Hello the attached is an issue being raised in a T.N. post-conviction proceeding along with several other claims. Does this have the significant legal merit and prejudice that would require reversal? Please give me your thoughts and opinion.
Contents
Legal Submission pg 2
Conclusion pg 7
How defendant was prejudiced by counsel’s error pg 8
Court transcript pg 11
IN THE CRIMINAL COURT FOR Shelby COUNTY, TENNESSEE
FOR THE 13th JUDICIAL DISTRICT
AT Division 8
Unname , )
PETITIONER )
)
VS. ) CASE NO.10-02396 ________________________
)
STATE OF TENNESSEE, ) (POST CONVICTION)
RESPONDENT. )
__________________________________________________ ______________
PETITION FOR RELIEF FROM SENTENCE OR CONVICTION
__________________________________________________ ______________
Conviction should be vacated because Petitioner did not receive due process as required by the fifth and fourteenth amendment of the United States Constitution which states in pertinent part, “the government will not deprive any person of life, liberty, or property without due process of law”.
Trial counsel failed to disclose to the court, when there was a duty to disclose, evidence in his possession concerning the central issue of the case, in a manner which constituted professional misconduct, ineffective assistance of counsel, and exasperated into fraud upon the court.
Summary
On September 26th, 2009, the defendant was arrested and taken into police custody where he remained until trial. Approximately January 2010 the defendant explained to trial counsel, UnnameCounsel, the intricate details surrounding his self-defense shooting. Those details included the location of the firearms involved in the shooting. Counsel volunteered to retrieve these items from Murfreesboro, TN. During trial, counsel instructed the defendant not to tell the courts via his testimony that he had retrieved the missing firearms.
Judge Craft granted the motion for discovery and reciprocal discovery filed by counsel and the state, respectively, pursuant to TN R. Crim Pr 16. In pertinent part that motion stated, “A party who discovers additional evidence or material before or during trial shall promptly disclose its existence to the other party.” Counsel’s “duty to disclose” attached the moment Judge Craft issued the court order.
During trial the state began to present evidence of additional unrelated firearms and ammunition recovered during a search warrant of the defendant’s home. Defense counsel made a contemptuous objection on the admissibility of these firearms. The state argued and the trial court agreed that because they didn’t have the actual weapon used in the shooting, they needed to show the defendant had other firearms, but not the weapon used in the shooting. This was to infer that the defendant possessed the missing firearms. See page 11.
Counsel failed to disclose to the trial court his possession of the firearm in question. Counsel also failed to disclose his knowledge of there being other firearms missing other than the single firearm in question. An HK USP, Sig Sauer P229, and a Mossberg 12 gauge shotgun were all unaccounted for in trial. This failure to disclose subsequently caused a domino effect, negatively impacting the defense, influencing the trial jury and trial court decisions in a manner that aided in the defendant’s conviction.
On February 2014, four years after the trial, counsel admitted to Judge Craft of his possession of the missing firearms. Counsel was later ordered by the court to turn over said firearms.
Professional Misconduct Violations
Attorney-client privilege did not exempt counsel from his duty to disclose. Courts repeatedly reject defense counsels’ defense that their ethical duties and attorney client privilege legitimize the actions of knowingly concealing evidentiary items. U.S v. Richard Ryder 263 F. Supp 360, 362
“A lawyer shall not:
Unlawfully obstruct another party’s access to evidence, or unlawfully alter, destroy, or conceal a document or other material having evidentiary value. RPC 3.4(A)
Falsify evidence, counsel or assist a witness to offer false or material having evidentiary value. RPC 3.4(B)
Knowingly in an ex parte proceeding, fail to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse RPC 3.3(A)
In a pretrial procedure, make a frivolous discovery request or fail to make a reasonable diligent effort to comply with a legally proper discovery request by an opposing party RPC 3.4(D)
Engage in conduct involving dishonestly, fraud, deceit, or misrepresentation or engage in conduct that is prejudicial to the administration of justice. RPC 8.4”
The comment to RPC 3.4 and Section 119 of Restatement of Law Governing Lawyers observes that, “Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of evidence.” “Following possession, that lawyer must notify prosecuting authorities of the lawyer’s possession of the evidence or turn the evidence over.”
However, trial counsel took permanent possession of the firearms and altered their material characteristics in a manner that constitutes tampering with evidence. T.C.A. 39-16-503 defines evidence, destruction, tampering or fabrication as, “It is unlawful for any person, knowing that an investigation or official proceeding is pending or in progress to: (1) Alter, destroy, or conceal any record document or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding.”
Ineffective Assistance of Counsel
Inherent in the right to counsel is the right to effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. A two-prong test directs a court's evaluation of a claim of ineffectiveness. The performance prong of the Strickland test requires a petitioner raising a claim of ineffectiveness to show that counsel's representation fell below an objective standard of reasonableness, or “outside the wide range of professionally competent assistance. “It is acknowledged that criminal defendants are “not entitled to perfect representation, only constitutionally adequate representation.” Denton v. State, 945 S.W.2d 793, 796 (Tenn.Crim.App.1996). In other words, “in considering claims of ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally compelled.’ “ Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). If the Petitioner shows that counsel's representation fell below a reasonable standard, then the Petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. In evaluating whether a petitioner satisfies the prejudice prong, a court must ask “whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (citing Strickland, 466 U.S. at 687).
Fraud upon the Court
As an officer of the court, trial counsel had a native duty to disclose his possession of the “murder weapon” to the trial court. Once the trial court was faced with a decision to make regarding the missing firearm, counsel’s simple failure to disclose transitioned into fraud upon the court, a constitutional fifth and fourteenth amendment due process violation. “Both withholding evidence and knowing use of perjured testimony can provide grounds for granting post judgment relief.” “For concealment to constitute fraud, there must be a suppression of material facts that one part was legally or equitably obligated to communicate.” Duncan v. Duncan, 789 S.W. 2d 577
“Cases dealing with fraud on the court often turn on whether the improper actions are those of parties alone, or if the attorneys in the case are involved. As an officer of the court, every attorney has a duty to be completely honest in conducting litigation.” “While an attorney should represent his client with singular loyalty, that loyalty obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates fraud upon the court.” “Fraud on the court is a somewhat nebulous concept usually discussed in civil cases. No court system can function without safeguards against actions that interfere with its administration of justice. This concern must be balanced against the necessity for finality of court judgments; thus, only actions that actually subvert the judicial process can be the basis for upsetting otherwise settled decrees.” “Fraud upon the court should…embrace only that species of fraud which does or attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct.”
“Fraud on the court” consist of conduct:
(1) on part of officer of the court,
(2) that is directed to judicial machinery itself,
(3) that is intentionally false, willfully blind to the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives the court.
Demjanjuk v. Petrovsky, 10 F. 3d 338
A subjective intent to comment fraud is not required in a case such as this. Reckless disregard for the truth is sufficient. The courts have recognized that “Fraud can be an intentional misrepresentation of a known, material fact or it can be the concealment or nondisclosure of a known fact when there is a duty to disclose. As a general principle, nondisclosure of a material fact may also give rise to a claim for fraudulent or negligent misrepresentation.” Justice v. Anderson Cnty, 955 S.W. 2d 613, 616.
“Under the laws of Tennessee, a presumption of regularity and fairness attaches to final judgments and decrees of the courts and the recitals of such are to be taken as true. However, where the record shows contrary or where fraud vitiates the judgment or decrees then it cannot stand. “Groves v. Witherspoon, 379 F. Supp. 32
The record of this judgment reflects the defendant deprived trial court of the missing firearms but trial counsel was the party actually responsible.
Conclusion
In this case, the R.P.C. violations constitute “outside the wide range of professionally competent assistance” and “counsel’s unprofessional errors” of the Strickland performance prong. Failure to disclose and fraud upon the court constitutes “counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair” of the Strickland prejudice prong. Failure to make a disclosure in this case is the equivalent of an affirmative misrepresentation, of what’s “constitutionally adequate” and “constitutionally compelled”.
Irrespective of a ruling on the ineffective assistance of counsel claim, the judgments of this court were wrongfully procured as a result of fraud upon the court, and such fraud renders the judgment void to the point were defendant’s continued confinement for this court’s judgment violates federal law pursuant to the United States Constitution Amendment five and fourteen.
How defendant was prejudiced by attorney UnnameCounsel not turning in or using the HK USP and Sig Sauer at trial.
1. During trial a jury out bench hearing took place to determine if the unrelated firearms and assortment of ammunition would be allowed into the trial. (Referenced on page 11)
The state argued and the trial court agreed, that because they didn’t have the actual weapon used in the shooting, they needed to show that the defendant had other firearms but not the weapons used in the shooting. This was to infer that the defendant had disposed of the firearms. Had the trial attorney turned over the HK USP, the court would have not allowed these highly prejudicial assault style unrelated firearms. Counsel also failed to inform the trial court that the HK USP 9m wasn’t the only firearm missing. The Sig Sauer, and shotgun were also missing. Allowing the state to display an assault rifle not used in the shooting would have been reversible error had the trial court had the missing firearms. The defendant having other weapons in his home would have no longer been relevant and the probative valve would not have out weighed unfair prejudice (State V. Swift 2015). I rely on Tenn R. of Evid. 401, “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.” Attorney UnnameCounsel negatively impacted the defense by making the unrelated weapons relevant when he violated RPC 3.3(A)(3), RPC 3.4 and RPC 4.1 which resulted in the trial court allowing the firearms. There is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different for this and the forgoing listed issues
2. The state recovered two projectiles; one out of the victim’s shoulder and one out of the couch from the crime scene where the defendant sat. The victim suffered two gunshot wounds in which one of the bullets fragmented. The state presented two fully intact bullets proclaiming they were both responsible for the wounds.
Without having the HK USP, we were unable to compare both recovered projectiles to definitively answer rather or not they both came from the HK. If the jury saw evidence of the projectile recovered from the couch not matching the HK, that fact would have increased the validity of the defense’s self-defense theory.
Without having the Sig Sauer, the defense was unable to compare the recovered projectile from the couch to the Sig Sauer. If the jury saw evidence of the projectile recovered from the couch matching the Sig Sauer, that fact alone would have been a game changer increasing the validity of the defense’s self-defense theory.
3. The defendant’s testimony is that the HK USP had a hair trigger which contributed to the second shot being unintentional.
Without having the HK USP, there was no way of confirming such mechanism. Proving the second shot was unintentional would have been a combative argument to 1st or 2nd degree murder as one of the factors the jury can rely on is “intent”.
4. The defendant stated the victim had him at gun point and attempted to shoot him with the Sig Sauer.
Without having the Sig Sauer the defense was unable to have the weapon tested for the victim’s fingerprints.
5. The defendant stated the Sig Sauer jammed multiple times as the victim tried to shoot him.
Without having the Sig Sauer, there was no way to test for mechanical failure of the firearm. The state stressed this point during their closing argument stating, “We’ll never know if there is anything to this smooth operator’s story and if this Sig Sauer really did jammy jam jammed because he hid the firearms.”
6. The defendant stated he traveled to Murfreesboro with the firearm used in the shooting. Disposing of the firearm, so that it cannot be used as evidence is a factor for premeditation.
Without the HK there was no proof that the defendant didn’t dispose of the firearm after leaving the victim’s home. The jury or trial court had no idea that the defendant lead his trial attorney to the firearms to aide in his defense and clear his name.
7. Sentencing. The unrelated firearms being allowed into trial evidence affected sentencing.
The trial court used the allowed firearms as aggravating factors for sentencing.
8. The jury only saw assault style weapons, and not the actual firearm used in the shooting.
Without the HK USP, the jury was led to believe the victim was shot with an assault style rifle. The firearm couldn’t be matched to the firearms witnesses in the discovery started seeing the defendant carry everyday.
9. Deputy James Hogan testified to seeing three shell casings on the scene.
Without having the HK USP or Sig Sauer as evidence, in its original state there was no way to prove or disprove which weapon these shell casings came from. These additional shell casings were not offered as evidence at trial. Even without the shell casings, the remaining shell casings in both weapon’s magazines would have determined how many rounds had been fired, and from which weapon.
10. Attorney UnnameCounsel testing the firearm prior to trial as a non-expert and relying on his own findings was a display of ineffectiveness.
Evidence of such was displayed in the February 2014 Post-Conviction hearing. Attorney UnnameCounsel proclaimed the firearm had no haired trigger. Not only does that statement discredit the defendant, but the HK USP documentation clearly explains the hair trigger functionality as “Short Fire”. The USP (Universal Self-Loading Pistols) models are haired trigger rapid fire capable by design.
11. Attorney UnnameCounsel testing the firearm prior to turning it into the courts was a break to chain of custody.
Whatever evidence that “could have” been obtained (such as victim fingerprints, original recovered state of firearms, etc) has been lost due to attorney UnnameCounsel violating chain of custody and R.P.C. procedures. The comment to Rule 3.4 observes that “Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conduction a limited examination that will not alter or destroy material characteristics of evidence.”
12. Attorney UnnameCounsel had a second opportunity to inform the court of his firearm possession/knowledge during the motion for a new trial hearing, but failed to do so.
Trial counsel did not make an offer of proof, which resulted in the trial judge not making an informed decision for the same reasons listed above in issue #1. Unlike issue #1, this couldn’t be justified by trial strategy as the trial was over.
13. Attorney UnnameCounsel instructed defendant to lie under oath in violation of R.P.C. 3.4.
The defendant asked trial counsel during trial, “If they ask me if the firearms are still there am I to tell them the truth?” Defense counsel’s answer was, “Nooo whatever you do, you don’t tell them that. You’ve been in jail, so as far as you know those weapons are under the barn where you left them.”
- This is the referenced exchange held outside the jury’s presence in regards to the unrelated firearms -
THE COURT: I understand. Well, so I think what the State is saying is it’s relevant because [Defendant] had all these other guns and their ammunition and he had 9 millimeter ammunition, so its significance is that was the only type of weapon that was missing; is that what you’re indicating?
[ASSISTANT DISTRICT ATTORNEY]: Yes, yes.
THE COURT: Indicating that he may have circumstantially may have disposed of the weapon?
[ASSISTANT DISTRICT ATTORNEY]: Yes, sir.
THE COURT: So that it couldn’t be matched.
[ASSISTANT DISTRICT ATTORNEY]: Yes, sir.
THE COURT: Well, I’m looking at State versus Reid, R-E-ID for the court reporter. 213 S.W.3d page[s] 8, 13, and 14. And that was in a case of a 404(b) hearing where they found a bunch of guns at Mr. Reid’s house and they said that as far as 404(b) is concerned, it’s not against the law to have a gun. And so for that reason it’s not a crime or wrongful act and there’s no 404(b) problem. And the Supreme Court said, “In our view, the ownership of these weapons standing alone does not constitute a crime.” The testimony that the witnesses saw the defendant in the possession of a weapon similar to those used in the crimes did not necessarily constitute evidence of a bad act. In this case, looking at 403 instead of 404(b). Looking at 403 it says that it’s a rule of inclusion in that those items are admissible unless they’re substantially outweighed by unfair prejudice. I can see the relevance of the other guns and ammunition and the 9 millimeter ammunition with the absence of a gun. So under those circumstances, I’m going to allow those. But I’ll be glad to give an instruction to the jury if you want me to, . . . that it’s not a crime to own a gun. Or you could just argue that to the jury. Whatever you need me to do.
[DEFENSE COUNSEL]: Well your Honor, in one respect there may be an undue prejudice attached to it. There’s one handgun that – like one I’ve never scene [sic] before in my life.
[ASSISTANT DISTRICT ATTORNEY]: I don’t disagree with [defense counsel].
[DEFENSE COUNSEL]: . . . I believe that firearm would be prejudicial, unduly prejudicial, and outweighing probative value.
THE COURT: And how so?
[DEFENSE COUNSEL]: Just because of the way it looks.
THE COURT: Well, it’s a large gun. It’s a Taurus Raging Bull is the name of it. I’ve seen them advertised. It’s just a large caliber weapon, but it’s not – it doesn’t have a banana clip or anything like that. Is there – I mean, as far as prejudicial –you said unduly – you know, my question is: Is it unfairly prejudicial? I just don’t – as long as there’s not going to be an allegation that he’s used these weapons in other crimes or is possessing them illegally, I just don’t see the damage. How many other guns are there?
[ASSISTANT DISTRICT ATTORNEY]: The other one is this guy [sic].
THE COURT: Okay. There are just two others?
[ASSISTANT DISTRICT ATTORNEY]: Yes, sir. And if [the court deputy] wants to check these?
THE COURT: Here. Hand that back. All right. This is a –
[Lieutenant Sparks]: AR-15 rifle.
THE COURT: What is it, sir?
[Lieutenant Sparks]: It’s a Bushmaster AR-15 .223 caliber.
THE COURT: Okay. .223 caliber. Well, and my view obviously – and here again I’m not an expert, but these guns do not fire 9 millimeter cartridges. It’s clear to me that they don’t.
[DEFENSE COUNSEL]: And that’s my point.
THE COURT: Yes, sir. Well I mean, and for that reason that’s why they’re probative is that he has ammunition for a 9 millimeter but they don’t use it. So, that would imply that he has a 9millimeter which is not present which would imply that he disposed of one circumstantially so that it could not be matched with the bullets taken from the body. So under those circumstances, I’m going to deny your motion. Whether we call it just a 404(b) motion or 403 or 401 relevance motion, I find that they’re relevant and I don’t find any unfair prejudice in showing those weapons.
Contents
Legal Submission pg 2
Conclusion pg 7
How defendant was prejudiced by counsel’s error pg 8
Court transcript pg 11
IN THE CRIMINAL COURT FOR Shelby COUNTY, TENNESSEE
FOR THE 13th JUDICIAL DISTRICT
AT Division 8
Unname , )
PETITIONER )
)
VS. ) CASE NO.10-02396 ________________________
)
STATE OF TENNESSEE, ) (POST CONVICTION)
RESPONDENT. )
__________________________________________________ ______________
PETITION FOR RELIEF FROM SENTENCE OR CONVICTION
__________________________________________________ ______________
Conviction should be vacated because Petitioner did not receive due process as required by the fifth and fourteenth amendment of the United States Constitution which states in pertinent part, “the government will not deprive any person of life, liberty, or property without due process of law”.
Trial counsel failed to disclose to the court, when there was a duty to disclose, evidence in his possession concerning the central issue of the case, in a manner which constituted professional misconduct, ineffective assistance of counsel, and exasperated into fraud upon the court.
Summary
On September 26th, 2009, the defendant was arrested and taken into police custody where he remained until trial. Approximately January 2010 the defendant explained to trial counsel, UnnameCounsel, the intricate details surrounding his self-defense shooting. Those details included the location of the firearms involved in the shooting. Counsel volunteered to retrieve these items from Murfreesboro, TN. During trial, counsel instructed the defendant not to tell the courts via his testimony that he had retrieved the missing firearms.
Judge Craft granted the motion for discovery and reciprocal discovery filed by counsel and the state, respectively, pursuant to TN R. Crim Pr 16. In pertinent part that motion stated, “A party who discovers additional evidence or material before or during trial shall promptly disclose its existence to the other party.” Counsel’s “duty to disclose” attached the moment Judge Craft issued the court order.
During trial the state began to present evidence of additional unrelated firearms and ammunition recovered during a search warrant of the defendant’s home. Defense counsel made a contemptuous objection on the admissibility of these firearms. The state argued and the trial court agreed that because they didn’t have the actual weapon used in the shooting, they needed to show the defendant had other firearms, but not the weapon used in the shooting. This was to infer that the defendant possessed the missing firearms. See page 11.
Counsel failed to disclose to the trial court his possession of the firearm in question. Counsel also failed to disclose his knowledge of there being other firearms missing other than the single firearm in question. An HK USP, Sig Sauer P229, and a Mossberg 12 gauge shotgun were all unaccounted for in trial. This failure to disclose subsequently caused a domino effect, negatively impacting the defense, influencing the trial jury and trial court decisions in a manner that aided in the defendant’s conviction.
On February 2014, four years after the trial, counsel admitted to Judge Craft of his possession of the missing firearms. Counsel was later ordered by the court to turn over said firearms.
Professional Misconduct Violations
Attorney-client privilege did not exempt counsel from his duty to disclose. Courts repeatedly reject defense counsels’ defense that their ethical duties and attorney client privilege legitimize the actions of knowingly concealing evidentiary items. U.S v. Richard Ryder 263 F. Supp 360, 362
“A lawyer shall not:
Unlawfully obstruct another party’s access to evidence, or unlawfully alter, destroy, or conceal a document or other material having evidentiary value. RPC 3.4(A)
Falsify evidence, counsel or assist a witness to offer false or material having evidentiary value. RPC 3.4(B)
Knowingly in an ex parte proceeding, fail to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse RPC 3.3(A)
In a pretrial procedure, make a frivolous discovery request or fail to make a reasonable diligent effort to comply with a legally proper discovery request by an opposing party RPC 3.4(D)
Engage in conduct involving dishonestly, fraud, deceit, or misrepresentation or engage in conduct that is prejudicial to the administration of justice. RPC 8.4”
The comment to RPC 3.4 and Section 119 of Restatement of Law Governing Lawyers observes that, “Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of evidence.” “Following possession, that lawyer must notify prosecuting authorities of the lawyer’s possession of the evidence or turn the evidence over.”
However, trial counsel took permanent possession of the firearms and altered their material characteristics in a manner that constitutes tampering with evidence. T.C.A. 39-16-503 defines evidence, destruction, tampering or fabrication as, “It is unlawful for any person, knowing that an investigation or official proceeding is pending or in progress to: (1) Alter, destroy, or conceal any record document or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding.”
Ineffective Assistance of Counsel
Inherent in the right to counsel is the right to effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. A two-prong test directs a court's evaluation of a claim of ineffectiveness. The performance prong of the Strickland test requires a petitioner raising a claim of ineffectiveness to show that counsel's representation fell below an objective standard of reasonableness, or “outside the wide range of professionally competent assistance. “It is acknowledged that criminal defendants are “not entitled to perfect representation, only constitutionally adequate representation.” Denton v. State, 945 S.W.2d 793, 796 (Tenn.Crim.App.1996). In other words, “in considering claims of ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally compelled.’ “ Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). If the Petitioner shows that counsel's representation fell below a reasonable standard, then the Petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. In evaluating whether a petitioner satisfies the prejudice prong, a court must ask “whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (citing Strickland, 466 U.S. at 687).
Fraud upon the Court
As an officer of the court, trial counsel had a native duty to disclose his possession of the “murder weapon” to the trial court. Once the trial court was faced with a decision to make regarding the missing firearm, counsel’s simple failure to disclose transitioned into fraud upon the court, a constitutional fifth and fourteenth amendment due process violation. “Both withholding evidence and knowing use of perjured testimony can provide grounds for granting post judgment relief.” “For concealment to constitute fraud, there must be a suppression of material facts that one part was legally or equitably obligated to communicate.” Duncan v. Duncan, 789 S.W. 2d 577
“Cases dealing with fraud on the court often turn on whether the improper actions are those of parties alone, or if the attorneys in the case are involved. As an officer of the court, every attorney has a duty to be completely honest in conducting litigation.” “While an attorney should represent his client with singular loyalty, that loyalty obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates fraud upon the court.” “Fraud on the court is a somewhat nebulous concept usually discussed in civil cases. No court system can function without safeguards against actions that interfere with its administration of justice. This concern must be balanced against the necessity for finality of court judgments; thus, only actions that actually subvert the judicial process can be the basis for upsetting otherwise settled decrees.” “Fraud upon the court should…embrace only that species of fraud which does or attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct.”
“Fraud on the court” consist of conduct:
(1) on part of officer of the court,
(2) that is directed to judicial machinery itself,
(3) that is intentionally false, willfully blind to the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives the court.
Demjanjuk v. Petrovsky, 10 F. 3d 338
A subjective intent to comment fraud is not required in a case such as this. Reckless disregard for the truth is sufficient. The courts have recognized that “Fraud can be an intentional misrepresentation of a known, material fact or it can be the concealment or nondisclosure of a known fact when there is a duty to disclose. As a general principle, nondisclosure of a material fact may also give rise to a claim for fraudulent or negligent misrepresentation.” Justice v. Anderson Cnty, 955 S.W. 2d 613, 616.
“Under the laws of Tennessee, a presumption of regularity and fairness attaches to final judgments and decrees of the courts and the recitals of such are to be taken as true. However, where the record shows contrary or where fraud vitiates the judgment or decrees then it cannot stand. “Groves v. Witherspoon, 379 F. Supp. 32
The record of this judgment reflects the defendant deprived trial court of the missing firearms but trial counsel was the party actually responsible.
Conclusion
In this case, the R.P.C. violations constitute “outside the wide range of professionally competent assistance” and “counsel’s unprofessional errors” of the Strickland performance prong. Failure to disclose and fraud upon the court constitutes “counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair” of the Strickland prejudice prong. Failure to make a disclosure in this case is the equivalent of an affirmative misrepresentation, of what’s “constitutionally adequate” and “constitutionally compelled”.
Irrespective of a ruling on the ineffective assistance of counsel claim, the judgments of this court were wrongfully procured as a result of fraud upon the court, and such fraud renders the judgment void to the point were defendant’s continued confinement for this court’s judgment violates federal law pursuant to the United States Constitution Amendment five and fourteen.
How defendant was prejudiced by attorney UnnameCounsel not turning in or using the HK USP and Sig Sauer at trial.
1. During trial a jury out bench hearing took place to determine if the unrelated firearms and assortment of ammunition would be allowed into the trial. (Referenced on page 11)
The state argued and the trial court agreed, that because they didn’t have the actual weapon used in the shooting, they needed to show that the defendant had other firearms but not the weapons used in the shooting. This was to infer that the defendant had disposed of the firearms. Had the trial attorney turned over the HK USP, the court would have not allowed these highly prejudicial assault style unrelated firearms. Counsel also failed to inform the trial court that the HK USP 9m wasn’t the only firearm missing. The Sig Sauer, and shotgun were also missing. Allowing the state to display an assault rifle not used in the shooting would have been reversible error had the trial court had the missing firearms. The defendant having other weapons in his home would have no longer been relevant and the probative valve would not have out weighed unfair prejudice (State V. Swift 2015). I rely on Tenn R. of Evid. 401, “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.” Attorney UnnameCounsel negatively impacted the defense by making the unrelated weapons relevant when he violated RPC 3.3(A)(3), RPC 3.4 and RPC 4.1 which resulted in the trial court allowing the firearms. There is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different for this and the forgoing listed issues
2. The state recovered two projectiles; one out of the victim’s shoulder and one out of the couch from the crime scene where the defendant sat. The victim suffered two gunshot wounds in which one of the bullets fragmented. The state presented two fully intact bullets proclaiming they were both responsible for the wounds.
Without having the HK USP, we were unable to compare both recovered projectiles to definitively answer rather or not they both came from the HK. If the jury saw evidence of the projectile recovered from the couch not matching the HK, that fact would have increased the validity of the defense’s self-defense theory.
Without having the Sig Sauer, the defense was unable to compare the recovered projectile from the couch to the Sig Sauer. If the jury saw evidence of the projectile recovered from the couch matching the Sig Sauer, that fact alone would have been a game changer increasing the validity of the defense’s self-defense theory.
3. The defendant’s testimony is that the HK USP had a hair trigger which contributed to the second shot being unintentional.
Without having the HK USP, there was no way of confirming such mechanism. Proving the second shot was unintentional would have been a combative argument to 1st or 2nd degree murder as one of the factors the jury can rely on is “intent”.
4. The defendant stated the victim had him at gun point and attempted to shoot him with the Sig Sauer.
Without having the Sig Sauer the defense was unable to have the weapon tested for the victim’s fingerprints.
5. The defendant stated the Sig Sauer jammed multiple times as the victim tried to shoot him.
Without having the Sig Sauer, there was no way to test for mechanical failure of the firearm. The state stressed this point during their closing argument stating, “We’ll never know if there is anything to this smooth operator’s story and if this Sig Sauer really did jammy jam jammed because he hid the firearms.”
6. The defendant stated he traveled to Murfreesboro with the firearm used in the shooting. Disposing of the firearm, so that it cannot be used as evidence is a factor for premeditation.
Without the HK there was no proof that the defendant didn’t dispose of the firearm after leaving the victim’s home. The jury or trial court had no idea that the defendant lead his trial attorney to the firearms to aide in his defense and clear his name.
7. Sentencing. The unrelated firearms being allowed into trial evidence affected sentencing.
The trial court used the allowed firearms as aggravating factors for sentencing.
8. The jury only saw assault style weapons, and not the actual firearm used in the shooting.
Without the HK USP, the jury was led to believe the victim was shot with an assault style rifle. The firearm couldn’t be matched to the firearms witnesses in the discovery started seeing the defendant carry everyday.
9. Deputy James Hogan testified to seeing three shell casings on the scene.
Without having the HK USP or Sig Sauer as evidence, in its original state there was no way to prove or disprove which weapon these shell casings came from. These additional shell casings were not offered as evidence at trial. Even without the shell casings, the remaining shell casings in both weapon’s magazines would have determined how many rounds had been fired, and from which weapon.
10. Attorney UnnameCounsel testing the firearm prior to trial as a non-expert and relying on his own findings was a display of ineffectiveness.
Evidence of such was displayed in the February 2014 Post-Conviction hearing. Attorney UnnameCounsel proclaimed the firearm had no haired trigger. Not only does that statement discredit the defendant, but the HK USP documentation clearly explains the hair trigger functionality as “Short Fire”. The USP (Universal Self-Loading Pistols) models are haired trigger rapid fire capable by design.
11. Attorney UnnameCounsel testing the firearm prior to turning it into the courts was a break to chain of custody.
Whatever evidence that “could have” been obtained (such as victim fingerprints, original recovered state of firearms, etc) has been lost due to attorney UnnameCounsel violating chain of custody and R.P.C. procedures. The comment to Rule 3.4 observes that “Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conduction a limited examination that will not alter or destroy material characteristics of evidence.”
12. Attorney UnnameCounsel had a second opportunity to inform the court of his firearm possession/knowledge during the motion for a new trial hearing, but failed to do so.
Trial counsel did not make an offer of proof, which resulted in the trial judge not making an informed decision for the same reasons listed above in issue #1. Unlike issue #1, this couldn’t be justified by trial strategy as the trial was over.
13. Attorney UnnameCounsel instructed defendant to lie under oath in violation of R.P.C. 3.4.
The defendant asked trial counsel during trial, “If they ask me if the firearms are still there am I to tell them the truth?” Defense counsel’s answer was, “Nooo whatever you do, you don’t tell them that. You’ve been in jail, so as far as you know those weapons are under the barn where you left them.”
- This is the referenced exchange held outside the jury’s presence in regards to the unrelated firearms -
THE COURT: I understand. Well, so I think what the State is saying is it’s relevant because [Defendant] had all these other guns and their ammunition and he had 9 millimeter ammunition, so its significance is that was the only type of weapon that was missing; is that what you’re indicating?
[ASSISTANT DISTRICT ATTORNEY]: Yes, yes.
THE COURT: Indicating that he may have circumstantially may have disposed of the weapon?
[ASSISTANT DISTRICT ATTORNEY]: Yes, sir.
THE COURT: So that it couldn’t be matched.
[ASSISTANT DISTRICT ATTORNEY]: Yes, sir.
THE COURT: Well, I’m looking at State versus Reid, R-E-ID for the court reporter. 213 S.W.3d page[s] 8, 13, and 14. And that was in a case of a 404(b) hearing where they found a bunch of guns at Mr. Reid’s house and they said that as far as 404(b) is concerned, it’s not against the law to have a gun. And so for that reason it’s not a crime or wrongful act and there’s no 404(b) problem. And the Supreme Court said, “In our view, the ownership of these weapons standing alone does not constitute a crime.” The testimony that the witnesses saw the defendant in the possession of a weapon similar to those used in the crimes did not necessarily constitute evidence of a bad act. In this case, looking at 403 instead of 404(b). Looking at 403 it says that it’s a rule of inclusion in that those items are admissible unless they’re substantially outweighed by unfair prejudice. I can see the relevance of the other guns and ammunition and the 9 millimeter ammunition with the absence of a gun. So under those circumstances, I’m going to allow those. But I’ll be glad to give an instruction to the jury if you want me to, . . . that it’s not a crime to own a gun. Or you could just argue that to the jury. Whatever you need me to do.
[DEFENSE COUNSEL]: Well your Honor, in one respect there may be an undue prejudice attached to it. There’s one handgun that – like one I’ve never scene [sic] before in my life.
[ASSISTANT DISTRICT ATTORNEY]: I don’t disagree with [defense counsel].
[DEFENSE COUNSEL]: . . . I believe that firearm would be prejudicial, unduly prejudicial, and outweighing probative value.
THE COURT: And how so?
[DEFENSE COUNSEL]: Just because of the way it looks.
THE COURT: Well, it’s a large gun. It’s a Taurus Raging Bull is the name of it. I’ve seen them advertised. It’s just a large caliber weapon, but it’s not – it doesn’t have a banana clip or anything like that. Is there – I mean, as far as prejudicial –you said unduly – you know, my question is: Is it unfairly prejudicial? I just don’t – as long as there’s not going to be an allegation that he’s used these weapons in other crimes or is possessing them illegally, I just don’t see the damage. How many other guns are there?
[ASSISTANT DISTRICT ATTORNEY]: The other one is this guy [sic].
THE COURT: Okay. There are just two others?
[ASSISTANT DISTRICT ATTORNEY]: Yes, sir. And if [the court deputy] wants to check these?
THE COURT: Here. Hand that back. All right. This is a –
[Lieutenant Sparks]: AR-15 rifle.
THE COURT: What is it, sir?
[Lieutenant Sparks]: It’s a Bushmaster AR-15 .223 caliber.
THE COURT: Okay. .223 caliber. Well, and my view obviously – and here again I’m not an expert, but these guns do not fire 9 millimeter cartridges. It’s clear to me that they don’t.
[DEFENSE COUNSEL]: And that’s my point.
THE COURT: Yes, sir. Well I mean, and for that reason that’s why they’re probative is that he has ammunition for a 9 millimeter but they don’t use it. So, that would imply that he has a 9millimeter which is not present which would imply that he disposed of one circumstantially so that it could not be matched with the bullets taken from the body. So under those circumstances, I’m going to deny your motion. Whether we call it just a 404(b) motion or 403 or 401 relevance motion, I find that they’re relevant and I don’t find any unfair prejudice in showing those weapons.
Ineffective Assistance of Counsel: Fraud on the Court
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