# Petition for Writ of Certiorari — Mattis v. New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 963

## Text

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

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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

Hd)

ime]

Ss4 (7)

Pt, | )
A
)
Poa i
' ;
|>
rs)

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

ri ‘
) Te | . ) ZA) J P() {f rt )t)

Article L\

Privilege ind Imn
ection
ixth Amendmen ut
Fourteenth Amendn mt An
(CA whe
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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,

1/1 (attis Vy Uf
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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

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led

$2 |

2004

(Fi
Pr

cl

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. 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2391%3A1. Public record. Not legal advice.