COMES NOW Cross-Appellant Mumia Abu-Jamal And, Pursuant to Local Appellate Rule 22

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

MUMIA ABU-JAMAL,)

)Case No. 02-9001

Cross-Appellant,)

)

-vs-)

)

MARTIN HORN, Director, Pennsylvania )

Department of Corrections; CONNOR )

BLAINE, Superintendent, SCI Greene;)

DISTRICT ATTORNEY OF )

PHILADELPHIA COUNTY; ATTORNEY)

GENERAL OF THE COMMONWEALTH)

OF PENNSYLVANIA,)

)

Cross-Appellees.)

CROSS-APPELLANT’S MOTION FOR

CERTIFICATION OF ADDITIONAL ISSUES FOR APPEAL.

[LOCAL APPELLATE RULE 22.1(b)]

*****

NICHOLAS R.D. BROWN, ESQ.

Barrister-at-Law

4 New Square, Lincoln's Inn

London WC2A 3RJ, United Kingdom

011-44-207-822-2000

MARLENE KAMISH, ESQ.

Attorney-at-Law

P.O. Box 80376

Chicago, IL 60608

(312) 455-0766

ELIOT LEE GROSSMAN, ESQ.

Law Office of Eliot Lee Grossman

La Rotunda Building

248 East Main Street, Suite 100

Alhambra, CA 91801

(626) 943-1945

Attorneys for Cross-Appellant

Mumia Abu-Jamal

J. MICHAEL FARRELL, ESQ.

Attorney-at-Law

718 Arch Street, Suite 402 South

Philadelphia, PA 19106

(215) 925-1105

Local Counsel

TABLE OF CONTENTS

Page

INTRODUCTION

I. THE CERTIFICATE OF APPEALABILITY SHOULD BE EXPANDED TO CERTIFY FOR REVIEW THE DISTRICT COURT’S DENIAL OF CROSS-APPELLANT’S MOTION FOR LEAVE TO FILE A REDRAFTED AND AMENDED HABEAS PETITION; THE STRIKING OF EVIDENCE FROM THE RECORD AND DENIAL OF LEAVE TO SUPPLEMENT THE RECORD; AND THE REFUSAL TO AUTHORIZE THE DEPOSITION OF ARNOLD BEVERLY OR TO RECONSIDER THE SAME.

A. WHEN THE DISTRICT COURT DENIED LEAVE TO AMEND CLAIMS 1-29 IT ABUSED ITS DISCRETION BY MISAPPLYING DUFUS AND THOMAS, AND IMPOSING A RESTRICTION ON AMENDING HABEAS PETITIONS WHICH THE AEDPA EXPLICITLY LIMITS TO “OPT-IN” STATES.

B. THE DISTRICT COURT ERRED IN DENYING LEAVE TO AMEND THE HABEAS PETITION TO ADD CLAIMS 32-39.

C. THE DISTRICT COURT ERRED IN DENYING LEAVE TO AMEND TO ADD CLAIM 31 BASED ON ACTUAL INNOCENCE.

D. A COA SHOULD ISSUE WITH REGARD TO THE STRIKING OF EVIDENCE AND DENIAL OF LEAVE TO SUPPLEMENT THE RECORD WITH EVIDENCE IN SUPPORT OF THE MOTION TO AMEND AND THE ACTUAL INNOCENCE CLAIM.

E. A COA SHOULD ISSUE WITH REGARD TO THE DENIAL OF LEAVE TO DEPOSE ARNOLD BEVERLY AND REFUSAL TO RECONSIDER THE SAME.

II. THE DENIAL OF CLAIMS 1-4 (BRADY)SHOULD BE CERTIFIED FOR APPEAL.

III. THE DENIAL OF CLAIM ELEVEN (FARETTA) SHOULD BE CERTIFIED FOR APPEAL.

IV. THE DENIAL OF CLAIM 14 (CALDWELL/BECK) SHOULD BE CERTIFIED FOR APPEAL.

V. THE DENIAL OF CLAIM 18 (SWAIN) SHOULD BE CERTIFIED FOR APPEAL.

VI. THE DENIAL OF CLAIM 29, AND THE STRIKING FROM THE RECORD OF THE SUPPLEMENT TO SAID CLAIM (DOCKET #116) SHOULD BE CERTIFIED FOR APPEAL.

VII. THE DENIAL(S) OF CLAIM 30 (FARETTA) AND RELATED ORDERS SHOULD BE CERTIFIED FOR APPEAL.

CONCLUSION

COMES NOW Cross-Appellant Mumia Abu-Jamal and, pursuant to Local Appellate Rule 22.1(b), hereby moves the Court for additional certification of issues for appeal and, pursuant to Federal Rule of Appellate Procedure 27(d)(2), requests relief from the page limitations for this motion on grounds that the legal issues briefed herein are of such complexity as to be inexplicable within said limits, and in support thereof alleges and says as follows:

INTRODUCTION

Cross-Appellant Mumia Abu-Jamal is innocent and has the evidence to prove it.[1] Arnold Beverly, the man who actually did commit the crime for which Mr. Jamal was convicted and sentenced to death, has come forward and confessed that he, not Mumia Abu-Jamal, shot and killed Police Officer Daniel Faulkner on December 9, 1981. Mr. Beverly’s confession is corroborated by a lie detector test administered by eminent polygraph expert Dr. Charles R. Honts and a mass of additional evidence, including both new evidence and even the prosecution’s evidence from Mr. Jamal’s trial.

Arnold Beverly has disclosed that he was hired by corrupt elements in the Philadelphia Police Department, working hand-in-hand with organized crime, to murder Officer Faulkner because the officer was an obstacle to the notorious pay-offs racket they were running in center city Philadelphia in the 1980's. The rampant and pervasive corruption endemic to the Philadelphia Police Department in that period is documented in the affidavit of ex-FBI informer Donald Hersing, whose testimony in the federal prosecutions of corrupt police brought down key players among the 30 officers convicted, including the former captain of the downtown division where Officer Faulkner was stationed. The day after Mr. Jamal’s trial concluded, the ranking officer at the crime scene investigation in the Jamal case resigned from the police force after pleading guilty to failing to pay taxes on thousands of dollars in bribes and pay-offs. It is noteworthy, as well, that the head of homicide was an unindicted co-conspirator in the federal corruption prosecutions. In response to Arnold Beverly’s declaration and this mass of corroborating evidence, the District Attorney presented not one item of evidence to the District Court to refute Mr. Beverly or impeach his credibility. The evidence that corrupt police officers were themselves co-conspirators in the murder of one of their fellows provides a ready explanation for the ease with which the frame-up of Mr. Jamal was effectuated.

A new witness, Yvette Williams, has now come forward with direct evidence that not only did the star prosecution witness at trial, street prostitute Cynthia White, lie on the witness stand when she claimed to have seen Mr. Jamal shoot Officer Faulkner, but that White was forced to lie by the police. Yvette Williams’ sworn statement is attached hereto as Appendix “A” and recounts that Ms. Williams was in jail with Ms. White in December of 1981, after the shooting of Officer Faulkner, and Cynthia White told Yvette Williams that although she was in the area when the officer was shot, she did not see the shooting, but was forced by the police to give false testimony against Mr. Jamal due to threats to consolidate all of her own open cases and send her away to prison for a long period of time. White also told Williams that she had a drug habit and was high on drugs at the time of the shooting.

White confessed to Williams that she was terrified that the police might kill her if she did not comply and was also frightened that her pimp would beat her up or kill her when she got out of jail because of all the money he was losing while she was off the street. Williams states that White received money and favors in jail from the police, including contraband food and cigarettes as well as syringes and “white powder” in exchange for her testimony.

The only other alleged “eyewitness” to the shooting of Officer Faulkner, cabdriver and convicted felon Robert Chobert,[2] recanted his trial testimony to private investigator George Michael Newman in 1995, and admitted that he had not seen the shooting, according to Newman’s declaration, twice submitted to the District Court but stricken from the record.[3]

Both White and Chobert were eminently vulnerable to police pressure to fabricate their testimony and both altered their witness statements in ways favorable to the prosecution each time they were interviewed. White was obviously subject to police intimidation because of her profession and her many open cases. Chobert was an arsonist on felony probation for firebombing a school and was in daily violation of probation for driving his taxicab on a suspended license; he faced over 30 years in prison if his probation were revoked.

William Cook, who was stopped by Officer Faulkner while driving in the area of 13th and Locust, resulting in the incident in which the officer was shot, provided a declaration to Cross-Appellant’s prior counsel, which they suppressed,[4] in which he revealed that there was a passenger in his car that night, Kenneth Freeman, and that some time afterwards, Freeman confessed to Cook that he, Freeman, had been part of a plot to kill Officer Faulkner, that he had been armed that night and participated in the shooting. The presence of a passenger in the Cook vehicle is corroborated by Cynthia White’s testimony at Cook’s trial (quoted in the Proposed Amended Habeas Petition, Claim 34) although White perjured herself at Mr. Jamal’s trial when she concealed the presence of the passenger and stated that no one other than Jamal, Cook, and Officer Faulkner were present at the scene. (Id.)

Although this evidence, and more, including Mr. Jamal’s own declaration that he did not shoot Officer Faulkner, but was himself shot down as he approached the scene, was for the most part admitted into the record in the District Court[5] (with the exception of Ms. Williams’ declaration as she did not come forward until after the District Court issued its decision), the Court declined to review the evidence, evaluate its impact on the prosecution’s case at trial, or consider how that evidence provides additional support for various claims in the original habeas petition which expose interrelated aspects of a police frame-up of an innocent man. Rather, the District Court blandly opined that a jury could ignore that evidence and still choose to believe the (fabricated) testimony of the prosecution’s witnesses. However, no reasonable jury after considering that evidence would find Mr. Jamal guilty beyond a reasonable doubt;[6] moreover, the totality of both the new evidence and that presented at trial proves that it is more likely than not that Mr. Jamal is innocent, thus satisfying the stringent test proposed by Justice Blackmun for a free-standing claim of actual innocence. SeeHerrera v Collins, 506 US 390, 442-444 (1993)(Blackmun, J., dissenting). Despite the overwhelming proof of Mr. Jamal’s innocence, the District Court denied on the merits his motion for leave to file a redrafted and amended habeas petition setting forth a “free-standing” actual innocence claim as well as additional claims of constitutional error in the underlying post-conviction proceedings, direct appeal, and trial.

The District Court granted a Certificate of Appealability (“COA”) in this case with regard to only one issue, denial of the Sixteenth Claim for Relief in the Habeas Petition (the Batson claim). The Batson claim was denied on the principal basis that Petitioner, or rather his prior Chief Counsel Leonard Weinglass and prior Chief Legal Strategist Daniel Williams, had procedurally defaulted the evidence which proves up the claim. The issues which this Court will inevitably have to resolve in adjudicating the Batson claim – including whether Cross-Appellant can establish the grounds for relief from that alleged default, either by proving his “actual innocence” under the Schlup “gateway” standard or by showing “cause and prejudice” based upon myriad conflicts of interest and “constructive denial of counsel” on the part of his former counsel[7] – are inextricably intertwined with the first issue upon which additional certification for appeal is requested, viz. the denial of Cross-Appellant’s motion for leave to file a redrafted and amended habeas petition. Adjudicating that issue will necessarily require a detailed review of the substantive merits of the “free-standing” actual innocence claim pled in Claim 31 of the proposed amended petition, as well as determination of the legal issue of whether “constructive denial of counsel” may provide relief from various procedural bars noted by the District Court in denying leave to amend. Since a favorable decision for Cross-Appellant on these issues in the context of the Batson claim would establish, as well, a basis for review on the merits of the District Court’s denial of leave to file the amended habeas petition, it is respectfully submitted that it is in the interests of justice to grant additional certification of that issue solely for that reason, although additional reasons for certification are also set forth below.

Cross-Appellant also requests certification for appeal of several other claims for relief in the original habeas petition which implicate various violations of his right to a fair trial and/or fair post-conviction proceedings.

In United States v Dufus, 174 F3d 333,336 (3rd Cir 1999), this Court suggested in dicta and, in United States v Thomas, 221 F3d 430,436 (3rd Cir 2000), explicitly held that the “relation back” provisions of Federal Rule of Civil Procedure 15(c)(2) apply to federal habeas proceedings. Thus, a habeas petition that was timely filed may be amended after expiration of the AEDPA’s one-year statute of limitations, as may a pleading in any other civil action after the running of the statute of limitations, when “the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Thomas, 221 F3d at 435, n. 3, quoting FRCP 15(c)(2).

In Dufus the Court refused to permit amendment of a habeas claim for ineffective representation by counsel to add a completely factually distinct claim what was not related in any way to the other ineffectiveness claims pled in the original petition. In Thomas the Court noted that “while it would frustrate the intent of Congress [in enacting the AEDPA] to allow Dufus to amend his petition by adding a ‘completely new’ ground for relief after the one-year period of limitations had run, ‘certainly the court could have permitted an amendment to clarify a claim initially made.’” 221 F3d at 435.

In Thomas the Court permitted an amendment to set forth the factual allegations necessary to support and properly plead claims that had been set forth in conclusory terms in the original habeas petition. The Thomas Court specifically left open the question of whether an amendment to set forth a new claim arising out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading should be permitted after the running of the statute of limitations (“Because he has not declared an intention to raise a new claim, we need not reach the issue of whether a new claim would be proscribed if that claim ‘arose out of the conduct, transaction or occurrence set forth ... in the original pleading.’”) 221 F3d at 436. However, the Thomas Court appeared to be disposed to allowing such an amendment inasmuch as it noted that “at least two other circuits have applied Rule 15(c)(2)’s ‘conduct, transaction, or occurrence’ test to cases in which Sec. 2255 petitioners sought to add new claims to their petitions after the expiration of the statute of limitations.” Id. And the Court advanced no reasons why such should not be the law.

In the case of Mr. Jamal, however, the District Court misapplied Dufus and Thomas in denying his motion for leave to file an amended habeas petition. With regard to Claims 1-29, although these are the same claims as in the original petition, and the additions and deletions thereto were clearly within the ambit of “clarifying or amplifying” the District Court denied leave to amend on the peculiar ground that these pleading changes added either “too little” or “too much” to the document.

While strikingly similar to the “three little bears” test for edible porridge (“this bowl is too hot, this bowl is too cold, but this bowl is just right!”), the District Court’s methodology has no resemblance to the test set forth in Dufus or Thomas. “Amplifying” clearly means increasing or making larger. There is no limitation on how much amplifying is proper in either Dufus or Thomas. Indeed, it is difficult to imagine how one could ever amplify a petition more than had been done in Thomas since the original petition in that case had set forth almost no facts at all.

While the District Court inexplicably points to this as a point to distinguish Thomas from this case, because here the original petition did plead facts, such an approach entirely ignores the plain language of FRCP 15 which permits amendments which arise of the same “conduct, transaction or occurrence.” Since Thomas specifically holds that this rule should be applied to “clarifying or amplifying” a pleading, it must apply equally to putting flesh on the bones of a skeleton pleading and fattening up a more slender but still fleshy one. Moreover, in the specific case of Mr. Jamal, the original pleading was drafted by attorneys infected with myriad conflicts of interest which deformed the product of their labors regardless of whether it turned out thin or fat. There is simply no justification to deny amendment that is clearly within the parameters of the “clarifying or amplifying” criterion. Finally, “adding too little” to the pleading is certainly no ground to deny an amendment. The District Court should have permitted the amendment and then ruled on the petition as amended. If the amendment truly added “too little” it would either be superfluous to a winning claim, so there would be no harm in permitting the amendment, or inadequate to save a losing claim, and just as harmless.