Mathison v. Berkebile

Filing 21

MEMORANDUM OPINION AND ORDER denying without prejudice 6 Motion to Dismiss for Lack of Jurisdiction (Respondent is allowed to brief the issue of judicial estoppel by December 31, 2013); granting 12 Motion for Leave to Proceed in forma pauperis; holding in abeyance 4 Motion for Bail pending the Court's consideration of Respondent's submission regardinge estoppel. Signed by U. S. District Judge Lawrence L. Piersol on 12/20/13. (Attachments: # 1 9/17/08 Mathison pro se petition pursuant to 28 USC 2241, # 2 10/14/08 Oppotision to Motion for Release in Mathison v. Wiley, # 3 3/26/09 Order and Judgment in Mathison v. Wiley) (DJP)

Case 1:08-cv-02005-ZLW Document 2 Filed 09/17108 USDC Colorado Page 1 of 5

FILE D

UNITED STATES DISTRICT COURT
DENVeR, COLORADO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

<

GREGORY C. LANGHAM

'08 -CV ""02005

Civil Action No.

SEP 1 1200B

CLERK

(To be supplied by the court)

_ _ _ _ _ _ _ _ _E_u...::g:.....e_n.....;e~H. . . .___:. ;M...... t.:. ; ;.h.::.i=_so=_n:..:. . .__ _ _ _
Applicant,
a......
,
v.

Ron Wil ey, Warden
t
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _, Responden. RECEIVED
(Name of warden, superintendent, jailer, or other custodian)
UNlTEI1 ~~ATfS DISTRICT COURr
O
..NVfR, COLOSADO

APPLICATION FOR A WRIT OF HABEAS
PURSUANT TO 28 U.S.C. § 2241

CO~S

SEP - 5 2008

REGORY C. LANGHAM
___________________________________________ _____
~

_=~-----~CLERK

---->..

-~,. .~

"$"",-"",,-,~

A. PARTIES
1.

Eugene H. Mathison, #07835-073, P. o. Box 5000, Florence, CO
(Applicant's name, prisoner identification number, and complete mailing address) 81226-5000

2. Ron Wiley, P. O. Box 8500, Florence, CO 81226-8500

(Respondent's name and complete mailing address)
3. If you are not confined in a prison, jail, or other correctional facility, explain how you

are in custody:
N!a

4. If you are confined in a prison, jail, or other correctional facility but the named
respondent is not the warden, superintendent, or jailer at the prison, jail. or
correctional facility in which you are confined, explain how the respondent is your
custodian:

(Rev. 9/02/04)

i}7TACI/MENT L

Case 1:08-cv-02005-ZLW Document 2 Filed 09/17108 USDC Colorado Page 2 of 5

B. NATITRE OF TIIE CASE
BRIEFLY state the background of your case. If more space is needed to describe the nature

of the case, use extra paper to complete this section. The additional allegations regarding the

nature of the case should be labeled "B. NATURE OF THE CASE."

This action arises over the fact that I am factually, actually
innooent of the charges of money laundering pursuant to
18 usc §§ 1956 and 1957. I was charged with operating a relatively
small Ponzi scheme in 96-40048 (D.S.D.) and with "Counts 32 through
37 ••• [of] transferring] between accounts and the withdrawal by a
monetary instrument, that is a check in the amount listed below,
which involved the proceeds of specified unlawful activities,lt and
in counts 51 and 52 with violating 18 USC § 1957, and in Counts 53
through 59 with "the withdrawal by a monetary instrument, that is a
check in the amount listed below, which involved the proceeds of
specified unlawful activities." Pursuant to united States v Santos,
553 US - , - , 170 L Ed 2d 912, 926, lI'prcoceeds' means 'profits' when
there is no legislative history to the contrary."
The Court's ruling is a "substantive statutory holding," which
is always retroactively applicable; however, due to the limitations
imposed by the AEDPA r cannot bring the"claim of my factual and legal
innocence via 2i USC § 2255. I am forced to bring it under 28 USC §
2241. (See Bousley v United States, 523 Us 614, 621-623)
aRd;legall~

C. CLAIMS

State concisely every claim that you wish to assert in this action. For each claim, specify the

right that allegedly has been violated and state all supporting facts that you consider important.

You do not need to cite specific cases to support your claim(s). If you need additional space

to describe any cfaim or to assert additional claims, use extra paper to continue the claim or to

assert the additional claims. Identify clearly any additional pages that you attach to this form.

CAUTION: In order to proceed in federal court, you ordinarily must exhaust administrative

and/or state remedies for each Claim that is asserted in this action.

1.

2.

Have you exhausted administrative andlor state

remedies for each claim asserted in this action?

Yes xx No (CHECK ONE)

If you answered "No" to question 1., list the claims

for which you have not exhausted administrative

and/or state remedies and explain why:

(Rev. 9/02/04)

2

Not applicable

Case 1:08-cv-02005-ZLW Document 2 Filed 09/17/08 USDC Colorado Page 3 of 5

3.
Claim One: Factual and legal innocence "may be reviewed in
[§ 2241] collateral proceeding if .•• probably innocent." (Bousley,
523 US at 623) Legal innocence can be proved.
A. Supporting facts:
(See Memorandum of Law for supporting facts)

B. Explain the steps you have taken to exhaust administrative and/or state remedies

for this claim (attach proof of exhaustion, if available):
No applicable.

4.

Claim Two:
A. Supporting Facts:

B. Explain the steps you have taken to exhaust administrative and/or state remedies
for this claim (attach proof of exhaustion, if available):

(Rev. 9/02/04)

3

Case 1:08-cv-02005-ZLW Document 2 Filed 09117/08 USDC Colorado Page 4 of 5

5.

Claim Three:
A. Supporting facts:

B. Explain the steps you have taken to exhaust administrative andlor state remedies
for this claim (attach proof of exhaustion, if available):

D. PRIOR APPLICATIONS
1.

Have you filed any prior action in federal court
in which you raised or could have raised the
claims raised in this action?
_ Yes xx No (CHECK ONE)
(I filed a prior ~ 2241 in this Court but Santos was not decided
yet. That ~ 2241 was denied and is now before the Supreme Court.)
2. If you answered "Yes" to question 1., give the following information for each prior
federal court action challenging the execution of your sentence.
A. Name and location of court:
B.

Case number:

C.

Type of proceeding:

D.

List the claims raised:

(Rev. 9/02/04)

4

Case 1:08-cv-02005-ZLW Document 2 Filed 09/17/08 USDC Colorado Page 5 of 5

..

E.

F.

Were the claims in this
action actually asserted in
the prior action?

Yes

No (CHECK ONE)

Were the claims in this
action available to be
asserted in the prior action?

Yes

No (CHECK ONE)

G. Date and result (attach a

copy of the decision if

available):

E. REQlJEST FOR RELIEF

I request the following relief:
Immediate release as I have already served more than twice the
sentence justified by the convictions which survive Santos.

DECLARATION UNDER PENALTY OF PERJURY
I declare under penalty of perjury that I am the applicant in this action, that I have read
this application, and that the information in this application is true and correct. See 28
U.S.c. § 1746; 18 U.S.c. § 1621.

Executed on

(Rev. 9/02/04)

August 30 1 2008
(Date)

5

Case 1:08-cv-02005-ZLW Document 3 Filed 09/17/08 USDC Colorado Page 1 of 15

F J LED

UNITED STATES I)ISTRICT COURT
OENVER. COLORADO

Eugene H. Mathison
#07835-073 (Summit)
Federal Prison Camp
P. O. Box 5000
Florence, CO 81226-5000

SEP 1 72008

'08-CV~02()05
GREGORY C. LANGHAM

CLERK

UNITED STATES DISTRICT COURT

DISTRICT OF COLORADO

EUGENE H. MATHI SON I Petitioner,

Case No.

v

MEMORANDUM OF LAW IN SUPPORT OF §
2241 PETITION

RON WILEY , ,Warden, Respondent.

-----------------------­

COMES NOW, Petitioner (hereinafter referred to variously as "I,ll ll me/ " "my/ll
"Petitioner, II and/or "Mathison") appear,in g pro sel who respectfully ~~~IWD
Memorandum of Law before this Honorable Court. *
JURISDICTION TO CONSIDER PETITION

UNITED STATES DISTRICT COURT
nEiVVER, COLORADO

SEP -5 2008

Title 28 USC § 2255(e) states:

GREGORY C. LANGHAM

"An application for a writ of habeas corpus in behalf of a prisoner CLERK
who is authorized to apply for relief by motion pursuant'1:o Enls ~eti~-----­
shall not be entertained if it appears that the applicant has failed to ap­
ply for relief, by motion, to the court which sentenced him, or that such
court has denied him relief, unless it also appears that the remedy by motion
is inadeq~ate or ineffective to test the legality of his detention."
The 10th Circuit Court of Appeals has interpreted this to bar. except "in
extremely limited circumstances," (Caravelho v Pugh. 177 F3d 1177. 1178 (10th Cir
1999)}, the use of a § 2241 petition used to "determin [eJ the validity of a judg­
ment/" adding that I\§ 2241 'is not an additional, alternative, or supplemental
remedy I to the relief afforded by motion in the sentencing court under § 2255. I ..
Williams v United States I 323 F.2d 672, 673 (10th Cir.1963)." (Id.) The Court there
cited both Triestman v United States, 124 F3d 361, 276 (2nd Cir 1997) and

~

Dorsainvil, 119 F3d 245 1 251 (3rd Cir 1997), in support of the fact that § 2241
was not authorized as an end run around AEDPA's limitation on second or succes­
sive motionsl which require CGA approval.
I have filed a prior § 2255 motion in the instant case. (Mathison v United
States, Case No. 00-4055 (D.S.D.)) However, lithe sentencing court refuse[d] to
consider the § 2255 altogether." (Caravelho, 177 F3d at 1178 (10th Cir 1999»

This

* I respectfully pray the Court applies Haines v Kerner, 404 US 519 1 520-21, to
my pro se petition. The court; is respectfully advised that the typewriters at the
FPC here in Florence do notl except for one of them, type in lO-point, nor do they,
any of them, double-space. I respectfully pray the Court will excuse the fact that
I must use 12 point and l~ spacing.
- 1 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09117108 USDC Colorado Page 2 of 15

is not the reason for asserting that § 2255 is inadequate or ineffective to test
the legality of my detention, however. It has been recognized that a "substantive
statutory holding lt which defines more precisely the meaning of words in the laws
Congress enacts changes that meaning to the date of enactment. (~, ~, United
States v Shelton, 848 ~2d 1485, 1489 (10th cir 1988) {Ita statute cannot 'mean one
thing prior to the Supreme Court's interpretation and something entirely differ­
ent afterwaros. ' [Strauss v United

States~1516

F.2d [980,] 983 [(7th Cir 1975)].")

This is very much like the case of Ratslaf v Uniteo States, 510 US --, 126
L Eo 20 615, where the Court helo tha t the term "wi 11 fu 1'1 was oefined as an ele­
ment the government needed to prove for conviction under 31 USC § 5322(a). In
Uniteo States v Dashney, 52 F3d 298, 299 (10th Cir 1995), the Court saio:
"Indeed, Ratslaf is 'a substantive non-constitutional decision concern­
ing the reach of a federal statute,' Shelton, 848 F.20 at 1489. Our retroac­
tivity analysis, thus, differs 'from the situation set forth in Teague-­
••• retroactive application of new rules of criminal procedure.' ••.
"What Ratslaf drd was articulate the substantive elements which the
government must prove to convict a person charged ~noer §§ 5322(a) ano
5324(3). That is, it explained what conduct is criminalizeo. This is a substan­
tive change in the law manoating retroactivity •••. [Emphasis aooed]
lISurel y, if a defendant's 'conviction and punishment are for an act
that the law does not make criminal, there can be no room for doubt that
such a circumstance "inherently results in a complete miscarriage of jus­
tice" and "presents exceptional circumstances" that justify collateral re­
lief unoer § 2255.' Davis, 417 U.S. at 346.1\ (Brackets deleted.)
Well, in the instant circumstances, post-AEDPA, and the restrictions on fil­
iUg second or successive § 2255 motion under § 2255(f) and 28 USC § 2244, it would
certainly appear that I am not "a prisoner who is authorized to apply for relief
pursuant to" § 2255. (28 USC § 2255(e) (emphasis aoded.) As with Ratslaf, arid also
with Bailey v United States, 516 US 137, so also with United States v Santos, 553
US --, 170 L Ed 2d 912/ 926, the Court made a "substantive statutory holding" which
has resulted in the illegality of my oetention for the past seven years with more
than six remaining. The Santos Court oefined the word "proceeds. II The plurality
decision, joined by Justice Stevens, said that "tproceeos l means 'profits' when
there is no legislative history to the contrary."
Just as many courts held that § 2255 was "inaoequate or ineffective" to chal­
lenge erroneous 18 USC § 924(c) "use" convictions following Bailey, this Court
must hold that § 2255 is inadequate or ineffective to test the legality of my de­
tention for the next six ana a half years, else this "defenoant['.s] conviction
and punishment are for an act that the law does not make criminal ••• [and] there
can be no room for doubt that such a circumstance 'inherently results in a com­
plete miscarriage of justice' and Ipresents exceptional circumstances' that justi­
fy collateral relief." (Dashney, 52 F3d at 299) But, I'm not "authorized" to ap­
- 2 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09/17/08 USDC Colorado Page 3 of 15

ply for relief by motion under § 2255. Hence, subject to the same tests as set
forth in Bousley v United States, 523 US 614, 6231 relief via habeas corpus must
be provided:
"Petitionerls claim may still be reviewed in this collateral proceed­
ing if he can establish that the constitutional error in his plea colloquy
'has probably resulted in the conviction ot one who is actually innocent.'
Murray v Carrierl supra, [477 US] at 496 •••• To establish innocence, pe­
titioner must demonstrate that, ftlin light of all the evidence I II, ., it is
more likely than not that no reasonable juror would have convicted him.'
Schlup v Delo, 513 US 298, 327-328."
In Bailey v United States, 516 US 137, 144-145, the Court said:
(tWe start, as we must, with the language of the statute•••• The word
'use' in the statute must be given its 'ordinary or natural' meaning, a mean­
ing variously defined as 'to convert to one's service,' 'to employ,' 'to
avail oneself of,' and ItO. carry out a purpose or action by means of.' •••
nLooking past the word 'use' i tsel it we read § 924 (c) (l) wi th the as­
sumption that Congress intended each of its terms to have meaning. 'Judges
should hesitate to treat as surplusage statutory terms in any setting
,
Ratslaf v United States, 510 US 135, 140-141." (Brackets omitted.)
Applying these principles to Congress' use in § 2255(e) of the word "autho­
rized ," one cannot escape that Congress meant something by that word. The word
"authorize" is defined as:
nTo empower~ to give a right or authority to act. To endow with au­
thorityor effective legal power, warrant or right •••• To permit a thing
to be done in the future. It has a mandatory effect or meaning, implying
a direction to act.
II 'Authorized'
is sometimes construed as equivalent to 'permitted':
or 'directed', or to similar mandatory language. Possessed of authority;
that iSI possessed of legal or rightful power, the synonym of which is 'com­
petency."1 ("Black's Law Dictionarylt)
"Webster's II Dictionary" defines it as "To give authority or power to. 2.
To approve or permit. II Hence, what is it that gives "authority," or grants "power
to" "apply for relief by motion pursuant to this [§ 2255} section"? Section 2255
includes numerous limits to a prisoner's authority to apply for relief via motion
under that statute. (1) The prisoner must be in custody. (2) The grounds must be
either that "the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction " ' 1 or that the
sentence was in excess of the maximum authorized by law " . 1 " etc. (§ 2255(a))
There is a limitation to filing. Section 2255(f) lists four starting points tor
that one-year limitation. (§ 2255(f) Subsection (h) removes authority to file
a second or successive motion without COA approval pursuant to 28 USC ~ 2244.
Giving the word Uauthorized" its natural or usual meaning, could one possibly say
that I would be "a.uthorized" to apply for relief following Santos via ~ 22551 No!
- 3 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09117/08 USDC Colorado Page 4 of 15

The courts often focus only on the last part of § 2255(e), that § 2255 must
be "inadequate or ineffective to test the legality of his detention." I've yet

to see any decision in this Court or any other which doesn't ignore the first part
of that paragraph with respect to "authorized to apply." In Wofford v Scott, 177
F3d 1236, 1240-41.(llth Cir 1999), that court dealt with the use of § 2241 after
a prisoner was no longer "authorized to apply for relief by motion pursuant" to
§ 2255. They reviewed the history of the bill, going back to "S.Rep_ No. 1526, 80th
Cong., 2nd Sess., at 2 (1948)." Then they noted the change in the final bill as
set forth in the IIrevision of the Judicial Code ••. embodied in H. R. 3214." They
noted that there was a difference from the "practicable" wording in S. 20, then
observed: "Unfortunately, we have found nothing in the legislative history explain­
ing why the relevant languCige was changed or what the new language means." (Id.,
at 1241, emphasis aaded.) After considering all the pros and cons, however, they
adopted the Seventh Circuit's aecision in Davenport:
"We think the Seventh Circuit'S Davenport approach is better reason­
ed than those of other circuits, and its rule has the advantage of being
specific. We adopt it insofar as it comports with the following holding:
The savings clause of § 2255 applies to a claim when: 1) that claim is based
upon: ,a retroactivelYi.. i3pplitable Supreme Court decison: 2) the holding of
that Supreme Court decision establishes the petitioner was convicted for
a nonexistant offense: ano, 3) circuit law squarely foreclosed such a claim
at the time it otherwise should have been raised in the petitioner's trial,
appeal or first § 2255 motion."
Clearly, § 2255 does not "authorize[] [me J to apply for relief pursuant to
[that] section." Hence, it

presumed-giving Congress' choice of the word in

the statute--that I have the right to apply for relief via habeas corpus. But,
even beyond this, ~ 2255 is obviously "inadequate or ineffective to test the le­
gality of (my] detention" because of Congress' requirement in § 2244 that a second
or successive petition needs COA approval and its jurisdiction to grant approval
is extremely limited. Substantive statutory holdings--which by their nature are
"mandat[orily] retroactiv[e] I " (Dashney, 52 F3Cl at 299 (10th Cir;"1995) )-cannot
be raised in a § 2255 , even in the face of "a complete miscarriage of justice."
(Id. )
In Davis v United States, 417 US 333, 346 1 the Court observed:
"This is not to say,· however, that every asserted error of law can
be raised on a § 2255 motion •••• We suggested that the appropriate inquiry
was whether the claimed error of law was 'a fundamental defect. which in­
herently results in a complete miscarriage of justice,' and whether fit pre­
sents exceptional circumstances where the need for a remedy afforded by the
writ of habeas corpus is apparent.' [Hill v United States, 368 US] at 428.
(Brackets and ellipsis deleted.)
II

- 4 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09/17/08 USDC Colorado Page 5 of 15

In the back of 41 L Ed 2d, at 1207, under "Construction-28 USCS § 2255,'1
the Court noted that lI[t]he Supreme Court said that 28 USCS § 2255 does not cover
the entire field of remedies •••• [and that] § 2255 was enacted to meet practical
difficulties in the administration of federal habeas corpus jurisdiction; and that
there was no purpose in enacting 28 uses , 2255 to impinge upon prisoners' rights
of collateral attack upon their convictions.- (Emphasis added) There can be no
serious question that forcing me to spend an additional six and one-half years
for a crime I did not commit-on tgp of the seven additional years I have already
served-would be a "fundamental miscarriage of justice" of the highest degree. Sec­
tion 2255 is simply not configured to deal with the nature of a subsequent "sub­
stantive statutory holding" which makes the offense one was charged and convicted
on invalid. I am not 'Iauthorized to apply for relief by motion pursuant toll § 2255.
It is not up to the task of providing me the relief to which, following santos,
I am entitled. No convoluted definition of the words "inadequate" or "ineffective"
can circumvent the grant of relief to me if I meet the test the Bousley Court set for
proving actual, factual and legal innocence. Therefore, it is my contention that
I have met the tests for this Court to hold that § 2255 is neither 'adequate' nor
'effective' lito test the legality of [my] detention. II Nor am I authorized to apply
for relief via § 2255, hence, I am not precluded from applying for relief via ha­
beas corpus. This Court has the jurisdiction pursuant to 28 USC §§ 2241 and 2243
to adjudicate my petition and grant me the requested relief. I would urge that
this Honorable Court do as the Wofford court did in adopting the three-prong test
in Davenport for deciding whether or not to allow access to
circumstances set forth below.

§ 2241 under these

In Wofford v Scott, 177 F3d at 1240 (11th Cir 1999), that court noted that
even though they understood the terms "inadequate" and "ineffective" as an in­
dication that lithe new language ' 0 ' is broader than the old 'practicable' problems
language," lithe question is not free from doubt. In Sustache-Rivera v United
States I 221 F3d 8, 16 (lat Cir 2000), that court observed that "Congress did not
speak to this issue[-that of II w
hether § 2255's use of the terms 'inadequate or
II

ineffective' \I justifies use of § 2241 habeas corpus-], and there is little case­
law on point. 1I In Reyes-Requena v United States, 243 F3d 893, 902 (5th Cir 2001),
that court said that lithe Supreme Court has not provided much guidance as to the
factors that must be satisfied for a petitioner to file under habeas corpus pro­
visions such as § 2241."
Well, that may be true, however, they did recently urge this upon the courts:
"This Court has interpreted that congressional silence-along with the statute's
command to dispose of habeas petitions 'as law and justice require,' 28 U.S.C.
- 5 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09/17108 USDC Colorado Page 6 of 15

§ 2243--as an authorization to adjust the scope of the writ in accordance with

equitable and prudential considerations." (Danforth v Minnesota, 552 US - , - ,
169 L Ed 2d 859, 870) Would that not strongly suggest that this Honorable Court
follow the long line of decisions underscoring the value of habeas corpus in cor­
recting II fundamental miscarriages of justice"?
In Fay v Noia, 372 US 391, 399-400, the Court had this to say about habeas
corpus:
"We do well to bear in mind the extraordinary prestige of the Great
Writl habeas corpus ad subjicieaautl'lUl. in Anglo-American jurisprudence: I the
most celebrated writ in the English Law. I 3 Blackstone Commentaries 129.
It is a writ antecedent to statute, and throwing its root deep into the
genius of our common law. It is perhaps the most important writ known to
the constitutional law of England, affording as it does a 6wift and imper­
ative remedy in all cases of illegal restraint of oonfinement~ It is of
immemorial antiquity, an instance of its use occurring in the thirty-third
year of Edward 1. 1 Secretary of State for Home Affairs v O'Brien, 1922AC
603, 609 (HL). Received into our own law in the colonial period, given ex­
plicit recognition in the Federal Constitution, Art I, ~ 9, cl. 21 incor­
porated in the first grant of federal court jurisdiction, Act of September
24, 1789, c 20, § 14, 1 Stat 81 , 82, habeas corpus was early confirmed by
Chief Justice John Marshall to be 'a great constitutional privilege. I Ex
Parte Bollman and Swartwout (US) 4 Cranch 75, 95, 2 L Ed 554 , 561. OnlY­
two terms ago this Court had occasion to reaffirm the high place of the
writ in our jurisprudence: 'We repeat what has been so truly said of the
federal writ t "there is no higher duty than to maintain it unimpaired, III
Bowen v yohnston, 306 US 19, 26, ••• and unsuspended, save in cases speci­
fied In our Constitution." (Emphasis added)
In Dorsainvil, 119 F3d at 248 (3rd Cir 1997), that court said:
"[He] argues that if his claim that he has been convicted and im­
prisoned for conduct that is not criminal cannot be heard by the district
court, then § 2255 as amended by the AEDPA is unconstitutional as a vio­
lation of the Due process Clause of the Fifth Amendment or the Suspension
Clause of Article I, section 9 of the Constitution. Were no other avenue
of judicial review available for a party who claims that s/he is factually
or legally innocent as a result of a previously unavailable statutory in­
terpretation, we would be faced with a thorny constitutional isssue••••
We need not consider the litany of potential alternatives, because we con­
clude that, under narrow circumstances I a petitioner in Dorsainvil's uncom­
mon situation may resort to the writ of habeas corpus under 28 U.S.C. § 2241."
(Emphasis added.)
The Dorsainvil court appears to have done just as the Supreme Court urged

in Danforth, they Uadjust(ed] the scope of the writ in accordance with

equitable and prudential considerations." They followed "the statute's com­

~ to dispose of habeas petitions I as law and justice require,' 28 U.S.C.

§ 2243." This Honorable Court should do no less for I am in exactly the

same "uncommon situation" as was Dorsainvi1.

- 6 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09/17/08 USDC Colorado Page 7 of 15

SANTOS INVALIDATED PETITIONER'S CONVICTION ONDER MONEY LAUNDERING
The legal basis for Petitioner's claim that he is being detained in viola­
tion of the law is set in United States v Santos, 553 US --,
170 L Ed 2d
912. The specific findings whicb invalidate my conviction and sentence for'vio­
--I

lation of 18 USC §. 1956(a)(1 HAHi) and § 1956(a}( 1) (8)(i) include the following:
. liThe federal money-laundering statute does not define 'proceeds.'
When a term is undefined, we give it its ordinary meaning. Asgrow Seed Co.
v Winterboer, 513 U.S. 179, 187 •••• 'Proceeds' can mean either 'receipts'
or 'profits.' Both meanings are accepted, and have long been accepted, :in
ordinary usage. See .~I 12 Oxford English Dictionary 544 (2nd ed. 1989);
Random House Dictionary of the English Language 1542 (2nd ed. 1987); Web­
ster's New International Dictionary 1972 (2nd ed. 1957) (hereinafter Web­
ster's 2d). The government contends that dictionaries generally prefer the
'receipts' oefinition over the 'profits' definition, but any preference
is too slight for~us to conclude that 'receipts' is the primary meaning
of I proceeds. '
"'ProceeOs,' moreover, has not acquired a common meaning in the pro­
visions of the Federal Criminal code. Most leave the term unoefined. See,
~, 18 U.S.C. § 1963: 21 U.S.C. § 853. Recognizing the word's inherent
ambiguity, Congress has defined 'proceeds' in various criminal provisions,
but sometimes has defined it to mean 'receipts' ana sometimes 'profits.'
Compare 18 U.S.C. ~ 2339C(e) (3) (2000 ed~, SUppa V) (receipts),. § 98l(a) (2)(A)
(200 ed.) (same), with § 98l(a)(2)(B) (profibs) •.••
[W]e consider 'proceeds' not in isolation but as it is used in the
federal money-laundering statute••.• The woro appears repeatedly throughout
the statute, but all of those appearances leave the ambiguity intact. Sec­
tion 1956{a) itself, for instance, makes sens~ unoer either definition:
one can engage in a financial transaction with either receipts or profits
of a crime; one can intend to promote the carrying on of a crime with ei­
ther its receipts or its profits; and one can try to conceal the nature,
location, etc., of either receipts or profits. The same is true of all the
other provisions of this legislation in which the term 'proceeds' is used.
'1l1ey make sense under either oefinition." (Id., 170 L Ed 2d at 918-919)
"Justice Frankfurter, writing for the Court in another case, said
the following: 'When Congress leaves to the Judiciary the task of imputing
to Congress an undeclared will, the ambiguity should be resolveO in favor
of lenity.' Bell v United States, 349 U.S. 81, 83 .•••
"If 'proceeds' means 'profits,' one could say that the statute is
aimed at the oistinctive danger that arises from leaving in criminal hands
the yield of a crime. A rational Congress could surely have decided that
the risk of leaveraging one criminal activity into the next poses a greater
threat to society than the mere payment of crime-related expenses and jus­
tifies the money-laundering statute's harsh penalties. lI (Id., 170 L Ed at
921)
lIWe think it appropriate to add a word concerning the stare decisis
effect of Justice Stevens' opinion. Since his vote is necessary to our
judgment, and since his opinion rests upon the narrower ground, the Court's
holding is limited accordingly ..•• But the narrowness of his ground con­
sists of finding that 'proceeds! means 'profits' when there is no legisla­
tive history to the ccntrary." (Id., 170 L Ed 20 at 926)
- 7 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09/17/08 USDC Colorado Page 8 of 15

In Santos, the.Court affirmed the Seventh Circuit's decision to vacate the
money-laundering convictions and sentences of both Santos and his co-defendant.
While the Santos Court did not address the provisions or attempt to define the
word "proceeds" in 18 USC § 1957, the same definition would obviously apply, as
"proceeds" is used in the statute. In 18 USC § 1957, under (f) definitions, the
statute says: "( 2) the term 'criminally der! ved property" means any property con­
stituting, or derived from, proceeds obtained from a criminal offense." Subsection
(a) of § 1957 says:
"Whoever, in any circumstances set forth in subsection (d), knowing­
ly engages or attempts to engage in a monetary transaction in criminally
deriv~ PrOperty that is of a value greater than $10,000 and is derived
from specified unlawful activity, shall be punished as provided in subsec­
(b).li (Subsection (d), referred to in (a) does not alter this term.)

tion·

»~~c;e,

the task is to prove that the alleged "attempt(] to conduct such
financial:trcmSaction which in fact involves the proceeds of specified unlawful
activf.ty~'€Af}(i.} with the intent to promote the carrying on of specified unlaw­
. ful a:etiVity; or (H) with intent to engage in a violation of section 7201 or
7t06/,';dfthe Internal Revenue Code of 1986 [26 USCS § 7201 or 7206] ~ or (B) know­
i~~l:,~hat:the transaction is designed in whole ot' part-(i)'toconceal or disguise
t'tte',~~ttlre, the location, the source, the owership, or the control of the proceeds
6fs~ifi.eQ unlawful activity; or (ii) to avoid a transaction reporting require­
mentunder State. or Federal law, shall be sentenced ••• ," must involve proof that

the "l?rOceeds" were "profits" from the specified unlawful activity. Failure to

prove, that beyond a reasonable doubt must resul t in a not guilty verdict.

" .,' _,

_;~,

•

.-

.,.1

r"aver that the convictions for money-laundering, both under 18 USC § 1956
andi~s subsections and under § 1957 and its subsections are invalid and void.
r rafsed·objection to the money-laundering convictions in my uncounseled direct

appeal. I called attention to the Sentencing Commission's Report to Congress:

"When the commission first drafted the sentencing guioe11nes, it as­
sumed the guidelines would be used in organized crime cases, and therefore
set the penalties very high. However, as soon as prosecutors figured out
that the penalties were much higher than those for other crimes, they began
to pursue money laundering charges in a broad array of cases. II (As quoted
from page 61 of CLR 1566)
The Eighth Circuit completely ignored all of my issues and caselaw on the
impropriety of money-laundering, never even mentioned the issue! (see United States
v Mathison, 157 F3d, 541 (8th Cir 1998») Yet, two months later they cQnsidered
that same Report in United states v Woods, 159 F3d 1132, 1134-36 (8th Cir 1998),
dismissing the charges or reducing the severity of the sentence pursuant to ~
v United States, 518 US 81. Noteworthy are comments from both the plurality
- 8 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09/17/08 USDC Colorado Page 9 of 15

and the dissenting oplnlon of Justice Breyer call attention to the very issue
I raised in my uncounseled direct appeal. (Note my § 2255 motion in 06-cv~4055,
pages 46-49 reciting cases and issues pertaining to the impropriety of money­
laundering charges in a case such as mine.) Justice Scalia's plurality opinion,
170 L Ed 2d at 922, states:
liThe Government suggests no explanation for why Congress would have
wanted a transaction that is a normal part of a crime it had duly consider­
ed and appropriately punished elsewhere in the Criminal Code to radically
increase the sentence for that crime. Interpreting 'proceeds' to mean 'pro­
fits' eliminates the merger problem .••• More generally, a criminal who en­
ters into a transaction paying the expenses of his illegal activity cannot
possibly violate the money-laundering statute, because by definition pro­
fits consist of what remains after expenses are paid."
Justice Breyer said much the same at 170

L

Ed 2d 529:

"Like the plurality, I doubt t.hat C;ongress intended the money launder­
ing statute automatically to cover financial transactions that constitute
an essential part of a different underlying crime ...•
IIIt is difficult to understand why Congress would have intended the
Government to possess this punishment-transforming power. Perhaps for this
reason, the Tenth Circuit has written that 'Congress aimed the crime of
money laundering at conduct that follows in time the underlying crime ra­
ther than to afford an alternative means of punishing the prior "specified
unlawful activity.'" United States v Edgmon I 952 F.2d 1206,1214 (1991).
And, in 1997 1 the United States Sentencing Commission told Congress that
it agreed with the Department of Justice that !money laundering cannot be
properly charged for "merged" tcansactions that are part of the underlying
crime. 111 •
This issue, presented in my uncounseled direct appeal and ignored by the
Eighth Circuit in its entirety--even though the attorney-prepared appeal briefs
of my three co-defendants adopted it as part of their own arguments--challenged
the very t~ing that the Sentencing commission Objected to, that the Department
of Justice agreed to, which Congress said it was concerned about, and which many
courts have observed calls for either invalidating money-laudering convictions
or reducing the sentence under Koon, and which both the plurality and dissenting
Justice Breyer agree on, is a travesty! In my case, this elevated my sentence,
under any application of the Sentencing Guidelines andlawt from five to twenty
yearsl Now, we all find out the whole thing is bogus because no attempt was made
to charge that the transactions were from profitsl no testimony was given that
the transactions were from profits and the Eighth Circuit was mute on the sub­
ject. (See Sentencing Transcript at 698 to approx 7501 . testimony of IRS SA James
Robertsoni § 2255 motion in OO-cv-4055, at 50-55.)
In Bousleythe Court, chough it was dealing with a § 2241 construed as a
§ 2255, admitted that such a decision as Bailey--and by extention, Santos--was
- 9 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09/17/08 USDC Colorado Page 10 of 15

not subject to the Teague retroactivity prohibition. {523 us at 621-621.) It is
noteworthy that although Jllstice Rehnquist cited Davis for the pro~sition that
"decisions of this Court holding that a substantive feceral criminal statute does
not reach certain conduct , •• [and those which] carry a significant risk that
a defendant stands convicted of 'an act that the law does not make criminal,'"
he said that Bausley's ucl()im is not Teague-barred." (Id., at 621) In other words,
it's.not just a question of whether the "conduct .•• [lies] 'beyond the ~wer
of the criminal law, "" that wasn't the question in Bailey. congress obviously
had the power to legislate against the "vsel! of a weapon in relation to another
crime. So too, it has the power to legislate and criminalize the use of profits
derived from specified unlawful activity to promote other crimes and further the
ones from which the profits are derived. But, like in Bailey, so also in SantOSI
it Was what Congress meant when it enacted the legislation. If it was presumed­
incorrectly· i\1. my ease, as it turned out-that all that was necessary for proving
that ~ 1956{a)(1)(A)(i) or (H) were violated is that "if the transaction is spe­
cified un~~wfulactivity at the beginning, then that could be charged as money
laundering,t'\ ('IT, 96-40048 (D.S. D. ), page 722, lines 19'..,.24) 1 then the conviction
is inva1i9/Not only was there not a single attempt made to show that there was
an illt.ent'to cotmnit money laundering-an essential element in both §§ 1956 and
1957-there was absolutely no attempt to demonstrate that the source of the. funds
fi:OID"which the transfer was made were "profits." Just like in Bailey, failure
to prove "use" equates to failure to prove "profits." The conviction on all money­
laundering counts is invalid, voidl
Absent the money laundering charges, I was proven---ignoring for the moment
the fact that the Government withheld a plethora of material, exculpatory' Brady
evidence-which would have destroyed the essential element of intent--guilty of
violations of 18 USC §§ 1341 and 1343, along with conspiracy to violate both.
Each of these statutes has a maximum penalty of five years. The U.S.S.G. in use
at the time, ~ 2Fl.l, prescribed a BOL of 6, plus 11 (subsection {b){l)(t) for
loss of between $8001000 and $1,499,999.99~ mine was alleged to be $1.31 million),
for a total BOt of 17. Authorized inhancements included (b)(2), 2 levels, (b)(6)(C),
2 levels. This brings the 801 to 21. In Criminal History Category II, that called
for a Guideline range of 41 to 51 months. I received 246 months! I've served just
under 12 years already, with about six and one-half yet to go with good conduct
credits. Presuming the highest Guideline range of 51 months, with good conduct
credits that equates to less than 45 months. That means that I have served already
more than seven years longer than my legitimate conviction would warrant! This
HOnorable Court can't reverse the past, but it can correct the future.
- 10 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09/17/08USDC Colorado Page 11 of 15

The Sousley Court specified that in order for one to challenge via collater­
al means a conviction based upon an obsolete understanding of what the .legislature 's
words meant, one must 1Idemonstrate that, 'If in light of all the evidence,"t 'it
is more likely than not that no reasonable juror would have convicted him.'
Schlup v Delo, 513 US 29B, 327-328
II
(Bousley, 523 US at 623) Hence, my task
is to make this fact evident.
Noteworthy is the wording of the Counts alleging money-laundering:
"COUNTS 32 THROUGH 37
"Between on or about the dates listed below, in the District of South
Dakota, defendant Eugene H. Mathison did knowingly and willfully conduct
and attempt to conduct a financial transaction affecting interstate com­
merce, to-wit, the transfer between accounts and the withdrawal by mone­
tary instrument, that is a check in the amount listed below, which involv­
ed the proceeds of specified unlawful activities, that is mail fraud in
violation of 18 Unit~d States Code Section 1341, (1) with the intent to
promote the carrying on of specified unlawful activity, to wit: mail fraud
in violation of 18 United States Code Section 1341, and (2) knowing that
the transactions were designed, in whole or in partl to conceal and dis­
guise the nature, location, source, ownership and control of the ~s
of that specified unlawful activity, and that while conducting and attempt­
ing to conduct such financial transaction, that is the monetary instru­
ments, checks, in the amounts set forth below: .•• repres.ented the ~s
of aome form of unlawful activity, all in violation of Title 18 Un ted
S'tates Code Sections 1956(a)(l)(A)(i) and 1956(a)(1)(B)(i)." (Emphasis
added)
"COUNTS 51 THROUGH 52
liOn or about the dates listed below, in the District of South 08-::··
kata and elsewhere, defendants and co-conspirators, Eugene H. Mathison,
Robert E. Holmes, Perry Gobel and Dean G. Chambers, did knowlingly engage
or attempt to engage in monetary trasactions, affecting interstate com­
merce/ in criminally aerived property [defined in § 1957(f)(2) as,:lI pro­
perty constituting, or derived from, proceeds obtained from a criminal
offense~'] of a value greater that $10,000.00, that is/ the deposit, with­
drawal, transfer, and exchange of monetary instrument and funds in the
amounts listed below, such property having been derived from specified
unlawful activities, that is mail fraud in violation of Title 18 United
States Code Section 1341 and wire fraud in violation of 18 United States
Code Section 1343 as charged in this Superseding Indictment, ••• all in
violation of Title 18 United States Code Section 1957.
UCOUNTS 53 THROUGH

59

"On or about the dates listed below, in the District of South Dak­
ota, defendants and co-conspirators, Eugene H. Mathison, Robert E. Holmes,
Perry Gobel and Dean G. Chambers, did knowingly and willfully conduct a
financial transaction affecting interstate commerce, to-wit, the withdraw­
al by a monetary instrument, that is a check in the amount listed belowJ
which involved the proceeds of specified unlawful activities, that is mail
fraud in violation of 18 United States Code Section 1341, (1) with the
intent to promote the carrying on of specified unlawful activity, to wit:

- 11 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09/17/08 USDC Colorado Page 12 of 15

mail fraud in violation of 18 United States Code Section 1341, and -<2.1
knowing that the transactions were designed, in whole or in part, to con­
ceal and disguise the nature, location, source, ownership and control of
the pcoceeds of that specified unlawful activity, and that while conduct­
ing and attempting to conduct such financial transaction, that is the mone­
tary instruments, checks, in the amounts set forth below: ••• represented
the proceeds of some form of unlawful activity, that is mail fraud, all
in violation of 18 United States Code Section 1956(a)(l)(A)(i) and 1956
(a)(l )(8)(i).
"COUNTS 60 THROUGH 61

"On or about the dates listed below, in the District of South Da­
kota, defendants and co-conspirators, Eugene H. Mathison, Robert E. Holmes,
Perry Gobel and Dean G. Chambers, did knowingly and willfully conduct a fi­
nancial transaction affecting interstate commerce, to-wit, the movement
of funds by wire, that is a wire transfer in the amount listed below, which
involved the proceeds of specified unlawful activities, that is mail fraud
in violation of 18 United States Code Section 1341, (1) with the intent
to pranote the carrying. ;on of specified unlawful activity, to wit: mail
fraud in violation of 18 United States Code Section 1341, and (2) knowing
that the .transactions were designeo, 1n whole or in part, to disguise the
nature, location, source, ownership and control of the proceeds of that
specified unlawful activity, and that while conducting and attempting to
conduct such financial transaction knew that the property involved in the
financial transaction, that is the wire transfers, in the amounts set forth
below: ••• represented the proceeds of some form of unlaWful actifity, that
is mail fraud, all in violation of 18 United States Code Section 1956(a}(1)­
(A)(i) and 1956(a)(1) (S){i).1t (Emphasis added)
In these 17 counts alleging money-laundering, the word "proceeds" appears
eight times, and the words "criminally derived property," defined as "proceeds,"
appears once. But, nowhere is there even the suggestion that these transfers
described originated from "profits" derived from the SUA-not once! In the tes­
timony of IRS SA James Robertson, the government agent-witness who testified
concerning how the Government supported its charges of money-laundering (TT at
pages approximately 698 to 750), his explanation to the jury as to all that was
necessary to support the charge of money-laundering was lIif the transaction is
specified unlawful activity at the beginning, then that could be charged as·'mon­
ey laundering"! (TT at page 722, lines 19-24)
Note in this connection what the I?lurality opinion states:
"The 'proceeds of specified unlawful activity' are the proceeds from
conduct sufficient to prove one predicate offense. Thus, to establish the
proceeds element under the 'profits' interpretation, the eactiVition needs
to show onl that a 8i Ie instance of specified unlawful act vit was
profitable aod gave rise to the money 1nvolved 0 a charged transact
And.the government, of course, can select the instances for which the pro­
fitability is clearest. 1I (Santos, 170 L Ed 2d at 924) (emphasis added.)
But, not even one instance of any attempt to demonstrate that the funds
alleged to have been transferred in violation of the money-laundering statute
- 12 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09117/08 USDC Colorado Page 13 of 15

were derived from IIprofits" was asserted, neither in the Indictment, nor by. tbe
Government's witnessesl nor by the AOSAs in opening statements or closing argu­
ments, nor at sentencing-not even one IIsing1e instance of specified unlawful
activity was [alleged] to be profitable'!! (Santos l 170 L ed 2d at 924)
Absent this the Government failed lito establish the proceeds element under
the 'profits' interpretation.uUnguestionablYI "'''in light of all the evidence,"'
'it is more likely than not that no reasonable juror would have 'convicted [me].n
(Bousley, 523 US at 623) In Schlup v Delo, 513 US 298, 320-323, the Court said:
"Justice Powell's plurality opinion [in Kuhlmann v Wilson, 477 US
436, 452] expressly noted that there are 'limited circumstances under which
the interests of the prisoner ••. outweigh the countervailing interests
served by according finality to the prior judgment.' •••
"In subsequent cases, we have consistently reaffirmed the existance
and importance of the exception tor fundamental miscarriages of justice••••
"To ensure that the fundamental miscarriage of justice exception
would remain 'rare' and would only be applied in the 'extraordinary case,'
while at the same time ensuring thgt the exception would extend relief
to those who were truly deserving, this Court explicitly tied the mis­
carriage of justice exception to the petitioner's innocence. In Kuhlmann/
for exampler Justice Powell concluded that a prisoner retains an overriding
'interest in obtaining his release from custody if he is innocent of the
charge for which he was incarcerated •••• ' 477 US/ at 452 ••••
"Explicity tying the miscardage of justice exception to innocence
thus accomodates both the systemic interests in finalitYI comity, and con­
servation of judicial resources, and the overriding individual interest
in doing justice in the 'extraordinary case,' Carrier, 477 US, at 496 ••••
"Then, .in Sawyer, the Court examined the miscarriage of justice ex­
ception as applied to a petitioner who claimed he was 'actually innocent
of the death penalty.' In that opinion, the Court struggled to define 'ac­
tual innocence' in the context of a petitioner's claim that his death sen­
tence was inappropriate. The Court concluded that such actual innocence
'must focus on those elements which render a defendant eligible for the
death penalty.' 505 US, at 347 ••.• However, in addition to defining what
it means to be 'innocent' ~.of the death penalty, the Court departed from
Carrier's use ot 'pl:lcbably" and adopted a more exacting standard of proof
to govern these claims: The Court held that a habeas petitioner 'must show
by clear and convincing evidence that but for a constitutional error, no
reasonable juror would have found the petitioner eligible for the death
penalty.' 505 US, at 336 •••• "
The Schlup Court's decision above is still good law, even post-AEDPA. Among the
more recent decisions based upon Schlup are those of Bousley, 523 us at 623,
and Dretke v Baley, 54l,U8 386, 393. (See, alsol SEears v Mullin, 343 F3d 1215,
1255, n. 33) (flhe has not shown he is actually innocent of first-degree murder
as that exception would requirer See Schlup v belo, 513 U.S. 298, 321"); Phillips
v Ferguson, 182 F3d 769, 774 (lOth Cir 1999) C"we conclude that Phillips has
not presented us with evidence of actual innocence establishing that 'it is more
likely than not that no reasonable juror would have convicted him ~.~. Schlug ••• f1)
- 13 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09/17/08 USDC Colorado Page 14 of 15

If the Court finds that the Davenport standard, as adopted by the Wofford
court is appropriate, then the three factors which weigh on this Court's deci­
sion are these; "(l) [T]hat the claim is based upon a retroactively applicable
Supreme Court decision •.•• It May the Court please note that this does not re­
quire that the Supreme Court makes the decision retroactive, just that it be
retroactively applicable. The case of Dashney, 52 F3d at 299 (10th Cir 1995)
says that "a substantive change in the law [is] mandat(.oria1lvretroactiv[e]."
(Emphasis added) (See~, United States v Barnhardt l 93 F3d 706, 709 (lOth
Cir 1996) ("substantive changes in the law ••• apply retroactively. II ) Hence both
the Ratslaf decision and the Bailey decisions of the Supreme Court explaining
what the laws required the government to prove, have been held to be retroac­
tive. The Santos decision is no less retroactively applicable.
n(2) [T]he holding of the Supreme Court decision establishes that the pe­
titioner was,convicted for a nonexistant offense •••• " (Wofford, 177 F30 at 1244)
When the Santos Court affirmed the Senventh Circuit's decision, they held that
lithe Government will have to prove the profitability." (Id., 170 L EO 2d at 924)
As the facts within amply demonstrate, that never happened in the instant case.
It

(3) [C]ircuit la;..r squarely foreclosed such a claim at the time it other­

wise should have been raised in the petitioner's trial, appeal, or first § 2255
motion." In this respect, I will cite two recent cases, one in the Tenth Circuit
and the other in the Eighth Circuit. First! in this Circuit, United States v
Lawrence, 405 F3d 888 1 900-901 (lOth Cir 2005):
"Lawrence asserts that the government only showed he used money he
received from Medicare to pay ordinary business costs •..• Using the pro­
ceeds from the fraudulent scheme in this manner is sufficient to carry
on the fraud for purposes of the money laundering charges at issue. 1I
In United States v eala, 489 F3d 334, 342 (8th Cir 2007) they said:
"Counts 5...12 charged that defendants conducted specific financial
transactions using the proceeds of an illegal gambling business for the
purpose of promoting that business and concealing their unlawful activity,
all in violation of the federal money laundering statutes, 18 U.S.C. ~~
1956{a)(l)(A)(i) and (B){i) •••• A money laundering charge requires proof
of a financial transaction involving the proceeds of 'specified unlawful
activity~" •••• The government persuaded the district court that the en­
tire $99 million of account wagers were the proceeds of RSI's illegal
gambling business."
Indeed, (3) is satisfied as to my knowledge no court except the Seventh Circuit
in the Santos case decided that '" proceeds I • • • mean [s] net income, as opposed
to gross income." (Santos v united states, 461 F3d 886, 887-888 (7th Cir 2006)
{citing united states v Scialabba, 282 [,'30 475 (7th Cir 2002).) However, even
- 14 ­

Case 1:08-cv-02005-ZLW Document 3 Filed 09/17/08 USDC Colorado Page 15 of 15

these decisions were long after I was tried, convicted, appealed and filed my
§ 2255. (which "the sentencing court refuse[d] to consider

altogether."-~

velho, 177 F3d at 1178 (10th Cir 1999)) Furthermore, the investment group part­
nership involved, which the government alleged was a Ponzi scheme, had no net
profits. If it did, I would perhaps--were I really operating a scam---have used
the profits to pay my withholding taxes before I was charged (in 96-cr-90l22
(O.S.O)) ·'With tax evasion. Listening to the lies the Government presented, it
is preposterous to believe I wouldn't have syphoned off $51,000 to prevent being
found guilty of tax evasion out of the $1.31 million I allegedly defrauded. No
reasonable juror could have found that I used the net profits of the alleged
Ponzi scheme to make transfers for the purpose of carrying on the SUA alleged!
It never happened! There

neverwe~e

any net profits.

Having met all of the tests necessary for this Court to proceed to do as
the Danforth Court recently urged, that is to "adjust the scope of the writ in
accordance with equitable and prudential considerations," and follow lithe sta­
tute's command to dispose of [my) habeas petition[l 'as law and justice require,'
28 U.S.C. ~ 2243 t 'f* I respectfully pray the Court will order the Respondent to
show cause why the writ should not be issued and I be freed immediately, hav­
ing already served approximately eight years (99 months) longer than the Guide­
lines prescribed for the underlying alleged offenses of violations of 18 USC
§~

371, 1341, and 1343. (* Danforth, 169 L Ed 2d at 870) (emphasis added.)
WHEREPORE, I respectfully pray the Court will grant the relief requested

and apply the command in 28 USC § 2243

1

followed by an issuance of the writ with

all due expediency, and for such other and further relief as the Court deems
just and equitable.
By executing this petition this 3:0th day of August, 200S, I declare that
the statements herein are true under penalty of perjury pursuant to 28 USC

- 15 ­

~

1746.