JUSTICE for Brent Clark

Can WE change the Laws???

WON! POST-CONVICTION RELIEF PETITION:

PETITION GRANTED

22 SEPTEMBER 2008:

 

In violation of the Constitution of the United States:

4th Amendment , 6th Amendment, 8th Amendment and 14th Amendment encompassing violations of Due Process, Ineffective Assistance of Counsel, possible Jury Misconduct, and Denial of Psychiatric/Expert Services

PRE-ARREST FACTS:

  1. I was deliberately isolated from my parents by police prior to arrest and questioned for approximately one hour in the presence of only law enforcement agents; no written or recorded record of that interrogation exists (Martin v. Estelle 583 F.2d 1373 5th Cir. 1978; EXHIBIT A: Florida Bar News, 15 May 2008).
  2. Further, I was handcuffed for transportation to the Mesa Police Department prior to being advised of my Miranda rights, indicating that I had been placed under arrest and as a result of the unsupervised interrogation at school, though no Miranda warnings had been referenced at any time previous to confinement.
  3. Although I had not been placed under arrest, my parents were denied access to me, despite their repeated requests for reunification, both at school and later at the police station, despite being my legal guardians of record.
  4. Police removed items from my home that had no relation whatsoever to the alleged crimes, referred to in the arrest report, but not itemized, which are still retained in their possession as of the date of this petition.
  5. I was never informed at the school that I was under arrest, had the right to counsel or to remain silent prior to questioning (Miranda v. AZ; EXHIBIT A).
  6. Police agreed with my parents to both an immediate psychiatric evaluation and urinalysis screening as crucial in consideration of my immediate emotional demeanor, within 24 hours (In Re Wilson 509 N.W.2d 568 MN 1993; Anderson v. VA 421 S.E.2d 900 VA Ct. App. 1992, reh. en banc granted, Anderson v. VA 436 S.E.2d 625 VA Ct. App. 1993 en banc; Schultz v. Page 313 F.3d 1010 7th Cir. 2002; State v. Wright 575 P.2d 740 WA Ct. App. 1978; People v. Powell 180 Cal.App.3d 469 225 Cal. Rptr. 703 CA Ct. App. 1986; Appel v. Horn 250 F.3d 203 3rd Cir. 2001; Barnett v. Hargett 174 F.3d 1128 10th Cir. 1999; US v. Heywood 155 F.3d 674 3rd Cir. 1998; Griffin v. Lockhart 953 F.2d 926 8th Cir. 1991; Cowley v. Stricklin 92 F.2d 640 11th Cir. 1991; Ake v. OK 470 US 68, 71 1985; Walton v. Stewart 168 F.3d 504 Table: text in Westlaw; Liles v. Saffle 945 F.2d 333 10th Cir. 1991, cert denied, 502 US 1066 1992; Holloway v. Horn 161 F.Supp.2d 452, 573 E.D.PA 2001, rev’d on other grounds, 355 F.3d 707 3rd Cir. 2004; Holland v. Horn 150 F.Supp.2d 706 E.D.PA 2001; Buttrum v. Black 721 F.Supp. 1286, 1312 NE.GA 1989, aff’d, 908 F.2d 695 11th Cir. 1990, reh. denied, 916 F.2d 719 11th Cir. 1990; Commonwealth v. Curnutte 871 A.2d 839 PA 2005; Blake v. Kemp 758 F.2d 523 11th Cir. 1985 cert. denied 474 US 998 1985).
  7. At no time did police indicate to me or my parents what specific charges I was arrested for, or of their intent to charge me as an adult despite the fact that I am a first-time offender barely over the age limit for consideration of the direct-file statute: instead, these were enumerated by the media later that afternoon.
  8. Police direct-filed me into adult court within three minutes of my arrest, specifically to illegally deny my right to forensic psychological evaluation in a timely manner, prior to completing an investigation, based solely on my physical appearance and my age; law enforcement personnel do not have the educational competency to determine diminished capacity or personality traits (Harris v. State 352 S.E.2d 226 GA 1986; Lokos v. Capps 625 F.2d 1258 5th Cir. 1980; Tuggle v. Netherland 516 US 10 1995 per curiam).
  9. Immediate psychological evaluation would have been sufficient to determine that I acted under diminished mental capacity at the time of the commission of my crimes, and at the time of my arrest; therefore I lacked the capacity to understand the possible range of implications for waiving my right to counsel at the time of arrest, in the complete absence of adult guidance (Christy v. Horn 28 F.Supp.2d 307 W.D.PA 1998; Westbrook v. AZ 384 U.S. 150 1966 per curiam; Cooper v. OK 517 U.S. 348 1996; US v. Klat 156 F.3d 1258 DC Cir. Sept 22, 1998; Evans v. Raines 534 F.Supp. 791 D.AZ 1982; In Re Kerch 2002 WL 86831 CA App. 4 Dist. Jan. 23, 2002 unpublished; Artiles v. State 691 So.2d 1130 FL 4th DCA 1997; Cuyler v. Sullivan 446 US 335 1980; US v. Cronic 466 US 648 1984; DeFreece v. State 848 S.W.2d 150 TX Crim App. 1993, cert. denied, 114 S. Ct. 284 1993).
  10. I did not understand the right to waive my right to an attorney as a juvenile, without the agreement of my legal guardians of record, my parents, who had no opportunity to advise me of same; therefore, I should have been appointed a Public Defender immediately upon incarceration despite my ignorance that I needed to request appointment at that time (EXHIBIT A).
  11. Law Enforcement agents took deliberate advantage of my ignorance as a layperson to direct-file my case into the adult system, where my parents no longer had access to me or information regarding my physical location or welfare (EXHIBIT A).
  12. My name and booking photo were released to the local media within ten minutes of my arrest by courier, effectively securing my guilt in the media for more than 40 alleged charges, negating my presumption of innocence prior to arraignment, and any possibility of a fair and impartial trial due to excessive publicity.
  13. KTAR News Radio continuously encouraged discussion of my charges for three weeks after my arrest, referring to me as “Little Osama,” implying an illegal conspiratorial and secretive nature I do not possess, as well as implying intent I did not possess, and negating my presumption of innocence and any possibility of a fair and impartial trial due to excessive publicity, again exaggerating the presumptive charges against me to an intolerable degree.
  14. Less than five hours following my arrest, my name and booking photo were aired by national media at a time when I was emotionally imbalanced despite outward appearances and attitude, listing more than 40 charges including terrorism, before my case had been arraigned or submitted to the Grand Jury.  Also used against me within the media reports were my physical height at 5’9” and weight of 230#, at barely age of fourteen, negating my presumption of innocence and the possibility of a fair and impartial trial, due to excessive publicity.
  15. Despite promises, the police did not pursue either psychiatric evaluation or urinalysis screening at any time after my arrest, and in fact, prevented my parents from obtaining same by immediate incarceration, which would have revealed that:          a. I was in an extremely agitated emotional state despite outward appearance, and b. that I had suffered Traumatic Brain Injury at some time previous to this incident, indicating the need for further evaluation and investigation.
  16. The police coerced a written statement from my mother at the school by alleging psychiatric evaluation or urinalysis screening could not be legally conducted without said written statement from a legal guardian, by virtue of my status as a juvenile offender, implying their intent to charge me within the juvenile court system and obtain the screenings they had promised, at a time when no charges against me were pending, effectively entrapping me—using my parent--  for alleged crimes I had not committed, and I had not been designated an adult offender (Lindsey v. State 330 S.E.2d 563 GA 1985; In Re Allen 506 A.2d 329 ND 1986; Webb v. Evans 1997 WL 207514 10th Cir. 1997 unpublished; Williamson v. Ward 110 F.3d 1508 10th Cir. 1997; US v. Mason 52 F.3d 1286 4th Cir. 1995; Smith v. McCormick 914 F.2d 1153, 1157 9th Cir. 1989; US v. Sloan 776 F.2d 926, 929, 10th Cir. 1985; US v. Nichols, 661F.Supp. 507 W.D. MI 1987US v. Blohm 579 F.Supp. 495 SD.NY 1983; State v. Haycock 766 A.2d 720 NH 2001).
  17. Law enforcement retains possession of a taped interview with my alleged bully on the day of my arrest, during which he admits he had been harassing me over a period of time; despite this admission, both the school district and police department refused further investigation of this evidence, thereby denying my emotional duress at the time of the commission of my crime, and negating a mitigating factor in my defense (Brady v. Maryland 373 U.S. 83 1963; Kyles v. Whitley 514 U.S. 419 1995).
  18. My 4th Amendment Right to be secure within my home was violated when I was charged beyond my actual crimes, as a result of private thoughts within my own home, which I never left, which I never publicly threatened or otherwise made evident to any other person, and upon which I never acted (People v. Torres 556 NYS.2d  401 NY App. Ct. 1990; Sisco v. State 599 S.W.2d 607 TX Crim. App. 1980; Dusky v. US 362 U.S. 402 1960).
  19. I was charged based on a theory that did not address the true intent of my personal thoughts in any manner, and was exaggerated beyond my mental capacity for planning, according to my own admission that I desired “suicide-by-cop” and subsequent evidence  that my cognitive skills lacked within my social repertoire an empathetic consideration for the outcome of my actions on others; I was under suicide watch at the Mesa City Jail on the evening of my arrest, instead of being transferred to the juvenile facility (Lounsbury v.Thompson 374 F.3d 785 9th Cir. 2004; EXHIBIT C: Adolescent Development and JuvenileJustice, MacArthur Foundation Research Network).
  20.  The sole purpose for charging me with terrorism was to incarcerate me such that bail could not be granted; bail was, however, set at my initial arraignment and reduced by a factor of ten, testifying to the lack of “potential future dangerousness” of my release back to my parents rather than continued incarceration.
  21. My arrest report contains blatant inconsistencies with regard to the unfolding of events surrounding the commission of my crimes, and omits other facts that bear consideration, such as [my alleged bully's] admission of guilt (Brady v. MD 373 US 81963; Kyles v. Whitley 514 US 419 1995).

 POST-ARREST FACTS:

  1. At no time did the police inform me or my parents I had been transferred to the adult court system.  I received written notification via my copy of the Grand Jury Indictment, received 9 April 2008; my parents were informed via media transmission on the day of my arrest at 4:30pm (Appel v. Horn 250 F.3d 203 3rd Cir.    2001).
  2. “Due Process clearly requires timely notice of the purpose and scope of any proceedings affecting the relationship between parent[s] and child,” (National Crime Commission Report).  I was denied adult guidance, and my parents’ rights rendered null and void with regard to my case in its entirety, a direct violation of their 14th Amendment Rights under the United States Constitution.
  3. When specifically asked, my attorney informed my parents their parental rights had NOT been terminated as a result of said charges and/or legal proceedings, yet proceeded to act contrary to their requests for actions on my behalf in large part during over the course of this case (Strickland v. WA 466 US 668 1984; FL v. Nixon 543 US 75, 125 S. Ct. 511 2004; Rompilla v. Beard 545 US 374, 125 S. Ct. 2456 2005; Schriro v. Landrigan 127 S. Ct. 1993 2007).
  4.  I was not represented by counsel or privy to any form of guidance at the time of my initial arraignment, as my parents were unable to locate me within the legal system until the Tuesday following my arrest, and in fact, my parents were never informed of my initial arraignment (Murray v. Carrier 477 US 478 1986; Appel v. Horn 250 F.3d 203 3rd Cir., 2001; McGregor v. Gibson 248 F.3d 946, 10th Cir. 2001 en banc; EXHIBIT A).
  5. My initial hearing was held twenty-six hours after my arrest.  My parents were told I had been transferred to Durango Juvenile Facility from the Mesa Juvenile Facility, when in fact I had been taken to the 4th Street Jail.
  6. Evidence submitted to the Grand Jury was not factually or chronologically presented, thereby misleading jurors into a false rendition of events, and intertwining facts of alleged separate-but-related incidents (i.e., the Grand Jury was led to believe I had entered school grounds with a loaded firearm on my person, when in fact I never left my residence), resulting in false communication of the facts and suppression of evidence by virtue of rendering my alleged bullying unimportant as a causative factor in my unprecedented behavior (Callaway v. State 594 S.W.2d 440 TX Crim. App. 1980; Glover v. US 531 US 198, 121 S.Ct. 696 2001; Brady v. MD 373 US 83 1963; US v. Bagley 473 US 667 1985;  Martin v. Estelle 546 F.2d 177 5th Cir. 1977; Edwards v. Carpenter 529 US 446 2000, reversing Carpenter v. Mohr 163 F.3d 938 6th Cir. 1998).
  7. The Grand Jury transcript specifically cites that at least two of the ten Jurors voiced concerns over my age, requesting clarification from the Prosecutor’s representatives on three separate occasions during deliberations.  It is significant that ARS 13-501 was not added to the Indictment Petition until Jurors specifically raised that issue, and directed that my age was not their concern, nor was consideration for counseling intervention, as the State was exercising its option to try me as an adult regardless of other mitigating factors (State v. Salters 257 S.E.2d 502 SC 1967; Flores v. Dosher 622 S.W.2d 573 TX 1981; McIntire v. State 698 S.W.2d 652 TX Crim. App. 1985; Sanders v. State 580 S.W.2d 349 TX Crim. App. 1978; Grismore v. State 641 S.W.2d 593 TX Ct. App. 1982; Duran v. State 57 CA.Rpte.2d 890 CA Ct. App. 1997; EXHIBIT C).
  8. Further, the Grand Jury transcript defines “terrorism” as engaging in the act or possessing weapons of mass destruction; I neither acted nor possessed such a weapon at any time; additionally, the transcript states that my weapons charge resulted from being in possession of a firearm on school grounds, which was never the case (McDowell v. Calderon 130 F.3d 833 9th Cir. 1997, cert. denied, 523 US 1103 1998; Sassounian v. Roe 230 F.3d 1097 3rd Cir. 2000; State v. Poh 343 N.W.2d 108 WI 1984; Heaver v. Ward 386 N.E.2d 134 IL App. 1979; Nevers v. Killinger 169 F.3d 352 6th Cir. 1999 cert. denied, Killinger v. Nevers 527 us 1004 1999US v. Martinez 14 F.3d 543 11th Cir. 1994; US v. Aragon 962 F.2d 439 5th Cir. 1992; US v. Kum Seng Seo 300 F.2d 623 3rd Cir. 1962; US v. Posner 644 F.Supp 885 S.D.FL 1986; Stroud v. State 787 N.E.2d 430 IN App. 2003; Guam v. castro 2002 WL 31663293 Guam Terr. Nov. 27, 2002, unreported).
  9. In addition, per the transcript of the Grand Jury session, Jurors were not properly screened for previous media exposure to my case; only one Juror was removed from further deliberations some time after admission of seeing news reports, despite the monumental amount of media attention given this case over a period of at least six weeks following my arrest (US v. Martinez 14 F.3d 543 11th Cir. 1994).
  10. My Attorney did not file any petition for modified release conditions upon the requests of my parents, beginning in April 2007 through October 2007, until they approached another associate within the firm, to whom the request had been again related in September 2007.  Motion was granted without bail.
  11. My attorney did not request Expert Assistance from the courts despite my parents’ repeated directives at any time, and instead required their private retention of a psychiatric expert at their financial peril; funds were paid to my Attorney rather than the Expert Psychiatrist.  No itemized invoice for this $ 4,000.00 assessment has been forthcoming, despite request for same as a tax receipt for medical expenses (Doe v. Superior Court 45 CA.Rptr.2d 888 CA Ct. App. 1995; English v. Missildine 311 N.W.2d 292 IA 1981; Arnold v. Higa, 600 P.2d 1383, CO Ct. App. 1984).
  12. My Attorney never sought the QUEEG and Brain-Mapping assessments despite my parents’ specific and repeated requests on my behalf (including upon initial retention), when evaluated in July 2007, which would have documented TBI and provided medical evidence for my defense (State v. Sireci 536 So.2d 231 FL 1988; Mason v. State 489 So.2d 734 FL 1986;State v. Leonard 855 A.2d 531 NH 2004; Jacobs v. State 744 S.W.2d 1178 AR 1988; US v. Rudisill 43 F.Supp.2d 1 DDC 1999; State v. Pollard 657 A.2d 185 VT 1995; Powell v. Collins 332 F.3d 376 6th Cir. 2003; Brown v. DC 727 A.2d 865, 869 DC1999; Fitzgerald v. State 972 P.2d 1157 OK Cr. App. 1998; In the Matter of J.E.H. 972 S.W.2d 928 TX Cr. App. 1998; People v. Vale 518 N.Y.S.2d 4 NY App. Div. 1987; EXHIBIT D).
  13. My Attorney did not request a juvenile court hearing, as repeatedly requested by both myself and my parents on several separate occasions, including upon initial retention (State vs. Phelps 600 N.E.2d 329 OH Ct. App. 1991; In the Matter of R.D.B. a juvenile 20 S.W.3d 255 TX 2000; Chatman v. Commonwealth 518 S.E.2d 847, 851 VA App. 1999).
  14. Due to receiving new family medical insurance in late November 2007 and their approval processes as well as the restraints on new patients from a qualified doctor in the appropriate forensic neurological field, my parents obtained the specified tests at the soonest possible opportunity, April 2008, after my release from incarceration, which coincidentally occurred just prior to my sentencing hearing (US v. Nichelson 550 F.2d 502 8th Cir. per curiam, cert. denied, 434 US 998 1977; EXHIBIT D).
  15. Neurological and personality tests specifically cite resultant impulsivity and compromised social and cognitive skills directly related to my behavior at the time.  My physician “rushed” this assessment due to the proximity to the sentencing hearing, in order that they be available to my Attorney for immediate filing (Hill v. State 788 S.W.2d 858 TX Ct. App. 1990; People v. Johnwell 18 Cal.Rptr.3d 826 CA App. 2004; Wilson v. State 875 So.2d 1225 AL Crim. App. 2003; Tate v. State 864 So.2d 44 FL 2003; In re Grimes 769 N.E.2d 420 OH App. 2002; Anderson v. State 2002 WL 432674 TX App. San Antonio March 20, 2002 unpublished; EXHIBIT D).
  16. Research into Traumatic Brain Injury consistently indicates the commission of my crimes was likely the first symptom of the diagnosed TBI; statistics reveal that 95% of adolescents experiencing this injury show no symptoms until the onset of puberty, at roughly age fourteen; I had just passed my fourteenth birthday by a 21 days at the time of my arrest.  No other factors within my history that might have suggested the need for earlier psychological evaluation (Odle v. Woodford 238 F.3d 1084 9th Cir. 2001; Bright v. State 455 S.E.2d 37 GA 1995, cert denied, 116 S. Ct. 196, 1995).
  17. It is entirely possible and probable, given the full spectrum of my social, emotional and behavioral history, that the sustained emotional pressure of constant and unrelieved bullying over the previous eight months, within an environment I could not legally escape and within which allegations of peer abuse went unrecognized or were dismissed, triggered my bizarre behavior (Americans with Disabilities Act 1992; EXHIBIT C).

POST-CONVICTION FACTS:

  1. The County Attorney’s office refused a continuance for the sentencing hearing upon receipt of the TBI test results, to allow additional testing and therapy (EXHIBIT D; Rodriguez v. State 906 S.W.2d 70, 75 TX Ct. App. 1995; State v. Coker 412 N.W.2d 589 IA 1987; US v. Hartsfield 513 F.2d 254 9th Cir. 1975; Jacobs v. US 350 F.2d 571 4th Cir. 1965; Frederick v. State 902 P.2d 1092, 1098 OK Ct. Crim. App. 1995; US v. Flynt 756 F.2d 1352 9th Cir. 1985, amended 764 F.2d 675 9th Cir. 1985; State v. Poulsen 726 P.2d 1036 WA Ct. App. 1986; People v. McClane 631 N.Y.S.2d 976, 983 NY Sup. Ct. 1995; STATE v. EASTLACK 883 P.2d 999, 1020 AZ 1994, cert denied, 115 S. Ct. 1978, 1995; Hunter v. Commonwealth 869 S.W.2d 719 KY 1994; Washington v. State 836 P.2d 673 OK Crim. App. 1992; State v. Boyd 417 S.E.2d 471 NC 1992, cert. denied, 117 S. Ct. 778 1997; State v. Murray 644 A.2d 1040 ME 1994; Hoskins v. State 702 So.2d 202 FL 1997; State v. Taylor 2000 WL 1847554, OH Ct. App. 2000, unpublished; Castro v. State 71 F.3d 1502, 1515 10th Cir.1995;  Starr v. Lockhart 23 F.3d 1280, 8th Cir. 1992, cert denied, 115 S. Ct. 499 1994; State v. Snyder 750 So.2d 832 LA 1999; People v. Hale 749 P.2d 769 CA 1988; Ex Parte Hagans 558 S.W.2d 457 TX Crim. App. 1977; State v. Coco 371 So.2d 803 LA 1979 interlocutory appeal; State v. Bauer 245 N.W.2d 848 MN 1976; US v. Day 949 F.2d 973 8th Cir. 1991; Tiller v. Esposito 911 F.2d 575 11th Cir. 1990; Bouchilloon v. Collins 907 F.2d 589 5th Cir. 1990; Speedy v. Wyrick 702 F.2d 723 8th Cir. 1983; US v. Mooney 123 F.Supp.2d 442 N.D. IL 2000; People v. Green 2002 WL 86987 CA App. 5 Dist. Jan 23, 2002 unpublished; State v. Johnson 551 N.W.2d 741 NE App. 1996; People v. Gevas 655 N.E.2d 894 IL 1995; People v. Guttierez 648 N.E.2d 928 IL App. Ct. 1995; Lockhart v. Fretwell 506 US 364 1993).
  2. My Attorney failed to submit the TBI test results to the Court in a timely manner as directed, presenting it instead as a component of her Pre-Sentence Recommendation, submitted just prior to the sentencing hearing rather than on 28 April 2008, when it was hand-delivered to her office by my mother and myself (EXHIBIT D; US ex rel. v. Schomig 162 F.Supp.2d 1020 N.D.IL 2001; Starr v. Lockhart 23 F.3d 1280 9th Cir. 1994, cert. denied, 115 S. Ct. 499 1994; Smith v. McCormick 914 F.2d 1153, 1157 9th Cir. 1989; Hill v. Lockhart 474 US 52 1985; State v. Tilden 1999 WL 136944 MO App. March 16, 1999 unpublished slip opinion; Trotter v. Bunnell 163 F.3d 607 9th Cir, 1998 unreported opinion; Lagway v. Dallman 806 F.Supp. 1322 N.D. OH 1992; State v. Sanders 549 S.E.2d 40 WV 2001; Sena v. NM State Prison 109 F.3d 652 10th Cir. 1997; Hatten v. State 9788 S.W.2d 608 TX App. March 12, 1998; Ex Parte Janezic 723 So.2d 725 AL Nov. 14, 1997; People v. Smith 694 N.E.2d 681 IL App. 4 Dist. 1998; People v. Abraham 689 N.E.2d 278 IL App. 2 Dist 1998; McGregor v. Gibson 248 F.3d 946 10th Cir, 2001 en banc; Short v. US 1997 WL 276229 W.D.NY May 1997 unpublished; In re Fleming 16 P.3d 610 WA 2001; State v. Soares 916 P.2d 1233 HI 1996; State v. Cooks 642 So.2d 23 FL Dist Ct. App 1994; Burger v. Kemp 483 US 776 1987).
  3. My Attorney failed to request a competency review based on the fact that I entered a “guilty” plea prior to neurological diagnosis and despite the fact that thereafter, I was prescribed the antidepressant medication Zoloft prior to my sentencing hearing; at the time of the sentencing hearing, I was, and am currently, still in the evaluation stage of medication therapy, having received the prescription only six days earlier (EXHIBIT D; STATE v. MORRIS 590 P.2D 480 AZ Ct. App. 1979; STATE v. PIERCE 569 P.2d 865 AZ Ct. App. 1977; STATE v. RODRIGUEZ 558 P.2d 717 AZ Ct. App. 1976; State v. Milam 226 S.E.2d 433 WV 1976; Ex Parte Long,564 S.W.2d 760 TX Crim App. 1978 en banc; People v. Matthews 662 P.2d 1108 CO Ct. App. 1983; Smith v. State 443 N.E.2d 1187 IN 1983; State v. Lee 660 S.W.2d 394 MO Ct. App. 1983; Hollis v. State 633 S.W.2d 947 TX Ct. App. 1982; Baker v. State 297 S.E.2d 9 GA 1982; People v. McCabe 87 A.D.2d 852, 449 NYS.2d 245 NY App. Div. 1982; State v. Johnson 395 N.W.2d 176 WI 1986; People v. Murphy 513 N.E2d 904 IL App. Ct. 1987; Boggs v. State 575 So.2d 1274 FL 1991; Scott v. State 730 P.2d 7 OK Crim. App. 1986; W.S.L. v. State 470 So.2d 828 FL Dist Ct. App. 1985; People v. Arnold 113 A.D.2d 101, 495 NYS.2d 537 NY App. Div. 1985; State v. Williams 381 So.2d 439 LA 1980; State v. Sena 594 P.2d 336 NM Ct. App 1979; People v. Lowe 109 A.D.2d 300 491 NYS.2d 529 NY App. Div. 1985; Commonwealth v. Santiago 855 A.2d 682 PA 2004; People v. Brandon 643 N.E.2d 712 IL 1994).
  4. At the sentencing hearing, both Detective Greason and Prosecutor Shane Krauser were allowed to once again address the terrorism and twenty-three alleged related charges, and to refer to Columbine, even though my plea agreement and sentencing dismissed those allegations, therefore publicly implying that the harshness of my sentence was related to those charges, further maligning my character (EXHIBIT A; www.abc15.com: ABC 15 Investigators).
  5. During my various periods of incarceration, the State has failed to protect my physical person on at least six occasions, failed to provide for continued education, and has continuously failed to acknowledge or address my mental health care requirements.
  6. The Maricopa County Prosecutor’s Office blackmailed me into accepting a harsher-than-necessary Plea Agreement by refusing to dismiss the charges of intentional terrorism and alleged offenses related to that charge, which left me facing a minimum of 47 years to life imprisonment, and by further denying continuation of my sentencing hearing based upon discovery of my physical Traumatic Brain Injury and the need for its further evaluation, by threatening to withdraw the plea agreement in its entirety if I did not accept it at that time.  I was forced to accept this agreement as no alternatives were made available to me during the course of this case (EXHIBIT D; Glover v. US 531 US 198 121 S. Ct. 696 2001; Brady v. MD 373 US 83 1963; US v. Bagley 473 US 667 1985).
  7. The imprisonment stipulation within this Plea Agreement is specifically designed to prevent educational and therapeutic rehabilitation within ASPC, and to deny my eligibility to participate in the Dual Probationary Adjudication prescribed in ARS 13-603.B and ARS 13-921.A, thereby subjecting me to cruel and unusual retribution for punishment as a result of the requirement to exist in near-isolation in order to secure the safety of my person; removal of this single stipulation would allow the Court to modify my sentence to secure rehabilitation with my family and within my community.
  8. Inconsistencies within the initial arrest report were transferred to the Adult Probation Services as well as the State’s Pre-Sentence Recommendations as matters of fact.  This may have compromised the integrity with which sentencing was rendered; these pre-arrest issues were never addressed by my Attorney despite her awareness of them, as inconsequential to the final disposition of my case; my family and I continue to disagree that I was treated fairly in light of Arizona Statutes (Kyles v. Whitley 514 US 419 1995; Roe v. Flores-Ortega 528 US 470 2000; Kimmelman v. Morrison 477 US 365 1986; Wiggins v. Smith 539 US 510, 123 S.Ct. 2527 2003).
  9. ASPC has not received my mental health medical records as of the date of this filing, according to RN Trudy Dumkrieger (ASPC-Rincon Minors Unit, 7/23/2008), as ordered by Judge Sanders in the minute entry of 19 June 2008, and refuses to acquire those records (8/6/2008 per RN Dumkreiger, and 8/21/2008 per Deputy Warden Walter Hinsley), their medical department’s Psychiatric Provider having deemed them “unnecessary” to my continued mental health care, which I have not been receiving and have not received during any term of my incarceration thus far (American with Disabilities Act 1992).
  10. ASPC failed to protect my physical person upon transfer to the Rincon Minors Unit on 6/27/2008, despite verbalized concerns for my physical safety; to wit: I was physically beaten by three other juvenile inmates within twelve hours of transfer, whom had previously beaten me during my incarceration at the  Lower Buckeye Jail in Phoenix, resulting in my assignment to Protective Custody for 6 months at that facility, and a continuation of PC status at ASPC-Tucson immediately upon arrival.  I am allowed out of my cell for only two hours every other  day, with no opportunity to physically exercise my body.
  11. The ASPC medical department’s Psychiatric Provider has arbitrarily prescribed anti-depressant medication (changed from 50 mg Zoloft daily to 20mg Prozac daily) without satisfactorily monitoring its impact or dosage as related to my diagnosis, and is negligent by virtue of its refusal to review the diagnosis as well as failure to monitor the effectiveness of the dosage I am receiving in relation to the intended benefits of the medication, for relief of TBI.  They are therefore denying me access to therapeutic rehabilitation available to other inmates in the same facility, as a matter of discrimination for my disability (Seals v. State 1999 WL 2833 TN Crim. App. Jan. 6, 1999 unpublished slip opinion).
  12. The State has adjudicated me as an adult, with all of the attendant punishment due an adult, but is denying my right to an education under their system because I am a minor under age 16, an obvious matter of reverse age discrimination, and therefore not allowed to test for my GED, despite academic evaluation that shows my academic readiness for said testing.
  13. By denying me access to the GED, ASPC is further denying me access to the Vocational-Technical programs for the duration of my incarceration, hence sentencing me to additional arbitrary emotional and mental punishment by denying me the educational and career paths available to other inmates within the same facility.
  14. By denying me educational and therapeutic opportunities available to other inmates, ASPC is denying me the right to seek rehabilitative paths of my own accord, denying me tools to assist me in returning to life as a productive citizen upon release from incarceration (EXHIBIT C).
  15. By restricting my visitation to Fridays between the hours of 8am and 12pm, ASPC is preventing me effective parental assistance in the pursuance of legal relief, as well as access to my community support system (adult work hours/student school hours create undue hardship for all outside parties).
  16. ASPC policies have prevented me from filing this motion at an earlier date by restricting my incoming mail to ten one-sided pages per envelope; the PCR package and instructions by themselves encompass twenty-eight pages.  ASPC has stated that this information must come from an Attorney to be received in greater quantity.  I have no assistance beyond that of my parents, who cannot afford another attorney in my defense, and so are assisting me in preparation of this legal motion (EXHIBIT D).  I am therefore experiencing extreme difficulty in assessing an avenue for this Post-Conviction Relief Petition to be filed within the ninety days allotted me since sentencing.

RELIEF REQUESTED:

  1. I hereby request release to the custody of my parents, under dual intensive probation, where I may actively pursue continued higher education as well as combined medication and behavioral therapy on a continuous and regularly monitored basis, under direct parental and probationary supervision, and at no continued cost to the State.
  2. I request that the Prosecutor’s Office be denied the opportunity to re-charge me with terrorism, including all charges related to that allegation as frivolous and publicity-seeking actions at my personal expense for revealing personal thoughts.  Personality disorder is an insufficient basis for charges of a violent or conspiratorial nature (5th Amendment, U.S. Constitution). 
  3. I further request the Prosecutor’s Office be denied the ability to re-charge me with DCAC, in consideration of my physical disability and within the scope of diminished capacity.
  4. I request that the Kidnapping charge be reduced to a Class 4 Felony, as I voluntarily released my victim within sixty seconds in a safe place, prior to arrest and prior to committing further criminal acts, per ARS 13-1304.B and ARS 8-271, in good faith and upon realizing I had experienced a mental and emotional break with realty.
  5. I ask the Court to reconsider adjudicating me as an adult, in light of the medical condition my family has discovered as it affects my emotional and behavioral maturity, and remand me to the juvenile system for sentencing correction, possibly under Dual Probationary Adjudication due to the seriousness of my crimes.
  6. Such action will address my need for continuous mental health treatment, to address the medical and emotional contingencies associated with my attendant maturity, to allow for my entire social, educational, and behavioral history prior to this incident to be taken into account, and for appropriate rehabilitative actions for personality and emotional disorders, of which neither I nor my family had any prior knowledge, in order that I may return to society as a productive citizen, in line with my basic ethical values and patriotic tenets.
  7. I additionally request that the court allow the reduction of sentence to misdemeanors on both counts, as a first-time offender, with the continuing provision the felonies be reinstated for violating any term of probation, so that I can re-enter the Young Marines and Boy Scouts of America as part of my rehabilitation and community service stipulations, with the possibility of having my other Constitutional rights reinstated at some future date.

 Given ONE opportunity, I can prove that I am a productive member of society, willing to adhere to the norms established by our legal system, despite this one irrational incident of criminal activity.  By remaining incarcerated, I am learning nothing of a beneficial nature.

 I request the opportunity to rehabilitate myself in a positive environment, under constant supervision and with the willing assistance of my community support networks, rather than becoming another negative product of the prison system.  No other person or system can do this for me: I must be allowed this responsibility for atonement if I am ever to succeed insofar as my future is concerned.

Sincerely—

Brent K. Clark