Naomi Head croppedNaomi '14

Naomi Blount
Pennsylvania
SCI Muncy OO7053
DOB May 1, 1950
Sentenced to Life Without Parole in 1982
Now in her 32nd year of incarceration.
Codefendant: Brenda Baker, tried together in a bench trial.
Plea Bargain Offered: unknown.



Synopsis, In June of 1982, Naomi's female friend Sonny Baker was stabbed in the early morning hours by an older male. Naomi and Sonny went after him, striking his head and stabbing his chest. He ran off but later died of internal bleeding. Naomi turned in Sonny, and then herself. As a reward for her confession and contrition, the state sentenced her to life without parole.

Convicting Reasons: 1) Unfit Mother: single gay parent with a child. 2) Prosecution as Sport: "If I can win it, it means she did it." 3) The "War on Crime":-racial prejudice. 4) Judicial Hysterectomy: -to seal the womb of inadequate women.


Ajax Loader Gif





UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA


NAOMI BLOUNT, Petitioner
Against
SUPERINTENDENT,
STATE CORRECTIONAL INSTITUTION, MUNCY, PENNSYLVANIA


Re:
Commonwealth v. Naomi Blount
First Judicial District of Pennsylvania
8207-2135-PI
2136-Crim (illegible)
2137- Mur (illegible)
2138-IN (illegible)


PETITION FOR A WRIT OF HABEAS CORPUS


Your Petitioner, NAOMI BLOUNT hereby petitions this court for a WRIT OF HABEAS CORPUS in that she is a prisoner at the Pennsylvania State Correctional Institute at Muncy, Pennsylvania, 17756 and that she is being illegally detained and prays that this court inquire into the facts and circumstances of her imprisonment and grants her petition for habeas corpus (there is no state remedy to exhaust therefore the petitioner dispenses with fruitless state level litigation and this matter is submitted under the newly available evidence rulings) and says:

1. She was convicted of murder i n the first degree murder, criminal conspiracy and possessing the instrument of crime after a bench trial (Hon. Judge Gelfand) (Andrea Foulkes, Esq . for the Commonwealth and Mark Kogan, Esq. for this defendant, with Barnaby Wittles, Esq. for co-defendant Brenda Baker) on January 6, 1983. Post trial motions by new counsel were denied c. January 1 7, 1984, and she was sentenced to life imprisonment, concurrent with four to nine years on the conspiracy and two to four on the possession of the instruments of crime charges; (vacated by Superior Court [May 27, 1986]); PCRP filed April 9, 1 990 was denied March 25, 1996, affirmed by Superior Court January 12, 1998. Motion for disclosure of DN A materials was denied c. 2006, there being none preserved.

2. It is well established that Pennsylvania does not have a remedy for miscarriage of justice and that i t will not consider that or other claims after an arbitrary one year statute of limitations (See: annexed cases) nor has the Commonwealth accepted federal law on "newly available evidence" and Pennsylvania has no remedy and procedural default is moot as Pennsylvania has no remedy under law or in common practice.


STATEMENT OF THE CASE:
3. This matter arose from events in Philadelphia on June 21 ,1982 when petitioner and Brenda Baker were sitting on front steps when Robert Myers cursed at these defendants, who had been drinking (Trial transcript p. 35) resulting in an argument followed by Myers attacking and stabbing Baker with his personal knife, in Baker's rib/back area (p. 24, 64, ) resulting i n a serious wound which she did not seek professional treatment for. Enraged by being attacked, Baker resolved to retaliate. She and your petitioner approached Myers and your petitioner struck Myers on the head with a hammer (autopsy revealed a hairline fracture, N.T . p. 164) and Baker repeatedly stabbed (five stab wounds, p. 1 36) Myers in retribution. Your petitioner administered a few non lethal wounds. The injured Myers walked away without being pursued (p. 161) leaving a blood trail (p. 1 69) and died shortly after from heart injury (p. 135) Your petitioner testified that there was no intent to kill Myers, and she later approached pol ice to tell her role in the incident.

4. The court found her guilty of premeditated murder, (malice aforethought) in the first degree, and conspiracy . The court's judgment was erroneous. The record shows that the decedent confronted the defendants, cursed at them provoking an argument then stabbed Ms. Baker. Being provoked by Myers, Baker sought in passion, to retaliate for the unprovoked stabbing by returning in kind. Blount being a loyal friend assisted her friend, but lacked the necessary passion. Once Baker felt that she had sufficiently retaliated, she left Myers to walk away. Had she intended to kill him, she could have pursued him to "finish him off." She did not. Your petitioner did not initiate further retaliation. There was no evidence before the court that either defendant intended to kill Mr. Myers, but only intended to inflict a 'street justice" of tit for tat, and to dissuade him from attacking her again. In her passion, Baker
did not realize that she had inflicted lethal wounds on Myers. Since Baker retaliated in passion, mitigation is introduced. Secondly, there was no intent to kill, which limit's the proper adjudication to no more serious offense than involuntary manslaughter.

5. In this case, the defendants approached the decedent with the intention to retaliate for the decedent stabbing Brenda Baker, the primary defendant. Your petitioner conked him on the head with a hammer and Baker, still in a fit of passion fell upon him and delivered five stab wounds to his torso to pay back for him stabbing her. Its well-established that ". . .i f a jury, giving credence to a defendant's version of an encounter could find that the defendant guilty of
involuntary manslaughter, (then) fundamental fai rness dictates the consolidation, upon request, of that indictment with the murder and voluntary manslaughter indictments as possible jury verdicts .... The practical conseq uence, indeed the purpose of this ruling was to permit a charge of involuntary manslaughter. I n the words of the plurality opinion, failure to so acquaint the jury prevents it from operating with full knowledge of the relevant law and precludes the defendant from having a fair trial" (Commonwealth v. Polimeni, (1977) 474 Pa . 430, 435-36; 378 A .2d1 189, 1 192) as involuntary manslaughter is also a lesser included offense of murder ." (Id . 438, 1 193)

6. "Like murder of the third degree, involuntary manslaughter is an unintentional killing .... The state of mind which characterizes involuntary manslaughter is not malicious; it is referred to as 'criminal negligence' and is evidenced by acts, whether lawful or unlawful, done in a 'reckless or grossly negligent '"manner ." (Id. 442, 1 195) It would however be unacceptable to require the defendant prove that she were guilty of involuntary manslaughter. "Presenting the elements of a criminal offense in the context of an affirmative defense comes perilously close to shifting the burden to the defendant to prove himself guilty of involuntary manslaughter only as a means of proving himself not guilty of the greater crimes with which he is charged." (Commonwealth v. McCloskey, (1995), 441 Pa. Super. 1 16, 130 656 A.2d 1369, 1 377) "Contrary to the trial court's (suggestion-omit) [ verdict] the evidence of appellant's guilt on the (voluntary manslaughter) charge was not overwhelming, our Supreme Court has determined that where error is found to have contributed to a verdict, it can never be harmless (citing: Rodriguez, 533 Pa. 555, 561, 626 A.2d 141, 145, 1993) [McCloskey at footnote 4 cites: Commonwealth v. Terrell, 482 Pa. 303, 393 A .2d 1117 ( 1978) (defendant feared victim, had no intention of kill ing him, entitled to involuntary manslaughter charge) and Commonwealth v. Bybel, 399 Pa. Super. 149, 581 A .2d 1380 (1992) (defendant intended to shoot motorcyclist as a warning) and at footnote 5, Commonwealth v. Wilson, 433 Pa. Super. 28, 639 A .2d 1 194) "accidentally shooting in self defense not inconsistent with self-defense"

7. "When the law provides that negligence suffices to establish an element of an offense, such element is also established if the person acts intentionally or knowingly ." Commonwealth v. Garcia, 474 Pa. 449, 465, 378 A .2d 1 199, 1 208) "The recklessness or criminal negligence necessary to support an involuntary manslaughter conviction may be found if the defendant consciously disregards or, in gross deviation from a standard of reasonable care, fails to perceive a substantial and unjustifiable risk that his action might cause death or serious bodily harm i nvoluntary manslaughter is a lesser included offense of murder ...." (Garcia, p . 463, 1 207)


8. (The Garcia court instructs that in a murder prosecution, the legislature provided that there was a two year statute of l imitation on prosecution for involuntary manslaughter, meaning that after that two years, if involuntary manslaughter were found, the defendant is determined to be not guilty by action of law.) (Garcia, 478, 1214) "Garcia's testimony was essentially that his gun had accidentally discharged while he and the victim were engaged in a struggle.

(Garcia, f.n. 1 6. l .second grouping of footnotes)

9. Referring to paragraph 6: (l)nvoluntary manslaughter, ... is defined ( 1977) as a killing committed in a reckless or grossly negligent manner ... ." (Garcia, p. 465, 1207) The primary defendant did not intend to kill the decedent, but let him walk away after she retaliated for his attack on her. Since third degree murder and involuntary manslaughter are not intentional killings, but killings originating in negligence, this petitioner cannot be culpable as an accomplice. In fact neither she or the primary defendant intended to kill the decedent, but only to (essentially) prevent a subsequent attack by the decedent. As a matter of law, this defendant, your petitioner cannot under action of law be held culpable for her friend's negligent killing. She cannot be co-negligent.

I 0. To the extent that the killing was grossly negligent, it is again under law, "impossible to conspire to commit an unintentional act" such as third degree murder. (Commonwealth v. Weimer, 602 Pa. 33 [1,2] ) with the defendant entitled to acquittal. (Id. (4] 38-39) Trial evidence was insufficient to prove that there was any conspiracy on any illegal act, particularly on the negligent homicide.

l l . Petitioner submits that since she was sentenced to life imprisonment nearly thirty years ago, by a court that would by necessity be unable to determine if she were rehabilitated at this date, that she has been denied equal protection with those convicted of cr imes for whom the state recognizes the likelihood of rehabilitation and is willing to grant parole from
incarceration . ( Reference is to: Rose Dinkins v. Superintendent , U.S.S.C. 13-5499)
12. In this case, defendant is essentially required to establish that her co-defendant is not guilty in order to establish that she is not guilty. Th is amounts to shifting the burden of proof to her . The trial court denied a motion for severance and required co-defendants to provide contradictory proof. Since the killing was demonstratively one of negligence, conspiracy cannot be imputed. The trial court erroneously assumed that there was a common plan to negligently kill he decedent. However, since there was no plan to kill him by either defendant, there was no conspiracy to negligently kill him, and defendant was prejudiced by being irretrievably linked to a non existant conspiracy which the court assumed . "Conspiracy cannot be based on conjecture and suspicion." (Commonwealth v.Anderson, (1979, 265 Pa. Super. 494) and as note supra, It is impossible to conspire to comm it an unintentional act li ke th i rd degree murder.(Commonwealth v . Wei mer, 602 Pa. 33) "Charges were properly joined (if) they were part of a common plan or scheme...." which they were not. (U.S. v . Torres, (2007) 251 Fed . A ppx. 731 ) iand severance was necessary for a "fair trial." (Zafiro v. U.S. ( 1993) 506 U.S. 534, 1 1 3 S.Ct. 933[ 14])

"INVOLUNTARY MANSLAUGHTER, 1 8 Pa.C .S.A. 2504 (a) General rule.- A person is guilty of involuntary manslaughter when as a direct result of doing an unlawful act in a reckless or grossly negligent manner, or doing of a legal act in a reckless or grossly manner, he causes the death of another person. (b) Involuntary manslaughter is a misdemeanor of the first degree."

(1972, Dec. 6, P.L. 1482, ....Re-enacts 18 P.S. 4703 without substantial change)

PENNSYLVANIA CASES OF MISCARRIAGE OF JUSTICE:

Defendant: PA Court Reference
Strohl, Jessica* 556 MAL 2011Jacobs, Frances
Jacobs, Frances 29MM 2010
Aponte,
Zinia 1037 MAL 2007
Rosario, Nancy
1037 MAL 2007 (cited in Aponte Application)
Johnson, Paula 941 MAL 201 1 (denied Pa. Super. 644 MDA 201 1)
Vicheck, Melanie 79 WM 201 0
Crump,
Denise see: E.D. Pa. Civ. No. 2-10-cv-5659
Fields, Tequilla* 577
WAL 201 0; USSC: 12-9569 (denied)
Lee,
Nichol Pa. S.C. 609 MAL 2006
Rosario, Nancy* Pa. Super. 903 MDA 2008 (transcript refused)
Aponte, Zinia * USDC 4-08-cv-O 1295(transcri pt refused)
Graves,
Raynard 3331 EDA 2008
Martinez,
Janice Pa. Super. 86 WDA 20 I 0
Knox,
Joyce* 1 828 MDA 2011
Harper,
Zakeeyah 1699 EDA 2009
Dinkins, Rose* 2: l 2-cv-131 4 (Third Circuit)U.S.S.C. 13-5499 Guy, Caroline 201 1 EDA 201 1; 681 MAL 201 2

Stewart,
Magaleen** USSC : 12-10190

*
are U.S. Supreme court cases




MEMORANDUM OF LAW

28 USC 2254

The Supreme Court, a justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States,
(b)
( 1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--
(A)



      Xxx
        (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

        Xxx
          (B) the facts underlying the claim would be sufficient to establish by clear and
          convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.




          N EW EVIDENCE: (Houck v. Stickman, 625 F Jd 88, 20 I 0)


            "'* [WAIVER OF PROCEDURAL DEFAULT FOR FEDERAL COURT

            "The procedural default doctrine precludes a federal habeas court from reviewing a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment. (Coleman v. Thompson, 501 U .S. 722, 729) The United Sates Supreme Court has em ployed a variety of tests to determine whether a state ground is adequate. Among other things, state procedural rules have been held to be inadequate if they are not "firmly established and regularly followed (Ford v. Georgia, 498 U.S. 41 1), or i f they are novel and unforeseeable. (NAACP v.Alabama ex rel. Patterson, 357 U .S. 449, 457). First the test ensures that federal review is not barred unless a habeas petitioner had fair notice of the need to follow the state procedural rule. A petitioner should be on notice of how to present his claims in the state courts if his failure to present them is to bar h i m from advancing them i n a federal court .

            Second, the firmly established and regularly followed test prevents discrimination. Novelty in procedural requi rements can be used as a means of defeati ng clai ms that are disfavored on the merits. The requi rement of regular application ensures that review is foreclosed only by what may honestly be called rules, directions of general applicability, rather than by whim or prejudice agai nst a claim or claima nt. (Bronshtein v. Horn, 404 F.3d 700; 2005 U.S. A pp . LEX IS 6158, pp. 5-8) Under 42 Pa.C.S. 9542, "the action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis."

            As noted above, habeas corpus cannot be suspended, per Constitutional mandate, and the misreading of the Post-Conviction Rel ief Act ( PCRA) suggests erroneously that habeas corpus in Pennsylvania has only a one year window of opportunity. The contradiction in Pennsylvania PCRA certainly evokes the exception to the procedural default rule defined by the United States Supreme Court defying the "fair notice" principle as well as the "firmly established" principle. Because of the contradiction inherent in the PCRA, there cannot be fair notice nor firmly established rules on any ti me bar under the PCRA .

            The trial court's inability to locate a remedy for miscarriage of justice except as time barred, is perfectly consistent with the hold ing of the United States Supreme Court that: "The doctrine that federal courts will not grant habeas corpus to prisoners under judgments of state courts until all state remedies have been exhausted, Ex parte Hawk , 321 U.S. 114 which presupposes the existence of some adequate remedy under state law. (Young v. Ragen , 337 U.S . 235, 238-39; Christy v. Hom, 1 15 F.Jd 20 l , 206, Jd . Cir, 1997; Doctor v. Walters, 96 F.3d 675, 678; Carter v .Vaughn, 62 F.Jd 591, 594 Jd. Cir. 1995) Habeas corpus relief is available if Constitutional error had substantial and injurious effect or influence on the resulting conviction . (Fry v. Pliler, 55 l U.S. 1 12, 12 l, [2007]) ]


            WHEREFORE, petitioner requests that she be granted habeas corpus and be released from custody.


            Affirmed as true under penalty of perjury,





            Naomi Blount, 00 7053
            S.C.I.
            P.0.8. 1 80
            Muncy, PA 17756-01 80

            Dated :

            NB :mm











            4. The court found her guilty of premeditated murder, (malice aforethought) in the first degree, and conspiracy . The court's judgment was erroneous. The record shows that the decedent confronted the defendants, cursed at them provoking an argument then stabbed Ms. Baker. Being provoked by Myers, Baker sought in passion, to retaliate for the unprovoked stabbing by returning in kind. Blount being a loyal friend assisted her friend, but lacked the necessary passion. Once Baker felt that she had sufficiently retaliated, she left Myers to walk away. Had she intended to kill him, she could have pursued him to "finish him off." She did not. Your petitioner did not initiate further retaliation. There was no evidence before the court that either defendant intended to kill Mr. Myers, but only intended to inflict a 'street justice" of tit for tat, and to dissuade him from attacking her again. In her passion, Baker





            did not realize that she had inflicted lethal wounds on Myers. Since Baker retaliated in passion, mitigation is introduced. Secondly, there was no intent to kill, which limit's the proper adjudication to no more serious offense than involuntary manslaughter.











            5. In this case, the defendants approached the decedent with the intention to retaliate for the decedent stabbing Brenda Baker, the primary defendant. Your petitioner conked him on the head with a hammer and Baker, still in a fit of passion fell upon him and delivered five stab wounds to his torso to pay back for him stabbing her. Its well-established that ". . .i f a jury, giving credence to a defendant's version of an encounter could find that the defendant guilty of





            involuntary manslaughter, (then) fundamental fai rness dictates the consolidation, upon request, of that indictment with the murder and voluntary manslaughter indictments as possible jury verdicts .... The practical conseq uence, indeed the purpose of this ruling was to permit a charge of involuntary manslaughter. I n the words of the plurality opinion, failure to so acquaint the jury prevents it from operating with full knowledge of the relevant law and precludes the defendant from having a fair trial" (Commonwealth v. Polimeni, (1977) 474 Pa . 430, 435-36; 378 A .2d1 189, 1 192) as involuntary manslaughter is also a lesser included offense of murder ." (Id . 438, 1 193)











            6. "Like murder of the third degree, involuntary manslaughter is an unintentional killing .... The state of mind which characterizes involuntary manslaughter is not malicious; it is referred to as 'criminal negligence' and is evidenced by acts, whether lawful or unlawful, done in a 'reckless or grossly negligent '"manner ." (Id. 442, 1 195) It would however be unacceptable to require the defendant prove that she were guilty of involuntary manslaughter. "Presenting the elements of a criminal offense in the context of an affirmative defense comes perilously close to shifting the burden to the defendant to prove himself guilty of involuntary manslaughter only as a means of proving himself not guilty of the greater crimes with which he is charged." (Commonwealth v. McCloskey, (1995), 441 Pa. Super. 1 16, 130 656 A.2d 1369, 1 377) "Contrary to the trial court's (suggestion-omit) [ verdict] the evidence of appellant's guilt on the (voluntary manslaughter) charge was not overwhelming, our Supreme Court has determined that where error is found to have contributed to a verdict, it can never be harmless (citing: Rodriguez, 533 Pa. 555, 561, 626 A.2d 141, 145, 1993) [McCloskey at footnote 4 cites: Commonwealth v. Terrell, 482 Pa. 303, 393 A .2d 1117 ( 1978) (defendant feared victim, had no intention of kill ing him, entitled to involuntary manslaughter charge) and Commonwealth v. Bybel, 399 Pa. Super. 149, 581 A .2d 1380 (1992) (defendant intended to shoot motorcyclist as a warning) and at footnote 5, Commonwealth v. Wilson, 433 Pa. Super. 28, 639 A .2d 1 194) "accidentally shooting in self defense not inconsistent with self-defense"











            7. "When the law provides that negligence suffices to establish an element of an offense, such element is also established if the person acts intentionally or knowingly ." Commonwealth v. Garcia, 474 Pa. 449, 465, 378 A .2d 1 199, 1 208) "The recklessness or criminal negligence necessary to support an involuntary manslaughter conviction may be found if the defendant consciously disregards or, in gross deviation from a standard of reasonable care, fails to perceive a substantial and unjustifiable risk that his action might cause death or serious bodily harm i nvoluntary manslaughter is a lesser included offense of murder ...." (Garcia, p . 463, 1 207)

















            8. (The Garcia court instructs that in a murder prosecution, the legislature provided that there was a two year statute of l imitation on prosecution for involuntary manslaughter, meaning that after that two years, if involuntary manslaughter were found, the defendant is determined to be not guilty by action of law.) (Garcia, 478, 1214) "Garcia's testimony was essentially that his gun had accidentally discharged while he and the victim were engaged in a struggle.











            (Garcia, f.n. 1 6. l .second grouping of footnotes)











            9. Referring to paragraph 6: (l)nvoluntary manslaughter, ... is defined ( 1977) as a killing committed in a reckless or grossly negligent manner ... ." (Garcia, p. 465, 1207) The primary defendant did not intend to kill the decedent, but let him walk away after she retaliated for his attack on her. Since third degree murder and involuntary manslaughter are not intentional killings, but killings originating in negligence, this petitioner cannot be culpable as an accomplice. In fact neither she or the primary defendant intended to kill the decedent, but only to (essentially) prevent a subsequent attack by the decedent. As a matter of law, this defendant, your petitioner cannot under action of law be held culpable for her friend's negligent killing. She cannot be co-negligent.











            I 0. To the extent that the killing was grossly negligent, it is again under law, "impossible to conspire to commit an unintentional act" such as third degree murder. (Commonwealth v. Weimer, 602 Pa. 33 [1,2] ) with the defendant entitled to acquittal. (Id. (4] 38-39) Trial evidence was insufficient to prove that there was any conspiracy on any illegal act, particularly on the negligent homicide.











            l l . Petitioner submits that since she was sentenced to life imprisonment nearly thirty years ago, by a court that would by necessity be unable to determine if she were rehabilitated at this date, that she has been denied equal protection with those convicted of cr imes for whom the state recognizes the likelihood of rehabilitation and is willing to grant parole from





            incarceration . ( Reference is to: Rose Dinkins v. Superintendent , U.S.S.C. 13-5499)





            12. In this case, defendant is essentially required to establish that her co-defendant is not guilty in order to establish that she is not guilty. Th is amounts to shifting the burden of proof to her . The trial court denied a motion for severance and required co-defendants to provide contradictory proof. Since the killing was demonstratively one of negligence, conspiracy cannot be imputed. The trial court erroneously assumed that there was a common plan to negligently kill he decedent. However, since there was no plan to kill him by either defendant, there was no conspiracy to negligently kill him, and defendant was prejudiced by being irretrievably linked to a non existant conspiracy which the court assumed . "Conspiracy cannot be based on conjecture and suspicion." (Commonwealth v.Anderson, (1979, 265 Pa. Super. 494) and as note supra, It is impossible to conspire to comm it an unintentional act li ke th i rd degree murder.(Commonwealth v . Wei mer, 602 Pa. 33) "Charges were properly joined (if) they were part of a common plan or scheme...." which they were not. (U.S. v . Torres, (2007) 251 Fed . A ppx. 731 ) iand severance was necessary for a "fair trial." (Zafiro v. U.S. ( 1993) 506 U.S. 534, 1 1 3 S.Ct. 933[ 14])











            "INVOLUNTARY MANSLAUGHTER, 1 8 Pa.C .S.A. 2504 (a) General rule.- A person is guilty of involuntary manslaughter when as a direct result of doing an unlawful act in a reckless or grossly negligent manner, or doing of a legal act in a reckless or grossly manner, he causes the death of another person. (b) Involuntary manslaughter is a misdemeanor of the first degree."











            (1972, Dec. 6, P.L. 1482, ....Re-enacts 18 P.S. 4703 without substantial change)











            PENNSYLVANIA CASES OF MISCARRIAGE OF JUSTICE:











            Defendant: PA Court Reference





            Strohl, Jessica* 556 MAL 2011Jacobs, Frances





            Jacobs, Frances 29MM 2010





            Aponte,
            Zinia 1037 MAL 2007





            Rosario, Nancy
            1037 MAL 2007 (cited in Aponte Application)





            Johnson,
            Paula 941 MAL 201 1 (denied Pa. Super. 644 MDA 201 1)





            Vicheck,
            Melanie 79 WM 201 0





            Crump,
            Denise see: E.D. Pa. Civ. No. 2-10-cv-5659





            Fields, Tequilla* 577
            WAL 201 0; USSC: 12-9569 (denied)





            Lee,
            Nichol Pa. S.C. 609 MAL 2006





            Rosario,
            Nancy* Pa. Super. 903 MDA 2008 (transcript refused)





            Aponte,
            Zinia * USDC 4-08-cv-O 1295(transcri pt refused)





            Graves,
            Raynard 3331 EDA 2008





            Martinez,
            Janice Pa. Super. 86 WDA 20 I 0





            Knox,
            Joyce* 1 828 MDA 2011





            Harper,
            Zakeeyah 1699 EDA 2009





            Dinkins,
            Rose* 2: l 2-cv-131 4 (Third Circuit)U.S.S.C. 13-5499 Guy, Caroline 201 1 EDA 201 1; 681 MAL 201 2











            Stewart,
            Magaleen** USSC : 12-10190











            *
            are U.S. Supreme court cases





























            MEMORANDUM OF LAW











            28 USC 2254











            The Supreme Court, a justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States,





            (b)





            ( 1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--





            (A)





            (i) there is an absence of available State corrective process; or











                Xxx





                (d) an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--











                  Xxx





                  (e) (shall not hold an evidentiary hearing unless)





                    convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.





























                    N EW EVIDENCE: (Houck v. Stickman, 625 F Jd 88, 20 I 0)





                    *[The Third Circuit encom passed the reasoning of "(T)he Gomez court (which) dealt with the problem by regarding evidence as new i f it was not newl y discovered as long as it was not presented * to the trier of fact. . .." ( Houck, citing Gomez, 350 F.3d 673, 679-80) "Consequently, the Gomez court indicated that a court can evaluate newly presented evidence in making a determination of whether the evidence is strong enough to establish the petitioner's actual innocence . . . Overall we are inclined to accept the Amrine (v. Bowersar:, 128 F.3d 1222, 81. Ci r. 1997) definition of new evidence with the narrow limitation that if the evidence was not discovered for use at trial because trial counsel was ineffective , the ev idence may be regarded as new provided that it is the very evidence that the petitioner clai ms demonstrates his innocence. ( Houck ) The Houck court further elaborates in footnotes: 8: His claim of actual innocence in his objections reinforces our determination to regard that claim as preserved for our consideration, 1 1 : The Supreme Court explained in House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 2078) that the actual innocence gateway requires the federal court to assess how reasonable jurors would react to overall newly supplemented record . 12: In United States v. Davies, 394 F.3d 1 82, 191 n . 8, 3d. Cir. 2005 we indicated that new evidence does not necessarily mean newly d iscovered evidence and may mean newly presented evidence. 13: The adoption of the Amrine definition would parallel our recognition in Go/db/um v. Klein, 510 F.3d 204, 214, 3d. Cir. 2007), that sometimes a court must get ahead of itself and address issues relating to the merits of apparently proced- urally barred claims in a determination of whether petitioner's claims ... procedurally barred claims may be considered . If a petitioner presents sufficient evidence of actual innocence, he should be allowed through this gateway permitting him to argue the merits of his underlying constitutional claims (Amrine, citing Schlup v. Delo, 513 U .S. at 326-28)]











                      "'* [WAIVER OF PROCEDURAL DEFAULT FOR FEDERAL COURT











                      "The procedural default doctrine precludes a federal habeas court from reviewing a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment. (Coleman v. Thompson, 501 U .S. 722, 729) The United Sates Supreme Court has em ployed a variety of tests to determine whether a state ground is adequate. Among other things, state procedural rules have been held to be inadequate if they are not "firmly established and regularly followed (Ford v. Georgia, 498 U.S. 41 1), or i f they are novel and unforeseeable. (NAACP v.Alabama ex rel. Patterson, 357 U .S. 449, 457). First the test ensures that federal review is not barred unless a habeas petitioner had fair notice of the need to follow the state procedural rule. A petitioner should be on notice of how to present his claims in the state courts if his failure to present them is to bar h i m from advancing them i n a federal court .











                      Second, the firmly established and regularly followed test prevents discrimination. Novelty in procedural requi rements can be used as a means of defeati ng clai ms that are disfavored on the merits. The requi rement of regular application ensures that review is foreclosed only by what may honestly be called rules, directions of general applicability, rather than by whim or prejudice agai nst a claim or claima nt. (Bronshtein v. Horn, 404 F.3d 700; 2005 U.S. A pp . LEX IS 6158, pp. 5-8) Under 42 Pa.C.S. 9542, "the action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis."











                      As noted above, habeas corpus cannot be suspended, per Constitutional mandate, and the misreading of the Post-Conviction Rel ief Act ( PCRA) suggests erroneously that habeas corpus in Pennsylvania has only a one year window of opportunity. The contradiction in Pennsylvania PCRA certainly evokes the exception to the procedural default rule defined by the United States Supreme Court defying the "fair notice" principle as well as the "firmly established" principle. Because of the contradiction inherent in the PCRA, there cannot be fair notice nor firmly established rules on any ti me bar under the PCRA .











                      The trial court's inability to locate a remedy for miscarriage of justice except as time barred, is perfectly consistent with the hold ing of the United States Supreme Court that: "The doctrine that federal courts will not grant habeas corpus to prisoners under judgments of state courts until all state remedies have been exhausted, Ex parte Hawk , 321 U.S. 114 which presupposes the existence of some adequate remedy under state law. (Young v. Ragen , 337 U.S . 235, 238-39; Christy v. Hom, 1 15 F.Jd 20 l , 206, Jd . Cir, 1997; Doctor v. Walters, 96 F.3d 675, 678; Carter v .Vaughn, 62 F.Jd 591, 594 Jd. Cir. 1995) Habeas corpus relief is available if Constitutional error had substantial and injurious effect or influence on the resulting conviction . (Fry v. Pliler, 55 l U.S. 1 12, 12 l, [2007]) ]

















                      WHEREFORE, petitioner requests that she be granted habeas corpus and be released from custody.

















                      Affirmed as true under penalty of perjury,






























                      Naomi Blount, 00 7053





                      S.C.I.





                      P.0.8. 1 80





                      Muncy, PA 17756-01 80











                      Dated :











                      NB :mm

                      Naomi