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Published by: strikelawyer on Oct 12, 2011
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IN THE SUPREME COURT OF THE UNITED STATES _______________________________________________ In Re:SEPHORA K. DAVIS,
Docket No. 09-10613 
For A Writ of Habeas Corpus Under 28 U.S.C. 2241 and2254 ________________________________________________ 
Undersigned counsel moves, pursuant to Rule 17.2 of the Court and Federal Rule of CivilProcedure 60(b)(6), and in light of this Court’s intervening decisions in Harrington v. Richter,131 S.Ct. 770, 562 US _____ (2011) and Brown v. Plata, 131 S.Ct. 1910, 563 US _____ (2011)and upon the grounds more fully stated below, for relief from this Court’s Orders dated June 1,2010 and July 26, 2010 summarily denying the Petition and the Petition for Rehearing,respectively; and for reinstating the Petition, restoring it to the Court’s calendar, and granting thePetition
 forthwith, or scheduling the matter for further proceedings as the Court deems advisableor necessary.I (A)For two terms this Court has been experiencing significant difficulty with a number of the federal circuit courts in the area of federal habeas corpus relief for prisoners held pursuant tothe judgments of state courts.
 In January of this year, this Court decided Harrington v. Richter,
The Petition is an “original” habeas corpus petition brought in this Court under 28 U.S.C. 2254 and 2241,in the tradition of Mooney v. Holohan, 294 US 103 (1935) and presents the question of whether a statecourt defendant’s right to due process is violated by the government’s knowing use of perjury andfabricated evidence to prosecute her at all, as opposed to use of such “evidence” at trial to convict her.
A brief and partial review: Renico v. Lett, 130 S.Ct. 1855, 559 US ___ (2010)(6
Cir.)(whether statecourts had failed to apply “clearly established Supreme Court precedent”; 6
circuit said yes and this Courtreversed); Berghuis v. Smith, 130 S.Ct. 1382, 559 US ____ (2010)(6
Cir.)(same issue as Renico; thisCourt reversed); Smith v. Spisak, 130 S.Ct. 676, 558 US ____ (2010)(6
Cir.)(whether federal habeas courthad accorded appropriate deference to state court ruling under the Anti-Terrorism and Effective DeathPenalty Act (AEDPA) in granting relief; this Court said no and reversed); Berghuis v. Thompkins, 131S.Ct. 33, 560 US _____ (2010)(6
Cir.)(another “appropriate deference” case; this Court reversed); Bobby
131 S.Ct. 770, 562 US ____, (2011) to address the 9
Circuit’s interpretation of apparentlytroublesome AEDPA limitations on the availability of federal habeas relief with respect to claims previously “adjudicated on the merits” in state-court proceedings under 28 U.S.C. 2254(d). TheCourt then turned to another habeas corpus ruling from the very same court a short time later inFelkner v. Jackson , 131 S.Ct. 1305, 562 US ____ (2011) and summarily - not to say pointedly -reversed the 9
Circuit in March. In the meantime, the 9
Circuit reconsidered the case of Doodyv. Ryan, (yet another “appropriate deference” case under the AEDPA) after reversal and remandfrom this Court last October [131 S.Ct. 456, 562 US ____ (2010)] and decided that the reversaldid not change the result, reaffirming its previous ruling and possibly setting the stage for further  proceedings in this Court. The 9
circuit’s dissent in this most recent permutation of Doodyaccused the majority of ignoring this Court’s admonitions and the AEDPA. Doody v. Ryan, 649F.3d 986 (9
Cir., 2011)Into this ongoing fray undersigned counsel resubmits for the Court’s consideration thePetition in this matter which was denied in 2010; and suggests with this motion that the Court’sdisposition of these threshold AEDPA procedural issues, and its guidance of the federal courts of appeals, can be favorably enhanced by giving the Petition plenary consideration and ultimatelygranting it, for two fundamental reasons. First, the Court has perhaps given too many opinionsabout the multitudinous circumstances that do
constitute an appropriate occasion for federalhabeas relief for prisoners held pursuant to state court judgments, while giving few or no opinionsabout the rare occasions that do.
The continuing stream of reversals appears to be doing little to
v. Mitts, 131 S.Ct. 1762, 563 US ____ (2011)(6
Cir.)(whether state court rulings were “contrary to clearlyestablished federal law”; this Court said no and summarily reversed); Swarthout v. Cooke, 131 S.Ct. 1855,562 US _____ (2011)(9
Cir.)(this Court reversed, pointedly saying that the California parole system procedures are “…no part of the Ninth Circuit’s business.”); Walker v. Martin, 131 S.Ct. 1120, 562 US ____ (2011)(9
Cir.)(this Court reversed, citing an “adequate and independent state ground”)
Perhaps it cannot be left unsaid that even if it applied here – where there has never been an adjudicationon the merits - 28 U.S.C. 2254(d)’s requirement that federal habeas relief is unavailable with respect statecourt adjudications on the merits unless they are “…contrary to, or involved an unreasonable application of,clearly established Federal law, as determined by the Supreme Court of the United States…” cannot beapplied to petitions originally brought in this Court, since this Court will not generally consider or decidecases presenting questions of federal law unless those questions are unsettled. This would effectively
inform the lower courts’ habeas adjudications: by an unofficial count this Court has eight (8)habeas corpus cases on its calendar for plenary consideration thus far this term, constituting asignificant percentage of the Court’s workload. The time has perhaps come for this Court toelucidate its views of the role of federal habeas corpus for state prisoners through
relief rather than denying it, making an illuminating contrast with such cases as Richter.Second, the procedural posture of the Petition has particular advantages for the Court atthis time. Ordinarily, to consider in depth the many procedural questions that pertain to federalhabeas corpus relief, the Court would have to grant certiorari for as many cases; however thisPetition, being an original application in this Court, can be viewed as incidentally but properly presenting many procedural questions regarding federal habeas corpus relief – in
case, notmany. Procedurally speaking, the within Petition could be virtually a blank slate upon which theCourt can etch the post-AEDPA law of federal habeas corpus.(B)The Petition makes an unarguable case for federal habeas relief on facts that have never  been placed in issue or considered on the merits
, assuming the Court agrees in the affirmative onthe primary question of federal constitutional law presented: whether due process forbidsgovernment officials to knowingly prosecute people with perjury and fabricated evidence.Admittedly, this Court has never so held, though others have. United States v. Basurto, 497 F.2d781 (9
Cir., 1974); People v. Pelchat, 62 NY2d 97 (1984) Yet it is inconceivable to explicitly
deprive this Court of the ability to decide “original” habeas corpus petitions; but the Court long ago upheldthe AEDPA in part because the law was deemed not to have that effect. Felker v. Turpin, 518 US 651(1996) 
To briefly recapitulate, the Petitioner – at the time 18 years old with no criminal record and still in highschool - was raped at knife point by a police informant who said he would kill her if she ever told anyone.She was then drugged and driven around in her own car, passed out, while the informant and two other men performed an armed robbery. Weeks later the informant and other law enforcement officials conspired tofabricate evidence and commit perjury to implicate the Petitioner as a willing participant – “the driver” – for the crime. She was then arrested at gun point, charged and indicted through the knowing use of this perjury and fabrication. The record shows that the evidence of all of this was uncovered, presented to the New York courts and – incredibly – unopposed by any evidence to the contrary
to any judgment of conviction; yet the Petitioner, facing life in prison if convicted at trial with the same perjury that had beenused to indict her, was nevertheless denied pre-judgment relief and terrorized into an
plea. She wasthen sentenced and imprisoned.

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