Wednesday, 18 June 2014

Hale's Response to Order to Show Cause



In the United States District Court

For the District of Colorado


Civil Action No. 14--cv--01233--BNB

Matthew Hale,

Applicant,

v.

David Berkebile, Warden,

Respondent.


Hale's Response to Order to Show Cause


Applicant Matthew Hale, pro se, submits this response to Magistrate Judge Boland's May 6, 2014 Order to Show Cause, stating as follows:

Hale is "ordered to show cause why the action should not be dismissed" (Order at 1) because "he [allegedly had] an adequate and effective remedy pursuant to section 2255 in the sentencing court" (Order at 5).



I. In his Brief Filed with his Application, Hale explained why section 2241 relief is indeed available for his claim that he is being imprisoned for conduct that the law does not make criminal (Claim One) and his claim that there is no evidence of his guilt (Claim Two).



In the Brief that Hale filed with his Application (Doc. 3), he explained in great detail why his section 2255 proceedings were "inadequate or ineffective to test the legality of his detention" and hence why he is permitted to bring this action pursuant to section 2241. In ordering Hale to show cause, it is clear that Magistrate Judge Boland did not read his Brief since no reference is made to it in his Order and Hale had already addressed in it the concerns expressed in that Order. Hale therefore asks the Court to read his Brief before the issuance of any ruling that he has failed to show that his section 2255 proceedings were inadequate or ineffective because, quite simply, he has already provided strong arguments and case law therein addressing all of the multiple reasons why his section 2255 proceedings were, in fact inadequate or ineffective and why this action cannot be legally dismissed at this juncture. Indeed, that is what his Brief was written for. In sum, regarding his innocence claims specifically, his section 2255 proceedings were inadequate or ineffective for the following reasons:



1) Seventh Circuit case law precluded Hale from making his claim of innocence via section 2255 (Brief at 9-10).

2) Habeas corpus law itself provides relief under section 2241 for a verifiably innocent person (Brief at 6-8).

3) Imprisonment for conduct the law does not make criminal, which is what occurred in this case, is a fundamental defect that may be corrected via section 2241 and this is so regardless of whether the remedy under section 2255 was "inadequate or ineffective to test the legality of [the] detention" (Brief at 4-6; 8-14). Section 2255 is unconstitutional to the extent it precludes relief pursuant to section 2241 for the verifiably innocent man.

4) Even if an innocent person could have brought his claim that he is being imprisoned for conduct that the law does not make criminal on direct appeal or pursuant to section 2255, failure to do so does not bar review section 2241 (Brief at 8-14).

5) Perhaps most importantly, the continued imprisonment of a verifiably innocent man is constitutionally intolerable regardless of any statutory or procedural provision (Brief at 11-14).



Hale, in his Brief, provides argument and numerous cases supporting each of these propositions. Thus he asks that the Court read his Brief and consider the case law and arguments set forth therein along with, and as part of, this response to the Order to Show Cause. Certainly Hale was aware of the standard requirement that he show that his section 2255 proceedings were "inadequate or ineffective to test the legality of his detention" when he filed his Application and he filed his Brief to address those concerns accordingly. Much of his Brief was written, in fact, in an effort to avoid the issuance of any order to show cause in the first place.

Hale believes that the case law and arguments presented in his Brief as to why his section 2255 proceedings were inadequate or ineffective are more than sufficient to avoid the dismissal of his case at this juncture and that the review of his Brief, before any dismissal of his case, is in fact constitutionally compelled under Fifth Amendment due process. In other words, it is not too much to ask that the Court actually read his Brief before throwing out his case. Hale is well aware of this Court's practice of speedily dismissing the cases brought by prisoners but that practice need not be applied when the law and justice dictate otherwise. Hale presents serious constitutional issues that deserve careful consideration and resolution by this Court, issues that are rarely, if ever, raised by other prisoners making claims in this Court pursuant to section 2241. Thus his case should not be dismissed so hastily. There is no sound reason for not considering Hale's Brief when that Brief was filed to address the very concerns that the Court now raises in its Order to Show Cause. The jurisdiction of this Court over the subject matter of this case is fully established.

Hale also notes that counsel for the Respondent was served with a copy of his Brief on April 28, 2014 and thus there is no reason, likewise, why his Brief should not be considered in this matter (see Certificate of Service on page 29 of Brief). Indeed, in light of the strong arguments and case law that Hale presents, the Respondent should be ordered to file an answer to Hale's Brief before any dismissal is even considered-- --that is, if the Respondent opposes Hale's release from his custody at all. (In light of Hale's clear and verified innocence and the fact that this is a civil case, it is entirely possible that the Respondent does not oppose Hale's release and that the writ should likewise be granted on this basis accordingly.) The Court should not presume an opposition to Hale's release that may not in fact exist.




II. Since the judges who ruled upon Hale's section 2255 proceedings violated his constitutional rights in their resolution of those proceedings, his section 2255 proceedings were "inadequate or ineffective to test the legality of his detention" (Claims Three, Four, and Five).
 

Hale likewise explained this in great detail in his Brief, pages 15-20. In sum, an unconstitutional section 2255 proceeding is, as a matter of law, "inadequate or ineffective to test the legality of [a] detention" and thus section 2241 relief is available. Hale can thus bring Claims Six and Eight of his application-- --his ineffective assistance of counsel claim and his absence from voir dire claim respectively-- --regardless of the fact that he brought these claims pursuant to section 2255. Again, Hale can only ask that the Court read his Brief and consider the facts and arguments set forth therein along with, and as part of, this response to the Order to Show Cause. Hale is allowed to proceed via section 2241 with his claims that he received ineffective assistance of counsel at trial and was denied his right to be present at voir dire because his section 2255 proceedings were indeed "inadequate or ineffective." Furthermore, his contention that the judges who decided his section 2255 proceedings engaged in misconduct that rendered those proceedings unconstitutional and illegal, and hence inadequate or ineffective, is a question of fact that is not properly the subject of a sua sponte dismissal.




III. There is no procedure pursuant to section 2255 for Hale to present his newly-discovered claim that he was denied a fair trial by an impartial jury in violation of the Fifth and Sixth Amendments and thus relief pursuant to section 2241 is available (Claim Seven).
 

In rebutting Hale's Claim Seven, Magistrate Judge Boland stated, "the court notes that a procedure exists to present a claim premised on newly discovered evidence in the sentencing court in a second or successive motion pursuant to section 2255. See 28 U.S.C. Sec. 2255 (h)(1)." The Court errs in this regard because that provision only "applies to newly discovered evidence of innocence. It does not apply to newly discovered evidence of juror bias, prejudice, and misconduct that Hale is bringing as a claim in this case." Hale has further explained in great detail in his Brief, pages 22-28, why his section 2255 proceedings were "inadequate or ineffective to test the legality of his detention" on the basis of Juror Hoffman's presence on the jury. In sum, since Hale did not know about his bias, prejudice, and misconduct and had no reason to know about it when he filed his section 2255 motion in 2008, he must be allowed to bring his claim now pursuant to section 2241. Again, Hale asks that the Court read his Brief and consider the case law and arguments set forth therein along with, and as part of, this response to the Order to Show Cause.




IV. The holding of Prost v. Anderson is inapplicable to Hale's case.



The holding of Prost v. Anderson, 636 F.3d 578 (2011), cited by the Court in its Order at 3-5, is inapplicable to Hale's case for several reasons. First, unlike Prost, Hale is being imprisoned for conduct that the law does not make criminal and never has made criminal. Second, Prost did not address the numerous constitutional issues that Hale raises in his Brief, including the issue of judicial misconduct that rendered the section 2255 process defective and the fact that Seventh Circuit precedent actually barred his innocence claim. Nor did Hale, as was the case with Prost, ever enter a plea of guilty that might require him to stand by that plea in later proceedings. All of these facts make his case distinguishable.

In fact, some of the constitutional questions that Hale is now raising are the same constitutional questions that Prost specifically left unresolved. See Prost at 593-594. ("So it is that we leave these constitutiona;l questions for another day and another case.") Hale's case is exactly that case and thus Prost is in no way dispositive.

Lately, since Hale is clearly and verifiably innocent both as a matter of fact and of law, it cannot fairly be said that he had any supposed "involvement in a plot to murder a federal judge" (Order at 1). His Brief in point of fact demonstrates his innocence of any such involvement and there is no evidence to the contrary (see Brief at 1-6).




Conclusion

For the foregoing reasons, along with the copious reasons set forth in Hale's Brief in Support of Application for Writ of Habeas Corpus pursuant to 28 U.S.C. Sec. 2241 (Doc. 3), this action should not be dismissed at this juncture.

Respectfully Submitted,
Matt Hale



Florence, CO 81226-8500

--------------------------------

Matthew Hale

May 27, 2014

Matthew Hale

#15177-424

U.S.P.---Max.

P.O. Box 8500

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