Back to Exhibit 7

ARGUMENT

A. NONE OF THE ASSISTANT ATTORNEY GENERAL’S CASELAW     CITATIONS AS CITED IN HER”MEMORANDUM OF POINTS AND AUTHORITIES…” HAVE ANY RELEVANCE TO THE DEFENDANT’S THREE HABEAS CORPUS PETITIONS, AND HAVE MERELY BEEN INTENDED TO MANIPULATE THE COURT INTO MAKING IMPROPER FINDING.

1. To begin with the assistant A.G.’ in this case cited and deliberately misapplied and misrepresented the actual holdings in a large number of case citations that she cited, as supposedly supporting her frivolous arguments. The defendant has read the cases that she has cited in her “Memorandum of points and authorities…” in support of her motion to dismiss, and he has found that not a single one applies to the circumstances of these cases, and on several cases she actually went as far as deliberately misrepresenting what the courts in those cases actually held. So before the defendant begins raising any real argument regarding the inapplicability of the statue of limitations bar in these cases, the defendant would first like to begin by distinguishing and showing the inapplicability of 6 of the more important case citations Ms.Beale cited:

1. Green V. White, 223 F.3d 1001, 1003 (9^th cir.2000). At page 5 of her Memorandum Ms. Beale cites Green V. White, supra, and claims that:” once the limitation period has run, a petitioner cannot revive the period by filing collateral state actions. It can only pause a clock that has not run,” Id. Yes the court in that case held that, but only because in THAT case the defendant had failed to exhaust his state remedies first BEFORE filing his Federal Habeas Corpus petition (to where I have exhausted all of MY state remedies before filing my Federal Habeas petitions). And also in that case the defendant waited one year AFTER the Federal Court dismissed his petition and notified him that he had to first exhaust his state remedy with the State Supreme Court, before he finally filed his petition with the State Supreme Court. Then he waited ANOTHER year AFTER the State Supreme Court denied his petition to refile his Habeas petition with the Federal Court. And his second petition did not “relate back” to the first because the first was dismissed due to his failure to exhaust his remedies. And the court found that equitable tolling did not apply because he waited 362 days AFTER the Federal Court told him to exhaust his state remedies, to finally get around to trying to exhaust his remedies with the State Supreme Court. THAT is why the court said what it said, and it was a holding that only applied to that type of situation. That case has no relation to the circumstances in this case. In the case at hand the defendant has done everything properly.
    

2. Scott V. Johnson, 227 F.3d 260, 263 (5^th cir.2000). Yes the court in this case held that equitable tolling did not apply to this particular Habeas Corpus in Federal Court, but ONLY because the state impediment to filing that the defendant claimed, ENDED six months BEFORE the federal one year limitation period for filing ended. So the defendant in that case still had had at least six months remaining to file and failed to do so. Again, this case also has no relevance to the case at hand since the defendant in this case diligently filed his Federal Habeas Corpus petitions in just 54 days after he exhausted his remedies with the California Supreme Court on these cases.
    

3. Webster V. Moore, 199 F.3d 1256, 1259 (11^th cir.2000). (Opposing counsel cites this case at page 5 of her said Memorandum). Yes the court held that a State court Habeas petition that is filed FOLLOWING the expiration of the Federal limitations period, cannot be tolled “since there is no period left to toll”, but ONLY because the State court in that case had FIRST dismissed the petition in State court by ruling it as being untimely, and filed outside the set limitations period in that State for filing Habeas petitions. But in the case at hand NONE of the State Courts that reviewed the defendant’s three Habeas Corpus petitions, claimed that the defendant’s Habeas petitions were untimely, and none of the State Court judges from the Superior Court to the Supreme Court, denied the defendant’s three Habeas petitions on grounds of supposedly being untimely filed. Quite to the contrary. All three levels of the State Court reviewed each of the three Habeas petitions on their merits. There was no “time bar” issue raised by the State Courts. So once again Ms.Beale frivolously cites a case whose holdings in no way apply to the case at hand.
    

4. Villegas V. Johnson, 184 F.3d 467, 472 (5^th cir.1999). (Opposing counsel cites this case at page 5 of her Memorandum ). Yes the court in this case SAID that “a prisoner will not be able to revive an expired limitation period by simply filing a state petition in conformity with basic procedural requirements”, but that was not a HOLDING of the court, and was only commented upon in dictum. And it was only being said to explain why the court had denied the respondent’s argument and would not give ss 2244(d) (2) an overly interpretation, as the state urged, and extended the limitations period to place additional restrictions on the 1 year period for filing, because the court found that its current interpretation  would “not extend to an excessive degree the time for filing” a petition and (in dictum) that additionally “A prisoner will not be able to revive an expired limitation period by simply filing a state petition in conformity with basic procedural requirements”, because Texas State law had “procedural safeguard” to prevent that possibility. So, once more Ms. Beale has misrepresented case law holdings in her attempts to manipulate this court into making improper decisions in the case at hand.
    

5. Maleng V. Cook, 490 U.S. 488, 490-491, 109 s.ct. 1923 (1989). (Opposing counsel cites this case at page 7 of her said Memorandum). In her Memorandum Ms. Beale tries to claim that Maleng V. Cook, supra, has held that “ a Habeas  petitioner must be ‘in custody’ under the conviction or sentence under attack at the time the petition is filed in order for the Federal Court to have jurisdiction over the matter “. Id., in her hopes of manipulating the court into improperly believing that the court has no “jurisdiction” to hear the defendant’s petition stemming from 1994, since the defendant has already served his sentence on that case. But the context in which Ms. Beale is trying to use it is not what the Supreme Court in Maleng meant at all. This case merely held that a prisoner cannot attack a prior conviction on Federal Habeas Corpus “merely because of the POSSIBILTY (emphasis) that the prior conviction will be used to enhance the sentence imposed for any subsequent crimes of which he is convicted” at s.ct.1925, and where no “present restraint” is being imposed on a present prison sentence as a result. The court held that, because in THAT case the defendant was trying to overturn an old conviction beyond his limitation period for filing, but claiming good cause for filing late, on the HYPOTHETICAL possibility that that conviction may aggravate the sentence in some unfiled, unforeseen future case. In the case at hand that is not even an issue since the California State Courts did not find, hold, or declare that ANY of the defendant’s Habeas petitions were untimely filed, and none of them were dismissed or denied on those grounds, so the defendant does not even have to show “present need” for getting the illegal 1994 conviction overturned anymore, here on the Federal level. But even if he did Maleng, supra, would still not apply since the defendant’s explanation of “present need” to overturn that said 9 year old case (02-1226) is not conditioned on a “possibility” of future adverse use, but is based on actual criminal cases that already have, and still currently are, using that illegal California conviction, in Colorado, to aggravate the defendant’s Colorado cases and sentence him to more prison time. Thus, once again, Ms. Beale’s citation of Maleng, supra, in the case at hand, is inappropriate and manipulative. And as a matter of fact what the court in Maleng held as applied to the type of case at bar, is exactly what the defendant has said. See Maleng V. Cook 109 s.ct.1923, 1925 (1989) (“Our interpretation of the ‘in custody’ language has NOT required that a prisoner be physically confined in order to challenge his sentence on Habeas Corpus.”) Id.
    

6. Lackawanna County Dist. Attorney V. Coss, 121 s.ct. 1567, 1573, 532 U.S. 394 (2001). (Opposing counsel cites this case at page 8 of her said Memorandum). Again, with this case, Ms. Beale again misrepresents actual court holdings and tries to manipulate this court by misrepresenting the context of Supreme Court holdings. In her Memorandum at page 8, Ms. Beale lies and claims that Lackawanna and it’s holdings supposedly bars the defendant’s present challenges to old convictions. She claimed that “in [Lackawanna], the Supreme Court held convictions which are used as prior convictions to a current offense cannot be challenged on Federal Habeas Corpus.” Id. But that is not true at all. 

   If you read Lackawanna you will see that all that case held was that Habeas Corpus petitions for convictions on which the time has already been served, cannot be filed SOLELY (emphasis) to challenge those prior convictions, and ONLY if the State Court has a consistently applied limitations period for filing, and ONLY if the State Court asserts the statue of limitations as a jurisdictional bar for denying review. In other words the State Court has to find in its order of denial or dismissal that a Habeas petition filed after say, 7 or 8 years, is untimely filed, before the Federal Court can deny review on those grounds. But the State Courts made no such finding of untimeliness in any of the defendant’s three Habeas petitions; Ms. Beale knows this, so her reference to Lackawanna is inapplicable and improper. And further Lackawanna at pg. 1573 specifically reaffirmed: (“the text of ss 2255, which also contains an ‘in custody’ requirement, is broad enough to cover a claim that a current sentence enhanced by an allegedly unconstitutional prior conviction violates due process.”) Id. So that also proves that the defendant has sufficiently met the “in custody” aspect regarding his 1994 prior conviction, as well, since his current Colorado conviction was “enhanced” by it. The Supreme Court in Lackawanna, supra, ultimately found in that case that the defendant’s prior convictions had not actually been used by the State Court to aggravate his current sentence, so the Supreme Court denied his petition on those grounds. That is not the case in the case at bar. 

   In conclusion to this section, if the court goes and reviews the other cases not distinguished here that the Assistant Attorney General in this case, in her Memorandum, cited, the court will find that none of her citations are relevant to this case.