David Hinkson is filling this motion pro se.
UNITED STATES CIRCUIT COURT OF APPEALS
FOR THE NINTH CIRCUIT
US Court of Appeals for the Ninth Circuit
Case # 12-35824, Civil Action 2012-cv-196-RCT
US District court Criminal Action 1:04-cr-00127-RCT-1
UNITED STATES OF AMERICA,
DAVID R. HINKSON,
MOTION FOR RECONSIDERATION
PRELIMINARY STATEMENT – GROSS ERROR
David Hinkson, who has consistently maintained his innocence through all proceedings, by and through his own hand, now respectfully requests reconsideration of the denial of his Motion for Certificate of Appealability (“COA”).
1. David Hinkson is conclusively entitled to a Certificate of Appealability. It was gross error leading to manifest injustice to deny the same. In order to obtain a COA, David Hinkson must simply demonstrate that at least one “jurist of reason” would disagree with the trial court. Since he has shown that six (6) such jurists actually disagreed with the trial court – specifically, Judge Fletcher (who in two separate opinions twice disagreed with the trial court), Judges Hug, Pregerson, Wardlaw, Paez, and Kozinski, all of whom qualify as “jurists of reason” have disagreed with the trial court in David Hinkson’s case.
It was gross error for Judges Fisher and Nguyen to deny David Hinkson’s Petition for COA without a written decision that can be appealed2 – this panel denied David Hinkson’s COA without a single word of explanation. Unfortunately, the only rational explanation for this error is purely political. There was no consideration given to any issue, no findings, no conclusions of law, in short, like in a totalitarian state, only a summary order was entered denying the COA. If not CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-10
Motions for clarification, reconsideration or rehearing of orders entered by a motions panel
are not favored by the Court and should be utilized only where counsel believes that the
Court has overlooked or misunderstood a point of law or fact, or where there is a change
in legal or factual circumstances after the order which would entitle the movant to relief.
(Rev. 1/1/04) — FED.R.APP.PROC. 27-10
[italics in original]
The order in question reads in it’s entirety: “The request for a certificate of
appealability is denied. See 28 U.S.C. § 2253(c)(2). All pending motions, if any, are
denied as moot.” corrected, no rational person could ever believe that David Hinkson obtained even a modicum of justice from this appellate body.
Given the trend these last few decades on the part of Congress and the Supreme Court to “increasingly to bar the federal courthouse door to litigants with substantial federal claims,” 3 habeas petitioners – including petitioners who may have suffered severe deprivations of their constitutional rights – now face myriad procedural hurdles specifically designed to restrict their access to the once Great Writ. In this modern era, which prizes “efficiency,” “parity,” and “judicial economy” often at the expense of justice and liberty,4 it is not at all unusual for an individual who fails to satisfy one of those many procedural hurdles to toil on for years in hopeless pursuit of an opportunity to be heard on the merits of his claim – an opportunity that he may never receive.
BRIEF STATEMENT OF THE ISSUES
David Hinkson’s Petition for COA contained clear statements of issues of fact and law demonstrating that his conviction was secured in violation of his U.S. Constitutional rights to due process of law. Those issues are:
ISSUE ONE: Whether a jurist of reason could agree with Hinkson that it was error to allow the testimony of a perjurer to stand without advising the jury they had been lied to, especially when both the court and the prosecution knew it Phelps v. Alameida, 569 F.3d 1120 (9th Cir., 2009) quoting Juidice v. Vail, 430 U.S.
327, 346, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (Brennan, J., dissenting, joined by
Marshall, J.) Phelps v. Alameida, 569 F.3d 1120, 1123 was perjury PRIOR to the conclusion of trial.5 Hinkson’s Petition points out that the prosecution’s sole witness – subsequently convicted of perjury for his false claims of combat heroism6 – was completely uncorroborated.
ISSUE TWO: Whether a jurist of reason could agree with Hinkson that the trial court lacked subject matter jurisdiction based on a plain reading of the statutes under which Defendant was charged. Lack of subject matter jurisdiction can be raised at any point in the proceeding and its failure demonstrates a fundamental lack of due process constituting a gross violation of Defendant’s Constitutional rights and reversible error.
ISSUE THREE: Whether a jurist of reason could agree with Hinkson that the trial court should have dismissed his case based on a gross failure of Defendant’s trial counsel to competently represent David Hinkson, constituting a complete abridgment of his Sixth Amendment Constitutional right to effective
assistance of counsel at and before trial. The trial court, in support of its denial of David Hinkson’s IAC claim asserted two opinions, which effective contradict each other: one that Hinkson’s trial counsel (attorney Nolan) was an excellent attorney who’s savage cross-examination of the witness Swisher “thoroughly discredited” him, while at the same time acknowledging the fact that Nolan had made a serious error. At least six jurists of reason completely agree with David Hinkson on this point.
Swisher boldly painted himself, with the government providing the canvas, brushes
and gallery, as a man who supposedly served his country in battle, unselfishly, at great
risk to his own life, when in fact, this heroic image was a lie and when in fact the exact
opposite was true; his 2008 conviction proved he was a coward, convicted and guilty of
stealing valor from those who had earned the right to make such claims, using forgery,
fraud and perjury to steal nearly two hundred thousand dollars in government funding
from other veterans and the taxpayers – all proven at Swisher’s own trial over 3 yrs after
Hinkson’s tactical error by failing to question Swisher on the issue of his perjury regarding
his appearance in court wearing a phony purple heart medal on his jacket lapel, all the while sustaining the notion that Swisher was credible. These opposites create enough cognitive dissonance as to drive the average reader to complete distraction.
ISSUE FOUR: Whether a jurist of reason could agree with David Hinkson that the trial court’s unannounced, ex parte meeting with the perjuring witness immediately prior to his entering the courtroom to take the witness stand, was gross reversible error that denied David Hinkson his fundamental Sixth Amendment Constitutional right to a fair trial, and denied his right to have his trial overseen IGNORING HINKSON’S ARGUMENTS WITHOUT WRITTEN
OPINION IS AN INSULT TO THE LAW AND THE U.S.
CONSTITUTION THAT THE PANEL JUDGES WERE SWORN
TO UPHOLD – THERE MUST BE A WAY FOR HINKSON TO
GET A HEARING INSTEAD OF POLITICALLY CONVENIENT
NON-RESPONSIVE ORDERS AND DICTATES!
GROUNDS TO ISSUE A COA
The standing rule of law regarding the issuance of a COA is found in the seminal case of Miller-El v. Cockrell, 537 U.S. 322 (2003) and is this: “Before a prisoner seeking post-conviction relief under §2254 may
appeal a district court’s denial or dismissal of the petition, he must first seek
and obtain a COA from a circuit justice or judge, §2253. This is a
jurisdictional prerequisite. A COA will issue only if §2253′s requirements
have been satisfied. When a habeas applicant seeks a COA, the court of
ppeals should limit its examination to a threshold inquiry into the
underlying merit of his claims. E.g., Slack, 29 U. S., at 481.7 This inquiry
does not require full consideration of the factual or legal bases supporting
the claims. Consistent with this Court’s precedent and the statutory
text, the prisoner need only demonstrate ‘a substantial showing of Slack v McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) the denial of a constitutional right.’ §2253(c)(2).
He satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his case or that the issues
presented were adequate to deserve encouragement to proceed further. E.g.,
id., at 484. He need not convince a judge, or, for that matter, three judges,
that he will prevail, but must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or
wrong, ibid. Pp. 335-338.”
The foregoing is controlling law. This court is bound by it’s own precedent and by that of the US Supreme Court. Anything less creates chaos in our legal system. The rule announced in Miller-El v. Cockrell, requires ONLY that Mr. Hinkson demonstrate that jurists of reason could disagree with the district court’s resolution. David Hinkson easily met and considerably exceeded this threshold standard by showing conclusively MORE THAN ONCE, that jurists in this very court of appeals, DID DISAGREE with David Hinkson’s trial court judge … and then he went further by demonstrating conclusively that jurists in other circuits AND THOSE OF THE U.S. SUPREME COURT, also disagreed with the notion that somehow Swisher’s lying to the jury during his testimony didn’t matter. All these individuals have been schooled, trained and experienced in the same court with the
same law, who disagreed with Hinkson’s trial court judge. Hence, the standard of at least one “jurist of reason” expressed by the US Supreme Court in Miller-El v. Cockrell, was met and exceeded many fold. The manifest injustice created by the denial of his COA is absolutely insane, and if it weren’t so deadly serious (a death sentence hangs in the balance), it would be laughable.
But yet, the small panel assigned to Hinkson’s Motion for COA couldn’t or wouldn’t determine that there were many jurists of reason who had already voted against the trial court. Clearly, the panel judges are guilty of “contempt without investigation” and weren’t looking at the information provided. It is more than passing strange that so many great minds overlook the obvious (Oliver Wendell Holmes, Jr.). Whereas, the rest of the world can discern that Hinkson met the standard for the COA by even an exceedingly brief examination of the history of this case (sort of an “Emperor’s New Clothes” situation) the panel judges of the Ninth Circuit made not one comment or observation.
Hinkson’s COA by summarily denying the request without the slightest attempt to justify their ruling, flies in the face of the rule of Stare Decisis, and the only reason that this court is ignoring it, is political. The precedents are dead set against this kind of non-opinion kangaroo justice. The only excuse this defendant can find for the lack of the panel’s COA review ignoring the facts and law is mere cronyism. If that’s not the case, then why else would the panel elect not to write an opinion, was it afraid that if it dealt honestly with the issues, it would be reversed on further appeal, or be compelled to order a COA?
Not a single one of those issues was addressed by the panel assigned to Mr. Hinkson’s COA Petition. (See footnote #2 above). The thundering silence of the court on every issue, while denying David Hinkson even a modicum of justice, truly speaks volumes as to the political nature of the order, which was clearly not based Now, with the Order denying David Hinkson’s COA without written opinion by
yet another Ninth Circuit panel, this appellate court has distinguished itself by reaching a new low in jurisprudence simply by ignoring all rational argument, no matter how compelling, and entering an order that is politically consistent with Judge Tallman’s past rulings, without regard to the merits. Tyrants follow the same pattern and say: “Don’t confuse me with facts or law, my mind is already made up.”
OVERVIEW OF THE PROBLEM
Of the thousands of members of the legal profession and the public who have viewed, and more who are viewing this case all the time, all see that the law apparently no longer matters to the Ninth Circuit – that an attack upon a person, such as David Hinkson, who is disliked by the U.S. Government for his political positions on issues such as income taxation, can easily be targeted by false criminal accusations and prosecuted for political reasons without actual law being applied Knowledgeable observers see that prosecutions such as the one against Mr. Hinkson designed to achieve a political result, can more easily be entered when protected by cronyism on appeal because the trial court judge also sits on the appellate bench; an otherwise unresolvable conflict of interest.
The cronyism exhibited by the narrow majority judges of the en banc panel who voted in favor of trial court judge Tallman, was so patently obvious that main stream commentators identified political protection of their colleague as the underlying reason for adoption of Judge Carlos Bea’s decision which is a total abomination in the eyes of the law. Judge Bea erroneously contrived a conflict by improperly applying the Harrington factors in a manner inconsistent with logic, reason and precedential history. As a result of Judge Bea’s decision adopted by a thin majority of the en banc panel, the Ninth Circuit went on record as an appellate court that could easily flip-flop from its own holdings to adopt opinions not only contradicting its own case precedents, but the precedents of the other circuits and the U.S. Supreme Court.
If there is any principle of the Constitution that more imperatively calls for
attachment than any other it is the principle of free thought, not free thought for those
who agree with us but freedom for the thought that we hate. – Oliver Wendell Holmes,
Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Sivak v. Hardison, 658 F.3d 898, 11 Cal. Daily Op. Serv. 11516, 2011 Daily Journal D.A.R. 13666 (9th Cir., 2011). As noted commentators have observed, the Bea decision was for the advancement of a political agenda, and was not consistent with any law If this court’ s denial of David Hinkson’s COA is allowed to stand, this court will be piling-on proof that it has no regard for the principle of Stare Decisis. Surely, if the terse reference to 28 U.S.C. §2253(c)(2) in the Order Denying Hinkson’s COA Petition means anything, it stands as undeniable proof that the panel did not read a single word of the Petition. 28 U.S.C. §2253(c)(2) provides as follows: (c)(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
Petition for COA repeatedly shows prima facie verification that his Constitutional Rights were denied – he provided proofs, not mere allegations, or naked assertions; ergo, to have denied the Petition for COA required either examining these issues and making proper and reasoned conclusions of law (which didn’t happen), or completely ignoring everything submitted (which did happen). Since no findings or conclusions of any kind were made, the only rational inference is that the panel members did not bother to read the Petition. The Phelps case demonstrates that Circuit courts have a history of completely ignoring the valid claims of those procedural focus which fractures Constitutionally dictated fundamental fairness contained within the concept of dueprocess of law.
Such breakdowns turn what is the appearance of JUSTICE into a stick by which the petitioner can be further flogged and denied his constitutional A matter of solemn concern is that the trial court judge came from this very court – as a novice trial judge sitting for the first time in a matter of any consequence. His actions were so politically motivated that the record is replete with examples of Judge Tallman practicing law from the bench, instructing the prosecutor as to how to improve their case, and excluding all exculpatory evidence.
Judge Tallman actually created a false fact from the bench, stated it was true, made a finding that the fact existed, and then entered the critical evidentiary ruling that denied David Hinkson the opportunity to show the jury that the sole prosecution witness whom the jury found somewhat credible was a perjurer. Strangely, it was Judge Tallman who introduced the lie and compounded the effect of that lie into the pivotal ruling. Judge Tallman effectively perjured the record by creating non-existent facts
in order to assist the US Attorney in making its false case against David Hinkson.
“The proffered documents state, in summation, that Swisher’s record does
not indicate that he earned any service record or service medals during his
military duty; however, other documents available to the court suggest that
Swisher might, indeed, have earned such medals”. It is as if the entire Ninth Circuit must suffer the loss of reputation because it insists on protecting the reputation of one of its members who had distinguished himself by being willing to play fast and loose with the truth. Judges are first, last, and foremost, PEOPLE. They have their own biases and beliefs and prejudices. The mere act of donning a black robe does not strip them of their humanity and no amount of erudite protestations to the contrary will ever convince anyone. Judges are always influenced by their experiences and desires. It is absolutely impossible to believe that all the judges in the court are
immune to the vagaries of human nature.
As it was put by one experienced attorney who practices regularly before this circuit ABOUT THIS VERY CASE:
“But, Keker said he is disturbed by the fact that 9th Circuit judges are in
effect judging one of their own colleagues, Tallman, who heard the case in
Boise, Idaho, in 2005. In an 7-4 en banc decision in November, the circuit
affirmed Tallman’s decision making at trial. U.S. v. Hinkson, 585 F.3d 1247
(2009). The majority redefined upward the degree of deference an appellate
panel owes a trial judge, holding that only “illogical” or “implausible” trial
court rulings amount to an abuse of discretion warranting reversal.
Tallman’s rulings did not meet that new standard, the majority held.”
Keker went on to say in his interview with John Roemer of the Daily Journal:
“Judges always tell you they are immune from any human frailties when
they put on their robes, and we have to believe them. If we get up and say
we don’t believe them, we get thrown in jail,” Keker said.
“Keker took particular offense at Tallman rulings that evidence proving
Swisher lied about his service record was “not ‘material’ to the issues at trial”
and was “‘merely impeaching’ because it did nothing more than attack
Swisher’s credibility regarding his military service rather than his testimony
regarding the solicitations [to murder] charged,” according to language
Keker cited from the appellate record.”
See Trial Transcript page 1124 lines 13-21 wherein Judge Tallman states,
fallaciously, that there is evidence which could support his claim of combat service. In
fact, there is nothing in the subpoenaed military file to support the notion that Swisher
was ever in combat, as Swisher’s perjury and fraud trial proved conclusively. In other
words, Judge Tallman concocted the “evidence” out of whole cloth and then ruled the file
inadmissible to make it as difficult as possible for anyone to contradict him.
These excerpts are direct quotes from the Daily Journal article published in
response to the Bea decision in the Hinkson case, a publication which has the most
widely read reportage on Ninth Circuit activities and rulings available to the legal
community and the public alike. – available online.10
The foregoing article was published in 2010 and since then thousands of
individuals, lawyers, teachers, law schools, etc., have read it. Now the proof of the
charge is before us: the denial of David Hinkson’s due process rights, the denial of his
Petition for COA, and with those, this court is on the cusp of being seen as the
laughingstock of the legal community.
BRIEF ARGUMENT IN SUPPORT OF RECONSIDERATION
The denial should be reconsidered because the existing order denying Mr.
Hinkson’s COA is an abuse of discretion, and embodies manifest injustice from
gross errors and constitutes a failure to conform to existing precedent – a general
denial of Sixth Amendment due process from its failure to produce findings of fact
or conclusions of law or opinion from which an appeal can be taken.
court’s stance was shown by David Hinkson in his Motion for COA to be contrary to
fundamental constitutional law, contrary to U.S. Supreme Court rulings and
contrary to controlling Ninth Circuit precedent.11 In fact, the Hinkson case stands
alone in American jurisprudence as the only case where state-sponsored perjury
has been permitted to sustain a conviction; truly a black mark upon the reputation
of the Ninth Circuit. The trial court asserted, albeit incorrectly, that Swisher’s lies
http://www.dailyjournal.com/common/printemail/printArticle.cfm?eid=908027&evid=1&scid=162208&cid=0 Ignoring controlling precedence is a denial of due process under both the 5th and
14 Amendments to the US Constitution.
didn’t matter because it was only important what Hinkson believed, not what the
But what is REALLY at issue is not whether Hinkson believed the lies told
by Swisher about his military background, what’s at issue is what the jury believed
about Swisher’s testimony – when Swisher lied to the jury. The question is, would
Swisher have had sufficient credibility if the trial court had admitted his
ACTUAL12 military record into evidence? The jury accepted as true what was
otherwise a totally unbelievable scenario about Hinkson hiring Swisher to murder
federal officials because they were bamboozled into believing that Swisher had the
credibility of a “Super Hero,” that is, one who could not, or would not lie.13 Had
they, by the time of their deliberations, known what the judge and prosecution
knew, they never would have convicted David Hinkson. See the Affidavit of juror
Ben Casey submitted with Hinkson’ Motion for New Trial and again with his 2255
Motion. In the final analysis, it is the trial court’s denying the defense the
opportunity to show his military record that ultimately created the problem. Now,
looking objectively at all the facts, after Swisher has been convicted for the very
perjury he committed in the Hinkson case, it is the Ninth Circuit that can, through
its rearview mirror approach, right this horrible wrong and unfathomable injustice
by simply granting Hinkson’s COA Petition and allow an innocent man the
opportunity to prove the wrongness of his conviction.
That Swisher lied to Hinkson is of minimal importance, if any at all. Either
Not the false DD214 which the prosecution and lying witness displayed to the jury.
The jury accepted this as true because they were denied any evidence to the
contrary – evidence known to the trial court and the prosecution well prior to the end of
the trial. U.S. v Hinkson, 585 F.3d 1247 (9 th Cir., 2009) at pages 1276-1278.
Swisher was a credible witness whom the jury had a right to believe, or he was a
lying witness, self-clothed with a false persona of credibility that belongs to actual
combat heroes! This is the essence of the legal issue in David Hinkson’s case. It is
clear without any possibility of contradiction that the jury found Swisher credible
as a wounded combat veteran, worthy of belief as to other assertions as well, such
as the false murder for hire allegations. It is also known that the OTHER
witnesses who testified against David Hinkson all of whom had a financial stake in
seeing David Hinkson sent to prison, were found to be completely non-credible and
were not believed by the jury, which refused to return guilty verdicts on ANY OF
Indeed, the prosecution used Swisher’s perjured testimony
during it’s summation to the jury, with full knowledge that they were compounding
the perjury by failing to tell the jury the truth about Swisher’s false combat and
One very important point David Hinkson raised in his Petition for COA is that
the only evidence supporting the notion that Hinkson believed the lies of Swisher
about his military combat was from Swisher himself – now a known and convicted
perjurer. The 9th Circuit panel supposedly evaluating the Motion for COA erred in
not examining this issue about Swisher’s military record proving his combat
assertions to be false – Swisher’s lies went directly to the issue of the credibility of
the ONLY WITNESS AGAINST HINKSON REGARDING WHAT HINKSON SAID
WHEN HE WAS SUPPOSEDLY SOLICITING MURDER.
The issue in this case is NOT whether this court has the jurisdiction to
overturn the trial court’s discretion when it denied David Hinkson’s motion for a new
trial (see 2nd Hinkson appeal, U.S. v. Hinkson, 585 F.3d 1247 (9th Cir., 2009)). The
issue is whether the jury could have been influenced to believe the lie. It is without
question that Swisher is a liar, the real question is, what would a jury have done
with that information had it been timely presented to them. That determination
needs to be made pursuant to Napue and Sivak and a host of other similar
controlling precedents. David Hinkson deserves an opportunity to have this issue
decided and the issuance of a Certificate of Appealability is necessary and required
under the law. Justice demands that his claims not be ignored as in Phelps, but
that he be given his day in court.
FURTHER, there is the issue of jurisdiction. The sole basis for the trial
judge’s denial of David Hinkson’s 2255 Motion under the jurisdictional claim in his
Section 2255 Motion (Claim Five) was that there wasn’t any jurisdictional
statement within the words of Section 1114 of Title 18. The trial judge asserted
that the penalty section of the implicated statute (Section 1113) is divorced from
the geographical limitation in that statute – apparently because the penalty
provision is all that the trial court wanted to incorporate. Simply put, this holding
is in error. In reasoning that the trial court can ignore one portion of the wording
of the statute but apply another portion of it, it is inherent that statutory
construction be ignored when convenient to the trial court. Nowhere in over 200
years of law making, judicial interpretations, and applications of these, can it be
found where a court is allowed to pick-and-choose, selecting some words out of a
statute and applying only those words and ignoring the remaining statutory
language. This Motion for Reconsideration hereby fully incorporates all the
arguments regarding this matter contained in David Hinkson’s 2255 motion and his
Then there is the issue of IMPROPER EX-PARTE JUDICIAL CONTACT.
When the trial court denied David Hinkson’s 2255 motion he openly admitted that
the meeting took place while at the same time pretending that it was of no
consequence. The judicial impropriety of conducting such an ex parte meeting with
a witness, hostile to the defendant, immediately prior to testimony, is such a gross
violation of judicial propriety, this court would be well within it’s right to remove
Judge Tallman from this case summarily.
As to the ex parte meeting by Judge
Tallman and Swisher, the following applies:
FACT: The meeting was not denied by Judge Tallman confirming that it took
FACT: Judge Tallman tried a clumsy attempt at dismiss the meeting as insignificant. Conducting an unannounced ex parte meeting with Swisher before he testified, is, by itself, grounds for reversal of the conviction.
For the foregoing, the COA should issue forthwith.
Respectfully submitted this ____ day of January, 2013, by:
David R. Hinkson, pro se
Reg. No. 08795-023
USP Atwater U.S. Penitentiary
P.O. Box 019001
Atwater, California 95301
CERTIFICATE OF SERVICE BY MAIL
I HEREBY CERTIFY that on January ______ , 2013, a true and correct copy of the foregoing MOTION FOR RECONSIDERATION was deposited with the US Post Office, First Class postage prepaid, and sent to the Court as addressed below and a copy by US Mail to the attorney of record as addressed below.
John F. De Pue
DOJ National Security Division
950 Pennsylvania Ave NW
Washington, D.C. 20530
Clerk of the Court
United States Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939
David R. Hinkson, pro se
Reg. No. 08795-023
USP Atwater U.S. Penitentiary
P.O. Box 019001
Atwater, California 95301