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UNITED STATES DISTRIcr CUJRT DISTRlcr OF NEW JERSEY - CAMDEN·

Martin A. Armstrong

! 1 1 !

~----------------------~-------

- v -

No:

----------------

D::.mna Zickefoose, Warden

PErITICN FOE A WRIT OF HABeAS CORPUS PURSUANT TO 28 USC §2241

FOR REFUSAL TO RELE!\SE ARMS'l'RCX>JG FROo1 AN

UNUSUAL PUNISHMENT DEFlNED AS A NONSTATU'IORY IMPRISCNMENT UNDER THE EIGHT AMmtMENr AND IN VIOLATICN OF 18 USC §4001 Ca) THAT DENIES THE BUREAU OF PRISOOS THE AUTIiORtTY

AND JURISDICl'ICN TO IMPRISON ANY CITIZEN WITHOUT CLEAR STA'IUTQRY AUTHORITY EXCLUSIVELY FROO CONGRESS IMPERMISSIBLY SHIFTING THE BURDEN OF PROOF

TO ARMSTRCNG TO PROVE A NmATIVE WHEN TIiE!RE IS AN AFFIRMATIVE DUTY TO PROVE THERE IS STATlJIDRY AOTHORIT':l EXCLUSIVELY

FR{M Gm.Y COOGRF.SS AND NOOE 0l'HER . BY 18 USC §3621(c}

I, Martin AA Armstrong (herein 'IArmstrongtt), respectfully 1lOV6 before this

Court for a Writ of Hateas Corpus pursuant to 28 usc §2241 against the warden Donna Zickefoose at FCI Fort Dix, PO Box: 38, Fort Dix, NJ 08640, for the refusal

to provide ilTi!ledia te release purs uant to 18 USC §3 585 ( b) .

JURISDICl'ICN

This Court has jurisdiction to grant the hal:eas corpus pursuant to 28 USC

§2241. BecaUEe Armstrong is pursuing this action against the. "execut ion" of the

criminal sentence of 5 years 'Whereas the Warden Zickefoose and the Bureau of Prisons

refuses arbitrarily to provide credit as directed by the ron-discretionary adtlinis-

trative duty to calculate the sentence pursuant to 18 USC §3585(b) for more than 7

years of official detention posti-Lndictmsnt; on facts that were clearly a "resut.t; or"

the same conduct charged in the indictment that also took place after the filing of

the criminal action for which no other credit has been provided, this court has the

jurisdiction over this ma.tter pursuant to Ruggtano v Reish, 307 F3d 121, 1]2 (3rd Cir

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2002) stating that the original "santanctnq court has no authority to award 'credit.' as that term is used in §3585(b). U Ibid. The sentencing court could not CCIII1I'T1e.11t on the "credit" for it had no jurisdiction to do so. Neverthelessl the sentencing court did provide full credit for $606 million paf.d as a criminal restitution by Republic National Bank and anything from the parallel civil actions toward a $80 million criminal restitution, holding that Armstrong thus owes nothing. It is illogical that Armstrong would be provided the full credit for all funds involved in the parallel civil action, yet the Attorney General, Warden Zickefoose and the Bureau of Prisons ("BOPIl) believes it has any discretion to deny credit for the time that was clearly a result of the charges pending in the criminal action in the SI::NY (99-Cr-997) ..

The Supreme. Court and the Sentencing Reform Act of 1984, have made it very

clear that the sentencing judge in a criminal case has EQ. jurisdiction whatsoever

to deny credit or run a detention consecutive to a criminal sentence in the holding of US v Wilson, 502 US 329 (1992} and in 18 USC §3585(b). The Third Circuit has so followed that the sentencing court; has no such jurisdiction whatsooverr RUggiaoo, 307 F3d at 132. Likewise, the Second Circuit also made it clear . that ucredit is rot to be granted by a district court at the t:ime of sentencing. tl US v Labei11e-Soto, 163 F3d 93, 99 {2d Cir 1998). Therefore, the. controlling law is that of the Third Circuit and not the Second Circuit in this matter I Ruggiano 1 307 F3d at 135-136 • Additionally, the SUpreme Court has recently h~ld that a filing of a Writ of Habeas Cbrpus pursuant to 28 USC §2241 , is a structural Right that cannot be. suspended even by Congress, see Boumediene v Busht 558 us - (2008), unlike a 28 USC §2255 that is really a motion in the ongoing criminal case allowing for relief of even reducing a sentence that is rot the. purpose of a §2241. consequently, jurisdiction squarely lies within this court, also since Armstrong will reside in Maple Shade, New Jersey, the sentencing court transferred the supervised release to the district where Armstrong shall be released which is this dist:r.ict as well. t_rhrllSfore~ this Court will also have jurisdiction over the Supervised ReleaseA-

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STATEMENI' OF THE CASE

AmlStrong hereby roves to incoq:orate a separate. memorandum of law providing

the historical background to the. case at bar, as if fully stated heredn,

Armstrong previously filed a habeas corpus against then Warden Jeff Grondolsky in camden District Court, 08-0569~ That was dismissed for failure to exhaust administrati ve remedies A Th9se remedies have now been exhausted and the BOP has refused

to comply with the plain language of the statute 18 USC §3585(b} ~ It has relied upon its Program stat.e.nEnt 5880.28 that simply 'makes a pOlicy statement that. it will never

provide credit for a civil contempt regardless of the facts. It is one thing if the

contempt. took place before a criminal case began and was vacated upon indictment as in Tankers ley v Fisher, :2 00 8 WL 275878 (ND Fla 2008), in contrast with the case at bar where, the contempt was imp:Jsed entirely pes t-indictment and was clearly both

a "resul.t; oft. the. charged offense and took place "after" the case mganl for which

no credit was provided toward any sentence.· At the very least, Armstrong is entitled

to an evidentiary hearing and discovery (grand jury mimltes) to establish that the contempt fits directly within the plain language of the statute §3585(b}. BOP Program sta teroent cannot be in.con.sistent with O!i statute & carries. ~ deference under <l1.evron

USA Inc v Natural ResouI:'oos r:e£ense Om1lC.il, Inc,_. 4.67 US 837 {1984}, see Strong v Schult~, 2009 WL 485287 * 7, n.3 (DNJ 2009); RenO v Roray, 515 US 50, 61 (199S).

EKhaustion of Administrative Remetiies

Armstrong began the Administrati ve r~dy proceas with a cop-out on June 2200,

2007 after arriving at Fort Dix camp on or about; June 1 st, 2007-: It to;;k some tirre

for the BOP to calculate the sentence and it denied as a matter of fOlicy following Program statement 5880 A 28 that affords no credi t whatsoever in any civil contempt regardlElss of the fact and in direct violation of the. plain language of 18 USC §3585(b} A Armstrong subuitted his EP-8 on August 28th, 2008. That was denied on Sptember 4th,

* ( Exhibi t l'O

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2008 signed by Counselor E .. Tolbert that It Per Program statement 5880.28, time spent

serving a civil contempt • ~.. does not consti tute presentence time credit toward the sentence that is "eventually tmposed," Armstrong then sutmitted the BP-9 to the

warden ilfG'OBdiately upon receipt dated September 4th, 2008. The Warden replied again simply stating Program statement 5880.28 "does not constitute •• ~ credit II for civil

"contempt dated September 24th~ 2008.

Armstrong then timely filed the BP-10 to the Reginal Director, Scott Dr.Xlrill, who responded on OCtober 28th, 2008. Again, the blanket fOliey was restated and

this time a reason TiJaS given:

"You are not entitled to any prior custody credit for the period you spent in civil contempt. The purpose of the C'i vi.I contempt detention is to compll compliance. wi th a court order ~ Awarding prior custody credit ~uld undermine the coerci.ve nature of the civil contempt citation. Your federal sentence is computed correctly. ACCOrdingly, your appeal as denied~ II

Armstrong once again raised that the Eighth Amendment and 18 USC §4001 (a) pointing out that the BOP was required constitutionally to show statutory authority for its refusal to provide - the credit~ When challenging r:01icy, the Exhaustion of Administrative Remedies is fruitless, for as this demonstrates, the BOP is incapable

of ever making a constitutional jUdgment regarding its own policies. The BP-11 to the National Inmate Appeals in washington was filed 11/6/08. A Reply is dated then December 18th, 2008 signed by Harrell Watts. It rehashes the. same refusal, the same

" Program Statement 5880.28, and states Hyou provide no new information in this rratter beyond which you supplied in your Request for Administrative Remedy at the Institutional and Regional Office lBvels." Armstrong tried "sending a cop-out to Har~y G. rappin dated l-'Ia.y 4th, 2009 ~ explaining the. uncon.stitutionali ty and informing him "that

the Program Statement 5880.28 Hconflicts with the law for it appears only you have

authori ty to overrule such a document. II No response 'ItI1aS ever recei ved, The EOP had previously insisted that the habeas be dismissed and Armstrong be compelled to then exhaust adritinistrative remedies knowing that when challenging policy and the validity

of a Program statement, it is black-letter la1;ll that "exhaustion would be futile, given

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that [Armstrong] [wa]s not challenging the application of the OOP regulations, but their validit.y." Woodall v Federal Bureau of Prisons, 4.32 F3d 235, 239 ,(3rd Cir 2005). Armstrong contends that the BOP acted in B2\D FArm wasting his time intentionally for once it decrees a. p:llicy in a Program Statement, the Administrative Remedy process is

not desi~ to afford constitutional review. This is why habeas corpus challenging the ~lidity of the "fact or duration" of such imprisonment, was to te axempt from

the Administrative Process, 18 USC §3626(g}(2). The BOP has cleverly found a way to

now arbitrarily imprison a citizen producing no corrunitment order in violation of 18

usc §3621 (c), and to imprison them far bayond the statutory authodty that is just impermissible under 18 USC §3 fi 21 (a ). This violates roth 1 8 usc §4 00 1 (a) and the

Eighth Amendment presuming discretion to imprison citizens when in fact under the

principles of a Free Democratic Society and the Separation of .I?oIers, not even the "Lc lourza may .•• ·prescrib[e.) greater punishment than the legislature intended~" Rutledge v USI 517 US 292, 297 (1996). Armstrong was sentenced to the statutory maximum of 5 years. The. BOP must have statutory authority to deny credit for 18 USC §3585(b) does not state in its plain language, "civi.I contempt is excluded~ 11

"Proqrem Stateroonts are not entitled to Cbevron deferenCe ~ •• because they are not 'subject to the rigors of the [APAJ, including public notice and corment., 11

Strong v Schultz, 2009 WL 485287, p7 FN3 (D NJ)

BOP HAS THREE REGUIATICNS WCERNING CIVIL CONTEMPT ALL OF WHICH ARE INcn;rSISTENr WITH 18 USC §3585(b) AND THE FEDERALCCNSTITUTICNAL MANDATING RELIEF

The BOP has praro.ulated three. regulations all of which are entirely unconstitutional and are inconsistent With 18 usc §3585(b) and the Sentencing Reform Act of 1984 as well as 18 USC §4001 (a), its own regulation 1 8 USC §3 6 21 { a} ; (c), presentdnq a nonstatuto:ry imprisonment that constitutes an ''unusual Ptmishment't as defined by the Supreme Court as a violation of the Eighth Arnendnent by imprisoning citizens

under a presumption of discretion that does not exist absent statutory authority.

The Defendant Warden Zicke.foose and other BOP members.1 have completely misconstrued

even what constitutes a civil contempt and have acted entirely arb itrari1 y ...

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The Regional Director, D. Scott !):)drill, detronstratea his lack of understanding of civil contempt CClIllp3red to criminal contempt mixing the two as if they were one

and the same. Herein lies the problem, for the BOl? states very clearly that as a

matter of pol.Ley in Program Statement 5880.28, it simply Will. ~ credit a civil contempt regardless of the facts of the case. Mr. Dodrill is providing the BOP view

that should credit ever J::e given, it '\Kluld undermine the coercive nature of the

civil contempt citation.1I sa.] reply of D .. Scott Dodrill (Exhibit N). This obviously

now oonstructi vel y amends a civil contempt into a criminal contempt for the difference

is that civil contempt is re.ri'Jeldial and for the t:enefit of a party having nothing to do w.i.th the vindication of the inherent power of the court. criminal contempt remains

the inherent power of contempt and that is to vindicate" the power of the. court. The BOP

canoot now altar the. purpose of the contempt and refuse to provide such credit. It. clearly does "not understand that "contempt;" is not all the Satre.

The Supreme Court and Judge Posner have written on this subject distinguishing civil contempt that is purely an equitable remedy and that means it can NEVER l::e used

to trump legal rights §16 Jtrli.clary Act of 1789. In fact, all equitable rem2dies are confined to the. knoM1 lJ5ages at the time of 1189, Grupe Mexieaoo V Alliance Bond Fund, 527 US 308, 318-19 {1999) ~ The "Constitution is not self-destructive.u Billings v US,

232 US 261 (1914) Citing: McCray v US, 195 US 27 (19D4). It cannot on the one hand establish rights and restriction upon the power of the go'Verllment, and then with the

other hand claim equity can override all rightsf privileges and irrmunities by sheer

desire ~ IlCourtS of equity can no more di sregard ••• constitutional requirements ....

than can courts of law. U INS v Pangilinan, 486 us 875, 883 (1988). Civil contempt is

IIremedialf and coercive ••• and the p;u'ties chiefly in interest •.• are the indiViduals

~1hose private. rights and remedies they were instituted to protect or enforce." Bessett

v W ~ B. Conkey Co t 1 94 US 324 t 328 {1 904).. The seminal case on the subj act s ta tea:

II If it is fat' civil contempt the punishment is remedial, and for the l:enefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court .. " Ganpers v Bucks Stove & R;tnge CO, 221 US 418, 441 (1911)

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Judge Posner delivared a seminal and highly authoritative decision on civil contempt showing it is n:>t even the inherent power of courts, but purely just an equi table remedy. This ~ns that the EOP inte:r:-pretation is contrary to the well established law in this nationA

ttRather than being an inherent power of all courts; civil contempt •• A is sti 11 an equity procedure ..• II

Matter of Grand Jury Proceedings Fnrp:melled May 1988, 894 F2d 881, 884 {7th Cir 1989}

Even Justice Scalia drives this point home very distinctly, that civil contempt

is by no means the. inherent. power of any court ,

nprosecutioos of individuals who disregard court orders (except orders necessary to protect the courtis ' ability to function)

is not an exercise of. ' [tJhe judicial p?Wer of the united states. n

Young v US ex reI VUitton, 491 US 7871 815 (1987) (J.Scalia concurring)

The BOP is entirely confused tet~en civil and criminal contempt and their view

expressed in Program Statements is simply wrong and contrary to law. Even where a di.sttict court had thrown a citizen in civil contempt and refused to allow him. to access the court in the case in chief unt.t.I the contempt was purged, the Supreme

Court reversed rrsking it very clear this is no inherent power.

IIIf such au th ori ty exists, then, in consequence of their establishment, to compel obedience. to la\ll, ana. to en£orce justice, courts possess

the right to inflict the very wrongs which' they were created to prevent. II

Hovey v Elliott, 167 US 409, 417-1B (1897)

The BOP is doing precisely the same thing with no statutory authority at all.

It cannot refuse to provide credit for more than 7 years of official detention that allows it, at its own discretion, to imprison Armstrong for 12 years with statutory

authority only for 5 years. At COOf'!'IOn law, equity could never invade a criminal case

nor can it be used to imprison someone for refusing to pay a judgment. That (Xl"WeJ:;' of

debtors prison was also eliminated by 28 USC §2007 and contempt cannot be used as

a substitute to reestablish debtors prison that Chief Justica Marshall held was an

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impermissible assumption of p::JWer under the Constitution. He made that very

clear stating:

liTo puni.sh honest insol veney, by Irepr isornnent for Ii fe, and to make this a constitutional principle, would be an axcess of inhumanity, which will not readily be imputed to the illistrious patriots who framed our constitution, nor to the peort1e who adopted it. n

Sturges v Crowninshield, 17 US 122, 200 (1819)

Congress then enacted 28 USC §2007 stripping courts of equitable ~s to imprison cl ti~s indefinitely for refusing to pay judgments, subordinating that

power to state law, and it has been well settled that this cannot; be recreated

by changing the Labe], calling ita contempt instead of Clebtor ·.5 prison.

"~ an order made in the progress of the cause is of the character in substance of a judgment of decree for the payment of money I it cannot be enforced upon the theory that di.sobedfence is a conterrpt', 'T

Mallory v Mfg 00 v Fox, 20 F 409 (2d Cir 1894)

The BOP Program Stateltent 51406 2Ff erroneously claims that civil contempt can

be imposed by either using 28 USC §1826 the civil contempt statute, or 18 USC §401

the criminal contempt statute whenever a court wishes to exceed the 18 rronth statutory maximum. That proposition is absurd, for it muld nullify §1826 if it can

j U5t be ignored. There.. are major contsitutional problems with this amazing interpretation, for first of all, the Supreme Court has already held that the same statute cannot be used differently in a civil and criminal context.

11 [ I J f a s ta tute has criminal applications, • the rule of lenity applies' to the Court "s interpretation of the statute •• 6 I Ib]ecause we . must interpret the statute consistently whether we encounter its application in a criminal or noncriminal context 6 "

Cl&rk v Martinez, 543 US 371, 160 Led2d 734, 746 (2005)

Criminal contempt under 18 USC §40 1 is a misdemeanor, not a felony 1 US v GaLmta, 298 F2d 11 (2d Cir 1 962). Thi sis supp:>rted by the Gui de Ii ne. in the criminal his tory USSG §4A1.2(c}(1}~ Therefore, being a misdemeanor, this statute does not authorize

imprisonment beyond 1 year, which is the limitation in all misdemeanot's 18 usc §3559~

*(EXhibit Zb).

To exceed 6 months under §401, there must be a trial by jury r Cheff v Sc..!:l!2e..ckenmrc.v

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384 US 373 (1966); Bloom v Illinois, 391 US 194 (1968). Therefore, the BOP is constitutionally incorrect assuming it can use §401 to justify 7 years of any imprisonment without trial by jury. Civil contempt is limi tea to 18 months, and

deli~~ately refusing to comply with a court order is purely a misdemeanor, see

18 USC §i 509. Ellen in the Judiciary Act of 1789, civil contempt was authorized

only during trial of Witnesses par §33 that could never extend l::eyond the life of

the proceeding Leman v Krentler Arnold-Ring Last, 284 US 448 (1932) • Civil contempt is solely for the OOi1efit of the parties, and cannot exceed the life of the proceeding to which the SEr:, CFTC, and US Attorney agreed in the civil proceeding in New

York. Only criminal contempt, which is the inherent ~, is separate and is l::e.tween

the contemnor and the court.

Furthermore, the reform of the contempt in 1831 that gave rise to §..tOl, altered

§17 of the Judiciary Act of 1789, limiting the exercise of that ~r to direct contempts that were geographically restricted to the courtroom or near there to. It did not revise. §9 of the. Judiciary Act of 1789 that prohibited impt'isanment greater than 6 nnnths. Therefore, §401 must still be read in light of §9 and it must be read in light of 18 USC §1503. The ntwo statutes should be interpreted pari passu. II vs v Crisp?, 306 F.3d 71, 79 (2d Cir 2002); quiting Northcross v Ed of Ed". .412 US 427, 428 (1973) (per curiam). When COngress enacted §40l, there were two sactdons to the Act.

However I it made that distinction between direct and indirect contempts. To create

a contempt under §401, it must be direct and it must arrount to an obstruction of

j usHee that cannot be used to di.spl.ace another statute. Where the contempt is not

direct, as in the case. at bar, then there must be a trial by jury. The BOP is seriously

confused regarding contem~ts.

UCongress affi~ the power of courts to use summary contempt proceedings to punish mi sbehavi.or that occuired in the presence of or near to the court i tself ~ ~.. The second section, now [18 USC] §1503 provided that all oUter conternpts, or those that occurred outside of the presence of the court, could only be punished by indicbnent and trial A U

US v CrisE2, 306 F3d 71, 79 (2d Cir 2002); citing Nye v NY, 313 US 33, 44-49 (1941)

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As the cri Spo Court IIE..de very clear, .! I i.J n terms of the conduct covered,

the principal difference between the first and seccnd sections was geographical;

one covered misbehavior that occurred near to of in the presence of the court, and

the other controlled misl:ehavior that occurred away from the court., IT Id~ /306 F3d at

79. For this reason, Program statement 5140.28 is tatent1y unconstitutional for

it cannot apply to a civil contempt using 18 USC §401, which t;:ertains only to a direct contempt that is geographical, andcanrl)t exceed 1 year for it is only a misdemeanor as is the case with 18 USC §1509 that states 1 year for violating a court

order A

1 8 USC §1509 Obstruction of court orders

Whoever, by threats of force, willfully prevents, obst.ructa, i.rnp3desl or interferes with, or willfully attempts to prevent, obstruct, impede, or interfere with, the due exercise of rights

or the performance. of duties under any order I judgment, or decree of a court of the United States, shall be fined under this title or imprisoned not ~e than one year, or roth.

Additionall y, contempt. cannot be used in place a criminal statute, Armstrong

was criminally indicted even for money laundering that was the precise object of the contempt and the. contempt was included in the indictment as an enhancement for

obstruction of justice that the OS Attorney Office even conceded that the contempt was an integral part of the indictment (Exhibit F) ~ Contempts undar §401 must be

direct and must constitute. an obstruction of justice to bs a contempt. one cannot

cs held in contempt for example for:: perjury on the. theory this obstructed justice,

In re Michael, 326 US 224, 228 (1945). The reason why TREisoN is defined in Article III is because of such an expansive interpretation of the. former king that to violate

any law was to ccmni t; treason against the king~ The BOP believes to violate any order amounts to a contempt. That is an abuse of the contempt J;X)WeT.

H [Courts] must 00 ever mindful of the danger of permitting punishment by contempt to be Imposed for conduct TJruch is identical with an offense defined and made punishable. by statute."

US v United Mine Wor~~s of America, 330 US 258, 333 (1947)

Contempts are not felonies and are not even wi thin the same 5 year statute of

limitations. They must be brought only within 1 year, not five pursuant to 18 me §328S. 11

THE BOP REGULATICN 28 em. §522. 1 3 IS UNO.::NSTIWTIOOAL

FOR IT SUA. SPCNTE ALTERED THE LAW REGARDING CIVIL a::M:'EMPrS AND CREDIT TOIilARD A CRIMINAL SENTENCE 'mAT WAS lNCONSISl'ENT WI'lH THE SFmENClNG REFORM Acr OF 1984 CREA.TING AN IMPOSSIBILITY

10 EVER OBTAIN CREDIT UNDER 18 USC §3585(b)

The BOP has admitted in its ~ regulations that P.!ior to the Sentencing Guide-Lines in 1987 f the presunptlon was that a civil contempt ran ooncm:.-rent to-a criminal sentence unless the sentencing judge stated otherwise, 28 CFR §522. 13. The BOP had

sua sponte altered that pt"esumption with the Guidelines reversing the presumption to

consecutive unless the judge stated ot.hel:wise §52.2. 13(b). Thisr howeverT is patently unconstitutional and inconsisten.t wi,th the Sentencing Reform Act of 1984 that renoved

ffi':pre.ssly any such jurisdiction for a judge to run a lIdetentionrl consecutively under

18 USC §3585 (b), retaining the power to ztm onl_x multiple te.nns of .imprisonment consecutive under 18 usc §3584(a) that is defined using "imprisonment" as a criminal penalty

whereas a Tldete.i·"1tionTi can be a civil contempt., denial of bail, or a materh.l witness,

all are considered non punitive and regulatory, US v Morales-Alejo, 193 F3d 1102, 1105 (9th eir 1999). Since §3585(b) bars judges, the OOP made all contempt.s now criminal.

. -

28 CPR §522. 13 Relationship between existing civil contanpt ccmni bnent orders and new criminaJ. sentences imp:Ised under the U. s. or D~C CCde.

( a) Excel?t as stated in (b) T if a civil con temt't crmmi tment order i.s in effect when a criminal sente.."1ce o£ imorisonrnent is dmposed under the U. S. or D. c. Code, the criminal ~ sentence runs consecutively to t.he ccmmi.bnent order , unless the. sentenciI'!g judge orders otherwise~

{b) For federal C3:'iminal sentences. ~sed far offenses ccmni. tted before November 1, .1987, under i 8 0' •. S • C. Chapter 227; If a civil contempt ccmmi trrenr; order is in effe.ct when a criminal sentence of iI'l1prisament is .irnposad, the criminal sentence runs concurrent with the commitment order, unless the sentencing judge orders otherwise.

It is crystal clear that the Sentencing Reform Act of 1984 fundamentally al tered

hm e a sentence was to l::e Imposed, It rerroved all discretion from denying any credit

for a detention that was the result of or- tClOk place after the case eegins for which

, .

no credi t was gi ven, In removing the discretion fran the .sentencing judge, it did rot:

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simply hand discretion to the BOP or the Attorney General to act arbitrarily. In fact, the Attamey General/BOP and Warden Zick;efoose are all expressly and quite distinctly forbidden to imprison anyone without statutory authority fr.om only Congress. This is specifically stated in 18 DSC §4001 (a) that ''No citizen shall be imprisoned or otherwise detained by the United states except pursuant to an Act. of Congressl' Without any doubt whatsoever, Warden ZickefOOse cannot imprison Armstrong by denying him "credt.t;" under 18 USC §3585(b) r for this provides . .!!2. authority to in

fact imprison anyone by itself r it requires a separate. ' -, statute

authorizing such a

. denial. Hencel the plain language conb:ols and the Supreme Court has made. it perfectly clear that there can be 00 car.;ing out of exceptions any more than what was done in

crack cocaine for when a "statute says nothing about. the appropriate sentences within these brackets, ~ .. we decline to read any implicit directive into that congressional

silence A II Kimbrough v US; 552 US - , Slip at 14 (2007). Henoe , there Ls nothing in the plain language that states "except civil contiempt;" and thus aa long as it fj_ts either cri teria, credit MIJST be provided without a showing of separate statutory authori ty

to the contrary A "We do not lightly assume that Congress has ami tted from its adopted text requirement that it nonetheless intends to, apply ..• II Jama v Irrmi_9Eation & Custcms

Enforcement, 543 US 335, 341 (2005).

t 8: USC §.J585 calGulatl6n of a tean of impri.soment

.. .

(b) Ccedi~ .: foc. pg:.o~ custcdy. - .Adefendant shall ~ given credit ·tor..Jard . the service o£ a term of imprisoI1fIloant for any time he has apent; in official detention prior to the da te. the sentence o::mnences -

(n at'k result of the offe.nse for which the sentence was· inlPJSed; Or

. . ~

(2) as a resut.t; ·of any other charge for which the defendant was arreSted after the ccemtsaton of the offense foe

ehlch . the· sent~ce was imposed;· ~ .

that has not teen .~ted against another. senteI1C€:~

The Supreme Court has dealt wi th this statute previously and held that sentencing

judges were de~ived of jurisdiction to rtm ~ dabent.i.on consecutive and that Congress broadened the scope of credit in 1984 and gave no discretion to the BOP whatsoever ~

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"Undar the new law, a defendant may receive credit roth for this time [related to th~ offense] and for time Spent in official detention in connection with- any other charge for 'Which the defendant was arrested after the ccrrmission of the of tense for which the sentence was imposed~ n

us v Wilson, 502 us 329, 117 Led2d 593, 602 (1992)

Indeed, the. Supreme Court made it very clear that AJ:mstrong has a vest.ad right

in the credit established by the Sentencing Reform Act that the OOP has refused to

comply with_

"Because the offender has a right to certain jail-time credit under §3585 {b) . wo the Attorney General has no choice but to make .·the detennination as an administrative matter when imprisoning the defendan t . II

Wilsonl 117 Led2d at 601

The use of the word "sba.l l" in BOP statutes is a "discretiooless obligation"

Lopez v Davis, 531 US 230, 148 Led2d 635~ 646 (2001). The statute clearly states that credi t shall. be. provided for ~f any ti.Ire he has spent in official detention prior to the date the sentence COJJIIetlC8S~ II §3585{b}. The only discretion to run anyt:hi.nq consecutive. involves multiple criminal penal ties~'

18 USC §3584 Multiple sen~ of imprisomwant

(a) Imp:Jsition of concm:rent or consecuti VB t:erms

If mUltiple terms of imprisonment are imposed on a defendant at the same time, or if a term of im[:lrisonment is imposed on a defendant

who is already subject to an undischarged term·of ~~isonment, the terms may run concurrently or consecutively, except that the terms may not run Consecutively for an attempt and for another offense. that was the sole object of the attem~L Multiple terms of imprisonment .imposed at the same ti..me run concurrently unless the court orders' or the statute manda tes that the terms are. to run consecutdve iy , Multiple tarrns of imprisonment imI;OSed at diffeJ;ent times run consecutively unless the: court orders that the

terms are to :r.un concurren tl y •

Even under this statute, there is no discretion handed to the BOP

under §3584(a), for this is pure Ly the discretion of the sentencing court. In the caS€: at bar, there is no disputa that Armstrong is under §3585(b) and thus here we have m discretion given to either the sentencing court or to the Attorney General. Armstrong is thus entitled to the "credi.t." by the 00£1 lacking any statute under which they can

point, to as statutory a;uthotity for the denial to comply with §4001 (a).

14

LEG!S[J\TIVE HlS'IORY OF 'mE EVOWI'IOO OF 18 USC §3585 (b) '!'HAT SINCE 1934 CONGRESS HAS REPEATEDLY EXPANDED WE SOJPE OF CREDIT BECAUSE IT IS UNCONSTITUTIONAL TO SIMPLY THROO CITIZENS m l?RISCN WITH NO CREDIT

TCmARD A CRIMINAL SENTENCE FOR THAT wcm.D ALI.aV mJRTS & THE BOP TO EXCEED THE STA'lUroRY MAXIMUM CREATING AN INJSUAL PUNISHMENT rn VIOLATIOO OF THE EIGHTH AMENrMENT

There has baen an ongoing expansion of this line of statutes directing the

Attorney Gerlsral to provide credit to those pending criminal sentences. In 1934,

the statue 18 USC §709 (a) required the Attorney General to provide credit toward

a criminal s~ntence for any time. a prisoner waited in transit before arriVing at

the place he was designated. The Attorney General was refusing to provide such credit

until the prisoner reached hi s des igna tionj us V Liddy, 51 0 F2d 669, 674 (DC Cir 1974)

(En Bane). : ~l

The next trick was to refuse to provide credit for the t..ima 'spent in pretrial confinement. This created a serious Eqllal Protect..i.al problem whereas those who could

not afford bail,· were nade to serve· longer periods of time in prf.son. Thus, in the 19605 ~ Congress· enacted 18 USC §3 5 68 that commanded the Attorney GeTlE;'lral was to nO\'II

provide credit for "any days spent in custody in connection with the offense or acts for which the sentence was Impcsed;" This clearly then applied to pretrial confinement

tiJat the Attorney General was then refusing to recognize~ This was the statute. that

WElS replaced by §35 85 (b) as part; of the Sentencing RefOI1l1 Act of 1984. The Supremg court explained that Cbngress expanded the scope. for it states very clearly that pursuant to §3585(b} "{u Inder' the. T'lE':W law, a defendant; may receive credit both for

this time" that was related to the offense as a "rasulf of" the conduct of the case·

or ~ other time "for which the defendant was arrested after the commission of the offense for which the sentence was Imposed;" Wilson~ 117 Led2d at 602~ ConseguentlYt §3585{b) revised this entire line of statutes and mace. it cover now "any" time. and

this was a clear expansion that includes even civil contempt if it wa.s a "result of"

the. crirrdna.l charges or was Imposed after the case began. Armstrong fits roth of

these criteria.

15

It is abundantly clear. that the interpretation of within BOP statutes imposes

a "discretionless· obligation" Lopez, 148 r.ed2d at 646, and the fIKl-rd "any" must now mean

the same as in §4001 (a) wher-e it has :been held to "proscrib[e] detention of any k.ini u. II Howe v Smith 1 452 US 473, 479 n, 3 {1 981 ). ~'where the statutory language provides a clear answer 1 it ends there as well. 'I Hughes Aircraft Co v Jacobson, 525 US 432, 438 (1999}. "Due Process bars courts from. applying a novel construction of a criminal statute ••. II

US v Lanier, 520 US 259, 266 (1997}. H[W]hen a statute limits a thing to be done in a part.Lcul.ar mode, it includes a negative of any other rnOOe., U Christensen v Harris Countr~

529 US 576, 583 (2000).

TIiE SENTElirCD1G REFOOM ACI! MUST BE RE!'ID IN rrs ENTI:REI"i FOR NO INTERPRETATlOO OF A SINGLE CLAUSE CAN BE rn~SISm:rr lUTH THE ENI'IRE ACI} SO THAT IT NULLIFIES OTHER CLAUSES

fI [It is a] longstanding canon of statutory oonstruction that terms in a statute should not be construed so as to render any any provision of that statute meaningless or sUferfluous.11

Beck v Prupis, 529 US 494, 506 (2000)

Therefore, it is unguestionable that §3585(b} must J::e read in light of the entire Sentencing Reform Act of 1984. This means that the only discretion to run anything consecutive is confined to multiple terms of imprisol1l'OOI1t that COngress uses distinctly', the term "imprisonmenttr to reflect a criminal penalty whereas it uses the word udetainll to reflect a non-criminal p&nalty such as civil contempt,

denial of mil periding trial, or a material wi mess under 18 USC §3144 . clearly, the

term "Imorf.sonment;" is used to define a criminal penalty. This is part of the.

sentencing RefOl1'l'l Act of 1984 and is. found defined 1 B USC §41 01 (b) stating the

term It! impr isooment I means a r.enal t y, n and 18 USC §4 i 01 (h ) states a ru sen renee. I

means not only the penalty imposed but also the judgment of conviction ••. II Ne

find the plain language at 18 USC §3581 (a} stating "A defendant who has been found

guilty of an offense may ba sentenced to a term of imprisonment. U It doos not say

may be detaine.d. Likewise, 18 USC §3559 (a.) provides for the classification of aU

offenses accordtnq to the "maximum term of imprisonment authorized ••• "

16

Indeed, it is also clearly set forth by Congress in its statutory command to the

BOP t that it is confined to n [t JOO implementation ·of a sentence of imprisonment [that] is governed by the provisions of subchapter C of chapter 229 ._ II There is nothing in

that Chapter that award the BOP or Attorney General to assume discretion that was in fact rerroved from the sentencing jud~. The credi t wi thin the plain language of 18

USC §356S (b) cannot be denied. As the Suprene Court made clear, "the offender has

a right to ~t.ain jail-time credit under §3585(b) [and]. ~. the Attorney General has . no choice but to make the Cletermination as an administrative ma.tter when imprisoning. the defendant." us V Wilson, 502 US 329, 117 l.ed2d 593, 601 (1992).

This is purely an aCbnin:lstrative act with no discretion. Warden Zickefoose is conrr;:elled as a matter of law, to ·take an affirmative position to ensure that she is in full compliance. with her oath of office and the Cbnstitution~ 11 [TJhe spirit as well as the letter of a statute must l:::e respected~ n Durous sea u v US, 10 tIS 307 (181 0 ) (Chief Justice Marshall). t'[W)hen terms [of a statute] are. unambiguous we may not

speculate on probabilities of intention. n Bruner v Us, 343 US 112, 116 (195 2) ~ Thus the plain language of §3585 (b) that affords !B. exception for ci vi! contempt, must 1100 regarded as conc.Iuatva, II US v Turkette, 452 US 576, 580 (1981) ~ Just as "{Ll f

that provision is to l::e changedr it should m by Congress and not by this Court, tt US v James, 478 US 597, 612 (1 ~86), then neither may the BOP or any of its staff.

resume an interpretation that is contrary to the plain Lanqnaqe of the statute.

Since. this is a pena.L statute, and lIambiguity • ~. should be resolved in favor of

lenity~ Ir Rew!-s--v ·US, 401 US 308, 312 (1971) .. Therefore, the application of §3585(b)

'and its blanket policy of excluding civil contempt, is unconstitutional as appl.Led,

Snyder v Mass, 291 US 97, 115-116 (1934).

It is crystal clear that the only reroa:ining discretion is to run multiple terms of imprisonment consecutive under §]584(a)~ whereas non-criminal penalties suoh as civil contempt, denial of bail, or even a material wi mess §3144, are NOr criminal

offenses and CANNOr be itrip:}SeO. under §3584{ a) without nullifying §3585{b). The Ninth

Circuit revieTNed this distinction tet~ "imr;n-isonmentU and a "detentaon" & concurred. 17

"congress uses the terms 1 imprisomrent I and I detention' very differently in federal criminal statutes. The term I imprisonment I consistently is used to refer to a penalty or: sentence. see e.g. 18 U.S.C. §3559 (using the term imprisonment as meaning sentence after conViction); 18 D.S.C. §3581 (same); 18 U.S.C. §4101(b) (referring to imprisonment in the context of transfers to foreign countries and defining imprisonment as

I a pmalty imposed by a court under which the individual is confined to an institution I ). In contrast, the term 'detention' is used to descrioo a mechanism to insure a defendant I s appearance and the safety of the community. See e.g. 1 B V.S.C. §3142(c) pretrial detention in order to insure appearance for legal proceedings or the safety of the ccrrmnmity}; United states v. Salerno, .481 U.S. 7391 748, 107 set 2095 ••• (1987) (characterizing the statutes authorizing pretrial detention as regulatory in nature}. U

us v Morales-Alejo, 193 F3d 1102, 1105 (9th Cir 1999)

It is thus quite explicit that the terms uimprisorntlPJltH and "detain't are used

to distinguish be~n criminal and non-criminal deprivations of liberty. Therefore, there is !!! discretion afforded under §3585(b) to run·the civil contempt consecutive to the 5 year criminal sentence for that wuld allow for the executive to arbitrarily on its own to simply imprison citizens far beyond the statutory IMXimum creating nonstatutory punishments.

THE EIGHTH AMENrMENT PROOIBITS NCNSTATlJ'roRY IMPRISCNMENTS UNDER THE ASSUMPl'IOO' OF DISCRErIOO

THAT PRESENrS A STRUcrtJRAL ERROR UNDER THE SEPARATION OF PCWERE

There can be. 00 dispute under the se~tion of Powers that since constitu~

tionally all "Ic lourta may not 'prescrib[eJ greater punishment than the legislature intended, It Rutledge v US, 517 US 292, 297 ( 1 996), it goes without question, that certainly neither may the BOP, Attorney General, or the Warden Zickefoose. This is

expressly prohibited as an UNUSUAL PONISHMENT prohibited by the Eighth AmenamEmt.

U[B]ecause it is lout of [the Judge 'sJ ~, I 'contrary to law and ancient practice,' without 'Precedents t or 'express law to warrant,' 'unusual,' • illegal,' or imposed by 'Pretence to a discre.tionary

PoWer. I ft

Harmelin v Michigan, 501 US 957, 973-74 (1991)

There must be statutory authority to justify the exclusion of civil contempt from §3585(b). Unless COngress authordzas such imprisonmentr then there can l::e no

denia.l. Civil contempt does not vindicate the p::rwer of courts. It is merely equity. 18

mE N(lIl' -DEI'ENTIOO ACr 18 USC §400 1 (a)

PROHIBITS THE BOP FRCM IMPRISCNING ANY CITIZEN WITHOOT STATU'IDRY AU'l'HORITY RECmRING AN EXPRESS STATtJI'E TO DENY ANY CREDIT Wl1EN , 8 usc §35B5 (b) DOES NOT PROVIDE STATUIORY AUTHORITY TO IMPRlSCN ANYONE NO LESS ARMSTRONG

Without doubt, COngress enacted 18 USC §4001 (a) expressly prohibiting courts

or the executive fran imprisoning or detaining any citizen absent statuto:r:y r;:ower exclusively from Congress. They distinguished both "impriSOM1ene' and "detentfon"

to prevent any playing with l.at:els between the boc.I.

18 USC §4001(a)

No citizen shall be imprisoned or otherwise. detained by the Um ted States except pursuant to an Act of (bngress~

This statute is clearly a codification of the Eighth Amendment that prohibits

the iITlJ:X>Sing of an "unusual, punishmene' that is defined as n contrary to law" or

some:thing Irnposed under the UPretense to a discretionary Power" tha.t Congress did not

1:estow upon either the sentencing court or the Attorney General under §3585(b). The Supreme (burt has already held that this statute "prcscrf.bfes l detention of any kind by the United States. n Howe V Smith, 452 US 473, 479 n.3 (1981) (emphasis in original)".

HFor a number or reasons, the prohibition within §4001 (a) has to be read broadly to accord the statute a long reach and to i..mp::lse a burden of justification on the Government. H

Hamill v Rumsfeld~ 542 US 507 (2004) (J • Souter concurring)

Nhen read in conjunction with the governing statute regarding the authority to Imprf son directed at the BOP, this Imposes an affirmative duty, which the BOP has argued that so.rnehow the Prison Litigation Refoon Act (HPLRA") relieves them of all

Qthe~ statutory obligations A This is plainly incnnsistent with Congressional intent. Congress in enacting the PLRA, did not relieve, the BOP of all other statutory ccmmands , Yet in the instant ease, it has I:'efused to produce a cc.mmibnent order when it was rolling the civil contempt in 18 month intervals ( Exhibit G) ~ There ~ be

a com:nitment order showing the statutory authority for each roll when 28 USC §1 B26 authorize.s a single 18 month term that many not be exceeded.

19

18 USC §3621 (c) Dali very of order of coomi trnent. ~

When a prisoner, pursuant to a court order, is placed in the custody of a parson in charge of a penal or correctional facility, a copy of the order shall J::e delivered to such person as evidence

of this authority to hold the prisoner, and the original order, with the return endorsed thereon, shall be returned to the court that issued it.

'!'here is no such copy of an order and the roP rolled the civil contempt in

T 8 month intervals wi thaut court orders and has declined to produce such orders for each roll of the contempL Armstrong contends the OOP knew what they were doing was illegal undar 28 USC §1826 that is the only statute that authorizes a

civil contempt .with a statutory maximum of one time for 18 months. The only such

case authorizing indefinite civil contempt was limited to a "Witness tray be con-

fined unti 1 compliance A" Shi Ili tani v US r 384 US 364 f 370 (1 966 }. However, it was this dictun that outraged Congress and reacted who then axpressl y passed 28 USC §1826 overruling Shillitani. by name in the legislative history where it was said

t'if that was the law, then • ~. it ought to be changed." In re Andrews, 469 FSupp 171,

175. (ED Mich 1979) (re.viewing le.gislati ve history of §1826) A The EOP is CNLY authorized

to imprison citizens until the term of the imprisooomt has expired. In the instant

case, the 8)P is attempting to imprison .Armstrong for 12 years with only statutory authority for 5 years under 18 USC §371, and assumes discretion it does not have under §3585(b) that by itself is Nor statutory authority to imprison citizens. The BOP must still produce a statutory authority ana a COIlTTIibnent· order to refuse. to

release Armstrong forthwith.

1 B USC §3 6 21 Impr isonrnen t of a corrvi cted person

(a) Commitment to custody of Bureau of Prisons. - A person who has baen sentenced to a term of imprisol"'lJ"l'eIlt pursuant to the provisions of subchapter D of chapter 227 shall be Cc::mnitted to. the custody of the Bureau of Prisons until the expiration of the·term Imposed, or until earlier released for statisfactory behavior pursuant to the provisions of section 3624.

Just as in the crack cocaine issue, when a statute does [Jot authorize a psnal ty,

there is NO authority to create excspt.Icns to the plain language, Kimbmugh v US, 552

us - , Slip at 14 (2007). There is oothing in §35B5 (b) that etatE'!S "except civil con-

20

tempt. II Therefore, courts "do not lightly assume that Congr:ess has omitted from

its adopted text requirement that it nonetheless intends to apply." Jama v lfmligration & CUstoms Enforcement, 543 US 335, 341 (2005}A

Furthermore, aside from the fact that the BOP can show no statutory authority

to justify its refusal to credit Armstrong for more than 7 years of c1 vi.I contempt

imposed entirely post-indictment AFTER the criminal case. began and was even part of the superseding indictment that was dropped at sentencing, the BOP has three

regulations that are all dispositive to its own position. First, 28 CFR §522.13

concedes that ciVil contempt pre-Sentencing Guidelines was presumptively to be run "concurrently' unless the sentencing judge stated otherwise, and it sua sponte altered that presumption post 1987 to a presumption of "consacut.I ve" sentences unless the sentencing judge statErl othen.-rise. The. Guideline did not authorize this and the

Sentencing Reform Act rerroved any such ai scretion for the judge to ccement for it

was no longer his jurisdiction under §3585(b). This shift in jurisdiction from the santencing court to the BOP is acknowledged by the. Third Cirelli t placing the jurisdiction squarely in this Court, Ruggiano v Reish, 307 F3d 12·1, 132 (3rd eir 2002) (the

"sentencing. (district) court has no authority to award 'credit' as that term is used

in §3585{b) "}, Thus, the BOP created a presumption that is inconsistent with the statute. and is thus unconstitutional. under Program. stat:Emmt 5880.28, the BOP just

states that it mll never credit civil contempt and offers no citation to any such statutory authority for that statenent nor a court decision and precedent. Such plain blanket-wide statements are inconSistent with §358S(b}.

Program statement 5880.28

Time spent serving a civil contempt sentence prior to trial and/or sentencing dces not constitute presentence time credit

toward the sentence that is eventually Imposed, (Exhibit Zc)

In light of the fact that this Program Stateroon.t simply makes a bold pronouncement with no explanation or authority, it is patently unconstitutional. This is the only authority cited by the BOP in the Exhaustion of Administrative Remedies (Exhibit N), and thus it has atazed its position and cannot now change warranting relief.

21

REASCN 'lO GRANT RELIEF

Armstrong respectfully sub;nits that ther8 can be no dispute whatsoever· that there is no statutory authority to Cleny the credit in the calculation that is

purely an administrative act. This 'has nothing to do even with prosecutorial descretion, for there is no criminal sanction involved. II [A.] reasonably COITI!;'JE!ten t official should know the law governing his .or her conduct. U CUrro v Watson, 884 FSupp 7081 818-19 (EDNY 1995). Armstrong and the public have a reasonable and clear expectation that gov.ernment officials will only act "faithfu11yt' as required by the Consti t uti on undar Article II, §3, and thus there is a presumption that the BOP will

. provide. hmest services to the citizens of this country and the public, by not falsely imprisoning anyone., nor insisting on impri soni.nq sOfl'I!:!one far l:eyond the. lawful term determined by statute being 5 years in the instant case. Even a judge-- "Lacks immunity where he acts in the 'clear absence of all jurisdictioTIr { or performs an act that is not 'judicial t ·in nature, fl Ashelman v Pope, 793 F2d 10721 1075 {9th Cir 1986} (en bane). The BOP must have statutory jurisdiction to imprison anyone pursuant to 18 uSC §4001 (a) and a corrmitment oriler. It lacks both. It cannot .be assurred that the BOPr the Attorney General, or Warden Zickefoose are acting in good faith when they are pushing the scope of their authority for no purpose to society whatsoever. UNo man in this country is so

high that he is abcve the law. n US v Lee, 106 US 196, 220 (1882)

Armstrong contends that a,ll three of the BOP regulations are inconsistent wi th

18 usc §358S{b) ~ Clearly, (1) PS 5880.28 simply creates a blanket denial of credit for all conternpts that ignores the plain language of §3585{b); (2) 5140.28 claims that civil contempts can be imposed USing 18 USC §401 eliminating all due process rights that is unconstitutional for as the Clark COurt established~ the. same statute cannot be used differently by changing the label frcm criminal to civil and the Rule of lenity still applies; and (3) 28 CFR §522.13 changed the "presumptdon" of concurrence

pre-Guidelines to "ecnsecutd, vel' unless th~ court directs otherwise conflicts with

§3585(b) when the court cannot make such a direction6 The Guidelines are unconstitutional under Booker and so is any such presum~tion never authorized by statue, 22

IN THE ALTERNATIVE

ARMSTRONG s~s AN EVlDEN1'IARY HEMUNG

AND DlSOJVERY IN THE EVENT '!'HAT THE lOP WILL Nor

YIELD AND SIMPLY CCNSENT TO THE FULL CREDIT UNDER i 8 USC §358S(b)

Assuming that the POP will not simply consent to the full "credi t;" and release Armstrong ililrrWiately, then Armstrong seeks ,1) discovery of the Grand Jury Minutes for roth indictments to showthat the contempt was in fact a "result of" the criminal charges as aamitted by the US AttoU1ey Office of the S[NY (Exhibit F), and (2) to

establish that the BOP took orders not from the court, but from the receiver, SEC!, CFI'C, and the: us Attorney joining their own collusion that is established in writing by §13(b) withholding all evidence from Annstrong that violated Brady v Maryland, 373 US 83 (1963), for imprisoning any citizen still invokes due process and even the Sixth An'endrent for "any amount of actual jail time has Sixth JlJnendment significance. II Glover v US, 531 US .198, 203 (2001). Armstrong was stripped of all counsel, 3re v PEl, 84 FSupp2d 443, 447 (S{lIlY 2000}, and was denied in.' forma pauperis status to prevent the appotrrtrrent; of counsel despite the fact the court completely froze everything and even denied living expenses in the face of l::eing granted that status in the CoUl:t of Appeals and in the parallel criminal case 99-Cr-997 where counsel was appointed.

SPECIAL JURISDICl'ICN

No doubt this court will want to avoid any ruling it construes may ~ffect any other court., However, The civil contempt is not; addrBSsable. within the criminal case for it was .i.mp:)sed by yet another court , This means that a 28 usc §2241 rrey l:::e used when the relief in a §2255 "as inadequate. or ineffective only where the '!;€titionar dem:::;nstrates that some limitation of scope or preocedure would prevent a §22S5 proceeding from affording him a full hearing and adjudication of his wrongful detention claim. n Cradle v US ex reI Miner, 290 F3d 536, 538 (3rd Clr 2002). What Armstrong is addressing has nothing to do with the actual criminal conviction. Since there is no criminal conviction aSSClCiated with the conb:'.mpt, then it is not even barrsd to seek a civil rights suit with full access to discovery and der;ositions pursuant; to Nelson

23

v campbell, 541 US 637 (20Q4) and Hill v MCDonou~r 547 US 573 (2006)6 Therefore, assuming that the BOP refuses to consent, Armstrong will proceed by this Special Jurisdiction and litigate everything in a single proceeding having no other choioe~

""

DENIAL OF COJNSEL AND muNSEL OF COOlCE

APPLIES TO ANY AMOONT OF JAlL TIME AND THAT INCLUDES CIVIL CONTEMPI' CREATING RElJ'EaSIBLE ERROR REYJUIRING NO SHCWING OF PRFJUDICE 00 ARMSTROOG' S PART

It is clear that "any arocrunt of actual jail time has Sixth 1Ime[1droont- significance. U Glover, 531 US at 203 ~ It is also clear that even civil rontemnars are entitled to the appointment of counsel, and that the sarre guarantees of effective assistance applies,

In re DiBella, 518 F2d 955, 959 (2d Cir-19751~ The night of the contempt, the SEC, CFl'Cr US Attorney, and the Receiver, colluded together to then roove to retroactively

disgorge counsel of even "eaznad" fees deliberately creating a conflict of ~nt.erest forcing counsel to defendant themselves ~ This from the outset, renedered the contempt unconstitutional by the "deliberate conflict of counsel requiring full credit,. us 'iT Swartz, 283 F3d 76 (2nd Cir 20Q2). The contempt was patentily unconstf.tut.tonal, and represents reversibel error that does not reguire Armstrong to even show prejudice

.

pursuant to US v Gonzalez-Lo~z, 548 US 140 (2006) 6 M indicted defendant canoot be

stripped of counsel ana COItTpelled to represent himself using the ci vi! label~" This violated the Sixth J\rr'endnent., Massiah v US, 377 US 201 (1964).

The Second Circuit ruled only regarding the Fifth ArlEndment Self -IncriJn:ination

Clause insofar as a isolated pre-indictment case whereas a corporate officer would

be denied the privilege given an act-of-production priVilege under Braswell v us, 487 us 99 (1988). The Second Circui t did ~ address the legality of the contempt using equity to invade a parallel criminal case post-indictment compelling depositions that cannot be taken under FRCrP 15{e) or the denial of Equal Protection that is to be

secured to "all persons" once criminally charges pursuant to 18 USC §3481. Braswell was pre-indictment. In the instant case, Armstrong was the ctn.Y citizen denied the

fund.;nnental right to an adversary system of justice that is the only system authordzed,

24

Furt.herttK>re, the Second Circuit decision Armstrong v GuCC;ione, 470 F3d 89 (2d Cir 2006),. did also not address the Sixth AroondIrent that prohibits also any such

··deliberate elicitationn of an indicted. defendant at any time whatscever. This is why

a prosecutor cannot compel an indicted defendant to appear even at a proffer session.

F~llers v USr 54Q US 519 {2004}; Massiah V USI 377 US 201 (1964). oncecrimdnally charged, "any amount of actual jail time has Sixth .Mlendmant significance." Glover v

US, 531 US 198, 203 (2001). If a prosecutor cannot conpel the defendant to appear' before a . grand jury, us v Mandujano, .425 US 564, 594 (1976)(J ~Brennan collecting cases), US v Doss, 545 F2d 548 (6th Cir 1976); 563 F2d 265 (6th Cir 1977)(en Bane), or compal him to appear at a de{.'Csitioo FRCrP 15(13), and cannot force hlrn to appear without counsel in anything ancillary to the criminal easel US v Wade, 388 us 218, 226 {l967}, or to a proffer sess.ion, then nai ther r.ay he accOOllllish this iimleague with the SEC

post~r'ldictrnent.

ri [T ] he legal result must, be t.1'lEl same, for w-ha t cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name 6 ff

CUrrrni_EgS V Missouri,· 71 us 277, 325 (1866 )

There£ore, the Second Circuit has never rules on these iSSllSS~ It is also black-

letter law that when the jurisdiction of one court is relied Up:lI1 in a collateral action, then that jurisdiction may bs li ligated where it has not been addressed. Since the BOP is relying on rut at criminal court ruling, but a civil court. ruling then the principles of Heck v Humphrey, 512 US 477 (1994) 00 NOF APPLY when it is not the criminal sentence of 5 years 1::eing attacked. Consequently, since the EOP is relying upon the exi.st.anca of the contempt to aeny credit, Armstrong is entitled

to a full evidentiary hearing to challenge: the jurisdiction of that contempt, for it has no Impact; upon the validity of the criminal sentence, This now shifts the right to inquire into the validity of the contempt into this proceeding when the BOP tries to rely upon that event to justi:fy their denial of credit. This is a well asbabl.Lshad prinCiple when Al:mstrong was never allowed a direct appeal and could

not rais~ jurisdiction otherwise.

25

.. II I [W]e think it clear that the jurisdiction ·of the court by which a

judgment is renedered in any state may be· questioned in collateral proceeding in another. state, notwithstanding the provision of the fourth article of the O:mstitution and the 1..aw" of 1790, and notwith~ ..

. standing the averments· contained in the record of the judgment itself. til

Durfee v Duke, 375 US 106 (1963)

quOting: Thompson v Whitman, 18 Wall 451, 469

It is a matter of fllI'ldamental law that once the BOP has forced Armstrong into this litigation, it has also opened the door for a civil rights suit and for the

..

full panoply of rights under the Federal Rules .. of Civil Procedure regarding the

scope of discovery. It is simply

"weli settled that the jurisdiction of any court exercising authority over a subj ect may be inquired into in every other court. when the proceedings iri the fonner are related upon and brought before· the latter by a party claiming the benefit of such proceedings. n

Old WaY!le Mutal Life Ass I n v McDonough, 204 OS. B 1 16 (1907)

DENIAL OF aJUNSEL----oF-CHOlCE--

_ ... _------

Because the Sixth Amendment applies any time scmeone. is ti1rown into a jail cell, Armstrong 'WaS entitled to the full panoply of rights under the Sixth Amendment. There is absolute proof that the contsmpt was !LLE):;AL for Armstrong was stripped of all counsel and counsel of choice pursuant to us v Gonzalez-Lopez, 548 US 140 (2006).

To. get Armstrong to settle the civil actions, the SEr:: & CFTC promised $2.6 million

in fees \o.riu1.d be paid to Proskauar Rose, LLP if they could get Armstrong to agree.

This was to provide counsel for this habeas corpus, This again proves that t.here wer~ funds all along to defend Armstrong and that establishes a violation of the sixth AIrEmdnent whereby ArnIstrong need not even show prejudice. Armstrong believes

that after Signing that deal, the Receiver objected to the court and their fees were

reduced to $500,OOQ~ Armstrong objected before the settlement was final by letter

to counse.l {Exhibi t T), but there was no response for once again the SEC & CFTC· created a conflict between Armstrong and his couns~l~ This still estabUishes that

the contempt was rr .. t..EG\L and the Sixth ~t was violated A This was in fact

an illegal sentence the OOP has now created. 26

The night of the civil contempt. on January 14th, 2000, the Receiver moved simultaneously to retroactively disgorge cotmsel of El\RNED fees as well as all prospectd ve feesA Armstrong was thus denied conflict-free counsel at the very contempt hearing whereas they informed the court that depositions wuld need to be taken in Australia. to establish a defense, but the court then retroactively disgorged counsel in any event., SEC v PEr,. 84 FSupp2d 443 (SI:NY 2000).

The SEC and CF"I'C never served the ccrporate defendants and thus deprivad the district court of ever obtaining Personal Jurisdiction. This was confirmed by former counsel affidavit confirming that the.y never represented the ccrporat.Lons at any time (Exhibit E) and the district court 50 conceded in its publish opinion where

it retroactively disgorged counsel that they were hir.ed only to represent Armstrong "Lndivf.dual.Iy.;" Id./84 FSupp2d at 447. If the corporatdons were seized as the alter ego of Armstrong, then there could be no contempt if the corporate veil had J::een pierced and that requires full credit and immediate release. If the corporate' form was honored and never served, then FROtP 6S(a) requires that the civil contempt be imnediately vacated ·forthwi th.

While counsel was aProinted in the parallel criminal case~ David .O:q:er, he was instructed that he could not represent Armstrong in the parallel civil actions or the contempt. He has also so confi.J::rrfad by affidavit that he also did not represent Armstrong in the ci viI cases {Exhibit Q).

Armstrong respectfully sul:mits that the mere offer of $2.6 million after Armstrong was criminally sentence and at Fort Dix to settle the civil cases, is proof aem:mstrating that Armstrong was denied counsel of choice and that the contempt must be vacated and full credit be provided toward t:oth the criminal sentence of incarceratin and the remaining 3 years of supervised release. This

is a now a matter of fact and Armstrong need not even demonstrate prejudice. !t is to bs! presumed in a :f.ree democratic society pursuant to Gonzalez-IA:l!;?eZ, suprs ,

27

PRAYER ro.R RELIEF

When a district court sentenced a man to hard Iabor on a misdemeanor, the Supreme Court vacated the judgment ana sentence J::e.cause the statute only allowed

for a sentience of hard labor ·where the sentence was greater than one year. It was

there and then held to be an ItJ,fr,AL SENImCE not authorize:d by statute.

"The OOUI:'t below was without jurisdiction to pass any such sentences, and the orders directing the sentences of impt:'isonment to be executed in a penitentiary are void. This is not a case of mere error, but one in which . the court below transcended its ~.n

In re Mills, 135 US 2631 270 (1.890)

The BOP clearly has inflicted such an illegal sentence for it too has no such'. statutory authority. Armstron9 thus prays for his irmnediate relief for the BOP will not act in an honorable manner and is only concerned about expanding its police state powers against the Constitutional rights of all citizens of the United States

by it unaccountable and arbitrary actions in the case at bar ,

Da tea! December 11 th, 2009 Fort Dix, New Jersey

r A:~ #12518-050 FeI Fort Dix camp PO Box 2000

Fort Dix, NJ 08640

28

CERTIFICATE OF SERVXCE

I, Martin A~ Armstrong, hereby declare under penalty of perjury, that a true

and correct copy of this habeas corpus was served by first class mail, postage

prepaid, upon the. following party pursuant to 28 USC §1746:

Donna Zickefoose, Warden FC'l Fort Dix

PO Box 38

Fort Dix, NJ 08640

n A~ 12518-050

FCl Fort nix Camp PO Bo}r 2000

Fort DilL, NJ 08640

Dated: r.:ecemt:er t 2009

Fort Dix, New Jersey