IN THE SUPREME COURT OF THE UNITED STATES _______________________________________________ In Re: SEPHORA K.

DAVIS, Petitioner For A Writ of Habeas Corpus Under 28 U.S.C. 2241 and 2254 ________________________________________________ MOTION FOR RELIEF FROM THE COURTS PREVIOUS ORDERS PURSUANT TO RULE 17.2 AND F.R.Civ.P. 60(b)(6) Undersigned counsel moves, pursuant to Rule 17.2 of the Court and Federal Rule of Civil Procedure 60(b)(6), and in light of this Courts intervening decisions in Harrington v. Richter, 131 S.Ct. 770, 562 US _____ (2011) and Brown v. Plata, 131 S.Ct. 1910, 563 US _____ (2011) and upon the grounds more fully stated below, for relief from this Courts Orders dated June 1, 2010 and July 26, 2010 summarily denying the Petition and the Petition for Rehearing, respectively; and for reinstating the Petition, restoring it to the Courts calendar, and granting the Petition1 forthwith, or scheduling the matter for further proceedings as the Court deems advisable or necessary. I (A) For two terms this Court has been experiencing significant difficulty with a number of the federal circuit courts in the area of federal habeas corpus relief for prisoners held pursuant to the judgments of state courts.2 In January of this year, this Court decided Harrington v. Richter,
1

Docket No. 09-10613

The Petition is an original habeas corpus petition brought in this Court under 28 U.S.C. 2254 and 2241, in the tradition of Mooney v. Holohan, 294 US 103 (1935) and presents the question of whether a state court defendants right to due process is violated by the governments knowing use of perjury and fabricated evidence to prosecute her at all, as opposed to use of such evidence at trial to convict her.
2

A brief and partial review: Renico v. Lett, 130 S.Ct. 1855, 559 US ___ (2010)(6th Cir.)(whether state courts had failed to apply clearly established Supreme Court precedent; 6th circuit said yes and this Court reversed); Berghuis v. Smith, 130 S.Ct. 1382, 559 US ____ (2010)(6th Cir.)(same issue as Renico; this Court reversed); Smith v. Spisak, 130 S.Ct. 676, 558 US ____ (2010)(6th Cir.)(whether federal habeas court had accorded appropriate deference to state court ruling under the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in granting relief; this Court said no and reversed); Berghuis v. Thompkins, 131 S.Ct. 33, 560 US _____ (2010)(6th Cir.)(another appropriate deference case; this Court reversed); Bobby

131 S.Ct. 770, 562 US ____, (2011) to address the 9th Circuits interpretation of apparently troublesome AEDPA limitations on the availability of federal habeas relief with respect to claims previously adjudicated on the merits in state-court proceedings under 28 U.S.C. 2254(d). The Court then turned to another habeas corpus ruling from the very same court a short time later in Felkner v. Jackson , 131 S.Ct. 1305, 562 US ____ (2011) and summarily - not to say pointedly reversed the 9th Circuit in March. In the meantime, the 9th Circuit reconsidered the case of Doody v. Ryan, (yet another appropriate deference case under the AEDPA) after reversal and remand from this Court last October [131 S.Ct. 456, 562 US ____ (2010)] and decided that the reversal did not change the result, reaffirming its previous ruling and possibly setting the stage for further proceedings in this Court. The 9th circuits dissent in this most recent permutation of Doody accused the majority of ignoring this Courts admonitions and the AEDPA. Doody v. Ryan, 649 F.3d 986 (9th Cir., 2011) Into this ongoing fray undersigned counsel resubmits for the Courts consideration the Petition in this matter which was denied in 2010; and suggests with this motion that the Courts disposition of these threshold AEDPA procedural issues, and its guidance of the federal courts of appeals, can be favorably enhanced by giving the Petition plenary consideration and ultimately granting it, for two fundamental reasons. First, the Court has perhaps given too many opinions about the multitudinous circumstances that do not constitute an appropriate occasion for federal habeas relief for prisoners held pursuant to state court judgments, while giving few or no opinions about the rare occasions that do.3 The continuing stream of reversals appears to be doing little to
v. Mitts, 131 S.Ct. 1762, 563 US ____ (2011)(6th Cir.)(whether state court rulings were contrary to clearly established federal law; this Court said no and summarily reversed); Swarthout v. Cooke, 131 S.Ct. 1855, 562 US _____ (2011)(9th Cir.)(this Court reversed, pointedly saying that the California parole system procedures are no part of the Ninth Circuits business.); Walker v. Martin, 131 S.Ct. 1120, 562 US ____ (2011)(9th Cir.)(this Court reversed, citing an adequate and independent state ground)
3

Perhaps it cannot be left unsaid that even if it applied here where there has never been an adjudication on the merits - 28 U.S.C. 2254(d)s requirement that federal habeas relief is unavailable with respect state court adjudications on the merits unless they are contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States cannot be applied to petitions originally brought in this Court, since this Court will not generally consider or decide cases presenting questions of federal law unless those questions are unsettled. This would effectively

inform the lower courts habeas adjudications: by an unofficial count this Court has eight (8) habeas corpus cases on its calendar for plenary consideration thus far this term, constituting a significant percentage of the Courts workload. The time has perhaps come for this Court to elucidate its views of the role of federal habeas corpus for state prisoners through granting relief rather than denying it, making an illuminating contrast with such cases as Richter. Second, the procedural posture of the Petition has particular advantages for the Court at this time. Ordinarily, to consider in depth the many procedural questions that pertain to federal habeas corpus relief, the Court would have to grant certiorari for as many cases; however this Petition, being an original application in this Court, can be viewed as incidentally but properly presenting many procedural questions regarding federal habeas corpus relief in one case, not many. Procedurally speaking, the within Petition could be virtually a blank slate upon which the Court can etch the post-AEDPA law of federal habeas corpus. (B) The Petition makes an unarguable case for federal habeas relief on facts that have never been placed in issue or considered on the merits4, assuming the Court agrees in the affirmative on the primary question of federal constitutional law presented: whether due process forbids government officials to knowingly prosecute people with perjury and fabricated evidence. Admittedly, this Court has never so held, though others have. United States v. Basurto, 497 F.2d 781 (9th Cir., 1974); People v. Pelchat, 62 NY2d 97 (1984) Yet it is inconceivable to explicitly
deprive this Court of the ability to decide original habeas corpus petitions; but the Court long ago upheld the AEDPA in part because the law was deemed not to have that effect. Felker v. Turpin, 518 US 651 (1996)
4

To briefly recapitulate, the Petitioner at the time 18 years old with no criminal record and still in high school - was raped at knife point by a police informant who said he would kill her if she ever told anyone. She was then drugged and driven around in her own car, passed out, while the informant and two other men performed an armed robbery. Weeks later the informant and other law enforcement officials conspired to fabricate evidence and commit perjury to implicate the Petitioner as a willing participant the driver for the crime. She was then arrested at gun point, charged and indicted through the knowing use of this perjury and fabrication. The record shows that the evidence of all of this was uncovered, presented to the New York courts and incredibly unopposed by any evidence to the contrary prior to any judgment of conviction; yet the Petitioner, facing life in prison if convicted at trial with the same perjury that had been used to indict her, was nevertheless denied pre-judgment relief and terrorized into an Alford plea. She was then sentenced and imprisoned.

hold otherwise: all that courts can do and have done when confronted with the issue is to acknowledge the obvious or - frankly - evade it. The question, then, is not what the outcome will be on the due process issue presented, but whether this Court will take up the issue at all. It should. The issue presented here has been deplorably unsettled for decades, yet bears a striking similarity to the issue presented in the seminal case of Mooney v. Holohan, 294 US 103 (1935) which was also, uncannily, an original habeas corpus petition to this Court and one of the few times in the last century that the Court has treated such a petition to anything but a summary denial. The ongoing significance of the issue was recently demonstrated when the Court considered, but was unable to decide, Pottawattamie County v. McGhee, Supreme Court Docket No. 08-1065. In short, the within Petition presents the Court with a rare and timely opportunity to correct and clarify a profound but widespread misapprehension of the law of due process, just as Mooney did. II. The Court may also wish to reconsider its previous orders in this matter, and in light of Richter, for another reason. As the Court in Richter was careful to note: Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U. S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment). 131 S.Ct. at 786 The Court should not be surprised that an extreme malfunction of the nature described in the Petition, and alluded to in Richter, has arisen in the State of New York. cf., New York State Board of Elections v. Lopez Torres, 552 US 196 (2008)(Stevens, J. and Kennedy, J. concurring) And unlike recent events involving California [Brown v. Plata, 131 S.Ct. 1910, 563 US ______ (2011)], it will be unnecessary to release tens of thousands of prisoners to correct it: only one very deserving litigants freedom and reputation are explicitly at issue here.

The disturbing facts presented by the Petition, when coupled with the now well known but very lamentable position of so many of the nations prosecutors, including the United States itself [Pottawattamie County v. McGhee (US Supreme Court Docket 08-1065, Petitioners briefs and amici)](asserting there is no free-standing due process right not to be framed), suggest that leaving unresolved the question of constitutional law presented here has precipitated, at least in part, not only the extreme malfunctions noted in Richter, but also the high rates of incarceration that led to Brown v. Plata in the first place.5 CONCLUSION It is in the Courts and the nations best interests to grant this motion and the Petition, since this will assist the Court in efficiently and clearly defining the law in an intelligible way. The Petitioner a violent felon by state law, though that is of course ridiculous in fact remains and by New York law [See, New York Penal Law, section 70.45(2)(f); Executive Law, section 259-j(1)(a)] must remain on post release supervision (parole) until approximately March of 2012, so the Petition remains viable and not moot. WHEREFORE, Petitioner respectfully submits that this motion should be granted. Dated: October 3, 2011 ______________________________

JOHN M. REGAN, JR. Counsel of Record jregan.atty@yahoo.ca

NORMAN A. PATTIS, of counsel 649 Amity Road Bethany, CT 06524 Tel: 203.393.3017

The view that the primary check against prosecutorial abuse is a political one [Morris v. Olson, 487 US 654, 728 (1988)(Scalia, J., dissenting)(emphasis added)] in other words, political constraints rather than judicial vigilance will suffice - may have reached its logical conclusion with the court ordered release of tens of thousands of criminals from Californias prisons. In context, if judges decline to take responsibility for the basic integrity of the criminal prosecution process, overlooking even perjury and fabricated evidence by police or prosecutors that come to light pre-trial, what wonder they will eventually find themselves confronting constitutional problems of prison over-crowding.