HABEAS CORPUS

Many of my students have lamented they have a friend incarcerated on a 26 USC 7203 charge,
or have pled guilty to 7203, or have finished their sentence ut have parole or proations
restrictions, or have lost civil rights, and as! if the "aeas Corpus is useale for relief# $he
ans%er appears to e an un&ualified yes#
Statutory federal haeas corpus procedure is codified at 2' USC 22() to 22**# +,tensive
analysis can e found in -ederal .ractice and .rocedure y /right 01-26)2, /73 Criminal
.rocedure, volume 3, and "aeas Corpus *'24602# $he one hundred pages include copious
annotations# -ederal .rocedure, 5a%yers +dition 01- ''3*, -(33 volume )6 "aeas Corpus
()#372 to ()#*(( is also informative, %ith Coram 6ois at ()#*(* to ()#*76# "ard core
students %ill find Moore7s -ederal .ractice 01-''20, 83)33 volume 2', chapter 672, contains
detailed citations# More information is at 328m9ur2d "aeas Corpus )(*4)*( 01-)*( 8(23
%ith Coram 6ois at 227 4273#
8 motion filed y a federal prisoner is pursuant to 22** rather than 22()# $his modern method
of filing a motion in the court that imposed sentence as a continuation of the old case rather than
filing a .etition for a /rit does not re&uire a filing fee# -ilings are to comply sustantially %ith a
form availale from the %arden to transmit relevant information, ut the form does not appear to
e mandatory# /hittemore v US, 2'6 -2d *7*# 8 memorandum may e attached to the form#
$he original and t%o copies are mailed to the sentencing court# :f the cler! finds the paper %or!
to e improper, it is to e returned %ith a note of the fla%# $he cler! %ill serve the United States
8ttorney# ;ne circuit has ruled the motion is considered filed for time calculation purposes upon
handing it to prison officials# :t is not un!no%n for a district court to ignore a filing even in a
transcript to the circuit court until confronted %ith a photocopy of a green return receipt# 8
friend might e useale for personally filing papers, file a certificate of service, and get a file4
mar!ed copy#
$he <file at any time provision= of 22** %as changed to a one4year period of limitation for
relief in )226# $itle 2' USC 22**>(? tolls the time from the event %hen facts supporting the
claim could have een discovered through the e,ercise of due diligence# :f the violation has een
a standing procedure y the :@S for (0 years and recently discovered, the time could e claimed
to have Aust started#
$itle 2' USC 22**>3? alternatively starts the time %hen the right asserted %as initially
recogniBed y the Supreme Court# $he future %ill tell if this provision is applicale# Since 22**
is e,tensively used to challenge grand Aury composition, prosecutorial misconduct, prison
conditions, unconstitutional searches, etc#, the limitation can e understandale for those
conditions# :n a challenge to the Aurisdiction %here the evidence is in the court file and does not
deteriorate %ith age, it is reasonale to push the issue a it#
6o court has a right to imprison a citiBen >or to remove civil rights? %ho has violated no la%C
such restraint, even if e,ercised y a court under the guise and form of la%, is as suversive of
the right of the citiBen as if it %ere e,ercised y a person not clothed %ith authority# +, .arte
Sieold, )00 US 37)#
Courts have held the one4year limitation for relief can e e&uitaly tolled in e,traordinary
circumstances# US v 1elly, 23* -3d )23' >out of a concern for fairness?C US v .atterson, 2))
-3d 227 >for actively misleading the petitioner?C Dunlap v US, 2*0 -3d )00)# :t can also e
noted that -@Cr. )2>?>2? permit Edefenses that >the? indictment or information fail to sho%
Aurisdiction or to charge an offense shall e noticed y the court at any time#E >$his -@Cr. is a
restatement of Supreme Court rulings#? 8 statute of limitations in this case %ould have the effect
of ma!ing legal %hat %as an illegal procedure#
9urisdictional &uestions are never %aivedC they can e attac!ed at any time# /aley v 9ohnston,
3)6 US )0) >)2(2?C $hor v US, **( -2d 7*2#
$he custody re&uirement for 22** has vacillated# .arole appears to no% e included >9ones v
Cunningham, 37) US 236, 2(2? as does suspended sentences >+vitts v 5ucey, (62 US 3'7? and
also proation# US v Condit, 62) -2d )026C US v Span, 7* -3d )3'3#
Coram 6ois relief is availale for non4prisoners similar to 22** to correct Eerrors of the most
fundamental character#E US v Morgan, 3(6 US *02# :ndividuals %ho have completed their
sentence# or have suspended sentences, and %ish to e,punge the record of a criminal conviction
and restore civil rights, voting privileges, firearms o%nership, neighorhood reputation, or
removal of employment application stigma, etc#, may receive the same enefits of 22** y
filing a Motion in Coram 6ois pursuant to the 8ll /rits 8ct, 2' USC )6*)>a?# US v Stoneman,
'70 -2d )02C US v -ola!, '6* -2d ))0C $elin! v US, 2( -3d (2#
F6;$+G @elief for these specific oAectives has not een oserved in the court cases# $hese
restrictions might e asserted to put an individual in federal custody since the petitioner is
oppressed y the court action# :f so, a straightfor%ard 22** motion may lie and e an easier
procedure# ;r perhaps the use of a shotgun approach and the filing of oth Coram 6ois and a
22** motion might e considered# Harious courts have re4identified motions to the accepted
form ut do not rely on it#
6;$+G Corum 6ois did not lie to challenge an indictment %hen the issues %ere previously
adAudicated during the trial# IaAe%s!i v US, 36' -2d *33# >Do not e tric!ed#? $he courts %ill
not uphold adAudication that does not have Aurisdiction# -@Cr. )2>?>2?C US v 6orman, 32) -2d
2)2# Citations for each circuit are listed in 3' 85@ -ed page 6)7, (>a?# 01-)0* 8*(3
8 guilty plea can e challenged at any time if the court did not have Aurisdiction# Machiroda v
US, 36' US ('7# ;n multiple count indictments, the punishment for 7203 counts may e
removed# $he court theoretically e,pedites "aeas actions# :f the statutory re&uirements of
22** prevent filing y a prisoner, relief can e sought under the more rigid re&uirements of
filing a .etition for a /rit of "aeas Corpus pursuant to 22()#
.hotocopies of the government %esites mentioned and the Congressional @eport can e
attached as e,hiits for the convenience of the court if they are availale# 8ny attachments
should e footnoted in the Motion and the numer of pages should e identifiedC i#e#, ) of )*, 2
of )*, etc#, to prevent inadvertent loss#
-inal orders from 22** motions can e appealed# 2' USC 22*3C Chere! v US, 767 -2d 33*#
$he denial of a re&uest of appeal y the district court can e appealed to the circuit court# "ohn v
US, *2( US 236 >)22'? 8 Certificate of 8ppeal aility is not re&uired to appeal a denial of coram
6ois relief# US v Japtiste, 223 -3d )''#
$he aove information is mentioned to sho% an interested individual the academic information availale in the
lirary and the procedural options that are availale# Ieneric motions must e adapted to fit circumstances#
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
WASHINGTON AT SEATTLE
IN RE:

(Your Name),
Petitioer,
a!ai"t
UNITED STATES,
Re"#o$et%
KKKKKKKKKKKKKKKKKKKKKKKKKKKKKKL
Cau"e No%
HA&EAS CORPUS
'OTION TO (ACATE AND SET ASIDE )UDG'ENT
IN FOR' OF HA&EAS CORPUS
$he petitioner Moves this court to vacate and set aside the Audgment and sentence of KKKKK
months imposed y this court on Fmonth, day, yearMC to restore full civil rightsC and to have notice
that the conviction has een vacated and set aside pulished in all legal pulications that contain
a record of this convictionC for the good and sufficient cause that the court %as %ithout
Aurisdiction to impose such sentence#
Upon revie%, the indictment for 26 USC 7203, commonly identified as a charge of %illful
failure to file, is found to e %ithout any claim the petitioner had a statutory duty to the plaintiff
and petitioner is therefore not charged %ith violating any legal re&uirement imposed y la%#
/ithout a claim of a statutory duty eing violated y the petitioner, no crime has een charged
>there is no cause stated?# $he -ifth 8mendment mandate that Audicial actions shall proceed
against a citiBen only y due process >the la% of the land? has therefore een violated, and since
any procedure, %hich violates the constitution is not a government action, Aurisdiction has not
een vested# Under penalty of perAury, all statements of fact in this motion and the attached
memorandum are declared to e true and correct#
Fsigned and dated, address and phone numer suggestedM
Fmotion style %ith district court case numerM
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
WASHINGTON AT SEATTLE
IN RE:

(Your Name),
Petitioer,
a!ai"t
UNITED STATES,
Re"#o$et%
KKKKKKKKKKKKKKKKKKKKKKKKKKKKKKL
Cau"e No%
HA&EAS CORPUS
'E'ORANDU' OF POINTS AND AUTHORITIES
IN SUPPORT OF 'OTION TO (ACATE AND SET ASIDE )UDG'ENT
$his Motion is filed pursuant to statutory provisions of 2' USC 22** for haeas corpus and
-@Cr. )2>?>2?# $he movant is federal prisoner numer KKKKKKKK at KKKKKKKKKKKKKKKKK
prison#
$he court %ill ta!e Audicial notice that the indictment claims the petitioner violated $itle 26,
United State Code, Section 7203 y reason that he had gross income of NKKKKKKKKK and that he
did %illfully fail to ma!e a ta, return Eas re&uired y la%#E $here is no other statute from $itle
26 mentioned in the indictment#
$he court %ill also notice that 7203 is an administrative procedure in Sutitle -, .@;C+DU@+
86D 8DM:6:S$@8$:;6 that is applicale to all '0 or so ta,es the :@S collects# :t does not
identify %hat ta, is eing enforced#
$here is no statuteLla% cited that imposes any type of legal responsiility on the petitioner# $he
only la% cited >7203? is that the :@S is empo%ered to punish individuals %ho are re&uired to
pay ta,es# $his premise is not challenged#
:t appears from a generous reading of the indictment that an income ta, has een pursued# $he
adAective Oincome7 is found efore the noun Ota,#7 :s the petitioner supposed to ma!e some legal
assumption from that phraseP .etitioners cannot e re&uired to ma!e legal assumptions from
criminal process#
:n rief, the indictment does not charge the petitioner %ith eing legally responsile for any ta,#
$his position has een oli&uely oserved in recent adAudication that might e est to revie%#
:n US v Moore, 622 -2d 2*, pro se Moore suggested :@C 7203 %as unconstitutionally vague
and additionally failed to specify %ho has to pay an income ta,# $he trial court prevented such
arguments from eing made to the Aury and the appellate court declared :@C l and 60)2>a? made
the petitioners responsile for the income ta,#
:n three appeals y the same la%yer from ta, court, the court in 5ively v C:@, 70* -2d )0)7
declared a claim of Eno la% imposing an income ta, on >5ively?E %as %ithout merit %hile in
-icalaro v C:@, 7*) -2d '* and CharcBu! v C:@, 77) -2d (7) the court declared ) and 6)
made the ta,payers liale for the income ta,# Since all three citiBens had petitioned ta, court,
there %as no indictment served nor did the 7ta,payer7 have standing to challenge the legality of
the income ta,# 8 petitioner to ta, court cannot ma!e such a challenge# $o file a petition in non4
Audicial ta, court inherently assumes Aurisdiction of the legislative 8rticle : 7court7 >not an 8rticle
::: Audicial court? and the legal position of a ta,payer#
$his is the @oman civil la% procedure that is applicale in administrative ta, court# $o challenge
liaility for the income ta, in appellate court after ac&uiescence to the status of ta,payer in ta,
court is an asurd appeal that Austified personal sanctions on the la%yer# :t might e in the pulic
interest to revo!e his license# $he circuit courts only address error in the trial court >or in the case
of ta, court, the hearing?C appeals are not trial de nova#
:n US v .ederson, 7'( -2d )(62 >)2'6?, the court declared liaility %as imposed y ) and
60)2# :n US v Jo%ers, 220 -2d 220, the petitioners asserted they %ere not EpersonsE %ithin the
ta, la% and %age income is not ta,ale# $he court declared :@C 60)2 re&uires payment of
ta,es#
/hile not holding on this court, %e can oserve the $reasury Department has recently suggested
several statutes impose liaility on the ta,payerG
$he ta, la% is found in $itle 26 of the United States Code# $he re&uirement to file an income ta,
return is not voluntary and it is clearly set forth in the :nternal @evenue Code >:@C? Sections
60))>a?, 60)2>a?, et se&#, and 6072>a?#E httpGLLtreas#govLirsLciLta,KfraudLdocnonfilers#htm , page
74'# 0+arlier editions %ere at page (3 8t an :@S %esite httpGLL%%%#irs#govLpuLirs4
utlLfrivKta,#pdf , the pulication
$"+ $@U$" 8J;U$ -@:H;5;US $8Q 8@IUM+6$S, susection J# ContentionG .ayment
of $a, is Holuntary declares Ethe re&uirement to pay ta,es is not voluntary and is clearly set forth
in section ) of the :nternal @evenue Code, %hich imposes a ta, RE on page ( of 32# $he same
article is also found at %esite# httpGLL%%%#ustreas#govLirsLciLta,KfraudLfrivolous#pdf #
:t can additionally e sho%n that the Congressional @esearch @eport titled -@+SU+6$5T
8S1+D SU+S$:;6S C;6C+@6:6I $"+ -+D+@85 :6C;M+ $8Q prepared for memers
of Congress declares :@C ), 6), 63, 60)2 and 6)*) E%or!ing together, ma!e an individual
liale for income ta,es#E .age numers vary in different pulication dates#
Since different statutes are claimed y various sources to impose legal responsiility, is there any
Austifiale reason %hy legal liaility %as not declared in the indictmentP
;f more importance, is the indictment in this case, %hich does not include a statute declaring
legal responsiility for a ta,, consistent %ith fundamental re&uirements of due process as
estalished y the Supreme Court to confer Aurisdiction upon this courtP
$he inescapale conclusion is that various sources recogniBe the re&uirement that legal
responsiility for a ta, must e made y statute, and they all offer their favorite statute as the
authority# :t is a violation of due process if a ta,payer has to guess %hat la% ma!es him
responsile for a ta,# E>8? statute %hich either forids or re&uires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of la%#E Connally v Ieneral Construction
Co#, 262 US 3'*, 32) >)226?#
Jut the &uotation misses the real point# /e are not addressing a vague statute# $here is no Ostatute %hich re&uires
the doing of an act7 averred in the indictment as re&uired y due process# :t is manifestly ovious the petitioner
cannot violate :@C 7203# $he section readsG E8ny person re&uired under this title to pay any estimated ta, or ta,,
or re&uired y this title or y regulations made under authority thereof RE >emphasis added?
$he re&uirement is clearly outside 7203C the petitioner cannot violate 7203# :f the petitioner is
re&uired EunderLy this titleE, then the punishment of 7203 can e pursued y the prosecutor#
/hat la% EunderLy this titleE re&uiring the payment of a ta, has the petitioner violatedP $here is
no ans%er#
Concurrence that legal responsiility is ac!no%ledged to e outside 7203 is evidenced in the circuit court
opinions, Congressional @eport, and government %esites listed aove#
-ederal @ules of Criminal .rocedure, 7>c?>)? re&uires the indictment to Estate for each count the
official or customary citation of the statute, rule, regulation or other provision of la% %hich the
petitioner is alleged therein to have violated#E Criminal process must allege every essential
element of the offense# +vans v US, )*3 US *'(C "agner v US, 2'* US (27C "amling v US, ()'
US '7# 6otification of legal responsiility is Ethe first essential of due process of la%#E Connally
v Ieneral Construction Co#, 262 US 3'*, 32) >)226?# $he notification of legal responsiility Eor
other provision of la% %hich the petitioner is alleged therein to have violatedE is not found#
$he phrase Eas re&uired y la%E %ithin the indictment is a conclusion of la% that is unacceptale
in criminal process# :n Joyd v US, ))6 US 6)6 >)''6?, the court oserved the succinct statement
y 5ord CamdenG E:f it is la%, it %ill e found in the oo!sC if it is not to e found there, it is not
la%#E id 627# 8ll the :@S must do is cite their favorite statute#
/ithout a claim that the petitioner is legally responsile for a ta,, the petitioner has not een
notified of a legal duty# :f he is not charged %ith violating a legal duty, no crime has een
alleged# :f no crime is alleged, there is no case# :f there is no case, there is nothing for this court
to have Aurisdiction over# $he aove steps are the fundamental re&uirements of due process# :f
due process is not follo%ed, the court does not have Aurisdiction# E8 Audgment rendered in
violation of due process is void#E /orld /ide Hol!s%agen v /oodsen, ((( US 2'6, 22) >)2'0?C
6ational Jan! v /iley, )2* US 2*7 >)20(?C .ennoyer v 6eff, 2* US 7)( >)'7'?#
$he Supreme Court, in reversing a conviction, statedG E:t is eyond &uestion, of course, that a
conviction ased on a record lac!ing any relevant evidence as to a crucial element of the offense
charged violates due process#E Hachon v 6e% "ampshire, ()( US (7' >)273?# $he instant
application is not to mere evidence as in the Hachon caseC it is to accusing the petitioner of
violating a la%, and that accusation is never made# :t is inconceivale that there is a more 7crucial
element of the offense#7 /ithout a claim of a la%ful duty eing violated, there is no offense#
$he Supreme Court again reversed a conviction of a crime that %as not charged in the
indictment# E6o principle of procedural due process is more clearly estalished than that notice
of the specific charge, and a chance to e heard in a trial of the issues raised y that charge, if
desired, are among the constitutional rights of every accused in a criminal proceeding in all
courts, state or federal# :f, as the State Supreme Court held, petitioners %ere charged %ith a
violation of ) Fand convicted of 2M, it is doutful oth that the information fairly informed
them of that charge and that they sought to defend themselves against such a chargeC it is certain
that they %ere not tried for or found guilty of it# :t is as much a violation of due process to send
an accused to prison follo%ing conviction of a charge on %hich he %as never tried as it %ould e
to convict him upon a charge that %as never made#E Cole v 8r!ansas, 333 US )26, 20) >)2(7?,
citations omitted#
$he present situation is not of charging the petitioner under one statute and convicting him under
another as in the Cole caseC it is a situation of convicting him under an unidentified statute444of
Ea charge that %as never made#E $he :@S has not charged the petitioner %ith eing legally
responsile for an income ta,# $he present situation is precisely the e,ample envisioned y the
court as a most egregious violation of due process# .etitioner must e given ade&uate notice of
the offense charged against him and for %hich he is to e tried# Smith v ;7Irady, 3)2 US 322
>)2()?# EConviction upon a charge not made %ould e sheer denial of due process#E De 9onge v
;regon, 222 US 3*3, 362# >)237?#
/ould the lac! of a statute averring legal liaility constitute harmless errorP 8gain, let the
Supreme Court address the issue# :n Smith v US, 360 US ), the court held the -ifth 8mendment
right to an indictment for a capital offense, as restated in -ederal @ule of Criminal .rocedure
7>a?, could not e %aived y the petitioner and that a proceeding in violation of this
constitutional re&uirement negated the Aurisdiction of the court# >$he Supreme Court could not
have returned the case for a ne% trial if Aeopardy had attached in the first trial#? $he constitutional
right to e left alone unless charged %ith violating a la% >the essence of due process? is no less a
constitutional right than eing indicted for an infamous crime# :n fact, the Magna Charta7s
protection y Ela% of the landE>due process? predates the origin of the indictment#
/hile all legal theory and case history given herein focus on the asence of a la% %ithin the
indictment, a reflection on the history of the Magna Charta7s protection in the frame of the instant
application underscores %hy the procedure %as demanded y the Jarons so many years ago#
/ithout a re&uirement that the la% e cited to Austify the 1ing7s seiBure of the peasant7s goodies,
there can e no meaningful defense to aritrary confiscation under color of la%C the dispossessed
must carry the urden of proof to sho% the theft is illegal# $his reversal of our traditional
placement of the urden of proof is impossile to overcome# Due process re&uires the
government to affirmatively evidence their authority to ta,G E###Aurisdiction of the Courts of the
United States means a la% providing in terms of revenueC that is to say, a la% %hich is directly
traceale to the po%er granted to Congress y ', 8rticle :, of the Constitution 7to lay and collect
ta,es, duties, imposts, and e,cises#7 US v "ill, )23 US 6'), 6'6 >)''7?# :t is a violation of due
process to re&uire a petitioner to prove e,clusion from a ta,# Unitarian Church v 5os 8ngeles,
3*7 US *(*#
$o e denied the opportunity to present a defense to a >supposed? criminal charge is a reversion
to the araric days of the Salem >and continental? %itch trials and the :n&uisitions# $he :@S has
a lengthy and consistent trac! record of refusing to aver a la% that imposes an income ta, and
e,posing it to a challenge in court, and carrying the urden of proof, as re&uired y due process#
E###notice of the specific charge, and a chance to e heard in a trial of the issues raised y that
charge, if desired, are among the constitutional rights of every accused###E Cole v 8r!ansas, id
20)# :n reflecting on the Star Chamer proceedings, the Supreme Court &uoted 9# StephenG
E$here is something specially repugnant to Austice in using rules of practice in such a manner as
to >stop a petitioner? from defending himself, especially %hen the professed oAect of the rules so
used is to provide for his defense#E -aretta v# California, (22 U#S# '06, '224'23 >)27*?# $he
motive in the instant refusal y the :@S to allo% a defense may e even less meritoriousG to
e,pedite the efficient collection of ta,es#
Since the indictment failed to state an offense and a crime has not een charged, the Audgment
must e vacated and set aside# US v ;siemi, 2'0 -2d 3(( >)223?# 8 challenge to the Aurisdiction
of the court is not %aived y failure to raise the issue in trial court or on direct appeal# id 3(*#
6or is the challenge %aived y lac! of an appeal# -@Cr. )2>?>2?#
"aeas corpus %ill lie %here no offense has een committed# Strauss v US, *)6 -2d 2'0C
Martency v US, 2)6 -2d 760C @oinson v US, 3)3 -2d ')7C @oerts v US, 33) -2d *02C
Martyn v US, )76 -2d 602# 8n indictment that does not charge an offense can e discharged y
haeas corpus# @oerts v "unter, )(0 -2d 3'C Jroc! v "udspeth, ))) -2d ((7C /hite v 5evine,
(0 -2d *02# 5ac! of a valid indictment is cause for release y haeas corpus# +, parte Jain, )2)
US )C +, parte /ilson, ))( US ()7#
Fsigned and datedM