You are at the Caught.net Legal Reform Website and the Pro Se Way Website

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

RONALD LíHEUREUX *

Petitioner

*

Vs. C.A. No. 00-474ML

*

AHSBEL T. WALL, Director *

SHELDON WHITEHOUSE, Attorney

General State of Rhode Island Respondent *

PETITIONERíS RESPONES TO

STATEíS MOTION TO DENY PETITIONERíS

PETITION FOR A WRIT OF HABEAS CORPUS

The Attorney General in asking this court to continue this blatantly illegal incarceration, is relying on the fact not one specific allegation was addressed by judge Thunberg, despite a specific request to comply with due process and issue a finding of facts and conclusion of law to each issue and the material related to the Rehoboth Police reports, which the R.I. Supreme court ordered. The State correctly asserts that "Petitionerís motion for bail is premised upon his allegations of prosecutorial misconduct." (Stateís bail response at 1) The State courts even refuses to acknowledge the facts conceded to by the State!

Mr.Weisman goes on to support Petitionerís allegations of misconduct by claiming: "Those allegations Ö have been rejected by the Rhode Island Superior Court Justice Thunberg," even though A.G. Randal White admitted that the specifically requested photos were not turned over at any time. And at the remand hearing Superior Court Justice William Dimitri, (petitionerís trial counsel) testified a specifically requested audio tape was suppressed until after the State closed its case-in chief, and erased the tape before turning the tape over. That angered counsel making it memorable.

These two irrefutable facts alone are proof positive of this continued illegal incarceration, caused by prosecutorial misconduct, and the Superior courtís grossly erroneous findings, unsupported by the facts in the record as required by law.

Moreover, as seen in the petitionerís memo. in support of this Habeas petition, the prosecution continues to refuse to comply with its constitutional mandate to correct what it knows to be false and elicit the truth, by deliberately avoiding this statement from Mr. White,( the A.G. at the remand proceedings). "Sergeant Withers said that he did not bring photos of vandalism to defendantís home to the trial." (Stateís remand memo. at 5. See also petitionerís memo. in support of Habe at page 5.)

Petitioner asserts that the Stateí s memorandum in support of its motion to deny petitionerís application for a Writ of Habeas Corpus, in the status quo, is replete with deceptive devices to continue to deny the truth, the undeniable facts, the applicable laws, and justice to the petitioner.

JURISDICTION

First and foremost petitioner did not file this petition under 28 U.S.C. Section 2245, but under Section 2241. Petitioner respectfully requests this court to take judicial notice of that fact. Moreover, the petitionerís reason for not filing under 2254, aside from excluding the State from even making this argument, is the plethora of procedural and constitutional violations by the State of Rhode Island and its judicial system as a whole.

Furthermore, aside from the above issues, the fact petitioner cannot secure his transcripts or a direct appeal in over ten (10) years warrants inquiry by this court. And this inordinate delay has been caused by a perjured affidavit submitted to the Supreme Court in 1996. Even if 2254 was invoked, 2254(B)(I) and (ii) allow for relief. Those sections state:

"(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-

  1. (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the

rights of the applicant."

The federal courts have addressed the issue of inordinate delay and have state as follows in Story v. Kindt, 26 F 3d 402,405 (3rd Cir. 1994):

"We observed in Wjojtczak v. Fulcomer, 800 F. 2d 353,354 (3rd Cir. 1986) That Ďinexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable, thereby prompting the federal court to excuse exhaustion. Although the existence of an inordinate delay does not automatically excuse exhaustion, it does shift the burden to the state to demonstrate why exhaustion should still be required a burden that is difficult to meet." (Citations omitted)

The U.S. Supreme Court has also stated that exhaustion is not jurisdictional, but a matter of comity. See Rose v. Lundy, 455 US 509, 515, 102 S. Ct 1198, 1201 (1982). Moreover, in two subsequent 2254 habeas petitionís to this court, petitioner has been requesting since 1995 that the federal courts at least set time limits on the State or monitor the progress of this case in the State courts which they declined to do so far. See Habeas application paragraph 11. (a) (3) 8., and 11. (b) (3); cf. Carter v. Vaughn, 62 F. 3d 591,594 (3rd Cir. 1995); Zamora-Trevino v. Barton, 727 F. Supp.

589, 591-91(D. Kan. 1989) ("The exhaustion doctrine seeks to afford state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary. Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986). However, if a person is being wrongfully detained and state courts are slow at act, immediate federal relief may be appropriate. Parker v. Turner, 626 F. 2d 1, 10 n. 25 (6th Cir. 1980).")

The state cannot attribute any of this delay to Petitioner because the Stateís Public Defenderís Office, for what ever reasons was not able to proceed with this case in a timely manner, when the state refused to prosecute or hold the remand hearing. See Exhibits 1-10. The Petitioner has done everything he can to push this case since he filed the first Habeas petition in this court all to no avail.

II. THE GREAT WRIT

"The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its pre-eminent rule is recognized by the admonition in the Constitution that: ĎThe Privilege of the Writ of Habeas Corpus shall not be suspended . . . .í US Const. Art. I, Sect. 9 cl 2. The scope and flexibility of the writ its capacity to reach all manner of illegal detention its ability to cut through barriers of form and procedural mazes have always been emphasized and jealously graded by court and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris v. Nelson, 394 US 286, 291-91. "{H]abeas corpus cuts through all forms and goes to the very tissue of the structure." Id. At 291 n.2

"It is now established beyond the reach of reasonable dispute that the federal courts not only may grant evidentiary hearings to applicants, but must do so upon an appropriate showing. (Citation omitted) And this Court has emphasized, taking into account the office of the writ and the fact that the petitioner, being in custody, is usually handicapped in developing the evidence needed to support in necessary detail the facts alleged in his petition, that a habeas corpus proceeding must not be allowed to founder in a Ďprocedural morass.í Price v. Johnston, 334 US 266 269, 92 L Ed 1356, 1361, 68 S Ct 1049 (1949)" Id.

"There is no higher duty of a court, under our constitutional system, than the careful processing and adjudication of petitions for writs of habeas corpus, for it is in such proceedings that a person in custody charges that error, neglect, or evil purpose has resulted in his unlawful confinement and that he is deprived of his freedom contrary to law." Id. at 292.

This petitioner has been making these allegations for over ten (10) years now and the state courts have refused to address the issues presented to both the Supreme Court and Superior court of the State on more than one occasion. Your petitioner is once again requesting that this Honorable court comply with the above laws, grant this Writ and issue bail while a full and fair hearing can be obtained and a decision is rendered on each and every allegation.

Wherefore, for the above reasons your petitioner prays the Stateís motion be denied and a Writ issue.

 

 

 

Respectfully submitted,

____________________

Ronald LíHeureux pro se

P.O. Box 8212

Cranston, RI 02920

CERTIFICATION

I, the undersigned do hereby certify that I have mailed a true copy of the within memorandum to the Attorney Generalís office at 150 South Main Street, Providence RI 02903, on this _______ day of December 2000.

 

_____________________________

You are at the Caught.net Legal Reform Website and the Pro Se Way Website