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
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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
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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.