Opinion
File No. 3:77-mj-3003.
October 9, 2007
Jim Bell, Tucson AZ, On behalf of: Leonard Peltier, Lewisburg, PA.
ORDER
Before the Court are two proposed motions submitted by Mr. James Dalton Bell as "next friend" of Leonard Peltier. These motions (Exhibits 1 2) were initially received by the Court on July 23, 2007 (see Exhibit 3). The motions and letter were lodged with the Court, and the issue of standing was taken under advisement. On August 28, 2007, a second letter and duplicate copies of the motions were received (Exhibit 4). On August 29, 2007, the Court sent a letter to Mr. Bell (Exhibit 5), informing him that he had failed to pay the requisite filing fee or demonstrate he had "next friend" standing to bring this action. The Court recognizes that no filing fee was, in fact, due; however, Mr. Bell has failed to satisfy the Court that he is the "next friend" of Defendant.
Mr. Bell is not Mr. Peltier's attorney, nor has he previously been deemed Mr. Peltier's "next friend." Therefore, these motions were not signed in accordance with Rule 11, Fed.R.Civ.P., or Rule 7(b)(3), Fed.R.Civ.P., and would not be filed unless and until Mr. Bell established standing to file the motions.
No filing fee is required to file an application for a writ of habeas corpus under 28 U.S.C. § 2255. Local Rule 4.1(A). Although Bell's pleadings are styled as motions under Fed.R.Civ.P. 60(b), he fails to satisfy the timeliness requirement of that rule. Additionally, in reading these motions, they are clearly better characterized as a habeas corpus petition. The substance, and not the linguistic form, of a motion determines its legal effect. Acker v. H. Herfurth, Jr., Inc., 110 F.2d 241, 243 (D. C. Cir. 1939).
"Next friend" standing is not granted automatically to whomever desires to pursue an action on behalf of another person. Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). The Supreme Court explained in Whitmore that there are at least two prerequisites for "next friend" standing:
First, a "next friend" must provide an adequate explanation — such as inaccessibility, mental incompetence, or other disability — why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the "next friend" must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate . . .
The first prerequisite refers to the real party in interest, not the would-be "next friend." Thus, the "next friend" must show "a reasonable excuse as to why the detainee did not sign and verify the petition." Smith by and Through Missouri Public Defender Com'n v. Armontrout, 812 F.2d 1050, 1053 (8th Cir. 1987). This requires a showing that the real party in interest is unable to litigate his own cause due to his mental incapacity,Dennis ex rel. Butko v. Budge, 378 F.3d 880, 889 (9th Cir. 2004), or due to his own lack of access to the court. Coalition of Clergy, Lawyers, and Professors v. Bush, 310 F.3d 1153, 1160 (9th Cir. 2002). Mr. Bell asserts Mr. Peltier is unaccessible to him because Bureau of Prison policy prohibits communication between prisoners at different locations. Mr. Bell states nothing regarding Mr. Peltier's inability to access the courts, mental incompetence, or other disability. Contrary to Mr. Bell's interpretation, the "inaccessibility" requirement clearly refers to whether Mr. Peltier has access to the courts, not whether Mr. Bell has access to Mr. Peltier. See Coalition of Clergy, Lawyers, and Professors, 310 F.3d at 1160. Therefore, this initial requirement has not been satisfied.
Second, an individual may only be deemed "next friend" if he or she is truly dedicated to the best interests of the real party in interest. Mr. Bell states:
The second requirement is: "the 'next friend' must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate." Huh? I've persistently tried to file two motions on behalf of Peltier, either of which would, itself, cause his release. One would entirely erase his Federal conviction. Who would suggest that I am not "truly dedicated" to his "best interests"? Only if Mr. Peltier has previously expressed a desire to remain in Federal prison until the day he dies would my motions appear anything other than "truly dedicated to [his] best interests."
(Exhibit 5) (emphasis original). Again, Mr. Bell misses the point of the requirement. Under Mr. Bell's understanding of this requirement, any person who filed a habeas corpus petition would automatically be assumed to be dedicated to the best interests of the detainee. This is contrary to the Supreme Court's reasoning in Whitmore, which stated that the two prerequisites for next-friend standing are "driven by the recognition that it was not intended that the writ of habeas corpus should be availed of, as a matter of course, by intruders or uninvited meddlers, styling themselves as next friends." 495 U.S. at 164 (quotations and citations omitted). This is not to say that the Court believes Mr. Bell is intending to do harm to Mr. Peltier or is not sympathetic to his plight. But lacking any proof of Mr. Peltier's position on the matter and without any indication that Mr. Bell is capable of abiding by those wishes, this prerequisite is simply not met. Discussing this very issue, the Supreme Court stated in Whitmore, "'However friendly he may be to the doomed man and sympathetic for his situation; however concerned he may be lest unconstitutional laws be enforced, and however laudable such sentiments are, the grievance they suffer and feel is not special enough to furnish a cause of action in a case like this.'" 495 U.S. at 166 (citing Gusman v. Marrero, 180 U.S. 81, 87 (1901)). Here, Mr. Bell has not shown he is truly dedicated to the best interests of Defendant Peltier. The second requirement under Whitmore, therefore, has not been met.
Several courts, including the Eighth Circuit Court of Appeals, have slightly modified the Whitmore test, interpreting the "truly dedicated" prerequisite to require a "sufficient relationship and interest linking the would-be next friend to the detainee." Smith, 812 F.2d at 1053. This may require a showing of some "significant, preexisting relationship with the real party in interest." Hamdi v. Rumsfeld, 294 F.3d 598, 605 (4th Cir. 2002). The purpose of this requirement is to prevent filing by a person who is seeking "simply to gain attention by injecting himself into a high-profile case," Id., and helps determine whether the next friend is truly dedicated to the best interests of the real party in interest. Sanchez-Velasco v. Secretary of Dept. of Corrections, 287 F.3d 1015, 1026 (11th Cir. 2002). Mr. Bell has not indicated he has any previous relationship with Leonard Peltier, through blood relation or otherwise. Because Mr. Bell has failed to satisfy the two-prong Whitmore test or the Eighth Circuit's modified test, he cannot be deemed the "next friend" of Leonard Peltier. His motions are therefore DENIED for lack of standing.
Mr. Bell has failed to establish that he is the "next friend" of Mr. Peltier, and therefore he is unable to file these motions. Even had Mr. Bell been deemed the next friend of Mr. Peltier, however, this Court would be unable to review Mr. Bell's motions. The statute of limitations has run, and Peltier has previously filed one or more habeas corpus petitions. Pursuant to 28 U.S.C. §§ 2255 and 2244, the Court cannot rule on a successive habeas corpus application absent certification by a panel from the Eighth Circuit Court of Appeals.
IT IS SO ORDERED.
NEXT FRIEND JAMES DALTON BELL'S MOTION TO ORDER SETTING OF PELTIER'S RELEASE DATE PURSUANT TO EXPIRATION OF U.S. PAROLE COMMISSION ON NOVEMBER 1, 2002.
COMES NOW Movant Bell, sui juris (pro se), Next Friend of Leonard Peltier. In 1977, Peltier was convicted of murder, 18 U.S.C. § 1111, based on a jury verdict. He was sentenced to two consecutive life terms. Movant Bell seeks the setting of a release date for Peltier due to the expiration of the U.S. Parole Commission on November 1, 2002, and due to the expiration of "savings clauses" on October 31, 2002.
Peltier has a statutory right, and thus a liberty interest, to a setting of his release date pursuant to U.S.C. § 3551(b). See SOLOMON v. ELSEA, 676 F.2d 282, 284-85 (7th Cir. 1982). According to STANGE v. U.S. PAROLE COM'N., 875 F.2d 760, 761 (9th Cir. 1989):
"The Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat. 1837, abolished the United States Parole Commission and repealed most of the preexisting statutory framework governing parole of federal prisoners. The Act became effective on November 1, 1987. ROMANO v. LUTHER, 816 F.2d 832, 837 (2d Cir. 1987). However, Congress provided that the Commission should continue operating for a period of five years beyond the effective date of the Act. See 218(a)(5), 235(b)(1)(A), 98 Stat. at 2027, 2032; FARESE v. STORY, 823 F.2d 975, 976 (6th Cir. 1987). In addition, Congress provided that parts of the statutory framework governing the timing of parole should also be extended for five years past the effective date. See 235(b)(1), 98 Stat.at 2032. [. . .] "Section 235(b)(3) of the Act, codified at 18 U.S.C. 3551(b)(3), provides as follows: The United States Parole Commission shall set a release date for an individual who will be in its jurisdiction the day before the expiration of five years after the effective date of this Act, pursuant to section 4206 of Title 18, U.S.C.A release date set pursuant to this paragraph shall be set early enough to permit consideration of an appeal of the release date, in accordance with Parole Commission procedures, before the expiration of five years following the effective date of this Act." (end quote from Stange)
RULE 60(b) MOTION APPROPRIATE FOR CRIMINAL PROCEEDINGS
Until 2005, some appeal courts were rejecting Federal Rule of Civil Procedure 60(b) filings in criminal cases, as if there was some sort of per se rule prohibiting them. But the Supreme Court, in GONZALEZ v. CROSBY, 545 U.S. 524, 534, 162 L.Ed.2d 480, 494 (2005) held:
"Rule 60(b) has an unquestionably valid role to play in habeas cases. The Rule is often used to relieve parties from the effect of a default judgment mistakenly entered against them, e.g., KLAPPROTT, 335 U.S. at 615, 93 L.Ed 266 (opinion of Black, J.) a function as legitimate in habeas cases as in run-of-the-mine civil cases. The Rule also preserves parties' opportunity to obtain vacatur of a JUDGMENT THAT IS VOID FOR LACK OF SUBJECT MATTER JURISDICTION — a consideration just as valid in habeas cases as any other, since absence of jurisdiction altogether deprives a federal court of the power to adjudicate the rights of the parties. STEEL CO. v. CITIZENS FOR BETTER ENVIRONMENT, 523 U.S. 83, 94, 101, 140 L.Ed.2d 210 (1998)." (emphasis via capitalization added.)
Thus, GONZALES overruled cases such as UNITED STATES v. FAIR, 326 F.3d 1317, 1318 (11th Cir. 2003), which had stated:
"In UNITED STATES v. MOSAVI, 138 F.3d 1365 (11th Cir. 1998), we addressed the applicability of Rule 60(b) in the context of a criminal case [. . .] This Court stated, however, that the Federal Rules of Civil Procedure "unambiguously" limited their application to CIVIL cases. Consequently, we held that the appropriate vehicle for challenging the forfeiture was Mosavi's direct criminal appeal and his conviction and sentence and that "Rule 60(b) simply does not provide for relief from judgment in a criminal case."
(end quote from Fair; emphasis by italics converted to caps, supra.)
Peltier can properly claim relief under Rule 60(b)(2), "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)," as it would have been impossible to discover the invalidity of 18 U.S.C. 1111 and 18 U.S.C. 3231 (due to the non-passage of H.R. 3190 in 1948) using "due diligence" and the materials and publications available in federal prison law libraries.
Movant Bell also claims for relief for Peltier under Rule 60(b)(4). "[T]he judgment is void", because Peltier was indicted under and charged with a legally non-existent crime, 18 U.S.C. 1111, and because the basis for federal court jurisdiction, 18 U.S.C. 3231, was also invalid. (Federal courts are courts of limited jurisdiction: They only have jurisdiction that Congress gives to them.)
Movant Bell claims relief for Peltier under Rule 60(b)(5). "[T]he judgment has been satisfied, released, or discharged." Because of the expiration of the saving clause keeping the Parole Commission "alive" expired, October 31, 2002, Peltier has done his time and is entitled to be released, with a certificate of release issued by the Parole Commission, or by the court.
As a consequence, Peltier is entitled to relief under F.R.Civ.P. 60(b) in this criminal case, as the U.S. Supreme Court has ruled. STANGE continued at 761:
"In ROMANO v. LUTHER, 816 F.2d 832 (2d Cir. 1987), the Second Circuit rejected a claim identical to appellant's Romano, and in doing so undertook a lengthy and exhaustive examination of 3551(b)(3) in, light of the Act's structure and legislative history. It observed that the subsection is a "'winding up' provision" designed to give the Parole Commission a five-year transition period during which the Commission "should discharge its final responsibility toward those sentenced under the preexisting law." Id. at 839, 837. It stated that because the "effective date of the Act" is November 1, 1987, the Commission had until November 1, 1992 to set parole release dates for prisoners within its jurisdiction. The court concluded that the subsection applies 'early enough to permit consideration of an appeal of the release date. . . .'" Id at 839. We agree with the Second Circuit. By óts terms, 235(b)(3) only requires the Commission to decide on a release date for prisoners within its jurisdiction early enough to permit an appeal of the release date [. . .] Because appellant will be within the Commisson's jurisdiction until that time — minus the time necessary for an appeal — to set the appellant's release date."
(end of quote from STANGE.)
As stated in LEWIS v. MARTIN, 880 F.2d 288, 290 (10th Cir. 1989):
"It is evident from the entirety of section 235 that subsection (b)(3) is a "winding up" provision to ensure that the Parole Commission will set release dates for all prisoners sentenced under the old statutes before it goes out of business on November 1, 1992. See id. at 839-40. The subsection does not require the Commission to take immediate action on the release date of any prisoner. Rather, by its own terms, the subsection requires the Commission to set a release date for any prisoner within its jurisdiction sufficiently before November 1, 1992, to allow him time to appeal the decision."
LEWIS v. MARTIN, continues at 291, quoting ROMANO, 816 F.2d at 841 (2d Cir. 1987):
"Subsection 235(b)(3) is obviously designed to deal with a very specific problem — the need to be sure a parole date is established for all those who will still be in prison the day before the Parole Commission ceases to exist. For that limited group, Congress chose not to require service of their maximum sentences but instead to afford them release on parole within their applicable parole guideline ranges. In all likelihood there will be a relatively small number of prisoners sentenced under the current system and still in custody on October 31, 1992, the day before the end of the transition period. Only that group, of which [petitioner] is not now likely to be a member, will benefit from subsection 235(b)(3)."
However, both the Parole Commission and its associated laws were allowed by Congress to expire on November 1, 2002, See P.L. 104-232 2(a), 110 Stat. 3055, which set a fifteen year limit. Thus, the Commission expired on November 1, 2002, and Peltier acquired a statutory interest in release. P.L. 107-273, 11017(a), Nov. 2, 2002, came too late to avoid this.
As was stated in U.S. EX REL D'AGOSTINO v. KEOHANE, 877 F.2d 1167, 1171 (3d Cir. 1989):
"Recognizing that most individuals sentenced under the old system would be released during the five year transition period before the Commission expired, the sponsors were concerned with the fate of those individuals who would not be released by the expiration of the Commission's tenure. It was those individuals who might "fall through the cracks" if no release date was set prior to the expiration of the Commission's term. Consequently, the Commission was directed to set a release date for individuals sentenced under the old system who would still be incarcerated on the date prior to the expiration of the Commission. See 1984 U.S. Code Cong. Admin.News at 3372. Since D'AGOSTINO's statutory release date is set for July 16, 1992, he will fall outside the jurisdiction of the Parole Commission on October 30, 1992, which is the day prior to the expiration of the Commission's term. Thus, by its very terms as well as by its obvious intent, 235(b)(3) does not apply to D'AGOSTINO." "Although we have not previously interpreted 235(b)(3), two other courts of appeal have interpreted the intent of the section. In ROMANO v. LUTHER, 816 F.2d 832, (2d Cir. 1987), the Second Circuit held that 235(b)(3) "requires the Parole Commission to set release dates within applicable guideline ranges only for prisoners who will be in prison October 30, 1992, the day before the end of the five-year transition period. . . ." 816 F.2d at 842. [. . .] While so holding, the court noted that "the subsection is a 'winding-up' provision THAT WILL PROVIDE THE CERTAINTY OF RELEASE WITHIN THE APPROPRIATE GUIDELINE RANGE TO THOSE FOR WHOM THE PAROLE COMMISSION, PRIOR TO ITS ABOLITION, might otherwise have either taken no action or set a parole date beyond their guideline ranges." 816 F.2d at 840." Additionally, the Court of Appeals for the Fifth Circuit, relying on ROMANO, supra, held in LIGHTSEY v. KASTNER, 846 F.2d 329 (5th Cir. 1988) that the Commission is not required to set a release date earlier than a point in time early enough to permit an administrative appeal to the Commission prior to the date on which the Parole Commission would cease to exist." 846 F.2d at 333."
(end of quote from D'AGOSTINO.)
CONGRESS EXTENDS PAROLE COMMISSION
On a number of occasions, Congress has extended the life of the Parole Commission. As stated by Note 2 of BLEDSOE v. U.S., 384 F.3d 1232, at 1234 (10th Cir. 2004):
"Congress has repeatedly extended the life of the Parole Commission to administer those prisoners with pre-SRA sentences. See, e.g., Pub.L. No. 101-650, Title III, 316, 104 Stat. 5089, 5115 (extension for ten years); Pub.L. No. 104-232, 2(a), 110 Stat. 3055 (extension for fifteen years). The life of the Commission has most recently been extended to October 31, 2005. See id." [Section 11017(a) of Act Nov. 2, 2002, P.L. 107-273, which appears as 18 U.S.C.S. 4202 note, extends the life to 18 years.] [Section Act Sept. 29, 2005, P.L. 109-76, 2, 119 Stat. 2035, extends the life to 21 years.]
Superficially, it would appear that these extensions to the Parole Commission's life are "legal", and delay the requirement that the Parole Commission provide the remaining prisoners with release dates according to the Guidelines. And, indeed, the first two extensions were done in plenty of time to ensure that the Parole Commission's life was extended long prior to its expiration.
The first extension was the Act of Dec. 1, 1990, P.L. 101-650, which occurred 23 months prior to the November 1, 1992 initially-scheduled expiration of the Commission. The second extension was the Act of October 2, 1996, P.L. 104-232, about 13 months prior to the November 1, 1997 rescheduled expiration date. In either case, the Parole Commission would have argued that these reschedulings occurred so long before the expiration that no prisoner's release needed to be set that early, and the extension made it unnecessary to perform that task until the updated expiration date.
However, the THIRD rescheduling was, and remains, a problem. The Parole Commission was scheduled to expire on November 1, 2002, AND IT DID SO. Only on November 2, 2002 was P.L. 107-273 effective, so the Parole Commission was already out of business.
While this missed by 'only a day', the mistake was substantially larger. In fact, the Parole Commission was required to set those release dates for those prisoners who would be in prison on the day before its expiration, and in fact they were obliged to set those release dates sufficiently early so that the administrative appeals could be COMPLETED by the expiration date of the Commission: If those appeals generally took months to complete, this would mean that the Parole Commission should have set those dates months before its expiration.
Even had the Parole Commission's term been extended by legislation a few days prior to its Nov. 1, 2002 expiration date (it was not), that situation would STILL have violated the Commission's obligations: The Commission could not ASSUME that its tenure would be extended AT ALL, and certainly not in time for it to not be required to set those dates. Obviously, as of (say), October 1, 2002, the Parole Commission knew that it was ALREADY past the date at which it (should have) had set the release dates in order to ensure that enough time existed to do the administrative appeals. By that time, therefore, it had already violated its obligations.
PELTIER'S SITUATION DISTINGUISHED
Unlike the prisoners in the cases cited supra, Peltier is precisely in the situation these Appeals Courts have repeatedly claimed the Congress intended to apply 235(b)(3) to. As the Third Circuit stated, supra, in D'AGOSTINO, 877 F.2d at 1171:
"[This] provision [. . .] will provide the certainty of release within the appropriate guideline range to those for whom the Parole Commission, prior to its abolition, might have otherwise have either taken no action or set a parole date beyond their guideline range."
Precisely so. The U.S. Parole Commission, prior to its abolition on November 1, 2002, took no action to set Peltier's release date. The Parole Commission knew, with certainty, that Peltier would be under its jurisdiction on the day before its expiration, October 30, 2002, and in fact it knew this for a decade or more prior to that date. Again, quoting LEWIS v. MARTIN, 880 F.2d at 290:
". . . the subsection requires the Commission to set a release date for any prisoner within its jurisdiction sufficiently before November 1, 1992, to allow him time to appeal the decision."
Again, quoting STANGE, supra, 875 F.2d at 761:1
"By its terms, 235(b)(3) only requires the Commission to decide on a release date for prisoners within its jurisdiction early enough to permit an appeal of the release date [. . .] The Commission has until that time — minus the time necessary for an appeal — to set the appellant's release date."
Again, quoting BLEDSOE v. U.S., 384 F.3d 1232, 1235 (10th Cir. 2004):
"We today confirm what has been assumed by the magistrate judge and the district court here that LEWIS establishes that petitioners have no statutory interest — and therefore no vested liberty interest — in release under the SRA WHEN THERE IS NO CERTAINTY THAT THEY MAY BE IN THE CUSTODY OF THE PAROLE COMMISSION WHEN IT EXPIRES."
But there was, indeed, the certainty that Peltier would be, and in fact WAS in the jurisdiction of the Parole Commission during the period prior to its expiration, on November 1, 2002, and this clearly distinguishes Peltier's case from the facts of the various cases quoted above.
BLEDSOE continued at 1237:
"Because we will not know if petitioners will be in the group that must actually be resentenced under the guidelines on the day before the Commission expires until after Congress actually permits the Parole Commission to expire, we hold that petitioners do not now have a statutory interest, and therefore cannot have a liberty interest, in the language of the original SRA. LEWIS, 880 F.2d at 290. And, because petitioner's have not established that they will have a liberty interest in being resentenced under the SRA, we hold that petitioners have not established the violation of that interest as necessary to pursue a due process claim. See BD. OF PARDONS v. ALLEN, 482 U.S. 369, 378 n. 10, 96 L.Ed.2d 303 (1987)."
(end quote from Bledsoe)
Peltier acquired vested rights to the statutory rights defined in the eventual expiration of 18 U.S.C. 4206, at least at the point at which the Parole Commission expired, and in fact at least 90 days earlier, as that is the time the Commission had to act to comply with the terms of the law, 235(b)(3). As stated in WOLFF v. MCDONNELL, 418 U.S. 539, 557, 41 L.Ed.2d 935, 951 (1974):
"But here the State itself has not only provided a statutory right to good-time but also specifies that it is to be forfeited only for serious misbehavior. Nebraska may have the authority to create, or not, a right to a shortened prison sentence through the accumulation of credits for good behavior, and it is true that the Due Process Clause does not require a hearing "in every conceivable case of government impairment of private interest." CAFETERIA WORKERS v. MCELROY, 367 U.S. 886, 894, 6 L.Ed.2d 1230 (1961). But the State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment "liberty" to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated."
The wording of 235(b)(3) grants the statutory right. See CASTANEDA v. HENMAN, 914 F.2d 981, 983 (7th Cir. 1990):
"A liberty interest may arise from the due process clause itself, see, e.g., VITEK v. JONES, 445 U.S. 480, 63 L.Ed.2d 552 (1980); GAGNON v. SCARPELLI, 411 U.S. 778, 36 L.Ed.2d 656 (1973); or it may be created by statute or binding administrative regulation. See, e.g., HEWITT v. HELMS, 459 U.S. 460, 74 L.Ed.2d 675 (1983); WOLFF [v.MCDONNELL,] 418 U.S. 539. For a liberty interest to be created by statute or regulation, the statute or regulation must use "language of an unmistakably mandatory character, requiring that certain procedures 'shall', 'will', or 'must' be employed [and that certain action will not be taken by government officials] absent specified substantive predicates." HEWITT, 459 U.S. at 471-72. By using such language, the statute places "substantive limits on official discretion." OLIM v.WAKINEKONA, 461 U.S. 238, 249, 75 L.Ed.2d 813 (1983). More recently, the Supreme Court has stated that a statute or regulation creates a liberty interest "by establishing 'substantive predicates' to govern official decision making, . . . and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met." KENTUCKY DEPARTMENT OF CORRECTIONS v. THOMPSON, 490 U.S. 454, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989)."
(end quote from Castaneda v. Henman)
Section 235(b)(3) states:
"The U.S. Parole Com'n SHALL set a release date, for an individual who will be in its jurisdiction the day before the expiration [. . .] of this Act. [. . .] A release date set pursuant to this paragraph SHALL be set early enough to permit consideration of an appeal of the release date, in accordance with parole Commission procedures, before the expiration of five years following the effective date of this Act." (emphasis via capitalization added.)
Therefore, it is clear that 235(b)(3) provides a statutory right, leading to a liberty interest in a release date being provided to a certain class of prisoners (including Peltier) in enough time to complete an administrative appeal prior to the expiration of the Act. This expiration actually was allowed to occur at the end of the business day on October 31, 2002, and both the Parole Commission and the associated laws (including 18 U.S.C. 4206) expired at that point in time.
The supposed "further extension of Parole Commission", from the notes for 18 USCS 3551, by means of Section 11017(a) of an Act on Nov. 2, 2002, P.L. 107-273, was and should be considered ineffective to 'bring back' the Parole Commission from its state of expiration. Congress could, of course, re-pass the entire portion anew, but it did not do so. But even if it did this, that would not extinguish the vested liberty interest of the prisoners in the setting of that release date pursuant to 235(b)(3), nor invest that Parole Commission with authority over that class of prisoners previously subject to the pre-November 1, 2002 Parole Commission.
PELTIER ENTITLED TO CERTIFICATE OF DISCHARGE NOW According to 18 U.S.C. 4210(e):
"Upon the termination of the jurisdiction of the Commission over any parolee, the Commission shall issue a certificate of discharge to such parolee and to such other agencies as it may determine." The jurisdiction of the Parole Commission over all prisoners whose offenses occurred prior to November 1, 1987, terminated on November 1, 2002, due to the expiration of the "saving clauses" of the Act on October 2, 1996, P.L. 104-232, 2(a), 110 Stat. 3055.
According to FURNARI v. WARDEN, ALLENWOOD FED. CORR. INST., 218 F.3d 250, 252, note 1 (3d Cir. 2000):
"In 1996, the ten-year period was extended to fifteen years. See Pub.L. No. 104-232, 1-3, 110 Stat. 3055 (1996). Accordingly, the transition period does not expire until October 31, 2002."
Since the Parole Commission ceased to exist, and did not exist on November 1, 2002 its jurisdiction over Peltier ceased.
Given the magnitude of the error involved, courts may be tempted to "ignore" or discount the implications of Congress's failure to pass the extension of the Parole Commission and its associated laws. This would clearly thwart the will of Congress. Section 235(b)(3) clearly states:
"The United States Parole Commission SHALL set a release date, for an individual who will be in its jurisdiction the day before the expiration of five years after the effective date of this Act, pursuant to section 4206 of Title 18, United States Code. A release date pursuant to this paragraph shall be set early enough to permit consideration of an appeal of the release date, in accordance with parole Commission procedures, before the expiration of five years following the effective date of this Act."
Despite the two extensions done in 1990 and 1996, long before the expiration of the Commission, Congress clearly intended that at some point the Parole Commission would indeed expire. The plain meaning of the above directive is that no subsequent further instructions by Congress are necessary or will be provided: The Parole Commission "shall" act, to set each release date to every individual "who will be in its jurisdiction . . .", and it must do so in enough time to begin and complete an appeal of that date.
The Commission is obviously directed to do that without further clarification, and in fact automatically. It is clear why the Commission did not do this prior to the 1992 and 1997 expiration dates: The dates were extended in plenty of time. But it is almost inexplicable why the Parole Commission DIDN'T proceed to act in the months prior to the October 31, 2002 expiration: They KNEW what Congress intended them to do, and when it had to be done. They were not impeded from acting.
This pattern and practice of snubbing the rules raised its insidious head again in 2005: The Commission was once again extended on Sept. 25, 2005, by means of P.L. 109-76, 119 Stat. 2035. At first blush this may seem "on time" with respect to the "November 1, 2005" expiration date, but such a conclusion forgets that the Parole Commission was YET AGAIN obliged to set each and every release date for individuals under its jurisdiction on October 31, 2005, at least early enough to allow administrative appeals. September 29, 2005, falls approximately 32 calendar days prior to the "November 1, 2005" expiration date, and given the glacial pace of government administrative procedures it seems highly unlikely that those dates could be both set AND appealed in merely 32 days.
Section 235(b)(3) is the "saving clause" which continued to apply the parole laws, including 18 U.S.C. 4206, to persons who committed crimes prior to November 1, 1987. But because the saving clause expired on November 1, 2002, there is nothing to "save" the saving clause, and no court should try to do that. Congress, by planned inaction, allowed the Parole Commission and its laws to expire for all persons and the Parole Commission (twice) refused to set the release dates that 235(b)(3) clearly prescribes.
The apparent (but late) passage of P.L. 107-273, on Nov. 2, 2002, combined with the passage of P.L. 109-76, on Sept. 29, 2005, may have (arguendo) restored something to be called a "Parole Commission", but it is now a "Parole Commission" in name only: No one is (legally) under its authority. One can't "unring the bell". All persons under the authority of the Parole Commission on October 31, 2002, were no longer under that authority on the next day, and they had developed a statutory right (and a liberty interest) in a release date computed by the only current and existing law, the Sentencing Guidelines. Title 18 U.S.C. 4206, after all, finally and totally expired, even for those few remaining under the Parole Commission, and thus it cannot be used to set any release date now.
Any doubt that the expiration of the saving clause erased the applicability of 235(b)(3) and 18 U.S.C. 4206 is eliminated by 1 U.S.C. 108, "Repeal of repealing act", which states: "Whenever an Act is repealed, which repealed a former Act, such former Act shall not thereby be revived, unless it shall be expressed so provided." And as stated in IN RE METRO SUBWAY, 630 F.Supp. 385, 390 (D.D.C. 1984):
"[. . .] savings statutes do not undo a repeal but provide that rights and liabilities existing at the time of the repeal will continue to exist. The status quo as of the date of the repeal preserves and protects these accrued rights and liabilities, even though the statute under which they arose has been repealed." (end quote from In Re Metro Subway)
Thus, Peltier's rights under the saving clause accrued, and the subsequent act of Nov. 2, 2002, did not extinguish those rights.
REPEAL BY IMPLICATION NOT FAVORED
According to SILVER v. NEW YORK STOCK EXCHANGE, 373 U.S. 341, 357, 10 L.Ed.2d 389, 400 (1963):
"'[i]t is a cardinal principle of construction that repeals by implication are not favored.' U.S. v. BORDEN CO, 308 U.S. 188, 198, 84 L.Ed. 181, 190; see GEORGIA v. PENNSYLVANIA R. CO., 324 U.S. 439, 456, 457, 89 L.Ed. 1051, 1062 (1945); CALIFORNIA v. FEDERAL POWER COM., 369 U.S. 482, 485, 8 L.Ed.2d 54, 57. (1962)."
As stated in CALIFORNIA v. FED. POWER COM., supra, at 57 citing BORDEN:
"[w]hen there are two acts upon the same subject, the rule is to give effect to both if possible."
And as stated in RODRIGUEZ v. U.S., 480 U.S. 522, 524, 94 L.Ed.2d 533, 536 (1987):
"It is well settled, however, that repeals by implication are not favored, see e.g., TVA v. HILL, 437 U.S. 153, 189, 57 L.Ed.2d 117 (1978), and will not be found unless an intent to repeal is "'clear and manifest.'" U.S. v. BORDEN, 308 U.S. 188, 198, 84 L.Ed. 181 (1939) (quoting RED ROCK v. HENRY, 106 U.S. 596, 602, 27 L.Ed. 251 (1883). Nothing in the language of these two provisions suggests the existence of the "'"irreconcilable conflict,"'" KREMER v. CHEMICAL CONSTRUCTION CORP., 456 U.S. 461, 468, 72 L.Ed.2d 262 (1982) (citations omitted), from which an intent to repeal may be inferred." (end quote from rodriguez)
In the instant case, there is no "irreconcilable conflict" between the Act of Nov. 2, 2002, P.L. 107-273, and the rights of Peltier accrued prior to the expiration of the Parole Commission on October 31, 2002, as defined in the Sentencing Reform Act of 1984, P.L. No. 98-473, 98 Stat. 1837. There was not "clear and manifest" intent to repeal those accrued rights, and such an attempt could not have succeeded had it been attempted, since it occurred too late to prevent the Parole Commission from expiring. Congress is presumed to be aware that the Parole Commission was going to expire on October 31, 2002, and that it had to complete the setting of release dates for all prisoners in its jurisdiction (including administrative appeals) by the day before, October 30, 2002. Their delay to pass the Nov. 2, 2002 Act must have anticipated and accepted the fact that all prisoners would have their release dates set and appealed.
WHEN DID PAROLE COMMISSION NEED TO SET RELEASE DATE(S)?
Since Congress insisted that the release dates be set in enough time to do an administrative appeal, it is appropriate to study the time frame for that appeal to determine how long it could take to meet minimal due process rights. This will show how early the release dates had to be set in order to comply with Congress's wishes.
Title 18 U.S.C. 4215 "Appeal", while repealed for post-Nov. 1, 1987, crimes, remained in effect along with the Parole Commission until their expiration on Nov. 1, 2002. It stated:
"(a) Whenever parole release is denied [or] [. . .] parole conditions are imposed or modified [or] [. . .] parole is modified or revoked [. . .] the individual [. . .] may appeal such decision by submitting a written application to the National Appeal Board not later than THIRTY [30] DAYS days following the date on which the decision is rendered." "(b) The National Appeals Board, upon receipt of the appellant's papers, must act pursuant to rules and regulations within SIXTY [60] DAYS to reaffirm, modify, or reverse the decision and shall inform the appellant in writing of the decision and the reasons therefor." (emphasis by capitals supplied)
Therefore, the sum of these two times (30 days and 60 days) is the time that the Parole Commission must have acted — before the expirations on November 1, 2002, and November 1, 2005 — in order to comply with Congress's instructions. The Parole Commission should have set all release dates at least as early as November 1, less 90 days, i.e., Aug. 3, 2002, and subsequently again on August 3, 2005, to comply with the law. In either case, Congress had not extended the life of the Parole Commission as of that date, and the Parole Commission thus began to flout the law and its obligations. Only if Congress had acted to extend the life of the Parole Commission BEFORE those dates, would that Commission have been justified and authorized to not to set each prisoner's release date.
Because the statute 235(b)(3) clearly requires that the release dates be set and adequate time be given for appeals, Peltier — and the few hundred prisoners similarly situated — acquired a statutory right, and indeed a liberty interest in release when the COMMISSION snubbed Congress and failed to act. And because the Commission did indeed expire prior to its acting, those laws, along with 18 U.S.C. 4206 (and other laws) cannot now be used to deny Peltier a release date set in stone, nor justify a delayed release date beyond that of the relevant advisory Sentencing Guidelines. Put simply, Peltier had a right to a system which allowed him to be released, called "Parole". "Parole" no longer exists, per Congress, therefore Peltier must expect to be released.
The Seventh Circuit agrees that section 235 of the SRA applies to Peltier. As stated in NORWOOD v. BRENNAN, 891 F.2d 179, 181 (7th Cir. 1989):
". . . we will first address the effective date of 235 of the SRA of 1984, as set forth in 235(a)(1). In construing that section, we held in U.S. v. STEWART, 865 F.2d 115 (7th Cir. 1988), that the SRA of 1984 applied only to offenses committed after November 1. 1987. That rule, however, does not apply to the parole transition provisions of the SRA including 235, because defendants committing offenses after November 1, 1987, are not subject to parole. A contrary holding would produce the anomaly of a parole regulation applicable only to offenses not subject to parole. While we have not previously addressed the question, the Second Circuit reached an identical conclusion in ROMANO [v. LUTHER, 816 F.2d 832 (2d Cir. 1987)]".
(end quote from Norwood v. Brennan)
As of November 1, 2002, the Parole Commission was no longer empowered to 'grant or deny' release on parole notwithstanding the guidelines . . ." as had been allowed under 18 U.S.C. 4206(c). According to SKOWRONEK v. BRENNAN, 896 F.2d 264 (7th Cir. 1990):
"The specific savings clause preserved this statute for five years; the provision applied at all times to persons who, like SKOWRONEK and JOHN, were convicted of crimes before November 1, 1987, the effective date of the Act. CCCA, Pub.L. 98-473, ch. II, 235(b)(1)(A), 98 Stat. 2032 (1984); accord TRIPATI [v. U.S. PAROLE COM'N.,], 872 F.2d [328 (9th Cir. 1989)] at 330." (end quote from Skowronek v. Brennan)
As stated in TRIPATI, 872 F.2d at 330:
"Under Section 235(b)(1) of the SRA, however, 4206 remains in effect for individuals convicted before November 1, 1987, UNTIL OCTOBER 31, 1992. Pub.L. No. 98-473, Title II, 235(b)(1)(A), 98 Stat. 1976, 2032 (1984); LIGHTSEY v. KASTNER, 846 F.2d 329, 333 (5th Cir. 1988)." (emphasis by capitals added.)
Arguendo, the life of the Parole Commission, at 4206, was extended twice, in enough time to beat the deadline: December 1, 1990, and October 2, 1996. So arguably 4206 remained in effect until October 31, 2002. But it DIDN'T remain in effect until November 1, 2002: The Commission legally went out of business as of that date. (Actually, at the end of business on October 31, 2002). Thus, the argument that didn't work for TRIPATI and SKOWRONEK and JOHN must work for Mr. Peltier: He is entitled not merely to a set release date, but in fact one within the Guidelines. Title 18 U.S.C. 4206 expired, and Peltier has a liberty interest in being sentenced according to those Guidelines. This fact distinguishes Peltier's case (and all others insofar as here relevant who were in prison October 31, 2002) from the hitherto numerous cases of the 1980's and '90's where relief was denied to those petitioners: In the latter cases, the Parole Commission had not yet expired and the SRA savings clause maintained the effect of 18 U.S.C. 4206 for those prisoners. No longer!
PAROLE EXPECTATION WORTHY OF DUE PROCESS PROTECTION
U.S. Ex Rel. MOORE v. CONNER, 284 F.Supp.2d 1092, 1098-99 (N.D. Ill. 2003) held:
"The Seventh Circuit has held that, under the mandatory language of the federal parole statute, 18 U.S.C. 4206(a), an inmate has an expectation of parole that is worthy of due process protection. SOLOMON v. ELSEA, 676 F.2d 282, 285 (7th Cir. 1982). See also MORRISSEY v. BREWER, 408 U.S. 471, 482, 33 L.Ed.2d 484 (1972)." (end quote from Moore v. Connor)
As is stated in SOLOMON, supra, at 285:
"The mandatory language of 18 U.S.C. 4206(a) is emphasized by 18 U.S.C. 4206(c) (note 3), which states that the Commission may not deviate from the [parole] guidelines unless "good cause" exists to do so." (Note 3:) 18 U.S.C. 4206(c) provides: (c) The Commission may grant or deny release on parole notwithstanding the guidelines referred to in subsection (a) of this section if it determines there is good cause for so doing: Provided, that THE PRISONER IS FURNISHED WRITTEN NOTICE STATING WITH PARTICULARITY THE REASONS FOR ITS DETERMINATION, including a summary of the information relied upon."
Peltier has not received the protection of "due process" regarding parole. The Parole Commission was obligated, shortly before, but at least 90 days prior to November 1, 2002, to set Peltier's release date, unless "it determines there is good cause for [denying parole]." The Parole Commission did not so find there was good cause for denying parole release to Peltier, and the mandatory nature of the rule required setting a release date absent such a finding.
As stated in SOLOMON, supra, at 284:
"While an inmate does not have a protectible expectation of parole by virtue of the mere existence of a parole system, the Supreme Court in GREENHOLTZ v. INMATES OF NEBRASKA PENAL AND CORRECTIONAL COMPLEX, 442 U.S. 1, 60 L.Ed.2d 688 (1979), concluded that a specific statute governing parole release determinations may give rise to a liberty interest entitled to constitutional protection if it is phrased in such a way as to provide the inmates with a legitimate expectation of release on parole." [. . .] The similarities between the Nebraska statute and 18 U.S.C. 4206(a) lead us to the conclusion that 18 U.S.C. 4206(a), with its provision that IF the statutory and regulatory guidelines are met the inmate SHALL be released, gives rise to the same liberty interests as were found to exist in GREENHOLTZ. (Note 6.) Under the mandatory language of the federal parole statute, an inmate has an expectation of parole worthy of due process protection. (Note 6:) A similar conclusion was reached by the Eighth Circuit in EVANS v. DILLAHUNTY, 662 F.2d 522 (8th Cir. 1981. [. . .]
WHAT SHOULD PELTIER'S GUIDELINE RANGE SENTENCE BE?
Peltier was found guilty of a violation of 18 U.S.C. 1111 in 1977, long before the adoption of the Federal Sentencing Guidelines and their effective date of 1987. The Parole Commission was allowed to expire on November 1, 2002, and since the associated statutes such as 18 U.S.C. 4205 and 4206 expired with it, Peltier must be resentenced according to the Guidelines, and pursuant to the associated opinions and decisions expressed in JONES v. U.S., 526 U.S. 227 (1999); APPRENDI v. NEW JERSEY, 147 L.Ed.2d 435 (2000), and BLAKELY v. WASHINGTON, 159 L.Ed.2d 296 (2004) and all other pertinent cases. As stated in Jones at 243:
"Under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than a prior conviction) that increases the maximum penalty for a crime MUST BE CHARGED IN AN INDICTMENT, submitted to a jury, and proven beyond a reasonable doubt." (JONES v. U.S., 526 U.S. 227, 243, 143 L.Ed.2d 311, 326, note 6 (1999)). (end quote from Jones) v. U.S.)
According to the November 1, 2005, Guidelines Manual, violation of the statute 18 U.S.C. 1111 is associated with Guidelines 2A1.1. (First degree murder.) Peltier did not admit to facts that would support the enhancements.
GUIDELINE 2A1.1:
Under the holdings of JONES/APPRENDI/BLAKELY, supra, as applied to the Federal Sentencing Guidelines by U.S. v. BOOKER, 543 U.S. 220, 160 L.Ed.2d 661 (2005), facts not specifically admitted by the defendant or found by a jury beyond a reasonable doubt cannot be used to enhance a sentence beyond the guideline range. In Peltier's case, his case is "final", and thus the instruction to apply the Guidelines in an advisory fashion (adopted by the second majority opinion in Booker, supra) is not applicable.
According to the Sentencing Table in the 2005 revision of the Sentencing Guidelines an Offense Level of 43 and a Criminal History Category of I results in a sentencing range of life. Peltier has already served in excess of 360 months and must be released after resentencing, or sooner.
CONCLUSION
Peltier acquired a statutory right, and a liberty interest in having his release date set by the Parole Commission unless they made certain findings and made them promptly before that Commission expired — along with other associated laws — on November 1, 2002. They did not do so. Peltier is now entitled to be resentenced according to the United States Sentencing Guidelines. The Parole Commission, even if it is considered to be extended, lost jurisdiction to act in Peltier's case by its expiration and that of the associated laws.
Movant Bell requests this Court to accomplish Peltier's resentencing and release.7/15/07
Signed __________ Dated, James Dalton Bell, Next FriendCERTIFICATE OF SERVICE
I, James Dalton Bell, under penalty of perjury, hereby certify that on the date written below I mailed a copy of this filing to the court, addressed to this court, the U.S. Attorney's office listed below, first class postage affixed, labelled "Legal Mail/Special Mail". I presented the envelope to the prison authorities pursuant to Houston v. Lack, 487 US 266, 101 L.Ed.2d 245 (1988). ("mailbox rule")7/15/07 Signed, __________ Dated, James Dalton Bell, Next Friend United States District Court, District of North Dakota, SoutheasternDivision, Attn: Todd
Dudgeon, 655 First Ave., North, Suite 130, Fargo ND 58102-4932
Eric A. Seitz Suite 714, 820 Mililani St., Honolulu, Hawaii 96813-2937
William Kirschner, Kirschner Assoc., 1351 Page Drive, Suite 104, Fargo, ND 58103.
Bruce Henry Ellison, 328 E New York St. #5, Rapid City, South Dakota 57701.
Michael E. Tigar, John Privitera: Tigar, Buffone Doyle.
Arthur Kinoy, New York City, NY.
Barry A. Bachrach, 311 Main Street, PO Box 15156, Worcester MA 01615
Michael Kuzma, Esq., 1893 Clinton Street, Buffalo NY 14206
Mark B. Gombiner, New York, New York.
Lynn E. Crooks, U.S. Attorney Office, 655 First Ave N., PO Box 2505, Fargo ND 58108.
National Association of Criminal Defense Lawyers, Inc.
California Attorneys for Criminal Justice.
Cathedral Church of St. John the Divine.
(See attached MEMORANDUM OF LAW AND FACT REGARDING CLAIM OF VOIDNESS OF PELTIER'S INSTANT CONVICTION, post)
MOTION UNDER 28 U.S.C. 2241, 2242 "GREAT WRIT" HABEAS CORPUSMOTION UNDER F.R.Civ.P 60(b)(4) FOR RELIEF FROM VOID JUDGMENT
MOTION UNDER F.R.Crim.P. 12(b)(2) FOR DISMISSAL OF INDICTMENT
COMES NOW Movant James Dalton Bell, sui juris (pro se), being a "Next Friend" of Leonard Peltier, and acting on his behalf. This is a "Next Friend" motion under 28 U.S.C. § 2241 "Great Writ" habeas corpus, F.R.Crim.P. 12(b), F.R.Civ.P. 60(b)(4) ("void judgment"), on behalf of Peltier, due to the federal sentencing court's lack of subject-matter jurisdiction over the purported federal statutes 18 U.S.C. § 2 (Principals), § 1111 (Murder), § 1114 (Protection of Officers/Employees of U.S.), § 1151 (Indian County, defined), § 1152 (Laws governing), § 1153 (Offenses committed within Indian country), § 3184 (Extradition of fugitives from foreign country to U.S.), § 3231 (Jurisdiction of District Courts), § 3232 (District of offense), § 3242 (Indians committing certain offenses; acts on reservation), and § 3282 (Limitations on offenses not capital), among numerous others.
Leonard Peltier was charged with violations of 518 U.S.C. §§ 2, 1111, and 1114. Employed in these proceedings, and apparently necessary to the process, were various other jurisdictional and procedural statutes, such as 18 U.S.C. §§ 1151, 1152, 1153, 3184, 3231, 3232, 3242, and 3282.
Leonard Peltier is currently incarcerated by the Federal Bureau of Prisons, at USP Lewisburg, PO Box 1000, Lewisburg, PA 17837-1000. He was convicted in the instant case in 1977 of the deaths of two persons, on the Pine Ridge Indian Reservation in South Dakota. Next Friend Jim Bell cannot communicate with Mr. Peltier because of a policy of the Federal Bureau of Prisons which generally prohibits one prisoner from writing to another prisoner at a different institution. This policy prevents Bell from informing Peltier of these issues.
The law ostensibly recodifying Title 18, P.L. 80-772, was not validly enacted because the bill H.R. 3190 (1948) was not identically passed by the House and Senate, as is required by the US Constitution. Clinton v. City of New York, 524 US 417, 448, 141 L.Ed.2d 393, 420 (1998). Thus statutes 18 U.S.C. §§ 2, 1111, 1114, 1151, 1152, 1153, 3184, 3231, 3232, 3242, and 3282 do not exist as valid statutes: the district court had no subject-matter jurisdiction over alleged acts ostensibly covered thereby. Peltier's indictment did not charge a valid federal crime. Peltier's conviction was "void", without legal effect.
F.R.Civ.P. 60(b)(4) IS A PROPER FORM OF RELIEF
Until recently, both Federal district and appellate courts were regularly misconstruing ("recharacterizing") filings under F.R.Civ.P. 60(b) as if they were filed under 28 U.S.C. 2255. Castro v. United States, 540 US 375, 381, 157 L.Ed.2d 778, 786 (2003) stated:
"Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category. [. . .] They may do so in order to avoid an unnecessary dismissal, e.g., [United States v. Tindle, 173 U.S.App.D.C. 77, 592 F.2d 689], at 692-693, [(D.C. Cir. 1975)] to avoid inappropriately stringent application of formal labelling requirements, see Haines v. Kerner, 404 US 519, 520, 30 L.Ed.2d, 92 S.Ct. 594 (1972) (per curiam), or to create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis, see Hughes v. Rowe, 449 US 5, 10, 66 L.Ed.2d 163, 101 S.Ct. 173 (1980) (per curiam); Andrews v. United States, 373 US 334, 10 L.Ed.2d 383, 83 S.Ct. 1236 (1963)." (end quote from Castro v. U.S.)
Despite the positive 'spin' of this claim, in reality this recharacterization was often done to improperly invoke the 28 U.S.C. 2255 time bar in order to deny relief, or manufacture some other obstruction, in order to harm and not to help the unrepresented litigant. This is in direct opposition to both the letter and spirit of Haines v. Kerner, 404 US 519, 521, 30 L.Ed.2d 652, 654 (1972): ". . . the allegations of the pro se complaint, [. . .] we hold to less stringent standards than formal pleadings drafted by lawyers . . .".
Gonzalez v. Crosby 545 US 524, 534, 162 L.Ed.2d 480, 494 (2005) corrected this invidious practice, stating:
"Rule 60(b) has an unquestionably valid role to play in habeas cases. The Rule is often used to relieve parties from the effect of a default judgment mistakenly entered against them, e.g., Klapprott, 335 U.S. at 615, 93 L.Ed. 266, 69 S.Ct. 384 (opinion of Black, J.), a function as legitimate in habeas cases as in run-of-the-mine civil cases. The Rule also preserves parties' opportunity to obtain vacatur of a judgment that is void for lack of subject-matter jurisdiction-a consideration just as valid in habeas cases as in ANY OTHER, since the absence of jurisdiction altogether deprives a federal court of the power to adjudicate the rights of the parties. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94, 101, 140 L.Ed. 2d 210, 118 S.Ct. 1003 (1998). In some instances, we may note, it is the State, not the habeas petitioner, that seeks to use Rule 60(b), to reopen a habeas judgment granting the writ. See, e.g., Ritter v. Smith, 811 F.2d 1398, 1400 (11th Cir. 1987)."
(end quote from Gonzalez v. Crosby, emphasis by capitals added.)
As stated in Gonzalez by Justice Stevens, joined by Souter, in dissent, 545 US at 539, 162 L.Ed. 2d at 497:
"The most significant aspect of today's decision is the Court's UNANIMOUS rejection of the view that all postjudgment motions under Federal Rule of Civil Procedure 60(b) except those alleging fraud under Rule 60(b)(3) should be treated as second or successive habeas corpus petitions." (emphasis by capitalization supplied.)
A F.R.Civ.P. 60(b)(4) motion ("judgment is void") is an attack, not on the judgment on the merits, but instead on the jurisdiction of the court to address those merits. Such a motion is a "'true' 60(b) motion", and is not a "second or successive" 2255 filing within the meaning of Gonzalez v. Crosby, 545 US 524, 534, 539, 162 L.Ed.2d 480, 494, 497. See Headnote 1, Gonzalez v. Crosby, 162 L.Ed.2d at 482. Peltier was charged with non-existent statutes, " 18 U.S.C. 2", " 18 U.S.C. 1111", and " 18 U.S.C. 1114", non-existent because bill H.R. 3190 didn't pass, so P.L. 80-772 did not become law as was and is commonly thought. Therefore, the district court did not have subject-matter jurisdiction, and the judgment resulting was void. Peltier is entitled to Rule 60(b) relief from this void judgment.
Gonzalez overruled cases such as United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003), which had stated:
"In United States v. Mosavi, 138 F.3d 1365 (11th Cir. 1998), we addressed the applicability of Rule 60(b) in the context of a criminal case. [. . .] This Court stated, however, that the Federal Rules of Civil Procedure "unambiguously" limited their application to CIVIL cases. Consequently, we held that the appropriate vehicle for challenging the forfeiture was Mosavi's direct criminal appeal and his conviction and sentence and that "Rule 60(b) simply does not provide for relief from judgment in a criminal case."." (emphasis by italics in original converted to capitals; end of quote from Fair.)
The discovery that statutes 18 U.S.C. 2, 1111, 1114, 1151, 1152, 1153, 3184, 3231, 3232, 3242, and 3282 are invalid constitutes "newly discovered evidence which by due diligence could not have been discovered in time to move of a new trial under Rule 59(b)", which can be addressed by Rule 60(b)(2). If any reasonable factfinder had been informed that these statutes were invalid, and there was no valid federal law against "Principals", "Murder", and "Protection of Officers/Employees", he would not have found the Peltier guilty of the offenses.
Ordinarily, there is a 1-year deadline for 60(b)(1-3) filings after the judgment is entered, but in this case Movee actively obstructed Peltier's ability to learn of the invalidity of the statutes 18 U.S.C. 2, 1111, 1114, 1151, 1152, 1152, 3184, 3231, 3232, 3242 and 3282. Consequently, this should qualify under Rule 60(b)(6).
Alternatively, this qualifies as fraud on the court under Rule 60(b)(6), because the law was misrepresented by the government to make it appear that 18 U.S.C. 2, 1111, 1114, 1151, 1152, 1153, 3184, 3231, 3232, 3242, and 3282 were valid.
Movant Bell also claims for relief for Peltier under Rule 60(b)(4), "the judgment is void", because he was indicted under and charged with legally-nonexistent crimes, 18 U.S.C. 2, 1111, 1114, and because the bases for federal court jurisdiction, 18 U.S.C. 1151, 1152, 1153, 3184, 3231, 3232, 3242, and 3282 are also invalid.
COURT MUST NOTICE ERROR "AT ANY TIME": F.R.Cr.P. 12(b):
Failure of an indictment to allege a violation of a valid criminal statute means it is legally insufficient. According to Hughes v. Thompson, 415 US 1301, 1302, 39 L.Ed. 2d 93, 95 (1974): "Under the Federal Rules of Criminal Procedure the question of the sufficiency of the indictment 'shall be noticed by the court at any time.' Rule 12(b)(2)."
See United States v. Ropp, 347 F.Supp.2d 831, 833 (Central District of California, 2004):
"[Rule 12] apparently permits a defendant to move to quash an indictment for failure to state an offense. Ex Parte Parks, 93 US 18, 20, 23 L.Ed. 787 (1876). Thus, if no statute makes the alleged offense a crime, a defendant may challenge that defect under Rule 12."
(end quote from US v. Ropp.)
Ex Parte Parks, 93 US 18, 23 L.Ed. 787, 787-88, (1876) held:
"Whether an act charged in an indictment is or is not a crime by the law which the court administers (in this case the statute law of the United States) is a question which has to be met at almost every stage of criminal proceedings; on motions to quash the indictment, on demurrers, on motions to arrest judgment, etc." (end quote from Parks)
Therefore, it is mandatory for this court to take judicial notice of the fact that the statute of which Peltier was ostensibly convicted were legally non-existent: 18 U.S.C. 2, 1111, 1114, 1151, 1152, 1153, 3184, 3231, 3232, 3242, and 3282 have not existed since 1948, or before.
RULE 60(b) (ERROR CORAM NOBIS) MOTION IS CONTINUATION OF A CRIMINAL CASE, NOT NEW CASE UNDER A NEW (CIVIL) DOCKET NUMBER
U.S. v. Morgan, 346 US 502, 520, 98 L.Ed. 248, 261 (1954) held that a motion under Error Coram Nobis is a continuation of a criminal case:
"We therefore treat the record as absolutely presenting a motion in the nature of a writ of error coram nobis enabling the trial court to properly exercise its jurisdiction. Adams v. United States, 317 US 269, 272, 87 L.Ed. 268, 271, 63 S.Ct. 236, 143 ALR 435. (Note 4)."
(end quote from U.S. v. Morgan.)
Morgan, 98 L.Ed. at 271, note 4:
"Such a motion is a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record the beginning of a separate civil proceeding. Kurtz v. Moffit, 115 US 487, 494, 29 L.Ed. 458, 459, 6 S.Ct. 148. While at common law the writ of error coram nobis was issued out of chancery like other writs, Stephens, Principles of Pleading 3d Am ed 142, the procedure by motion in the case is now the accepted American practice. Pickett's Heirs v. Legerwood (US) 7 Pet 144, 147, 8 L.Ed. 638, 639; Wetmore v. Karrick, 205 US 141, 151, 51 L.Ed. 745, 748, 27 S.Ct. 434; United States v. Mayer, 235 US 55, 67, 59 L.Ed. 129, 135, 35 S.Ct. 16. As it is such a step, we do not think that Rule 60(b), Fed Rules of Civ Proc, expressly abolishing the writ of error coram nobis in civil cases, applies."
(End quote from Note 4, U.S. v. Morgan)
RIGHT TO COUNSEL: F.R.Cr.P. 44(a), 18 U.S.C. 3006A
Felony defendants have a right to appointment of counsel. Powell v. Alabama, 287 US 45, 77 L.Ed. 158 (1932); Gideon v. Wainwright, 372 US 335, 9 L.Ed.2d 799 (1963); Anders v. California 386 US 738, 18 L.Ed.2d 493 (1967); Faretta v. California, 422 US 806, 45 L.Ed.2d 562 (1974); Scott v. Illinois, 440 US 367, 59 L.Ed.2d 383 (1979); Davis v. United States, 512 US 452, 129 L.Ed.2d 362 (1994).
18 U.S.C. 3006A(c) states, in relevant part:
"Duration and substitution of appointments. A defendant for whom counsel is appointed shall be represented AT EVERY STAGE OF THE PROCEEDINGS from his initial appearance before the United States Magistrate [United States Magistrate judge] or the court through appeal, INCLUDING ANCILLARY MATTERS APPROPRIATE TO THE PROCEEDINGS".
(emphasis by capitalization supplied)18 U.S.C. 3006A was enacted in 1964, after U.S. v. Morgan (1954), supra, which had held that an Error Coram Nobis (Rule 60(b)) proceeding is a "continuation of a criminal case". Morgan, 98 L.Ed. at 271, note 4.
In Lorillard v. Pons, 434 US 575, 581, 55 L.Ed.2d. 40, 46 (1977) the Supreme Court stated:
"Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change, see Albemarle Paper Co. v. Moody, 422 US 405, 414 n. 8, 45 L.Ed.2d 280 (1975)."
(end quote from Lorillard v. Pons.)
In the case of 18 U.S.C. 3006A, after its passage in 1964 it was subsequently amended in 1968, 1970, 1974, 1982, 1984, 1986, 1987, 1988, 1996, 1997, 1999, 2000, and 2004. These amendments did not change the principle, that an attorney is appointed to serve "at all stages" of a criminal case, in any relevant or significant way. By the principle of Albemarle v. Moody, supra, Congress is presumed to adopt the judicial interpretation of U.S. v. Morgan.
And 18 U.S.C. 3006A(c), as of its initial enactment by Congress in 1964, guarantees an attorney "at all stages" of a criminal proceeding. So Congress must have intended that the guarantee in 3006A(c) of an appointed counsel "at all stages of a criminal case" applies to Rule 60(b) proceedings.
Analogously, in Whitfield v. United States, 543 US 200, 216, 160 L.Ed.2d 611, 615 (2005):
"Congress is presumed to have had knowledge of Nash [v. United States, 229 US 373, 57 L.Ed. 1232 (1913)] and Singer [v. United States, 323 US 338, 89 L.Ed. 285 (1945)] when it enacted [18 U.S.C.] 1956(h)." (end quote from Whitfield)
Likewise, Congress can be presumed to have been aware of U.S. v. Morgan, which held that an error coram nobis proceeding is a continuation of a criminal case, and is not a collateral attack under a civil docket number, when it voted to grant a statutory right to an appointed counsel "at all stages" of a criminal proceeding. Therefore, Peltier's right to an appointed attorney, for purposes of preparing and litigating that necessary motion, is guaranteed by 18 U.S.C. 3006A(c), since it is the continuation of a criminal case and/or an "ancillary proceeding" under 3006A(c). See United States v. Martinson, 809 F.2d 1364 (9th Cir. 1987):
"However, on this record it is irrelevant whether Martinson's motion for return of the property was technically filed as a criminal or civil matter. The public defender, once validly appointed, was clearly justified in continuing his representation of Martin. The motion was sufficiently related to the 1977 criminal case as to be considered an "ancillary" proceeding for purposes of 18 U.S.C. 3006A(c)."
(end of quote from U.S. v. Martinson.)
A Rule 60(b)(4) motion seeking to overturn a conviction for voidness is at least as related to a criminal case as the return of the property in Martinson, supra.
And, it is quite clear that if Peltier had known of the problem at that time, he could have raised the issue of the invalidity of 18 U.S.C. 2, 1111, 1151, 1152, 1153, 3184, 3231, 3232, 3242, and 3282 (1948) at the time of his indictment, pre-trial, trial, post-trial, or on a direct appeal, and he would have been entitled to the services of an appointed attorney to do this work. The fact that time has passed doesn't make this right less real. A Rule 60(b) motion is not a "collateral attack", and it is not a "habeas proceeding". A Rule 60(b) motion, as clearly stated in U.S. v. Morgan, supra, is a continuation of a criminal proceeding, to which the Peltier has a right to an attorney "at all stages" under 18 U.S.C. 3006A(c).
FACTS NOT DISCOVERABLE WITH "DUE DILIGENCE"
If this filing were construed under 28 U.S.C. 2255, it would be improper to apply the 2255 time bar, because of the exception of 2255(4):
"The limitation period shall run from the latest of — [. . .] (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence."
The specific facts on which this claim is founded are located in the pages of the 1947-48 Congressional Record: Only there would one discover that the House of Representatives merely "concur[red] with the amendments" to bill H.R. 3190, yet did not vote on the full, as-amended bill. These facts are not present in the various books kept in the law libraries in the prisons of the Federal BOP, to Movant/Next Friend Bell's knowledge and belief. To the contrary, these facts are contradicted by false assertions in law books, such as:
" 18 U.S.C.S. 1 (pre)": (Falsely asserts that Title 18 was recharacterized, and includes a long table of correspondence between old and new statute numbers: "TABLE OF DISPOSITIONS [/p/] This table indicates where former Title 18 sections were incorporated in Title 18, as revised by Act June 25, 1948, ch 645, 62 Stat, 683, or in other Code provisions, or, if omitted, the reason therefore:"); and
" 18 U.S.C.S. 1111": Claims that this statute was initiated on June 25, 1948, ch 645, 1, 62 Stat. 756; HISTORY: "This section is based on Act March 4, 1909, ch 321, 273, 275, 330, 35 Stat. 1143, 1152 (former 18 U.S.C. 452, 454, 567."
" 18 U.S.C.S. 1114": Claims that this statute was initiated on June 25, 1948, ch 645, 1, 62 Stat. 756. HISTORY states: "This section is based on Act May 18, 1934, ch 299, 1, 48 Stat. 780."
" 18 U.S.C.S. 3231": (Falsely states that "This section was formed by combining former 18 U.S.C. 546 and 547 with former 12 U.S.C. 588d, with no change of substance.");
Any person (especially a pro-se prisoner) depending on these apparently-authoritative law books for accurate information would be dissuaded from proceeding further, and would never find the error.
Federal prison libraries don't have the Congressional Record. The necessary facts are also not accessible in the LEXIS law computer system that is being installed in some new US penitentiaries, in place of the books. Deciding not to shelve the voluminous Congressional Record books may have seemed understandable back in the era of paper: Movant Bell roughly estimates that the full set of Congressional Record books would have about the same shelf space as 4000 books the size of a F.3d (Federal Reporter, Third Edition) book. But measured as computer hard-disk data it should amount to about 35 gigabytes, which is only 3.5% of the storage capacity of the largest computer hard drive marketed today. (which is 1 terabyte, or 1000 gigabytes, or 1,000,000 megabytes.) Today, a 50-gigabyte drive is considered small.
Unfortunately, the prison library staffs have a consistently HOSTILE attitude towards obtaining legal material for prisoners beyond which the library normally carries. Most federal prison law libraries, the ones with books, only have Supreme Court decision books dating back to about 1960: Their earliest book is 4 L.Ed.2d. Typically, they have NO L.Ed.'s Their set of F.2d's are similarly limited: They have those books back only to 267 F.2d, about 1959. Thus, they omit the critical first 10 years of legal precedent after the presumptive passage of H.R. 3190/80-772/Title 18.
This, and the complete lack of the Congressional Record, totally obstructs the ability of prisoners to detect (or even independently confirm) the existence of faults in the passage of bills in Congress that initiate or amend federal criminal (or civil) laws. It would be virtually impossible for a pro se prisoner to detect these kinds of legal defects in his conviction: Prisoners simply cannot find them by the exercise of "due diligence", the expressed standard for the application of 28 U.S.C. 2255(4).
Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004) repeated that circuit's principle:
"We have previously noted that a due diligence inquiry should take into account that prisoners are limited by their physical confinement. Montenegro v. United States, 248 F.3d 585, 592 (7th Cir. 2001), rev'd on other grounds, Ashley v. United States, 266 F.3d 671 (7th Cir. 2001); see also Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir. 2000) (finding a prisoner's access to published legal materials is established once the prison library receives the materials, not when the materials were published.)" (end quote from Moore v. Knight.)
As concurred by Judge Tashima in Whalem/Hunt v. Early, 233 F.3d 1146, at 1148:
"Neither the "impediment" standard contained in the statute, 28 U.S.C. 2244(d)(1)(B), nor this court's equitable tolling standard, see Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997), overruled on other grounds, Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998) (en banc), cert. denied, 526 US 1060 [. . .], requires that petitioner prove an inability to "research and identify [his] claims," as the district court held, in order to rely upon barriers to researching legal issues as the basis for delaying the start of, or tolling, the statute of limitations. A prisoner acting pro se can be prevented from discovering the most basic procedural rules essential to avoid being summarily thrown out of court, even if the claims alleged in the petition are meritorious, well-drafted, and supported by every pertinent citation entitling him to relief on the merits. Cf. Rand v. Rowland, 154 F.3d 952, 958 (9th Cir. 1998) (en banc), cert. denied, 527 US 1035 [. . .] (1999) (noting handicaps faced by prisoners acting pro se in complying with procedural requirements). A petitioner's knowledge of the legal basis of his claims is not the same as knowledge of the procedural rules that must be complied with in order to get a hearing on the merits." (end quote from Whalem/Hunt v. Early)
Rand v. Rowland, 154 F.3d 952, 958 (9th Cir. 1998), reciting a litany of disadvantages of prisoners, stated:
"Pro se prisoners are also limited in their access to legal materials. Jacobsen, 790 F.2d at 1364 n. 4 (citing Moore v. Florida, 703 F.2d 516, 520 (11th Cir. 1983))."
(end quote from Rand v. Rowland)
EVEN 100,000+ LAWYERS COULDN'T FIND IT
Perhaps Movee will argue that despite the obstruction by BOP to the Peltier's discovery of the defect, Peltier or others should have discovered it if "due diligence" had been employed. That argument is nonsense: Since 1948, it is likely that well over a million prosecutions of violations of law under 18 U.S.C., 21 U.S.C., 8 U.S.C., and 26 U.S.C. have occurred. The vast majority of them have been professionally defended by attorneys at the pre-trial, trial, and appeal stages, which probably amounts to over 100,000 different attorneys.
Those attorneys were and are ethically bound to represent their clients zealously, identifying any arguable flaws in those charges, and they are ethically bound to engage in "due diligence" of their own. Indeed, the standard of "due diligence" for attorneys must be far higher than that of pro-per unlettered defendants. See Haines v. Kerner, 404 US 519, 30 L.Ed.2d 652 (1972).
Those attorneys could have argued the invalidity of the recodification of 18 U.S.C. at all stages of those cases, if they had known of the problem. They would have had a powerful motivation, and an ethical obligation, to do so: this would amount to a virtually automatic "win".
If even a tiny fraction of those attorneys had noticed the error and raised an objection to the 18 U.S.C. recodification issue over that time (1948-2007), there would be hundreds and eventually thousands of district-court-level and appeal-level cases which have considered the issue and argument. If they exist, such cases could easily be found with modern computer-based legal research tools: Just do a computer text search for "H.R. 3190", for example, or " P.L. 80-772", in the text of the opinions.
Even if Movant Bell's instant claim (invalidity of 18 U.S.C. recodification) was merely arguable (but ultimately wrong), then the government should easily cite numerous cases in which this same argument was made, considered, and rejected. (Weak, even "frivolous" arguments are usually attempted by many people, in many district courts and in all appeal circuits.) Remarkably, a thorough search of published federal appeals and district court cases does not reveal ANY attack on the validity of the Congressional passage of 80-772 until 2006, when a few district court cases appeared.
If Movee asserts that Peltier should have discovered these facts (concerning H.R. 3190/P.L. 80-772) with the exercise of "due diligence", Movee is obligated to show legal precedent which, at least, demonstrates that trained attorneys have found this error with their better training, greater experience, and far longer access to (substantially superior) computerized research tools. If the government cannot show that, this court must rule that a imprisoned non-lawyer (such as Peltier or Movant) couldn't reasonably be expected to find this error either, and thus 28 U.S.C. 2255(4) applies: For prisoners, "due diligence" was not enough to find this error. There is no time bar to a 2255 filing until and including now. As was held in Locascio v. US, 395 F.3d 51, 55 (2nd Cir. 2005):
" 28 U.S.C. 2255 Subsection (4) 'does not require the maximum feasible diligence, only 'due', or reasonable diligence.' Wims v. US, 225 F.3d, 190, n. 4, (2nd Cir. 2000)."
(end quote from Locascio.)
Wims, supra, at 190, said:
"Section 2255(4) is not a tolling provision that extends the length of the available filing time by excluding certain periods that post-date the start of the limitations clock from the calculation of how much time has run. Rather, it resets the limitations period's beginning date, moving it from the time when the conviction became final, see 2255(1), to the later date on which the particular claim accrued. See Smith [v. McGinnis], 208 F.3d [13,] at 15 (2nd Cir. 2000). (distinguishing tolling provisions from those that restart the limitations period.)"
(End quote from Wims v. U.S.)
And from Wims, 190, at note 4:
"The statute [2255(4)] does not require the maximum feasible diligence, only "due", or reasonable, diligence. Cf. Armstrong v. Mc Alpin, 699 F.2d 79, 88-89 (2nd Cir. 1983) (requiring "reasonable" or "ordinary" diligence in the discovery of fraud for statute of limitations purposes."
(end quote from Wims)
CONCLUSION
Movant James Dalton Bell requests that this court:
1. Take judicial notice of the facts alleged herein, including cited pages from the Congressional Record.
2. Declare that H.R. 3190 was not legally passed in 1948, and P.L. 80-772 was not legally enacted, and that Title 18 U.S.C. was not recodified in 1948, or thereafter.
3. Declare that statutes 18 U.S.C. 2, 1111, 1114, 1151, 1152, 1153, 3184, 3231, 3232, 3242, and 3282 (and others) were not legally enacted, and are null and void.
4. Declare that this court did not have criminal jurisdiction over 18 U.S.C. 2, 1111, 1114, 1151, 1152, 1153, 3184, 3231, 3232, 3242, and 3282 (and others) at the time of the alleged crime, at the time of indictment, at time of trial, and all times until and including today.
5. Vacate Peltiers sentence and order the BOP to free Peltier.7/15/07
Signed, __________ Dated, James Dalton Bell, Next FriendCERTIFICATE OF SERVICE
I, James Dalton Bell, under penalty of perjury, certify that on the date written below I mailed a copy of this filing to this court, and the U.S. Attorney's office listed below, first class postage affixed, labelled "Legal Mail/Special Mail". I presented the envelope to the prison authorities. See Houston v. Lack, 487 US 266, 101 L.Ed.2d 245 (1988). ("mailbox rule")7/15/07 Signed, __________ Dated, United States District Court, District of North Dakota, Southeastern Division, Attn: Todd Dudgeon, 655 First Ave., North, Suite 130, Fargo ND 58102-4932
Eric A. Seitz Suite 714, 820 Mililani St., Honolulu Hawaii 96813-2937
William Kirschner, Kirschner Assoc., 1351 Page Drive, Suite 104, Fargo, ND 58103.
Bruce Henry Ellison, 328 E New York St. #5, Rapid City, South Dakota 57701.
Michael E. Tigar, John Privitera: Tigar, Buffone Doyle.
Arthur Kinoy, New York City, NY.
Barry A. Bachrach, 311 Main Street, PO Box 15156, Worcester MA 01615
Michael Kuzma, Esq., 1893 Clinton Street, Buffalo NY 14206
Mark B. Gombiner, New York, New York.
Lynn E. Crooks, U.S. Attorney Office, 655 First Ave N., PO Box 2505, Fargo ND 58108.
National Association of Criminal Defense Lawyers, Inc.
California Attorneys for Criminal Justice.
Cathedral Church of St. John the Divine.
NEXT FRIEND JAMES BELL'S MEMORANDUM OF LAW, FACT AND ARGUMENT
REGARDING CLAIM OF VOIDNESS OF PELTIER'S INSTANT CONVICTION
LEGAL BACKGROUND OF RULE 60(b)(4) VOIDNESS CLAIM
Federal courts are courts of limited jurisdiction. United States v. Flores, 289 US 137, 151, 77 L.Ed. 1086, 1091 (1933): "The criminal jurisdiction of the United States is wholly statutory, see United States v. Hudson, 7 Cranch, 32, 3 L.Ed. 259 (1812)". Hudson, 7 Cranch, at 33 held:
"Of all the courts which the United States may, under their general powers, constitute, one only — the Supreme Court — possesses jurisdiction derived immediately from the constitution, and of which the legislative power cannot deprive it. All other courts created by the general government possesses no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general government will authorize them to confer. [. . .] The legislative authority of the Union MUST FIRST MAKE AN ACT A CRIME, AFFIX A PUNISHMENT TO IT, AND DECLARE THE COURT THAT SHALL HAVE JURISDICTION OF THE OF THE OFFENSE."
(end quote from US v. Hudson.)
See also Hanford v. Davies, 163 US 273, 279, 41 L.Ed. 157, 159 (1896):
"It is well settled that, as the jurisdiction of a circuit court of the United States is limited in the sense that it has no other jurisdiction than that conferred by the Constitution and laws of the United States, the presumption is that a cause is without its jurisdiction unless the contrary affirmatively appears; and that it is not sufficient that jurisdiction may be inferred argumentatively from averments in the pleadings, but the averments should be positive. Brown v. Keene, 33 US (8 Pet.) 112 [8: 85]; Grace v. American Cent. Ins. Co. 109 US 278, 283 [27:932, 935]" (end quote from Hanford v. Davies.)
U.S. v. Rogers, 23 F. 658, 1885 U.S. Dist. LEXIS 50 (D.C., W.D. Arkansas, 1885) said:
"Jurisdiction can be raised at any stage of a criminal proceeding. It is never presumed, but must always be proved; and it is never waived by a defendant." (end quote from Rogers.)
Manchester v. Massachusetts, 139 US 240, 262, 35 L.Ed. 159, 166 stated:
". . . the courts of the United States, merely by virtue of this grant of judicial power, and in the absence of legislation by Congress, have no criminal jurisdiction whatever. The criminal jurisdiction of the courts of the United States is wholly derived from the Statutes of the United States, Butler v. Boston S.S.S. Co. 130 US 527 [32: 1017]; The Belfast, 74 US 7, Wall. 624 [19: 266]; The Eagle, 75 US (8 Wall.) 15 [9: 365]; Leon v. Galceran, 78 US (11 Wall.) 185 [20:74]; American S.B. Co. v. Chase, 83 US (16 Wall.) 522 [21:369], 9 R. I. 419; Schoonmaker v. Gilmore, 102 US 118 [26: 95]; Marine Ins. Co. v. Dunham, 78 US (11 Wall.) 1 [20: 90]; Jones v. United States, 137 US 202, 211 [34: 691, 695]." (end quote from Manchester)
It was held in United States v. Lewis, 36 F. 449, 449-450 (Dist.Ct., D. Oregon, 1888):
"A crime is 'cognizable under the authority of the United States' when it is triable in its courts by virtue of its laws. It is long since settled that the courts of the United States have no common-law jurisdiction in criminal cases; [. . .] there are no common-law crimes; and that therefore its courts cannot take cognizance of any act or omission as a crime unless it has been made such by an act of Congress. U.S. v. Hudson, 7 Cranch. 32; U.S. v. Bevans, 3 Wheat. 336."
(end quote from U.S. v. Lewis)
United States v. Hall, 98 US 343, 345, 25 L.Ed. 180, 181 (1879) held:
"[Federal courts] possess no jurisdiction over crimes and offenses committed against the authority of the United States, except what is given to them by the power that created them; nor can they be invested with any such jurisdiction beyond what the power ceded to the United States by the Constitution authorizes Congress to confer, from which it follows that before an offense can become cognizable in the circuit court, the Congress must first define or recognize it as such, and affix a punishment to it, and confer jurisdiction upon some court to try the offender. U.S. v. Hudson, 7 Cranch, 32, U.S. v. Coolidge, 1 Wheat., 415; 1 Am. Cr. L., sec. 163. Courts of the kind were not created by the Constitution, nor does the Constitution invest them with any criminal jurisdiction. [. . .] Treason is defined by the Constitution, but it has never been decided that the offender could be tried and punished for the offense until some court is vested with the power by an Act of Congress." (end quote from US v. Hall)
It was held in Kline v. Burke Constr. Co., 260 US 226, 234, 67 L.Ed. 226, 232 (1922):
"Only the jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold, or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution. Turner v. Bank of North America, 4 Dall. 8, 10, 1 L.Ed. 718, 719." [(1799)] [. . .] The Constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an act of Congress to confer it. Nashville v. Cooper, 6 Wall. 247, 252, 18 L.Ed. 851, 852 [(1868).]" (end quote from Kline v. Burke)
ISSUE:
1948-RECODIFIED 18 U.S.C. § 2, 1111, 1114, 3184, 3231, 3232, 3242, 3282 ARE INVALIDThe purpose of H.R. 3190 (80th Congress, 1947-48) was to "recodify" (reorganize) Title 18, United States Code. Had it passed correctly, it would have re-numbered and thus re-ordered every then-existing Title 18 crime, jurisdictional and procedural statute, and rule. Prior to 1948, the federal crime of murder was chargeable under statute 18 U.S.C. § 452, 454, 567 (1940). Also, the federal crime of "Protection of Officers and Employees of the United States", now 18 U.S.C. § 1114, was previously chargeable under the statute 18 U.S.C. § 253. "Principals" was under 18 U.S.C. § 550. The purported effect of P.L. 80-772 was to renumber the correct charging statute for "Principals", Murder", and "Protection of Officers/Employees. These are the statutes of which Peltier was charged. But because H.R 3190 was not validly passed, P.L. 80-772 was not validly enacted, along with 18 U.S.C. §§ 2, 1111, 1114, 3184, 3231, 3232, 3242, 3282. These statutes do not now legally exist, despite a widespread misperception that they do. And so a charge of them is legally defective, as it does not state a crime against the laws of the United States.
The two houses of the 80th U.S. Congress did not pass identical versions of bill H.R. 3190. The House introduced this bill on April 24, 1947. See H.R. Rep. No. 304, 80th Congress, 1st Session, 100 app. (1947). Congress voted to amend it, 93 Cong. Rec. 5048-49, 5121, and then voted on the newly-amended bill, and passed that as-amended version on May 12, 1947, 93 Cong. Rec. 5049. The House then sent that bill to the Senate, and Congress adjourned in accordance with S. Con. Res. 33, 93 Cong. Rec. 10522, 10439, July 26, 1947.
The Senate never voted on that bill. Report of Committee introduced the bill June 14, 1948. 94 Cong. Rec. 8075. On June 18, 1948 the Senate voted to add its own amendments to the House's bill, see S. Rep. 1620, 80th Cong., 2d Sess. 2430 (1948), and then (separately) voted and passed that newly-amended version. June 18, 1948. 94 Cong. Rec. 8721, 8722. (A motion to reconsider was made but subsequently withdrawn.) The Senate then sent the changed bill back to the House, the one with the Senate's amendments. 94 Cong. Rec. 8864. See Daily Digest, 94 Cong. Rec. D556-557, 80th Congress. (The Senate adjourned June 20, 1948.)
However, the same day, June 18, 1948, the House merely "concur[red]" with the Senate's amendments, 94 Cong. Rec. 8864-65: See S. Rept. 1620, 80th Congress, 2d Session, 2430 (1948). The House did not vote on the as-amended bill, (the one with the Senate's amendments added). Then the House adjourned on June 20, 1948, pursuant to H. Con. Res. 218, June 20, 1948. 94 Cong. Rec. 9158.
Despite this omission, the bill was examined and signed by the House and Senate leaders on June 19, 1948, Cong. Rec. 9354, 9363. It was presented to President Truman, 94 Cong. Rec. 9365, who signed the measure on June 25, 1948, 94 Cong. Rec. 9367, seemingly making it a valid law, " Public Law 80-772".
P.L. 80-772, in addition to recodifying Title 18 and thus initiating 18 U.S.C. § 3231 (among many other statutes), also purportedly repealed the Title 18 U.S.C. predecessor statutes that had made up the previous federal criminal statutory law. See Pub.L. No. 80-772, 21 (Schedule of Laws Repealed) (available at 1948 U.S.C.C.A.N., Vol. I, p. A562 et seq.). But Public Law 80-772 was not properly passed, so those earlier statutes were never repealed. (Footnote 1, infra., pages M20-M21).
The Historical and Statutory Note accompanying 18 U.S.C.S. 3231 reflects that section 3231 was "formed by combining sections 546 and 547 of Title 18, U.S.C.". 18 U.S.C. § 3231, Historical and Statutory Note. However, the prior statute, 18 U.S.C. 546 (1940), only provided federal courts jurisdiction over crimes in violation of statutes in Title 18, and not statutes in other titles, such as Titles 21, 26, etc.
18 U.S.C. 546 (1940): "The crimes and offenses defined in this title [Title 18] shall be cognizable in the district courts of the United States, as prescribed in section 41 of Title 28."
18 U.S.C. 547 (1940): "Nothing in this title [Title 18] shall be held to take away or impair the jurisdiction of the courts of the several states under the laws thereof."
12 U.S.C. 588d (1940): "Jurisdiction over any offense defined by sections 588b and 588c of this title [Title 12] shall not be reserved exclusively to the courts of the United States."
In contrast, 18 U.S.C. § 3231 (1948), as it ostensibly has read since 1948, asserts:
"The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof." (Emphasis by capitalization supplied. 18 U.S.C. § 3231)
So, 18 U.S.C. § 3231 purports to assign federal courts with jurisdiction over ALL federal crimes, while the predecessor statutes, which it was supposed to replace, provided federal courts jurisdiction over crimes in Title 18 alone. See U.S. v. Sasscer, 558 F.Supp. 33, 36 (DC Md, 1982):
"In the light of the legislative history reviewed above and the plain meaning of the word "all" in new (as of 1948) 18 U.S.C. § 3231, it is clear that that statute confers jurisdiction in federal district courts over "cases involving ALL offenses against the laws of the United States" (emphasis added) regardless of whether the case involves violation of a crime set forth in Title 18 or in some other title of the United States Code such as Title 26. In United States v. Spurgeon, No. Cr 81-0-19 (D. Nev. Sept. 8, 1981), the same contention raised herein by defendant was posed in support of a motion to dismiss filled by defendant in that case. That motion was denied by Chief Judge Urbom. In turn, that denial was affirmed in United States v. Spurgeon, 671 F.2d 1198 [, 1199] (8th Cir. 1982) (per curiam), in which the Eighth Circuit wrote: "Although it is true federal courts are courts of limited jurisdiction, 18 U.S.C. § 3231 provides that district courts "have original jurisdiction . . . of all offenses against the laws of the United States," including the crime [ 26 U.S.C. § 7203] of which Spurgeon was convicted." [U.S. v. Spurgeon at 1199, quoted in U.S. v. Sasscer at 36.]
(end quote from U.S. v. Sasscer)
Sasscer, the appellant, was wrong. He was not challenging the legality of the passage of the legislation leading to 18 U.S.C. § 3231: In fact, he was mistakenly accepting its existence. He was (wrongly) arguing that § 3231 didn't purport to cover other titles. In contrast, Movant Bell (Next Friend) accepts, arguendo, that § 3231 by its wording would confer jurisdiction to federal courts over crimes in titles in addition to Title 18, but asserts that it wasn't passed validly. Because H.R. 3190 wasn't properly enacted, and P.L. 80-772 did not properly become a law, then after 1948 the federal courts had no jurisdiction over crimes in titles other than Title 18.
INDIVIDUAL CRIMINAL STATUTES NOT RECODIFIED
Since P.L. 80-772 did not properly pass, Title 18 was not recodified, and the statutes were not recodified. Peltier was thus charged with non-existent crimes, and his "conviction" was and remains void. See, infra, Ex Parte Siebold, Ex Parte Yarbrough.
The non-identical passage of H.R. 3190 is a major defect, of Constitutional proportions. As was stated in Clinton v. New York City, 524 US 417, 448, 141 L.Ed. 2d 393, 420 (1998):
"The Balanced Budget Act of 1997 is a 500-page document that became 'Public Law 105-33' after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may 'become a law'. Art. I, 7. If one paragraph of that text had been omitted at any one of those three stages, Public Law 105-33 would not have been validly enacted." (end quote from Clinton v. N.Y.C.)
H.R. 3190 (1948) was of similar size: 450 pages. The Senate voted on their own as-amended version of the bill, H.R. 3190, and the President apparently signed the Senate's as-amended version of the bill. But, in 1947 the House only voted on its original pre-Senate-amendment version of the bill (which the Senate never voted on), and a year later the House voted solely to "concur" with the Senate's amendments.
It is easy to tell that on June 18, 1948 the House only voted on the amendments. House rules required that the text of any bill to be voted on be read, out loud, prior to the vote: The text that is being read is what is to be voted on. While that reading may be waived by consent of the chamber (on long bills, for instance), in the case of the House vote on the amendments to H.R. 3190 that was not done. See 94 Cong. Rec. 8864-65: only the two pages of amendments themselves were read, and written into the Congressional Record. It was clear, therefore, that the House's vote was intended to be solely on those amendments, not on the full bill. So, what was approved in the House's subsequent vote were the amendments alone.
ADDITIONAL INVALID STATUTES
Movant Bell's case is far larger than the mere invalidity of 18 U.S.C. §§ 2, 1111, 1114, 3184, 3231, 3232, 3242, and 3282. The following statutes are merely examples which were apparently also not properly recodified into the numbers shown:
18 U.S.C. 5 United States Defined; 18 U.S.C. § 10 Interstate and foreign commerce defined; 18 U.S.C. § 111 Assaulting or Resisting certain officers; 18 U.S.C. § 1112 Manslaughter; 18 U.S.C. § 1113 Attempt to commit Murder or Manslaughter; 18 U.S.C. § 1201 Kidnapping; 18 U.S.C. § 3041 Power of courts and magistrates; 18 U.S.C. § 3041 Extraterritorial jurisdiction; 18 U.S.C. § 3060 Preliminary examination; 3237 Offenses begun in one district and completed in another; 18 U.S.C. § 3238 Offenses not committed in any district; 18 U.S.C. § 3282 Statute of Limitations of Offenses not capital; 18 U.S.C. § 3321 Number of Grand Jurors; 18 U.S.C. § 3661 Use of information for sentencing.; 18 U.S.C. § 3044 Contents of Complaint; 18 U.S.C. § 3236 Jurisdiction of Murder or manslaughter; 18 U.S.C. § 3665 Firearms possessed by convicted felons; 18 U.S.C. § 3691 Contempts; 18 U.S.C. § 3731 Appeal by United States.
LONGEVITY INEFFECTIVE TO PASS BILL
Longevity cannot make a statute valid. Brennan v. U.S. Postal Service, 439 US 1345, 1347, 58 L.Ed.2d 51, 54 (1978). Independent Insurance Agents of America, Inc. v. Clarke, 965 F.2d 1077, 1078 (D.C. Cir. 1992) held:
"The question is not how long the parties assumed a certain state of law, but whether that state of law is merely an assumption. The passage of time, the acquiescence of the parties, the assumptions of officials, even all taken together cannot enact a statute. Legislation only comes into existence through bicameral congressional enactment and presentment to the President of the United States. U.S. Const. art. 1, 1 and 7, cl. 2 3; INS v. Chadha, 462 US 919, 946, 77 L.Ed.2d 317, 103 S.Ct. 2764 (1983)." (End quote Independent) (concurrence by Sentelle)
JUDICIAL NOTICE
Federal Rules of Evidence 201(d) requires a court to take judicial notice if requested by a party and supplied with the necessary information. The courts take judicial notice of matters relating to the composition and proceedings of legislative bodies. Wallace v. United States, 258 US 296, 66 L.Ed. 626 (1922); O'Gorman Young, Inc. v. Hartford Fire Insurance Co., 282 US 251, 75 L.Ed. 324, (1931). Invalidity of a statute may be shown by things which will be, or by fact established by evidence. Weaver v. Palmer Bros. Co., 270 US 402, 70 L.Ed. 654 (1926).
Petitioner requests the court to take judicial notice of the United States Constitution, the Congressional Record, the proceedings, legislative journals, and the enrolled and engrossed bills with their relevant dates of the 80th Congress.
THIS COURT MUST COGNIZE AND CORRECT THIS ERROR
The Supreme Court has decided that questions about the validity of passage of a bill in Congress can and must be cognized if a Constitutional or rights issue exists. U.S. v. Munoz-Flores, 495 US 385, 392, 109 L.Ed.2d 384, 395, n. 4 (1990):
"In the absence of any constitutional requirement binding Congress, we stated that "[t]he respect due to coequal and independent departments" demands that the courts accept as passed all bills authenticated in the manner provided by Congress. [Marshall Field v. Clark, 143 US 649] at 672, 36 L.Ed. 294. [(1892)]. Where, as here, a constitutional provision IS implicated, Field does not apply." (end quote from Munoz-Flores; emphasis in italics converted to capitals)
Yellin v. United States, 374 US 109, 114, 10 L.Ed.2d 778, 783 (1963) held:
"It has been long settled, of course, that rules of Congress and its committees are judicially cognizable. Christoffel v. United States, 338 US 84, 93 L.Ed. 1826, 69 S.Ct. 1447; United States v. Smith, 286 US 6, 76 L.Ed. 954, 52 S.Ct. 475; United States v. Ballin, 144 US 1, 36 L.Ed. 321, 12 S.Ct. 507. And a legislative committee has been held to observance of its rules, Christoffel v. United States (US) supra, just as, more frequently, executive agencies have been. See, e.g., Vitarelli v. Seaton, 359 US 535, 3 L.Ed.2d 1012, 79 S.Ct. 968; Service v. Dulles, 354 US 363, 1 L.Ed.2d 1403, 77 S.Ct. 1152." (end quote from Yellin v. U.S.)
United States v. Ballin, 144 US 1, 5, 36 L.Ed. 321, 324-25 (1892) stated:
"The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained." (end of quote from U.S. v. Ballin.)
From United States v. Smith, 286 US 6, 76 L.Ed. 954 (1932):
"As the construction to be given to the rules affects persons other than members of the Senate, the question presented is of necessity a judicial one." (end quote from Smith.)
A "CONVICTION" BASED ON AN INVALID STATUTE IS VOID
As stated in Ex Parte Siebold, "Habeas Corpus Cases", 100 US 371, 376, 25 L.Ed. 717, 719 (1879):
"We are clearly of opinion that the question raised in the cases before us is proper for consideration on habeas corpus. The validity of the judgment is assailed on the ground that the Acts of Congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundations of the whole proceedings. An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void and cannot be a legal cause of imprisonment."
(end quote from Ex Parte Siebold.)
Ex Parte Yarbrough, 110 US 651, 653, 28 L.Ed. 274, 274 (1884) held:
". . . it is equally well settled that when a prisoner is held under the sentence of any court of the United States in regard to a matter wholly beyond or without the jurisdiction of that court, it is not only within the authority of the Supreme Court but it is its duty to inquire into the cause of commitment when the matter is properly brought to its attention, and if found to be as charged, a matter of which such court had no jurisdiction, to discharge the prisoner from confinement. Ex parte Kearney, 7 Wheat., 38; Ex parte Wells, 18 How., 307 [ 59 U.S., XV., 421]; Ex parte Lange, 18 Wall., 163 [ 85 U.S., XXI., 872]; Ex parte Parks, 93 U.S., 18 [XXIII., 787]."
(End quote from Ex Parte Yarbrough.)
A VOID JUDGMENT IS A LEGAL NULLITY
As stated by Vallely v. Northern F. M. Ins. Co., 254 US 348, 353-54, 65 L.Ed. 297, 300 (1920):
"Courts are constituted by authority, and they cannot go beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal. Elliott v. Peirsol, 1 Pet. 328, 340, 7 L.Ed. 164, 170; Old Wayne Mut. Life Asso. v. McDonough, 204 US 8, 51 L.Ed. 345 [(1907)]." (end quote from Vallely v. Northern)
Old Wayne, supra, 204 at 16, 51 L.Ed. at 348 stated:
"Chief Justice Marshall had long before observed in Rose v. Himely, 4 Cranch, 241, 269, 2 L.Ed. 608, 617, that, upon principle, the operation of every judgment must depend on the power of the court to render that judgment. In Williamson v. Berry, 8 How. 495, 540, 12 L.Ed. 1170, 1189 [(ca. 1805)], it was said that to be well settled that the jurisdiction of any court exercising authority over a subject "may be inquired into in every other court when the proceedings in the former are relied upon and brought before the latter by a party claiming the benefit of such proceedings," and that the rule prevails whether "the decree or judgment has been given in a court of admiralty, chancery, ecclesiastical court, or court of common law, or whether the point ruled has arisen under the laws of nations, the practice in chancery, or the municipal laws of states." (end quote from Old Wayne)
According to Long v. Shorebank Development Corp., 182 F.3d 548, 561 (7th Cir. 1999):
"A void judgment [includes] judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court". (end quote from Long)
A "void judgment" cannot become "final", as it is a legal nullity. A judgment which is void can be (wrongly) BELIEVED to be "final", for a time, but that does not protect that judgment from attack based on its voidness. To conclude otherwise would amount to declaring that courts' mere belief that the statute is valid makes that statute valid, which amounts to a self-fulfilling prophecy.
"Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties", Wahl v. Round Valley Bank, 38 Ariz 411, 300 P. 955 (1931); Tube City Mining and Milling Co. v. Otterson, 16 Ariz 305, 146 P. 203 (1914); and Milliken v. Meyer, 311 US 457, 85 L.Ed. 278 (1940).
A void judgment is one which, from its inception, was a complete nullity and without legal effect, Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 456 (5th Cir. 1980); A void judgment is one that, from its inception, is a complete nullity and without legal effect, Holstein v. City of Chicago, 803 F.Supp 205 (N.D. Ill. 1992), affirmed 29 F.3d 1145 (7th Cir. 1994). A void order may be attacked, either directly or collaterally, at any time, In re Estate of Steinfeld, 630 N.E.2d 801, cert den. sub nom Steinfeld v. Hoddick, 513 US 809, 130 L.Ed.2d 17 (1994).
Fritts v. Krugh, Supreme Court of Michigan, 92 N.W.2d 604, 354 Mich 97 stated:
"A 'void' judgment, as we all know, grounds no rights, forms no defense to actions taken thereunder, and is vulnerable to any manner of collateral attack. No statute of limitations or repose runs on its holdings, and the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been." (end quote from Fritts v. Krugh)
B C Investments, Inc. v. F M Nat. Bank and Trust, 903 P.2d 339 (Okla.App. Div. 3, 1995) held:
"Decision is void on the face of the judgment roll when from four corners of that roll, it may be determined that at least one of three elements of jurisdiction was absent: (1) Jurisdiction over the parties, (2) jurisdiction over the subject matter, or (3) jurisdictional power to pronounce particular judgment that was rendered." (end quote B C)
Austin v. Smith, 312 F.2d 337, 343 (DC Cir. 1962) held:
"Moreover, the Rule [60(b)] places no time limit on an attack upon a void judgment, nor can such a judgment acquire validity because of laches on the part of him who applies for relief from it. 3 Baron Holtzoff, Federal Practice and Procedure 1327 (1958). [. . .] We conclude the District Court erred in denying Clarence's motion to vacate the judgment for $7,000, because it was and is void. The second judgment ordering his realty sold was and is void because it depended for validity upon a void prior judgment. In our view, Clarence should be relieved from these judgments under Rule 60(b)". (end quote from Austin)
THIS COURT IS OBLIGED TO INVESTIGATE ITS JURISDICTION
According to Steel Co. v. Citizens for a Better Environment, 523 US 82, 94, 140 L.Ed.2d 210, 227 (1998):
"'Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.' Ex parte McCardle, 7 Wall 506, 514, 19 L.Ed. 264 (1869). 'On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it." Great Southern Fire Proof Hotel Co. v. Jones, supra, [ 177 US 449] at 453, 44 L.Ed. 842, 20 S.Ct. 690 [(1900)]. The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States' and is 'inflexible and without exception'. Mansfield, C. L. M. R. Co. v. Swan, 111 US 379, 382, 28 L.Ed. 462, 4 S.Ct. 510 (1884)." (end quote from Steel Co.)
Steel Co., supra, 523 US 83, 95, 140 L.Ed.2d 210, at 227, continues:
"'"[E]very federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it. Mitchell v. Maurer, 293 US 237, 244, 79 L.Ed. 338, 55 S.Ct. 162 (1934). See Juidice v. Vail, 430 US 327, 331-332, 51 L.Ed.2d 376, 97 S.Ct. 1211 (1977) (standing). 'And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it. [When the lower federal court] lack[s] jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.' United States v. Corrick, 298 US 435, 440, 80 L.Ed. 1263, 56 S.Ct. 829 (1936) (footnotes omitted).'" Arizonans for Official English v. Arizona, 520 US 43, 73, 137 L.Ed.2d 170, 117 S.Ct. 1055 (1997), quoting Bender v. Williamsport Area School Dist., 475 US 534, 541, 89 L.Ed.2d 501, 106 S.Ct. 1326 (1986) (brackets in original)." (end quote from Steel Co. v. Citizens.)
The district court did not possess jurisdiction over the merits of the case in a petition for writ of certiorari. Therefore, the case never became "final" for the purposes of 18 U.S.C. § 2255(1), and no time bar can be applied.
COURT HAS NO DISCRETION TO REFUSE TO VACATE A VOID JUDGMENT
Export Group v. Reef Industries, Inc., 54 F.3d 1466, 1469 (9th Cir. 1995) held:
"We review de novo, however, a district court's ruling upon a Rule 60(b)(4) motion to set aside a judgment as void, because the question of the validity of a judgment is a legal one. Retail Clerks Union Joint Pension Trust v. Freedom Food Center, Inc., 938 F.2d 136, 137 (9th Cir. 1991)." (end quote from Export Group)
Orner v. Shalala, 30 F.3d 1307 (9th Cir. 1994) held that when the rule providing for relief from a void judgment is applicable, relief is not a discretionary matter, but is mandatory.
Jaffe and Asher v. Van Brunt, 158 F.R.D. 278 (S.D.N.Y. 1994) held:
"Judgments entered where courts lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside."
(end quote from Jaffe and Asher)
Footnote 1:
However, the fact that these pre-1948 statutes may be, technically, still "valid" does not mean that charges could be brought today, citing them. That is because of the "Notice" or "fair warning" requirement of Due Process, which mandates that a potential lawbreaker be informed, in principle, that a given conduct is criminal. "[W]e assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." He must have a way to know that a specific act is proscribed.
In the case of the federal system, with its solely statutory crimes, that fair warning requirement mandates more specific notice than a mere statement, "killing is illegal". See United States v. Lanier, 520 US 259, 266, 137 L.Ed.2d 432, 442; Kolender v. Lawson, 461 US 352, 357, 75 L.Ed.2d 903, 103 S.Ct. 1855 (1983). The possible penalties must be warned, as well. Since 18 U.S.C. § 1111 is invalid, its "notice" is not applicable to the predecessor statutes.
If a person were to visit his local law library and look VERY carefully, he might see obscure references to old (pre-1948) 18 U.S.C. statutes 18 U.S.C. §§ 253, 452, 454, 567, and 550, but they would only be referred to as old, superseded, expired laws that do not apply to anyone, anymore. Not only has he received no notice, even in principle, that a contemporaneous killing might result in a federal charge, in fact he has been actively misled by virtually all the seemingly authoritative reference books, and many federal criminal cases charging murder as 18 U.S.C. § 1111, over the past 60 years. Fixing this problem is Congress's job.
END MEMORANDUM OF LAW AND FACT REGARDING CLAIM OF VOIDNESS
7/15/07
Signed, __________ Dated, James Dalton Bell, Next FriendCERTIFICATE OF SERVICE
I, James Dalton Bell, under penalty of perjury, hereby certify that on the date written below I mailed a copy of this filing to the court, addressed to this court, the U.S. Attorney's office listed below, first class postage affixed, labelled "Legal Mail/Special Mail". I presented the envelope to the prison authorities pursuant to Houston v. Lack, 487 US 266 (1988).7/15/07 Signed, __________ Dated, James Dalton Bell, Next Friend United States District Court, District of North Dakota, Southeastern Division, Attn: Todd Dudgeon, 655 First Ave., North, Suite 130, Fargo ND 58102-4932
Eric A. Seitz Suite 714, 820 Mililani St., Honolulu Hawaii 96813-2937
William Kirschner, Kirschner Assoc., 1351 Page Drive, Suite 104, Fargo, ND 58103.
Bruce Henry Ellison, 328 E New York St. #5, Rapid City, South Dakota 57701.
Michael E. Tigar, John Privitera: Tigar, Buffone Doyle.
Arthur Kinoy, New York City, NY.
Barry A. Bachrach, 311 Main Street, PO Box 15156, Worcester MA 01615
Michael Kuzma, Esq., 1893 Clinton Street, Buffalo NY 14206
Mark B. Gombiner, New York, New York.
Lynn E. Crooks, U.S. Attorney Office, 655 First Ave N., PO Box 2505, Fargo ND 58108.
National Association of Criminal Defense Lawyers, Inc.
California Attorneys for Criminal Justice.
Cathedral Church of St. John the Divine.
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