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UNITED STATES coRT OF APPEALS FOR THE DISTRICT OF COLUMBTA MARTIN A, ARMSTRONG v 09 ~ s370 HARLEY G. LAPPIN, Director Federal Bureau of Prisons MOTION FOR REcoUSIDERATTOW AND/OR PETITION FOR HEARING EN BANC 1, Martin A. Armstrong (herein "Arastrong") pro se, move for Reconsideration Of the Court's denial of @ right to seck Permanent Injunction, and/or hereby moves for a Petition En Bane since the Court's decision conflicts vith the long established rule of Taw chat one may challenge the EXECUTION f a sentence by civil rights suit, mondamis, declaratory judgnent, or any other means OTVER THAN habeas corpus, for Armstrong DID NOT challenge the fact or duration of the 5 year Sentence, but the refusal to release Arsatrong long after the sontence had been completed in violation of 18 USC $3621(e) and absent any statutory authority vhat- Soever in violation of the Bighth Anendaent and the Non-Detention Act 18 USC §4001(a The Court claims the EXCLUSIVE right to any relief 4s by habeas corpus. Armstrong filed such a petition, and it was DISMISSED for failure to Exhaust Adnintstrative Remedies vhen Congress expressly excluded habeas corpus from any requirement to exhaust administrative remedies 18 USC §3626(g)(2). Armstrong vas erroneously 2008 US Dist Lexis 46206 (DNJ 6/12/08). Once the writ of habess corpus was then suspended in violation of Bounediene v Bush, 548 US ~ , 128 Sct 1168 (2008) that held this was a STRUCTURAL RIGHT within the Constitution and not the later Bill of Rights, the renedy at law was not available and under Article ZIT, the right to Seek equitable relief under §16 Judiciary Act of 1789 was then available. For this Court to claim it has no jurisdiction is to decree there is no right to petition Under the First Asendnent and the STRUCTUAL RIGHT under Article IIT does not exist and citizens can be arbitrarily imprisoned vith no right to be heard, 1 ARGUMENT PRESENTED This Court has held inconsistent with the holding of Nelson v Campbell, Sé1 US 637 (2004) and Hill v NeDonough, $47 UIS 573 (2006), that a challenge to the EXECUTION of a criminal sentence aay be presented even by a Civil Rights Suit 42 USC 1983, and is by NO MEANS confined to habeas corpus. The Suprene Court has nade this distinction very clear since 1973. Arastrong DID NOT CHALLENGE the fact or validity of the conviction nor the 5 year sentence inposed, for that would be subject under 28 USC §2255. Armstrong has SOLELY challenged the FXECUTION of that sentence, which is outside the scope of habeas corpus, even though the Distret ‘Judge Renne Buab is clearly confused on this lav and dismissed a writ of habeas corpus claiming Arnstrong failed to exhaust adainistrative renedies when Congress stated clearly habeas corpus was excluded from the FLEA or othervise even a §2255 would be required to exhaust, §3626(8)(2). Judge Bund revrote the Jaw herself saying in her mind it served the sane pupose that Congress intended. In a DEMOCRACY, that. violated the SEPARATION OF POWERS for only the legislature could have made such a determination and Bounedione held that not even Congress had che right to suspend tthe writ of habeas corpus. Nonetheless, denied the right to even file such a writ, S16 Judiciary Act afforded the right to petition equity when there vas no renedy available at lav. This Court's decision is claiming that is the OWLY method evail- able and therefore because Judge Bunb has violated her other of office and assumed power NOT vested under Article IIT, Armstrong mist remain in prison with no right to be heard in any tinly manner within 48 hours as held under the Fourth Anendment Gorstein v Pugh, 420 US 103 (1975); County of Riverside v Mclaughlin, 500 US 44 (1991), ‘This Court's decision has constructively repealed the Fourth Asendnent claiming Form can supersede eubstance even in STRUCTURAL rights. Since Proisor v Rodriguez, 411 US 475 (1973), the Suprene Court has quite clearly distinguished between prison conditions and the validity of @ conviction wheres the former is properly adressed 4n civil rights and the later in habeas. 2 ‘The Preiser distinguished between actions thet can ONLY be brought in a habeas corpus are those that "necessarily imply" that the conviction is invalid. This is the OVLY distinction chat Limits « habeas corpus and it vas reaffirmed once again in Heck v Humphrey, 512 US 477 (1994), In Sandin v Conner, 515 US 472 (1995), the prisoner alleged ine disciplinary situation, that he vas denied procedural dve process and the right to call witnesses. He presented his clains NOT BY HABEAS but 4m a civil rights suis. While the Supreme Court reversed claiming that the regu‘ations 4id not croate a LIBERTY INTEREST, at no tine did the Ninth Circuit or the Suprese Court challenge the right to bring the action by civil rights suit rather than by habeas corpus. Again, in both Nolson and HiLL the prisoner was alleging thst the execution of the sentence was unconstitutional and én both cases the Suprene Court haa made it very clear, QULY shen one ie challenging the validity of the conric:ion is his confined co habess corpus. This in itself is a judicial rule for it is aot ‘supported by any qualifying legislation vhere Congress (1) required exhaustion in a civil rights suit, and (2) forbid a prisoner from seeking other renedies outside of habeas corpus. Tt vould further violate EQUAL PROTECTTON OF THE LAV to clain a prisoner has no right to petition for Equity under Article TIL, civil rights, oc declaratory judgment. Granting the relief requested that is covered by ALL civilized nations within aman Rights aot te be arbitrarily inpeisoned without the sanction of lav, hy M0 reans vould "necessar:ly saply" the invalidity of the very authorized criminal ‘conviction. The sentencing court DID HOT and COULD NOT run the civil contempt consecurive under 18USC§3584(a) since "imprisonaent" is defined as a criminal penaley 16 USC S4101(b) as {9 a “sentence” S4101(h). Civil contespt was NOT a seperate crimina! sentence, for it was a “detention” within §3585(b), US y Morales-Alejo, 193 FB 1102, 1105 (9th Cir 1999), To claim anything applied under §3584(a) vould constitute DOUBLE JEDPARDY, whic applies to contempt, US y Dixon, 509 US 688, 125 LBd2d 55 568 (1993). 3

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