Colorado State Supreme Court 2 West 14th Street – 4th Floor Denver, Colorado  80203	▲Court Use Only▲
STEVE D. GARTIN ,  Plaintiff                                                v.   JOHN P. STONE, SHERIFF DAVID J. THOMAS, FIRST JUDICIAL DISTRICT ATTORNEY KENNETH A. SALAZAR,  STATE ATTORNEY GENERAL                                                                    Defendants
	Case Number: _________   Division ______________         CourtRoom:___________
Plaintiff in Propria Persona:      Steve D. Gartin      P.O. Box 16700      Golden, Colorado  80402 Email: sheriffsteve@justice.com
Pursuant to Habeas Corpus Act Application for a Writ of Habeas Corpus, Order to Show Cause (Ex-Parte)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1.    I am Steve Douglas, Gartin.  I am applying for an ex-parte Writ of Habeas Corpus and Order to Show Cause as presented in the attached proposal.  I have personal knowledge of the following facts and am competent to testify as to the truth of these facts if called as a witness.

A.        I am a Child of the Everliving God, הּוֹהּיּ, a sovereign California Inhabitant and a Citizen upon the Soil of My Homeland, within the Continental united States of America and expressly "without" the UNITED STATES, the U.S., the DISTRICT OF COLUMBIA, and any and all military, martial, Executive, Admiralty or Administrative jurisdictions invoked by the EMERGENCY POWERS ACT of 1917 and 1933 and continued to present contrary to the knowledge and Will of the People of the Continental united States of America.

            B.        I am at Peace with all de jure and de facto governments operating within the Geographic Boundaries of the                         territory of Colorado and the Continental united States. 

C.        I am NOT an Alien Enemy as defined by the EMERGENCY POWERS ACT of 1917 or 1933 or any other Manifesto or Executive Order of any President of the corporate government of the District of Columbia.

D.        My Positive Law is published & codified in the 10 Commandments of הּוֹהּיּ (YHVH) and amplified by the amendments of the New Covenant of YahShewa (Jesus).

 

2.    Petitioner is currently unlawfully incarcerated[1] in the Jefferson County Detention Facility on EXCESSIVE BOND, to-wit: $50,000.00 purportedly to insure his appearance at trial in case #00CR3371.  No compelling evidence exists that would lead a reasonable person to believe that such drastic and excessive measures are necessary to compel court attendance. 

 

3.    Case #00CR3371 is fatally flawed for defects and misconduct in the Grand Jury impaneling, prosecutorial misconduct, police misconduct, abrogation of the right to speedy process, abrogation of the right to speedy trial, Rule 16 Discovery violations, perjury of witnesses and police agents, perjury of Prosecutor in open court and other defects considered fatal to a Prosecution.

 

4.    It is incumbent upon a defendant to exhaust his legal remedies[2] before asking the indulgence of the court in the issuance of a writ of habeas corpus.  Stilley v. Tinsley, 153 Colo.66, 385 p.2d 677 (1963);  Garrett v. Knight, 173 Colo. 419, 480 P.2d 569 (1971).

 

5.    Petitioner applied for a Writ of Habeas Corpus to the Honorable First Judicial District Court on or about 2 October, 2001 and notice was tendered to the Colorado Supreme Court and the 10^th Federal District Court[3] as evidence of the exhaustion of speedy legal remedies on or about the same date. 

 

6.    Trial courts[4] have jurisdiction[5] to determine Federal Constitutional questions, and it is their duty to do so by virtue of paragraph 2 of article VI of the United States Constitution, which provides that the constitution of the United States and all laws made in pursuance thereof shall be the supreme law of the land and the judges of every state shall be bound thereby and by Article XII § 8 of the Colorado Constitution requiring officers to take an oath to support the constitution of the united States and of the state of Colorado, notwithstanding the provisions of the 1913 amendment to this section  which provided that the supreme court[6] should have exclusive jurisdiction to determine such matters.  People v. Western Union Tel. Co. 70 Colo. 90, 198 P.146 (1921).

 

7.    Friday, November 02, 2001 the Honorable Judge Leland P. Anderson DENIED Habeas Corpus[7], 30 days[8] after filing[9], based on the ostensible “warrant of commitment” not being attached to the Application for Habeas Corpus, although such a warrant was contained within the court’s file[10] in case #00CR3371 which is the case relative to the excessive bond[11] for which this Petitioner is currently unlawfully incarcerated[12].  See Attached UnSigned Defective Warrant – which has been presented to Petitioner as the purported “Warrant of Commitment.”. [EXHIBIT # One[1]]

 

8.    This court of record has jurisdiction[13] because this action arises under the following Constitutional sections and laws of the United States:  United States Constitution, Article III, Section 2; Title 42, United States Code, Sections 1983, 1985, & 1986, Title 28 United States Code §§ 1331, 1333, & 1343; and Title 18, United States Code §§ 241 & 242 and Article II §§ 19, 20 & 25 of the Colorado Constitution.  The Constitutional sections and laws of the United States appear more fully below. 

 

This new section is declaratory of existing law as affirmed by the Supreme Court.

(See Ex parte Hawk, 1944, 64 S. Ct. 448, 321,  U.S. 114, 88L. Ed. 572.)

 SENATE REVISION AMENDMENTS

      Senate amendment to this section, Senate Report No. 1559, amendment No. 47, has three declared purposes, set forth as follows:

      ''The first is to eliminate from the prohibition of the section applications in behalf of prisoners in custody under authority of a State officer but whose custody has not been directed by the judgment of a State court.  If the section were applied to applications by persons detained solely under authority of a State officer it would unduly hamper Federal courts in the protection of Federal officers prosecuted for acts committed in the course of official duty.

      ''The second purpose is to eliminate, as a ground of Federal jurisdiction to review by habeas corpus judgments of State courts, the proposition that the State court has denied a prisoner a 'fair adjudication of the legality of his detention under the Constitution and laws of the United States.' The Judicial Conference believes that this would be an undesirable ground for Federal jurisdiction in addition to exhaustion of State remedies or lack of adequate remedy in the State courts because it would permit proceedings in the Federal court on this ground before the petitioner had exhausted his State remedies.  This ground would, of course, always be open to a petitioner to assert in the Federal court after he had exhausted his State remedies or if he had no adequate State remedy.

I D E N T I F I C A T I O N   O F   P A R T I E S    

I, Steve Douglas, Gartin am a free sovereign Inhabitant of the California Republic, a Citizen on the Soil in the Continental united States, specifically “without the UNITED STATES and all political subdivisions.”   At all times mentioned herein I have been domiciled in the Continental united States of America.  I am not a “subject,” and as such I am entitled to all rights, privileges, immunities and protections at common law as guaranteed in the Constitutions of the California Republic, the state of Colorado and the united States of America and also in the Corporate Compact Constitution for the DISTRICT OF COLUMBIA.  I am Attorney-in-Fact for the Strawman[14] Defendant (ALL CAPITAL LETTER construction of Plaintiff’s Christian Appellation –  a “nom de guerre”) captioned above.

 

9.    Defendants in this application are citizens in the United States, solely responsible for their actions and do business in the County of Jefferson, State of Colorado. Respondents, for purposes of identification only, are identified as follows:

            a.  John P. Stone, Jefferson County Sheriff

                                    b.  Kenneth Salazar, Esquire - Colorado State Attorney General

                                    c.  David J. Thomas, Esquire - Jefferson County District Attorney

 

10.           The true names and capacities of respondents sued herein as DOE's 1 through 3 are unknown to petitioner at this time and therefor petitioner sues those respondents by such fictitious names.  Petitioner will amend this application to allege their true names and capacities upon discovery. 

            Petitioner is informed, believes and thereupon alleges, that each of the respondents are responsible for the repeated and continuing unlawful arrests and restraints of Petitioner.

A L L E G A T I O N S

Petitioner alleges that Kenneth Salazar, Colorado State Attorney General; Marleen M. Langfield, Deputy Colorado State Attorney General; Gary Clyman, Colorado State Attorney General Investigator; David J. Thomas, Jefferson County District Attorney; Dennis Hall, Deputy District Attorney; Henry E. Nieto, judge; Charles T. Hoppin, Jefferson County judge; Tina Louise Olsen, Jefferson County judge; Roy Olson, Jefferson County judge; have conspired and are conspiring with Ronald L. Beckham, ex-sheriff,  John P. Stone, Sheriff, Donald L. Estep, Sheriffs Intelligence, and other Executive Branch, WarPower Agencies and Actors, under color of law to restrain my liberty which is guaranteed by the United States Constitution, the Colorado Constitution and the Constitution for the California Republic; without cause and without Due Process of Law.

 

11.           The above enumerated Governmental Actors caused the restraint of Petitioner’s liberty without any valid or lawful reason.  They have never produced an injured party in any of the several malicious, vindictive and retaliatory prosecutions to which Petitioner has been unlawfully subjected.  Petitioner is apprehensive that they will cause Petitioner to be unlawfully arrested again.  The above enumerated WarPower Agencies and Actors have unlawfully arrested this Plaintiff on at least Eight separate occasions.  There is substantial reason to believe that such unlawful acts against this Plaintiff will continue unabated without intervention by the Honorable Court.  The Petitioner is currently being unlawfully incarcerated by the Jefferson County Detention Facility Staff and Sheriff John P. Stone and held on excessive bond and frivolous charges.

 

12.           The Colorado State Attorney General has exceeded the authority granted to his office by virtue of  C.R.S. 24-31-101: which defines the Powers and duties of attorney general:

(1) (a)  The attorney general of the state shall be the legal counsel and advisor of each department, division, board, bureau and agency of the state government other than the legislative branch.  He shall attend in person at the seat of government during the session of the general assembly and term of the supreme court and shall appear for the state and prosecute and defend all actions and proceeding, civil and criminal, in which the state is a party or is interested when required to do so by the governor, and he shall prosecute and defend for the state all causes in the appellate courts in which the state is a party or interested.  In this matter, the STATE is NOT a Party and is NOT interested and has made NO offer of proof to the contrary despite numerous and continuing challenges from the Accused.

 

The General Assembly[15] has provided no authorization to the COLORADO STATE ATTORNEY GENERAL to prosecute case #00CR3371.  No such authorization is on file within the case record.

 

The Governor[16] has provided no authorization to the COLORADO STATE ATTORNEY GENERAL to prosecute case #00CR3371.  No such authorization is on file within the case record.

 

£             Powers of attorney general are not enlarged by grand jury act.  The statutory powers granted to the attorney general under this section are not enlarged by the statewide grand jury act, §13-73-101 et seq.  People ex rel. Tooley v. District Court 190 Colo. 486, 549 P.2d 774 (1976).

 

The STATE[17] is not a party to this matter, holds no title to any of the private property at issue, and is not “interested” in the adjudication of any aspect of this entirely civil matter involving only private People.  Therefore, attorney general cannot prosecute all grand jury indictments. 

 

Marleen M. Langfield, Esquire is a Senior Deputy State Attorney General, according to her official title, and a member of the “Special Prosecutions Unit.”  Marleen M. Langfield, Esquire is captioned as the “attorney of record” in this matter.  Ms. Langfield is not authorized by the Governor nor Legislature to prosecute this matter.  Ms. Langfield has no authorization from David J. Thomas, Esquire – Jefferson County District Attorney to prosecute this matter.  No such authorization is on file within the case record.

 

£            Attorney general prosecuting case is exercising district attorney’s powers.  When the governor requires the attorney general to prosecute a criminal case in which the state is a party, he becomes to all intents and purposes the district attorney, and may in his own name and official capacity exercise all the powers of that officer.  People v. Gibson, 54 Colo. 231, 125 P.531 (1912); People ex rel. Witcher v. District Court, 190 Colo.483, 549 P.2d 778 (1976).

 

The governor has not required the Colorado State Attorney General to prosecute this matter.  The Colorado State Attorney General is ipso facto prosecuting this case, to-wit: by Marleen M. Langfield, Esquire without authorization from either the Governor or the Jefferson County District Attorney.

 

13.         The case upon which Petitioner is being held on excessive bond is void ab initio for fatal flaws in the investigation and institution of the case, to-wit:

(A).  Colorado State Attorney General Investigator Gary Clyman was acting without authority when he instituted the investigation in this matter without express authorization from the Governor or Legislature.  No such authorization is on file within the case record.

(B).  Colorado State Attorney General Investigator Gary Clyman was without authority to deploy the Lakewood S.W.A.T. Team to make a “FELONY TRAFFIC STOP” to purportedly serve unsigned, and therefore invalid, misdemeanor warrants.  [EXHIBIT  # Two[2]]

(C).  Colorado State Attorney General Investigator Gary Clyman was without authority to arrest William Godbey and Nancy Britton without cause, without warrant and without exigent circumstances.  No such authorization is on file within the case record.

(D).  Colorado State Attorney General Investigator Gary Clyman was without authority to unlawfully arrest Petitioner in the sovereign state of California, and to kidnap and unlawfully incarcerate Petitioner in Colorado without express authorization from the Governor.

(E).      Colorado State Attorney General Investigator Gary Clyman was without authority to petition a Jefferson County Judge, in the middle of the night, for a no-knock search warrant in Denver County without express authorization from the Governor.

 

14.           Colorado State Attorney General Investigator Gary Clyman acted, without authorization, in excess of his job description when he presented intentionally misleading and perjured information to Jefferson County Judge Jack Berryhill in the form of a purported “affidavit in support of probable cause” in a midnight application to Judge Berryhill, a Jefferson County Judicial Official, for a no-knock Search Warrant, indicating exigent circumstances, within the City and County of Denver.  The “affidavit” in support of that search warrant contained perjured information and was insufficient on its face to establish probable cause.

 

15.           Judge Jack Berryhill, a Jefferson County Judge, issued a “no-knock warrant” for a business location in the City and County of Denver, and acted in excess of his jurisdiction when he “rubberstamped” that search warrant, in the middle of the night, without fulfilling the “neutral and detached magistrate” requirement of reading and evaluating the affidavit purportedly submitted by Colorado State Attorney General Investigator Gary Clyman in excess of his authorization, and by perjury, in support of the issuance of a search warrant.

&    ColoCrim.P Chapter 12 Section 12.47: Authority to Issue Warrant - "Neutral and Detached Magistrate" Requirement:  If the magistrate abandons his or her role as a neutral and detached judicial officer, the warrant is void.  People v. Trujillo 712 P.2d 1079 Colo.App. 1985.

&    Such abandonment would occur if the magistrate failed to read the affidavit prior to issuance of the warrant, which would constitute an abandonment of the neutrality requirement, since the magistrate would then serve merely as a rubber stamp for the police.  (Rooder v. Commonwealth, 508 S.W.2d 570 Ky.1974)

&    “But, constitutionally, probable cause must appear on face of affidavit.  The express Colorado constitutional requirement of a written oath or affirmation makes it clear beyond a doubt that sufficient facts to support a magistrate’s determination of probable cause must appear on the face of a written affidavit.  People v. Baird, 172 Colo. 112, 470 P.2d 20 (1970)

&    Otherwise, warrant issued on such fatally defective affidavits are nullities, any search conducted under them was unlawful, and the fruits of such a search are inadmissible in evidence.  Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971): People v. Baird, 173 Colo. 112, 470 P.2d 20 (1970)

&     Affidavit in support of warrant held fatally defective.  See People v. Peschong, 181 Colo.29, 506 P.2d 1232 (1973).

&    The supreme court cannot approve as meeting the standards of due process of law summary, hasty, middle-of-the-night justice. Toland v. Strohl, 147 Colo. 577, 364 P.2d 588 (1961).

&    The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution protect persons from unreasonable searches and seizures and prohibit the issuance of a search warrant except upon probable cause supported by oath or affirmation particularly describing the place to be searched and objects to be seized. See U.S. Const. amend. IV; Colo. Const. art. 2, § 7. To establish probable cause, an affidavit in support of a warrant must allege facts sufficient to cause "a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched." People v. Quintana, 785 P.2d 934, 937 (Colo. 1990).

&    Because there is no precise formula for determining probable cause, "[r]easonable minds frequently may differ on the question whether a particular affidavit establishes probable cause." United States v. Leon, 468 U.S. 897, 914 (1984); see also Turcotte-Schaeffer, 843 P.2d at 662 (acknowledging that the "facts here present a very close case of probable cause and a different issuing judge may have required more information before issuing a warrant"); United States v. Cancelmo, 64 F.3d 804, 807 (2d Cir. 1995)(recognizing that "the question of whether probable cause existed in the instant case is a close one").   Here, the facts present a vivid illustration of the principle that reasonable minds may differ on the issue of whether an affidavit sets forth sufficient information to comprise probable cause. A magistrate issued the warrant; that same judicial officer then concluded upon further review that the affidavit was insufficient. People v. Altman, 940 P.2d 1009 (Colo. App. 1996),

16.           The merits of the factual dispute were not resolved nor adequately developed in any of the state court hearings.  Further, the state, as a party, lacks jurisdiction over Petitioner’s person--it does not qualify for original jurisdiction as required by U.S. Constitution, Article III, Section 2(2).

 

17.           Further, the STATE, as a party, lacks standing to sue by definition.  See Black’s Law 6^th Edition Standing to sue doctrine.  “Standing to sue” means that party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.  Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 1364, 31 L.Ed.2d. 636.  Standing is a concept utilized to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court; it is the right to take the initial step that frames legal issues of ultimate adjudication by court or jury.  State ex rel. Cartwright v. Oklahoma Tax Com’n Okl., 653 P.2d 1230, 1232.  The requirement of “standing” is satisfied if it can be said that the plaintiff has a legally protectible and tangible interest at stake in the litigation.  Guidry v. Roberts, La.App., 331 So.2d 44, 50.  Standing is a jurisdictional issue which concerns power of federal courts to hear and decide cases and does not concern ultimate merits of substantive claims involved in the action.  Weiner v. Bank of King of Prussia, D.C.Pa., 358 F.Supp. 684, 695. The doctrine emanates from the case or controversy requirement of the Constitution and from general principles of judicial administration, and seeks to insure that the plaintiff has alleged such a personal stake in the outcome of the controversy as to assure concrete adverseness.  Campaign Clean Water, Inc. v. Ruckelshaus, D.C.Va., 361 F.Supp. 689, 692.  Standing is a requirement that the plaintiffs have been injured or been threatened with injury by action complained of, and focuses on the question of whether the litigant is the proper party to fight the lawsuit, not whether the issue itself is justiciable. 

 

18.           Petitioner is being prosecuted on Grand Jury Indictment for unconstitutional alleged statutory[18] (mere code) violations.  In substance, the supposed violation is not a substantive (common law) crime, nor in any way related thereto.  In its forum, the state court was acting ministerially and did not establish jurisdictional facts or nexus.  Courts enforcing mere statutes do not act judicially (THOMPSON. V. SMITH, 154 SE 579; cf. RC V. GE, 281 US 464;  KELLER V. PE, 261 US 428).  This court, acting as in THOMPSON V. SMITH, has no discretion, but must grant the remedy of Habeas Corpus.

 

19.           Petitioner has denied, and continues to deny the jurisdiction of the state nisi prius court, based upon FRAUD perpetrated upon the court by the Prosecution, with notice provided by Notice of Irregularities, Notice of Prosecutorial Misconduct and numerous other notices to the Honorable Court contained within the court’s record in case #00CR3371 and #00CR2419; and by Diversity of Citizenship, to-wit: Petitioner is a sovereign California Inhabitant, a Public Minister and a sovereign, foreign to the COMPACT STATE OF COLORADO – notice to the Honorable Court provided by NOTICE OF FOREIGN LAW and by the opening paragraph in each and every notice provided to the court.  Respondents are estopped for failure to prove their position.  A court which acts in want of jurisdiction can issue no judgment nor warrant of authority, and all of its acts are void ab initio, not just voidable; nor does such a court have any contempt powers; whereupon habeas corpus should issue (ILL V. SIMAN, 284 Ill. 28, ILL. V. BARRETT, 203 Ill. 99).

C A V E A T

20.           This is an action at law:  proceedings will be pursuant to Rule 7(a), 7(c), FEDERAL RULES OF CIVIL PROCEDURE.  Actions at law forbid titles of nobility.  Titles of nobility must remain silent in a court at law.  Should a title of nobility be allowed to speak in a court at law, it would no longer be a court at law, but a court in equity.  A title of nobility corrupts the jury, therefore it is no longer a court at law.  A court at law means:  subject to a jury.

C A V E A T   V I A T O R

21.           Respondents must enter the court at law, to answer the complaint.  Answer to complaint must bear a proper court seal.  A proper court seal is given by sovereign hand, in propria persona.  Sovereign authority gives court jurisdiction to try accused by jury.  Any proper answer to this action gives this court and jury jurisdiction to consider the issues pursuant to proper civil and/or criminal laws.  Any person who gives a proper answer to this complaint also gives the court jurisdiction to try him criminally if found guilty.  Failure to answer results in civil process to be pursued against property and no Constitutional defenses exist until respondents takes issue.

A S S E R T I O N   O F   L A W

The laws in this case are hereby asserted:

 

22.           "In all cases....in which a state shall be party, the Supreme Court shall have original jurisdiction."  from U. S. CONSTITUTION, ARTICLE III, SECTION 2(2).

 

23.           "...all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution...." from U. S. CONSTITUTION, ARTICLE VI, CLAUSE 3.

 

24.           "The right of the people to be secure....against unreasonable....seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation...."  from U. S. CONSTITUTION, AMENDMENT IV.

 

25.           "No person shall....be deprived of....liberty.... without due process of law...."  from U. S. CONSTITUTION, AMENDMENT V.

 

26.           Amendment VIII [1791] Excessive bail shall not be required, nor excessive fines posed, nor cruel and unusual punishments inflicted.  Article II §20 of the Colorado Constitution.

 

27.           "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  from U. S. CONSTITUTION, AMENDMENT IX.

 

28.           "A freeman shall only be amerced for a small offense according to the measure of that offense.  .... And none of the aforesaid fines shall be imposed save upon oath of upright men from the neighbourhood."  from MAGNA CARTA, ARTICLE 20.

 

29.           "No sheriff, constable, coroners, or other bailiffs of ours shall hold the pleas of our crown."  from MAGNA CARTA, ARTICLE 24.

 

30.           "Henceforth the writ which is called 'Praecipe' shall not be served on any one for any holding so as to cause a free man to lose his court."  from MAGNA CARTA, ARTICLE 34.

 

31.           "No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed--nor will we go upon or send upon him--save by the lawful judgment of his peers or by the law of the land."  from MAGNA CARTA, ARTICLE 39.

 

32.           "If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

          "If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured--

          "They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life."  from UNITED STATES CODE, TITLE 18, Section 241.

 

33.           "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, .... shall be fined not more than $1,000 or imprisoned not more than one year, or both; ...." from UNITED STATES CODE, TITLE 18, Section 242.

 

34.           "The district courts shall have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States."  from UNITED STATES CODE, TITLE 28 § 1331.

 

35.           "(a)  The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

          "(1)  To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42;

          "(2)  To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent pursuant to 42 U.S.C.A. § 1986.

          "(3)  To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. ...."   from UNITED STATES CODE, TITLE 28, Section 1343.

 

36.           "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ...., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...."  from UNITED STATES CODE, TITLE 42, Section 1983.

 

37.           "... (3)  If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; .... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."  from UNITED STATES CODE, TITLE 42, Section 1985.

 

38.           "Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action  on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as respondents in the action;...."  from UNITED STATES CODE, TITLE 42, Section 1986.

 

39.           18 USC 241 and 42 USC 1983 "must be construed in pari materia."  from PICKING V. PENNSYLVANIA R. CO. (CCA 3) 151 F(2d) 240, rev'g 3 FedRDec 425.

 

40.           "The individual owes nothing to the state, for he receives nothing therefrom...his rights are such as existed by the Law of the Land long antecedent to the organization of, and the accordance with the Constitution.  Among his rights are...the immunity of himself and his property from arrest or seizure except under a warrant of the law."  from HALE V. HENKLE, 201 U.S. 43.

 

41.           "...an...officer who acts in violation of the Constitution ceases to represent the government."  from BROOKFIELD CO. V. STUART, (1964) 234 F. Supp 94, 99 (U.S.D.C., Wash.D.C.)

 

42.           "...an officer may be held liable in damages to any person injured in consequence of a breach of any of the duties connected with his office...The liability for nonfeasance, misfeasance, and for malfeasance in office is in his 'individual,' not his official capacity..." from 70 AmJur2nd Sec. 50, VII Civil Liability.

 

43.           "Decency, security, and liberty alike demand that government officials be subjected to the same rules of conduct that are commands to the citizen.  In a Government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously.  Crime is contagious. If government becomes a lawbreaker, it breeds contempt for the law..."  from OLMSTEAD V. U.S., 277 US 348, 485; 48 S Ct. 564, 575; 72 LEd 944.

 

44.           A writ of habeas corpus is a proper remedy if petitioner has reasonable apprehension of restraint of liberty by force.  To justify issuance of the writ of habeas corpus, constraint need not consist of actual physical force.  Conduct inducing a reasonable apprehension of force may be sufficient to restrain one of his/her liberty (From In re Rider (1920) 50 CalApp 797, 802, 195 P 65).

 

45.           Constructive Custody.  The availability of the writ of habeas corpus does not depend on the actual detention of petitioner in prison.  It is also available where petitioner is constructively in custody and subject to restraint (From In re Petersen (1958) 51 Cal2d 177, 181, 331 P2d 24).  Petitioner has been in constructive custody, pursuant to unlawfully issued “restraining orders” since 20 June 1997 which constitute a prima facie deprivation of 2^nd Amendment Rights.  Said unlawfully issued “restraining orders” have formed the basis for at least three malicious, vindictive and retaliatory prosecutions for constitutionally protected activities.  See Jefferson County cases #97M811, 97M812 & Arapahoe County Case #97M472 and related Federal cases #97-N-1501, 01-ES-1145 & 97-D-1036.

S U M M A R Y

46.           The merits of the factual disputes were not resolved in this, or in any of the many related, state or county court hearings (28 USC 2254(d)(1)).

 

47.           The fact-finding procedure employed by the state courts were not adequate to afford a full, fair and speedy hearing in any of the related state or county court cases (28 USC 2254(d)(2)).

 

48.           The state and county courts lacked jurisdiction over Petitioner in the state and county court hearings i.e. no injured party was produced, collusive joinder is prohibited, state and county courts have no jurisdiction over Foreign Sovereigns, AND as Fruit of the Poisonous tree - unlawful arrest and kidnapping cannot form the basis for lawful jurisdiction; no jurisdiction can be maintained when commenced in gross and unconcealed violation of State and Federal laws and when the alleged violations are not prohibited by statute or code; Petitioner has never consented to the court’s jurisdiction and Petitioner was never properly within the court's jurisdiction (28 USC 2254(d)(4)).

 

49.           Petitioner did not receive a full, fair, SPEEDY[19] and adequate hearing in any of the many above enumerated  state court proceedings, including the matter at issue herein, to-wit: #00CR3371 (28 USC 2254(d)(6)).

 

50.           Petitioner was denied Speedy Trial (while incarcerated since 13 March, 2001) and due process of law, by the unauthorized Prosecution – as noted above in # 12, and in all the related former and current state court proceedings noted in caption (28 USC 2254(d)(7)).  CrimP. Rule 5 (a)(1,2)

 

51.           Presentation of this Habeas Corpus to the Honorable Court of the First Judicial District Court of the STATE OF COLORADO constituted a good faith effort to exhaust all available STATE remedies before proceeding to the Colorado State Supreme Court, whereupon denial constitutes full exhaustion of all available STATE remedies and entitles Petitioner to FEDERAL remedy.  Copies were sent VIA U.S. Mail to the Arapahoe County Court for connected case #97M472, Colorado State Supreme Court, in preparation for this presentation to that court, and to the U.S. District Court for the Tenth Federal District, as proof of exhaustion of all available STATE remedies, and as Notice of DEPRIVATION OF THE RIGHT TO SPEEDY TRIAL[20] and constructive imprisonment due to the five year restraint of liberty, both actual and constructive, unlawfully imposed upon the Petitioner by the Defendants in those actions and by their Defense Counsel, to-wit: the Colorado State Attorney General.

 

52.           See also Preiser v.  Rodriguez, 411 U.S. at 486 et seq.  Since Carafas, custody has been construed more liberally by the courts so as to make a Sec. 2255 motion or habeas corpus petition proper in more situations. ''In custody'' now includes a person who is:  on parole, Jones v.  Cunningham, 371 U.S. 236 (1963); at large on his own recognizance but subject to several conditions pending execution of his sentence, Hensley v.  Municipal Court, 411 U.S.  345 (1973); or released on bail after conviction pending final disposition of his case, Lefkowitz v.  Newsome, 95 S.Ct. 886 (1975). See also United States v.  Re, 372 F.2d 641 (2d Cir.),  cert. denied, 388 U.S. 912 (1967); (on probation); Walker v.  North Carolina, 262 F.Supp. 102 (W.D.N.C. 1966), aff'd per curiam, 372 F.2d 129 (4th Cir.), cert. denied, 388 U.S. 917 (1967); (recipient of a conditionally suspended sentence); Burris v.  Ryan, 397 F.2d 553 (7th Cir. 1968); Marden v.  Purdy, 409 F.2d 784 (5th Cir. 1969); (free on bail); United States ex rel.  Smith v.  Dibella, 314 F.Supp. 446 (D.Conn. 1970); (released on own recognizance); Choung  v.  California, 320 F.Supp. 625 (E.D.Cal. 1970);  (federal stay of  state court sentence); United States ex rel.  Meadows v.  New York, 426 F.2d 1176 (2d Cir. 1970), cert. denied, 401 U.S. 941 (1971); (subject to parole detainer warrant); Capler v.  City of Greenville, 422 F.2d 299 (5th Cir. 1970); (released on appeal bond);    Glover v.  North Carolina, 301 F.Supp. 364 (E.D.N.C. 1969); (sentence served, but as convicted felon disqualified from engaging in several activities).

&      The courts are not unanimous in dealing with the above situations, and the boundaries of custody remain somewhat unclear.   In Morgan v.  Thomas, 321 F.Supp. 565 (S.D.Miss. 1970), the court noted:

&      It is axiomatic that actual physical custody or restraint is not required to confer habeas jurisdiction.  Rather, the term is synonymous with restraint of liberty.  The real question is how much restraint of one's liberty is necessary before the right to apply for the writ comes into play. ** *

&            It is clear however, that something more than moral restraint is necessary to make a case for habeas corpus.  321 F.SUPP. AT 573

&     Hammond v.  Lenfest, 398 F.2d 705 (2d Cir. 1968), reviewed prior ''custody'' doctrine and reaffirmed a generalized flexible approach to the issue.  In speaking about 28 U.S.C. Sec. 2241, the first section in the habeas corpus statutes, the court said:

“While the language of the Act indicates that a writ of habeas corpus is appropriate only when a petitioner is ''in custody,'' * * * the Act ''does not attempt to mark the boundaries of 'custody' nor in any way other than by use of that word attempt  to limit the situations in which the writ can be used.'' * * *And, recent Supreme Court decisions have made clear that ''(i)t   (habeas corpus) is not now and never has been a static, narrow,  formalistic remedy; its scope has grown to achieve its grand purpose - the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.''

&     '(B)esides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.''   398 F.2D AT 710-711

&     There is, as of now, no final list of the situations which are appropriate for habeas corpus relief.  It is not the intent of these rules or notes to define or limit ''custody.''

&     It is, however, the view of the Advisory Committee that claims of improper conditions of custody or confinement (not related to the propriety of the custody itself), can better be handled by other means such as 42 U.S.C. Sec. 1983 and other related statutes.  In    Wilwording v.  Swanson, 404 U.S. 249 (1971), the court treated a habeas corpus petition by a state prisoner challenging the conditions of confinement as a claim for relief under 42 U.S.C.    Sec. 1983, the Civil Rights Act. Compare Johnson v.  Avery, 393 U.S. 483 (1969).

&     The distinction between duration of confinement and conditions of confinement may be difficult to draw.  Compare Preiser v. Rodriguez, 411 U.S. 475 (1973), with Clutchette v.  Procunier, 497 F.2d 809 (9th Cir. 1974), modified, 510 F.2d 613 (1975).

53.           The Petitioner has been continuously unlawfully incarcerated since 13 March 2001 on Jefferson County Case #00CR3371, first, for 21 Days in California, without charges or a governor’s warrant, and now is currently unlawfully incarcerated, prior to trial, due to the imposition of constitutionally prohibited EXCESSIVE BOND[21] in violation[22] of the Eighth Amendment to the U.S. Constitution, Article I §§ 28 & 13 of the California Constitution and Article II §20 of the Colorado Constitution. 

 

54.           Petitioner has not yet been arraigned[23] in the matter captioned #00CR3371, which commenced with an unlawful arrest, unlawful search and seizure and unlawful custodial interrogation of Defense Witnesses on 19 September, 2000; and due to the Prosecution’s denial of Discovery relative to Grand Jury perjury [Exhibit # Three[3]] and misconduct alleged in both the impaneling and process; and egregious governmental conduct; profuse and flagrant due process violations; Grand Jury manipulation, tampering and misconduct; vindictive prosecutorial misconduct; outrageous police misconduct; lack of credible witnesses; failure to state a cognizable claim pursuant to colorable STATE statutes, failure to present an injured party, unconstitutionality of the statutes allegedly violated; mis-application of the statutes allegedly violated and lack of jurisdiction; stands very slight likelihood of conviction in that matter and any conviction would most certainly be overturned on appeal.  Any imprisonment prior to trial cannot be purged, remedied or corrected by “time-served” when  conviction is highly unlikely.  Petitioner is currently unlawfully incarcerated in draconian and overcrowded prison conditions on excessive bond.

 

55.           FALSE IMPRISONMENT:  Any intentional detention of the person of another not authorized by law is false imprisonment. It is any illegal imprisonment, without any process whatever, or under color of process wholly illegal[24], without regard to the question whether any crime has been committed or a debt due.   

 

56.           In Jefferson County Case Number 00CR3371, it is obvious that the attached “warrant of commitment” is defective, unsigned and therefore invalid.[25]

 

57.           Attached invalid “warrant of commitment” [Exhibit # Two] formed the basis for an application for a Federal arrest warrant from Federal Magistrate Patricia Coan for Unlawful Flight to Avoid Prosecution charges filed by Jefferson County Sheriff’s Deputy/Special F.B.I. Agent/U.S. Marshal Donald L. Estep without supporting affidavit.   

 

58.           Defective “warrant” also erroneously charges felony weapons violations (see page 2 of “warrant of Commitment”) and led to Petitioner’s unlawful arrest by the San Francisco FEDERAL BUREAU OF INVESTIGATION S.W.A.T. Team in California, under the false impression that Petitioner was “armed and dangerous.”

 

59.           Petitioner was held, unlawfully incarcerated, in solitary confinement in California for twenty one days without charges and without the issuance of a governor’s warrant[26] or any legal process.  No Governor’s Warrant has ever been issued which would purge the taint of the unlawful arrest and incarceration in California based upon fraudulent “warrants” issued out of Jefferson County.

 

60.           Petitioner was unlawfully kidnapped[27], against his will, and transported in interstate commerce to Colorado by Jefferson County Sheriff’s Deputies Lonnie Lock and Pete Derrick on 4 April, 2001.

 

61.           Jefferson County Deputies Lock and Derrick had no valid warrant or lawful process to justify the forceful kidnapping of the Petitioner from his home in California on April 4, 2001.  The kidnapping was unlawful and can be construed to affect interstate commerce, pursuant to R.I.C.O. statutes.

 

62.           Petitioner was not immediately brought before a judge or magistrate of competent jurisdiction. After the unlawful kidnapping from California, Petitioner was imprisoned  Eight days without a hearing. 

 

63.           Petitioner has documented each and every aspect of the lawless conduct of the Prosecution in case #00CR3371 and has submitted meticulous documentation of the most egregious violations of the Petitioner’s rights to the Honorable Court of Leland P. Anderson, pursuant to 42 U.S.C. §1986, and that documentation resides within the Official Court File.  Copies can be immediately offered to substantiate Petitioner’s allegations of official governmental misconduct and the concerted and deliberate abrogation of Petitioner’s constitutionally secured rights.

 

64.           The remedy is an order to be restored to liberty by writ of habeas corpus and to recover damages for the injury by action of trespass. To punish the wrong done to the public by the false imprisonment of an individual, the offender may be indicted. Under California law, false imprisonment is the "nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short."   Famine v. Fed, Inc., 872 P.2d 559, 567 (Cal. 1994) (quoting Molokai v. Holy Spirit Ass’n, 762 P.2d 46, 63 (Cal. 1988)).

 

65.           A false imprisonment action may also be maintained if "the defendant unlawfully detains the [plaintiff] for an unreasonable period of time" after an otherwise legal seizure or arrest. Lincoln v. Grazer, 329 P.2d 928, 930 (Cal.Ct.App. 1958).

 

66.           Once the plaintiff has proven the elements of the tort[28], the defendant has the burden to establish that the detention or arrest was legally justified. See Cervantes v. J.C. Penney Co., 595 P.2d 975, 982 (Cal. 1979).

 

67.           Petitioner has been held in unlawful incarceration since 13 March, 2001 on frivolous, merit less and unfounded charges totally unsupported [Exhibit #Four[4]] by code, statute or law of any cognizable jurisdiction and without valid legal process (See Attached “Warrant”).  Petitioner’s first appearance was 12 April, 2001.  Petitioner has continually demanded a speedy trial.  No trial date has been set.  Petitioner’s constitutionally guaranteed right to Speedy trial has been deliberately and callously denied.

 

68.           Petitioner has repeatedly petitioned the Honorable Leland P. Anderson, presiding judge in case #00CR3371, for relief from unlawful imprisonment and from the damages caused by the malicious, vindictive and retaliatory prosecution in progress and have been denied any such relief.

 

69.           Petitioner has repeatedly petitioned the Honorable Leland P. Anderson for relief from the constitutionally proscribed excessive bond imposed in case #00CR3371.  No relief has been provided.

 

70.           Petitioner has repeatedly, both verbally and by letters, formal notices and pleadings, fully informed the Honorable Leland P. Anderson of grievous deprivations [EXHIBIT # Five[5]] of Petitioner’s constitutionally secured rights pursuant to 42 U.S.C. § 1986 and have been afforded no relief from the Honorable Court.

 

71.           It appears that this prisoner is in custody by virtue of process from a court illegally constituted, and he can be discharged for some of the  following causes:

 

     (a)  Where the court has exceeded the limit of its personam jurisdiction, to-wit: prisoner is a Foreign Sovereign Inhabitant of the California Republic.  Personam jurisdiction cannot be invoked based upon a fraudulent manipulation of Federal Law in order to bring a foreign sovereign into State jurisdiction.

     (b)  The original imprisonment was unlawful, the party is entitled to his discharge;

     (c)  Where the process is defective in some substantial form required by law;

     (d)  Where the process, improper in form and substance, has been issued in a case or under circumstances where the law does not allow process or orders for imprisonment or arrest to issue;

     (e)  Where, although in proper form, the process has been issued or executed by a person either unauthorized to issue or execute the same or where the person having the custody of the prisoner under such process is not the person empowered by law to detain him;

     (f)  Where the process appears to have been obtained by false pretense or bribery;

     (g)  Where there is no general law, nor any judgment, order, or decree of a court to authorize the process, nor any conviction in a criminal proceeding.

   

72.           The underlying case #00CR3371 is fatally flawed from its inception as an unlawful arrest, to-wit: a warrantless “Felony Traffic Stop;” to the unlawful roadside custodial interrogation of Defense Witnesses; to the fraudulent and perjurious application for a Denver County search warrant from a conspiratorial Jefferson County Judge and the unlawful search and seizure conducted upon that Defective Warrant; to the commencement of Jefferson County case #00CR2419 based upon an insufficient charging document – and the case’s ultimate dismissal; to the unlawful impaneling of the StateWide Grand Jury without probable cause shown; to the unlawful manipulation of that Grand Jury; to the defective indictment returned by that Grand Jury; to the fatal defects in the charges within the indictment which do not charge an offense related to the facts alleged; to the fraudulent application for a Federal U.F.A.P. Warrant based upon perjury and virulent intrigue; to the unlawful arrest, incarceration and kidnapping of the Plaintiff in California and the subsequent unlawful incarceration, deprivation of constitutionally secured rights, cruel and unusual punishment prior to trial, imposition of excessive bond; to the malicious and vindictive prosecution and the on-going conspiratorial deprivation of the Plaintiff’s Constitutionally guaranteed right to Due Process of Law.

 

73.           Plaintiff cannot in good conscious waive any Right to contest and protest the immoral, unlawful and unconstitutional proceeding entitled #00CR3371 in order to prematurely “go to trial.”  The gross and egregious prosecutorial misconduct and governmental malfeasance that has been perpetrated upon this Plaintiff must be challenged and a remedy must be fashioned for the unconscionable deprivations of God-Given and Constitutionally secured rights that has already grievously damaged this Plaintiff.

 

74.           Plaintiff requests only that he be released from imprisonment on Personal Recognizance Bond, in order to vigorously defend against the charges he is accused of from a position of freedom and access to the accoutrements of modern communication, a proper diet, and the basic freedoms and equal protections enjoyed by any person with the financial means to post a $50,000.00 bond.  The only element that is holding the Accused in draconian, overcrowded prison conditions is the lack of funds that has been knowingly and intentionally caused and exacerbated by the instruments of the Prosecution in this case, to-wit: Donald L. Estep and Gary Clyman – when they knowingly and intentionally engaged a FEDERAL BUREAU OF INVESTIGATION  S.W.A.T. Team to attack the Accused at his business in Fairfax, California – thus completely destroying all business consortium there, in California, and then unlawfully hacked into Accused’s WebSites using passwords obtained by Fraud and misrepresentation in order to destroy all data and advertising on Accused’s World Wide Web Sites in what appears to be part of a an on-going R.I.C.O. enterprise consisting of several inter-connected  governmental agencies.

 

75.           Petitioner has thoroughly exhausted all available remedies in Jefferson County District Court.

P R A Y E R

 

WHEREFORE, Petitioner prays judgment that a Writ of Habeas Corpus issue and that Petitioner be IMMEDIATELY released from any attendant restraint of liberty as a result of any and all Alleged Cases regarding Petitioner in any administrative court of Arapahoe County and Jefferson County, Colorado in the nature of a release on Personal Recognizance or a Dismissal, with prejudice, of all charges.

 

I verify that the foregoing, Pages 1-16, is true, correct, complete and not misleading to the best of my knowledge and belief, and that this verification was executed in the territory of Colorado, “expressly without the United States” pursuant to 28 U.S.C. § 1746  (1) “If executed without the United States[29]: under penalty of perjury under the laws of the United States of America,” and Executed on the Eighteenth Day of the Eleventh Month in the year of our Messiah, YahShewa, Two Thousand and One, Ano Domini.

 

Humbly submitted in good faith,

 

 

 

 

Sunday, November 18, 2001

 

_____________________________________________     

Steve Douglas, Gartin -   Petitioner, In Propria Persona                   

First Secured Party – Attorney-in-Fact for Strawman Transmitting Utility

Pursuant to Private Security Agreement #SDG09112000-SA

Please Reply to Temporary Residence:

c/o P.O. Box 16700  7C-25-A

     Golden, Colorado  80402

 

 

 

 

Notary Public Seal – Pages One through Seventeen Inclusive

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

____________________________________________________________

Certificate of Service

This is a True Copy of Habeas Corpus to the Colorado State Supreme Court VIA U.S. Mail – deposited in the Jefferson County Jail Mail on this Eighteenth Day of the Eleventh Month, with sufficient postage attached and addressed to:

 

The Honorable Leland Paul Anderson                             Clerk of the Court Mac V. Danford

STATE OF COLORADO–First Judicial District              Colorado State Supreme Court

100 Jefferson County Parkway                                          2 East 14^th Street – 4^th Floor

Golden, Colorado  80401                                                     Denver, Colorado  80203

 

The Honorable Richard M. Jauch                                     Clerk of the Court, James Manspeaker

Arapahoe County Court                                                     U.S. District CourtHouse – Room C145

1790 W. Littleton Boulevard                                              1969 Stout Street

Littleton, Colorado  80218                                                   Denver, Colorado  80294

 

Sheriff John P. Stone                                                           Colorado State Attorney General Kenneth Salazar

200 Jefferson County Parkway                                          1525 Sherman Street – 5^th Floor

Golden, Colorado  80401                                                     Denver, Colorado  80203

 

Daniel Edwards, Esquire                                                     David J. Thomas, Esquire

1733 High Street                                                                   500 Jefferson County Parkway

Denver, Colorado  80218                                                     Golden, Colorado  80401

 

 

 

 

ATTACHMENTS:  Exhibits # 1 through #5