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,
1ARGUMENT 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