Sirhan is currently ar the RICHARD J. DONOVAN PRISON, 2180 Alta Rd., San Diego 92179. The Warden is DANIEL PARAMO and I believe that the phone number is 619 661 6500.
Thanks for any help you may render. The Ninth Circuit Panel is considering the COA Request we have filed which is attached hereto.
COURT FILING IN SIRHAN-RFK CASE
WILLIAM F. PEPPER
D.C. Bar No. 464502
1003K St., Suite 640
Washington, D.C., 20001
575 Madison Ave, Suite 1006
New York, NY 10022
Telephone: (212) 605-0515
Facsimile: (718) 956-8553
LAURIE D. DUSEK
NY State Bar No. 2588481
63-52 Saunders St.
Rego Park, NY 11374
Telephone: (718) 897-2700
Facsimile: (718) 897-2703
Attorneys for the Petitioner
Admitted Pro Hac Vice
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Comes now the Petitioner Sirhan Bishara Sirhan by his undersigned counsel and files that his request for a Certificate of Appealability (“COA”)of the Order dated January 5, 2015 and entered January 5, 2015 dismissing the Petition, and requests this Honorable Court issue a COA, pursuant to Title 28, United States Code § 2253 (c) (1) (B), and Rule 22 (b) Federal Rules of Appellate Procedure. Rule 22(b) of the Federal Rules of Appellate Procedure ad Title 28 U.S.C. §2253 requires issuance of a COA before an appeal may be heard of a denial of a petition for relief under 28 U.S.C. §2255. Petitioner previously filed a timely Notice of Appeal January 29,2015 and entered January 29, 2015. Petitioner did not ask this Court to treat his Notice of Appeal as a request for a COA as permitted under Rule 22 (b) (2), instead he has elected to file this separate request which is being filed in a timely manner.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) amended 28 U.S.C. 2253 to require that a Petitioner request a COA instead of a Certificate of Probable Cause (“CPC”) in order to appeal the denial of a petition, unlike the procedure of reissuance of a CPC, under the amended version of Section 2253, the district court when granting the COA must indicate for which specific issue or issues the Petitioner had made a substantial showing of the denial of a constitutional right. 28 U.S.C. §2253(c)(2),(3).
The Supreme Court in Slack V. McDaniel, 529 U.S. 473, 1205. Ct 1595, 146 L. Ed. 2d 542 (2000), held that in a Section 2254 or 2255 proceeding:
When a habeas corpus petitioner seeks to
initiate an appeal of the dismissal of a
habeas corpus petition after April 24,1996
(the effective date of the AEDPA)the right
to appeal is governed by the Certificate of
Appealability (COA) requirements now found
at 28 U.S.C. §2253 (c)(1994 ad Svpp.111).
This is true whether the habeas corpus
petition was filed in the district court
before or after the AEDPA’s effective date.
Subsection (c) as amended by the AEDPA, provides:
Unless a circuit justice or judge issues a
Certificate of Appealability, an appeal may
not be taken to the Court of Appeals from;
(A) The final order in a habeas corpus proceeding
in which the detention complained of arises
out of process issued by a state court; or
(B) The final order in a proceeding under Section 2255.
(2) A Certificate of Appealability may issue
under paragraph (1) only if the applicant
has made a substantial showing of the denial
of a constitutional right.
(3) The Certificate of Appealability under
paragraph (1)shall indicate which specific
issue or issues satisfy the showing required
by paragraph (2).
In Slack, the Supreme Court explicitly laid out the test that courts should apply in deciding whether to grant a COA, both, as to claims dismissed by a district court on either the merits or procedural grounds – “Where a district court has rejected the constitutional claims in the merits ... the petitioner seeking a COA must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S. Ct. at 1604 (emphasis added)
Petitioner’s petition and supporting Memoranda of law raised such grounds.
The issues are:
The Violation of Petitioner's Sixth Amendment Rights -Ineffective Assistance of Counsel
The Denial of Due Process in Violation of Petitioner'S
14TH Amendment Rights
Petitioner's Actual Innocence
1. Ineffective Assistance of Counsel of Counsel
The inadequacy of Petitioner’s counsel is so blatantly explicit that its rejection by the magistrate and the acceptance by the court of this conclusion, is mind boggling. Petitioner’s counsel was under a federal, criminal indictment during the entire trial. At the conclusion of the trial when Petitioner was convicted and sentenced to death, it is undisputable that that indictment went away – was not pursued.
The State, and the court below, asserts that Petitioner waived any objections and accepted Grant Cooper as his counsel- ignoring the vulnerability of the Petitioner who was advised by the same conflicted lawyer that he was guilty, and the task was to save his life; prevent a capital conviction. Petitioner had no independent advice outside of this lawyer’s contacts.
Given this history and context, which was set out before the district court, it is necessary for this court to fully understand what Petitioner’s trial counsel did in his “defense” of Petitioner.
He advised the court on January 6, 1969,that
he intended to assert the defense of diminished capacity in an effort to avoid the first degree murder charge and death penalty.
He stipulated to the authenticity of the
ballistics evidence introduced by the State,
especially People’s Exhibit 47 – the alleged
neck bullet, without conducting any investigation.
He failed to investigate any other Possible
defense available to Petitioner.
D. He failed to move for a mistrial when the State
delayed the disclosure of the autopsy report.
The defense counsel, receiving absolutely no benefit for Petitioner, on February 21, 1969, stipulated, without any investigation, to the authenticity of bullets yet to be introduced (RT3967). Most importantly, defense counsel’s stipulation was not made after a reasonable investigation, but took, and accepted, at face value the State’s contentions. Not only did Petitioner’s conflicted counsel refuse to conduct any investigation before deciding that his client was guilty, but he convinced Petitioner who had no memory of the specific events at the time of the shooting, that he did it and that there was no defense against the evidence against him. Specifically, Petitioner stated, “I was told by my lead trial attorney, Grant Cooper, that I shot and killed Senator Kennedy and that to deny this would be completely futile.” (Ex J Declaration of Sirhan Sirhan 1:4-6, Aug 9, 1997).
Conflicted counsel Cooper’s closing argument to the jury constitutes the best evidence of ineffective legal representation one could imagine.
Defense Counsel made certain that the jury was never in doubt that his client was guilty and that he should never be allowed to return to civil society.
To emphasize this opinion, Counsel addressed the jury, on the issue of guilt or innocence in the following way:
“Now, let me state at the outset that I want this to sink in if anything sinks in-we are not here to free a guilty man. We tell you as we always have, that he is guilty of having killed Senator Kennedy.” (RT 8554 emp. added)
“And as I have said before, we are not asking for an acquittal and we expect that under the evidence in this case, whether Mr. Sirhan likes it or not, under the facts of this case, he deserves to spend the rest of his life in the penitentiary.” (RT 8555 emp. added)
“You may say, “well, isn’t this a case of direct evidence? Don’t we know from dozens and dozens of witnesses that this defendant pulled the trigger that killed Senator Kennedy?”
That of course is direct evidence; there is no question about that.” (RT 8563 emp. added) (One has to wonder what Trial defense Counsel was sitting through in terms of the evidence he supposedly observed.)
“I wouldn’t want Sirhan Sirhan to be turned loose as he is dangerous, especially when the psychiatrists tell us that he is going to get worse and he is getting worse. There is a good Sirhan and a bad Sirhan and the bad Sirhan is nasty…we as lawyers owe the obligation to do what we think is right to the fullest extent of our ability but we also owe an obligation to society. And, I, for one, am not going to ask you to do otherwise than to bring in a verdict of guilty in the second degree.” (RT 9567 emp. added)
Guilt aside, defense Counsel, particularly in this case with a wealth of psychiatric testimony (however, erroneous) indicating some degree of mental illness, could have been expected to focus on this mitigating factor. Petitioner did not even get this benefit of his Counsel’s argument. Please note the following:
“There must be a specific intent to kill in murder of the first degree and murder of the second degree: and you will recall that most of all of the defense psychiatrist said that this defendant had the ability to form a specific intent to kill. He had the mental capacity to form the specific intent to kill.” (RT8585 emp. added)
“You may assume, and I think it would be, from my point of view at least, as I view the evidence, illogical to suggest that this wasn’t a premeditated –willful, deliberate and premeditated murder. Mark that down.” (RT 8546-8547 emp. added)
Even, at one point, arguing against the jury considering a lesser charge-manslaughter-he told them:
“There is no suggestion in this case, so far as I view the evidence at least, that it was a sudden heat of passion which reduces it to manslaughter in one of its forms…” (RT 1585 emp. added)
At one point in his argument, Counsel had advised the jury:
“Now in this case, on really the only issue you have before you, that is as to whether or not this defendant had diminished capacity. That’s the only issue you have before you.”(RT 8561 emp. added)
He then proceeded, step by step, to eliminate the possibility of the jury seriously considering the impact of any potential diminished capacity on the defendant’s ability to form the intention to willfully and with premeditation murder the Senator. He began this process by referring to Petitioner’s alleged writing in a notebook found in his room. There are serious questions about the very legitimacy and origination of those writings which threaten political leaders and the government in general and the Senator in particular could only have set an inflammatory atmosphere for the jury’s mind. (RT 8571-8572)
Throughout his closing argument, Petitioner’s Trial Counsel never lost an opportunity to praise the prosecution’s case and the prosecutors themselves. He, continually, strangely, elevated them, and the prosecution’s case in the jury’s eyes.
Since we know what was motivating him we should not be surprised, however disappointed we might be, that the prosecutors and the Trial Judge, who were aware of the conflict and who collaborated with the actions of defense counsel, were not subject to sanctions.
Petitioner respectfully submits that the Magistrate and the habeas Judge have no such excuse. The acquiescence of a vulnerable, isolated defendant is no excuse or justification for the abuse of process which has resulted in him being incarcerated, now, for 46 years.
The truth has come home to roost. It is time to draw a line under this decades old miscarriage of justice. Justice delayed can indeed be justice denied but, it can also be justice resurrected and redeemed. As my French colleagues, who have reviewed this file say-Les jeux sont faites. The game is up.
The district court, basically, fundamentally, ignored defense counsel’s indictment which clearly underlays his conflict and the resulting blatantly ineffective legal assistance in violation of Petitioner’s Sixth Amendment Rights.
The district court concedes that in McQuiggan v. Perkins, the Supreme Court held that evidence proving actual innocence may serve as a gateway for Schlup and have his constitutional claims heard on the merits. (Schlup, 513 U.S. at 324) Actual innocence may be found if it is more likely than not that no reasonable juror would have found Petitioner guilty beyond a reasonable doubt, and where post-conviction evidence undercuts proof of guilt. See Lee V. Lampert, 653 F. 3d 929 (9th Cir. 2011)
Defense Counsel Cooper conducted no investigation on behalf of his client and this insured the fact that evidence currently being advanced on behalf of Petitioner was not considered by the jury.
2. The Brady and Strickland Due Process Violations
The introduction of the bullet marked “DN” “TN” as the bullet removed from the neck of the victim, instead of the actual bullet removed by the medical examiner which was marked “TN31”, constituted the introduction of false evidence. The collaboration of defense counsel – discussed infra-compounded the Brady, Strickland violations.
The State's undisputed failure to disclose the autopsy report, prior to trial, which revealed that the shooter was behind Senator Kennedy and firing in an upward angle, Petitioner was thus denied an opportunity to utilize available exculpatory ballistics evidence and his uninformed concession by guilt was a product of these violations. State’s suppression of the fatal bullet removed from the victim’s neck and its delay in disclosure of the autopsy report are not the only evidence suppressed which violated Petitioner’s right under Brady. The State also suppressed evidence that more than eight bullets were recovered at the scene. (See Ex. 80 to Petition Statement of FBI Agent William A.Bailey, November 14, 1976)
The Brady criteria are clearly satisfied. The State
possessed and withheld evidence favorable to the defense and with respect to ballistics evidence (Supra) replaced it with substitute evidence by preventing the medical examiner from being shown the neck bullet introduced into evidence because it was not the one he removed and marked as “TN31”and he would have so testified. Had the material evidence been available to the judge and jury, there is every reasonable probability that the outcome of the trial would have been different
Petitioner notes that it has taken the district court
nearly sixteen months to issue its decision. Petitioner contends that the factual evidence of actual innocence is so explicit even though the district court ultimately failed to acknowledge, it, resulting in an erroneous dismissal without allowing Petitioner’s evidence to be heard under oath in an evidentiary hearing.
The district court and Petitioner agree that in McQuiggan v. Perkins, the Supreme Court held that proof of actual innocence provides a gateway through which Petitioner may pass, whether the impediment is a procedural bar or an assessment on the merits, 133 S. Ct. 1924, 1928 (2013).
Petitioner agrees that with such possession of the facts, the Perkins standard requires him to demonstrate that it is more likely than not that no reasonable juror would have found him guilty. Lee v. Lampert, 653 F. 3d. 929. 937 (9th Circuit 2011) in accordance with Schlup v. Pelo 513 U.S. 298, 329 (1995).
Petitioner notes that both the Respondent and the district court agree that under Lee and Schlup, if the evidence casts doubt on the conviction by undercutting the reliability of the proof of guilt, even if not affirmatively proving innocence, that can be enough to pass through the Schlup gateway to allow consideration of otherwise barred cases. Lee, 653 f 3d at 938. Petitioner contends that this is the situation in the instant case.
3.1 The Autopsy Report
The district court ignored the actual factual findings of the Medical Examiner. The victim, Senator Kennedy, was hit by four bullets fired at powder burn range from behind in an upward angle – meaning that the shooter was behind and beneath his target. Three bullets entered the Senator’s body a fourth bullet went through his shoulder pad.
Every eyewitness places Petitioner in front (though with varying estimates of distance) of the Senator at all times. Further, significantly, multiple independent eyewitnesses confirm that Petitioner’s shooting hand and gun were pinned to a table, out of his control, after he discharged a second shot. Petitioner does not deny that he fired a weapon that evening but does not remember how or why he did so.
Respondent and the court ignored the indisputable facts set out above. How could Petitioner have fired four powder burn shots into the Senator’s body from behind and beneath the victim? No amount of chaos and turbulence could have put Petitioner on his knees behind the Senator to fire four upward shots. By focusing on the fatal head shot, fired about an inch from the Senator’s right ear, aside from the logistical impossibility of Petitioner ever getting that close, the district court totally ignores the other three shots which, were indisputably fired with the weapon pressed against the Senator’s body. However, inadvertent this omission must be rejected.
Even the most favorable witness statement for the prosecution, with respect to Petitioner’s position, places him at least two feet in front of the Senator. Most agree with the range of proximity being between five and seven feet. There is absolutely no evidence that he was ever behind or facing the back of the Senator.
3.2 The Nina Rhodes–Hughes Declaration
The district court’s opinion in respect of the declaration of Nina Rhodes-Hughes is, whether inadvertent or not, distorted and inaccurate. In fact, Ms. Rhodes-Hughes states explicitly that she followed Senator Kennedy into the pantry and was about six or seven feet behind him when she heard sounds that she thought, at first, were camera flash bulbs going off. She heard two or three of those sounds – which clearly appear to be the initial shots fired by Petitioner – and noticed that the Senator did not appear to have been wounded by those shots, coming from her left – Sirhan’s direction. She noticed Rafer Johnson and Rosie Grier running to this spot to her left joining other men trying to subdue Petitioner. Then, though ignored by the district court’s opinion, she stated that she heard more gunshots to her right where Senator Kennedy had been located. She stated that three shots continued in a more rapid fire and with a different sound. She then noticed that the Senator had been shot, and she fainted, but only after she saw that the Senator was down.
Nina Rhodes-Hughes said that, before fainting, she had counted a total of between twelve and fourteen shots having been fired from the two different locations. Petitioner is astounded that Respondent, the Magistrate, and now the district court judge has had the audacity to distort and otherwise ignore the observations of this critical witness as it affects and facilitates the actual innocence of Petitioner, and the fact that it is more likely than not that, possessed of this evidence and other evidence set out herein, that a juror acting in a reasonable manner would not find Petitioner guilty beyond a reasonable doubt.
3.3 The Pruszynski Tape Recounting
During the shooting, a reporter on the scene, Stanislaw Pruszynski, inadvertently left his tape recorder on and, as a result, clearly captured the sounds of the shots being fired. In terms of qualifications and methodology, none of the analyzing “experts” are no way near Petitoner's expert, Phillip Van Praag. His analysis is detailed and explicit. The court faults Petitioner for failing to exercise diligence in not discovering and analyzing the tape earlier, but Van Praag, in collaboration with Robert Joling, a Fellow and past president of The American Forensic Science Institute, were able to analyze the tape using technology and techniques not previously available.
This analysis identified thirteen distinct “shot sounds” in the tape (Ex. A Joling Decl.) (4: 25-27). Van Praag and Joling have concluded that the sounds they heard were, in fact, gun shots rather than, for example, balloons popping. Van Praag states that the sound from a gunshot is caused by the vibration of the weapon interacting with its mass. Bullets, because they have a good deal of mass, resonate for a much longer period than objects with a much lighter mass, such as balloons. He concluded that the resonance he heard on the tape resonated for far too long to be anything other than a discharged bullet, therefore; he was certain that he heard thirteen distinct shot-sounds.
This determination clearly demonstrates the existence
of a second shooter since Petitioner’s .22 caliber Iver Johnson
Revolver held eight bullets, and with his shooting hand pinned to the table after the second shot, Petitioner was unable to reload. This fact has never been disputed but is ignored by the district court which to erroneously accept the assertion that Petitioner was in control of his weapon when firing all eight shots.
In addition, Van Praag’s analysis is not limited to the number of bullets fired. Rather, he also heard two sets of “double shots” on the tape, i.e. two shots fired extremely close together in time. The first set that Van Praag detected had a separation of 149 milliseconds and the second set had a separation of 122 milliseconds (roughly eight shots per second).
According to firearms experts, two or three shots per second is fast. Using a precise model of Petitioner’s low priced Iver Johnson revolver, the Discovery channel in 2009 conducted a rapid fire test. A noted firearms expert was used, and the fastest two shot firing the expert could achieve was a shot separation of 366 milliseconds, which clearly demonstrated that Petitioner’s weapon could not have been responsible for the double shots, simply because he could not have pulled the trigger in such rapid succession.
These forensic conclusions – ignored by the court – are, of course, independently confirmed by the observations of Nina Rhodes-Hughes as set out above. The district court relies on an analysis of a dubbed copy of the tape by Phillip Harrison, which appeared in a book and not under oath. Harrison allegedly concluded that eight shots were fired. The court neglects to state that Harrison did not have access to the advanced technology utilized by Van Praag and Joling, was never sworn and only quoted in a book with no follow up to give credibility to the alleged conclusion.
Even though the court acknowledges the existence of discrepancies amongst witness statements, it refuses to grant Petitioner the obvious forum for their resolution – an evidentiary hearing.
3.4 Ballistics Evidence
As discussed, supra Petitioner’s counsel totally acquiesced to the prosecution's position with respect to the ballistics evidence introduced at trial. Defense counsel, incredibly, conducted no independent ballistics investigation.
At trial, the State was allowed to put on its own witness to testify about the critical bullet in evidence which allegedly lodged in and was removed from the neck of the Senator.
The Medical Examiner, Thomas Noguchi, who actually removed the neck bullet in the conduct of his autopsy, and who marked the bullet “TN31”, was not allowed to testify about this procedure due to the collaboration of defense counsel and prosecutor. Consequently, the State was allowed to introduce into evidence by their witness, an alleged neck bullet which had the marking “DN” “TN” whilst withholding from the defense the actual bullet removed and marked “TN31” by the Medical Examiner from the Senator’s neck which he turned over to Sargent Jordan of the LAPD. (Ex. D Mediocolegal Investigation on the Death of Senator Robert F. Kennedy).
This would not have happened if Dr. Noguchi had been allowed to identify the bullet he removed and marked going into evidence. In the fact of this undisputed factual process, the court below says that the issue raised by Petitioner in support of his claim of actual innocence has been rejected previously, and no merit is found in Petitioner’s objections.
Petitioner submits that it cannot be argued with a straight face that no reasonable juror, if confronted with these facts, would accept the State’s assertions as to this critical evidence and the denial to the defense of the exculpatory evidence- the actual bullet removed from the Senator’s neck.
3.5 The Hypno-programming of Petitioner
Dr. Daniel Brown, a professor of clinical psychology at
The Harvard Medical School, spent seventy hours with Petitioner administering standard tests, discussions under hypnosis, and free recall, interview sessions. Dr. Brown is one of the world’s leading experts in hypnotic programming, a technique and practice which has been developed and available to governmental specialists throughout the world including the United States.
After these extensive sessions with Petitioner, Dr. Brown concluded that Petitioner is highly suggestible and particularly vulnerable to hypno-programming, and that on the night of Senator Kennedy’s assassination, Petitioner was, in fact, responding to a hypnotic cue provided by a female handler who attached herself to him at the Hotel. Dr. Brown states in his declaration: “Mr. Sirhan did not go with the intent to shoot
Senator Kennedy, but did respond to a specific
hypnotic cue given to him by that woman to enter a
range mode, during which Mr. Sirhan automatically
responded with a flashback that he was shooting at
a firing range at Circle Targets. At that time, Mr.
Sirhan did not know that he was shooting at people,
nor did he know that he was shooting at Senator Kennedy.”
(Ex. 1 Brown Decl. at 8 10.1)
Dr. Brown’s analysis fully supports the notion that Petitioner was in fact responding to a hypnotic cue on the night of Senator Kennedy’s murder. Specifically, Dr. Brown concludes that “(t)ouching Mr. Sirhan on his shoulder and/or turning him around suggests an (sic) hypnotic cue to enter “range mode,” to hypnotically hallucinate the firing range, and to fire automatically upon cue.” Exhibit I, Brown Decl., at 14 ¶10.18. Moreover, there is not a single shred of evidence to contradict the account that Petitioner was in fact hypno-programmed.
The court rejects Dr. Brown’s conclusions as well as the confirming opinion of Dr. Simon Kallas, the Department of Corrections psychologist, who spent considerable time with Petitioner after incarceration. Accordingly, Dr. Brown’s and Dr. Kallas’ agree that Petitioner’s susceptibility to hypnotism, combined with him being highly socially compliant, with a high dissociative coping style, whi resulted in Petitioner being manipulated and coerced to firing his weapon on the fateful night. Professor Sheflin also provided a detailed history of the development, use and reality of hypno-programming. In light of this professional expertise the district court, without granting an evidentiary hearing, dismisses the possibility, out of hand, that if provided with this evidence, a reasonable juror would have refused to convict. In addition, any reasonable juror would have found it ludicrous that Petitioner’s orchestrated statement “I killed Robert Kennedy willfully, premeditatively, with twenty years of malice aforethought” had any merit as the Petitioner was twenty four when he made the statement. Sirhan,7 Cal.3d at 720. Thus, Petitioner would have been four years old when he began to have this “malice aforethought”.
This statement is a prime example of Petitioner’s vulnerability and suggestibility but certainly cannot be taken as a credible admission of guilt. The State and, now the district court, confirm that Petitioner, as a four year old harbored “malice aforethought” towards Robert Kennedy who, himself, as a private citizen, would have only been twenty two years of age. (Dkt. No.222 at 21.)
Petitioner contends that the gateway to Schlup, for establishing actual innocence, has been satisfied and that minimally this issue should be certified for review on appeal.
Wherefore, based on the foregoing arguments and authority, Petitioner Sirhan Bishara Sirhan respectfully submits that he has made a substantial showing of the denial of constitutional rights as to all grounds set forth above and is entitled to the issuance of a Certificate of Appealability as to all grounds. Dated: February 3, 2015
William F. Pepper
Laurie D. Dusek
Attorneys for Petitioner
Sirhan Bishara Sirhan
REQUEST FOR A CERTIFICATE OF APPEALABILITY
SIRHAN BISHARA SIRHAN
P.D.BRAZELTON, WARDEN, et al,
D.C. NO.: CV-00-5686-BRO (AJWx)
PETITIONER SIRHAN BISHARA SIRHAN’S REQUEST FOR A CERTIFICATE OF APPEALABILITY UNDER TITLE 28 USC, SECTION 2253(C)