiorari

to the United States Court of Appeals for the Sixth Circuit, are listed on the cover

page heading and can be addressed as:

II

TABLE OF CONTENTS

Statement of Questions for Review ..........

........................

List of Parties

,........................... ft

...................................

Table of Authority..................

-i

,...............................................................................

The Opinions Below ...............

t

Jurisdiction....................................................................... -.................................. 1,2

Constitutional and Statutory Provisions Involved .........................

.2

Statement of the Case.............................................................-............................. 3,5

Reasons for Granting the Writ ... ......................... ..........,......................,......

5

(I)

THE TRIAL JUDGE DISPLAYED JUDICIAL BIAS WHEN HE CREATED A

BRUTON VIOLATION DURING THE SECOND TRIAL BY VIOLATING

PETITIONER'S SIXTH AMENDMENT RIGHT TO CONFRONTATION................ 5

GO

PETITIONER’S RIGHT TO CROSS EXAMINATION WAS VIOLATED WHEN

ANOTHER DOCTOR TESTIFIED TO DR. MILLARD'S CHANGES IN THE DEATH

CERTIFICATE WHERE DR. MILLARD DID NOT TESTIFY......................... .....9

(III)

PETITIONER'S RIGHTS WERE VIOLATED WHEN THE STATE WITHHELD

CRUCIAL EVIDENCE PERTAINING TO HIS GUILT OR PUNISHMENT UNDER

BRADY V MARYLAND......................

...................... ............. 13

(IV)

DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR NOT

PROPERLY INVESTIGATING PETITIONER'S CASE PRIOR TQ TRIAL............ ,17

(V)

THE PROSECUTOR FAILED TO PROVE, BEYOND A REASONABLE DOUBT,

THAT PETITIONER POSSESSED THE NECESSARY SPECIFIC INTENT TO BE

CONVICTED OF MURDER................. ..... , -............

2D

(VI)

PETITIONER IS ENTITLED TO A NEW TRIAL BASED ON NEW EVIDENCE

OBTAINED BY PRIVATE INVESTIGATOR THOMAS BEREZA, SUPPORTING HIS

INNOCENCE ............................................................................................... 23

(VII)

THE STATE USED FALSE TESTIMONY TO OBTAIN A CONVICTION VIOLATING

PETITIONER'S DUE PROCESS RIGHT TO A FAIR TRIAL ...

........ 25

Conclusion .....................

29

Proof of Service

30

..............

Declaration of Compliance Under 28 USG § 1746 .......... ,...............

31

Reference to Appendix:

US Court of Appeals Order on 10/2/25 .............. ..... ...........

1a

US Court of Appeals Order on 8/6/25.............................

2a

US District Court's Order on 2/14/25...........

10a

iv

TABLE OF AUTHORITY

Pages:

Cases:

Berger v United States 295 US 78,88 (1935) ../.......

,......... ..............;..... 27,28

Bousley v United States, 523 US 614 (1998) .............................. ...................................... 22

Brady v Maryland, 373 US 83 (1963) ..........

................................................ ,........ 13,15

Bruton v United States, 391 US 123 (1968)......... ........................................................ passim

Bullcomings v New Mexico, 564 US 647 (2011) ......... ......................................... .—5,10,11

California v Green, 399 US 149 (1970) .................

,................. —.11

Coleman v Alabama, 399 US 1 (1970) .............................................. ..... ,....... ............

19

Cone v Bell, 556 US 449,470 (2009) ............................ ........

24

.............. ...............,.

Crawford v Washington, 541 US 36,59 (2004) ...,.... ...... ..................

6,10,11,12

Cruz v New York, 107 S Ct 1714 (1968)...'......................................

6

Cultenv Pinholster, 131 S Ct 1388,1398-99 (2011) ........... ............... ......... . ...... ...-----.....23

Franklin v New York, 145 S Ct 831 (2025)............

-..............................

4

Gray v Maryland, 523 US 185,194-195 (1998).................. -.......

6

Hemphill v New York, 142 S Ct 681; 211 L Ed 2d 534 (2022) ........

12

Herrera v Collins, 506 US 390,402 (1993) .........

...24

-........

House v BeH, 126 S Ct 2064 (2006) ............... .................................................................... 23

In re Murchison, 394 US 133; 75 S Ct 623 (1955) —

.................................. ..................7

In re Winship, 397 US 358 (1970).... ....................................................

20

Isom v Arkansas, 140 S Ct 342; 205 L Ed 2d 373 (2019) ..... ................................... ........ 8

Jackson v Virginia, 443 US 307,319 (1979)......................................................... ....... ,20,22

Kimmelman v Morrison, 477 US 365,383 (1986)

.......

~

——,

18

KylesvWhitley, 514US419,437; 115 S Ct 1555 (1995)................. ;..... .......... .............. 13,16

Lilly v Virginia, 527 US 116;119 S Ct 1887 (1999).......

v

6,7,8

Melendez-Diaz v Massachusetts, 557 US 305 (2009) ...... ..................... ,............ ,......... 10,12

27

Mooney v Holohan, 294 US 103 (1935)......................................

Morissette v United States, 342 US 274 (1972) .................................................... —........20

Napue v Illinois, 360 US 264,270 (1959)......................................... '............ 13,14,22,26,27,28

Ohio v Clark, 576 US 237 (2015)...... ................................. .............................................. 11

Parr v Texas, 363 US 370,393-394 (1960).....................

........... ....... -...... 28

Pointer v Texas, 380 US 400 (1965) ............................ ................................... ,................. 9

Powell v Alabama* 287 US 45 (1932) i.........................

........................... ,....... 19

Reed v Ross, 468 US 1 (1984) .....

..................... 27

Roe v Flores-Ortega, 528 US 470; 120 S Ct 1029 (2000) ...... ......—..........................._........ 19

Sandstrom v Montana, 422 US 510 (1979) ................................................ .............. ,....... 20

Schlup v Delo, 115 S Ct 851 (1995) ............ ..........................................

smith v Cain, 132 s ct 627,630 (2012)........................

23,24

„...,::.:....:......:..:..:......,.:....16

Strickland v Washington, 466 US 668 (1984) ............. ....... ... .............. ,................ ........... ,17

Strickler v Green, 527 US 263,281 (1999) ...............

14,16

United Stats v Agurs, 427 US 97,112-113 (1976) .... ,............. .......................

......19

United States v Bagley, 473 US 667,676 (1985).................................................... ...,.14,15,16

Whorton v Bockting, 127 S Ct 1173,1179 (2007).............

Constitutions:

11

i

US Const. Amend. VI ........... ....... ................................... -........................

US Const. Amend. XIV.... .................

Mich. Const. 1963, Art 1, § 20 .........

8,9,11

_......................................................... 8,11,16,28

„.................................. ...............

12

Mich. Const. 1963, Art 1, § 17.......... ...................................................... .7........................ 28

U.S. Supreme Court Rule 10 .......... ,.......................

...... ..................

5,19,24

The Decisions Below

The October 2, 2025 order from the U.S. Court of Appeals for the Sixth Circuit,

denying the timely filed Petition for Rehearing En Banc is unpublished and can be found in the

appendix at page (1a). The Sixth Circuit's Order denying the appeal from the US District

Court's opinion and judgment denying the habeas corpus petition is unpublished and can be

found at appendix page (2a to 9a).

The opinion and judgment from the United States District Court denying the 28 USC §

2254 habeas corpus petition is unpublished and can be found in the appendix at appendix page

(10a to 63a).

Jurisdiction

Petitioner Scottie Bernard Shaver seeks review in this Honorable Court, from the denial

of his habeas corpus petition by the United States District Court. The Court of Appeals order

and judgment denying the appeal from the US District Court was entered on August 6, 2025.

A timely filed Petition for Rehearing in En Banc was denied on October 2, 2025. Jurisdiction of

this Court is invoked under Title 28 USC §1254(1).

This Writ of Certiorari challenge the Opinion and Orders entered on 10/2/25, and

8/6/25 by the Sixth Circuit Court of Appeals under citation, Shaver v Morrison, denying his

rehearing appeal from the US District Court’s denial of his Title 28 USC § 2254 habeas petition,

where the ruling is conflicting with a decision of this Court on the subject matter of the non

testifying codefendant under Bruton v United States, and conflicts with the prejudice ruling

announced in Strickland v Washington, [recognizing counsel’s obligation to assert a valid

defense and protect his client's constitutional rights].

1

This Petition is timely, from the Sixth Circuit denying relief, pursuant to Rule 13.1 of the

Rules of this US Supreme Court. Jurisdiction is invoked pursuant to Title 28 USC § 1251.

Jurisdiction of this Court is also invoked under the supervisory authority vested in Title

28 USC § 1251; U S. Const. Art III, and US Const. Amends. VI and XIV. Furthermore,

Petitioner seeks supervisory jurisdiction of this Court to determine whether the courts below

arrived at, but completely disregarded the ruling in Bruton v United States; Lilly v Virginia, on

non testifying codefendant's extra judicial statement allowed at trial without confrontation

safeguards. And, because this Court has never decided that a Bruton claim is non-testimonial,

it can now determine whether prejudice should be presumed from the non-testifying

codefendant’s statement under the primary purpose test and that under Bruton's inquiry, the

statement is testimonial.

Constitutional and Statutory Provisions Involved

The issue presented for certiorari review to this Court is in direct violations of

constitutional amendments, and statutory provisions infra:

1) . U.S. Const. Amend VI (1791)

In all criminal prosecutions the accused shall have the right to confront and cross

examine the witnesses against him, and ... to have the assistance of counsel to assist

in his defense.

2) . US Const Amend. XIV, § 1 (1868)

All persons bom or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No state

shall make or enforce and law which shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

3) . Michigan Const. 1963 Art 1, §§ 17. (Due Process of Law - Fair Investigation Clause]

4) . Title 28 USC § 2254(d)(1); (d)(2).

5) . State Statutes: MCL §750.316(1 )(a) (Murder in the First Degree).

Petitioner urges this Court to grant his petition for a writ of certiorari and clarify that a

Sixth Amendment Bruton violation violates the due process clause requiring a new trial.

2

Statement of the Case

Petitioner, Scottie Bernard Shaver, was convicted on a ten year old "cold case" where the

victim, Ms. Deborah Boothby, was the victim of a hit and run vehicle accident causing her death

in 1998. Ten years later, an investigation into the death of Ms. Boothby was conducted, and

without exhuming the body, it was determined that she was murdered in 2009. This resulted in

the arrest and conviction of Petitioner, a passenger in a vehicle driven by Adrienne Burnett,

Petitioner, along with several codefendants were tried for the homicide. Prior to trial, the

trial judge, denied the prosecution's motion to allow an extra judicial statement of Ivory Shaver, a

non-testifying codefendant, from entering the trial. The trial ended in a hung jury. The second

trial began and the Judge changed his fact finding and allowed the statement to be introduced as

evidence against Petitioner. He was convicted and sentenced to fife in prison.

The manner of death on the initial death certificate was changed to homicide. Dr. Millard,

the person responsible for the change in the cause and manner of death did not testify at either

trial Dr. Pauftke testified that it was doctor Millard who changed the death certificate once he

received more information. (Tr XVI pp 62-64). Dr. Palutke never did a new investigation or new

examination of the body, (Tr XI p 222).

Witness Danyala Jones, saw the victim walking down the road on the dark rainy night in

question. She said the person was drunk and injured. (Tr Vp18,p243). The police attempted to

get the witness to change her statement to coincide with the statements of Adrienne Burnette.

Jones and her passenger observed the victim staggering, fall and went to get her help. (Tr. XVH

pp 148-150);

XVII pp 223-225).

Adrian Travier, a paid informant who worked for several agencies, tried to get Robert Boys

to conspire with him to testify falsely against Ivory Shaver. (Tr XVII pp 142-145).

Doctor Hunter reviewed Dr. Palutke's autopsy report and noticed the doctor never did any

exam to the back of Ms. Boothby's legs which had symmetrical marks, ar XVII pp 31-32).

Spinal injury not consistent with an assault ar XVII pp 27-28). Injuries less likely from a beat

down. (Tr XVII pp 25-27).

3

Adrianne Burnette testified for the prosecution and was charged with open murder and

perjury in connection to this investigation. (Tr XI p 14). She entered a guilty ptea to second

degree murder and perjury and agreed to testify against Petitioner and codefendants for an (8 to

20) year sentence. (Tr XII pp 16-17). She flunked her polygraph test. She claimed Petitioner

was the driver of her car until she flunked the polygraph test.

State Police Detective, Diane Oppenheim, was cautioned in court trying to lead her star

witness Ms. Burnette in her testimony, (Tr XXI pp 119-121). The Detective never recorded any

of her interviews during this investigation. She issued a supplemental report on 9/26/07) two

years before the case was reopened. Petitioner was convicted and sentenced to life in prison

without the possibility for a parole. His direct appeal proved futile and no relief was obtained in

the state courts of Michigan.

Petitioner submitted a petition for writ of habeas corpus under Title 28 USC § 2254 in the

United States District Court which was denied.

He appealed the denial to the US Court of

Appeals for the Sixth Circuit which denied relief. Petitioner now seeks a Writ of Certiorari to

address the Sixth Amendment violation of the right to confront and cross examine the witnesses

against him. This Court is asked to revisit its rulings under the banner of Bruton V United

States.

A. Decisions of Other Courts on the Question

In the context of the question presented in this Petition for Writ of Certiorari under Bruton

v United States, there are decisions which have addressed the confrontation clause under the

"Primary Purpose Test" which this Court has implemented, In Franklin v Afew York, 145 S Ct

831 (2025), addressing the primary test for purpose of the confrontation clause, this Court said

that other Courts were applying the 'Primary Purpose Test' in an abusive manner causing

confusion and chaos. Although the Court stated that the test came about accidentally and Courts

should go back to what the clause originally called for, prior opportunity and unavailability of a

witness, Judges are abusing their discretion tty stilt applying this test. Petitioner calls upon this

Court to rule that under Bruton, the primary purpose test must focus its attention on the non-

4

testifying codefendant whose extra judicial statement is, or should be, ’testimonial’ and

prevents confusion. This Court is urged to grant certiorari and issue an opinion on this subject

matter under the Fourteenth Amendment's Due Process Clause, and the Sixth Amendment

confrontation/cross examination reasoning outlined in Bruton, supra.

B. The Importance of the Question Preseptad.

The importance of the Bruton question presented in this Petition is for this Court to

address the confrontation/cross examination clause of the Sixth Amendment in tandem with

the non-testifying codefendant's statement and the confrontation error of allowing one witness to

testify about another witness's scientific report where that witness did not come to court, was not

summoned to come to court, and whose testimony was material as to the changes made in the

death certificate from a vehicle accident-hit and run, to a homicide without exhuming the body for

additional examination testing. Petitioner was unable to cross examine Dr. Millard regarding his

alleged change to the death certificate. This issue is significantly important on the confrontation

aspect of the clause under Bullcomings v New Mexico, 564 US 647 (2011), as diametrically

different from a claim under Bruton, although a confrontation/cross examination claim. Therefore,

the question is important for this Court to spend its precious time to address in the first instance.

S. Ct. Rule 10(c).

Reasons for Granting Writ of Certiorari

(0

THE TRIAL JUDGE DISPLAYED JUDICIAL BIAS WHEN HE CREATED A

BRUTON VIOLATION DURING THE SECOND TRIAL BY VIOLATING

PETITIONER'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.

— This Petition for a Writ for Certiorari should be granted because the state trial court created

a Sixth Amendment violation during the second trial by ruling that the extra judicial statement of

the non testifying codefendant, Ivory Shaver, would be allowed into the trial as evidence against

Petitioner Scottie Shaver, after ruling in the first trial that the statement violated the cross

examination rights of Petitioner. Thus, Judge Lamb, not only abused his judicial discretion,

5

he

exhibited judicial bias when he reversed his former ruling regarding the statement of Ivory Shaver

who was not testifying. Should this Court elect to apply the 'primary purpose test to this Cruton

claim, Petitioner meets that standard. See, i.e. Franklin v New York, 145 S Ct 831 (2025).

The Substantial Error of The Bruton Violation

The confrontation error complained of here occurred when the state trial Judge reversed

his former ruling and allowed the codefendant’s statement to be entered as evidence against

Petitioner. Judge Lamb knew the significance of the statement because he ruled it could not be

admissible against other defendants during the first trial. The jury in the first trial could not reach

a unanimous verdict causing a mistrial. The second trial, where the statement was allowed

against all other defendants, the jury convicted. This created a Bruton error requiring relief.

Accord, Cruz v New York, 107 S Ct 1714 (1968).

Although the state trial court relied on a case from this Court under the confrontation

clause concept, Crawford v Washington, 541 US 36, 59 (2004), the trial court disparaged the

Bruton requirements and completely ignored the ruling in Lilly v Virginia, 527 USat 120, thereby

misapplying the ruling in Lilly v Virginia, 52J US 116; 119 S Ct 1887 (1999), which was clearly

established at the time of Petitioner's trial. The state trial court erred, and the US District Court

consisted erred when it adopted, without a hearing, the ruling by the Michigan Court of Appeals

on this claim, using the non-testimonial criteria of Crawford v Washington, to deny the dam

under Bruton v United States, 391 US at 137; Lilly v Virginia, 527 US at 129, which dearly

stands for the proposition that where the accomplice statement against his penal interest did not

justify its use as evidence against another person, reversal was required. Gray v Maryland, 523

US 185,194-195 (1998). Petitioner’s case meets the Bruton's confrontational inquiry.

The Contrary to Unreasonable Application of Bruton

The state trial court’s ruling was so woefully contrary to the ruling from this Court in Lilly v

Virginia, that the sole remedy is to grant certiorari and reverse the courts below. Indeed, in Lilly,

addressing the Bruton criteria, this Court clearly opined:

6

"In the years since Bruton was decided, we have reviewed a number of cases in

which one defendant's confession has been introduced into evidence in a joint trial

pursuant to the instructions that it could be used against him but not against his

codefendant Despite frequent disagreement over matters such as the adequacy

of the trial judge’s instruction, or the sufficiency of the redaction of ambiguous

references to the declarant's accomplice, we have consistently either stated or

assume that the mere fact that one accomplice's confession qualified as a

statement against his penal interest did not justify its use as evidence against

another person.” Gray v Maryland, 523 US 185,194-195; 140 LEd 2d 294 (1998),

[Stating that because the use of an accomplice confession "creates a special,

and vital, need for cross-examination.” a prosecutor desiring to offer such

evidence must comply with Bruton, hold separate trials, use separate juries, or

abandoned the use of the confession],*' Gray, 523 US at 200; Ully, 527 US at 129.

Judge Lamb Displayed Judicial Bias and Partiality when he

reversed his Original Ruling at the behest of the Prosecutor

Following the first trial which ended in a hung jury, Judge Lamb reversed his original ruling

regarding the extra judicial-non-testifying statement from Ivory Shaver who had invoked his Fifth

Amendment privileges against self incrimination. Judge Lamb ruled that the statement would be

allowed to enter the case against Petitioner Scottie Shaver and other codefendants on the request

from the prosecution. This statement violated this Court's ailing in Bruton and Ully, and deprived

Petitioner of his right to cross examine the witnesses against him. Judge Lamb's judicial posture

changed from 'impartial' to ’partial' and displayed biasness towards the accused. This Court has

addressed like circumstances previously. This Court in In re Murchision, 394 US 133; 75 S Ct

623 (1955), pointed out that:

"A fair trial in a fair tribunal is a basic requirement of due process, fairness, of

course, requires an absence of actual bias-in the trial of a case. But our system

of law has always endeavored to prevent even the possibility of unfairness. To

this end, no man can be a judge in his own case and no man is permitted to try

cases where he had an interest in the outcome. That interest cannot be defined

with precision. Circumstances and relationships must be considered. This

Court has said however, that every procedure which would offer a possible

temptation to the average man as a judge not to hold the balance nice, clean"

and true between the state and the accused, denies the fatter due process of

law. cf Tumey v Ohio, 273 US 510, at 532. Such a stringent rule may some

times bar trial judges who have no actual bias and who would do their very best

to weigh the scales of justice equally between contending parties. But to

perform its high function in the best waY, justice must satisfy the appearance of

justice.” Offutt v United States, 348 US11. id at 136.

This Court again revisited the same in a dissent by Justice Sotomayor in Isom v Arkansas,

7

140 S Ct 342; 205 L Ed 2d 373 (2019), and Justice Sotomayor said:

"... At the same time, the Court has acknowledged that [a]llowing a decision

maker to review and evaluate his own prior decision raises problems. Withrow,

421 US at 58 n. 25. Perhaps because of the risk that a judge might be so

psychologically wedded to his or her previous position that s/he will consciously

or unconsciously avoid the appearance of having erred or changed positions.

Quoting, Withrow, 421 US at 57. And it has warned that a judge personal

knowledge and impression of a case may sometimes outweigh the parties

arguments." cf tn re Murchison, 349 US at 138; Isom, 140 S Ct at 344.

Judge Lamb allowed the non-testifying codefendant's statement to be entered as

substantive evidence against Petitioner depriving him of an opportunity to cross examine or

challenge its reliability, a judicial circumstance explicitly prohibited under Bruton. This is a

structural error not amenable to harmless error inquiry. Arizona v Fulminante, 499 US 279 (1991).

Petitioner Shaver asserts that because of the unique circumstances of his Bruton claim, this

Court should adopt a categorical approach like in Lilly v Virginia, 527 US 116 (1999), where

concurring opinions from two justices agreed with the plurality that the admission of the

accomplice's statement violated the confrontation clause, adopting a categorical approach that all

non-testifying codefendants' statements qualify as 'testimonial' for purposes of the confrontational

clause and leave the 'primary purpose test' and its chaps and confusion out of the realm of the

confrontation clause when faced with a Bruton claim-1 This categorical approach would prohibit the

state courts from rendering a contrary to - applying an unreasonable application of clearly

established law from this Court on Sixth Amendment inquiries, as was done by the Michigan Court

of Appeals on the claim. (See Appendix p 115a). This Writ of Certiorari should issue on this Sixth

Amendment violation to cure the significant trial error of the constitutional guarantee. US Const.

Amends. VI and XIV. The 'primary purpose test' inquiry is inapplicable to this Bruton clairn.

1. In the context of the confrontation clause, anrotrcing what nas corra to be known as the

''primary purpose test", this court has explained: Statements are testimonial uTen circumstances

objectively indicate that there is no such on going emergency and that the primary purpose of the

interrogation is to establish or prove past events potentially relevant to a later criminal

prosecution. Adrian Travier achiitted to being a paid informant, questioning Ivory Shaver, and

taking notes based on these conversations. Travier also tried to get Robert Boyd to conspire with

him; in order to curry favor from police. Travier's testimony violated Scottie Shaver's

constitutional rights. See: (Motion Hearing 5-9-2011)

II

PETITIONER'S RIGHT TO CROSS EXAMINATION WAS VIOLATED WHEN

ANOTHER DOCTOR TESTIFIED TO DR. MILLARD'S CHANGES IN THE

DEATH CERTIFICATE WHERE DR. MILLARD DID NOT TESTIFY.

Introduction

The confrontation - cross examination clause of the Sixth Amendment protects a criminal

defendant from being deprived of confrontation - secured right under the Sixth Amendment which

proclaims that: "in all criminal prosecutions, the defendant has the right to confront the witnesses

against him." U.S. Const. Amend. VI. Embedded in this guaranteed right is the right to cross

examine the witness whose testimony can give rise to acquittal, or conviction.

Here, one of the most important witnesses in this case was Doctor Millard. This doctor

signed the death certificate of Ms. Boothbyand listed her manner of death as "vehicle accidental

hit and run." This was the manner of death in 1998. However, almost ten years later, without the

body being exhumed, Dr. Millard changed the manner of death to homicide as testified to by Dr.

Palutke. (Tr XVI pp 68-71). Dr. Millard, however, would give an interview to a Licensed Private

Investigator (Thomas Bereza) in 2021, and specifically told Bereza that he did not have anything

to do with the state's case. This matter was never cleared up and the only testimony giving rise

to the change in the manner of death came from Dr. Palutke.

The issue herein involves the trial judge’s allowance, and the prosecutor's calling a witness

to testify to a medial report (death certificate) he did not prepare, but was allowed to express his

expert opinion on the subject matter. This violated the right to confront one's accuser because

the death certificate, when changed to homicide, was made in anticipation of legal proceedings

resulting from the hit and run accident to the victim, Deborah Boothby, depriving Petitioner of his

constitutional right to a fair trial, by the prejudice of tie testifying witness. Pointer v Texas, 380

U.S. 400 (1965).

Doctor Palutke, the Pathologist, determined that Boolhby died of multiple blunt force

injuries and internal bleeding. She had internal bleeding and fractures of her vertebra and pelvis.

9

(Tr XVI p 71). Her blood alcohol level was .27 percent. He opined that she would have been able

to walk until the vertebrae in her spine was broken. He indicated that the manner of death was

initially undetermined. But when the investigation revealed additional information to him gleaned

from their investigation, the Medical Examiner amended his findings aid changed the manner of

death to homicide. (Tr XIV pp 62-64). Only Dr. Millard’s name is affixed to the death certificate

on May 5,1998. Dr. Millard did not testily in either trial.

At trial Dr. Palutke's testimony was

not based on any new medical investigation but on law-enforcement speculation. Dr. Palutke

did not list any signs of the victim having been run over three times with a 3000 pound

automobile which would have caused crushing of bones and body tissue. Michigan law, requires

a new investigation and report tor any death certificate amended - none occurred in this case.

Doctor Millard's presence at trial was essential to Petitioner's to present a full, meaningful

defense. His testimony would have exposed the fraudulent nature of the amended death

certificate and the State's misconduct. Instead, the prosecution was allowed to substitute a

surrogate witness, violating the core holding of Melende-Diaz v Massachusetts, 557 US 3Q5

(2009); Bullcoming v New Mexico, 564 US 647 (2011), and Crawford v Washington, 541 US 36

(2004). The death certificates Were testimonial in nature and required full confrontation.

No

surrogate may be allowed to testify in place of the actual witness, a dear violation of this Court's

ruling in Bullcomings, supra.

The medical expert doctor who did not change

the death certificate, but testified to its change

The prosecutor called his expert witness, Dr. Palutke to testify regarding the change in the

death certificate from vehicle accident hit and run, to a homidde, Thrs testimony was

monumental because it allowed the jury to hear about the changes from accident to homidde.

Dr. Palutke testified that it was Dr. Millard who changed the manner of death on the death

certificate and he only changed his opinion. The question is not whether the statements were

allowable under the rules of evidence, the constitutional inquiry was the confrontation aspect of

the Sixth Amendment, Therefore, allowing Dr. Palutke to testify about a medical report he did

10

not prepare, was a violation of the right to confront one’s accuser, and the requirements of the

Sixth Amendment guarantee of confrontation. California v Green, 399 US 149 (1970).

The change in the death certificate were testimonial for purpose of the guarantee of the

Sixth Amendment right. Therefore, allowing testimony from Pathologist Palutke, under the

rules of evidence also violated the Supreme Court's ruling in Bullcomings v New Mexico, 564

US 647,691; 131 S Ct 2705 (2011), where the US Supreme Court opined:

"Stale cannot, in place of the technician who performed the lab tests, employ

testimony from a supervisor who neither participated in nor observed the testing of

the appellant's blood sample."

This Court has recently addressed what is now known as the "primary purpose test" when

considering statements for confrontaiion/cross examination purposes, in Smith v Arizona, 602

US 779, 785-786 (2024), this Court opined:

"In regards to making lab reports testimonial and to affect the confrontation

clause, "if the reports were used for the truth and prepared for trial."

*

As noted by the Sixth Circuit, the Courts below determined this claim to be harmless error.

This determination was contrary to this Court’s rulings because Dr. Millard, the doctor who

changed to death certificate from accident to homicide, never testified as to why his change was

lawfully needed. Contrary to the Courts below, this was not harmless error. (Appendix pp 5-6).

Dr. Palutke testified to the reports and death certificates made by Dr. Millard allegedly. In

preparing fpr his own testimony. Thus, the reports were used for the truth of the matter asserted,

and under Smith v Arizona, these were not harmless error due to the reports' testimonial Status.

The ruling by Judge Lamb to allow such testimony from Dr. Palutke regarding the changes

in the death certificate, knowing Dr. Millard would not be testifying violated clearly established

law by the US Supreme Court regarding such an issue, cf. Crawford, 541 US, at 68; Davis v

Washington, 547 US, at 822; Whorton v Bockting, 127 US 1173, 1179 (2007). The trial judge

obliterated the Constitutional rights of Petitioner when he allowed the testimony of Dr. Palutke,

(Tr XIV pp 62-63). Certiorari should be granted for a new trial. US Const. Amends. VI, XIV.

11

The Flight to Confront was Clearly Established Law

At trial, Dr. Palutke testified that he changed his opinion after learning additional facts from

law enforcement personnel. He did not have the body exhumed for verification. He also testified

that it was Dr. Millard who changed the manner of death from vehicle accident to homicide,

without Petitioner being allowed to cross examine Dr, Millard. The trial record is devoid of why

Dr. Millard did not testify as to his findings in the initial death certificate, or the change in the

manner of death after ten years. The confrontation clause of both the United States Constitution

and Michigan's Constitution, 1963, grant appellants the right to confront witnesses against them.

US Const Amend. VI; Const. 1963, Art 1, § 20.

The clauses prohibits "admission of testimonial statements” of a witness who did not

appear at trial unless s/he was unavailable for testimony, and the Defendant had a prior

opportunity for cross examination, cf Crawford v Washington, 541 US at 53-54.

Here, sub judice, Petitioner did not have a prior opportunity to confront and cross examine

Dr. Millard about his report. Thus, the trial court allowance of Dr, Palutke to testify to this report

violated clearly established law as determined by this US Supreme Court on confrontation/cross

examination claims. Crawford, 541 US at 68; Hemphill v New York, 142 S Ct 681; 211 L Ed 2d

534 (2022). One of the bedrock constitutional protection afforded a criminal appellant is the

confrontation clause of the Sixth Amendment, which states:

“In all criminal prosecutions, the accused has the right to confront his/her accuser

... to be confronted with the witnesses against him." Ohio v Roberts, 448 U$ 56,

66; 100 S Ct 2531 (1980). See Crawford v Washington, 541 US, at 61.

It is without question that the death certificate medical report ranked as testimonial for

purposes of the criminal prosecution against Petitioner. This was cfearfy established in

Melendez-Diaz V Massachusetts, 129 S Ct at 2532- There, the Court opined:

"... forensic laboratory reports ranked as testimonial for purpose of the Confrontation

Clause..." 557 US at 3321 -3324.

Here, the writ of certiorari should issue to correct this travesty Of justice.

12

111

PETITIONER'S RIGHTS WERE VIOLATED WHEN THE STATE WITHHELD

CRUCIAL EVIDENCE PERTAINING TO HIS GUILT OR PUNISHMENT

UNDER BRADYAAMARYLAND.

In the age old case of Brady v Maryland, 373 US 83 (1963), this Court dearly established

that a prosecutor has a constitutional duty to turn over ail evidence, including impeachment

evidence, crucial to a defendant's guilt or punishment, Brady* 373 US at 87. The Courts below

failed to address this claim under the due process clause and those decisions resulted in a

contrary to, and a severe unreasonable application of the Brady trilogy as determined by this

. Court Thus, certiorari is warranted. S- Ct. Rule 10.

Here, sub judice, the state prosecutor withheld critical reports and evidence explaining why

or how this case transformed from an accident to a homicide deven years after the death of Ms.

Boothby in 1998. Under clearly established law and the U.S. Constitution, Petitioner is

unequivocally entitled to this suppressed evidence.

The requirement of due process mandate disclosure, of all evidence that might lead a jury

to entertain reasonable doubt regarding a defendant’s guilt, as well as any impeachment

evidence Petitioner could have used for his defense. The constitutional obligation of the state to

turn over this withheld material fell On death ears in light of the Brady requirement.

Both impeachment evidence and exculpatory evidence fall squarely within the Brady ruling.

In the instant case, the State violated Brady v Maryland by withholding evidence related to the

author of the amended death certificate. The report and the reasoning for this amendment were,

never provided to the defense at any time during the course of the criminal prosecution. Kyfes v

Whitley, 514US419,437; 115SCt 1555(1985).

.

.

Instead of providing the defense with the medical evidence causing the amended death

certificate, the prosecution chose to present false testimony through Dr. Palutke. Napue v

Illinois, 360 US 264, 2690270 (1950). The prosecutor knowingly allowed the jury to consider

evidence it understood to be truthful by allowing Dr. Palutke to testify, (Tr XIV pp 62-64).

13

However, as confirmed later, Dr. Millard told a licensed private investigator, that he had no

involvement with this investigator whatsoever. To place more salt on the constitutional injury,

the State made no efforts to correct this false testimony regarding Dr. Millard's alleged

responsibility for amending the death certificate and related documents.

Medicinally, the instant case was never ruled to be a homicide. Under Brady, the

prosecutor had a clear legal duty to disclose this material evidence. The prosecutor also had a

duty to discover any favorable evidence known to others acting on behalf of the government,

including the police investigators. Strickler v Green, 527 US 263, 281; 119 S Of 1936 (195MJ),

This Court has reaffirmed this obligation repeatedly, including in United States v Bagley, 473 US

667,676; 105 S Ct 3375 (1985).

Dr. Palutke testified that it was Dr. Millard who amended the death certificate. (Tr XU p 22),

No report support this Claim. Dr. Palutke further asserted that Dr. Millard amended the document

after receiving additional information. (Tr XIV pp 62-67; pp 80-82; pp 91-93). According to

Private Investigator Bereza, these assertions are categorically untrue. The prosecutor knew

Dr. Millard had no involvement in the amending the death certificate, which is perhaps why he

was never summoned to court to testify regarding his changes of the death certificate. This

Court is called upon to correct this constitutional violation, created, and upheld by the state. US

Const. Amend. XIV.

The nondisclosure of these facts denied Petitioner Shaver of due process and a

fundamental fair trial, and the withheld material evidence directly relevant to his guilt or

punishment created such a 'prejudicial impact' that reversal is the only method to correct this

travesty of justice.

Given the decade old nature of the case , and because the body was never exhumed to

support the state's theory of homicide, the missing reports, suppressed evidence, and false

assertions were executed purposefully and prejudicial for the state to obtain a conviction. This

is precisely what the Bradv ruling is designed to prohibit, cf Napue v Illinois, 360 US at 269-270.

(the jury's estimate of the truthfulness and reliability of a given witness may well be determinative

14

of guilt or innocence, and it is upon such subtle as the possible interest of a witness in testifying

falsely that a defendants life or liberty may depend. Certiorari is warranted here.

Preventing the jury from property evaluating this claim undermined the truth-seeking

function of the trial. Suppression of information concerning the amendment of the death

certificates corrupted the integrity of the criminal process in its entirety, bn Millard did not testily

that he amended the death certificate. Petitioner's rights were violated, and he deserves a fair

trial. He was convicted on the basis of false testimony -- a result so unjust that prejudice must

be presumed, as a matter of fundamental due process of the Fourteenth Amendment

Dr. Millard did not testify, nor did he amend the death certificate, therefore, all testimony

related to Dr. Millard's changes made on the death certificate was false, used by the prosecutor

to obtain an unconstitutional conviction. This was accomplished by the withholding of the

amended death certificate so there could be no challenge or objections, Brady, 373 US at 87.

The Materiality of the State's Suppressed

Document comports with Brady's mandate

In Brady, this Court has ruled that the withheld document under Brady, must be material to

guilt of punishment The amended death certificate is not only material evidence to guilt, it is

material to punishment because had the document not been withheld, It could have been

challenged as to its authentication. Additionally, the amended death certificate would have had

to be explained by the state as to why if was electronic signed by the county clerk's office affixing

Dr. Millards name on the death certificate making it appear authentic. Thus, the withheld

document was indeed material to Petitioner’s defense, because had it been known that Dr.

Millard did not sign, or authorize the death certificate to be electronic signed with his name,—

creates a problem for the prosecutor’s case-in-chief. Thus, under Brady, this Court should grant

certiorari and remand the case for a new trial. Accord, United States v Bagley, 473 US 667,682;

105S Ct 3375 (1985).

"Bagley's touchstone of materiality is a reasonable probability of a different

results, and the adjective is important. The question is not whether the

15

defendant would more likely than not have received a different verdict with the

evidence, but whether in its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence." cf Kyles v Whitley, 514 US at 434;

115 SCt 1555.

To establish 'materiality' a defendant must show that there is a reasonable probability that

had the evidence been disclosed to the defense, the results of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome. United States v Bagley, 473 US at 682. This standard does not require demonstration

by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in

the defendant's acquittal. Kyles, 514 US at 434. A reasonable probability exists in this case

because, had the suppressed evidence been disclosed, the jury may have voted to acquit, this

is what the reasonable probability requires. Strickler v Green, 527 US at 290, See too, Smith v

Cain, 132 S Ct 627,630 (2012).

In Brady, this Court, for the first time, imposed on prosecutors broad disclosure obligations.

Brady was found guilty of murder and sentenced to death. At trial he admitted participation in the

crime, but denied he was the shooter. Prior to trial his attorney specifically asked for

codefendant's extra judicial statement Mr. Boblit (codefendant) was tried separately. The

prosecutor disclosed several of Boblit's statements to the police, but failed to disclose one critical

statement in which Boblit admitting doing the shooting. This Court ruled that the failure to

disclose violated due process warranting reversal. Brady, 373 US at 87.

Thus, in order to comply with Brady the individual prosecutor has a duty to learn of any

favorable evidence known to the others acting on the government's behalf, including the police.

Strickler v Green, 527 US 263, 281 (1999). Prejudice to Petitioner must be presumed and

certiorari must issue as a matter of fundamental fairness. US Const. Amend. XIV. Accord,

Bagley, 473 US at 682; Strickler, 527 US at 289-290; Kyles, 514 US at 434. Without the

suppressed amended death certificate, the prosecutor’s case against Petitioner Shaver falls

apart. The document is material to guilt because it established a crime, it is material to

punishment because it eliminates an accident. Certiorari is worthy of the rime to review the case.

16

IV

DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR NOT

PROPERLY INVESTIGATING PETITIONER’S CASE PRIOR TO TRIAL

During the state court trial, Petitioner was represented by Attorney Sappanos. Attorney

Sappanos conducted both trials. The first trial ended in a hung jury because the jury was unable

to convict Petitioner unanimously, The second trial resulted in a conviction of murder in the first

degree, MCL § 750.316 and Petitioner was sentenced to life imprisonment without the possibility

for a parole. He was denied relief on his appeal of right. A writ of habeas corpus was denied in

the United States District Court. On appeal to the US Court of Appeals for the Sixth Circuits

Petitioner was denied relief, This petition for writ of certiorari is submitted timely to challenge the

constitutional validity of the state court conviction.

Petitioner was denied his right to the effective assistance of counsel during his jury trial,

thereby violating his Sixth Amendment guarantee of the effective assistance of counsel.

Defense counsel failed adequately investigate the Petitioner's case before trial. To establish

ineffective assistance, a criminal defendant must demonstrate that counsel's performance was

deficient and fail below the an objective standard of reasonableness. This is the first prong of the

Strikcland v Washingion's inquiry. - Additionally, a defendant must show that the deficient

performance resulted in prejudice. The second prong of the Strickland inquiry under Strickland v

Washington, 466 US 668 (1984)..

Petitioner asserts that Attorney Sappanos failed to contact and investigate a key witness

in the case who possessed information directly relating to his guilt and innocence. The State

alleged that Dr. Millard amended the death certificate which was used fo charge Petitioner with

murder in the first degree, MCL § 750,316. The trial attorney failed to call Dr. Millard to testify

about this allegation of changing the medical information. Following the conviction, a Private

Licensed Investigator, Thomas Bereza, was hired and he contacted Dr, Millard who fold him

unequivocally that he never amended any death certificates related to this case and that he was

17

not involved at all.

This information was never made a part of the state court records in this

case. There was never a hearing on this Sixth Amendment claim.

Had defense counsel conducted a basic investigation and spoken to Dr. Millard, he would

have discovered Dr. Millard's complete noninvolvement. Attorney Sappanos had a direct toot

for obtaining Dr. Millard’s presence at trial, and he failed to use. The Compulsory Process of the

Sixth Amendment This would have placed Mr. Sappanos in a significantly stronger position to

impeach the State's false allegations that Dr. Millard amended these medical documents . This

evidence was presented to the jury as factual evidence against Petitioner, and defense counsel

failure to investigate allowed false assertions from the witness stand to go unchallenged. A

minimal investigation would have uncovered the truth. Failing to contact the very doctor whose

name appears on the documents used to charge Petitioner with murder was unreasonable and

constitutionally deficient. Kimmelman v Morrison, %n US 365,383; 106 S Ct 2674 (1986)) (one

error may support an ineffective assistance claim under the proper circumstances).

Attorney Sappanos also failed to hire an accident expert, similar to Investigator Bereza,

who could have explained to the jury that the State's theory of the case was flawed and highly

questionable. Given this case involved vehicle impact, an accident reconstructionist expert was

critical - especially because the prosecution never properly investigated file crime scene.

According to Investigator Bereza, this case could have been properly explained in 1998, not

eleven years later.

Attorney Sappanos further failed to call key witnesses back for the second trial. The lower

court later insinuated that these witnesses might have harmed the defense; however, when these

witnesses testified in the first trial, that trial ended in a hung jury ’ demonstrating that their

testimony was favorable, or at a minimum, created a reasonable doubt. Under Strickland, 466

US at 696, this was unreasonable and not trial strategy.

One critical witness was Latish Rollings whose testimony in the first trial established that

she pushed the victim, Deborah Boothby off her car. Ms. Boothby was lying on Ms. Hollings'

car, intoxicated. Ms. Hollings offered her a ride home before leaving On foot, This occurred

18

during the time the victim was allegedly being kidnapped and assaulted according to the state

witnesses. Ms. Hollings' testimony directly conflicted with and undermined the prosecution's

theory. Evidence showed that Hollings' car struck the victim - further disrupting the State's

timeline. Yet, Ms. Hollings' was never charged; instead, the State coerced her into testifying

falsely in the first trial. Defense counsel failed to call her for the second trial because it is highly

probable that Hollings could have contributed again to a hung jury. As the Private Investigator

Observed, the State never excluded Ms. Hollings' car as the cause of the fatal injuries.

Trial counsel was ineffective for failing to call State witness and Bar owner Glover

Dandridge for the second trial. Dandridge's testimony would have exposed the State's continued

allowance of false testimony from Adrianne Burnette. Ms. Burnette falsely claimed Mr.

Dandridge came to the door with a shotgun to break up a fight in the parking lot. In the first trial,

Dandridge testified unequivocally that this was untrue arid he saw no reason to call the police.

His testimony directly contradicted the prosecution's theory arid would have been powerful

impeachment evidence. Effective impeachment of even one eyewitness can warrant a new trial.

United States v Agurs, 427 US 97,112-113 (1976).

Last, Evita Rivera, a defense witness in the first trial was never called back for the second

trial. The State's star witness, Adrienne Burnette, testified that she went to the bar with Ms.

Rivera. Ms. Rivera testified that she did not even know Ms. Burnette and knew no one involved,

For the unknown reason, defense counsel abandoned this favorable witness. Romonoz v

Berghuis, 490 F 3d 482 (6th. Cir. 2007). This was not reasonable, nor was it sound strategy.

Roe v Flores-Ortega, 528 US 470, 481; 120 S Ct 1029). This was prejudicial representation

under Strickland, 466 US at 696.

Petitioner has a constitutional right to be represented by competent counsel at every stage

of the proceedings where his rights may be effected - a principle long recognized by this Court as

far back as Powell v Alabama, 287 US 45 (1932); Coleman v Alabama, 399 US 1 (1970), The

writ of certiorari should issue to resolve the Sixth Amendment error and injury to Petitioner. S.

Ct. Rule 10.

19

V

THE PROSECUTOR FAILED TO PROVE, BEYOND A REASONABLE

DOUBT, THAT PETITIONER POSSESSED THE NECESSARY SPECIFIC

INTENT TO BE CONVICTED OF MURDER.

Petitioner seeks certiorari for this Court to order the state courts to conduct a new trial

whereby the elements of the crime charged can be established beyond a reasonable doubt. The

state prosecutor failed to produce sufficient evidence to prove that Petitioner Scottie Shaver

possessed the necessary specific intent to commit first degree murder under state law. MCL

§ 750. 316. Petitioner was merely a passenger in the vehicle driven by Adrienne Burnette and

was not in the vehicle when the victim, Deborah Boothby was allegedly kidnapped and

asportation occurred. Viewing the evidence in a light most favorable to the prosecution, the state

failed to demonstrate that Petitioner's alleged actions satisfied the dements of murder in the first

degree. Where intent is an element of the offense - as in felony murder, and nearly aU criminal

offenses - the existence of such intent is a question of fact that must be submitted to a jury.

Morissette v United States, 342 US 274 (1972).

This Court made clear in Winship, 397 US 358 (1970), that proof beyond a reasonable

doubt must be proven as to each and every element of the crime charged. Due process

prohibits a criminal conviction unless each element is proven beyond a reasonable doubt

Jackson v Virginia, 443 US 307, 319 (1979). Courts cannot evade In re Winship, by creating

presumptions that circumvent any element of a crime. Sandstrom v Montana, 422 US 510

(1979).

Here, sub Judice, the State of Michigan, by way of the County Prosecutor, contends that

Petitioner was involved in an altercation at a bar that ultimately led to the death of Deborah

Boothby. This theory was based entirely on the statements of a convicted perjurer, Adrienne

Burnette. The State courts relied heavily on Ms. Burnette’s demonstrably false testimony. (See

Appendix p 98a). there was absolutely no evidence supporting her claims - no physical injuries

consistent with her account, no DNA, and no fingerprints. Moreover, during the autopsy, there

20

were no insinuations that Ms. Boothby’s flesh had been smashed by being run over with a 3000

pound vehicle.

Several other witnesses admitted to lying and admitted they were given Ms.

Burnette's false statements to read in preparation of their own testimony.

The prosecution alleged that Ms. Boothby was beaten at the bar, placed in a car, moved

to a second location, beaten aga’n, then returned to the bar and run over by two vehicles. The

State's star witness claimed Petitioner Scottie Shaver instructed her to run the victim over. (Tr

XII p 53). Ms. Burnette only made this accusation after police fed her that theory the day before

her polygraph examination. Initially, Ms. Burnette attempted to claim that Petitioner was the

driver of her vehicle. After flunking her polygraph test, she conveniently adopted the police’

theory that Petitioner instructed her to run the victim over. That statement was false, and the

lead detective knew it. The detective coached and led the witness into making that accusation.

In exchange for her false testimony, Ms. Burnette was permitted to plead guilty to perjury and

second degree murder and received a sentence of eight to twenty years.

Petitioner was not the driver of any vehicle and never instructed Ms. Burnette to run over

the victim. State's own witnesses - who were given plea deals requiring truthful testimony -

admitted Petitioner did not assist in placing Ms. Boothby into her car. (P.E. VI p 104). State

witness Patricia Jones also testified that she never saw Petitioner move the victim. (Tr IX p 179).

Ms. Burnette testified that Petitioner struck the victim only once. (P.E. VI p 102). The State

proved that Burnette lied under oath on at least four occasions. Nevertheless, the State based its

entire case on this unreliable testimony.

Witness Shariamar Thomas testified she was simply repeating what police told her - not

anything based on personal knowledge. (Tr IX pp 230, 247). Latonya Thurman admitted she

merely agreed with whatever police suggested and testified that she was scared and intimidated.

(Tr VIII pp 91-92).

In stark contrast, eyewitness Danyale Jones and Marie and Jeannie Black testified that

they saw Ms. Boothby staggering drunk and injured as she walked down the street. (Tr XVIII p

243). Police attempted to pressure these women into changing their statements, but Ms. Jones

21

refused, stating, "No, that’s not what I saw." (Tr XVII p 160). These women provided

statements to police fifteen minutes after officers arrived - not eleven years later like the other

witnesses. Their accounts never changed. Because their testimony contradicted the State’s

false narrative, the prosecution intentionally withheld them and refused to call them at trial. Every

State witness who testified followed the script created by Ms. Burnette’s statement, which was

circulated to them eleven years after the incident.

Detective Diane Oppenheim was so committed to securing a wrongful conviction that

she was caught during trial attempting to coach Ms. Burnette's testimony in the courtroom. (Tr

XXI pp 119-121). Detective Oppenheim violated protocol by failing to record any interviews and

drafting a supplemental report before completing the investigation.

The prosecutor never presented any evidence Showing that Petitioner had intent,

premeditation, or involvement in any planned crime. Instead, the State’s case relied solely on

speculation, coercion, and perjury - exactly the type of misconduct condemned in Napue v

Illinois, 360 US 264,269 (1970).

Petitioner was never charged or convicted of kidnapping, further demonstrating the

State's inability to produce evidence supporting its theory of events. The State wholly failed to

present tangible, credible, or trustworthy evidence that Petitioner committed first degree murder.

The conviction must be overturned. People are actually innocent when their actions do not

constitute the offense for which they were convicted. Bousley v United States, 523 US 614

(1998). Circumstantial, elements of a crime must also be proven beyond a reasonable doubt.

Petitioner is constitutionally entitled to a new trial premised on evidence sufficient for a jury to

evaluate and render its verdict beyond a reasonable doubt. Jackson v Virginia, 443 US at 323.

22

VI

PETITIONER IS ENTITLED TO A NEW TRIAL BASED ON NEW EVIDENCE

OBTAINED BY PRIVATE INVESTIGATOR THOMAS BEREZA, SUPPORTING

HIS INNOCENCE.

Petitioner Shaver asserts that based on new and compelling evidence obtained by

Private Investigator Thomas Bereza, he must receive a new trial. A jury is constitutionally

entitled to consider all evidence relevant to a defendant's guilt or innocence. In this case, the

jury was affirmatively told that Dr, Millard amended the death certificate ■* an assertion that a

subsequent, thorough investigation proved to be false; There are no documented reports,

medical records, or administrative filings to corroborate this claim.

This Court has repeatedly held that when a petitioner presents new evidence that

undermines the conviction, the court cannot maintain confidence in the verdict; Petitioner has

raised, demonstrated, and substantiated serious doubt about the integrity of his conviction.

Schlup v Delo, 115 S Ct 851 (1995); House v Bell, 126 S Ct 2064 (2006).

Dr. Millard clearly stated to the Private Investigator that he had no involvement with this

case whatsoever. The jury had an unequivocal right to hear this exculpatory evidence.

However, due to Petitioner’s attorney being constitutionally ineffective, the jury never heard this

reliable and material testimony. The new evidence surfaced years later by private investigator.

Dr. Millard was undeniably a material witness. His testimony exposes that the State

presented false evidence and misleading testimony to secure a conviction. The allegation that

Dr. Millard amended the death certificate misled the jury, and the prosecution knew this

assertion was contrary to the truth, yet Petitioner was denied and evidentiary hearing - an

opportunity that could have directly addressed this critical- issue during post-conviction

proceedings. Accord Cullen v Pinholster, 131 S Ct 1388,1398-99 (2011). Instead of ordering a

hearing, the lower court speculated about what ’could have" occurred regarding the alleged

amendment of the death certificate. "This speculation replaced fact-finding, and the absence of

Dr. Millard's testimony left the jury with only the State's misleading narrative. Dr. Millard could

23

have shown this case was never medically ruled a homicide by qualified medical professional

Supreme Court precedent is unequivocal: a "fundamental miscarriage of justice" occurs

when new evidence shows that a constitutional violation has likely resulted in a conviction of

someone who i$ actually innocent Schlup v Delo, 513 US 298 (1995); Herrera v Collins, 506

US 390,402 (1993); US Const Amend. V. A miscarriage of justice is the embodiment of cruel

and unusual punishment, especially when an innocent man is imprisoned.

Petitioner has submitted new, reliable documentary evidence * including the sworn

affidavit of Investigator Bereza - which was neither provided to nor available for the jury's

consideration at trial. This new evidence supports actual innocence, or at a minimum, calls into

serious question the change in the manner of death from accident to homicide.

Petitioner has steadfastly maintained his innocence throughout his incarceration. Aside

from the deeply flawed investigation by Detective Oppenheim and the unsubstantiated assertion

that Dr. Millard amended the death certificates, (Tr XII p 22), no credible evidence supports the

State's theory that Petitioner caused the death of Ms Boothby death - unless this Court

chooses to rely solely on the perjury admitted by Ms. Burnett. (Tr IX pp 5-6, pp 16-17),

The true facts were never disclosed because Dr, Millard was not summoned to testify an

omission that directly resulted from ineffective assistance of counsel. This constitutional failure

deprived the jury of critical exculpatory evidence and allowed the State to secure a conviction

through falsehoods and deception.

Consequently, a constitutional violation has unquestionably resulted in the conviction of

an innocent man. Petitioner must be granted a new trial to remedy this profound injustice. Had

the jury heard the testimony contained in Private Investigator, Bereza's affidavit, there is a

substantial probability that Petitioner would not have been convicted. Cone v Bell, 556 US 449,

470; 173 L Ed 2d 701 (2009). When new evidence establishing that Dr. Millard had no

involvement in this case ~ and the State relied on false evidence through Dr. Palutke. Petitioner

rs entitled to a new trial. This Court is asked for judicial irrterventionn and remedy the

constitutional error by way of this writ of certiorari, cf S. Ct. Rule 10.

24

VII

THE STATE USED FALSE TESTIMONY TO OBTAIN A CONVICTION

VIOLATING PETITIONER'S DUE PROCESS RIGHT TO A FAIR TRIAL

Petitioner Shaver asserts that he is entitled to a new trial because the state prosecutor

knowingly used, relied on, and presented false testimony from Ms. Burnette, Dr. Palutke, and

multiple other witnesses to secure this unconstitutional conviction. The prosecutor was fully

aware that his witnesses' statements were false, yet he continued to present, endorse, and rely

upon them. Prosecutors have a constitutional duty and obligation to disclose to the defense - and

the trial court - whenever government witnesses commit perjury or provide testimony known to

be untrue.

The prosecutor permitted its star witness Ms. Burnette, to repeatedly manipulate and

reshape her narrative until it aligned with the State's theory of the case. Initially, the State alleged

that Petitioner was the driver of Ms. Burnette's car. After Ms, Burnette flunked her polygraph

tests, that narrative abruptly changed.

Before the polygraph testing occurred, lead Detective Diane Oppenheim told Ms. Burnette,

"if you were driving but were forced to do this, we need to know that now." Ms. Burnette

responded, "No, I wasn't driving. Scottie was driving my car." After she flunked the polygraph,

Ms, Burnette immediately adopted the detective's suggested story line, stating, "Okay, I was

driving, but Scottie forced me." This version of events conveniently emerged only after police

intervention, demonstrating obvious coercion.

Detective Oppenheim knew Ms. Burnette was lying when she claimed Petitioner told her to

"run tiie bitch over." Police reports dated 11/17/08, and 11/18/08., clearly reveal that law

enforcement officers provided this theory to Burnette as a method to implicate Petitioner.

Petitioner was not the driver on any vehicle, was not inside the vehicle that allegedly moved the

victim, and no witness had ever previously claimed that Burnette was forced - or instructed- to

run anyone over. The testimony was manufactured through coercion orchestrated by law

25

enforcement.

Similarly, Dr. Palutke was not truthful when he testified that Dr. Millard amended the death

certificate, dr. Palutke admitted that he altered his in-court opinion solely based on what law

enforcement told him, without conducting any independent medical investigation. (Tr V p 67).

Additional witnesses also later admitted they had testified falsely. Tracy Hughes conceded

after trial that her testimony against Petitioner and his Codefendants was fabricated. She

informed defense attorney Nichole Dunfield that she was not even present during the events she

claimed to have witnessed and that the police knew she was not there. The State nonetheless

used her false statements to create a fabricated motive.

The prosecutor further presented knowing false evidence through the testimony of

Shariamar Thomas. She admitted that her testimony was based on information supplied by her

cousin and by law enforcement - not on her own knowledge. (Tr IX pp 230-236). When

confronted during cross examination about the source of the information in her written

statements, she openly pointed to Detective Oppenheim and stated, "that lady right there."

This pattern continued with witness Latonya Thurman, who testified that she felt intimidated

by law enforcement and simply answered "yes" to their leading questions. (Tr VII p 91). These

coerced and fabricated accounts were then used to falsely claim that multiple witnesses

observed a fight, bolstering the State's theory through perjury and intimidation.

This type of conduct at a state trial was condemned by the US Supreme Court in Napue v

Illinois, 360 US at 270-271. There, this Court opined:

"The principle that a state may not knowingly use false evidence, including

false testimony, to obtain a tainted conviction, implicit in any concept of ordered

liberty, does not cease to apply merely because the false testimony goes to

the credibility of the witness, the jury's estimate of the truthfulness and reliability

of a given witness may well be determinative of guilt or innocence, and it is upon

such subtle factors as the possible interest of the witness in testifying falsely

that a defendant's life or liberty may depend." 360 US at269.

Under Napue, no matter what the subject matter, a tie is a lie and a conviction obtained

therefrom will not be allowed to stand. 360 US, at 270. Such a posture violates the Supreme

26

Court's ruling in Berger v United States, 295 US 78, 88 (1935).

This conviction, obtained by the fraudulent use of perjury should be corrected under the

principle of fundamental fairness of due process. Accord. Napue v Illinois, 360 US, at 270.

The prosecutor not only went beyond the boundaries articulated in Berger v United

States, 295 US 78,88; 55 S Ct 629, 633; 79 L Ed 1314 (1935), he flaunted his powers at the

court knowing he was, in essence, suborning perjury, or by misleading the Jury on the subject

matter of the amended death certificate.

In Carter v Anderson, 585 F 3d 1007,1011 (6th. Cir. 2009), the US Sixth Circuit Court erf

Appeals identified five factors which must be addressed when a fraud on the court is alleged.

That Court opined;

1). Conduct on the part of an officer of the court; that 2} is directed to the judicial

machinery itself; 3) is intentionally false, wilJfcdly blind io the truth; or is in reckless

disregard of the truth; 4) is a positive averment of a concealment when one is

under a duty to disclose, and 5) deceives the court" 585 F3d, at 1011. Ibid.

it is of null consequence that the issue could not be ruled upon in tire appeal of right The

evidence to support this claim was unavailable because it was withheld by the state in violation of

Brady v Maryland. This issue should not be foreclosed from review as the conviction of an

innocent person on first degree murder, still stands. This would lead to the age old phrase that

"justice delayed, is justice denied." Mooney v Holohan, infra. And, of course, under the due

process clause, the State decisions should not be allowed to stand irrespective of the good or

bad faith of the Prosecutor. False assertions, in any case is contrary to the due process

clause. US Const Amend. XIV; Napue v Illinois, 360 US 264,266; 79 S Ct 1173; 3 L Ed 2d 1217

(1959); Mooney v Holohan, 294 US 103; 55 S Ct 340, 342; 79 L Ed 791 (1935). [deliberate

deception by a prosecutor is incompatible with the rudimentary demands of justice).

A

conviction based upon false testimony is constitutionally infirm. Therefore, Petitioner urges this

Court to apply the doctrine of novelty as articulated in Reed v Ross, 468 US 1; 104 S Ct 2901; 82

L Ed 2d 1 (1984).

The prosecutor sought only to convict Petitioner Shaver This conduct violates the US

27

Supreme Court's decision in Berger, supra. The Prosecutor's duty owed to the court ought not

go unrecognized simply to justify Petitioner's. Parr v Texas, 363 US 370, 393-394 (1960).

Justice, in this case, has yet to be reached. Here, the injustice should be condemned, or be

corrected. Mich. Const. 1963, art 1, § 17; US Const. Amend. XIV.

Michigan has long ago addressed this concept in People v Wiese, 425 Mich 448 (1986),

adopting Napue r ["no matter its subject matter... a lie is a lie, 360 US at 270). A conviction

derived therefrom offends the due process clause and requires reversal. US Const. Amend.

XIV. The records in this case should be expanded to address the perjury deduced at trial,

consistent with the decision announced in both Napue v Illinois, and People v Wiese, supra.

Napue was adopted by the Michigan Supreme Court, and the Court opined:

"It is of no consequence that the falsehood bore only to the witness’ credibility

as opposed to the guilt of the accused ... a lie is a lie." 360 US, at 270; 3 L Ed

2d, at 1221, Id.

.

Petitioner is entitled to relief solely on the false, and perjured testimony. See California v

Trombetta, 467 US 479; 104 S Ct 2528; 81 L Ed 2d 413 (1984). This Court should, as a matter of

substantive law, review this ciaim under the criminal concept as a first impression judicial

inquiry and make a merit based decision. This Court in Napue went on to hold that:

"A conviction obtained through the use of false evidence, known to be such, by

representatives of the state, must fall under the Fourteenth Amendment, cf.

Mooney v Holohan, 294 US 103 (1935); Pyle v Kansas, 317 US 213 (1942);

Alcorta v Texas, 355 US 29 (1957).

Petitioner asserts that because this claim offends the US Constitution's due process

clause, and is not in accords with Mich Const. 1963, Art 1, § 17, the tainted conviction should be

set aside and a new trial ordered on the falsity of the testimony by prosecution's witness.

Prejudice from the perjury must be presumed. The false testimony affected the verdict from the

jury and it should be set aside. Napue, 360 US at 270.

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CONCLUSION

For ail the foregoing reasons set forth above, and the lower courts treatment of this

Court’s ruling in Bruton v United States, Petitioner respectfully requests that this Honorable

Court grant his Petition for Writ of Certiorari, vacate and reverse the decisions below, and order

the State to grant a new trial. Additionally, Petitioner urges this Court to rule that henceforth, a

non-testifying codefendant's out of court statement to anyone, which will be used against the

defendant at trial as the instant case, is always 'testimoniaF and constitutes error under Bruton,

eliminating any chaos or confusion with respect to its confrontation - cross examination inquiry.

Respectfully submitted,

Dated:

-ZO^-b

Scottie B. Shaver, #405867

In propria Persona

Lakeland Correctional Facility

141 First Street

Coldwater, Michigan 49036

29

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.

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