Back to Exhibit 7

ARGUMENT

D:  THE HABEAS CORPUS PETITION REGARDING TWO CONVICTIONS OCCURRING ON DECEMBER 29^TH, 1998 (02-1155) (02-1225).

1. In its order denying the defendant’s Habeas Corpus petition in State Court, the State Court judge, judge Krug, first improperly comments and claims that the Habeas petition challenging the two 1998 convictions was actually a “successive” petition of the petition filed regarding his 1994 conviction. But that wasn’t the case at all. And if judge Krug had not been so unfair and arbitrary in his attitude towards the defendant’s attempts to assert his rights, judge Krug would have seen that the second petition (filed 12-19-01) was filed in regards to two separate cases, than the case challenged in the first petition (filed 12-13-01). But instead he improperly treated the second petition as a “supplemental petition” even though it was not. See (EXHIBIT: 5), And in any case he did not find or hold in his order that the petition was untimely filed, nor did he deny the petition based on any purported “successive petition” grounds, and he went on to review the petition on its merits. See (EXHIBIT: 5). The findings judge Krug made regarding the merits were arbitrary, contrary to the law, and he completely ignored and avoided some of the defendant’s arguments all together. And he never entertained, nor granted, the defendant’s repeated requests to be granted an evidentiary hearing in order to call witnesses and to obtain additional documented evidence. Judge Krug ignored the defendant’s evidence of a FIRST detainer being filed as far back as January 21^st, 1997, and merely harped on the second detainer the D.A.’s office filed in July, 1998, when arbitrarily the defendant’s 6^th Amendment speedy trial violation claim. His other findings were similarly unfair, conclusory, and arbitrary.
    

2. In addition to refiling his petition for review in the California Appeals Court, following judge Krug’s arbitrary denial of the Habeas petition, the defendant also filed an additional brief explaining how judge Krug was deliberately trying to interfere with the defendant’s fair appellate review of Krug’s order of denial, by mixing up the Habeas petition at bar for the two 1998 convictions, with the petition filed for a completely separate 1994 conviction, and lumping the two petitions under the same Superior Court Habeas case number (SWHSS-5092). He explained that it was obviously NOT a “successive” petition and pleaded with the Appeals Court to properly give the two petitions separate appellate case numbers. And even though it made no written findings regarding the matter, the Appeals Court did not properly distinguish the two petitions and gave each of them its own separate appellate Habeas case number. See (EXHIBIT: 2 and 6, attached). However the Appeals Court upheld the superior judge’s abuses and denied the petition without comment. See (EXHIBIT: 6). The California State Supreme Court also upheld the Superior Court’s denial without comment. (EXHIBIT: 7).
    

3.  So once again this court must “look through” the higher court orders, to the Superior Court’s order of denial in order to determine whether or not the State Court clearly based its order of denial of the Habeas petition on grounds of supposedly being untimely filed. Lambright V. Stewart, 241 F.3d 1021, 1205 (9^th cir.2001). And the order of the Superior Court judge may have cited a case “successive and untimely petitions” being, at the judge’s discretion, “summarily denied” absent “justification for not presenting in a single petition all claims of facts which, if proven, established a fundamental miscarriage of justice”. Id. And he may have claimed that:” No such showing has been made here.” Id. But the Superior Court still did NOT specifically invoke a time bar claim to the defendant’s petition, and he went on to review the petition on its merits. As I’ve shown, the judge’s arbitrary finding that it was a “successive petition” to begin with, was false and groundless, and the court did not specifically state that it was denying the defendant’s Habeas petition for supposedly being “untimely” filed. And that’s not surprising since the defendant filed the Habeas petition in question in LESS than three years after his illegal convictions were obtained in 1998.
    

4. See Lambright V. Stewart, supra, 241 F.3d 1201, 1205 (9^th cir.2001) (“Indeed, ‘a procedural default based on an ambiguous order that DOES NOT CLEARLY rest on an independent and adequate state ground is not sufficient to preclude Federal Habeas review.”), (internal citation omitted); see also U.S. ex rel. Armstrong V. Burris, 48 F. supp. 2d 1084, 1086 (N.D.I.H 1999) (“For a state ground to be considered independent and adequate, however, the State Court must ‘clearly and expressly’ rely on that ground, and a Federal Court will presume that no such ground exists if it is not clear from the face of the opinion.”), (internal citation omitted).

And there is no such “time bar” assertion by the State Court in the case at hand to preclude the Federal Court from reviewing the currently filed Habeas petition on its merits. Thus the court must deny the state’s motion to dismiss Habeas petition no.: 02-1155-PA (PLA) and 02-1225-PA (PLA), as there are no legal grounds for dismissal of these two said petitions. And this court must review the petitions on their merits.