Denied Custody in Trial Court? File for a Writ of Habeas Corpus in Federal Court

Habeas Corpus Defined and Explained:

When Your Constitutional Rights Have Been Violated

Habeas Corpus
Lat. "you have the body" Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.

In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has "recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969). " Therefore, the writ must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291.

The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights. The writ is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Harris v. Nelson, 394 U.S. 286, 290-91 (1969). Because the habeas process delays the finality of a criminal case, however, the Supreme Court in recent years has attempted to police the writ to ensure that the costs of the process do not exceed its manifest benefits. In McCleskey the Court raised barriers against successive and abusive petitions. The Court raised these barriers based on significant concerns about delay, cost, prejudice to the prosecution, frustration of the sovereign power of the States, and the "heavy burden" federal collateral litigation places on "scarce federal judicial resources," a burden that "threatens the capacity of the system to resolve primary disputes." McCleskey, 499 U.S. at 467.

The Court observed that"[t]he writ of habeas corpus is one of the centerpieces of our liberties. `But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are essential for civilization.' " McCleskey, 499 U.S. at 496 (quoting Brown v. Allen, 344 U.S. 443, 512 (1952) (opinion of Frankfurter, J.))

The predominant inquiry on habeas is a legal one: whether the "petitioner's custody simpliciter" is valid as measured by the Constitution. Coleman v. Thompson, 501 U.S. 722, 730 (1991). The purpose of the great writ is not to relitigate state trials.

Dismissal of habeas petition under the "total exhaustion" rule of Rose v. Lundy, 455 U.S. 509, 520 (1982) (each claim raised by petitioner must be exhausted before district court may reach the merits of any claim in habeas petition). Jury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment. Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir. 1988); see also Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (introduction of extraneous prior bad acts evidence during deliberations constitutes error of constitutional proportions), cert. denied, 114 S.Ct. 1294 (1994). However, a petitioner is entitled to habeas relief only if it can be established that the constitutional error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 & n.9 (1993). Whether the constitutional error was harmless is not a factual determination entitled to the statutory presumption of correctness under 28 U.S.C. S 2254(d). Dickson, 849 F.2d at 405; Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987).

In a habeas corpus proceeding, a federal court generally "will not review 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, 111 S. Ct. 2546, 2553-54 (1991). This doctrine applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements. Id. at 2254; see also Sochor v. Florida, 504 U.S. 527, 119 L. Ed. 2d 326, 337 (1992). Thus, the independent state grounds doctrine bars the federal courts from reconsidering the issue in the context of habeas corpus review as long as the state court explicitly invokes a state procedural bar rule as a separate basis for its decision. Harris v. Reed, 489 U.S. 255, 264 n.10 (1988).

Habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice. O'Neal v. McAninch, 115 S. Ct. 992, 994-95 (1995). It is the responsibility of the court, once it concludes there was error, to determine whether the error affected the judgment. If the court is left in grave doubt, the conviction cannot stand. Id. On a petition for a writ of habeas corpus, the standard of review for a claim of prosecutorial misconduct, like the standard of review for a claim of judicial misconduct, is " 'the narrow one of due process, and not the broad exercise of supervisory power.' " Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). "The relevant question is whether the prosecutor['s] comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Id. (quoting Donnelly, 416 U.S. at 643).

A federal court has no supervisory authority over criminal proceedings in state courts. The only standards we can impose on the states are those dictated by the Constitution. Daye, 712 F.2d at 1571. Objectionable as some actions might be, when considered in the context of the trial as a whole they are not "of sufficient gravity to warrant the conclusion that fundamental fairness has been denied." Id. at 1572. See Gayle v. Scully, 779 F.2d at 807 (trial judge's caustic, sarcastic comments and offensive conduct, although perhaps inconsistent with institutional standards of federal courts, did not violate due process); Daye, 712 F.2d at 1572 (trial judge's skeptical attitude toward defendant's testimony, and his reinforcement of identification evidence by government witnesses, "approached but did not cross the line that permits [a ruling] that the Constitution has been violated").

The fact that a jury instruction is inadequate by Federal Court direct appeal standards does not mean a petitioner who relies on such an inadequacy will be entitled to habeas relief from a state court conviction. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). In habeas proceedings challenging state court convictions, relief is available only for constitutional violations. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Cupp v. Naughten, 414 U.S. at 147 (constitutionality determined not by focusing on ailing instruction "in artificial isolation" but by considering effect of instruction "in the context of the overall charge."). See also Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (recognizing that "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law" and, therefore, a habeas petitioner whose claim of error involves the failure to give a particular instruction bears an "especially heavy" burden).

Shackling, except in extreme forms, is susceptible to harmless error analysis. Castillo v. Stainer, 997 F.2d at 669. In a habeas case dealing with a state court sentence, the question is whether the shackling "had substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1714 (1993)). If we are in "grave doubt" whether the error affected the verdict, the error is not harmless. O'Neal v. McAninch, 115 S. Ct. 992, 994 (1995).

The risk of doubt, however, is on the state. Id. at 996 (rejecting language in Brecht v. Abrahamson which places on defendant burden of showing prejudice). See Castillo v. Stainer, 983 F.2d at 149 (finding shackling at trial harmless error because defendant only wore waist chain that could not be seen by jury).

Mom: Baby Ayla's Dad Didn't Protect Her

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DCYF Screws up Again-Search for missing Maine toddler goes inside home

Search for missing Maine toddler goes inside home - TODAY People - TODAY.com:

WATERVILLE, Maine — Investigators on Thursday put up tape around the home of a 20-month-old girl who's been missing since last weekend as the search for her entered its sixth day.

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Ban Forced Psychiatric Medication in Kids

Ban Forced Psychiatric Medication in Kids

Educate Decision Makers Below!
[Action Item Here.]
Natural Solutions Foundation
Your Voice of Global Health & Food Freedom & Justice™
Tiny URL for this Action Item: http://tinyurl.com/NoForcedDrugging
Main Web Page: www.HealthFreedomUSA.org

Stop Forced Psychiatric Drugging of Children!
Tell Your Representatives about HR.2769.

HR.2769 - Parental Consent Act of 2011
Introduced by Rep. Ron Paul (Texas)

Mandated vaccines... 40% of foster care kids drugged...

Rumors of artificial lithium being added to the toxic fluoride in public water...

Here is Thomas.gov summary of the Bill:

HR.2769 - Parental Consent Act of 2011 - Prohibits federal funds from being used to establish or implement any universal or mandatory mental health, psychiatric, or socioemotional screening program.

Prohibits federal education funds from being used to pay any local educational agency or other instrument of government that uses the refusal of a parent or legal guardian to provide consent to mental health screening as the basis of a charge of child abuse, child neglect, medical neglect, or education neglect until the agency or instrument demonstrates that it is no longer using such refusal as a basis of such charge.

Defines a screening program under this Act as any mental health screening program in which a set of individuals is automatically screened without regard to whether there was a prior indication of a need for mental health treatment, including: (1) any program of state incentive grants to implement recommendations in the July 2003 report of the New Freedom Commission on Mental Health, the State Early Childhood Comprehensive System, grants for TeenScreen, and the Foundations for Learning Grants; and (2) any student mental health screening program that allows mental health screening of individuals under 18 years of age without the express, written, voluntary, informed consent of the parent or legal guardian of the individual involved.

[Action Item Here.]

Here is Dr. Paul about this issue:

"Maryanne Godboldo, a mother in Michigan, noticed that pills prescribed by her daughter’s doctor were making her condition worse, not better. So Mrs. Godboldo stopped giving them to her. That’s when the trouble began. When Child Protective Services (CPS) bureaucrats became aware that the girl was not receiving her prescribed medication, they decided the child should be taken away from her mother’s custody on grounds of medical neglect. When Ms. Godboldo refused to surrender her daughter to the state, CPS enlisted the help of a police SWAT team! On March 24 of this year a 12 hour standoff ensued and young Ariana was taken into custody. The drug involved was Risperdal, a neuroleptic antipsychotic medication with numerous known side effects. Ms. Godboldo had decided on a more holistic approach for her daughter. She is still engaged in a costly legal battle with the state over Ariana’s treatment and custody.

"This is one example of how government’s increasing proclivity to medicate children with questionable psychiatric drugs violates the rights of parents. Just recently, the Government Accountability Office released a report on the astonishingly high rate of prescriptions for psychotropic drugs for children in the foster care system. It is absolutely astounding that nearly 40% of kids in foster care are on psychotropic drugs, some of them taking up to 5 different pills at a time. Some of these children are under one year of age – too young to safely take over the counter cold medication!"

Ron Paul: No Mandatory "Mental Health" Screening for Children!


Read More at the above site:

Some DHS workers allowed to keep jobs after child deaths

Some DHS workers allowed to keep jobs after child deaths | NewsOK.com:

Agency audit discovered ‘substantial violations,' blatant irresponsibility by child-welfare workers in three deaths
DHS workers are not always fired over mistakes that contributed to children's deaths.


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Foster care system puts adoption on table

Foster care system puts adoption on table | New Hampshire NEWS:

My comment:
In all actuality,I doubt Gavin's mother voluntarily relinquished her rights. Maggie Bishop has a knack for stretching the truth. Children wouldn't be in foster care so long, if relative placement was practiced as mandated, before foster care, but in Nashua relatives are told, "Relative placement is NOT an option." Services aren't provided to at risk families before foster placement occurs. Another govt. mandated not followed by Nashua DCYF. If Title IV funding were stopped, DCYF would have to do the job their paid to do. Preserve families, NOT destroy them! The incentive money their receive is for families torn apart.


The result has been kids going back home faster or getting adopted faster, according to Maggie Bishop, the director of the New Hampshire Division of Children, Youth and Families (DCYF).

Kids going back home? Who is she kidding? Many of them shouldn't have been taken in the first place!

Twas the Night Before Christmas-Dedicated to Austin and Isabella Knightly

I wrote this poem for my grandchildren on Christmas Eve 2007, after they were stolen by Nashua, NH DCYF. Isabella was stolen on October 3rd, 2005 and Austin and Ally were stolen on February 3rd, 2006.


“Twas The Night Before Christmas”

Twas the night before Christmas and all through the house,
Not a grandchild was laughing, not a present in the house,
The stocking’s weren’t hung by the chimney this year,
Because of DCYF, the children wouldn’t be here,

We begged and we pleaded for the children’s return,
But the DCYF Gestapo love to see Grandparent’s squirm,
They claim we’re emotional when we fight for our right’s,
But we’ll never give up this horrible fight,

They’ve made us aware of their corruption this year,
They want all family’s to live in fear,
They’ve taken away what we hold most dear,
They’ve taken away our Grandparent’s Right’s,
We need to stand up and Fight, Fight, Fight,

So the stocking’s are packed away for this year,
I’m sure DCYF won’t shed a tear,
As long as they get their incentive, which they hold so dear,
Grandchildren mean everything, but what does DCYF care?