Supplemental Brief — Cornish v. United States (No. 06-399)

——$—

FILED

(3) OCT 22 2006

OFFICE OF THE CILERK

SUPREME CCURT, U.S.

No. 06-399

In The

Supreme Court of the United States

6

O’RANE M. CORNISH, SR.,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

2

On Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

7

~ PETITION FOR A WRIT OF CERTIORARI

SUPPLEMENT

e

O’Rane M. Cornish, SR.

Petitioner

Represents Himself

3804 Shady Hollow Lane

Memphis, TN 38116-4039.

October 19, 2006

i

QUESTIONS PRESENTED

QUESTION 1:

Whether the unavailable ‘municipal building

permitting’ documentary evidence, the only recognized

objective, positive proof within the local municipality, of: (a)

The construction and existence of any building; and (b) The

existence of building construction projects; both pivotal,

dispositive issues in this case, qualifies under the aegis

of Rule 33 Newly Discovered evidence, given the uniquely

peculiar, distinguishing circumstances and fact pattern of

the Case.

QUESTION 2:

Whether as to the same case and same issue, (a) The

District Court’s Order overruling the previous decision of

the Appellate Court, followed by, (b) The Appellate Court’s

decision affirming the District Court’s Order; constitute

violations of the settled doctrines of: (1) “The Law of the

Case”; and (2) “The Law of the Circuit”; and “The Mandate

Rules”; and longstanding concepts of precedent; and so

raises question of reasonableness and fairness in general,

and on the whole, evidences a violation of the Due Process

Clause of the U.S. Constitution.

ii

TABLE OF: CONTENTS

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TABLE OF AUTHORITIES

CASES - PAGES

Strickland v. Washington, 466 U.S. 668, 694,

* 10458. Ct. 2052, 80 L.Ed.2d 674 (1984).............. 10

United States v. Bagley, 473 U.S. 667, 682,

105 S. Ct. 3375, 87 L.Ed.2d 481 (1985)............... 10

United States of America v. McCoy,

193 US 543, 24 S.Ct. 528, 48 L.Ed.805............... 11

1

SUPPLEMENT

At the time of Cornish’s initial filing of his petition,

he was confined at FCI-Oakdale with uhe usual limitations

of access to informational, legal and his trial records and

documents. Indeed, while at Oakdale, the limited amount

of records he had access to was the result of the protective

Order issued December 14, 2004 by the United States

District Court, Eastern District of Texas at Texarkana,

Texas. He was released on April 21, 2006 and so he now has

virtually full access to all information, record, documents,

files and legal technical assistance, including ongoing effort

to retain competent appellate counsel.

Given all of this, he now supplements his Petition,

to bring to the Court’s attention with specificity he could

not achieve before, trial and legal information to which he

now has full access, and the dramatic impact of the of the

“newly available documents” along side the testimony.

First, the specific trial testimony of the “single

expert authority witness”, Doris Lee Austin, “Austin”

Deputy Administrator, Memphis & Shelby County Office of

Construction Code Enforcement, (CCE), with a comparative

summary analysis of the “newly available municipal

building permitting documents” at issue and which are

graphically displayed at Appendix C to his Petition.

Austin’s testimony appears in the record as

Reporter’s Transcript (RT), Volume I, page 151, ine 1

through page 159, Line 5. [TR. Vol. 1p151:L1-p159:L5}. It

is committed to this Court’s reading. This presentation is

configured as alternate Austin trial testimony followed by

brief summary analysis.

Austin on Direct, Rt. Vol.Ip151:L1-10.

Q: Ma’am, would you please state your full name?

A: Doris Lee Austin.

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Q: And, Ms. Austin, what is your occupation?

A: I’m Deputy Administrator of Memphis and Shelby

County Construction Code Enforcement.

Summary Analysis :

Beyond this Austin testimony, nothing else to which

she testified is credibly. In other words, when compared

with the “newly available municipal building permitting

documents” she is plainly shown to have testified falsely,

mistakenly, confusingly to Cornish’s detriment and severe

prejudice.

Austin Direct cont’d TR. Vol. I: p151:L11-18

Q: And can you tell us essentially what the deputy

administrator does of that Agency?

A: It’s the day-to-day operation of code enforcement

including ....... issuing.... permits, license, .....

Q: And your office issues construction licenses, permits,

and also inspects properties?

A: That’s correct.

Summary Analysis:

Austin’s Falsity 1: Neither she or her office issues

contractor’s “license” in the State of Tennessee. The State

issues such licenses via its Board for Licensing Contractor’s

at Nashville, Tennessee.

Austin’s Direct cont’d. TR. Vol. I: p152:L14-p153:L3:

Q: Are you familiar with Mr. O’Rane Cornish?

A: With the company, yes.

Q: What is the company that he’s sauociened with?

A: He has what we call a B, C and A license which is building

construction, residential.

Q: Residential?

A: Residential.

Q: What is the company name that he has that license

under?

A: 6C/Dahcor Corporation.

Q: Under that license, can 6C/Dahcor undertake any

commercial building?

A: No, sir.

Q: Only residential?

A: Yes, sir.

umm

This testimony is not merely incredible, it is false

as to its premise and theory, and for good measure, is

directly contradicted by the ‘newly available municipal

building permitting documents’ at App. C. According to her

testimony, she is familiar with Cornish’s company and that

he could only do residential construction under a “license”

that she earlier falsely testified that she issued”. It is notable

that she did not know the name in which his license was

issued. This court is now directed to App. C, the municipal

building permitting documents displayed at App. 12, 13 and

14.They are commercial applications, permits, inspection

report and Certificates of Occupancy. They also show. his

company’s name in which his license is listed. They singly

and cumulatively contradict her testimony in its entirety.

CONTRADICTION 1: The “newly available

document” at Appx. C, App. 12, fig. 1.1 is a commercial

permit B0737678 for 4791 Tchulahoma Road, issued by

Austin’s office. It shows checked off with an “x”, Business,

which is commercial — as opposed to residential. It is a

direct contradiction of her testimony at p.152:L14-p.153:

L3.

CONTRADICTION 2: The “newly available

document” at Appx. C, App 12, fig. 1.2 is the commercial

permit application 737678 for 4791 Tchulahoma Road,

submitted by Cornish to Austin’s office. It shows checked off

with an “x”, Business, which, as noted above is commercial

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— as opposed to residential. It directly contradicts her

testimony at p. 152:L15-p.153:L3.

CONTRADICTION 3: The “newly available

document” at Appx. C, App. 12, fig. 1.3 is also the commercial

buidling permitting document for 4791-7 Tchulahoma

Road, submitted by Cornish to Austin’s office. It shows

checked off with an “x”, Business, which, as above noted

is commercial — as opposed to residential. It directly

contradicts her testimony at p. 152:L14-p153:L3.

CONTRADICTION 4: The “newly available

document” at Appx. C, App. 12, fig. 1.4 is the commercial

building permitting document for 4730 Tchulahoma Road,

issued by Austin’s office. It shows checked off with an

“x”, Business, which as earlier noted is commercial — as

opposed to residential. It directly contradicts her testimony

at p. 152:L14-p153:L3.

-CONTRADICTION 5: The “newly available

document” at Appx. C, App. 12, fig. 1.5, is the commercial

building permitting document for 4730 Tchulahoma Road,

submitted by Cornish to Austin’s office. It shows in

writing “Business office” under “Business Use”, and again

at “Use of Bldg.”, which indicates commercial as opposed to

residential. It directly contradicts her testimony at p. 152:

L14-p153:L3.

CONTRADICTION 6: The “newly available

document” at Appx. C, App. 14, fig. 2.1, is the commercial

building permitting document B0737688, issued by Austin’s

office, for ‘a restaurant named “Chitlin-N-Thangs”. It

shows checked off with an “x” Business, and at Use of Bldg,

“Office”. It is therefore commercial. It directly contradicts

her testimony at p. 152:L14-p153:L3.

CONTRADICTION 7: The “newly available

document” at Appx. C, App 14, fig. 2.3, is the commercial

building Certificate of Occupancy B0737688, for the

restaurant named “Chitlin-N-Thangs”, issued by Austin’s

office. It shows business {BUO]. It is commercial. It directly

contradicts her testimony at p. 152:L14-p153:L3. This

document is issued only when a contractor successfully

completes the building project for which he pulled the

permit.

CONTRADICTION 8: The “newly available

documents at Appx. C, App 15, fig. 3.1, is the commercial

building permitting document 725309 for 3383 Park

Avenue, PCD, submitted to Austin’s office. It shows

checked, “business”. It is commercial. It directly contradicts

her testimony at p. 102:L14-p153:L3.

CONTRADICTION 9: The “newly available

building permitting document at Appx. C, App 15, fig. 3.2,

is the commercial building permitting document B0725307

for 3383 Park Avenue, PCD, issued by Austin’s office.

It is business which as noted is commercial. It directly

contradicts her testimony at p. 152:L14-p153:L3.

CONTRADICTION 10: The “newly available

document” at Appx. C, App 15, fig 3.4, is the commercial

building Certificate of Occupancy BO725309, for 3383 Park

Avenue, Personal & Career Development [PCD], issued by

Austin’s office. It shows business [BUO]. It is commercial.

_ It directly contradicts her testimony at p. 152:L15-—p153:

_ L3. This document is only issued when the contractor

successfully completes the building project for which he

pulled the permit.

In sum, the foregoing ten highlighted newly

available municipal documents contradicts and disproves

Austin’s testimony that Cornish and his Company could do

only residential construction.

Austin’s Direct cont’d. TR. Vol.[p153:L17-21.

Q: Does the name Manufacturing Technologies....appear

in your records as any company for which a permit was

taken out or an inspection given for commercial permit of

building

A: No, sir.

Summary Analysis:

The “newly available municipal building document”

73767, at Appx. C, App12,-fig 1.3, shows at Owner/Tenant

“Mfg [Manufacturing] Technologies, and class of work,

“new” is circled. Again, Austin’s testimony is contradicted

by the documentary evidence.

Austin’s Direct cont'd TR. Vol. [p153:L22-24; p154:L9-18.

Q: Has Mr. Cornish applied for some commercial permits?

A: Yes, sir.

Q: Was he allowed to in fact complete those because of his

license?

A: No.

Q: So of the four commercial permits he applied for, he was

not allowed to complete-any of them; is that correct?

A: No.

Q: And Manufacturing Technologies was not any of those?

A: No, sir.

Summary Analysis:

The “newly available municipal building documents”

at Appx. C, App. 14, fig. 2.3 and at App 15, fig 3.3, as noted

earlier, are the Certificates of Occupancy for the very

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projects she said Cornish was never allowed to complete.

The Certificates are issued only after the contractor who

pulled the building permit, successfully completes the

construction as determined by a final inspection performed

by a building inspector from Austin’s office. In effect, if

Cornish did not successfully complete the project, the

Certificate of Occupancy displayed at App 14 and 15 would

never have been issued. These documents, Figs. 1.1, 1.2, 1.3,

Figs. 2.3 and 3.4, directly contradict Austin’s testimony.

Austin on Cross Examination: RT. Vol.Ip154:L22-p157:L7.

Here, not only did Austin continue her false

testimony, but it was also confused.

Austin on Cross at RT. Vol.[p155:L11-20:

Q: ....Now to your knowledge, you didn’t know anything

about him doing a commercial building on Tchulahoma

Road, did you?

A: Yes, I do.

Q: You know that that building was built?

A: I have records of a building on Tchulahoma Road, yes,

ma’am. : :

Q: You have records of a 22,000 square foot building on

Tchulahoma Road?

A: I went by the address. I can’t tell you the specifics without

looking at the permits.

Summary Analysis:

Here, Austin testified that she had records... of a

22,000 square foot building on Tchulahoma Road. That she

went by the address and by implications saw the building.

But, according to her testimony, she could not be specific.

She didn’t bring the building permitting documents [ e.g .

those displayed at Appx. C, App 12, 13, 14 and 15]. But look

at her further testimony.

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Austin on Cross RT:Vol.Ip156:L7-15:

Q: Was this a huge building? ,

A: I don’t know. I have never been out there.

Q: I thought you said you went by there?

A: No, no.

Q: So you never went by and saw the building actually?

A: No.

Summary Analysis:

Austin testified confusingly. First, she testified

that she went by the building address. Then, pressed for

specifics, she testified that she never went out there; and

she denied what she earlier testified that she did.

Austin testified falsely on direct. She testified falsely

and confusingly on cross examination. And, in any event,

she is wholly contradicted by the “newly available municipal

building permitting documents” in the absence of which

she testified. Her testimony on Redirect examination was

not much better, indeed it got worse because her testimony

became deliberately misleading with prosecutorial

plodding.

Austin on Redirect RT-Vol.Ip157:L13-21.

Q: Ma’am, that address was 4370 Tchulahoma Road, wasn’t

it?

A: Uh-huh.

Summary Analysis:

That is false. 4370 Tchulahoma is not an address

at issue, and possessed no relevance to the case. Yet, the

address is further reinforced into the minds of the jury that

it is the relevant address at issue.

Austin on Redirect cont'd, RT. Vol.Ip157:L19-20

Q: That’s what we're talking about, 4370 Tchulahoma

Road.

Summary Analysis:

The false information charge against Cornish

pertains to the accuracy of this testimony. The address at

issue, is 4730 Tchulahoma and NOT 4370 as the jury was

informed by her testimony and the prosecution’s testimonial

phraseology. The “newly available building permitting

documents” at Appx. C, App 12, fig. 1.4, 1.5, contradicts

the entire testimony on redirect. The Court and the jury

were left totally confused, so much so, it called for a sidebar

conference. The colloquy is telling:

COLLOQUY, RT. Vol. 1p157L23-p158:L17

THE COURT: Can you all come up here just a minute?

THE COURT. .........

Mr. DiSCENZA: That address is.... we’re going to prove

absolutely where 4370 Tchulahoma Road was.

THE COURT: So I don’t need to worry about the fact that

the jury is at this point is undoubtedly confused?

Mr. DiSCENZA: No.

THE COURT: All right. I just wanted to make sure.

Mr. DiSCENZA: Not at all

THE COURT: I just wanted to make sure there was going

to be something else on this subject....] didn’t want the jury

left wondering whether somebody went out and looked at

some site.

Mr. DiSCENZA: We're going to prove that.

Summary Analysis:

The record shows his promise to be hollow and

unkept. Someone went out there. App 13. As the “newly

available municipal permitting documentary evidence”

shows, the prosecution, with the false, confused and

misleading testimony of its only expert authority witness,

Austin, could not prove where the 4370 Tchulahoma address

was, because, not only was that address not relevant to the

case against Cornish, in reality, it does not exist.

The foregoing constitute the testimony of Doris

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Austin, the prosecution’s ace witness — indeed, the

only witness relied on to carry its burden that Cornish

misrepresented his construction, and the existence of the

building at issue at a time and place as represented on the

form to the factor; and the existence of the 4730 Tchulahoma

Road, Alcor construction project.

Austin testified in the absence of her very own Code

Enforcement documents. They were not available at trial,

but were located thereafter and are now before the Court

as “newly available”. |

But for the absence of these now ‘newly available

building permitting documents” the outcome at trial would

have been quite different, especially as to Counts 1, (2-8)

and 10. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct.

3375, 87 L.Ed.2d 481 (1985). The probability of a different

result is sufficient to undermine confidence in the outcome

of the proceeding. Strickland v. Washington, 466 U.S. 668,

694, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984). It must not be

overlooked that due process is fully involved here.

Finally, the prosecution did not present an overall

strong case. After all, it relied upon only Austin of Code

Enforcement to carry its burden.

The record reveals that Cornish presented three

eyewitnesses to the Construction: (1) Leavette Robinson,

a commercial plumber, who testified that he lived across

the Street (Tchulahoma Road) from the construction site,

and saw Cornish’s construction of the building, day to day,

from start to finish, and that he himself visited it up close

at completion.RT.Vol.IIp269:L6-22. (2) Antonio Robinson,

operator of his own construction material hauling business,

who testified that he remembered hauling materials (sand)

to the site of the construction, and recall witnessing the

construction and existence of the building at issue. RT. Vol.

1p273:L19-p274:L16. He testified that “it was built real

nice”. Rt. Vol.Ip275:L16-18. And (3) Mrs. Aldith S. Cornish,

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deceased spouse of Cornish, who testified that she saw “he

[Cornish] place a brand new buildin; onthe empty lot beside

the church”. Rt. Vol.Ip282:L7-9. And (4) Cornish himself

who testified at Rt. Vol.Ip301:L6-8, that in late 1994 and

1995 he constructed the building at issue. But, he did not

have his documentary records, they couldn’t be found. As

a result, Doris Austin, Deputy Administrator, carried the

day. Her testimony overwhelmed the testimony of all four

of his witnesses. The “newly available municipal building

permitting documents” reveal that she testified falsely in

there absence. More likely than not, these documents would

have resulted in a different outcome at trial. They are proof

of what they state. United States v. McCoy, 193 US 543, 24

S.Ct. 528, 48 L.Ed.805.

The silence of Rule 33 as to “newly available

evidence” being the basis for new trial; the confusion

within and among the Circuits as to same; and the lack of,

to this point, guidance from this Court as to ‘a standard’ to

accommodate the circumstances here presented; should not

now be allowed to cause a conviction to rest on the instant

cases’s pervasive, testimonial evidentiary falsities brought

forth by the “newly available municipal building permitting

documents” above highlighted and described. Review this

case and set the guidance as requested by Cornish in his

petition.

Respectfully submitted,

O’Rane M. Cornish, Sr.,

Represents Himself.