New Appeal, February 2012

LEGAL QUESTION
What is the proper response to correct a sentence based upon materially false information and the absence of this constitutional defect in a previous inchoate attorney submitted post conviction claim? Consideration of the origin and cause of this manifest deficiency will answer this question.
Does the district court labor under such misinformation and systemic delusion regarding all prior “law of the case,” that it should recuse from further adjudication?

ARGUMENT

Issue And Grounds For The Petition
Petitioner/Defendant is petitioning the court for a hearing to properly determine fact for sentencing in a murder 2°. He shows in this petition that he is sentenced upon materially false information, this is a deviation of constitutional magnitude, no court has reviewed this defect, and this defect warrants post conviction correction. This constitutional defect results from a breakdown in the entire process of adjudication in the sentencing court, vis-à-vis fraud upon and dysfunction of that court. Proper correction of a defect of this magnitude is a reversal of conviction.

Procedural History
Petitioner was sentenced upon the materially false information on November 8, 2001, and pursued an appeal on other matters with appellate public defender representation. He then pursued timely 35(b) and (c) post conviction reviews with private counsel (Barrett Weisz, CO Bar #27601). Mr. Weisz appealed a denial of an evidentiary hearing from the eighth district court. Mr. Pecci proceeded pro-se to file certiorari to the state supreme court and through the federal courts, on a habeas corpus claim premised upon Mr. Weisz’s 35(c) petition. During this time Mr. Pecci filed an auxiliary 35 (c) petition to salvage the neglected aspect at issue here, (procedural due process is violated when the facts or assumptions on which a sentence is based are materially false (see Annotations; Townsend v. Burke et. seq., above)) and properly integrate it into the habeas claim. The state misconstrued this as redundant and the habeas proceeded incomplete. The U.S. Supreme Court denied certiorari on October 3, 2011.

Jurisdiction
Citations of Colo, Rules of Criminal Procedure, Rules 35 (a) and (c) (see Annotations, above) describe the jurisdiction for reviews of a defect of constitutional magnitude, that has hitherto not been addressed. (People v. Hubbard, 519 P.2d 945 (Colo. Sup. Ct., 1974)), addresses the need to have one comprehensive post conviction claim, so that there be only one cycle of post conviction review (When should any thing before a court not be complete and comprehensive?) It then acknowledges the failure of this ideal and the need to address any constitutional claims “not previously resolved”; upon a showing of justifiable excuse. (also People v. Naranjo, 738 P.2d 407) The pro-se 35(c) explained that post conviction counsel was negligent in excluding this constitutional defect from his 35(c) petition, and that it was: part and parcel of, integral to and proof of; a comprehensive post conviction claim. Thus a severely incomplete claim had been previously submitted.

Any failure to assert this half of the claim lies with ineffective post conviction counsel. Petitioner presented pseudo-brief to Mr. Weisz which detailed plea counsel’s false statements at sentencing and the use of that materially false information as basis for sentence. Regarding only the materially false premise, and neglecting the origin as perjury by counsel, would alone inspire the court to correct its errors sua sponte — where “manifest injustice would result,” People v. Roybal, 672 P.2d at 1005. This precedent, while specifically addressing the correction of an illegal sentence, is not excluded from broader application, to correct other post conviction issues of constitutional magnitude.

The law of the case doctrine, as discussed in People v. Tolbert (216 P.3d 1, 5 (2007)) and Clark v. State Farm Mut. Auto. Ins. Co. (590 F. 3d 1134,1140 (10th Circuit, 2009)), asserts that what may have been decided in the case at issue should not he disturbed barring anomalous circumstances that would constitute excuse. Dobbs v. Anthem Blue Cross and Blue Shield (600 F.3d 1275, 1281 (10” Cir., 2010)) cites three such “narrow circumstances.” The case at issue is so defective that the law of the case doctrine does not apply for two of the three reasons: 1) when evidence at subsequent trial is substantially different and 2) when the decision was clearly erroneous and would work a manifest injustice. As stated in this petition; post conviction counsel excluded any mention of the constitutional issues herein that are integral to what would have been a comprehensive post conviction claim.

Mr. Weisz’s exclusion of fully half of the constitutional deficiencies that would have made a comprehensive post conviction claim caused the two sentencing defects addressed in U.S. v. Powell (see below) to fester.

[U.S. v. Powcll (487 F.2d 325,329 (4th Cir., 1973))] “These two defects in the sentencing procedure — failure of the record to support material factors on which the severity of the punishment rested, and Powell’s lack of an opportunity to explain or refute the derogatory information on which the judge relied— denied Powell due process of law.”

That Mr. Weisz: 1) neglected this proof and result of the overall constitutional deficiency, which 2) denied the petitioner opportunity to refute the derogatory information on which the Judge relied, constitutes excuse multiply, as expected by Naranjo and Powell.

A court also reserves jurisdiction to correct deceptions against the court, The origin of the materially false premises for sentence are false statements made by trial counsel, perpetuated by the prosecutor and utilized by the judge. (FN1) This deception of court gives that district court inherent, authority to correct all deception against it. (U.S. v. Parcel of Property, 337 F.3d 225,236 (2nd Cir., 2003)).

No excuse is required for a court to review this petition as a 35(a).

Systemic Bias
Petitioner will show that plea counsel behaved as an adversary to him (her client), so that even the appearance of fairness was impossible and that the effectiveness of any judicial process was purely cosmetic. Any civil official that may read this starts from the premise that the judicial system is effective and fair. When effectiveness is defined as the appearance of precise prosecution and conviction; with due process consideration of evidence and correct correlation of the behavior of the accused to the people’s statutes; then, minimally, the appearance of effectiveness is achieved. Herein, even this minimal appearance was lost.

The concept of fairness involves a discussion of equanimity well beyond the scope of this petition. Let us suffice that in an adversarial system, of which an effective court is, the adverse parties will never mutually agree they achieved fairness. This leaves room to acknowledge a lack of fairness.

If the reader of this brief — even employing the most jaundiced eye — makes logical evaluations of the injustice described, a conclusion against effectiveness and fairness is unavoidable. Yet, this does not relieve the reader of their responsibility to suspend their biases to properly evaluate the victimization of being sentenced upon materially false information by direct cause of counsel.

Factual History
Ten days after the offense at issue — homicide on April 01, 2001 — counsel asked petitioner to recount the event. He informed her of the since suppressed facts that:
his wife challenged him to kill her, that he never menaced nor spoke with nor addressed her boyfriend in any manner, that the boyfriend had established head to toe full body contact to elicit the warning shot and that he was pushing in “bulldozing” fashion with his chest when the fatal shot occurred. Also that petitioner informed others and brought them from inside to the external scene: and numerous other aspects that mitigate the maximally demonizing story prosecutors prefer. (see PSI report). Petitioner then heard from his parents (specifically father) that counsel had contacted them to report that she could deploy these facts as affirmative defenses. This was the party line until sentencing. Counsel then presented fabricated circumstances that were totally inconsistent with the facts she had promised to defend him on. This pandered to the prosecutor’s cause, so he cosigned her lie by disparaging the correct statements of the PSI report. Their concurrence coincided with the maximally demonizing scenario the judge wanted to believe and supported a maximum sentence.

Petitioner and his parents were appalled at counsel’s treachery, the prosecutor’s complicity, and the Judges willful ignorance. All others seemed delighted that an expedient end was served by duplicitous means. Veracity was irrelevant.

Civil officials, as stated above, develop cognitive dissonance when the effectiveness and fairness of their civil institutions — the milieu in which their career is based — operates so obversely. For perspective please entertain this analogy: envision the materially false representations defense counsel made as a large defecation in the middle of the court, in this new $100 million justice center in the Beverly Hills of the Rocky Mountains. In a top floor court room, during sentencing proceeding; sits a 1arge pile of shit. The defendant, his family and his friends cannot take their eyes off of it. They are aghast that defense counsel has dropped such a foul and incongruous item in the middle of a judicial court.
How can everyone else employ such willful ignorance to pretend they do not smell it?
The prosecutor; by declaring the known true circumstances false; casually shovels sand from under his table to hide the sight of the metaphor for deceit and treachery, The judge then feigns indifference to the septic stench of the court room and declares all ambient scent to be that of fresh roses dripping morning dew; which warrants a maximum sentence.

The reader may still be adverse to the petitioners above perspective. An ascetic legal analysis will verify the metaphor.

Lying to the court is perjury. Defense counsel committed this offense. The prosecutor chose to be complicit in this offense. The judge, in turn, chose to be complicit. This joint complicity to give the appearance of due process constitutes a conspiracy.

First, to consider perjury: U.S. v. Reed (see Annotations) states that a reversal is appropriate where: 1) a falsity becomes known, 2) correction of the falsity would produce a different result, and 3) the defendant was taken by surprise. Petitioner has explained above that this did occur at sentencing. That this precedent expects a reversal for just witness perjury instigates the question: What is the extension of this precedent for attorney perjury?

This is called fraud against the court, and applies to the prosecutor and judge (FN#2) for their complicity in the fraud.

When a party commits a fraud that does or attempts to defile the court itself so that the judicial machinery cannot perform in the usual manner its impartial task of judging cases that are presented for adjudication, the district court is empowered to take action sua sponte to expunge the judgment; such power lies inherently in the district court’s discretion. U.S. v. Parcel of Property, 337 F.3d 225, 236 (2nd Cir., 2003)
[underlining added]

Petitioner asserts that all three officials functioned in unity to prevent the judicial machinery from performing any proper adjudication. (see discussion above re: appearance of effectiveness and below re: a judge’s comportment to establish such 1ack of substantive effectiveness). Thus, all results from the court performing in this derelict mode are ipso facto invalid.

The reader may not want to accept that this fraud implicates the whole official body of the Court, the defense counsel, the people’s counsel and the judge.

A review of criminal behavior encompassed by RICO (FN#3) statutes explicates what this means. A corrupt organization is one that influences, obstructs, or impedes or endeavors to influence, obstruct, or impede, the due administration of justice.” (18 U.S.C.A, §1503 — Obstruction of Justice). The due administration of justice contemplates a court in which there is no “misbehavior of any officers in their official transactions.” (18 U.S.C.A. §402 — Contempts Constituting Crimes). The pattern of perpetuating known false information used as grounds for conviction and sentencing in criminal proceedings constitutes this described comportment.

Pattern of Behavior
Applying RICO terminology to a court could be an over-reach, if the pattern was not already identified and continuing. The marquee case has been the reversal of People v. Masters (case # 98CR1 149), which established extreme evidentiary and procedural malfeasance by Terrance Gilmore (enumerated below) that he carried forth into his oath as a judge.

U.S. Dist. of Colo; case #08-CV-2278: Complaint and Jury Demand lists the following culpable behaviors that were not refutted nor disproved. All are imputed to Terance Gilmore as “supervisory D.A. defendant” of the Colo. Eighth District.
1) Manufacture of probable cause.
2) Malicious prosecution.
3) Withholding evidence.
4) Exercise of blatant conflict of interest..
5) Preemptive destruction of material evidence.
6) Reliance on known planted evidence.
7) Manufacture of inculpatory evidence.
8) Support of / Reliance upon known false statements. 9) Furtherance of conspiracy
10) Making false statements.
Above ten offense categories are summarized in the Claims section of the Complaint And Jury Demand.

Mr. Gilmore developed this disregard for evidence from 25 years of tutelage under Eighth Dist. D.A. From 1972 to 2000 Stu VanMeveren. This reign hardened into a “prosecute-at-will” modus operandi that persists in this court beyond either actors combined 75 years of public disservice. In lieu of ascending from Deputy D.A. to Mr. VanMeverens D.A. position Mr. Gilmore took a judgeship in 2000 and continued in his above listed comportment against anything mitigating expedience:
evidence, due process, correct charge for the accused behavior, even the correct defendant for the accused behavior!

This is elucidated by the false prosecution of Heidi Fruhling (case ##09JV15 & 09CA401). Ms. Fruhling was falsely convicted in a similar double-cross by Kathryn Hay, to hand judge Gilmore an easy day of work convicting and sentencing without benefit of evidence. It was found by the court — falsely and contrary to police investigation (see Fed. Dist. Colo. Case #08-CV 2278 for explanation of how inconvenient evidence is avoided and destroyed.) — that Ms. Fruhling induced heat stress/stroke of her daughter. A later correct diagnosis of poisoning by someone else was covered up; as was the medical mis-diagnosis and improper treatment. Equivalent to this petitioner: defense counsel conducted no counter investigation, gave a materially false account to the court (that bent the police investigation even further to the oppositions will), and judge Gilmore rounded up even more to falsely convict and sentence victimized defendant.

That prosecutor and judge knowingly proceeded on materiality false information demonstrates a dereliction of duty (U.S. v. Fatico, 579 F.2d 707, 712 (2nd Cir., 1978); “...a significant possibility of misinformation [7131 justifies the sentencing court in requiring the government to verify the information.”) and willingness to participate in fraud upon the court; constituting a knowing conspiracy.

This defendants Prosecuting counsel Greg Lammons (found culpable for similar behavior in above civil case: Ruling, doc,# 136) directly cited the materially true circumstances of the offense, from the PSI report (as supported by the police investigation), as then rendered false by K. Hay’s fraudulent statements. That is to say; Mr. Lammons became complicit in Hays fraud upon the court to substitute perjury for true testimony of the PSI report. Judge Gilmore then, consistent with the defects of Gomez and Fatico (831 F.2d at 455 and 579 F.2d at 712, respectively), proceeded on this materially false information. Mr. Lammons’ highlighting of the extreme disparity between defense counsel’s statements and reality met the threshold of Gomez and Fatico, at which the judge was obligated to disinfect the record of immaterial falsehoods. His intransigence constitutes a compounding of the complicity of fraud upon the court. All of the officials involved; by generating a fraud upon the court and knowingly compounding it: functioned obversely to their civil mandate and grossly denied this petitioner due process of law.

This modus operandi is congenital and pervasive in the eighth district. The most current example is the retaliatory court harassment of Stacy Lynne (case # 11DR444; see three internet links { http://www.youtube.com/watch?v=AXWP0OpQtxw; http: / /www. Youtube.com/watch?v=_1q_YvTMVQq: http: / /www.republicbroadcasting.org/index.php?cmd=listenlive}for media publications critical of the district for all its endemic malfeasance; to include, with perverse irony, retaliatory court harassment. Warrant less surveillance and harassment by the police and D.A.s office has found a lack of prosecutable behavior. The court has redefined this detestably non criminal comportment as a ‘new truth’ upon which she bears liability.

Thus; even after the overdue term limitation of VanMeveren and voter expatriation of Gilmore; evidence is still treated as an inconvenience to be redefined by the court. This redefinition constitutes illegal judicial process, conducted by a conspiracy of fraud upon the court. These known conspiracies of fraud and the yet unknown hundreds — to include this petition at issue — illustrate the continuing congenital and pervasive habit to subvert evidence and due process, as established by VanMeverens thirty-five years as D.A.

Since that court is so inclined to define truth as the story it chooses to tell, it should be disqualified from further rulings in this case as a conflict of interest. It is this petitioner’s understanding that in the Masters case the eighth district D.A. was disqualified in a later stage of the post conviction process, while the court retained jurisdiction. Since then that court has accrued a higher aversion to outside notice of their bad practices and a corresponding hardened sense of self-preservation. No fair review can be obtained in this now diamond sharp and polished “never-never-never admit fault” bunker mentality. Consistent with D.A. Abrahamson’s public promises to bring cases of Gilmore degeneracy to legitimacy this post conviction review should be transferred to a district not invested in the eighth district’s jingoism.

CONCLUSION
The constitutional issues of materially false information and its origins from the officers and judge of the court are preserved. That these issues were abandoned by post conviction counsel against this petitioner’s wishes and concerns, creates excuse for them to be considered in a comprehensive claim. That higher courts would not consider these portions which would have made the inchoate claim comprehensive, makes them ripe for district review for resentencing or reversal.

Based on cases of similar evidentiary malfeasance by trial counsel and judge, and retaliatory comportment of the district as a whole, the claim has increased gravity, urgency and merit. For this reason that district should be disqualified from evaluating the merits; due to an instinct to preserve degeneracy over legitimacy.
Dated: January 4th 2012 Respectfully Submitted, Jason Pecci
BCCF 8/p 11560 Rd. FF 75
Las Animas, Co. 81054