In The United States District Court



In The United States District Court

For the

Northern District of Illinois

U.S. ex rel. ELLIS W. STRICKLAND II,

Petitioner,

v. Case No.__________

STATE OF WISCONSIN,

Respondent.

Brief in support of Petition for

Writ of Habeas Corpus

STATEMENT OF ISSUES

1. Whether the intentional blocking of petitioner’s access to the courts by Government officials through their Illegal Network’s mail fraud schemes for the purpose of indefinitely delaying state and federal challenges to his conviction is illegal custody, mandating the issuance of a Writ of Habeas corpus freeing the petitioner?

2. Whether the involvement of the public defender in a mail fraud scheme to defraud a criminal appeal constitutes ineffective assistance of appellate counsel?

3. Whether Judicial Bias voids a criminal conviction?

4. Whether the state court Judge failed to consider the proper standard of review at the Evidentiary Hearing, when analyzing the petitioner’s Motion to dismiss for lack of probable cause to arrest?

5. Whether dismissing entire jury array for one jurors bias shows Judicial Bias during Jury Selection (Voir Dire)

6. Whether Judicial Bias aided prosecutor’s violation of Petitioner’s right to confrontation?

Whether it is Prosecutorial Misconduct to purposely exclude Exculpatory Evidence?

7. Whether it is Judicial Bias to give Jury Instructions adding a lesser-included offense to obtain a verdict of guilty?

STATEMENT ON PUBLICATION

The petitioner requests that this case be published because the well-established legal principles are being misapplied, and publication will resolve any confusion as to how the principles of law should be applied.

STATEMENT OF THE CASE

Emmanuel Vuvunas, the presiding judge of the Racine County Circuit Court, Branch 4, entered an Illegal Judgment of Conviction against the petitioner on August 8, 1985.

Based upon the Illegal Judgment of Conviction, petitioner was given an Illegal Sentence of 14 years, 12 consecutive times, totaling 168 years for armed robbery on September 9, 1985.

The indictment against the petitioner stated 13 counts of armed robbery based upon one incident involving the supposed Robbery of 13 victims in a business establishment by two (2)-armed men.

The petitioner testified at a Jury trial after he pleaded not guilty to the 13 counts of armed robbery. But he still was illegally convicted on August 8, 1985; and sentenced on September 9, 1985.

Following Strickland’s sentence, he submitted for filing a Notice of intent to pursue post conviction relief. Mark Lukoff, first assistant State Public Defender, from Milwaukee, Wisconsin, was appointed, then informed the petitioner (Strickland) by letter, that he (Lukoff), was withdrawing from his case, and that John J. Wargo, an attorney from Racine, Wisconsin was being appointed to represent the petitioner on appeal, due to a “Conflict of interest” in the office in which he (Lukoff) worked.

Attorney John J. Wargo filed a postconviction motion in the state trial court. See Wis. Stat. § 974.02. This motion presented only three issues: Whether a curative instruction to the jury to disregard a hearsay statement rather than ordering a mistrial is an abuse of discretion. Whether the use of a show-up or one-to-one identification procedure is inherently suggestive, and preferable to a staged line-up. Whether the trial court abused its discretion in denying Strickland's motion to sever his trial from that of a co-defendant. Finally, whether the trial court's sentence was a proper exercise of discretion. Attorney Wargo then submitted a notice of appeal to the trial court and then to the Wisconsin Court of Appeals. Then the facts became confusing. Strickland first received a notice from a Marilyn Graves, containing an unsigned order, in behalf of the Wisconsin Court of Appeals, affirming his conviction. Court of Appeals Clerk, Marilyn Graves, also sent Strickland an unsigned order from the Wisconsin Supreme Court denying review.

Statement Of Facts

During the petitioner’s state appellate attempts Wisconsin prison mailroom employees

were jointly engaged in a conspiracy with employees at the State Public Defenders office and a private attorney supposedly appointed by the Wisconsin State Public Defenders office to Sabotage the petitioner’s Direct Appeal under Wisconsin Statutes Chapter 809.30 by the use of a mail fraud scheme. (See Strickland v. McCaughtry, et al., and Strickland v. Macht, 91-C-661)

The scheme to deceive the petitioner began with several letters from a Mark Lukoff, first assistant State Public Defender, stating that he (Lukoff) was himself assigned to represent the petitioner throughout his appeal of the state conviction and sentence in Racine County. Then directly subsequent to the petitioner’s January 31, 1986 letter, acknowledging both the receipt of Lukoff’s letter and his appointment as the petitioner’s appellate counsel, the petitioner received another letter from attorney Lukoff informing him that he (Lukoff) was withdrawing from his case, and that an attorney from Racine, Wisconsin was being appointed to represent the petitioner on appeal, due to a “Conflict of interest” in the office in which he (Lukoff) worked. Non of the Lukoff letters had a postmark date stamp canceling the postage stamp. The newly appointed attorney was John J. Wargo. The January 31, 1986, letter for the petitioner, informed attorney Lukoff of his (petitioner’s) confidence that both the trial errors pointed-out by his trial attorney, along with errors that he believed mandated reversal of the Judgment of Conviction and Sentence were indeed meritorious.

Throughout a fifteen (15) month period, beginning February, 1986 and extending to May of 1987, the private attorney, John J. Wargo, had deceived the petitioner (Strickland) into thinking that he had filed a full, well-researched appeal, by briefing all of the issues which merited a new trial, when in fact, he (attorney Wargo) had filed some type of No Merit Brief without allowing the petitioner the requisite notice and opportunity to respond, thereby securing his (petitioner’s) Illegal State Court Conviction, without an adequate Review by any Judge of the Wisconsin State Court of Appeals. The petitioner had written Mr. Wargo a letter acknowledging his appointment as his (petitioner’s) appellate attorney. In his return letter, Mr. Wargo had assured the petitioner of his ability to handle the Appeal, and said that he (Wargo), would (1) Send for copies of the court transcripts of all proceedings in Strickland’s case, then, (2) He would meet with the petitioner (Strickland’s) attorney during the trial, Cynthia Pierce, then, (3) He would come to the prison to discuss with the petitioner features of the proceeding that he appellate attorney) thought were worth citing to the State appellate court as a ground of error. However, when the petitioner (Strickland), repeatedly requested a personal meeting with Mr. Wargo to discuss what he (petitioner Strickland) felt were inadequacies in the appellate Brief that he (attorney Wargo) was planning to submit to the court of appeals in Wisconsin, he flatly told the petitioner that he was not required to visit with him to discuss the issues of his (Strickland’s) case that merited consideration by the Wisconsin Court of Appeals. Then, after attorney Wargo had sent the petitioner a copy of the brief, he (the petitioner) submitted a Motion for an Extension of the Briefing Schedule, to file a supplemental Brief to the Wisconsin State Court of Appeals, because of the inadequacies in the appellate brief (i.e., the appellate attorney did not brief all of the meritorious issues of the case). In response, to the petitioner’s Motion, he received an unsigned order supposedly sent from the Wisconsin State Court of Appeals, through the U.S. Postal Service, denying the petitioner’s motion, and saying that the Brief was adequate. The petitioner then relied upon the activities of the appellate attorney. On November 28, 1990, the petitioner had submitted for filing a Request for a Writ of Habeas Corpus – listing the Issues meriting a Reversal of his Conviction and sentence. The Response dated December 4, 1990 was so incoherent and Evasive, that the petitioner again attempted by U.S.CERTIFIED Mail to contact Chief Judge Robert W. Warren, at the U.S. District Court for the Eastern District of Wisconsin. In the letter/petition dated February 28, 1991, petitioner, Strickland informed him Judge Warren that he believed that the prison mailroom staff were interfering with this Legal Claims by sending Fraudulent Reponses to his Claims on behalf of himself and other U.S. District Court Officials. The Response to his petition was also evasive and incoherent. Therefore, in May 1991, the petitioner sent the relevant documents accompanied by an affidavit to his daughter, Mrs. Roshena Andrews of 2035 Orchard St., Racine, Wisconsin, 53405, authorizing her to speak to court officials on his (Strickland’s) behalf. And with those documents in her possession, she (Roshena Andrews) made a personal visit to the U.S. District Court for the Eastern District of Wisconsin, to ask Judge Warren to verify whether he had indeed signed the Evasive and confusing responses to petitioner Strickland’s Legal Claims. Judge Warren’s Secretary, Katie Spruell, harshly Refused to allow Strickland’s daughter to meet personally with the Judge, so she could verify that the Court documents that she possessed were an authentic representation of his (Judge Warren’s) rulings on the claims that he (Strickland) had presented to him by U.S. Mail.

Also, in October, 1991, Juan Casteel (Waupun Prisoner paralegal), did, during a U.S. District Court appearance for himself, personally hand-presented to Judge Warren a copy of petitioner Strickland’s February 28, 1991, letter/petition requesting relief from the illegal behavior of the prison officials in Wisconsin.

In May, 1992, the petitioner Strickland submitted, again by U.S. Certified Mail Return Receipt Requested, a Pro se Petition for a Writ of Habeas Corpus to Chief Judge William J. Bauer of the U.S. Court of Appeals for the Seventh Circuit in Chicago, Illinois, with a coverletter, requesting that he exercise his supervisory authority over the petitioner’s case, because of the Fraudulent mailings that he received in Response to his Legal Claims. The petitioner received more unsigned documents. In October 1992, the petitioner, Strickland submitted a Pro se Request for Certification of Probable Cause and Request for an investigation into the mail fraud violations to interfere with his access to the courts, which included his petition for a writ of Habeas corpus. The petitioner received no response.

All of the attempts to verify documents sent to the petitioner, by the petitioner’s family during personal visits to the U.S. Courthouses were repelled by clerks and secretaries who gave them false information about the status of the case.[1]

All of the petitioner’s documentary communications with legal entities were carried on through the U.S. Postal Service by way of the prison mailroom, or by special visit to the courts by his family members.

Jurisdiction

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Since the U.S. District Courts in Wisconsin have refused to entertain and decide on the merits of his claim any federal questions submitted by the Petitioner/plaintiff Strickland, he is submitting the following issues to the federal courts in Illinois.

Legal Argument

I. The intentional blocking of petitioner’s access to the courts by Government officials through their Illegal Network’s mail fraud schemes for the purpose of indefinitely delaying state and federal challenges to his conviction is illegal custody, mandating the issuance of a Writ of Habeas corpus freeing the petitioner.

A. Criminal interference by prison officials with a prisoner’s access to the courts is illegal custody.

“Since the basic purpose of the writ is to enable those unlawfully incarcerated to obtain their freedom, it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed.” Johnson v. Avery, 89 S.Ct. 747, 749, 393 U.S. 483, 485, 21 L.Ed. 2d 718 (1969)

The petitioner Strickland, contends that the mail fraud schemes initiated by the illegal network of employees of the State of Wisconsin to block his access to the courts; and the refusal by the U.S. Court systems’ clerical employees (i.e. clerks and secretaries) to submit his claims to a Judge, or in the case of the U.S. Court of Appeals, to Circuit Judges for a ruling on the relevant issues, mandates that the court rule that the state of Wisconsin forfeited it’s jurisdiction over the case and therefore, forfeited it’s custody of the petitioner, and issue the Writ of Habeas Corpus freeing the petitioner. For such a criminal conspiracy to defraud a prisoners’ appeal and subsequently any litigation submitted by the prisoner or his family to the courts, does mandate some action by the courts. The Seventh Circuit U.S. Court of Appeals itself has said, “Those seeking to vindicate their rights in court enjoy a constitutional right of access to the courts that prohibits state actors from impeding one's efforts to pursue legal claims. Lewis v. Casey, 518 U.S. 343, 350-54, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Bounds v. Smith, 430 U.S. 817, 821-23, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). To prove a violation of this right, a plaintiff must demonstrate that state action hindered his or her efforts to pursue a nonfrivolous legal claim and that consequently the plaintiff suffered some actual concrete injury. Lewis, 518 U.S. at 350-54, 116 S.Ct. 2174.” May v. Sheahan, 226 F.3d 876, 883-84 (2000).

The United States Congress has intended through its legislation to provide an avenue for persons held illegally to obtain their freedom. The statute reads in pertinent part the following:

“State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” (28 U.S.C. 2254(a)

Petitioner also contends that the Mail Fraud Schemes and interference by the prison officials have caused an inordinate delay in presenting his issues to the Federal Courts. (See Forty-five (45) paged civil rights complaint entitled Strickland v. McCaughtry, et al., Case No. 99-C-452-C) (See also, Gentry v. Duckworth, 65 F.3d 555). And while there are only criminal penalties attached to violations of the Mail fraud statutes; there does not seem to be any rulings penalizing government entities, by forfeiting their custody of a person claiming unlawful custody, pursuant to Title 28 U.S.C. § 2254(a), because government employees defrauded a prisoner’s post conviction challenge to his state court conviction, by violating the mail fraud statutes, thereby causing an inordinate delay, of the consideration of his challenge to the state court conviction. There are, however, rulings that establish that if petitioner could prove that the government had intentionally prevented him from pursuing his Constitutional right to a speedy trial the case against him would be dismissed. For, in Doggett v. U.S., 112 S.Ct. 2686, 2693, 505 U.S. 647, 120 L.Ed.2d 520 (1992), the U.S. Supreme Court held “that Doggett would prevail if he could show that the government had intentionally held back it’s prosecution of him to gain some impermissible advantage at trial. That we cannot doubt. Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 2192, 33 L.Ed. 2d 101 (1972), stressed that official bad faith in causing delay will be weighed heavily against the government, 407 U.S., at 531, 92 S.Ct., at 2192, and a bad-faith delay the length of this negligent one would present an overwhelming case for dismissal.” Id. At 112 S.Ct. 2693, 505 U.S. 656. The petitioner contends that this case is unique as they go, because the mail fraud laws are implicated, hence our analysis would have to determine how it would affect a persons right to appeal. And further, whether the same theory of Federal law respecting criminal and civil forfeitures could be applied to a continuing enterprise, acting as state and Federal officials, whose purpose is to implement a scheme to defraud the judicial process, with the goal of defrauding a state prisoner of his federally protected right to challenge the legality of his state court conviction. (See Criminal Forfeitures, 21 U.S.C.A. § 853). In essence, when a state entity engages in a criminal conspiracy to violate a person right of access to the courts, by criminal means such as violating the mail fraud statutes, 18 U.S.C. sec. 1341 and sec. 1346, the state would forfeit it’s jurisdiction to hold the person in custody. The petitioner contends that the action that should be taken by the courts is to release him from this illegal custody.

It is Strickland’s further contention that during his state appellate attempts Wisconsin prison mailroom employees were jointly engaged in a conspiracy with employees at the State Public Defenders office and a private attorney supposedly appointed by the Wisconsin State Public Defenders office to Sabotage the petitioner’s Direct Appeal under Wisconsin Statutes Chapter 809.30 by the use of a mail fraud scheme. (See Petition for a Writ of Habeas Corpus, pages 1 through 4). The U.S. Supreme Court held that “State Public Defenders are not immune from liability under sec, 1983 for intentional misconduct by virtue of alleged conspiratorial action with state officials that deprives their clients of federal rights.” Tower v. Glover, 467 U.S. 914, 81 L. Ed. 2d 758, 104 S.Ct. 2820, 2821 (1984). Further, the petitioner contends that an illegal network was established to block him from any litigation related to his illegal custody claim. These acts of sabotage resulted in Strickland’s conviction being affirmed by the Wisconsin State Court of Appeals, by violating the mail fraud statutes, Title 18 U.S.C. §1341&1346. And even until this day, operatives of the illegal network are committing mail fraud to block petitioner’s access to a judicial decision. In a landmark Case, the U.S. Supreme Court has ruled, “In this respect, our holding in Adickes v. S. H. Kress & Co. was as follows:

"The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or unlawful; Monroe v. Pape, 365 U.S. 167 [81 S.Ct. 473, 5 L.Ed.2d 492] (1961); see United States v. Classic, 313 U.S. 299, 326 [61 S.Ct. 1031, 1043, 85 L.Ed. 1368] (1941); Screws v. United States, 325 U.S. 91, 107-111 [65 S.Ct. 1031, 1038-1040, 89 L.Ed.2d 1495] (1945); > Williams v. United States, 341 U.S. 97, 99-100 [71 S.Ct. 576, 578, 95 L.Ed. 774] (1951). Moreover, a private party involved in such a conspiracy, even though not an official of the State can be liable under § 1983. 'Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,’ United States v. Price, 383 U.S. 787, 794 [86 S.Ct. 1152, 1156, 16 L.Ed.2d 267] (1966)." 398 U.S., at 152, 90 S.Ct., at 1605 (Footnote omitted.)” Dennis v. Sparks, 101 S.Ct. 183, 188, 449 U.S. 24, 66 L.Ed.2d 185 (1980).

II. The involvement of the public defender in a mail fraud scheme to defraud a criminal appeal constitutes ineffective assistance of appellate counsel thereby meriting habeas review by Federal Courts?

The U.S. Court of Appeals for the Seventh Circuit has consistently ruled that ineffective assistance of appellate counsel allows for federal review of habeas claims. “Appellate counsel did not raise the issue of ineffective assistance of trial counsel on appeal… failing to raise the issue amounted to ineffective assistance of appellate counsel. This failure prevented Barnard from obtaining a review on the claim in the appellate court, a review which, if unfavorable, could have been followed by a second review in the Supreme Court of Illinois. As we have demonstrated, trial counsel denied Barnard his sixth amendment right to effective assistance of counsel by failing to advance Barnard's only defense: justification. And appellate counsel was equally ineffective in failing to raise the issue for appellate review.” Barnard v. Lane, 819 F.2d 798, 805 (1987).

The petitioner, Strickland contends that throughout a fifteen (15) month period, beginning February, 1986 and extending to May of 1987, the private attorney, John J. Wargo, had used the U.S. Postal Service to deceive the petitioner (Strickland) into thinking that he had filed a full, well-researched appeal, by briefing all of the issues which merited a new trial, as mandated by the Wisconsin Statutes Chapters 809.32, 809.30, the U.S. Supreme Court in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed. 2d 494 (1967) and clarified in U.S. V. Fernandez, 174 F. 3d 900 at 901 (7th Cir. (1999), when in fact, he (attorney Wargo) had filed some type of No Merit Brief without allowing the petitioner to respond, thereby securing his (petitioner’s) Illegal State Court Conviction, without an adequate Review by any Judge of the Wisconsin State Court of Appeals, (Petition for Writ of Habeas Corpus, Page 2, paragraph 7) nor the Wisconsin State Supreme Court.

The petitioner contends that the intentional misconduct by the Public defenders amounts to ineffective assistance of appellate counsel for not raising the issue of ineffective assistance of trial counsel, and for not objecting to the intentional exclusion of exculpatory evidence by the Racine County Prosecutor. (See pages 7& 10 of Habeas Petition). Nor did the appellate counsel challenge the trial judge’s obvious bias toward the defendant, throughout the trial.

A. Ineffective Assistance of Counsel

“The standard for ineffective assistance of counsel under the sixth amendment was announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 698,104 S.Ct. 2052, 2069 80 L.Ed.2d 674 (1984). "First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." 466 U.S. at 687, 104 S.Ct. at 2064. The Court declined to list specific guidelines for attorneys to follow, holding instead that "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id., at 688, 104 S.Ct. at 2065. The standard for prejudice requires the defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." > Id. at 694, 104 S.Ct. at 2068. See also United States ex rel. Duncan v. O'Leary, 806 F.2d 1307, 1312 (7th Cir.1986); Walberg v. Israel, 766 F.2d 1071, 1075 (7th Cir.1985).” Barnard v. Lane, 819 F.2d 798, 801 (1987).

The petitioner, Strickland, contends that his trial counsel was ineffective for failing to object to the exclusion of vital testimonial evidence that had exculpatory effect on two (2) separate occasions during the trial. One, the trial counsel should have submitted a motion to compel the discovery of arresting officer Deborg’s testimony, pursuant to Wisconsin Statutes, Chapter 971.23(1)(h), and; not demanding that the Judge hear the testimony of arresting officer Deborg, to determine the evidentiary value of his testimony, in violation of Wis. Stats. 971.31(4) Motions before trial. Also, trial counsel was ineffective not motioning the court to read the statement that Howard Hadlock had made at the Evidentiary Hearing to the Jury deciding Strickland’s fate, pursuant to Wis. Stats. 908.045 Hearsay exceptions; declarant unavailable, because he was a victim/witness. Without such opportunity the petitioner was denied his sixth amendment right to confrontation; “for the right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” LaBarge v. State, 74 Wis. 2d 327, 246 N.W. 2d 794, 798-99 (1976 Wisconsin Supreme Court).

The petitioner is conceding that the trial counsel was competent and effective but for the above stated, unreasonably “crucial errors” which logically had to effect the outcome of the trial.

B. Ineffective Assistance of Appellate Counsel

“The services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits. See > Griffin, supra, 351 U.S., at 20, 76 S.Ct., at 591. Therefore, Douglas v. California, supra, recognized that the principles of Griffin required a [469 U.S. 394] State that afforded a right of appeal to make that appeal more than a "meaningless ritual" by supplying an indigent appellant in a criminal case with an attorney. 372 U.S., at 358, 83 S.Ct., at 817. This right to counsel is limited to the first appeal as of right, see Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), and the attorney need not advance every argument, regardless of merit, urged by the appellant, see Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). But the attorney must be available to assist in preparing and submitting a brief to the appellate court, Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967) (per curiam), and must play the role of an active advocate, rather than a mere friend of the court assisting in a detached evaluation of the appellant's claim. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967).” Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 834-835, 83 L.Ed.2d 821 (1985). The petitioner contends that the mail fraud schemes to defraud challenges to the judgement of conviction and jurisdiction of the state court mandates federal review of habeas issues.

The state of Wisconsin has not satisfied this in its’ administrative regulations prohibiting prison officials from hindering prisoners mail. In the context of the present case: It is for the courts to remedy past or imminent official interference with individual inmates' presentation of claims to the courts; it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur.” Lewis v Casey, 116 S.Ct. 2174, 2179, 518 U.S. 343, 349 (1996).

III. Judicial Bias voids a criminal conviction.

A. Standard of Review

The U.S. Supreme Court has ruled that, “a criminal defendant has a federal constitutional right to be tried before an impartial judge. Bracy v. Gramley, 520 U.S. 899, ____, 117 s. Ct. 1793, 1797, 138 L. Ed. 2d 97 (1997); Johnson v. Mississippi, 403 U.S. 212, 216, 91 S.Ct.1778, 1780, 29 L.Ed. 2d 423 (1971) (per curiam); In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 25, 99 L.Ed. 942 (1955); Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749 (1927); Walberg v. Israel, 766 F. 2d 1071, 1076-77 (7th Cir. 1985). The right is not subject to the harmless error rule, it doesn’t matter how powerful the case against the defendant was or whether the judge’s bias was manifested in rulings adverse to the defendant, Edwards v. Balisok, 520 U.S. 641, ____, 117 S.Ct. 1584, 1588, 137 L.Ed. 2d 906 (1997); …And it is irrelevant that Cartalino was convicted by a jury, id. at 1076, for the judge’s role in presiding over a jury trial is obviously not of a merely ministerial character, as in Ward v. Village of Monroeville, 409 U.S. 57, 62 n. 2, 93 S.Ct. 80, 84 n.2, 34 L.Ed. 2d 267 (1972), in which no opportunity to act on bias could arise… Bracy v. Gramley, supra, 520 U.S. at ____, 117 S.Ct. at 1797.” Cartalino v. Washington, 122 F.3d 8 at 9&10 (7th Cir. [Ill.] 1997).

B. Biased Rulings favorable to Prosecutor

The petitioner contends that the trial Judge Emmanuel Vuvunas made biased rulings in favor of Assistant District Attorney Guttenberg, who knowingly engaged in prosecutorial Misconduct, everytime a witness or Juror made any statement that damaged the credibility of the Racine Police.

C. Pretext to prevent Exculpatory Evidence (Officer’s testimony at Evidentiary hearing)

The U.S. Supreme Court has consistently ruled that, “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 83 S.Ct. 1194, 1197, 373 U.S. 83, 87 (1963), The U.S. Court of Appeals for the Seventh Circuit agreed in Crivens v. Roth, 172 F.3d 991 (April, 1999). After the Brady rule, the U.S. Supreme Court clarified its mandate by saying, “We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Such evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id., at 682, 105 S.Ct. 3375; see also Kyles v. Whitley, 514 U.S. 419, 433-434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Moreover, the rule encompasses evidence "known only to police [527 U.S. 281] investigators and not to the prosecutor." Id., at 438, 115 S.Ct. 1555. In order to comply with Brady, therefore, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police." Kyles, 514 U.S., at 437, 115 S.Ct. 1555.” Strickler v. Greene, 119 S.Ct. 1936, 1948, 527 U.S. 263, 144 L.Ed.2d 286, (1999). Also in Strickler the Supreme Court held, "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S., at 87, 83 S.Ct. 1194. Id.

The petitioner contends that at the end of the first day of a two (2) day Evidentiary Hearing, Judge Vuvunas stated that “we have to finish hearing the testimony of the other prosecution witnesses tomorrow;” then he said, “We can’t have the rest of the hearing tomorrow (i.e., Wednesday), because, I have to go to see the Brewers play.” (See Evidentiary Hearing Transcripts). And although the judge had scheduled the second half of the Evidentiary Hearing for Thursday or Friday of the same week, the rest of the hearing to complete the discovery process was never held; thereby eliminating vital testimony by an arresting officer (Deborg) from the Mount Pleasant Police Department. The Claim that a Brewers Game was a valid purpose for preempting the discovery of the exculpatory affect of an arresting officer (Deborg) in a criminal proceeding, is both a pretext to cover-up the Judge’s true purpose of aiding the prosecutor in excluding the exculpatory testimony of the arresting officer; in violation of Brady v. Maryland, supra., and a violation of the State Supreme Court rules and the Wisconsin Judicial Commissions’ code of conduct (i.e. Judicial Misconduct), that prohibits the filing of false case status certifications. (See Article about Judge Waddick, Milwaukee Journal/Sentinel, dated February 19, 2000, also see attached photo-copy of In Re Complaint Against Judge Warren A. Grady, 118 Wis.2d 762, 348 N.W.2d 559 (1984), Also see In re Complaint Against Lee S. Dreyfus Jr., 182 Wis.2d 121, 513 N.W.2d 604, 607 (1994) (filed false pending case status certificates required by the court's rule and affirmatively misled the deputy chief judge and the Judicial Commission investigator in an attempt to conceal his failure to promptly decide cases and his submission of false certifications).

Petitioner Strickland contends that had the prosecutor not knowingly withheld the testimony of officer Deborg, then he (officer Deborg) would have exposed the fact that Sgt. Vyvyan committed perjury about how the arrest took place. Officer Vyvyan said that Leroy Bryant opened the door, but everyone present said knew that Strickland had opened the door to the apartment and Sargeant Vyvyan with officer Deborg standing near ordered Strickland from the house; although he (Strickland) did not fit the description of the perpetrators of the crime. As he (Vyvyan) had his hand on his weapon, he (Strickland) assented to his order; and was taken into custody. (See Petition for a writ of habeas corpus, Page 9, paragraph (a)(1&2). For the prosecutor to know that officer Deborg would expose Sargeant Vyvyan’s perjured testimony, he should have presented him (Deborg) to testify, because “the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.” Napue v. Illinois, 360 U.S. 264, 270, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)(Quoting People v. Savvides, 1 N.Y. 2d 554, 557, 154 N.Y. S. 2d 885, 887, 136 N.E. 2d 853, 854-855).

The high court reiterated the point they made in Napue v. Illinois, when it clarified in Strickler v. Greene, that, “These cases, together with earlier cases condemning the knowing use of perjured testimony, illustrate the special role played by the American prosecutor in the search for truth in criminal trials. Within the federal system, for example, we have said that the United States Attorney is "the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).” Id. At 119 S. Ct. 1948.

IV. The State Court Judge failed to consider the proper standard of review at the Evidentiary Hearing, when analyzing the Petitioner’s Motion to dismiss for lack of probable cause to arrest.

A. Standard of Review

"To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present." United States v. Reed, 572 F.2d 412, 423 (1978), cert. denied, sub nom. Goldsmith v. United States, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259.” Payton v. New York, 100 S.Ct. 1371, 1381, 445 U.S. 573, 589 (1980).

The petitioner contends that no probable cause existed for his arrest since he did not fit the description and he was in someone else’s dwelling and opened the door for the police because of the immediate unavailability of the owner of the apartment.

B. (Judicial Bias at Evidentiary Hearing) earinUnreliable Eye-witness Testimony

1. The showing of Strickland alone and in handcuffs, to a victim witness, rather than in a staged line-up render the identification process unreliable thereby depriving him of Due Process.

The Judge (Vuvunas) showed bias in favor of the prosecutor when he didn’t dismiss the armed robbery charges against defendant/petitioner Strickland, at the Evidentiary hearing; because, the trial counsel had shown during the cross-examination of the victim/witnesses that they either admitted, that the police influenced their Identification of the suspects at the on-the-scene police “show-up” or they picked someone other than the defendant/petitioner at the objective police station line-up, thereby proving that her motion for dismissal of the charge of armed robbery against Strickland should have been granted based upon the unreliability of all victim/witnesses pursuant to Jones v. State of Wisconsin, 562 F.2d 440 (1977), Israel v. Odom, 521 F.2d 1370(7th Cir. 1975); U.S. ex rel Kirby v. Sturges, 510 F.2d 397 (7th Cir. 1975), (Also, see U.S. V. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926 (1967). “The factors to be considered in assessing whether the identification was reliable include: "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [the witness'] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972); > Rodriguez, 906 F.2d at 1162.”

ARMSTRONG v. YOUNG, 34 F.3d 421, 428 (1994). The petitioner contends that the application of these factors here lead us to the conclusion that the show up identifications were unreliable; hence, dismissal was required.

V. Dismissing entire jury array for one juror’s bias shows Judicial Bias during Jury Selection (Voir Dire).

During the jury selection process, first venire, potential Juror Scott Biesterveld said that he couldn’t be unbiased in deciding a Racine Case, because, “Racine Police set-up a friend of his for something he didn’t do, and sent him to prison.” (See July 29, 1985 Transcript). Immediately after the Jurors’ statement, Prosecutor Guttenberg objected to further Voir dire and Motioned the Court to dismiss the Entire Jury Array including the Jurors that had been already impaneled on the pretext that all of the Jurors were hostile.” The Judge dismissed both Impaneled Jurors and potential Jurors (Entire Array) using the pretext that they were all hostile, saying, “Yes, I’ve never seen Jury so hostile.” Id. The Defense attorney objected saying she only seen them as truthful, and wanted to continue the selection process. The Judge gave a false statement to the newspaper about why the Jurors were dismissed. He told the public that he (Judge) dismissed the Jurors because they had served their full-term as jurors. (See July 30-31, 1985 article in the Racine Journal Times as well as court transcripts of Voir dire, first Venire). However, at the beginning of the Jury Selection process (Voir dire) when some jurors had said that they had served partial duty on another case and a few other jurors had said that they didn’t want to serve on the jury because it would interfere with their work schedule (i.e., they didn’t want to lose days on their jobs). The Judge told the jurors, “that is no excuse about missing work; and the others still had jury duty to perform, and I am not going to let you out of your obligation.” Id. (See attached April 2003, Capital Times article entitled, “No show Jurors in trouble”). Existing law at the time of the Biased ruling by Judge Vuvunas mandated that the judge continue the Selection process until twelve (12) jurors are selected to hear the case, or there are no potential jurors from which to choose. According to Wisconsin Statutes section 756.07, when there are an insufficient number of jurors from which to pick, they can get Extra Jurors from the Community to add-on to the already impaneled (selected) jurors. Therefore, the dismissal of all jurors because of one (1) Biased juror was clearly illegal and unjustifiable, just because the other jurors heard the statement damaging the credibility of Racine Police. The proper remedy was to Strike the Biased juror, pursuant to Wisconsin Statutes 805.08(1), not dismiss the entire Array. “Consequently, counsel's failure to act to remove a biased juror who ultimately sat on the jury constitutes deficient performance resulting in prejudice to his client.” State v. Carter, 641 N.W.2d 517, 521, 250 Wis.2d 851, 860 (Wis. Ct. App. 2002). The petitioner contends that prosecutor is counsel for the State of Wisconsin. The Judge also failed to file accurate affidavits as to the Status of cases pending in his Court, in violation of Sec. 757.025 Wisconsin Statutes (See Petition for a Writ of Habeas Corpus, Page 11, paragraph (c), Also see Complaint against Judge Grady supra.)

VI. It is Judicial Bias to not order a mistrial when ruling on Hearsay Testimony (At Trial).

A. Biased ruling on Motion In Limine (At Trial.)

At the start of the trial, the judge again showed Bias in favor of the prosecutor, when he expressed reluctance to Grant a Motion In Limine to issue an Order requiring the prosecutor to instruct all prosecution witnesses not to refer to the defendant (Strickland) using the hearsay testimony of any person that the prosecutor was not going to have testify in court, so the defendant’s attorney could cross-examine the witness. The motion was brought pursuant to sec. 901.03(3) and 901.04(3) Wisconsin Statutes; as well as the 5th, 6th and 14th amendments to the U.S. Constitution (Right to Confrontation). The reluctance by the judge was shown in the statement, “You never know what a witness might say.” (See Trial Transcript, August 5, 2005). That statement isn’t true, because, if the prosecutor had properly instructed Detective Luedtke pursuant to the judge’s order to not refer to the defendant using hearsay statements, then the prosecution witness had knowingly violated the judge’s order and should be penalized by having to testify in front of another jury who didn’t hear the hearsay statement. The key is was the statement admissible? (See State v. Wright, 673 N.W. 2d 386, 397, 268 Wis. 2d 694, 716 (2003).

B. Biased ruling on Hearsay Testimony (At Trial.)

The Judge was biased in favor of the prosecutor and police when he did not order a mistrial when the police detective and prosecutor colluded to elicit a hearsay statement of a non-testifying codefendant (The Judge should have questioned the “Ethics” of Prosecutor when he “lied” and said that he did not know that the non-testifying codefendant had received ten (10) days for possession of stolen property related to the robbery in another court-room, when, in fact, the prosecutor knew that the testimony of Cathy Johnstone – a Sister of a victim in the robbery, connected the non-testifying codefendant (i.e., Leroy Bryant) to the trial because she testified that he (i.e., Bryant) tried to sell her own brother’s watch at a mutual friend’s house). Further, it is obvious that the prosecutor had known that the codefendant who became a state’s witness to save himself from prosecution for the robbery as well as, a sexual assault, was not allowed to testify, because he had discredited himself by changing his original statement in the police reports, which damaged the credibility of the arresting officers who had testified during all proceedings. (See Petition for a Writ of Habeas Corpus, page 10, paragraph 3)(Also see Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968). (Accord Lilly v. Virginia, 119 S.Ct. 1887,1895-96, 527 U.S. 116, 144 L.Ed.2d 117 (1999).

It is Prosecutorial Misconduct to purposely exclude Exculpatory Evidence at Trial.

Pretext to prevent Exculpatory Testimony of Victim/Witness.

The Judge showed Bias in favor of the prosecutor, when he dismissed a Charge/ count/ case against Strickland to avoid Coercing victim/witness (Howard Hadlock) to appear to testify at the trial pursuant to Wisconsin Statutes Sec. 885.12, and failing to issue a bench warrant for a witness’ intentional failure to respond to a subpoena, and “state on the record the reason thereof” pursuant to Wisconsin Statutes sec. 968.09(1), which is defined as Contempt of Court by Wis. Stats. 785.01(1)(c). The petitioner Strickland contends that the prosecutor had one lawful requirement to fulfill at this juncture, with two parts. First, the prosecutor must show for the record that he made “a good faith effort to obtain the witness’ presence at a trial before he can be declared “unavailable”. LaBarge v. State, 74 Wis.2d 327, 246 N.W. 2d 794(1976) Wisconsin Supreme Court). The other part of the requirement to show a good faith effort by the prosecutor to obtain the testimony of a witness/victim is to use the Evidentiary Hearing testimony of Howard Hadlock as exculpatory evidence, victim/witness (See LaBarge, Supra.). In other words, the prosecutor should have read the statement that Howard Hadlock had made at the Evidentiary Hearing to the Jury deciding Strickland’s fate, pursuant to Wis. Stats. 908.045 Hearsay exceptions; declarant unavailable, because he was a victim/witness. In lieu of having the witness testify at the jury trial, the defendant’s trial counsel should have motioned to have the statement (that she had elicited from the “unavailable” victim/witness at the partial evidentiary hearing) read to the jury as exculpatory evidence, pursuant to sec. 908.045 Wis. Stats. Supra. [Note: The only victim/witness who had admitted in court that the police had lied was excluded from the Juries’ Consideration-Even though the testimony was exculpatory in nature. (See Napue, Supra). The Prosecutor and Judge had a purpose to not have a victim of the crime testify to the Jury that the police had lied in their police reports, because of it’s Exculpatory affect, and because, “the jury’s estimate of truthfulness and reliability of a given witness may be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.” As stated by the New York Court of Appeals in a case very similar to this one, People v. Savvides, 1 N.Y. 2d 554, 557, 154 N.Y. S.2d 885, 887, 136 N.E.2d 853, 854-55:

‘ It is of no consequence that the falsehood bore upon the witness’ credibility rather than directly upon defendant’s guilt. A lie is a lie, no matter [360 U.S. 270] what its subject, and if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.*** That the district attorney’s silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing as it did a trial that could in any real sense be termed fair.” Napue, Supra. At 79 S.Ct. 1173, 1177. The petitioner contends that the district attorney (Guttenberg) used Guile with a desire to prejudice the jury against Strickland when he Refused to read the Exculpatory Statement of Howard Hadlock to the Jury, because it contained testimony damaging to the credibility of the Racine police (i.e. exculpatory evidence) as he had (i.e., used Guile) during Voir dire when he one, stopped the jury selection process – by objection - to a statement damaging the credibility of the Racine Police; and two, motioned the Judge to dismiss the Entire Jury Array – including Jurors already selected to hear the case – by Labeling them “Hostile”. The judge agreed with the prosecutor and dismissed the entire venire – including jurors already selected – Showing Bias in favor of the prosecution and Law Enforcement, in violation of sec. 756.07 Wis. Stats.

The petitioner contends that the judge (Vuvunas) should have delayed the trial until they located the victim/witness (Howard Hadlock) and brought him before the Court/Jury to testify, because of the pretext used –by the prosecution- for him (Hadlock) being “Unavailable” to testify, (i.e., “being on vacation in Florida.”) (See sec. 885.12, 968.09(1) and 785.01(1)(c) Wis. Stats.). Or alternatively, Ordered the reading of Hadlock’s Evidentiary hearing statement to the jury as a Hearsay Exception, Declarant Unavailable pursuant to sec. 908.045 Wis. Stats. As prescribed by the Wisconsin Supreme Court, in LaBarge v. State, Supra. Hence a finding of Bias should be made Granting Petitioner’s Request for a Writ of Habeas Corpus.

VIII. It is Judicial Bias to give Jury Instructions adding a lesser-included offense to obtain a verdict of guilty.

The petitioner contends that the judge (Vuvunas) showed Bias in favor of the prosecutor when he (Judge) granted his (prosecutor’s) request for a special Jury Instruction for the jury to consider a lesser included offense of aiding and abetting the armed robbers along with considering the offense of being one of the actual armed robbers. The Instructions were confusing to the Jury and the prosecutor was himself confused, because he supported his request for a Special Jury Instruction that in effect amended the complaint by saying, “I can see from the eyewitness identification testimony that the jury might not find him guilty of being the one who robbed those people, so I want to add the aiding and abetting charge.” (See Petition for a Writ of Habeas Corpus, pages 13&14, Paragraph (e)(1), (2), (3). This statement shows that the prosecutor himself felt that he did not meet the standard set by the Supreme Court, when they said, “The burden is upon the state to demonstrate by clear and convincing evidence that the prior confrontation neither irreparably affected the witness’ recollection of the criminal, nor permanently tainted his capacity to make an identification based solely upon his original observations.” U.S. v. Wade, Supra.; U.S. v. Grose, 525 F. 2d 1115, 1118 (7th Cir. 1975). The opening and closing statements by the prosecutor showed a desire by the prosecution to have the jury in the mind-set to convict the petitioner of being the exact principal in the armed robbery. To compound the confusion created by the evidence introduced at the trial, the aiding and abetting instruction influenced the jury to find the petitioner guilty. The United States Supreme Court has held that when the prosecutor asks for a special jury instruction to include an aiding and abetting instruction as an alternative to the charge of being the principal, “that the instruction (taken together with the prosecutor’s statement) had indeed violated the Federal Constitution by misleading the jury.” O’Neal v. Mc Aninch, 115 S.Ct. 992, 994 (1995). And in reversing the decision of the sixth circuit, in O’Neal v. Morris, 3 F.3d 143,147(1993), it had emphatically held that “When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had "substantial and injurious effect or influence in determining the jury's verdict," that error is not harmless. And, the petitioner must win.” O'Neal v. McAninch, 115 S.Ct. 992, 994 513 U.S. 432, 436 130 L.Ed.2d 947. In the O’Neal case, the high court further explains that “(By "grave doubt" we mean that, in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.) We conclude that the uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a "substantial and injurious effect or influence in determining the jury's verdict"). Id. at 115 S.Ct. 992, at 994. The petitioner contends that the prosecutor made two (2) conflicting statements to the jury, and thereby confused the jurors when he said, that, he could prove that the petitioner was the robber; then at the time when the jury was to begin deliberating asked for an aiding and abetting instruction, by saying that, “because of the eye-witness testimony, the jury might not find him guilty of being the one who robbed those people.” If the prosecutor was confused, then it is obvious that the jurors were confused and influenced by the alternatives to find the petitioner guilty of any involvement in the crime. The reviewing court must rule that to allow the jury to consider an alternative to the charge of being the principal in the crime (i.e., adding an aiding an abetting jury instruction), is error and that the error is plain error as stated in O’Neal, supra.

The petitioner contends that his trial counsel had objected to the special instruction to the jury as being a mandate for them to convict the petitioner as being involved in the commission of the crime, but was overruled by the judge who unequivocally ruled that such a suggestion was proper, without concern for whether the petitioner had indeed participated in the offense as originally charged; thereby activating federal jurisdiction due to the constitutional magnitude of the error making O’Neal v. McAninch supra. the controlling case. To say the least, the added instruction influenced the mind of the jury to find the defendant guilty.

PUBLIC ACCUSATIONS OF RACIAL BIAS

In a 1986 Racine Journal Times newspaper article Judge Emmanuel Vuvunas was accused of a pattern of Racial Bias in his sentencing of Blacks, by a group of Black Social Workers at a conference held at the Racine Sheraton Hotel near Highway 20 and Oakes Road in Mount Pleasant.

CONCLUSION

Given these considerations, it should be obvious, that to a reasonable certainty, had the errors disclosed in this petition not occurred, the jury would have made a different decision, and voted for acquittal.

Therefore, the honorable court must Issue a Writ to Free Ellis W. Strickland II, from this Unlawful Custody by the State of Wisconsin.

Dated this 16th day of November 2005.

Respectfully Submitted,

_______________________

Ellis W. Strickland II, Pro se

# 155122 4B #1

Stanley Correctional Institution

100 Corrections Drive

Stanley, Wisconsin 54768-6500

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[1] The fraudulent documents are listed in detail on page 22A, in a Civil Rights Complaint under 42 U.S.C. § 1983, entitled Strickland v. McCaughtry, et al., Case No. 99 – C – 452 –C.

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