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Habeas Corpus Suspended by the United States Supreme Court
The Sacred Writ has been Removed from the Constitution
Outpost of Freedom
December 5, 2013
What is Habeas Corpus?
There is only one Right embodied in the Constitution; the remainder are found in the Bill of Rights. For the most part, the Constitution created a government and granted it only certain powers and authorities. So, what right is so significant as to be included within the Constitution, while the Bill of Rights was not adopted until 2 years later?
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. [Article I, §9, cl. 2]
What? That says "Privilege". Well, a "Privilege" is a right that can be suspended, under certain circumstances. Those circumstances are only in "Cases of Rebellion or Invasion", and, being in Article I, of the Constitution, the authority to suspend that right lies only with the Congress.
If you were old enough, or fortunate enough, to have been taught about Habeas Corpus in your early schooling, you would know that it is the "sacred writ" and that it means, "produce the body". Well, that doesn't tell you a lot, though it does demonstrate that even in school, the assurance that you had a rudimentary understanding of what Habeas Corpus was a part of the educational process.
So, what is Habeas Corpus? We can look to Black's Law Dictionary, 5th Edition, to find what a modern definition is:
habeas corpus ad subjiciendum. A writ directed to the person detaining another, and commanding them to produce the body of the prisoner, or person detained. This is the most common form of habeas corpus writ, the purpose of which is to test the legality of the detention or imprisonment; not whether he is guilty or innocent.
This is the well-known remedy in England and the United States for deliverance from illegal confinement, called by Sir William Blackstone the most celebrated writ in the English law, and the great and efficacious writ, in all manner of illegal confinement. The "great writ of liberty", issuing at common law out of the Courts of Chancery, King's Bench, Common Pleas, and Exchequer.
Perhaps we can look for a more specific explanation of just what it means by "the purpose of which is to test the legality of the detention or imprisonment." Detention, of course, would be simply "arrest", while imprisonment is a consequence of conviction. This is important to understand, as we proceed. Now, we can see what some legal scholars, in the era of the framing of the Constitution, have to say.
First, we will look at the very foundation of Habeas Corpus in the Magna Carta, from 1215 A.D., which states, in Article 39, "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."
Now, as you continue to read, you will see reference to "ill nature [or] mere inattention of government"; "repels the injustice of unconstitutional laws or despotic governors"; and, that it is "the great bulwark of personal liberty." Understand, regardless of what you have believed, that the Framers were concerned, as they understood human nature, and provided for, not in the Bill of Rights, but, in the body of the Constitution, this single means, this right, to challenge unconstitutional laws, giving the people, themselves, the means to nullify such enactments that were contrary to the powers and authorities granted by the Constitution.
In 1768, William Blackstone, in his Commentaries, says of the writ, "A remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes from the mere inattention of government."
In 1829, William Rawle, in his "A View of the Constitution of the United States", tells us that it "is the great remedy of the citizen or subject against arbitrary or illegal imprisonment; it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governors."
Finally, in 1833, Justice Joseph Story, in his "Commentaries on the Constitution", provides that, "At the common law there are various writs, called writs of habeas corpus. But the particular one here spoken of is that great and celebrated writ, used in all cases of illegal confinement, known by the name of the writ of habeas corpus ad subjiciendum... It is, therefore, justly esteemed the great bulwark of personal liberty."
There is another aspect of Habeas Corpus that is not addressed in any of the above descriptions, though, as we will learn as we continue down this road, the Supreme Court of the United States has also ruled that since there is both a federal constitution and a constitution within each state, jurisdiction is a consideration of Habeas Corpus, as well.
Demand for a Writ of Habeas Corpus
Habeas Corpus is two things; first, it is the demand for a writ of habeas corpus. It is not automatic, and absent such request, there is no reason for the courts to even consider it. Second is the issuance of a writ of habeas corpus, which, in past practice, required that the party incarcerated be brought before the court to determine if his imprisonment is legal.
So, we can look, once again, to the legal scholars, to see what they say about the demand. However, before we do this, there is another source from which modern Habeas Corpus emanates, and we shall consider it.
In 1679, the first Habeas Corpus Act was enacted in England. From that Act, we find:
And be it further enacted by the authority aforesaid, That if any officer or officers, his or their under-officer or under-officers, under-keeper or under-keepers, or deputy, shall neglect or refuse to make the returns aforesaid… shall for the first offence forfeit to the prisoner or party grieved the sum of one hundred pounds; (2) and for the second offence the sum of two hundred pounds, and shall and is hereby made incapable to hold or execute his said office…
So, we see that punishment for failure to respond to a writ of habeas corpus has penalties.
And, from Blackstone, we find, "it was, and is still, necessary to apply for it by motion to the court,... [that] if a probable ground be shewn, that the party is imprisoned without just cause, and therefore hath a right to be delivered, the writ of habeas corpus is then a writ of right, which may not be denied, but ought to be granted to every man that is committed, or detained in prison, or otherwise restrained, though it be by the command of the king, the privy council, or any other."
So, the question arises, can the court not issue the Writ of Habeas Corpus, without showing cause why it should not be issued? To answer this, we must first understand just what "suspend" means. From Black's Law Dictionary, Fifth Edition:
Suspend - To interrupt; to cause to cease for a time; to postpone; to stay, delay, or hinder; to discontinue temporarily...
Is Habeas Corpus Suspended?
Habeas Corpus, being a "writ of right", as explained above, has a status similar to an "objection" during a trial. Once demanded, it must be answered, prior to proceeding, as the objection will be "sustained" or "overruled" before proceeding. Habeas Corpus, once demanded, is treated equally, in that it must be answered, prior to proceeding. That answer can be either a refusal to grant the writ, based upon grounds expressed by the opposing party, or it must be granted and the writ issued.
It is significant, in terms of timeliness, to understand that when the writ is demanded, from 28 U.S.C. § 2243:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith [immediately] award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.
The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.
The judge or justice must respond to the demand immediately, and then the person having custody has three days, except for cause, which extends those three days up to twenty. That is a requirement for a timely response, by the judicial branch, to a demand for habeas corpus.
So, we must begin at the beginning to understand that Habeas Corpus has been not only suspended, but has been blatantly ignored by the Judicial Branch of government, at every level; absent any lawful suspension by the Congress.
A Demand for Habeas Corpus was served on the jailers of Larry Mikiel Myers on January 27, 2012, direct to the Court. This Demand was also mailed directly to the Sheriff, who should have forwarded it to the District Court Judge. Mr. Myers received no response and was tried in the District Court beginning February 9, 2012. The trial should not have commenced until the Habeas Corpus was answered.
A Demand for Habeas Corpus was prepared and sent, Certified Return Receipt, on February 10, 2012, to the District Court, the Sheriff, the 11th Circuit Court of Appeals, and, the Florida Supreme Court. It was received by all parties on February 12, 2012. The Sheriff and the District Court never acknowledged the service.
The 11th Circuit replied by returning the Demand for Habeas Corpus and saying that it must be filed with the District Court, and referenced FRAP (Federal Rules of Appellate Procedure) 22, which states, "Application for the Original Writ. An application for a writ of habeas corpus must be made to the appropriate district court. If made to a circuit judge, the application must be transferred to the appropriate district court." So, even though their rules state that THEY must transfer it to the District Court, They chose to pass it back to the Petitioner, avoiding dealing with their obligation to justice.
The Florida Supreme Court returned the Demand claiming that they had no jurisdiction -- contrary to the record in which Wisconsin, in fulfilling its obligation to its citizens, twice, granted habeas corpus so that it could be taken to the United States Supreme Court.
So, the lower courts have failed to answer and return habeas corpus, effectively denying it, or, perhaps, since their own rules establish procedures, they "suspended" habeas corpus, arbitrarily and capriciously; and permanently.
This left only one recourse to assure that Mr. Myer could get a fair ruling on the constitutionality of the laws he was charged under. If the Constitution still had standing in the government of the United States, original jurisdiction was forced, by inaction of the lower courts, to the United States Supreme Court -- which is obligated to assure that the people of the United States have justice.
On November 26, 2012, the Petition for Habeas Corpus was submitted to the United States Supreme Court. It was directed to Justice Antonin Scalia as the designated Justice for the Fifth Circuit, where Mr. Myers is currently incarcerated. The Rules provide that the appropriate Justice may hear a habeas corpus, and in a review of Supreme Court decisions where the original jurisdiction (first hearing) of a habeas corpus was before that Court, it was always heard and decided by a single Justice. However, the Clerk's office, through seven rounds of correspondence, refused to direct it to Scalia, changed the caption from "In Re Larry Mikiel Myers" to "In Re Gary Hunt", where the record shows that the incarcerated person is the proper name for the caption, not the "attorney of record."
In an effort to correct these errors, on September 22, 2013, an "Emergency Petition for Writ of Mandamus" (a Mandamus is an order for an official to perform his duty) (Exhibits to Mandamus) was served on the Court. Receiving NO response, whatever, to that Petition, a follow up letter was sent on October 12, and no response has been forthcoming regarding the Mandamus. It would appear as if they can't respond to something with legal authorities, they just don't respond.
The final effort at disposing of the original Petition by the Clerk's office was a claim that I had no right, as a non-attorney, to file a Petition of Habeas Corpus on behalf of another party, Mr. Myers (See Mandamus and Exhibit 9 to Mandamus, linked above). A 1990 Supreme Court decision dispelled that claim (you would think that the Clerk's office should know what decision the Court had made in that matter), wherein the decision did allow one in my position to file on behalf of Mr. Myers. The Petition was finally put on the Docket on June 29, 2013, to be discussed in Conference on September 3, 2013. That Conference then DENIED the Petition. Subsequently, a Petition for Rehearing was filed, within the requisite time frame, for a November 26, 2013 (exactly one year after the first service to that Court -- so much for being timely) Conference, and this, too, was subsequently DENIED on December 2, 2013.
Who can Suspend Habeas Corpus?
"Under the constitution of the United States, congress is the only power which can authorize the suspension of the privilege of the writ."
"The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It begins by providing "that all legislative powers therein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives." And after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants [and legislative powers which it expressly prohibits]; and at the conclusion of this specification, a clause is inserted giving congress "the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof."
The above from Ex Parte Merryman, Circuit Court D, Maryland, April Term 1861, Decision by Supreme Court Justice Robert B. Taney.
Now, there may be some ambiguity in just what is meant by "suspend", so we will refer to Black's Law Dictionary, Fifth Edition:
To interrupt; to cause to cease for a time; to postpone; to stay, delay, or hinder; to discontinue temporarily...
However, if Congress were to suspend Habeas Corpus, it would have to be an enactment, by them, stating what the cause was, rebellion or invasion, and other matters that would advise us that they had temporarily, suspended habeas corpus, and when the "suspension' would be concluded. Any other denial of that right would be a blatant and unmitigated violation of the Constitution. On the other hand, the United States Supreme Court has simply done away with Article I, Section 9, clause 2, of the Constitution -- they have simply removed it from the Constitution -- a blatant and unmitigated violation of the Constitution.
The Petition for Rehearing
Some of the arguments presented in the Petition for Rehearing include:
A court has a legal and constitutional obligation to answer and return a Writ of Habeas Corpus, when demanded. When the District Court refuses to answer and return, the next step is the Circuit Court. When the Circuit Court refuses, in violation of their own Rules, to send the Demand for Habeas Corpus to the District Court, and refuses to answer and return, that leaves only this Supreme Court in which a citizen may find remedy, by answer and return.
To Deny this Petition [for Rehearing] is to Deny the obligation on government created by Article I, § 9, clause 2.
To Deny to answer and return the Demand for Habeas Corpus is to Deny the Constitution, itself -- and the government created thereby.
This last argument is based upon a decision by the North Carolina Supreme Court in 1787, they being cognizant of the relationship and responsibility of the government to its constitution. The case is Bayard v. Singleton (1 N.C. 42):
But that it was clear that no act they [the legislature] could pass could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established.
That is the consequence of a government failing to abide by its responsibility under a constitution.
* * * * * * * * * * * * *
From: Supreme Court Docket 13-5008
In Re Gary Hunt, Petitioner
June 27, 2013
~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jun 19 2013
Petition for writ of habeas corpus and motion for leave to proceed in forma pauperis filed.
Jul 3 2013
DISTRIBUTED for Conference of September 30, 2013.
Oct 7 2013
Nov 1 2013
Petition for Rehearing filed.
Nov 12 2013
DISTRIBUTED for Conference of November 26, 2013.
Dec 2 2013
Attorneys for Petitioner:
25370 Second Avenue
Los Molinos, CA 96055
* * * * * * * * * * * * *
So, there, you have it. If you understand what the Supreme Court has done to remove that sacred right embodied in the Constitution, you might also realize that if this is to change, it will be to the benefit of ourselves, our Posterity, the Constitution, and the insight of the Framers who wanted to give us a form of government that would not find us resorting to our "duty", according to the Declaration of Independence, to secure our Liberties"
"Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when long trains of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide for new guards for their future security."
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