Via My Suegro Jose M. Gonzalez
IN THE UNITED STATES DISTRICT COURT
FOR THE DITSTRICT OF
NEW HAMPHIRE
Gonzalez, Cirino * CASE NUMBER
V * 07-CR-189-03-GZS
UNITED STATES *
OF AMERICA *
MOTION UNDER 28 USC § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
BY A PERSON IN FEDERAL CUSTODY
Comes now the Movant, Cirino Gonzalez, PRO SE and INFORMA PAUPERIS; under the case of: UNITED STATES v. MORGAN, 346 U.S. 502, 505 (1954), the MOVANT, Cirino Gonzalez, should not be barred from an appropriate remedy because he has mistyled his MOTION. The Court should construe it as whichever one is proper under the circumstances and decide it on its merits. MOTION remedy is in the criminal proceeding, affords the opportunity and expressly gives the broad powers to set aside the judgment and to “DISCHARGE THE PRISONER or RESENTENCE HIM or GRANT a NEW TRIAL or CORRECT THE SENTENCE AS MAY APPEAR APPROPRIEATE.”
(*rules of evidence*)
This MOTION is provided invoking FED. R. of EVID.; specifically, RULE 901, 33 evidence, and other rules, which makes these rules APPLICABLE in this proceeding.
This MOTION is to present the inquiry of whether the claimed errors of law were a fundamental defect, which inherently results in a complete MISCARRIAGE OF JUSTICE [Hill v. UNITED STATES, 368, U.S. 424, 428 (1962)] and whether it presents EXCEPTIONAL circumstances where the need for remedy afforded by a 2255.
STATEMENT OF THE CASE
BACKGROUND
Movant, Cirino Gonzalez, hereon to referred to as “Movant,” was tried and convicted in the UNITED STATES DISCTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE (Docket Number: 07-CR-189-03-GZS), ON April 10, 2008. a judgment of PARTIAL CONVICTIONS and MISTRIAL was ruled by Judge George Z. Singal, hereon “Singal,” and SENTENCING followed on September 26, 2008, with 96 months (8 years) imposed on Movant for the count of 18 U.S.C. §371, 18 U.S.C. §111(a)(1), and 18 U.S.C. §3. The Movant entered a plea of NOT GUILTY and went forward in a JURY TRIAL, where Movant testified upon the stand under oath.
Movant APPEALED the conviction of UNITED STATES DISCTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE to the UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT (Docket Number: 08-2300), where the sentence and convictions were affirmed on July 30, 2010. Citation: UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT 615 A.F.T.R. 2D (RIA) 5962 NO.08-2300. Some of the grounds raised in DIRECT APPEAL were:
Convicted of accessory and conspiracy to accessory, but not conspiracy to impede officers.
Not guilty of Count II Conspiracy
Count III Accessory after the fact indictment failed to state an element.
No evidence to prove Movant knew the elements of the Browns’ crimes.
Reasonable doubt instructions diluted the Government’s burden of proof.
The Court erred in directing the Jury that Marshals are Government Officers.
Dual object conspiracy analysis resulted in Movant being sentenced for a crime of which the jury did not find guilt.
Movant was IMPROPERLY sentenced for use of a weapon, which the Jury REJECTED.
Count II(a) is a MISDEMEANOR but Movant was sentenced as if it were a felony.
Guideline calculations for Count II(b) and Count III were based on the WRONG underlying offense.
Movant should NOT have been penalized for OBSTRUCTION OF JUSTICE based on his statement to the jury regarding JURY NULLIFICATION.
The Federal Government had/has NO territorial JURISDICTION in Plainfield, New Hampshire, NOR at the Federal Court House in Concord, New Hampshire [not cited by ineffective appellant counsel was ADAMS V. UNITED STATES, 319 U. S. 312 (1943)].
Movant filed a PETITION FOR WRIT OF CERTIORARI to the UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, which is filed as No. 11-5260 on July 14, 2010, and Movant was informed that it was denied on October 03, 2011. Citation to Case: Cirino Gonzalez, Petitioner V. UNITED STATES. SUPREME COURT OF THE UNITED STATES 132 S.Ct 288; 181 L.Ed. 2d. 173;2011 U.S. LEXIS 5416; 80 U.S.L.W. 3189 NO. 11-5260. Grounds raised in WRIT OF CERTIORARI the THE SUPREME COURT OF THE UNITED STATES are moot at this point and may include some issues listed in this MOTION.
STATEMENT OF THE CASE
ISSUES
Note that the unusual circumstances of this case have resulted in NEW EVIDENCE as well as MANY transgressions listed under three categories. Movant prays The Honorable Court will find in favor of Movant on this Motion but points out that mistakes or disagreement on one or a few of the listed transgressions does not constitute a denial of the WHOLE item number, under which the one or a few of the questionable transgressions were listed.
As per instructions and guidance for preparing a MOTION under 28 USC § 2255, Movant makes the following claims and provides the necessary documentation to point out to this Honorable Court the reasons for this MOTION:
1.INEFFICTIVE ASSISTANCE OF COUNSEL
Court-appointed Counsel was ineffective on several counts. Movant was Court-appointed trial attorney, David Bownes, hereon “D.Bownes.” D.Bownes, at least once, attended an Attorney-Movant meeting in a state of INTOXICATION. D.Bownes failed to state clearly to Movant whether a petition could have been or was even filed in the ORIGINAL conviction, in addition to the direct APPEAL. In dealing with missing emails from Movant to Daniel Riley, D.Bownes refused to bring in the necessary materials or expert witnesses to provide Movant opportunity to find said exonerating emails (Exhibit#CG001). D.Bownes failed to emphasize “FOR THE RECORD” that a key defense witness, Jose M. Gonzalez, invoked “UNDER DURESS” his right to remain silent as per the 5th Amendment of the CONSTITUTION OF THE U.S. (Exhibit#CG002) to expose the coercive tactics of the Government. D.Bownes removed or failed to follow or refused to follow an agreed-upon DEFENSE ARGUMENT without informing Movant (Exhibit#CG003). D.Bownes concurred with and failed to object to the Court’s ruling and presumption to include Movant as part of a conspiracy with regard to a questionable recording, the “CONSPIRACY STATEMENT,” that Movant did NOT make and denies having made (Exhibit#CG004). D.Bownes refused to have this CONSPIRACY STATEMENT evidence refuted with voice comparison tests, as requested by Movant and this evidence was used against Movant in SENTENCING. NEW EVIDENCE in the form of TWO letters from Daniel Riley attesting to Daniel Riley’s knowledge as to whose voice was on this recording (Exhibit#CG005 & CG006). D.Bownes BLATANTLY refused to withdraw Movant from the conspiracy (Exhibit#CG007). D.Bownes refused Movant’s request to obtain another attorney with regard to finding missing emails (Exhibit#CG008). Later, D.Bownes admitted that he should have obtained another attorney and ADMITTTED to unlawfully arranging to unlawfully transfer Movant out of jurisdiction without consent of Movant (Exhibit#CG008). D.Bownes was unprepared to represent Movant, as demonstrated by Motions filed (Exhibit#CG010). D.Bownes admitted being too busy to prepare an adequate defense AFTER the trial in his Motion (Exhibit#CG011). Movant points out that even The Court stated that D.Bownes should have been prepared (Exhibit#CG012). D.Bownes ADMITTED to being “INEFFECTIVE ASSISTANCE OF COUNSEL” and Movant highlights that, although the Motion used in this Exhibit pertained to a re-trial, D.Bownes effectiveness would have been demonstrated in a lack of need for re-trial (Exhibit#CG013). D.Bownes filed MOTION TO WITHDRAW after having been fired by Movant for having failed in many ways as pointed out in this Motion (Exhibit#CG014). D.Bownes acted unlawfully in arranging a transfer of Movant to a different Court (Exhibit#CG008).
2.INEFFICTIVE ASSISTANCE OF APPELATE COUNSEL
The Court appointed appellant attorney, Joshua Gordon, hereon “J.Gordon” to Movant. J.Gordon refused to APPEAL on grounds of INEFFICTIVE ASSISTANCE OF COUNSEL based on D.Bownes’s behavior and lack of Professional performance. J.Gordon did inform Movant in writing that a PETITION could be filed on the denial of the APPEAL based on his opinion that the 1st CIRCUIT argument was INCOMPLETE and basely WRONG. However, later, J.Gordon REFUSED to file the petition (Exhibit#CG015). J.Gordon replied positively to an email sent to him by Jose M. Gonzalez regarding instructions from Movant but failed to follow the instructions (Exhibit# See CG016CG016). In response to the INEFFECTIVE ASSISTANCE OF APPELATE COUNSEL, Movant filed grievances against J.Gordon (Exhibit#CG019) in attempts to motivate EFFECTIVE performance(Exhibit#020). Instead of improving his performance, J.Gordon filed a Motion to Withdraw (on FILE) and seemed to have obtained legal representation to defend his actions (Exhibit#CG021). J.Gordon received, and replied to, but failed to take action on, an email (Exhibit#CG017) in which Patricia Webber denied having made statements on Documents used in WRONGFUL SENTENCING of Movant; an issue to be presented in the Argument of APPEAL. Furthermore, Jose M. Gonzalez sent a hard copy of a WITNESSED statement SIGNED by Patricia Webber, in which she clearly stated “…draft reported by DENNIS SUSZKO contains numerous errors and discrepancies…NOT my statements…” (Exhibit#022) J.Gordon sent an email to Jose M. Gonzalez informing that Movant was going to be sent legal correspondence directly from The Court, but the address to which Movant was being sent correspondence was wrong (Exhibit# CG018). While Movant was in the “HOLE” at FCI-ER.OK, J.Gordon telephoned and told Movant that he (J.Gordon) was not going to risk losing his license to practice law over Movant. When Movant insisted on being released pending appeal to assist in his own defense, J.Gordon suggested that Movant remain in prison in a “Sometimes doing nothing is STRONGER” note (Exhibit#CG023); this strategy proved to be INEFFECTIVE. J.Gordon claimed he had not received email from Movant but failed to act upon the apparent or even OBVIOUS interference on the part of the BUREAU OF PRISONS, hereon “BOP” (Exhibit#CG024). J.Gordon continued sharing information with D.Bownes despite Movant having expressed distrust of D.Bownes. J.Gordon failed to provide Movant with court transcripts necessary for Movant to demonstrate the Court-appointed trial attorney as having been INEFFECTIVE ASSISTANCE OF COUNSEL, a real and APPEALABLE defense (Exhibit#CG025 & CG026). Often, information sent by J.Gordon and/or his attorney was undelivered, delayed, returned, or incomprehensible either at the hands of BOP or the senders, further evidencing INEFFECTIVE ASSISTANCE OF APPELATE COUNSEL (Exhibit#CG027). J.Gordon refused to act upon information and evidence provided by Movant that exposed misconduct, as well as obstruction of justice, on the part of U.S. Marshal(s) and BOP Agents. Movant sent letters to The UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT as well as to James L. DeHart in the NEW HAMPSHIRE SURPEME COURT (Exhibit#CG028) to no avail. Despite grievances filed against J.Gordon by Movant, J.Gordon continued to get away with refusing to allow Movant to participate in his own appeal (Exhibit#CG029). J.Gordon covered his own ignorance of applicable law at the expense of Movant’s freedom (Exhibit#CG030). J.Gordon made false statements to protect himself (Exhibit#CG031), and J.Gordon failed to recognize and act on the ‘BIG PICTURE’, in which Government Agents coerced witnesses and FALSIFIED SEVERAL DOCUMENTS (Exhibit#CG000), as well as evidence in order to win this case: blatant disregard to the TRUTH (Exhibit#CG032).
3.PROSECUTORIAL MISCONDUCT
Movant emphasizes the interference on the part of many Agents of/for the Government, including Prosecuting Attorneys, U.S. Marshals and other Enforcement Agents, and Judges specifically acting as, or in conjunction with the BOP, which repeatedly denied, delayed, or otherwise restricted legal mail, electronic-mail, and other correspondence that was and is pertinent to Movant’s preparation for defense (Exhibit#CG024). Additionally, Agents for the BOP repeatedly punished Movant for his attempts to communicate with his family and other contacts outside of the prison that were/are his only reliable source and connection to The Court system for information regarding his DEFENSE and APPEAL.
In one of MANY demonstrations of BIAS, Singal ignored the SUPPLEMENTAL SENTENCING MEMORANDUM, filed by Movant’s INAFFECTIVE attorney, D.Bownes detailing LEGAL reasons against “Upward Variance” in sentencing (Exhibit#CG082-A). Continued BIAS on the part of Singal was further demonstrated by his having ignored the SENTENCING MEMORANDUM IN SUPPORT OF A DOWNWARD VRIANCE (Exhibit#CG083). Instead, Singal chose to focus sentencing criteria on negative, usually inaccurate or false, documentation in the PRESENTENCE INVESTIGATION REPORT, hereon “PSI/PSR,”despite disputed information therein and Movant has discovered even more NEW EVIDENCE regarding the inconsistencies of the PSI/PSR (Exhibit#CG 084).
A statement, SIGNED before a WITNESS, written by Patricia Webber, exposing falsehoods by U.S. Marshal, DENNIS SUSZKO, on forms used to enhance sentencing of Movant, was sent to The Court without any reply as to the actions or inactions against DENNIS SUSZKO, or in favor of Movant (Exhibit#CG022). Movant maintains that other documents, the information from which was used in sentencing Movant, was coerced from, and later recanted by, Daniel Riley (Exhibit#CG048). The Court was repeatedly informed about its lack of JURISDICTION but proceeded in this case with full knowledge of its violation of JURISDICTION (Exhibit#CG049). The Judge in this case, Singal, was exposed as having BIAS against the cause of the defendants and defied a MOTION FOR JUDGE SINGAL TO REMOVE HIMSELF FROM THIS CASE (Exhibit#CG050). The Prosecution WITHHELD exculpating emails from Movant, written by Movant to co-defendant, Daniel Riley, in which Movant repeatedly refused to perform conspiratorial acts such as returning to the Browns’ home or updating the Browns’ website; therefore, REMOVING Movant from the CONSPIRACY (Exhibit#CG009).
Judge Singal demonstrated his BIAS against all defendants, including Movant in arguing points for the Prosecution against Defense Attorneys even when the Prosecution admitted that raising the legality of the income tax would hurt the argument of the Prosecution and favor the Defense (Exhibit#CG071). Movant was forced to stand trial as a member of a CONSPIRACY based on information obtained from, and recanted by, Daniel Riley before Daniel Riley had been given his MIRANDA warning (Exhibit#CG072). Singal allowed Exculpatory Evidence to be withheld despite MOTION TO DEMAND DISCOVERY which could have demonstrated the degree to which defendants may have felt their lives were THREATENED by U.S. Marshals (Exhibit#CG073). Singal allowed Prosecutors to LIE to the GRAND JURY (Exhibit#CG074). Singal ignored and/or denied to Movant EXCUPATORY information necessary for preparation for trial (Exhibit#CG075) and even DEFIED case LAW (Exhibit#CG076). Singal was present in what appears to be a CONSPIRACY of ALL Attorneys, DEFENSE and PROSECUTORS against the Defendants, including Movant to facilitate denying Defendants and Movant of their Rights to JURY NULLIFICATION and defining of ‘reasonable doubt’ (Exhibit#CG077). Testimony of a key Government witness exposed obvious tampering of video evidence and probably acts of OBSTRUCTION on the part of the U.S. Marshals Service but Singal seemed to either ignore the obvious or support the OBSTRUCTION when the witness claims lacking any knowledge about the video (Exhibit#CG078). Singal demonstrated his BIAS against Movant by denying D.Bownes’s corrected request to reschedule jury selection rendering D.Bownes more so INEFFECTIVE ASSISTANCE OF COUNSEL to Movant (Exhibit#CG079). Singal IGNORED a MOTION REQUESTING DUE PROCESS filed on behalf of Movant, in which Singal is accuse of “ABUSE OF JUDICIAL DISCRETION… showing a pattern of BIAS…” (Exhibit#CG080). D.Bownes, whose services were INEFFECTIVE and having been repeatedly terminated by Movant was denied, by Singal, his MOTION TO WITHDRAW, despite a letter written to Singal by Movant, which Movant pointed out specific and ILLEGAL MISCONDUCT on the part of D.Bownes, Singal, and Prosecutors (Exhibit#CG081). Furthermore, Singal COERCED Movant into maintaning INEFFECTIVE ASSISTANCE OF COUNSEL (Exhibit#CG081).
Exhibit#CG069 includes Movant’s hand-written notes and a typed out transcript of those notes, which reflect the Testimony transcribed on March 31, 2008 beginning at 12:15PM, Day Seven – PM Session, (possible known as “Document # 132”) and special attention should be given to note items highlighted and/or circled on pages FOUR, FIVE, and SIX of Exhibit#CG069 (Exhibit#CG069), in which the judge, Singal, openly demonstrated BIAS against the defendants, including Movant. The Judge further demonstrates BIAS against Movant during the sentencing hearing during which Singal refused to respond to questions and information Movant provided (Exhibit#CG070). Singal seemingly ignored OBJECTIONS by Movant regarding the PSI/PSR, which was used extensively by Singal in administering sentencing to Movant (Exhibit#CG085). The PSI/PSR, as previously mentioned contained information that was questionable, at best, coerced by disputable means, at worst, as is pointed out by Daniel Riley, who claims having been coerced to make statements into a “proffer,” which were in turn used against Movant in the PSI/PSR and sentencing (Exhibit#CG086). Specifically, Singal showed overt BIAS in determining whether Daniel Riley’s ‘coerced’ statements should be removed from the record when Singal supports the Prosecution by claiming Daniel Riley was acting on what Daniel Riley’s “… attorney allegedly told you…” while ending the same sentence with “… and you ended up telling the Government” which demonstrated Singal’s accepting the Government’s side in opposition to Daniel Riley and later on, threatening Daniel Riley with complete loss of attorney-client confidentiality (Exhibit#CG086). In denying Daniel Riley’s MOTION TO SUPPRESS, Singal allowed evidence to be entered into Movant’s PSI/PSR without giving Movant opportunity to cross-examine Daniel Riley with intent to discredit such statements and the Government was able to use the coerced statements to their unfair advantage (Exhibit#CG087). Unless the Court allows unsubstantiated comments devoid of legal support in a Court of Law Singal tolerated, without action, the LIES spoken by Prosecutor Arnold H. Huftalen, AUSA, during the September 26, 2008 SENTENCING HEARING (Exhibit#CG082) especially, in terms of statements made that the Prosecution FAILED to prove or even demonstrate in court as circled in the Exhibit#CG082.
With regard to Movant’s witness list; Prosecution intimidated several witnesses into refusing to testify (Exhibit#CG088). The Prosecution also REMOVED a witness, Amy Williamson, from Movant’s list whom Movant maintains held exonerating telephonic recordings despite the witness having been suspected as being a Confidential Informant, hereon “CI,” for U.S. Marshals working to entrap Movant. Furthermore, Amy Williamson lied to Round Rock, Texas Police in accusing another Witness on Movant’s list, Jose M. Gonzalez, of assaulting her (Exhibit#CG089). Prosecution filed a Response in which they admit to violating case law in failing to reveal the identity of the CI (Exhibit#CG90) but give no reason, other than accusations for having kept the identification of CI from the Defense. Other witnesses such as Terrell J. Melton and Joel Edgington have come forward with admissions of having been INTIMATED by either U.S. Marshals, Prosecuting Attorneys, or both but yet, some shy from making their allegations public for fear of reprisals.
The record is replete with discreet, as well as blatant, examples of BOP interference with Legal mail sent to and from Movant (Exhibit#CG033). Agents of the FEDERAL CORRECTIONAL INSTITUTION-PHOENIX, ARIZONA (FCI-PA) blatantly determined, without proof, cause, or legal citation, that a letter written by Movant to Movant’s father, and possessor of POWER OF ATTORNEY (Exhibit#CG036), did ‘… not qualify as “LEGAL MAIL” ‘ and delayed its departure using an UNOFFICAL format to notify Movant (Exhibit#CG034), obstructing justice, and denying Movant of DUE PROCESS, as the letter contained time-sensitive information to be forwarded to the SUPREME COURT OF THE UNITED STATES (Exhibit#CG035). The BOP returned to sender Movant’s in-coming mail, even though marked “INCLUDES LEGAL CORRESPONDENCE,” from Movant’s father, upon whom Movant depended to maintain the flow of legal mail (NOTE: Item “B” on Exhibit#CG035), as well as LEGAL mail sent to Movant by his Appellate Attorney, J.Gordon (NOTE; Item “C” on Exhibit#CG035). At one point, Scott Willis, Associate Warden of Programs, systematically denied Movant of THREE incoming letters from Joe Haas, a man known to be an excellent legal researcher and well-known amongst his acquaintances as extremely knowledgeable in the letter of the law (Exhibit#CG051, CG052, & CG053). Often, paltry reasons were used to justify the denial of LEGAL MAIL from Movant (Exhibit#CG054) and these reasons were all too often redundant and lacked any legal or policy citation whatsoever, other than a mere accusatory statement (Exhibit#CG055, CG056, CG057, CG058,CG059). While incarcerated in FCI-ER, OK, Movant was denied telephone use for over a WEEK, without cause, or even having been given an explanation, in typical early 20th century prison style ((Exhibit#CG038), despite a key Correctional Officer (CO) admitting that Movant had done nothing to warrant such punishment. This was done during a time in which Movant had to maintain communications with family and Appeal Attorney, while working on the APPEAL. The “RESPONSE” from the FCI-PA required Movant to speak with a CO that was out, away for a week (Exhibit#CG038 “REPONSE”), demonstrating DELIBERATE INDIFFERENCE against Movant on this, and several other occasions. Many times Movant was prevented from accessing documents vital to his defense APPEAL by FCI-PA Agents, relying on technicalities that further frustrated the process, when simple approval could have sufficed IF the Agents cared at all about justice (Exhibit#CG039). BOP Agents refused to explain to Movant the reasons Movant had been placed in a security level that endangered Movant and complicated Movant’s attempts at correcting falsified documents, which resulted in UNLAWFUL SENTENCING of Movant, as well as possible wrong placement of security level within the BOP (Exhibit#CG040). The long-standing denial of the FALSIFIED documents (Exhibit#CG000) potentially served the purpose of OBSTRUCTION OF JUSTICE, even as Movant wanted only ACCESS to the documents in question, BOP Agents replied as if he were requesting POSSESSION (Exhibit#CG041) and REPEATED attempts on the part of Movant were denied without citation or documentable reasons (Exhibit#CG042 & CG043). On February 26, 2010, Movant filed a grievance advising BOP Agents at the El Reno, Oklahoma FCI (FCI-ER,OK) that their actions constituted “DELIBERATE INDIFFERENCE (Exhibit#CG044), and with typical DELIBERATE INDIFFERENCE, the warden’s office stamped Movant’s written grievance as received on March 30, 2010, over a MONTH after the date on which the grievance was written. In another blatant example of BOP partaking in OBSTRUCTION OF JUSTICE by DELIBERATE INDIFFERENCE, the Regional Director, G. Maldonado, Jr. of FCI-ER,OK on October 29, 2010, replied to Movant by explaining that Movant DOES have access to the requested evidence without addressing the fact that Movant is requesting the evidence because he had been, and continued to be, DENIED access to same (Exhibit#CG045), and again on March 24, 2010, with the same non-responsive denial of Movant’s in-house appeals (Exhibit#CG046). The ordeal over Movant’s assigned SECURITY LEVEL and Movant’s battle against the BOP’s interference with his own defense continued throughout Movant’s incarceration at FCI-ER,OK and followed Movant to FCI-PA Exhibit#CG068) and remains as yet unresolved. Having faith in the HONORABLE Courts System, Movant demanded that J.Gordon file a Motion To Allow Prisoner Receipt of Certain Mail (Exhibit#CG093), and in an obvious act of BLATANT PROSECUTORIAL MISCONDUCT, on July 21, 2010 the UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT demonstrated their BIAS against Movant and entered an ORDER OF THE COURT denying Movant’s Motion to allow Movant receipt of Certain Mail; referring to the long-standing attempts to receive the falsified documents/evidence used to unjustly sentence Movant. If the UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT was at all interested in the TRUTH, it could have just as easily, and with HONOR, have APPROVED Movant’s Motion to Allow (Exhibit#CG047). In response to this decision, Movant filed a NOTICE OF PERJURY with the UNITED STATES OF AMERICA FIRST CIRCUIT COURT OF APPEALS advising of the PERJURY performed onto the UNITED STATES OF AMERICA FIRST CIRCUIT COURT OF APPEALS and further exposing the violations of office by the U.S. Attorney’s office (Exhibit#CG091). Additionally, Movant filed, within the in-house system of FCI-ER,OK, several “BP-9” documents, at least one of which named Mr. J. Rogalsky, hereon “J.Rogalsky,” as the BOP Agent responsible for preventing Movant’s access to the falsified documents and possibly having lied to the FIRST CIRCUIT (Exhibit#CG068,33-33). In response, J.Rogalsky THREATENED Movant by asking Movant, “You want a safe environment while in prison, don’t you?” and in typical BOP INDIFFERENCE, BOP Agents responded unenthusiastically (Exhibit#CG060). On the day that Movant was THREATENED, J.Rogalsky further abused and harassed Movant by performing a “shake-down” of Movant’s cell and THREATENED to return and do more of the same often (Exhibit#CG061). Movant felt endangered, as tactics used by corrupt BOP Agents often involved pressuring fellow inmates into harming the inmate seen as causing trouble to BOP Agents (Exhibit#CG062). The following morning, Movant believed that as a means to intimidate fellow cell-mates into harming Movant, J.Rogalsky “tossed” Movant’s cell, as well as the two adjacent cells (Exhibit#CG063), and J.Rogalsky posted an UNOFFICIAL notice (Exhibit#CG064). In response to Movant’s having reported THREATS from J.Rogalsky, the BOP placed Movant “In the HOLE” pending an investigation of the matter (Exhibit#CG065). On September 02, 2010, Movant filed another grievance asking the BOP to investigate and determine whom, in FCI-ER,OK, it was that had OBSTRUCTED JUSTICE in lying to UNITED STATES OF AMERICA COURT OF APPEALS FOR THE FIRST CIRCUIT (Exhibit#CG066).
Co-Defendant, Robert R.Wolffe, hereon “R.Wolffe,” testified in court to avoid, among other coercion, a prolonged sentence as punishment for the crimes of which he was accused, and as evidence of such, as well as evidence of PROSECUTORIAL MISCONDUCT; the Prosecution filed a Motion to ‘CONTINUE SENTENCING’ of R.Wolffe, until AFTER R.Wolffe testified against Movant in what was to be the re-trial of Movant on June of 2008 (Exhibit#CG067).
E. ROBBINSON admitted to lying about what he reported. All other officers, having entered my home, my room, before E.Robbinson, have uniformly matching reports of the facts, which all contradict those reported by E.Robbinson. R.Wolffe admitted on the stand there was ‘No conspiracy with Movant. Singal punished Movant for perjury in testimony that was NOT rebutted but refused to punish R.Wolffe even after Singal admitted that R.Wolffe had impeached himself, to Defense Attorney, Sven Wiberg, at side bar .
Prosecution had DISCOVERY, from Movant’s website, which stated Movant’s date of departure from the Browns’ home and further elaboration on Movant’s personal causes, plans, etc. Such evidence should have led the government to question their own purposes in continuing their PERSECUTION of Movant.
PROSECUTORIAL MISCONDUCT issues abound in this case against Movant. The most transparent examples are where defense AND prosecution witnesses were involved. A prosecution witness, Joel Edgington, had approached Daniel Riley’s defense attorney, Sven Wiberg, to recant his testimony during the trial, in which he claims feeling coerced by Government agents and accused Prosecution attorneys of submitting false evidence, upon which he testified as real evidence for fear of retaliation from the Government (Exhibit#CG092). A special NOTE must be made of this claim, as Movant has only anecdotal knowledge of Joel Edgington’s recanting of testimony because, as a direct result of The Court’s blatant demonstration of BIAS against Movant, in which THE FIRST CIRCUIT’s REFUSAL to order the Bureau of Prisons (BOP) to cease interfering with LEGAL MAIL pertinent to the proper defense of Movant in this case, the BOP has continued to block Legal Mail to/from Movant, whether such LEGAL MAIL be to/from supporting family members, friends, or Attorneys, made further ineffectual by the BOP interference (Exhibit #047).
Movant submits, as fact, that Movant was DENIED EFFECTIVE ASSISTANCE OF COUNSEL through, and BY, the Government, The Court, and the ACTIONS and INACTIONS of the Court-appointed attorney, David Bownes. Movant TERMINATED David Bownes on THREE separate occasions DURING the trial, again AFTER declaration of the MISTRIAL, and again after the SENTENCING. The Prosecution AND the Judge resisted and denied, respectively, Movant’s termination of David Bownes, and forced/coerced Movant into re-instating David Bownes, who freely admitted, to Movant, to having thrown out/away EXONERATING EVIDENCE, FAILING/REFUSING to file MOTIONS, as Requested by Movant, AND even WITHDRAWING Motions agreed-upon by both Movant and INEFFECTUAL Court-appointed attorney, David Bownes.
Movant further submits, as fact, that he was Denied EFFECTIVE ASSITANCE OF APPELLET COUNSEL in that The FIRST CIRCUIT COURT intimidated Joshua Gordon into becoming less ‘EFFECTIVE’ when Joshua Gordon attempted to pursue the matter of JURISDICTION in Movant’s APPEAL.
Movant STRONGLY emphasizes the MANY incidents of PROSECUTORIAL MISCONDUCT, many of which were excluded from this filing for the sake of preserving time and space.
SUPPORTING FACTS
Firstly, Movant addresses the issue of JURISDICTION, about which THE SUPREME COURT OF THE UNITED STATES has ruled in Adams v. United States, 319 U.S. 312 (1943) that “Since the government had not accepted jurisdiction in the manner required by the Act, the federal court had no jurisdiction of this proceeding.” This alone should be enough to warrant approval of this MOTION.
Movant prays The Honorable Court will make the appropriate connections as Movant supports the NEW EVIDENCE and other charges made in this MOTION by offering the following:
Motion for new trial under Rule 33 must be granted if Court is reasonably well satisfied that testimony given by material witness is false & that without it, Jury might have reached a different conclusion; Where motion for new trial does not allege perjury or prosecutorial misconduct, however, Movant-Defendant must show that the new evidence would probably produce acquittal. United States v. Street (1977, Ca, Mass) 570 F.2d.
“The Jury is the only actor permitted to determine guilt—NOT the judge” United BHD of Carpenters & Jointers of AM v. United States, 330 U.S. 395, 408, 67 S. ct. 775, 91 L.Ed 973 (1947)
“A court cannot do indirectly that which it has no power to do directly” Spare v. United States, 156 U.S. 51, 106, 15 S.ct. 273, 39 L. Ed. 343 (1895)
“Jury nullification is that unreviewable power of the jury to bring in a verdict of not guilty ‘In the teeth of both law & facts” Horning v. District of Columbia, supra at 138.
“… the jury’s power to issue a general verdict of not guilty which is irreversible by the court …” United States v. Dougherty, 154 U.S. App D.C. 76, 93, 473 F.2d 1113 (1972)
“The trial judge…took a quantum leap beyond merely withholding encouragement… It impinges on the very essence of the Jury’s role as one of the spokesmen for the community conscience in determining whether blame can be imposed”” Williams v. Florida, 399 U.S. 78, 100, 26 L.Ed. 2D 446 90 S Ct. 1893(1970); Duncan v Louisiana, 391 U.S. 145, 155-56, 20 L.Ed 2d 491, 88 S. Ct. 1444 (1968).
“The Common Law Jury… has the power to nullify, that is, act as judge of the law and facts & render a verdict based on what it thinks is right …” New York State Bar Journal, Vol. 65, No. 7, Nov. 1993, At 40-44.
“If it is shown that Government’s case includes false testimony & Prosecution knows or should have known of falsehoods, new trial MUST be held if there is any reasonable likelihood that false testimony would have affected the judgment of the jury” United States v. Geders (1980, CA5 FLA) 625 F. 2d 31
“Standard for evaluating new trial Motion is more lenient in cases of recantation…”United States v. Olson (1988, CA7 WIS) 846 F. 2d 1103, 25 FED Rules EVID. SERV. 907, CERT DEN (1988) 488 US 850, 120 L Ed 2d 104, 109 S. Ct. 131
“… Court need only be reasonably well satisfied that testimony was false & without false testimony jury might have reached different conclusion.” United States v. Bonilla (1980, DC Puerto Rico) 503 F supp 626.
“… new trial on ground that prosecutor withheld evidence favorable to defendant…intentionally withholding exculpatory matter from defendant after request” United States v. Meier (1980, DC Utah) 484 F. supp 1129
“… require new trial under FRCRP 33, where newly discovered evidence… with conflicts of evidence known to defense before & during trial… & effectively to cross-examine particular witnesses was severely impeded” United States v. Conley (2000, DC MASS) 103 F. supp 2d 45, REVD (2001, CAL MASS) 249 F. 3d 38.
“ To obtain reversal… on ground of prosecutorial conduct, defendant must meet plain error standards of RULE 52 by showing that Prosecutor’s conduct affected his substantial rights” United States v. Veytia-Bravo (1979,CA5 TEX) 603 F. 2d 1187, 4 FED RULES EVID SERV 1474, REH DEN (1980) 444 US 1024, 62 L Ed d 658, 100 S Ct. 686
“… (1) … Counsel’s representation fell below an objective standard of reasonableness measured against prevailing professional norms; … (2) That there is a reasonable probability that but counsel’s unprofessional errors, the result of the proceeding would have been different” Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984); Also Padilla v. Kentucky, U.S., 130 S. Ct. 1473, 176 L. Ed. 2D 284 (2010).
“A Petitioner may demonstrate ineffective assistance of appellate counsel by showing that his or her appellate counsel ‘omitted significant & obvious issues while pursuing issues that were clearly & significantly weaker’ ” Clark v Stinson, 214 F. 3d 315, 322 (2d. Cir. 2000)
“… when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome” Mayo, 13 F. 3d at 533 (quoting Gray v. Greer, 300 F. 2d 644, 646, (76h Cir. 1985)
CONDUCT AND REHABILITATION
Movant, while under FEDERAL INCARCERATION, and despite his questioning the LEVEL of his INCARCERATION, has maintained himself as a model inmate for other inmates to emulate. His calm and peaceful approach to various ‘questionable’ practices, on the part of employees of the BOP, have gained Movant the respect of fellow inmates, as well as that of Correctional Officers in every facility into which Movant has been transferred. Movant has been, and continues to be, an active participant in unit team programming. Movant remains a smoke-free man, as he was before his incarceration, and stands true to his personal conviction to remain drug-free and supports all others wishing to improve themselves in this regard. Movant has maintained connections with his family of origin, as well as with his current wife, ex-wife, and four children, whom have suffered much, economically and emotionally, since his incarceration. He remains respected by his siblings, distant relatives, and respective neighbors. Movant owned a Service Business in which he was often entrusted with access to clients’ property for various services including security, maintenance, etc.
RELIEF
Movant, Cirino Gonzalez, prays this Honorable Court will recognize the expediency of this matter in that Movant has been held well beyond his Constitutionally allowable punishment, even had he been found guilty under Constitutional grounds. As such, Movant prays this Honorable Court to VACATE the unlawful sentencing and ORDER the Federal Bureau of Prisons to RELEASE Cirino Gonzalez and provide adequate private civilian transportation to the same address from which he was originally taken by Federal Agents at 1025 N. Wright Street in Alice, Texas.
Or, in the alternative, Movant, Cirino Gonzalez, prays this Honorable Court remand that Movant be released and able to participate in his own defense: back to Court for RETRIAL.
At the very least, Movant, Cirino Gonzalez, prays this Honorable Court acknowledges the questionable actions and dishonesty on the part of Federal Agents, U.S. Prosecuting Attorneys, and others in leading this Honorable Court to having been MISGUIDED and MISINFORMED and over-sentencing Cirino Gonzalez. In so acknowledging, Movant prays to be remanded to the Honorable Court for correct RESENTENCING and/or release for having satisfied the sentencing time required.
Lastly, Movant, Cirino Gonzalez, informs this Honorable Court that he remains devoted towards PEACEFUL and educational actions in dealing with corruption of Government Officials and policies.
Respectfully submitted under penalty of perjury and
without prejudice by written power of attorney (on file)
for Cirino Gonzalez
_________________________________ _____________
Jose M. Gonzalez Date State of Texas
County of Jim Wells
This document was acknowledged before me on _____________ (date)
By ___Jose Manuel Gonzalez©___ (name of principle)
______________________________
(signature of notarial officer) Seal/Stamp:
