Ney v. Blaney et al

Filing 10

ORDER signed by Magistrate Judge Dale A. Drozd on 2/5/08 ORDERING respondents are directed to file a response to petitioners application within 30 days from the date of this order. The Clerk of the Court shall serve a copy of this order together with a copy of petitioners application for a writ of habeas corpus on Michael Patrick Farrell, Senior Assistant Attorney General. (Attachments: # 1 Habeas Corpus, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Anderson, J)

(HC) Ney v. Blaney et al

Doc. 10 Att. 1

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Randy S. Kravis, Esq. State Bar #214100 12930 Ventura Blvd., #903 Studio City, CA 91604 [phone] fax [phone] Attorney For Petitioner CHRISTINE NEY UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ) ) Petitioner, ) ) vs. ) DOYLE BLANEY, Probation Officer, ) ) and ) VERNE SPEIRS, Chief Probation ) Officer, Sacramento County Probation ) Department, ) ) Respondents. ) ) ) ) ) ) ) ) ) ) ) CHRISTINE SUZANNE NEY,
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No: ____________ PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C. SECTION 2254)

Petition For Writ Of Habeas Corpus By A Person In State Custody, 28 U.S.C. § 2254

Dockets.Justia.com

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PETITION FOR WRIT OF HABEAS CORPUS Petitioner, CHRISTINE NEY, by and through her attorney, Randy S. Kravis, pursuant to 28 U.S.C. § 2254, petitions this Honorable Court to grant her a Writ of Habeas Corpus and states: 1. Petitioner is a citizen of the State of California, currently on probation following her felony conviction in the Superior Court of Sacramento County, State of California, case number 02F09957. 2. 327. 3. 4. On August 26, 2004, the court ordered that imposition of judgment Petitioner appealed to the California Court of Appeal, Third Appellate a. Her right to due process was violated because she was and sentence be stayed and that petitioner be placed on five years formal probation. District, case number C048122. She raised the following four grounds: convicted of operating an endless chain scheme without sufficient evidence that Women Helping Women (WHW) was an endless chain scheme or that petitioner was an "operator" within the meaning of Penal Code section 327; b. The trial court committed instructional error in violation of petitioner's Sixth Amendment right to a fair and impartial jury by refusing to provide the jury with her proposed instruction that WHW should not be considered an endless chain scheme if it was determined that the organization did not require its members to recruit new ones; c. If the Court of Appeal concluded that WHW was an endless chain scheme within the meaning of Penal Code section 327, then that statute was unconstitutionally vague, as interpreted;
Petition For Writ Of Habeas Corpus By A Person In State Custody, 28 U.S.C. § 2254 2

On March 12, 2004, a jury found petitioner guilty of one felony count

of operating an endless chain scheme in violation of California Penal Code section

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d.

She was denied her Sixth Amendment right to the effective

assistance of counsel when her defense attorney failed to call witnesses who would have testified that they received compensation from the organization without recruiting new members. 5. 6. On August 23, 2006, in an unpublished decision, the Court of Appeal Petitioner sought review of the Court of Appeal's decision in the a. Her right to due process was violated because she was rejected each of petitioner's claims and affirmed her conviction and sentence. California Supreme Court, raising the following two grounds: convicted of operating an endless chain scheme without sufficient evidence that WHW was an endless chain scheme or that petitioner was an "operator" within the meaning of Penal Code section 327; b. 7. 8. 9. Under the Court of Appeal's interpretation of section 327, that section was unconstitutionally vague. The California Supreme Court ­ case number S146849 -- summarily Petitioner has not filed any habeas petitions in any state court with In this Petition, petitioner states the following two grounds on which a. Her right to due process was violated because she was denied review on November 1, 2006. respect to this judgment of conviction. she claims she is being held in violation of the United States Constitution: convicted of operating an endless chain scheme without sufficient evidence that WHW was an endless chain scheme or that petitioner was an "operator" within the meaning of Penal Code section 327. Specifically, WHW was not an endless chain scheme because an endless chain scheme, as defined by section 327, is one whereby "a participant" must recruit additional members in order to receive her payout and WHW did not place such a recruitment
Petition For Writ Of Habeas Corpus By A Person In State Custody, 28 U.S.C. § 2254 3

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requirement on its members. Also, petitioner was not an "operator" of the organization because she did not have any managerial authority within the organization. Since she was not an operator, the evidence was insufficient to sustain her conviction for operating an endless chain scheme. b. Section 327, as interpreted by the Court of Appeal, was unconstitutionally vague in violation of petitioner's right to due process. Section 327 defines an endless chain scheme as one in which each "participant" must recruit additional members in order to receive her payout. WHW had no such requirement. The Court of Appeal, however, interpreted the statute such that an endless chain scheme is one where the group as a whole must recruit new members in order to sustain itself. This was an unforeseeable expansion of the statutory definition of an endless chain scheme that denied petitioner adequate notice and fair warning of what was criminal in violation of her right to due process. 10. 11. 12. Petitioner has not previously filed any habeas corpus petitions in any Petitioner does not have any petitions now pending in any state or Petitioner is currently represented by attorney Randy S. Kravis. His federal court with respect to this judgment of conviction. federal court with respect to this judgment of conviction. address is 12930 Ventura Blvd., #903, Studio City, CA 91604. His business phone number is [phone]. 13. The conviction and sentence under which petitioner is on probation is unlawful, unconstitutional, and void because of the violation of petitioner's Fourteenth Amendment right to due process. 14. This Court has jurisdiction under the Petition and the issues raised pursuant to 28 USC section 2254 because Petitioner is on probation in violation of the Constitution and laws of the United States.
Petition For Writ Of Habeas Corpus By A Person In State Custody, 28 U.S.C. § 2254 4

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15.

Petitioner incorporates by reference the attached Memorandum of

Points and Authorities in support of the Petition for Habeas Corpus and the attached Exhibits. 16. WHEREFORE, Petitioner CHRISTINE NEY moves this Honorable a. b. c. d. Accept jurisdiction over this case; Require the respondent to answer the allegations in this Petition Order respondent to lodge the record on appeal with this Court; Issue a Writ of Habeas Corpus freeing petitioner from her Respectfully Submitted, /s/ Randy S. Kravis Randy Kravis, #214100 Attorney for Petitioner DATED: January 4, 2008 Court to grant the following relief:

and Points and Authorities in Support;

unconstitutional custody.

Petition For Writ Of Habeas Corpus By A Person In State Custody, 28 U.S.C. § 2254

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VERIFICATION I am an attorney at law duly licensed to practice in all courts of the State of California, the United States District Court for the Eastern District of California, and the Ninth Circuit Court of Appeals. I am the attorney for petitioner, CHRISTINE NEY, in this action. All facts alleged in the above document not otherwise supported by citations to the record, exhibits or other documents are within my knowledge and for that reason I make this verification on petitioner's behalf. I have read the foregoing Petition and declare under penalty of perjury that the foregoing is true and correct, except as to matters stated on information and belief, and as to those matters, I believe them to be true. This verification was executed on January 4, 2008, Studio City, CA. /s/ Randy S. Kravis Randy S. Kravis Attorney for Petitioner CHRISTINE NEY I am the petitioner in this action. All facts alleged in the above document not otherwise supported by citations to the record, exhibits or other documents are within my knowledge. I have read the foregoing Petition and declare under penalty of perjury that the foregoing is true and correct, except as to matters stated on information and belief, and as to those matters, I believe them to be true. This verification was executed on January 4, 2008, Sacramento, CA. /s/ Christine Ney Christine Ney, Petitioner (original signature retained by attorney Randy Kravis)

Petition For Writ Of Habeas Corpus By A Person In State Custody, 28 U.S.C. § 2254

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