Petition for Writ of Certiorari — Mattis v. New Jersey

Supreme Court, U.S

riled

OFFICE OF THE CLERK

In The

Supreme Court of the United States

On Petition for a Writ of Certiorari

lo the United States Court of Appeals

For the Third Circuit

PETITION FOR WRIT OF CERTIORARI

301 W. Dehiah Rd

Pleasantville, Nd

O8$232

609 204 7792

Petitioner/Pro-s¢

QUESTION PRESENTED

Under a timely filed 60(b) motion where there has

been a showing of innocence; along with well.

demonstrated liberty and vested property cortinuing

collateral) consequences” satisfying this Court's “in

custody” clearly established case law; and claims of

prosecutorial misconduct. under Brady, concurrent

with Caperton judicial bias and Strickland arguments;

1. should the Third Circuit have granted a

Certificate of Appealability, as Stephen

more than surpassed the COA grant

threshold, under Miller-E1] and “clearly

established” federal law, under 2253(c)(2);

2. should the Third Circuit have reversed

motion denial, as innocence Is an

“extraordinary circumstance” warranting

60(b) rehef and under Habeas equitable

principles and under § 22.43 “ law and justice

disposition” so that petitioner would be able to

amend and to clarify petition, if required,

with original pro se clarity absence considered

excusable for complex Habeas filings;

and do petitioner's continuing collateral

w=

consequences satisfy Habeas “in custody”

requirements under this Court’s precedents,

as to liberty and to property interests under

U.S. Const. Article III case and controversy:

4. and finally and in the context of the innocent.

are there always continuing collateral

consequences to a conviction or to a plea

satisfying “in custody” for 2254

jurisdiction?

LABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

STATUTORY PROVISIONS

STATEMENT OF THE CASI

REASONS FOR GRANTING THE WRHEI

COMPOUND OPPORTUNITIES PRESENTED

BY PETITION RESPECTING: COLLATERAL

CONSEQUENCES, KIV PLEAS, INNOCENCE

AND THOSE CONSIDERATIONS UNDER

RULE 60(B); AND PRIVATE AND STATE

COOPERATION DURING TRUMPED

CRIMINAL PROCEEDINGS WARRANT

THIS COURT'S WRIT EXERCISE DECLARING

HABEAS RELIEF POLICIES WHERE ALL ARE

VITAL TO AND RECURRENT TO ISSUES

BEFORE COURTS, COUNSEL AND

MEMEO, 5 ccc ccccsecccccsssecseccnseceess

| 8 OS |)

A. PETITIONER IS INNOCENT OF PERJURY

AND RELIEF IS WARRANTED UNDER

RULE 60(B) FOR HABEAS WRIT, UNDER

CLEARLY ESTABLISHED SUPREME

COURT PRECEDENT AND AS CITED TO

Se ewe BORG COIL BEES... . 20 0cccc ces ccecccsccvacsesss

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ante

Oe LF Sales CE ME GT OPO sks cbs cases nneeesesecccsessagieens

B. CONTINUING COLLATERAL

Io

3.

CONSEQUENCES SATISFY JURISDICT-

IONAL IN CUSTODY” REQUIREMENTS,

AS DECLARED BY THIS COURT AND

AS GUARANTEED AND PROTECTED

CONSTITUTIONAL LIBERTY AND

PROPERTY INTERESTS WARRANTING

CERTIORARI FOR FURTHER DEFENITION;

AND ALSO IN THE CONTEXT OF

THE INNOCENT PETITIONER. ..................

~. REPUTATIONAL LIBERFTY INTERESTS.....

ECONOMIC PROPERTY INTERESTS............

COLLATERAL CONSEQUENCES ATTACH

TO WRONGFUL CONVICTIONS/PLEAS

CONFERRING HABEAS JURISDICTION.........22

. INEFFECTIVENESS OF COUNSEL DURING

INDICTMENT AND PLEA STAGES

DENIED PETITIONER SIXTH

AMENDMENT PROTECTION CONTRARY

TO STRICKLAND AND THE STRICTER

KNOWLES STANDARDS OF THIS

6.3) y Sarre

D. THE STATE DENIED PETITIONER

FOURTEENTH AMENDMENT DUE

PROCESS THROUGH JUDICIALLY

BIASED FORUM AND THROUGH

DISMISSAL OF CIVIL SUIT BY A

CRIMINAL DIVISION JUDGE WHERE

THERE WAS CONFLICT OF INTEREST

ALONG WITH SIXTH AMENDMENT

GUARANTEES OF AN IMPARTIAL

FORUM AND AS ACTING IN CONCERT

WITH PROSECUTORIAL MISCONDUCT....... 27

CONCLUSION... rrr Tre panes ieaeneaanes ene 3]

TABLE OF AUTHORITIES

CASES,

Ackermann v. United States,

BE Me Te.) | A a oe ee ee

Baldayaque v. United States,

meee ee BT (A i kc oo oc veces vcscvevenoccvnsoevdsvadeues

Banks v. Dretke.,

Peay te. Se Wee OE, x, oc vs ve bevkeu ecu unccvessnvvekars

Benton v. Maryland,

Ee EP, Pe FM To ois civcin cae occ ncaccdenvavszinwieeie

Bounds v. Smith.

ee OE, eee CRETE Ff inky cu Sacses soe ccs cvaseauaeenseatnne,

Bousley v.United States,

523 U.S. 614,615 (1998)..........ccccececccecccuceeseeceeeee,

Bracy v. Gramley,

Se Aa eee RP CF Finis cen caeedasieds cid ddeyespieerasteereenee

Brady v. Maryland,

er ee Oe ie sao akc ken nv dcaxnseneres Oe ee

Calderon v. Thompson,

B23 U.S. GGG, SEO (21GB) ecco ciccsccdcccccencoscvcescesemnes

Caperton et. al. v. A.T. Massey Coal Co. Inc.,

556 U.S. ; ESP BAS, Sere Co kk onto Giese

Cone v. Bell,

ree eG, BG RF, CI invkvcoksacasones cee

24

14

14

Cornblatt v. Barrow,

1538 N.J. 218, 233 (1998) 26

Crawford v. Washington

541 U.S. 36 (2004)... cece 26

Donnelly v. DeChristoforo

116 U.S. 637, 643 (1974) lo

Hstelle V. Williams.

425 U.S. 501. 503 (1976) 1G

Gertz v. Robert Welch, Inc

118 U.S. 328. 841 (1974). 20

Glover v. United States.

531 U.S. 198, 202-03 (2001) 24

Gonzalez v. Crosby,

545 U.S. 524, 532 (2005). 18

Harris v. Nelson.

394 U.S. 286 (1969).. ]

Henderson v. Morgan,

426 U.S. 637 (1976).. 24

Herrera v. Collins

507 U.S. 390 (1993).. 13

Hill v. Lockhart.

ye BUR.) £ek.) 26

House v. Bell.

547 U.S. 518. 554 (2006)....... | 13, 14

In re Winship

397 U.S. 358 (1970)

Kimmelman v. Morrison

177 U.S. 365 (1986)

Klapprott v. United Stat

335 U.S. 601, 615 (1949)

Knowles v. Mirzayanc

129 S.Ct. 1411 (2009) ¢

a ™T.

Kugler v. Helfant

421 U.S. 117, 124 (1975 L¢

Kuhlmann v. Wilson,

A477 U.S. 486, 455 (1986)

Lawrence v. Texas,

539 US. 558. 575-576 (2008)

Lisenba v. California.

313 U.S. 219, 236 (194]) !

Lonchar v. Thomas.

517 U.S. 314, 324 (1996)

McMann v. Richardson

397. U.S. 759. 778 (1970)

Meese v. Keene,

481 U.S. 465 (1987) 1)

Velendez-Diaz v. Massachusett

129 S. Ct. 2527 (2009) 'G

Milkovich v. Lorain Journal!

197 U.S. 1, 21-22(1990) »]

Miller-El v. Cockrel!

|

37 U.S. 3822. 341 (2008) g

Mitchell v. Ree

180 F Supp2d% IZV (MT). Tenn. 2006 18

Nappe v. Iilino

160 US. 264. 270 (1959 5()

New York Times Co. v. Sully

76 U.S. 254 (1964 D.

Phelps v. Almeida

69 F3d 1120 1137 (9™ Cir 2009

Pioneer Investment Sv

Co. v. Brunswick Assoc. LP

07 US. 3880 (199 1G

rAW Ver V\ W hitle

05 U.S. 333 (1992

Sibron v. New

390 U.S. 40 (1

Slack \ Mich:

Smaldons

y Ad Revd 14.3

Spencer v. Ke

D923 [ > ls (

St. Pierre v. |

319 U.S. 41 (1!

\

Strickland

166 [ S HHs

Tennard v. Dr

[28 ©.Ct. 256

‘Tollett v. Hen

111 U.S. 258

‘Townsend

LJnited State

IRS | > my ¢

LInited State

536 US. 622

York

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Pt, | )

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Poa i

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|>

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Wieman vy. | pdegrall

144 U.S. 188. 191 (1952)

Wiggins v. Smith

539 U.S. 156 (2008)

Williams v. ‘Tavloy

POQUdS 4909 (POU

Woodtord v. Garceau

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Article L\

Privilege ind Imn

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LAW REVIEWS, BOOKS

The Future of Reputation: gossip, ru

and privacy on the Internet

(Yale | Pr.-2007) Daniel Sol

The Stigma of Conviction: Coram Nob)

Civil Disabuilitie: ; and the hight to Cle

ones Name, 2009 Brigham Young U.L

1277, 1316, David Wolitz

What Do Alternative Sanctions Me

63 U. Chi. L.R. 591. 636 (1996)

Daniel M. Kahan

APPENDIX

DCNJ DISMI

DCNJ REC IDERATION DENI

Pili CTR PE ITRMAN

SUPREME COU! LING ()

tephen (;. Mat

petibioner pr

petition lor a Writ of ©

yudyument of the

the Third Circunt

( re pectfully

ertiorar: to review the

lJnited tite (Court )| \ppeal

hoy

OPINIONS AND JUDGMENTS BELOW

The 1D)

Habea petition

uance of Certificate

ZOUOUE App |) Motion

MRCP. GOCb) wa

received hy

trict Court Ol New Jersey dis cal

prepudics and denied

fAppcalability on danuary 14

lo vacate di under

aie rile doon July

petilione)

without

eae i]

‘Y YOOU and wa

on August 31, ZOO9 due to

meorrect mailing addre by the court (App.7)

Dystrict Court vranted an equitabl Ktension to tik

late Notice of App al and

as being filed on

Oo included Motion for Issuance of

\ppealability to ‘Third Cireuit (App. 13)

The Third Circuit Panel's unpublished affirmed denial

\ppeal ibility

mMovlon

21). 2009 which al

Clertifiente of

Si plembe ’

of a Certificate of

ir RCP. GOCb)

Justice

and rehefl denial of

on January 28%, 2010 (App.14)

Samuel \ \lito vranted an equitable

Ktension to file Certiorart Petition on March

I? YOO

up unto the date of June 28. ZOTLO | \pp lf )

STATEMENT OF JUSRISDICTION

The ‘Third Circuit entered judgment denying

Habeas Corpu rehef on danuary 28%, ZOO. The

purisdiction of this Court is invoked under 2% USO

1254(1). Jurisdiction of the District Court of New

Jersey was based upon 28% ULS.C. §& 2254. Jurisdiction

f the Third Circuit Court of Appeals was based upon

28 US.©. § 2258

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Those cited provisions, within, are reproduced in

the Appendix following and appended to this petition.

(App. 17)

STATEMENT OF THE CASE

INTRODUCTION

Petitioner, Stephen Mattis, became _ paralytic

resulting from a December 1992 stair fall at a casino

garage in Atlantic City, New Jersey. The event is

central to this state and federal criminal matter. Two

weeks prior to his fall, Stephen had seen an area

chiropractor for a limp; subsequently diagnosed at

Thomas Jefferson Hospital where he had_ been

hehcoptered from the ACMC ER for immediate

continuing emergency spinal treatment, for lfe-

threatening Deep Vein thrombosis in his left leg and

causing his limp. Parenthetically, the chiropractor

had been treating the DVT with “spinal adjustments.”

During the same period, Stephen had also slipped at

the gym and pulled a hip flexor muscle, but neither

his gait nor his ambulation was impacted in any

manner. Reverting to his ACMC ER immediate post

fall admission, the treating neurosurgeon’s medical

records state; “We note increasing spinal cord edema.”

The significance of this entry would go to the recent

nature (few hours) of the spinal trauma.

Stephen's criminal charges were based upon his

answers at the civil depositions and as being perjured,

under New Jersey statues, as later advised by his

criminal defense attorney. This advice was grossly

and prejudicially wrong. Stephen obtained civil

representation and filed suit against Caesars

i)

Boardwalk Regency Casino for their neghgent garage

operation. Common to the majority of civil actions,

discovery evolved, interrogatories were exchanged,

and depositions were taken. In fact two depositions

were taken of petitioner.

While Stephen’s civil suit was proceeding and prior

to trial, the woman caretaker, who had robbed him

while he was being treated in Miami for additional

spinal therapy, vindictively went to the county

prosecutor and manufactured a story; wherein, she

related that petitioner staged his casino fall to cover

for previous injuries sustained at a gym and that the

proof of those injuries were within his chiropractor

visits for a limp. Essentially, the staged fall and

subsequent suit was to gain monetary sums as

coverage for his substantial medical bills related to

his spinal injuries. The State ignored the fact that

Stephen had previously filed criminal charges for her

$12,000.00 theft of his bank account and proceeded on

a criminal case theory against petitioner and even

though they obtained chiropractor medical and billing

records showing complete medical insurance coverage

through his union membership for all injuries. With

the State’s cooperation during criminal proceedings,

the chiropractor taped a conversation with petitioner,

unknowingly, where the chiropractor admitted on-the-

record that he destroyed Stephen’s medical and billing

records. These records were exculpatory for Stephen,

but eventually obtained by him from his civil

attorney.

Preposterously, among information or testimony

submitted to the indicting Grand Jury was that of

prosecutor's investigator sergeant who opined expert

medical testimony after comparing pre and_ post

spinal cord x-rays of petitioner's spinal cord to confirm

injury and time of injury and to bolster State’s Case

Theory. The sergeant was not a medicai doctor and

his opinion was contrary to petitioner's treating

neurosurgeons and medical records. Eventually, the

State brought a five Count indictment against

Stephen charging theft by Deception and Perjury for

staging a fall at a casino and for lying under oath at

civil depositions. There were no depositional

misrepresentations. Caesars Casino was represented

by Cooper Levenson and their lead attorney was

former First Assistant County Prosecutor, Lloyd

Levenson who was also former partner with Robert

Neustadter in the same firm. Judge Neustadter was

assigned to handle Stephen’s criminal case. Judge

Neustadter’s Brother Milton also worked as a Key

Executive at Caesars Casino during these early

actions time frames and the Neustadter family

related to Robert had sold their partnership in

Howard Johnson to Caesars Casino. The family also

retained ownership in land directly adjacent to the

casino and leased it to the Casino which built a

garage where the fall occurred and did sell their

interest a year prior to the fall. Judge Neustadter did

handle Stephen’s Post-Conviction Relief applications

later and did refuse to recuse himself indicating that

he could be fair during the PCR appheations. While he

did indicate that his Brother Milton no longer worked

at Caesars, he did not mention that his relatives

previously, and until recently, owned an interest in

the garage where the fall took place.

Eventually, the indictment culminated in a plea

agreement where Stephen pled guilty to committing

perjury during civil depositions, and only upon advice

of his counsel. Judge Neustadter handled the plea

session in open court. When he signed the plea

agreement, it went to Chambers and when it came

back from chambers; it had the notation penciled in:

“Civil suit against Caesars Casino dismissed.” When

Stephen questioned his criminal defense attorney

about this aspect of the plea which was not mentioned

in open court and was not on-the-reeord and prior to

the plea agreement being submitted to the Judge's

Chambers and after Stephen’s signature was affixed,

the reply was: “That's how it’s done.” This is contrary

to N.J. Court Rule 3:9-2

Petitioner exhausted his State-level applications

for Post-Conviction Relief and then sought relief in

the federal forum through Habeas Corpus relief.

Petitioner argued and demonstrated innocence of

perjury charges and ineffective assistance cf counse!]

for advising client to plead guilty to a crime not

committed, among other negligence causing prejudice

to petitioner.

FEDERAL HABEAS PROCEEDINGS

After running and exhausting the shoal waters of

the state courts from 2002 to 2007, Stephen sought

Habeas rehef in the Fall of 2008 and was

subsequently denied without prejudice on January 14

of 2009, because petitioner was no longer “in custody.”

(App 3 ) Subsequently, petitioner filed an untimely

Motion for Reconsideration in February 2 of 2009 and

later requested that DCNJ hold up a decision on that

motion while he was preparing a Rule 6O(b) motion

Stephen filed timely Rule GO(b) motion essentially

arguing: innocence resulting in miscarriage of justice,

collateral consequences upon petitioner impact liberty

and property interests. sufficient to overcome

mootness, ineffectiveness of counsel at indictment and

plea stages, petitioner’s failure to fully develop and to

satisfy “in custody” aspect of his habeas petitions is

excusable, and dismissal of petitioner’s civil suit by a

criminal division judge contravenes Sixth Amendment

hmpartiality guarantees and Fourteenth Amendment

Due process guarantees. Six supporting, elucidating

exhibits accompanied the motion.

In the DCNJ’s dismissal order of January 2009, the

court felt as though petitioner should resort to a Writ

of Error of Coram Nobis in the state court system

rather than Habeas relief. (App) In this rule 60(b)

motion, Stephen reminded the District Court that the

Writ had been abolished in New Jersey since 1948.

The gravamen of DCNJ’s motion dismissal was

based on a finding of no “in custody” and that there

were no “extraordinary circumstances’ warranting

rehef for petitioner. (App 2 ) Thereafter, Stephen filed

a timely Notice of Appeal for the Rule 60(b) dismissal

and concurrently moved the Third Circuit for issuance

of a Certificate of Appealability.

The innocence and its weight and priority were

never addressed or were ignored. The Third Circuit

denied a Certificate of Appealability, because there

was “no substantial showing of the denial of a

constitutional right” and it also adopted

“substantially” the same reasons given by the District

Court that. “reasonable jurists” would not debate the

District Court's rule 60(b) motion denial. The Order

relating to the Habeas Petition was untimely and

consideration was only to relief, under the procedural

motion.

~

REASONS FOR GRANTING THE WRIT

COMPOUND OPPORTUNITIES

PRESENTED BY PETITION RESPECTING:

COLLATERAL CONSEQUENCES, KIV PLEAS,

INNOCENCE AND THOSE CONSIDERATIONS

UNDER RULE 60(B); AND PRIVATE AND

STATE COOPERATION DURING

TRUMPED CRIMINAL PROCEEDINGS

WARRANT THIS COURTS WRIT EXERCISE

DECLARING HABEAS) RELIEF POLICIES

WHERE ALL ARE VITAL TO AND RECURRENT

TO ISSUES BEFORE COURTS, COUNSEL AND

PETITIONERS.

Whether a first or a successive petitioning, where

“a petitioner supplements his constitutional claim

with a colorable showing of factual innocence; the

“ends of justice” require that a federal court entertain

such a petition.” Kuhlmann v. Wilson, 477 U.S. 436,

455 (1986). Section 2243 appears to be in accord with

Kuhlmann. Although petitioner's filing is_ post-

AEDPA, (Anti-terrorism Effective Death Penalty Act of

1996) equitable Habeas principles still apply and the

AEDPA did not repeal the fundamental purpose of the

Writ. As this Court has stated: “Our cases make clear

that AEDPA in general and § 2254(d) in particular

focus in large measure on revising the standard used

for evaluating the merits of a habeas application.”

Woodford v. Garceau, 538 U.S. 202, 207 ((20038).

Where there are deprivations of constitutional rights,

petitioners are entitled to a Habeas hearing;

furthermore, the District Court is not bound by a

State Court’s fact-finding. See: Townsend v. Sain, 372

U.S. 293 (1963). This Court later Fleld: “Federal

courts upon an appropriate showing must grant

evidentiary hearings to petitioners for writs of habeas

corpus and the power of inquiry on federal habeas

corpus is plenary.” Harris v. Nelson, 394 U.S. 286

(1969). Additionally within Harris at 293 the Court

stated: “A Habeas Corpus proceeding must not be

allowed to flounder in a ‘procedural morass’.”

With pre-AEDPA foundational principles firmly

established, this Court must continue to exercise

commanding vigilance over constitutional mandates

and particularly in the areas of personal lberty,

personal freedom through Habeas relief. The passage

of time serves to magnify, rather than diminish, the

recurring importance of the questions presented.

Those similarly situated, now and in the future, shall

only benefit from this Court’s guiding policies and

affirming constitutional guarantees. Additionally and

respecting AEDPA, this Court must assume that

Congress did not mean to create any unfairness or

inequity for petitioners, especially the innocent. A

history of AEDPA shows that it was in response to the

Oklahoma City and first World Trade Center

bombings and not enacted as a deprivation of any

constitutional guarantee(s) protection avenue or

vehicle.

There should be no dispute that a_ capital

deprivation demands the greatest attention and

resource application of courts when facing the

ultimate; similarly, a non-capital liberty deprivation

may involve a lost lifetime incarcerated or ruined by

the effects of a period behind bars or imposed

stigmatization. Science, technology, and = mass

communications have created a contemporary

revolution with troubling frequency of more and more

innocence claims coming to light for relief; and more

and more past innocence claims surfacing where

innocent have been sent to prison for a lifetime, or to

suffer a worse horror. We commonly understand, as a

Nation, that 95% or more of our criminal charges

result in a plea, including capital cases to avoid the

Death Penalty.

This Court should grant certiorari to review the

decision below, because “the dismissal of the first

federal habeas petition is a_ particularly serious

matter, for that dismissal denies the petitioner the

protections of the Great Writ entirely, risking injury

to an important interest in human liberty.” Lonchar

v.Thomas, 517 U.S. 314, 324 (1996). This matter

presents a compelling case for this Court to review the

denial of an _ application for a Certificate of

Appealability to correct erroneous resolution of legal

questions by the courts below that shall also have

future impact on numerous other petitions addressing

broad Habeas legal issues and just as it did in

Tennard v. Dretke, 124 S.Ct. 2562, 2573 (2004) and

Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)

Stephen’s briefing record below reflects more than

a “substantial showing of the denial of several

constitutional rights” (due process denial by a biased

forum, prosecutorial misconduct, grossly ineffective

assistance of counsel at the indictment and plea

stages). Competent counsel would have had the

indictment dismissed and there would not have been

a plea stage or there would have been a trial where

the State’s proof(s) and witnesses, or lack of, would

have been flatly impeached owing to absolute

innocence. Under Miller-E]l at 336, the threshold

inquiry does not require full consideration the factual

or legal bases adduced in support of the claims. In

fact, the statute forbids it. “Under controlling

standards, a petitioner must show that reasonable

jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a

different manner or that the issues presented were

adequate to deserve encouragement to _ proceed

further.” (quoting Slack at 484, and as also cited by

LO

the Third Circuit in their dismissal Order) (App. 14 )

“When the District Court denies a habeas petition on

procedural grounds without reaching the prisoner's

underlying constitutional claim(s), a COA _ should

issue when the prisoner shows, at least, that jurists of

reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional!

right and that jurists of reason would find it debatable

whether the district court was correct in _ its

procedural ruling.” -Slack at 484. It follows that

“Jurists of Reason” would have, or should have been

expect to, follow binding precedent of this Court and

would have granted a COA

It would further seem that there may be confusion,

as to the meaning, or definition, or application of the

terms: “substantial showing,” “jurists of reason,”

“valid claim,” and “debatable” and this Court should

further address these critical qualifying Habeas

terms; because it appears that hip service is now being

paid to the same. It may very well be that a

dismissing mindset prevails upon arrival of Habeas

petitions at Chambers and owing to the low status or

low esteem of filing parties. By analogy and as

additional impetus to grant this Writ of Certiorari,

Habeas petitions are rarely granted; and similarly,

Certiorari Petitions are rarely granted. The weight

and impact may very well not be equal; however,

there may be considerable merit to Habeas filings

where they should not be taken in and reviewed with

a prejudicial mindset. Concurrent with other cited

reasons; a grant, herein, would confer broad benefit to

numerous other COA applicants and for Courts

weighing the preceding terms’ applications.

1. INNOCENCE

A. PETITIONER IS INNOCENT OF PERJURY AND

RELIEF IS WARRANTED UNDER RULE 60(B)

FOR HABEAS WRIT, FOR HABEAS WRIT,

UNDER CLEARLY ESTABLISHED SUPREME

COURT PRECEDENT AND AS CITED TO

THE LOWER COURTS.

This non-capital innocence petition involves the

application of New Jersey’s Perjury statute (N.J.S.A.

2C:28-1). There are no lengthy and complex trial and

discovery records for this Court to sift through for

resolution and the involved principles’ present

teaching opportunities and additional seasonable

definition opportunities for this Court.

As argued to the District Court and the reviewing

Third Circuit, perjury charges were predicated upon

Stephen’s two visits to a chiropractor two weeks prior

to his casino fall and subsequent paralysis and his

depositional answers related to those visits. Under

New Jersey’s perjury Statute, the test for culpability

is that if statements given were “Material” to a

proceeding in that “they could have affected the

proceedings outcome.” [2C:28-1(b)] Petitioner was

asked questions pertaining to his past chiropractor

visits, as having had any. He answered those that he

could recall having had seen in the past ten years, but

not all of them. Whether he named all of them or

omitted any is irrelevant, there was never any expert

medical testimony to relate those chiropractor visits

to his later spinal injury and paralysis. The

chiropractor visits were not “material” to the outcome

of his civil suit, nor could they have ever been. Under

New Jersey law, a chiropractor may not give a

medical opinion. It’s that simple and clean and the

State may not “bootstrap” a medical Opinion out of a

chiropractor’s comments; especially against “treating

neurosurgeons. The State never produced an expert

witness, other than a chiropractor’s opinion treating

Deep Vein Thrombosis, to testify or to opine the

nature and cause of Stephen pinal cord paraly:

“ssentially, the State engaged in another

fourteenth Amendment Due Process violation by

permitting a chiropractor to practice medicine without

a license which 1s criminal (N.J.S.A.45:1-21.1 et.seq.)

Parenthetically, the State did produce i sargeant

Investigator to render a medical opinion on spinal

cord injury and the causal relationship to paralysi

Additionally, the civil defendants never produced an

expert witness to medically corroborate any of the

chiropractors comments, opinion: Although non

capital and while weighing grant considerations, thi

Court should pay particular heed to the degree and to

the long-term, ongoing state level involvements of th

executive and of the judicial branches in an effort to

protect a well-connected casino with their judicial

penumbra.

As a reminder and as was presented to both th

State and the lederal courts through admissiblk

medical records, including treating neurosurgeon

opinions; increasing cord edema 1s associated with

very recent (hours) trauma which was found at ACMC

ER immediately upon petitioner's post-casino fall

admission. There was no countering expert medical

testimony by ecither the State or the civil ult

defendants to impeach the treating neurosurgeon

diagnosis and initial emergency attempts to suppre

and to control the advancing spinal cord edema. The

emergency helicopter transfer to Thomas Jefferson

spinal Unit in Philadelphia from the ER speaks for

itself through an emergency transport to a regional

pinal trauma certer at TJUH in Philadelphia from

Atlantic City

,0th ttatutory and this Court Cust law

authoritatively qualified petitioner's application with

both being ignored. 2254(c)(2)(01)(B) provides a “clear

and convincing’ standard. The articulated standard 1:

in accord with the holding of: Sawyer v. Whitley, 505

U.S. 833 (1992) Petitioner argued the Schlup

“gateway innocence claim which carried a lesse1

burden than the stricter Herrera threshold. Schlup \

Delo, 513 U.S. 298, 325 (1995) and Herrera v. Collin

507 U.S. 390 (1993) Schlup involved a claim of actual

innocence accompanied with an assertion of manifest

constitutional error: and Herrera’s claim of innocence

had a higher tandard imposed for substantive

innocence claims, but Herrera did state at 404 we

have held that a petitioner otherwise subject to

defenses of abusive or successive use of the writ may

have his federal constitutional claim considered on

the merits 1f he makes a proper showing of actual

Innocence

This rule, or fundamental miscarriage of justice

exception, is grounded in the equitable discretion of

habeas courts to see that federal constitutional erro

do not result in the incarceration of innocent person:

Schlup, 513 U.S. at 319 (court has adhered to the

principle that Habeas Corpus 1s, at its core, an

equitable remedy.”) The dismissing DCNJd and the

adopting Third Circuit professed that petitioner's rule

60(b) Motion was a successive writ among other

reasons for motion denial. A review of death penalty

cases provides” valuable insight Supreme Court

decisions in death penalty cases instruct that

petitioners attempting to show actual innocence of a

sentencing factor are held to a higher standard than

those attempting to how actual innocence of the

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16

who pleads guilty upon the advice of counsel may

attack the validity of the plea only by showing that

counsel's advice was not within the standards set. for

the in McMann”).

States and prosecutors have a clear interest in

selling pleas, and concealing any misconduct, and

maintaining finality. If it’s a Due Process violation in

a trial context, there is the presumption that the same

holds true in a plea context and as further impetus to

erant this writ. “The right to a fair trial is a

fundamental lberty secured by the Fourteenth

Amendment.” Estelle V. Williams, 425 U.S. 501, 503

(1976) There is the presumption that the State is

obligated to play by the rules and whether it’s during

a trial or a plea hearing. Fairness demands nothing

less. Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974) and Lisenba vy. California, 314 U.S. 219, 236

(1941). Defendants should not have to rely solely upon

the competence of defense attorneys to ensure fair

play at trial or during plea negotiations. This Court

should grant the Habeas Writ and address just what

fair play obligations are imposed upon the State

during plea negotiations; notwithstanding, petitioners

still maintains an innocent was wrongfully indicted.

2. RULE 60(B) MOTIONS

Petitioner acted in good faith and neither State

entity filed an opposition or a response to the Habeas

petition. Equitable considerations should have

controlled the disposition and grant of his Rule 60(b)

motion; particularly in Iight of the supported

innocence position. Additionally, there was an

“excusable neglect” argument, under’ Pioneer

Investment Svcs. Co. v. Brunswick Assoc. LP, 507

U.S. 380 (1993) for not fully developing the “in

] 7

custody” aspect of his petition and brief that should

have further authoritatively swayed both federal

courts. As to the lack of “extraordinary circumstances”

cited and relied upon by both federal courts, Stephen

reied upon his supported innocence claim. In a

criminal constitutional setting, there can be no higher

or greater “extraordinary circumstance.”

This Court addressed “extraordinary

circumstances’ in a criminal setting in Kugler v.

Helfant, 421 U.S. 117, 124 (1975) “where the state law

to be apphed in the criminal proceeding 1s flagrantly

and patently violative of express constitutional

prohibitions, or where there exist other extraordinary

circumstances in which the necessary irreparable

injury can be shown even in the absence of the usual

prerequisites of bad faith and harassment.” Helfant

was an application for federal injunctive relief on

state criminal proceedings. An attorney’s malfeasance

was grounds for equitable tolling of the stringent one

year statute of lmitation on AEDPA filing in

Baldayvaque v. United States, 338 F38d 145 (CA2 2003)

Holding “’The district court issued a COA on the

issue whether our holding in Smaldone v. Senkowski,

273 F3d 1383 (CA2 2001), always precludes the

application of equitable tolling m a case where a

habeas) petition is untimely because of the

extraordinary actions of the petitioner’s attorney. We

hold that it does not.”

Furthermore, petitioner’s matter is in accord with

the holding of Ackermann v. United States, 340 U.S.

193 (1950) for “excusable neglect”, because his motion

for 60(b) relief was filed within one year. Petitioner is

also in accord with the principles of Klapprott v.

United States, 335 U.S. 601, 615 (1949) wherein was

stated and similar to a lack of a trial for Stephen

“Petitioner is entitled to a fair trial. Fair hearings are

18

in accord with elemental concepts of justice, and the

language of the “other reason” clause of 6O(b) is broad

enough to authorize the Court to set aside the default

judgment and to grant petitioner a fair hearing. This

Court is able to set aside a negligently entered guilty

plea of an innocent for a fair trial, if the State so

believes it is able to again proceed past an indictment

stage for a second time.

Even if this motion were construed as a successive

Habeas petition, as both federal Courts professed,

there was an innocence exclusion under § 2244(b)(2)

and there was no previous “on the merits” resolution

of the Habeas petition. Gonzalez v. Crosby, 545 U.S.

524, 532 (2005). Herein, “The State has experienced a

windfall, while the state prisoner has been deprived

contrary to congressional intent of his valuable right

to one full round of federal habeas review.” Gonzalez

at 541. Circumstances of Phelps v. Almeida, 569 F3d

1120 1137 (9% Cir 2009) reflect similar, but longer,

suffering at the hands of the State like petitioner and

where the Court of Appeals granted motion relief

citing “extraordinary circumstances” in a Habeas

matter. “We cannot imagine a more sterling example

of diligence than Phelps has exhibited. At every stage

of this case over the past decade, Phelps has pressed

all possible avenues of relief, has been remarkably

undeterred by the repeated and often unjustified

setbacks he has suffered, an has put forward cogent,

compelling, and correct legal argument.......... to have

the merits of his constitutional claims reviewed by a

federal judge.” Another federal court granted

equitable habeas relief, citing Gonzalez, in Mitchell v.

Rees, 430 F. Supp2d717 (M.D. Tenn, 2006) holding

“(2) extraordinary circumstances’ justified the

reopening of a final judgment dismissing habeas

petition since a failure to grant relicf would result in a

miscarriage of justice in that petitioner would be

required to serve a life sentence...... " Although not a

life sentence, petitioner also faces a miscarriage of

justice without Habeas relief.

B. CONTINUING COLLATERAL CONSEQUENCES

SATISFY JURISDICTIONAL “IN CUSTODY”

REQUIREMENTS, AS DECLARED BY THIS

COURT AND AS GUARANTEED AND

PROTECTED CONSTITUTIONAL LIBERTY AND

PROPERTY INTERESTS WARRANTING

CERTIORARI FOR FURTHER DEFENITION;

AND ALSO IN THE CONTEXT OF THE

INNOCENT PETITIONER.

lL. REPUTATIONAL LIBERTY INTERESTS

Although the numbers have dropped secondary to

surrounding State competition in the past few years

and recessional pressures, the advent of gaming has

seen average yearly visitor numbers to Atlantic City

in the neighborhood of 34 million. The Atlantic City

Press, where petitioner's defamatory articles were

published, covers most of South Jersey and Ocean

County and is available Online through the Internet.

It is broadly read by those with a general interest in

Atlantic City and the global Gaming Market. The

dissemination and iipact of this per se repetitious

defamation on Stephen and his family are painfully

obvious and make not mistake as to the flash and

residual impact or Internet defamation over and in

conjunction with print media, material

Stephen is highly visible while utilizing his hand-

propelled cycle during his daily runs down the

Boardwalk. Immediately after the defamatory articles

were published, he was frequently stopped by those

who knew him to discuss the publications and to his

embarrassment. Similarly, his daughter teaches in a

20

local school district and heard several derogatory

comments about her father and to her face. The

publications’ impact was wide and diverse and totally

uncalled for, and as being without substance.

Whether the Press checked sources or _ just

repeated them is irrelevant, at this juncture. What is

relevant is their knowledge of the global Internet

dissemination of their per se defamation and

shaming. Daniel Solove stated it best in his book: The

Future of Reputation: gossip, rumor, and privacy on

the Internet, (Yale U. Pr.-2007)

“One of the chicf drawback of Internet shaming

is the permanence of its effects. Internet

shaming creates an indelible blemish on

a persons’ identity. Being shamed in cyberspace

is akin to being marked for life. It’s similar

to being forced to wear a digital scarlet letter

or being branded or tattooed.” Ch. 4, p 94

“Even putting aside official criminal record searches,

regular searches on Google can reveal conviction

through reports in news stories, blogs, or other

sources.” The Stigma of Conviction: Coram Nobis.

Civil Disabilities, and the Right to Clear ones’ Name,

2009 _ Brigham Young U.L.Rev.1277, 1316, David

Wolitz. As previously cited and with some irony, both

federal courts believed that petitioner should resort. to

state Coram Nobis. The irony is that Coram Nobis

requires a showing of lingering or continuing

“collateral consequences” that neither federal court

could find for petitioner.

Stephen is entitled to a good name and to

maintaining his reputation and standing in the

AYNy

community. Gertz v. Robert Welch, Inc., 418 U.S. 323,

341 (1974). Petitioner's reputation was severely

at

damaged with the aid of the State and through the

Press publications traceable to those sources. Meese v.

Keene, 481 U.S. 465 (1987) (Holding). The sham

criminal proceedings in concert with private parties

were “state action” within the meaning of the

Fourteenth Amendment. Lisenba v. California, 313

U.S. 219, 236 (1941). Stephen surpassed the “stigma

plus test” of Paul v. Davis, 424 U.S. 693, 712 (1976)

and both federal courts were obligated to provide

Habeas relief and to follow this Court’s lead, but it

also may very well be that the Internet did not exist

when Paul was decided and the test may no longer be

valid and should be discarded. Additionally, there

were no “implications” in Stephen’s defamatory

article. They were direct and malicious and unhke

those found in Milkovich v. Lorain Journal, 497 U.S.

1, 21-22(1990). This Court should weigh the broad,

endless shaming power of Internet defamation on

innocent Habeas petitioners by their wrongful

convictions or pleas for guidance to lower courts,

whether state or federal. Daniel M. Kahan in his

What Do Alternative Sanctions Mean? 63 U. Chi.

L.R. 591, 636 (1996)

“Shaming penalties might even more accurately be described

as degradation penalties. All of them satisfy what Harold

conditions of successful status degradation ceremonies. They

Garfinkel identifies as the are imposed by an agent

invested with moral authority of the community; they

denounce the wrongdoer and his conduct as contrary to

shared moral norms; and they shared moral norms; and

they ritualistically separate the wrongdoer from those who

subscribe to such norms.”

It's should have been clear to both federal courts that

Stephen had been shamed and stigmatized

cited, binding precedent and this Court should

under

bd

exercise its supervisory and guiding jurisdiction.

2. ECONOMIC PROPERTY INTERESTS

The right to recover for personal injuries is

guaranteed under N.J. Constitution, Article I, New

Jersey Statutes, and Common Law. The dismissal of

Stephen’s civil personal injury suit for his paralysis

and by a criminal division judge is “state action’,

under the Fourteenth Amendment. New York Times

Co. v. Sullivan, 376 U.S. 254 (1964) on point (Holding)

A civil suit for paralytic injuries involves substantial

issues for both parties and there should be due

process guaranteed out of fairness to all involved

parties. The State cooperated in defamation and

attached a “badge of infamy” to Stephen. Due process

was due. Wieman v. Updegraff, 344 U.S. 183, 191

(1952) as to Due Process, speaks loud and clear.

Parenthetically and as previously stated, the civil

defendants never came forth with countering expert

witness denying spinal paralysis or causal

relationship, until criminal charges were brought and

even then, no entity produced supporting expert

witnesses for those charges. Both federal courts were

alerted to petitioner's due processes denial and both

federal courts turned their backs on petitioner and

contrary to binding precedent and, again, this Court

should exercise its guiding supervisory jurisdiction

and clarify this issue.

3. COLLATERAL CONSEQUENCES ATTACH TO

WRONGFUL CONVICTIONS/PLEAS

CONFERRING HABEAS JURISDICTION

Through a line of decisions, this Court has

recognized the existence of adverse collateral

consequences stemming or flowing out of criminal

convictions or pleas and required for Habeas and also

for Coram Nobis relief. There is the firm or

ad

pronounced presumption that that the innocent suffer

those consequences to a deeper degree warranting

priority consideration by and from this Court

St. Pierre v. United States, 319 U.S. 41 (1948)

found that “the moral stigma of a judgment no longer

affecting legal rights does not present a case or

controversy.” There is the converse presumption that

affected legal right present a case or a controversy.

Although in a Double Jeopardy context, in Benton vy.

Maryland, 395 U. S. 784, 790 (1969) and citing:

Sibron v. New York, 390 U.S. 40 (1968), “we held that

a criminal case did not become moot upon the

expiration of the sentence imposed. We noted "the

obvious fact of life that most criminal convictions do,

in fact, entail adverse collateral legal consequences."

We concluded that the mere possibility of such

collateral consequences was enough to give the case

the "impact of actuality" which was necessary to make

it a justiciable case or controversy.

Sibron and a number of other recent cases have canvassed

the adverse collateral effects of criminal convictions. In

Spencer v. Kemna, 523 U.S. 1,8 (1998) this court stated: “We

have been willing to presume that a wrongful criminal

conviction has continuing collateral consequences...” The

Impact on an individual’s dignity and stigma of a criminal

conviction were not found to be trivial and were found to have

collateral consequences when fundamental rights were

involved in: Lawrence v. Texas, 539 U.S. 558, 575-576

(2003). In a similar manner, Stephen ts asserting fundamental

Constitutional Rights guaranteed under the Sixth and

lourteenth Amendments, specifically. This Court should grant

certiorari to protect those impacted rights, to supervise the

lower federal courts, and to determine if whether or not the

dismissal of a civil suit by a criminal division state judge

without petitioner’s agreement in his plea and contrary to

court rules is a_ collateral consequence of said plea

24

notwithstanding his maintained innocence position. A civil

suit personal injury remedy is a protected property interest

C. INEFFECTIVENESS OF COUNSEL DURING

INDICTMENT AND PLEA STAGES DENIED

PETITIONER SIXTH AMENDMENT

PROTECTION CONTRARY TO STRICKLAND

AND STRICTER KNOWLES STANDARDS OF

THIS COURT.

In the Strickland analysis, the determinative

question is whether there is a reasonable probability

that but for counsels’ unprofessional errors, the result

of the proceeding would have been different. See:

Glover v. United States, 531 U.S. 198, 202-03 (2001) A

defendant need show that counsel’s deficient conduct

more likely than not altered the outcome in the case

and in petitioners matter it would probably be

sufficient to undermine confidence in the outcome to

show that he could have withdrawn his plea, if given

competent counsel or that the indictment, itself,

would have been subjected to a Motion to Dismiss by

defense counsel.

Suffice to say that where defense counsel, like

Stephen’s, did not give competent advice and did not

explain matters and had his client plead guilty to a

crime not committed; then the pleas was _ not

voluntary under this Court’s Henderson v. Morgan,

426 U.S. 637 (1976) (Holding). Additionally, the plea

was without a factual basis and contrary to N.J. Court

Rule 3:9-2. There is the presumption that competent

trial counsel would have command of N.J. Court

Rules. In a Habeas setting, Tollett v. Henderson, 411

U.S. 258, 267 ((1973) stated “If a prisoner pleads

guilty on the advice of counsel, he must demonstrate

that the advice was not within the range of

competence demanded of attorneys 1n criminal cases.”

Kssentially, petitioner had no representation.

The ineffective-assistance claims are

uncomplicated and do not require the sifting of

lengthy and complex trial/litigation records. Suffice to

say, appearances are that httle, if any, pre-trial

preparation and _ discovery were conducted or

exercised and to Stephen’s_ prejudice. The

incompetence test and Holding of Kimmelman v.

Morrison, 477 U.S. 365 (1986) has been fulfilled

through petitioner's criminal defense attorney's gross

neglect at the indictment pre-trial and plea stages

and these aspects were argued and demonstrated to

the Lower Federal Courts. Not only did his criminal

defense attorney neglect him, but his civil suit

attorney withdrew from his case upon his indictment

and knowing full well that medical records supported

petitioners claims and that the State had no

medically supported case. The criminal defense

attorney failed to challenge and to impeach a self-

serving chiropractor who admitted to destroying

petitioners medical records and who had _ been

treating a vascular medical condition with spinal

adjustments and who the State relied upon for a

medical diagnosis; along with their own investigator’s

medical opinion.

The same criminal defense attorney failed to

review civil deposition records and had his client

plead guilty to a crime not committed and for answers

not asked and for questions not material to a civil

trial outcome. He clearly did not know nor was aware

of Perjury case law nor had command of the Perjury

Statute. Just as in Williams v. Taylor, 529 U.S. 4209

(2000) and to paraphrase “It follows that the Federal

Courts rendered a decision that was contrary to, or

involved an unreasonable application of clearly

established Federal Law. Stephens constitutional

right to the effective assistance of counsel as defined

in Strickland v. Washington, 466 U.S. 668 (1984) was

violated.” Additionally and under those higher

standards of Knowles v. Mirzyance, 129 S.Ct. 141]

2009) for “decisions contrary to or an unreasonable

application of clearly established federal law” such as

petitioners; a grant of habeas petition is warranted

where defense counsel’s performance’ has_ been

ineffective and has resulted in prejudice

Stephen’s prejudice from a lack of investigation 1:

similar to, and parallels, the situation and Holding

found in and of Wiggins v. Smith, 539 U.S. 156 (2003)

“(2) inadequate investigation by counsel prejudiced

petitioner.” Under Hill v. Lockhart, 474 U.S. 52 (1985)

Holding the incompetence of petitioner's counsel]

advising him to plead guilty to a crime not committed

makes his plea to Perjury involuntary.” Furthermore

he would have preferred going to trial, but with

another attorney, under the circumstances

Most recently, the Holding of Melendez-Diaz \

Massachusetts, 129 S. Ct. 2527 (2009) applies, as to

qualifying the gross negligence of petitioner's criminal

defense attorney and with retroactive application

secondary to pre-existing Sixth Amendment basi

The crux of petitioner's argument or position is that

an attorney worth their salt should have known (1)

that an unlicensed individual who is not a MD may

not give a medical opimion and as being criminal in

the State of New Jersey contrary to the Sixth

Amendment; (2) The State, itself, had no available

recognized defense for engaging in criminal

misconduct against Stephen. Retroactive application

of Melendez or of Crawford v. Washington, 541 U.S

36 (2004) would not be an issue or a problem

D. THE STATE DENIED PETITIONER

FOURTEENTH AMENDMENT DUE PROCESS

THROUGH JUDICIALLY BIASED FORUM AND

THROUGH DISMISSAL OF CIVIL SUIT BY A

CRIMINAL DIVISION JUDGE WHERE THERE

WAS CONFLICT OF INTEREST ALONG WITH

SIXTH AMENDMENT GUARANTEE EROSION

OF AN IMPARTIAL FORUM AND AS ACTING

IN CONCERT WITH PROSECUTORIAL

MISCONDUCT.

Civil remedy for personal injuries resulting from

the neghgence of another are rights of common-law

statute, and court rules, in New Jersey. “A cause of

action 1s the fact or facts which establish or give rise

to a right of action, the existence of which affords a

party a right to judicial rehef.” Cornblatt v. Barow

153 N.J. 218, 283 (1998). Although the Law Division

Criminal Part and the Law Division, Civil Part are

courts of general jurisdiction, they may not transfer

causes between the two parts, under court rules. The

Criminal Part hears indictable and non-indictable

offenses and the Civil Part hears civil actions. A plea

falls under the purview of R. 3-9-2 and nothing in that

criminal rule grants the court the rnght to dismiss a

civil suit. Involuntary dismissals come under civil

rules and are solely applicable to the Civil Part and

for stated cause(s)

When the Criminal Part Judge dismissed

petitioner's civil action, he effectively denied access to

the courts and in contravention of the Due Proce:

ruarantees of the Fourteenth Amendment and of the

Privileges and Immunities Clause of Article IV

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chiropractor’s two bills, would have, no doubt, swayed

the Grand Jury to decline an indictment, because

those records would have shown that, after being

stabilized at ACMC ER in Atlantic City, he was air.

hfted to TJUH. Two weeks after admission to TJUH,

petitioner developed full paralysis in his lower lmbs,

after efforts to reduce spinal cord swelling, including

surgery, were ineffective. Irrefutable records would

have shown and supported that his spinal cord

injuries stemmed from his fall at the casino garage

and that he had more than adequate medical

msurance through the tronworkers union.

Parenthetically, the only related medicals bills

petitioner accrued prior to his fall at Caesars were

those of two chiropractor visits: $602.00 and $235.00.

Whether requested or not, the State was well aware

that favorable, exculpatory evidence existed for

petitioner and was obligated to present it with all it:

implications to the Grand Jury; or to not even seek an

indictment based upon the known vindictive

testimony or statements of a person who had just

robbed petitioner. That they did is a blatant due

process violation, under Brady at 87. “We now hold that

the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence

is material cither to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” It was more than

Bad Faith to withhold exculpatory evidence and to continue on

with an indictment knowing full well that petitioner was

innocent. Essentially, the State acted in concert with private

partics to frame an innocent party. There can be no other

conclusion or reading of concerted actions.

Both the District Court and the reviewing Third

Circuit apphed the incorrect legal standard and

contrary to this Court’s clearly established law for

measuring prejudice suffered, as a result of the

prosecutor's misconduct. Taking note of the rule in

United States v. Bagley, 473 U.S. 667, 682 (1985) that

the suppression of exculpatory evidence will result in

a new trial if there 1s a reasonable likelihood that the

result of the proceeding would be different. The same

would hold true for the vindictive complaining

retaliatory witness and for the ulterior motivated

chiropractor who admitted to destroying medical

records, on a taped phone conversation by the

prosecutor, to the petitioner. The testimony would

have fallen under the purview of Nappe v. Illinois, 360

U.S. 264, 270 (1959) and was withheld from the

Grand Jury. This Court’s Holding in Banks v. Dretke,

540 U.S. 668, 696 (2004) reversed a denial of a

Certificate of Appealability where withheld

exculpatory material evidence was involved. The

State’s declared position was rejected and criticized,

therein, as. should be herein: “The State here

nevertheless urges, Ine fect, that the prosecution can

le and conceal and the prisoner still has the burden

to...discover the evidence, so long as the potential

existence of a prosecutorial misconduct claim might

have been detected, A rule thus declaring ‘a

prosecutor may hide, defendant must seek, is not

tenable in a system constitutionally bound to accord

defendants due process. .” Herein, the State of New

Jersey has an operating definition of Due Process and

brazenly contrary to the U.S. Constitution warranting

a Certiorari grant by this Court.

CONCLUSION

Since falling in the casino garage and suffering

resulting paralysis, this wheelchair bound petitioner

has had to overcome numerous obstacles; yet, this

state lawsuit/criminal collaboration has been more

than an oppressive yoke with ensuing’ public

reputational flogging and dismissal of a personal

injury suit for those paralytic injuries. Petitioner has

no other remedy than this Habeas action; yet again

and within, this action presents him with the

opportunity to stand for and defend the rights of other

innocent petitioners from being

ictimized by negligent attorneys acting in concert

with partial judges and less than honest prosecutors

This Court should stand with and for him under

reasons of principle, policy, equity, and constitutional!

imperatiy

“espect 4 illy submit Led

7,

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Date

LPPENDIX

APPENDIX

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

STEPHEN G. MATTIS

PETITIONER CIVIL NO. 08-5393(RMB)

VS

STATE OF NEW JERSEY

ET,AL., OPINION

RESPONDENTS

APPEARANCES:

STEPHEN G. MATTIS, PRO SE

301 W. DELILAH ROAD

PLEASANTVILLE, NJ 08232

BUMB, DISTRICT JUDGE

Petitioner, Stephen G. Mattis, files this petition for

a Writ of Habeas Corpus pursuant to 28 U.S.C. §&

2241. He has paid the $5.00 filing fee. For the

following reasons, the Court will dismiss the petition

BACKGROUND

Petitioner States that on June 21, 1995, he pled

guilty to one count of perjury in the Superior Court of

New Jersey, Atlantic County. Petitioner is not

detained, and states that he has served his sentence.

Subsequent to entering the guilty plea, Petitioner

filed for post-conviction relief (PCR) in the state court,

alleging ineffective assistance of counsel, and that he

was innocent of the charge. He files this habeas

petition, under § 2241, claiming that he received

ineffective assistance at the indictment and pleas

stage, and that there was prosecutorial misconduct.

Petitioner also claims that the sentencing judge/PCR

judge was biased as having 2 personal interest in a

pending civil suit.

Petitioner does not inform the Court what relief he

seeks in the habeas petition.

DISCUSSION

Petitioner seeks a writ of habeas corpus, pursuant

to 28 U.S.C. § 2241 © (3). That section states that the

writ will not be extended to a prisoner unless “he 1s in

custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2241 (c)(8).

United States Code Title 28, Section 2243 provides

in relevant part as follows:

A court, justice or judge entertaining an application for

a writ of habeas corpus shall forthwith award the writ or

issue an Order directing the respondent to show cause why

the writ should not be granted, unless it appears from the

application that the applicant or person detained is not

entitled thereto.

A pro se pleading is held to less stringent

standards than more formal pleadings drafted by

lawyers. See Estelle v. Ganble, 429 U.S. 97 , 106

(1976) ; Haines v. Kerner, 404 U.S. 519, 520 (1972). A

Pro se habeas petition and any supporting

submissions must be construed liberally and with a

measure of tolerance. See Royce v. Hahn, 152 F3d

F2d 714, 721-22 (3'4 1989); United States v. Brierley,

414 F2d 552, 555 34 (1969), cert. denied, 399 U.S. 912

(1970). Nevertheless, a federal district court can

U3

dismiss a habeas corpus petition if it appears from the

face of the petition that the petitioner is not entitled

to relief. See Lunchar v. Thomas, 517 U.S. 314 , 320

(1996); siers v. rvan, 773 F2d 37, 45 34 (1985), cert.

denied 490 U.S. 1025 (1989); see also 28 U.S.C. §§

2243, 2255.

First, this Court notes that as Petitioner was a

state prisoner, not a federal prisoner, his claims

would fall under the purview of 28 U.S.C.§ 2254, as

they challenge a state court judgment.!

However, Petitioner has not alleged that he is “in

custody” in violation of the Constitution or laws of the

United States, as required by § 2254. Instead,

Petitioner states in his complaint that he is not in

custody, is not detained, and has served his sentence

on the perjury charge. As the Court of Appeals for the

Third Circuit has put it, “custody is the passport to

federal habeas corpus jurisdiction.” United States ex

rel. Dessus v. Commonwealth of Pennsylvania, 452

F2d 557, 560 (3 1971). cert. denied 409 U.S. 853

(1972). “Custody” is defined not only as physical

confinement, but would include’ circumstances

entailing such limitations on a person’s hberty as

those imposed during parole. See Maleng v. Cook, 490

U.S. 488, 491 (1989), see also Hensley v. Municipal

Court, 411 U.S. 345 (1973) (habeas petitioner released

on own recognizance, but who suffered restraints on

freedom of movement not shared by public generally,

' Title 28 of the United States Code, section 2254 provides that the district

court “shall entertain an application for a writ of habeas corpus in behalf of

a person in custody pursuant to the judgment of a State Court only on the

ground that he is in custody in violation of the Constitution or laws or

treaties of the Unites States.” 28 U.S.C. § 2254(a).

met “in custody” requirement). Nonetheless, a habeas

petitioner is not “in custody” under a conviction when

the sentence imposed for that conviction has fully

expired at the time his petition is filed. See Maleng,

490 U.S. at 491.

Therefore, because Petitioner is no longer “in

custody” under § 2254 for the conviction he seeks to

challenge, and because Petitioner seeks to challenge a

fully-expired state court conviction, the petition will

be dismissed for lack of jurisdiction. Instead, the

proper vehicle to challenge an expired state court

conviction 1s a petition for writ of error coram nobis,

brought before the state court that imposed the

challenged criminal judgment. See Obado_v. New

An appropriate Order accompanies this Opinion

s/ Renee Marie Bumb

x

lo the extent the petition could be construed as seeking relief under

U.S.C. § 2254, no certificate of appealability shall issue. Pursutant to 28

U.S.C. § 2253{c), unless a circuit justice or judge issues a certificate ¢

appealability, an appeal may not be taken from a final order in a

proceeding under 28 U.S. C. § 2254. A certificate of appealability may iss

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the

district court’s resolution of his constitutional claims of that jurists could

conclude the issues presented are adequate to deserve encouragement to

proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 127 (2003). “When

the district court denies a habeas petition on procedural grounds without

reaching the prisoner’ underlying constitutional claim, a COA should issue

when the prisoner shows, at Jeast, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v

McDaniel, 529 U.S. 473, 484 (2000). Here, jurists of reason would not find

this court’s § 2254 jurisdictional ruling “debatable.’

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TE PHEN G. MATTIS

PETITIONER CIVIL NO

ORDER

RESPONDENT’ CLOSED)

14 lanuary

ORDERED tha the Petitior DISMISS &.D

WITHOUT PREJUDICE for la f jurisdiction id

is further

ORDERED

ue

di it

ORDERED

Renee Marie Bumb

RENEE MARIE BUMB

(ed tate Pict

UNITED STATES DISTRICT COUR’

DISTRICT OF NEW JERSEY

STEPHEN (

¥, MATT ILS

PETITIONER C]

VS

STATE OF NEW JERSE

MT, AL.,

— RESP

STEPHEN ¢

301 W. DEL

APPEARANCES

PLEASANTVILLE, NJ 08232

BUMB, Dist

This mat

Motion for

seeks recons

OPINION

ONDIENTS

rt MATTIS., PRO SI

LAH ROAD

rict Jude

ter J before the Court

Reconsideration (docket

sideration hy thi (Court

Opinion and Order, dated January

entries 2 &:

s) as well as Pets

LIOne!

the Opinion and Order of Januar:

entry 5)

Having cr

Civ. P. 78, tl

On Octob

a writ of halt

nsidered the mot

i Court will deny

BACKGR¢

er 31, ZOOS, Petit

CAs COrp us », PUPS

LOT) pu

Lhe me

JUND

ioner

ant to Ze

In the Opinion dated January 14

that Petitioner

the petition

‘In custody’

because he

court convict

this Court noted

for purpose

sought to challer

ot hab

{)T)

enti

ol

ad Libimone!

thi

1)

14. Y~OOSG

motion

14

] uANnT

{

led

$2 |

2004

(Fi

Pr

cl

T

}/'

. 4

r

which

(Court

(doc} eT

tition 107

CC

an

§ 2241

Iy)] 1) f?

Wa not

jurisdiction

lve 3 folly ( Kpired { i |

ion. (Opinion, docket entry 2

il 1D)

)

|

petition. Thus, t Court ruling

Jurisdiction t ntertain th ha

stand

Furth I Petitioner | nol 1

satisties any of the reasons warra

Petitioner has not shown entitlement

from the judgment due to mist:

Surprise, or excusable neglect, se

not presented newly discovered

60(b)(2): and has not itisfied tl}

Petitioner has not demonstrated th

relief from this Court judgment ol

Hi imply eel to introduc

presented in his’ habeas _ petitio1

pertaining to | inderlying

Petitioner presents in his motion

this Court that extraordinary 1!

Which warrant 60(b) relief. Thu

entitled to reheft under Rule 60 (|

CONCLUSION

‘or the reason et forth above

for reconsideration will be dismiss

motion to vacate will be denied An

accompanies this Opin

1¢

it f

lan

’

nV)

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TEPHEN G. MATTIS

PETITIONER VIL NO. 08-5393(RMB)

\

STATI OF NEW JERSEY)

WT Al ORDER

-ESPONDENT CLOSED)

fos | July

ORDERED

Reconsiderat |

DISMISSED

ORDERED

(locke | N 5 I 1 >} N | I 1) | | |

final

ORDERED

UNITED STATES COURT OF APPEALS FOR

TATE O JiGW Jhel

yN . % ! \ { ) }

‘=

Dy]

Dp } lily

) 1

re >

OR DER

Lhe rego ipplication § fo certific:

ppealability is denied because Appelland has

made substantial howing of the denial

onstitutional right” 28 U.S. C. & 22538©(2)

THE THIRD CIRCUIT No. 09-3762

{)

| )

aA

Kor

substantiallvw the same reasons given by the District

Court.

Appellant has not shown that reasonable

irists would debate the District's denial of his motion

f under Federal Rule of Civil Procedure 60(b)

ck \ MebD LTLI1¢ 29 L] > oF Bs LS4 (2000)

ays

| LAS

notice of appeal was not timely filed as to the ord

that denied Appellant's habeas petition, and our

consideration of this application, therefore, is limited

to the order denying rehef under Rule 60(b)

> ‘

Hy thea { Ben

above entitled

Supreme Court of the United States

Office of the Clerk

Washington, DC, 2054300001

March 12, 2010

301 W. Delilah Rd

| asantville. NJ O82

appli ation

h

certiorari in

case has been

who on March 12. nde > tim

ncluding June 2PR POLO

(Gall Johnso!

ise Analy

for an 1. of time within

to file a CTI )

CONSTITUTIONAL AND STATUTORY

PROVISIONS

ARTICLE IV, Section 2,----- In pertinent part reads: The

Citizens of each State shall be entitled to all Privileges and

Immunities of Citizens in the several States.

6°H AMENDMENT------- In all criminal prosecutions,

the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and

district wherein the crime shall have been committed,

which district shall have been previously ascertained

by law, and to be informed of the nature and cause of

the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of

Counsel for his defence.

14th AMENDMENT, SEC. 1 in pertinent part reads:

“No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, hberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.”

Title 28 U.S.C. § 2241 (c) & (c)(3) reads: “The writ of

habeas corpus shall not extend to a prisoner unless---He is 1n

custody in violation of the Constitution or laws or

treaties of the United States.”

Title 28 U.S.C. § 2242, Application reads in pertinent

part: “It may be amended or supplemented as provided in the

rules of procedure applicable to civil action:

Title 28 U.S.C. § 2243, Issuance of writ; return;

hearing; decision reads in pertinent part: “The

court shall summarily hear and determine the facts,

and dispose of the matter as law and justice require

Title 28 U.S. C. § 2244(b)(2)(B)(ii), Finality of

determination reads in pertinent part: “the facts

underlying the claim, if proven and viewed in light of

the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that , but

for constitutional error, no reasonable’ factfinder

would have found the applicant guilty of the

underlying offense.”

Title 28 U.S.C. § 2253 (c)((2) reads in pertinent part

“A certificate of appealability may issue under

paragraph (1) only if the applicant has made a

substantial showing of the denial of a constitutional

right.”

Title 28 U.S.C. § 2254, State Custody; Remedies

in Federal Courts: pertinent parts read:

“(b)(1) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted unless

it appears that - (A) the applicant has exhausted the

remedies available in the courts of the State; or (B)()

there is an absence of available State corrective

process; or (11) circumstances exist that render such

process ineffective to protect the rights of the

applicant.”

(dad) An Ppilcation $ Io} 1 writ ot nab

behalf of a person in custody pursuant t t}

judgment of a State court shall not be granted with

respect to any claim that was adjudicated on thi

merit In state court proceeding inte Ln

adjudication of th claim (1) resulted nN Lé lL

that wa contrary or involved an unreasonal

application of, clearly established Federal law

determined by the Supreme Court of the Unit

Stat or (2) resulted in a decision that ed

an unreasonable determination of tl fact n light

the evidence presented in tlh >)

e)(] 1) ip ) 11]

i writ tf habea corp I , rot

pul uAanN Line mudryme iT } Lint

determination ofa factual 1 il made by a State be

hall be presumed to be correct. The applicant s!}

have the burden of rebutting the presumption

correctness by clear and convincing evidence. (2) If t

applicant has failed to develop the factual basis of

claim in State court proceeding the court shall n

hold an evidentiary hearing o1 clalm inl th

applicant how that ind (B) th fa

underlying the claim would bi ufficient tabli

by clear and convincing evidencs that but f

constitutional error, no reasonable factfinder wou

have found the ipplicant guilty f the underlvi

offen (

“(e)(1) In a proceeding instituted by an application {

a writ of habeas corpus by a person in custo

pursuant to the judgment tat rt

leterminatio) fa factual 1 ue made bva Stat court

hall be presumed ti be correct

1 ne appli ant hall have the burden of reb itting the

resumption of correctne by clear and convincing

vidence (2) lf the applicant has failed LO develop the

factual basis of a claim in State court proceedings, the

yuri hall not hold an evidentiary hearing on the

laim unl the applicant shows that - (A) the claim

rehes on 1) a new rule of constitutional law, made

retroactive LO Cast OT) collateral review by the

supreme Court, that was previously unavailable; or

11) a tactual pred ite that could not have been

reviously discovered through the exercise of due

hligenc ind (B) the fact underlying the claim

uuld = be ufficient§ t establish by clear and

evidence that but for constitutional error

» reasonable fact-finder would have found the

pplicant guilty of the underlying offenss

()ifey fined Pp iit nee

' f the third degree, if in any official proceedin

mal fal tatement under oath or equivalent

iffirmation VEAL {firm the truth [ a

Catemen rye kwously m v | nm tne 1LeEmMme)

iterial he does not be! e it to be ti

Via palit falsification material, r rd of

the admussibility of the Latement under rules. of

videne if it could have affected the course 01

OUuTCOMm: Ol Le proceedings Q] the cj ppO

otfenss The ui) 1] ! { reiu

accept a plea of guilt ind shall not accept n

without first pueSLIONIN at lefenday rss

under oath or by affirmat ind determ Ing |

Inquiry of th lefendant nd othe in the int

discretion, th there tual | r tl

ind that the pica mM oOlunt

of any threats o1 far promise rundu

disclosed on the } ord na mn rst

the natur tf thie har wene I I pu a

pl ». dt 1:aa1v1oONn +t ,uU1) r tl lefendant

court ma ACCEe pt WriLLcn Lipulation

Opinion, or state of mind that the defendant ad)

be true provided Lie Li] ulation ined | f

defendant, defense counsel, and the prosecutor. W]

the defendant is charged wit] rime punishabl

death, no factual basi hall be required from

defendant hefore entry of a piea of guilty 1 1 ¢ lt

offense or to a | er included offens provided t]

court 1s satisfied from the proots presented that the

is a factual basis for the plea. For good cause

Shown the court may, in accepting a plea of

guilty, order that such plea not be evidential in

any civil proceeding. If a plea of guilty is refuse

no admission made by the defendant hall b

admissible in evidence against the defendant at tri

If a defendant refuses to plead or stands mute, o1

the court refu ( LO accep i r i I ruldit i] lea