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Thursday, March 2, 2017

UNLAWFUL  ACTION

The procedures for invoking a justice court's limited jurisdiction must be strictly pursued.  Paul v. Armstrong, 1 Nev 134 (1865). Its acquisition of jurisdiction must affirmatively appear. Camino v. Lewis, 52 Nev 202, 284 P 766 (1930); A proper pleading is required to invoke a court's otherwise dormant jurisdiction. Lane v. District Court, 104 Nev 427, 760 P2d 1245 (1988) citing State ex rel Preissler v. Dostert, 260 SE2d 279 (WVa 1979). The party seeking to invoke a court's jurisdiction must have authority to do so. Ryan v. District Court, 503 P2d 842 (1972); Southwest Gas v. District Court, 85 Nev 40, 449 P2d 259 (1969). A justice court only has the authority granted by statute. Parsons v. District Court, 110 Nev 1239, 885 P2d 1316 (1994). 

NLVJC Case No. 208-84FN Commenced June 15, 1984

The record of the first appearance indicates no party with the requisite belief that Mr. Rider committed any crime filed the sworn statement of facts required by NRS 171.178(4) to (a) invoke the court's authority and (b) inform Mr. Rider of any factual allegation he might prove false. Sanders v. Sheriff, 85 Nev 179, 451 P2d 718 (1968). The record further indicates that the magistrate explained charges, the rights involved and set bail at $80,000 to ensure Mr. Rider's future appearance in 208-84FN, but for purposes other than preliminary examination:


Whether by oral complaint, from extra-judicial knowledge or nothing at all, the initiation of 208-84FN could only result from a concerted usurpation of executive, legislative and judicial power. Galloway v. Truesdell, 83 Nev 13, 422 P2d 237 (1967). A criminal complaint was required to be reduced to a sworn writing (NRS 171.102), filed at the first appearance (NRS 171.178[4]) and provided to the accused. NRS 171.186. A justice court acquires no jurisdiction absent a formal and sufficient allegation. Williams v. Municipal Court, 85 Nev 425, 456 P2d 440 (1969); In re Waterman, 29 Nev 288, 89 P 291 (1907). A judge lacks authority to initiate a criminal action sua sponte. Del Papa v. Steffen, 112 Nev 369, 915 P2d 245 (1996); Cunningham v. District Court, 102 Nev 551, 729 P2d 1328 (1986). Assuming the dual roles of judge and complainant "could hardly be a more appropriate setting [ ] for a per se rule of disqualification." Coollidge v. New Hampshire, 403 US 443 (1971); Tumey v. Ohio, 273 US 510 (1927) (judicial bias is a structural defect). The magistrate lacked authority to obligate a future sexual assault complaint. Cairns v. Sheriff, 89 Nev. 113, 508 P.2d 1015 (1973). That was an act of prejudice. NRS 1.230. He was obligated instead to enforce the essentials of fairness as probable cause and notice against law enforcement. United States v. Gross, 159 FSupp 316 (DC Nev 1958). The only basis to validate detention is a written complaint. NRS 171.106. The magistrate was required to consider the offense charged in order to set the amount of bail. NRS 178.498. No provision allows a criminal action to proceed unsubstantiated by probable cause. Detention without sufficient lawful authority is a felony under NRS 200.460The magistrate's acts and omissions were, ironically, the only criminal matter in the record of 208-84FN  -------- a record that neither required nor allowed any defense for want of the following matter:

1)  a competent witness
2)  all elements of a crime
3)  in the State of Nevada
         
No evidence was recorded. NRS 1.020. The court business required for a criminal action is not public. NRS 1.090. No charge could be amended. NRS 173.095(1). No transaction could be joined. NRS 173.115. The absence of probable cause could not be rehabilitated by future testimony alleging new facts.   Whiteley v. Warden, 401 US 560 (1971). The magistrate's fraudulent intimations of crime at the first appearance were coram non judice. The lack of authority to appoint counsel left Mr. Rider without the remedies available to indigent defendants in criminal actions.

6th Amendment

The first appearance in a criminal action triggers the right to counsel under NRS 178.397 
and the 6th Amendment. Brewer v. Williams, 430 US 387 (1976); McCarty v. State,  371 P3d 1002 (2016). That right includes self-representation if able to fairly do so. Faretta v. California, 422 US 806 (1975). Mr. Rider was not provided counsel and self-representation was foreclosed by the want of adequate notice or achess to a law library.

Counsel was not provided for Mr. Rider's second appearance in 208-84FN when a written complaint was sworn to and filed without formal disposition of an original complaint and, thus, without the good cause, written findings and court order required by NRS 174.085(5) before a remediable complaint could be filed in 1984. That tardy complaint was likely an abuse of procedural rules to enable the addition of new offenses that could not be added by formal amendment of a timely filed complaint. NRS.173.095(1). That disregard of important procedural rules affecting substantive rights appropriately results in dismissal with prejudice. Maes v. Sheriff, 86 Nev 316, 468 P2d 332 (1970); Oberle v. Fogliani, 82 Nev 428, 420 P2d 251 (1966). The good cause required by NRS 171.178(3) for delay was neither offered nor elicited which indicates complicity. Delay to allow for the development of additional evidence to justify an arrest was improper under Aguilar v. Texas, 378 US 108 (1964). Lawful investigative detention could not exceed 30 minutes in 1984. NRS 171.123. Proceeding further in 208-84FN was, therefore, without the process of law that is due in a criminal action. 

Prejudice should be presumed under United States v. Cronic, 466 US 648 (1984) from the complete denial of counsel above, as well as from the subsequent inaction by the public defender toward the contined absence of (1) adequate notice, and (2) the determination of probable cause required by Gerstein v. Pugh, 420 US 103 (1975). A defendant in a criminal action has a right to [conflict free] counsel at preliminary examination. Coleman v. Alabama, 399 US 1 (1970).

Beyond a presumption of prejudice: the public defender unsuccessfully objected to a continuance of the preliminary examination and requested an OR release but made no attempt to enforce the affected rights through prohibition or habeas corpus. This failure was prejudicial because Ormound v. Sheriff, 95 Nev 173, 591 P2d258 (1979) plainly required dismissal of the action: relying on a justice court subpoena to secure the attendance of an out-of-state witness, making no attempt to contact that witness until 2 days before the scheduled preliminary hearing, and without making travel arrangements for her 1700+ mile trip was not due diligence. Thus, Mr. Rider was also denied his right to the effective assistance of counsel as set forth in Strickland v. Washington, 466 US 668 (1984).

Intervener, Amendment and Joinder

A court action retains its character from commencement. Mollan v. Torrance, 9 Wheat 537 (1824). An intervenor takes a case as he finds it. Moore v. District Court, 77 Nev 357, 364 P2d 1073 (1961). All an intervenor could find here was Mr. Rider unlawfully detained without notice or probable cause in an unlawful action that sprang from the bench sua sponte. NRS 200.460. Filing a criminal complaint prepared for that action was futile and Article IV Section  1 could extend no valid basis to seize of an out-of-state victim-witness under the uniform act. NRS 200.310

208-84FN commenced without a charge and, therefore, may not be characterized as a criminal action. See NRS 169.055(a criminal action is the proceedings by which a party "charged" with a public offense is accused ...). NLVJC Case No. 208-84FN will forever remain a constitutionally incestuous blight over which no court of law may acquire jurisdiction to proceed. Nev Const Art 3 Sec 1.  That absence of authority could not be cured by any amendment. Cadle v. Shabani, 4 So3d 460 (2008). And the mere appearance of a deputy district attorney did not remove the party destroying jurisdiction, i.e., the over-reaching  disqualified  magistrate.  Grupo Dataflux v. Atlas Global, 541 US 567 (2004). The deputy district attorney was obligated by such rules as 8.3(b) and 8.4 of the Rules of Professional Conduct to report 208-84FN to authorities, and abstain from participation. 

Without proper motion or notice, the magistrate had no authority to allow the deputy district attorney to intervene, amend or join. Monroe Ltd v. Central Telelphone Co., 91 Nev 450, 538 P2d 152 (1975); Maheu v. District Court, 88 Nev 26, 493 P2d 709 (1972); Iveson v. District Court, 66 Nev 145, 206 P2d 755 (1949). Moreover, nothing authorizes the filing of an original complaint at a defendant's second appearance in a pending criminal action. That tardy complaint was fugitive as out of step with due process. NLVJC Case No. 208-84FN would thus remain an abuse of power and process under unlawful extra-judicial complicity and control even after appearance of a deputy district attorney.


FRAUD UPON THE COURT, THE ACCUSED AND PUBLIC JUSTICE: BRACY V. WARDEN, 520 US 899 (1997)

The lop-sided half-record that was developed through concerted acts and omissions of the magistrate, law enforcement and the public defender to obstruct notice and shield NLVPD file No. 84-4877 from impeachment vitiated the adversarial process:

A. Brady Material

The absence of a proper pleading at the first (and second) appearance is an improper evidentiary void in the record the details of which will forever remain a mystery to the defense. See e.g. Parsons v.District Court, 110 Nev 1239, 885 P2d 1316 (1994) (the magistrate's reliance on his own personal knowledge to adjudicate a matter in favor of defendant was prejudicial to the state); Ivey v. State, 82 Nev 448, 420 P2d 853 (1966) (in-camera review of probable cause denies precepts basic to our system of justice); Daniel v.State, 119 Nev 498, 78 P3d 890 (2003) (unrecorded interview in chambers with reluctant witness is improper); Mazzan v. Warden, 116 Nev 48, 993 P2d 25 (2000) (information provided orally was inadequate under Brady); Lay v. State, 116 Nev 1185, 14 P3d 1256 (2000) (prior inconsistent witness statements are material)Sanders v. Sheriff, 85 Nev 179, 451 P2d 718 (1968) (criminal complaint provides defendant with notice of the facts constituting  the  offense  charged that he must defend); Scott v. State, 81 Nev 380, 404 P2d 3 (1965) (probable cause cannot rationally be determined in the absence of a complete record); California v. Trombetta, 467 US 479 (1984) (due process requires states to preserve evidence that could be expected to play a significant role in the suspect's defense). The gapping void in the record here is an apparent absence of probable cause ---- FACTUAL INNOCENCE ---- the state was obligated to timely document and file in effort to invoke the justice court's jurisdiction at commencement of a criminal action. NRS 171.178(4). This due process atrocity may never be deemed harmless. Kyles v. Whitely, 514 US 419 (1995).

B. False Complaint, False Evidence

Conclusory allegations are patently insufficient to support a finding of probable cause by an impartial magistrate. Watson v. Sheriff, 93 Nev 403, 566 P2d 416 (1977). 

The written complaint filed in 208-84FN was not qualified by information and belief but consisted instead of the direct and positive allegations of Officer T. Harry to give the appearance of probable cause without reference to second-hand information.  DeHardit v. United States, 224 F2d 673 (4 Cir 1955). That prayer for a warrant could only have been made by an eyewitness to its contents. NRS 199.200 (an unqualified statement of what one does not know to be true is a false statement); Lane v. District Court, 104 Nev 427, 760 P2d 1245 (1988) (witness not present at time of alleged assault is not competent to testify that victim consented). Officer Harry's written complaint obviated the magistrate's duty under Aguilar v. Texas, 378 US 108 (1964) to assess the credibility of second-hand information and his duty under NRS 171.186 to disclose that information to Mr. Rider and enable the investigation and impeachment of the subject matter authorized by NRS 171.196 prior to preliminary hearing. See also Franks v. Delaware, 438 US 154 (1978) (detainee may challenge probable cause). The magistrate held Mr. Rider for further proceedings on Officer Harry's complaint without performing those constitutional judicial duties. 



It is improbable Officer Harry would observe ongoing sexual activity if felonious at the time it occurred and the testimony adduced at the preliminary examination was not shown to be evidence of that unlikely observation. NRS 50.025. That testimony, as such, was no more than false evidence of the dubious crimes alleged in Officer Harry's complaint. Miller v. Pate, 386 US 1 (1967); Napue v. Illinois, 360 US 264 (1959); Alcorta v.Texas, 355 US 28 (1957). Such testimony may never establish probable cause under Gerstein. Manuel v. City of Joliet, 580 US ___ (2017). Nor could the testimony adduced supplant the void in the record before the magistrate at commencement of the action. Whitley v. Warden. 

C. NRS 171.206 

The 4th Amendment requires a prompt and impartial judicial determination of probable cause as a prerequisite to extended pretrial detention. Gerstein v. Pugh, 420 US 103 (1975). Probable cause must exist at the onset of detention. Whiteley v. Warden, 401 US 560 (1971). After acquired facts can not validate detention. Aguilar v. Texas, 378 US 108 (1964). NRS 171.206 is therefore unconstitutional to the extent it allows the sole probable cause determination in a case to be delayed until after some fourty (40) days of detention with informants, monitored calls, gaslighting, legal abuse, assault, battery, absence of medical care and threats of "murder" if Mr. Rider did not "fess up." Cf. Powell v. State, 108 Nev 700, 838 P2d 921 (1992) (statute allowing 72 hour delay is unconstitutional). 

NRS 171.206 is unconstitutional to the extent it empowers a magistrate to strip an essential fact witness from the action by switching to a subject matter that Officer Harry did not personally observe. Garnick v. District Court, 81 Nev 521, 407 P2d 163 (1965) (action may proceed on only crimes alleged at arraignment). Creating a phantom witness to obstruct notice, fraudulently vest jurisdiction and shield actual witnesses from impeachment who vanishes at or after commitment should prompt an end to that action for fraud upon the district court. E.g., Boggs v. State, 95 Nev 911, 604 P2d 107 (1979) (loss of witnesses); Crockett v. State, 95 Nev  859, 603 P2d 1078 (1979) (loss of footprints); State v. Havas, 95 Nev 706, 601 P2d 1197 (1979) (loss of victim's clothing). The subject matter of an Indictment and warrant issued pursuant to NRS 173.145 may not be materially altered. Ex Parte Dela, 25 Nev 347 (1900). Fairness should prevent that anomaly amid the Information process. Morford v. Hocker, 394 F2d 169 (9th Cir 1968) (Information process must be equal in fairness to a prosecution by Indictment). Switching the subject matter at or after committment constructively nullifies all safeguards granted by NRS 171.186 and NRS 171.196 as well as the 6th Amendment under Coleman v. Alabama, 399 US 1 (1970) or Faretta v. California, 422 US 806 (1975) where prejudice may be legally presumed. 

Switching subject matter at or after committment allows a magistrate to charge crimes absent power to do so. Parsons v. District Court, 110 Nev 1239, 885 P2d 1316 (1994). That abdicates the duty to timely examine and conditions any future examination upon an award of relief in district court and the waiver of speedy trial rights required by NRS 34.700. But see Ex Parte Ah Kee, 22 Nev 374 (1895) (an arrestee is entitled to a prompt examination). It suborns false evidence of crimes alleged in a complaint.


No person may be tried except upon [ ] Information "duly filed." The word DULY means: in a proper manner; in accordance with legal requirements. Blacks Law, 7th Edition.

NRS 173.035(1) authorizes the filing an Information when the defendant (a) received a preliminary examination as provided by law before a magistrate or (b) waived his right to preliminary examination. Mr. Rider never waived his right to timely examination. Cf. 
Sturrock v. State, 95 Nev 938 (1979).

The Information in district court Case No. C67112 was represented in district court as following the receipt of a preliminary hearing as provided by law before a magistrate upon the crimes alleged in Officer Harry's written complaint that was never dismissed.

E. Non-Forced, Non-Commercial, Private Sex Between Adults

Officer Harry swears the female in his complaint was subjected to sexual penetration by nothing more than sexual penetration. The identicle allegation of operative fact in COUNT IV of the Information limits any meaning of the term "against her will" to a state of mind declared by the legislature to be criminally liable. See NRS 194.010(8) (all persons are liable to punishment for their acts and omissions unless induced by fear of great bodily harm); Basurto v. State, 86 Nev 567, 472 P2d 339 (1970) (one who participates in sex due to fear of harm is not an accomplice who must be corroborated). 


The use of deadly force to prevent the penetration alleged in COUNT IV would be punished as murder. NRS 200.200 (killing must be absolutely necessary to prevent great bodily harm; would-be combatant must endeavor to avoid alleged conflict). There could be no victim of Involuntary Servitude in pari materia because that crime requires subjugation by restraint, physical force or specified threat. See NRS 200.463(1). COUNT IV therefore fails to allege any form of non-consent proscribed by the Legislature or common law. Mills v. United States, 164 US 644 (1897) (force inherent in act of penetration insufficient to establish non-consent of conscious adult). 

F. Strict Criminal Liability 

NRS 171.102 and NRS 173.075  require and entitle a defendant to a written statement of the "essential facts" constituting the offense charged. Conclusions do not suffice. Watson v. Sheriff, 93 Nev 403, 566 P2d 416 (1977). The term "against her will" in Count IV is thus an allegation of fact and cannot be a conclusion drawn from additional, uncharged, corroborating facts. See Bennett v. Leypoldt, 77 Nev 439, 366 P2d 343 (1961) (rape victims allegations need no corroboration). Its plain meaning is: contrary to one's choice or desire. Merriam Webster's. Certainly one may want yet refuse, not want and accept or chose to say or do nothing at all. See Shannon v. State, 105 Nev 782, 783 P2d942 (1989) (the term 'against the victim's will' refers to free will and feigning sleep was an expression of that will). One's will and what is expressed are therefore distinct and independant facts. 

The plea canvass shows no special definition of the term "against her will." The canvass never mentions non-consent, a lack of consent, a defense of consent, consent nor any criminal intent. Unless it shows an admission to acts constituting the crime of sexual assault, the guilty plea was accepted in violation of due process. Hanley v. State, 97 Nev 130, 624 P2d 1387 (1981). 

  

The only act in Mr. Rider's factual admission was an act of sexual penetration. That did not constitute an admission of guilt under NRS 200.366 since ... an innocent intent and a female's uncorroborated lack of desire are not mutually exclusive. Honeycutt v, State, 118 Nev 660, 56 P3d 362 (2002) (mistaken belief in consent may negate the requisite criminal intent even if the victim believes she did not consent). Nor was Mr. Rider's admission even competent because he, like Mr. Honeycutt, cannot read other peoples' minds and would not be permitted to testify directly thereto. State v. Butner, 67 Nev 436, 220 P2d 631 (1950) (lay witness, after stating objective facts, may give opinion on another's state of mind). The canvass plainly ignores the intent to act without consent that was an essential element of sexual assault in 1984. Williams v. State, 95 Nev 830, 603 P2d 694 (1979) (intent to act without consent shown by threats of violence to subjugate victim). The canvass here plainly indicates an involuntary admission to another's free will, an imaginary fact that nowhere in reality may support a general criminal intent.

Intercourse, without opposition in particular, involves an innocent intent as does the non-compelled nature of the intercourse alleged in Count IV while Mr. Rider's denial of kidnapping suggests the female was in a place of her own choosing. Despite this fair record basis for an inference that intercourse was voluntary, and that the requisite criminal intent was lacking, Judge Goldman inquired no further. That psychopath developed no objective factual basis to corroborate the female's will because Mr. Rider admitted the actual state of mind in Count IV. It was unnecessary to ask if she appeared afraid to resist for the added reason that Mr. Rider was not charged with subjecting her to penetration with afraid to resist and he did not agree to plead guilty to doing so. Kluttz v. Warden, 99 Nev 681, 669 P2d 244 (1983) (terms of plea bargain strictly enforced). His guilty plea only admitted the well pled facts in Count IV. Giese v. Chief of Police, 87 Nev 522, 489 P2d 1163 (1971); Cole v. State of Arkansas, 333 US 196 (1948) (conviction or sentence for an offense outside  the pleadings is a sheer denial of due process).


The record shows no interjection from counsels because Mr. Rider was openly singled out amidst disputed facts for conviction under a theory of strict criminal liability. Thus, whether a victim said or expressed Yes or No was not developed on the record for at least two reasons: (1) her subjective lack of desire was ipso facto regarded as non-consent; (2) the crimes alleged are fictitious and thus their victim does not exist; and/or (3) Mr. Rider may have stated that the non-resisting victim was never restrained, grinned from ear to ear and took her panties off to expose her vagina which was a sex crime under NRS 201.220 that also aided and abetted sexual penetration. That apparent absence of non-consent would have been difficult to sustain upon any review because knowledge of non-consent is an essential element of sexual assault. Honeycutt v, State, 118 Nev 660, 56 P3d 362 (2002). Conversely, if Mr. Rider's consent was the result of fraud and deceit it was legally invalid. McNair v. State, 825 P2d 571 (1992). Mens rea was reserved, if at all, for habeas proceedings where there is no right to notice, counsel, jury trial or meaningful appeal. But see Sheriff v. Burdg, 118 Nev 853, 59 P3d 484 (2002) (a statute is subject to vagueness challenge where a non-criminal act requires no criminal intent). That omission of mens rea from the canvas was calculated by counsel and the court is further supported by the fact that a plea of nolo contendre, where one is unable or unwilling to admit guilt, would have required a factual basis on the record from which the court could conclude that sex was involuntary, against a victim's will, or without either party's valid consent. See North Carolina v. Alford, 400 US 25 (1970).

G. Plea Bargain Negotiations

DPD McCarthy "guaranteed" Mr. Rider conviction at trial on most if not all offenses and further warned that Judge Goldman was well known for imposing consecutive maximum terms. 

Mr. Rider passed a polygraph test denying, presumably, the restraint allegations made at the preliminary examination and the State promised to dismiss a kidnapping charge and six (6) counts of sexual assault in exchange for a guilty plea to Count IV. Due process requires that the terms and spirit of that agreement be fullfilled. Santobello v. New York, 404 US 257 (1971); Kluttz v. Warden, 99 Nev 681, 669 P2d 244 (1983).

The fact that a 5 year term could be expired in approximately 3 years with civil rights restored upon release creates a lop-sided penalty scheme that unconstitutionally lacks guidelines necessary to safeguard the due process rights of those required to serve a minimum of 5 full years, obtain psych panel certification and a favorable parole board decision before any possibility of release. See Lapinsky v. State, 84 Nev 611, 446 P2d 645 (1968); Spillers v. State, 84 Nev 23, 436 P2d 18 (1968). That most notably being the right to adequate notice and fair opportunity to be heard. See also, Apprendi v. New Jersey (discussing application of the 6th Amend jury trial right to facts utilized at a sentencing).

H. Equal Protection

The question of consent between two parties cannot be answered from this record as a matter of law because: a defendant's acts and omissions are willful unless induced by a fear of death or great bodily harm, exclusively, regardless of race, religion, color or gender. NRS 194.010. See also State v. Forsha, 8 Nev 137 (1872) (slayer must have reasonably endeavored to decline [alleged] struggle). Inducement below that threshold is legally untenable -- FRIVOLOUS -- unlike Officer Harry's sworn allegation of zero victim inducment. 

I. Imaginary Sentence, Imaginary Crime

Although the state of mind Mr. Rider possessed while inserting his penis into a conscious woman's exposed vagina was ignored at the change of plea hearing, an excerpt from a subsequent interview with the department of parole and probation sheds considerable light on that universally crucial subject:



At sentencing, the honorable Judge Goldman stated that the absence of physical harm was irrelevant. He imposed a term of life upon the state's bald assertion that the victim's disappearance and refusal to cooperate was due to severe mental trauma. That sentence plainly was not imposed under NRS 200.366(2)(a) or (b) since neither with nor without the qualifying matter in aggravation: substantial bodily harm. Sentence was imposed instead for some undefined, generic, judicially imagined form of sexual assault never proscribed by the Legislature because, in 1984, any matter in aggravation was required to be pled and proved beyond a reasonable doubt. NRS 200.366(3)See also Colley v. State, 98 Nev 14, 639 P2d 530 (1982); Doane v. State, 98 Nev 75, 639 P2d 1175 (1982); Bond v. State, 94 Nev 218, 577 P2d 412 (1978). That the department of prisons could correct an ambiguity in the sentence without a formal hearing does nothing to change the character of the 1984 hearing or the parties present.



All 132 actual days of Mr. Rider's pre-trial detention were applied toward his sentence as required by Anglin v. State, 90 Nev 287, 525 P2d 34 (1974). That limitation on damages for unlawful pretrial confinement created an incentive to convict rather than hold the balance nice, straight and true.

THE NETWORK BLOSSOMS

The record shows no agreement between the parties to waive any remedy, defense or defect pursuant to EJDC Rule 7.50 or otherwise. 

The record shows no waiver of jury trial. It casts a suspect light on the waiver of the rights to counsel and confrontation since DPD McCarthy did not represent Mr. Rider in justice court where DPD Ahlswede waived cross-examination and the record thereby produced was sufficient for conviction. Ohio v. Roberts, 448 US 56 (1980) (conviction based on preliminary hearing transcript affirmed where defense counsel had opportunity to cross-examine witness at preliminary hearing).




Despite Mr. Riders protestations reflected in his PSI Report, there was no direct appeal urging the modification or nullification of existing state law nor demarcation of factual innocence thereunder. See Stovall v. Denno, 388 US 293 (1967) (to deny an appeal because the accused is poor is to infect the proceeding with the clear danger of convicting the innocent); Sanchez v. State,  85 Nev 95, 450 P2d 793 (1969) (an appeal that addresses a previously uninterpreted statutory term cannot be rejected by counsel as frivolous). Here, an apparent myth distinguishing voluntary sex from consensual sex thus went unquestioned by counsels.

Habeas corpus proceedings were initiated in the First Judicial District Court where it was determined that DPD McCarthy obtained sufficient facts to rebut the kidnapping but that Mr. Rider would have been convicted of sexual assault (FJDC Case No. 86-00151H). But see Wright v. State, 94 Nev 415, 581 P2d 442 (1978) (the forcible taking that is necessary for crime of robbery requires restraint under the kidnapping statute); United States v. Hearst, 563 F2d 1331 (9th Cir 1977) (defendant who claimed she was kidnapped and forced to rob banks was convicted of robbery because she was able to abandon her alleged captors); Nelson v. City of Las Vegas, 665 P2d 1141 l1983) (abandonment is neither a crime nor a tort); Montoya v. State, 185 SW 6, 79 Tex 332 cited CJS Rape § 15 (14 year old's fear of abandonment 5 miles outside El Paso will not support a conviction for forcible rape). The four (4) other public defenders who ostensibly represented Mr. Rider were not heard from. The habeas court's determination that Mr. Riders guilty plea was not unduly motivated by a fear of additional punishment was unworthy of support from Bordenkircher v. Hayes, 434 US 357 (1978) because that case requires probable cause to charge an offense defined by the legislature and the habeas court was never provided with the records necessary to make that determination. See also Scott v. State, 8 Nev 380, 404 P2d 3 (1965): "We abhor the thought that one could be compelled to stand trial without a preliminary showing of probable cause simply because the [attorney general] refused to allow a record to be made [ ]." As  a result, the record before the original habeas court was inadequate to conclusively show Mr. Rider was entitled to no relief on his claim that his plea was coerced, involuntary and without effective aid of counsel. 

Mr. Rider's allegation that counsel conspired to elicit a coerced guilty plea was not denied and therefore admitted by the state pursuant to NRCP Rule 8(d). Counsels' many omissions benefitting the State cannot support an inference that counsel did not act in concert with the prosecution. See Gaitor v. State,  106 Nev 785, 801 P2d 1372 (1990)(existance of conspiracy is not susceptible of direct proof but relies on inference from concerted acts). Prejudice would seem appropriately presumed for purposes of summary disposition. United States v. Cronic, 466 US 648 (1984) (prejudice is legally presumed from functional equivalent of no counsel). See also, Cuyler v. Sullivan, 446 US 335 (1980) (claims of multiple representation require a hearing to fairly resolve).


The States motion to dismiss Mr. Riders claims was not delivered to him by prison officials and granted by the court while his attorney's motion for relief based upon the State's failure to file an opposition was pending before the court: 



But seeMonroe Ltd v. Central Telelphone Co., 91 Nev 450, 538 P2d 152 (1975) (dispositive orders on motions without fair opportunity for the non-moving party to respond are improper); Gebers v. State, 118 Nev 500, 50 P3d 1092 (2002) (development of facts without prisoner's participation denies due process). The Nevada Supreme Court declined to expand the record on appeal pursuant to Bryant v. State, 102 Nev 268, 721 P2d 368 (1986) (entire trial court record should be reviewed) and dismissed without allowing briefing or argument pursuant to Luckett v. Warden, 91 Nev 681, 541 P2d 910 (1975) (third appeal cannot show error) while Mr. Rider's motion was pending for the appointment of counsel to assist him on his first appeal as of right:


The court did not apply the standard of review appropriate for direct appeal. It determined that Mr. Rider made a factual admission on the record that contained all the elements of the crime for which he was convicted. No. 18138. 

The state public defender was appointed to assist Mr. Rider with his second petition but refused to argue cause and prejudice. That petition was summarily dismissed FJDC Case No. 88-538H.

The idea Mr. Rider's post-conviction efforts have been thwarted by official misconduct grows more apparent when considering that his inadequate canvass claim was procedurally defaulted because not raised on direct appeal. Wheby v. Warden, 550 P2d 419 (1976). By reaching the merits of that claim, the original habeas courts implicitly found good cause from defense counsel's failure to perfect a direct appeal. Fawaz v. State, 105 Nev 682, 783 P2d 425 (1989). But instead of acknowledging that the original habeas courts erred by failing to presume prejudice under Strickland from counsel's failure to appeal, Justices Maupin, Agosti and Becker relegated to fabrications to dispose of Mr. Rider's subsequent specific request for appellate counsel:




Their assertion that Mr. Rider waited until 1998 to request appellate counsel is patently false. Their novel position that an attorney's failure to appeal invalidates a guilty plea so as to evade the bar created by NRS 34.810(1) and NRS 177.375 is flat contradicted by that court's decision in Franklin v. State, 110 Nev 750, 877 P2d 1058 (1994) where they determined the only relief available in such cases was to appoint counsel to assist the prisoner with a belated appeal to challenge the validity of a guilty plea. If the specious theory applied to Mr. Rider was correct, arguendo, Mr. Franklin would have been entitled to withdraw his plea upon a finding that his attorney erred by failing to appeal. But that plainly was not the result in Franklin or in Mr. Rider's first habeas proceeding where he alleged that his plea was entered without the effective assistance of counsel, the courts implicitly found his attorney erred by failing to appeal, and relief was summarily denied. 

CHAPTER 3: $tate $ponsored Human Trafficking

Two or more persons in their official and individual capacity have acted in concert to subject Mr. Rider without due process to a form of 4th class citizenship, a component of which is compulsion to service under civil registration laws.

The relevant federal Tier III crimes under the Adam Walsh Act require the knowing use of force or fear of harm by the offender to evince the requisite intent. HR REP 99-594 (1986). Consent is not a defense to those offenses. Id. Non-forced, non-commercial, private sex between adults is protected and does not require registration under the AWA. Green v. Georgia, 987 FSupp2d 1328 (2013) citing Powell v. State, 270 Ga 327, 510 SE2d 18 (1998). The term "against her will" in Count IV and "against the victim's will" in NRS 200.366, thus extending to and including a mere incongruence with desire, as where a prostitute desires the ability to charge twice her normal fee, also covers consensual activity expressly excluded by the AWA from the duty to register.

Neither force nor threat of violence is an element of sexual assault. Weber v. State, 121 Nev 554, 119 P3d 107 (2005). The closest federal equivalent to that state offense is therefore sexual conthact without permission under 18 USC 2244(b) which was enacted in 1986 as a misdemeanor. Thus, no sexual assault against an adult prior to 1986 qualifies for the burden of Tier III registration under the AWA's downward graduation of Tier levels according to the seriousness of any violence utilized.

NRS 179C.010 et seq imposes a duty on the targeted individual to supply the state's data bank with personal data, monitor and update that data when necessary to ensure it is current within a 48 hour margin of error, at his own expense, for a term of years or for life. That is exploitation. The fair market value of that on-call civil data service is estimated to exceed $250,000 per year, per targeted individual, as the approximate cost to the State of obtaining the required data by alternate means, at the State's own expense. Refusing to provide fair market value for services accepted is not civil. That is a tort. Restitution is mandatory. 18 USC 1593. 


That some are compelled to register for a term of years while others are compelled to register for a term of life, upon finding them guilty of a Tier 1, 2 or 3 offense, unquestionably indicates that at least one group was singled out for an extinction of liberty, which is a prohibited Bill of Attainder, or its included Pains and Penalties. See, Cummings v. Missouri, 71 US 277 (1867).

DISCLAIMER 

* This blog is protected by 18 USC 1584(b) as a bona fide report of human trafficking activity under color of law.

* Count I alleges that the victim was [ ] inveigled and enticed [ ] against her will and without her consent.

*The victim in NLVPD Case No 84-4877 was 19, armed, unemployed, and transient. After drinking beer with unidentified individuals, she reported being abducted while walking from a truck stop but omitted some 3 hours of activity from her story. When asked if willing to take a polygraph test, she left the state and refused to cooperate.

*The reporting officer in NLVPD Case No. 84-4877 noted no outward sign of injury to the victim, nor was her dress torn or dirty. The victim's dress, garder belt, nylon stockings, boots, sunglasses and weapons were not preserved.

*Police investigators recorded tire tracks but not one footprint at or near the desert crime scene in NLVPD Case No. 84-4877.

*The victim in NLVPD Case No. 84-4877 changed the location of her alleged abduction during an unrecorded interview with police who subsequently did not locate a single eyewitness to corroborate her allegations.

*Eyewitnesses in passing trains and others known present at the desert crime scene in NLVPD Case No. 84-4877 were omitted from the victim's story, the police investigation and the July 24th preliminary hearing in NLVJC Case No. 208-84FN.

*An Affidavit of Arrest based on information and belief derived from police reports compiled in NLVPD Case No. 84-4877 was never filed or served on Mr. Rider. It was merely placed into the justice court record that was submitted to the district court after preliminary examination. That fugitive document indicates ... Officer Harry most likely did not have first hand personal knowledge of the 84-4877 subject matter.

*NOAA records indicate that it rained in the Las Vegas area the day before the ostensible appointment of the public defender who visited and photographed the desert scene 2 months later.

*Any suggestion the female referred to in NLVPD Case No. 84-4877, the criminal complaint, the preliminary examination, the Information, the plea transcripts and PSI Report are one and the same person is unintended.

A ~30 year old bible thumping yam tittied outlaw gang affiliate with the same address as the victim in 84-4877 contacted the department to make good on a  threat to fabricate rape charges against Mr. Rider in retaliation for her and her 19 year old lovers ejection from Mr. Riders home months earlier.

*DPD McCarthy's apparent ill will may arise from a sexual encounter with mr. rider at NAU in the summer of 73.