Oscar has prepared a motion to be filed at the Tenth Circuit shortly.

He describes conditions prisoners face when trying to mount an appeal whether helping their attorney or proceeding pro se.  This information needs to become public knowledge so as to pressure the Department of Justice and Bureau of Prisons into making changes.

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States of America,

Appellee,

vs.

Oscar Amos Stilley,

Appellant

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Case No. 10-5057, 10-5055

(D.C. No. 4:09-cr-00043-SPF-2)

Motion to Prohibit Interference

MOTION TO PROHIBIT THE UNITED STATES DEPARTMENT OF JUSTICE FROM INTERFERRING WITH THE RIGHT OF STILLEY, AND ALL OTHER LITIGANTS, TO REASONABLE ACCESS TO THE COURTS; TO COMPEL THE DEPARTMENT OF JUSTICE TO ACCORD STILLEY, AND ALL OTHER INCARCERATED PERSONS, REASONABLE ACCESS TO THE COURTS AS A MATTER OF POLICY; TO ACCORD STILLEY AN OPPORTUNITY TO REPLY; AND, TO EXTEND THE TIME FOR BRIEFING, SUCH THAT STILLEY HAS FULLY 40 DAYS OF ACCESS TO ALL TRIAL RESOURCES SOUGHT HEREIN; AND, FOR OTHER RELIEF

Comes now Oscar Amos Stilley, (“Stilley”), and for his motion states:

Stilley on May 25, 2010 filed a motion asking that he be given access to the wherewithal to reasonably prosecute his own appeal in the instant case. On June 6, Judges Henry and Tymkovich entered an order, which amongst other things, summarily denied “all other motions.” These “all other” motions were not identified. Stilley cannot see any “all other” motions, except his motion seeking access to the courts, that remained alive at the time of the order. Stilley’s motion, however, appears to have been filed twice, probably as a result of confusion related to getting the motion filed.

Stilley seeks relief, not only for himself and co-appellant, Lindsey Kent Springer, (“Springer”), but also for all persons similarly situated with respect to the herein stated pervasive and persistent violations of due process. The Department of Justice and Bureau of Prisons, (“DOJ-BOP”), holds prisoners under circumstances that can only be attributable to a deliberate hostility toward the constitutionally-protected rights of inmates to access the courts, with respect to criminal, civil, or other legal business, that they may have before courts or other tribunals.

The DOJ-BOP are in fact branches of the very entity that prosecuted Stilley and Springer and obtained their incarceration pending appeal. The Department of Justice, (“DOJ”), is in essence the law firm representing the United States of America (of which the DOJ is part) in seeking to deprive citizens of liberty in criminal cases.

The unlawful conditions inflicted upon Stilley include the following:

  1. Stilley is denied access to his hard-copy files. DOJ-BOP rules limit the amount of hard files to an amount far less than the volume of hard files possessed by Stilley, in this case, which are directly relevant to the appeal. The DOJ-BOP has returned the small amount of hard copy that his wife attempted to send to him. Further efforts to get hard copy have been fruitless. In addition, Stilley has hard files related to his disbarment, related reciprocal discipline cases, and a civil case. Stilley should be permitted secure and reliable access to all hard files related to pending litigation.

  2. Stilley is denied access to the internet except for the TRULINCS program on which this document is being drafted. He is also denied access to his own computers and hard drives and any form of access to his own computer files or legal research tools. Stilley’s files are voluminous and include material such as audio and video, which cannot be converted to paper form.

Stilley subscribes to Lexis-Nexis, which he cannot access without a computer and an internet connection. This case involves Treasury, and other agency, regulations from 2000-2009 with some need for regulations from years outside this range. Stilley has no access to the versions of the regulations relevant to this case. Those versions are available for free online, but because opposing counsel chooses to prevent Stilley’s access to the internet, those authorities are simply not available to Stilley in any form.

The legal research tool supplied by the DOJ-BOP, apparently supplied by Lexis-Nexis, is a complete farce. It is impossible to “Shepardize,” which is to say, to determine the history and progeny of a case, ascertain quickly whether the case is still good law and determine what other courts say about that part of the case relevant to a litigant’s citation. There is no “back arrow.” The cases are generally six months out-of-date since the cases are not updated online, except that later cases are thrown all together into one folder, without hyperlinks, in such a manner as to make effective searching next to impossible. State cases are not available at all. Virtually none of the features on Stilley’s relatively inexpensive Lexis-Nexis package are available in the DOJ-BOP version of Lexis-Nexis. Space limitations preclude an exhaustive list of the obstructionist tactics employed by the DOJ-BOP with respect to this program.

Nothing can be copied and pasted on DOJ-BOP computers. No files can be saved except for drafts of TRULINCS e-mail, which costs an inmate 5 cents per minute for the time on the program. Research, to the extent that it exists, must be conducted on one set of computers, whereas, composing e-mail must be done in a separate building. Research quotations cannot be saved electronically. They must be printed or hand-copied, then typed into the legal pleading. Copies cost 13 cents a page, whereas, inmates are generally paid between 12 and 40 cents an hour. Even at these absurdly low wages, employment is far from assured. Economically-productive activity is generally denounced as “running a business” and prohibited.

The DOJ-BOP formerly allowed inmates access to Notepad, a very elementary word-processing program. This program was taken away, apparently because inmates discovered how to save files on the hard drive. There is a computer lab in the prison, but inmates are strictly forbidden to use those computers for legal or personal work of any kind. These computers have no internet access.

  1. Printing costs 15 cents per page, several times the actual cost on Stilley’s own printers. Stilley is not allowed to have access to his own printers. Inmates have no control over print margins for e-mail, which is the only means they have to type a document with the possibility of correction and redrafting. Typing supplies cost perhaps 25 cents per page. Typing renders the drafting process far slower and ensures that the final product will be scarcely a shadow of the document that could be created in the same time period with a word-processor.
  2. It is impossible to do a word count as required by the rules. Briefing checklists readily available on the internet are not available to inmates. It is impossible to set margins, font sizes, line spacing, page numbering, and other settings necessary to create a brief that complies with the rules, on TRULINCS. The maximum document size is 13,000 characters. Italics, underlining, bold, footnotes, and just about every other feature of modern word-processors, is unavailable. Default DOJ-BOP settings are all violative not only of the rules of the 10th Circuit, but the rules of all Circuits, and also of virtually every court in the country.

JUDGE HENRY IS DISQUALIFIED FROM PARTICIPATION IN THIS CASE

Judge Henry is the judge whose orders have been used for many years to circumvent the Constitution and Laws of the United States, which entitle a criminal defendant to a judge who is legally seated within the district in which the crime is alleged to have been committed. An example of these orders is Misc. # 23, which purportedly appointed Judge Stephen Friot from the Western District of Oklahoma to an “office of district judge” in the Northern District of Oklahoma on what appears to be an annual, revolving basis, which was presented in the trial leading to appellant’s conviction.

Judge Henry, knowing that his order denyiing Stilley’s motion was subject to attack, chose to deny it, in violation of recent case law discussed below, which motion would have allowed Stilley and Springer to effectively brief the Court concerning Henry’s illegal Misc. # 23 orders, and the reasons that the trial court’s reliance on such illegal orders, require a reversal of the judgment of conviction.

“The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). To demonstrate a violation of due process because of judicial bias, a claimant must show either actual bias or an appearance of bias. Phelps v. Hamilton, 122 F.3d 1309, 1323 (10th Cir. 1997). A Judge must recuse himself “if sufficient factual grounds exist to cause a reasonable, objective person, knowing all the relevant facts, to question the judge’s impartiality.” United States v. Pearson, 203 F.3d 1243, 1277 (10th Cir. 2000).

The conflict of interest involving Judge Henry should be acknowledged and corrected by this Court. The public reputation of the Court is at stake.

Judge Henry has announced his impending retirement. How then did it happen that he has been assigned to a case in which his orders are attacked as illegal? How then does it happen that he sabotages the ability of Stilley to legally challenge his actions, without even mentioning in his order that this is what he is doing?

THE DOJ–BOP HAS A CONFLICT OF INTEREST

The DOJ is opposing counsel in this case. The DOJ nevertheless operates the BOP, and uses that power to deprive its adversaries and victims of a reasonable opportunity to defend themselves. This Court would not allow any other litigant to control an opponent’s legal resources in such a manner as the DOJ-BOP does. This Court should find and declare that the DOJ-BOP’s function of setting any policy preventing any litigant from access to the resources requested herein constitutes a conflict of interest. This Court should prevent the implementation, publication, or enforcement of such policies, require the DOJ-BOP to implement remedial policies and require the DOJ-BOP to publish notice of said policy changes in all prisons nationwide.

Convicted persons are sent to prison “as punishment, not for punishment.” Battle v. Anderson, 564 F.2d 388 (10th Cir. 1977). Stilley does not complain of those burdens that are necessarily incidental to a deprivation of liberty. However, the DOJ-BOP enforces numerous policies that have no legitimate purpose, that serve only as unlawful additional punishment, and that serve as impediments to exposing the corruption and dishonesty of the DOJ.

The DOJ has throughout this case engaged in a pattern of malicious interference with the right of access to the courts. For example:

  1. Lindsey Springer was able to obtain the services of Jerold Barringer on appeal. The DOJ immediately objected based upon a pretended conflict with Judith Patterson. However, the DOJ had no right to raise any purported claim of Ms. Patterson, which if it existed, belonged to her and no one else. There are precious few lawyers with both the competence and courage to represent a criminal defendant in a federal tax case such as this one. The DOJ, having economically scorched the earth on both Stilley and Springer for years, obviously hoped to parlay that into the destruction of Springer’s ability to effectively defend himself by removing Barringer from participation in this case.
  2. The DOJ successfully prevented Stilley & Springer from getting a copy of the transcript pending sentencing. This, of course, ensured that the defendants would never have both a copy of the transcript and access to essential legal resources, whereby, they might prepare a credible appeal with respect to issues of liability.
  3. Stilley’s phone call to the 10th Circuit Court of Appeals was summarily cut off. Stilley has tried for many days to get a private telephone call to Jerold Barringer, counsel for Lindsey Springer, thus far, without success.
  4. The DOJ-BOP refuses to return the calls of Julie Stilley, Oscar Stilley’s wife, or to take her calls made in an effort to send hard copy material to Stilley. She is told that she cannot obtain relief from Tony Rasdon, counselor for residential unit Marianna-C, who is the de-facto counselor for Marianna-D, where Stilley resides. Rather, she is told to speak with counselor S. Foreman. The problem is that Mr. Foreman is, for all practical purposes, a ghost employee who is almost never available.
  5. The DOJ-BOP enforces a litany of other rules, which have the effect of unnecessarily interfering with the right of inmates to access the courts.

DENIAL OF A MOTION WITHOUT EXPLANATION VIOLATES

THE TENTH CIRCUIT’s PRECEDENT IN CLYMA V. SUNOCO

Judge Tymkovich, in the context of attorney fee determinations, stated, in his concurrence in Browder v. City of Moab, 427 F.3d 717, 721 (10th Cir. 2005), “Our cases, of course, require the court to explain its reasoning on the record for purposes of appellate review.” Surely, a 15 year prison sentence, for conduct that Stilley was required to do under ethical rules, is a far more weighty matter than an attorney fee request and should call for at least the same judicial scrutiny and explanation.

In Clyma v. Sunoco, Inc., 594 F. 3d 777 (10th Cir. March 4, 2010), the Court said:

By simply denying the application in a minute order without any substantive explanation, we cannot say the district court exercised any meaningful discretion. And we have long held that a court’s failure to exercise meaningful discretion constitutes an abuse of discretion. For example, in Ohlander v. Larson, 114 F.3d 1531 (10th Cir. 1997), we recognized a ‘clear example of an abuse of discretion exists where the trial court fails to consider the applicable legal standard or the facts upon which the exercise of its discretionary judgment is based.’ Id. at 1537. This is a case where such failure occurred.

Not only did the Court deny the motion without compliance with Clyma v. Sunoco, Inc., the Court spared the DOJ the burden of responding to the motion by denying the motion before a response was due. Stilley respectfully sets forth the following questions that the DOJ should now answer in its response:

  1. Does the DOJ-BOP contend that a deprivation of Stilley’s access to any of his papers, pleadings, internet access, computers, computer files, printers, peripherals, etc., mentioned herein, is a necessary incidental to the district court’s order depriving Stilley of liberty? If so, what specifically is the reason for this claim, with respect to each item stated?
  2. The DOJ-BOP has computers that remain locked up most of the time. Does the DOJ-BOP claim that any legitimate policy interests support their rule prohibiting the use of computers for legal purposes? If so, what are those legitimate policy purposes, and why could they not be protected by less restrictive means?
  3. Does the DOJ-BOP claim that any legitimate interest supports its policy of prohibiting inmates from loading or using WordPerfect, PITA, or other commonly available programs, for use in preparation of pleadings or for other purposes related to litigation? If so, what are those interests, and how does the DOJ-BOP argue that those interests are legally sufficient to deny the use of said programs?
  4. Does the DOJ-BOP claim that any legitimate interest supports its prohibition against saving files either to removable media or an existing hard drive, using password protection of the information? If so, what is the basis for arguing that such interest supersedes the legitimate, constitutionally-protected rights of inmates to give or receive help with respect to preparation of legal documents, civil, criminal or otherwise?
  5. Does the DOJ deny having interfered with phone communication with the 10th Circuit clerk’s office? If not, what was the legitimate basis for that action?
  6. Does the DOJ-BOP deny having seized and returned Stilley’s legal files to his home? Does the DOJ-BOP deny having thereafter intercepted and returned legal files sent to Stilley at his current prison address by his wife? If not, what were the legitimate bases for those actions or any similar actions in the future?
  7. Does the DOJ-BOP deny having failed to answer Julie Stilley’s phone calls or return her messages concerning further attempts to send legal files to Stilley? An explanation is due.
  8. Stilley’s files are voluminous, such that personal delivery is much cheaper than mail. Does the DOJ-BOP claim that it has a legitimate basis for refusing to allow relatives to personally deliver files, computers, printers, or other materials necessary or proper, for the prosecution of an appeal? If so, what is that basis, and how does it argue that such basis is superior to the constitutional rights of inmates to due process, access to the courts, giving or receiving legal assistance, etc?

STILLEY HAS SHOWN A RIGHT APPLICABLE NOT ONLY PERSONALLY TO HIMSELF AND SPRINGER BUT ALSO AS A FORMAL CHANGE OF POLICY

For much too long, courts have regularly given pro se, incarcerated litigants what amounts to a “pat on the head,” excusing their failures to comply with the rules. These insincere acts of forgiveness, set forth in public opinions, appear to the public as a magnanimous, albeit, paternalistic, solicitude for the rights of incarcerated inmates.

What litigants and the taxpaying public actually want, on the other hand, is something approaching a level playing field. Current policies of the DOJ-BOP, on the other hand, are perhaps the greatest engine ever devised for creating the illusion but not the reality of due process for incarcerated litigants.

Published opinions reflect that Stilley has been counsel of record on scores of appellate cases in both state and federal courts. Recently, Stilley appealed a reciprocal suspension in the Northern District of Oklahoma in 10th Circuit Case number 09-5090, which at the present time remains pending. It cannot be rationally questioned that Stilley, a practicing attorney with some 19 years experience, is not capable, willing, and altogether desirous, of filing a well-drafted brief that fully conforms to the rules and customs of this Court both as to form and content in his own criminal appeal.

Stilley, in seeking the same rights for Springer, is not an officious inter-meddler. Springer’s right to access the courts is as much to the benefit of Stilley as it is to the benefit of Springer. In fact, Stilley waived his legal right to request severance and his right to compulsory process to obtain Springer as a witness in his own case, on the theory, that the co-operation and assistance of Springer in litigation, at trial, and if necessary, on appeal, was worth more than the severance.

Stilley made the choice on the basis of the facts before him, yet is now denied the benefits naturally flowing from the choice. Springer is now incarcerated, and likewise deprived of the things of which Stilley is deprived, perhaps, with greater or lesser force and effect.

Stilley cannot communicate with Springer as a result of the order of Judge Friot requiring incarceration at separate prisons. This is simply another example of the DOJ and Judge Friot working together to sabotage efforts of Stilley and Springer to effectively defend themselves on appeal. The illegal benefit to the DOJ will, for the most part, and perhaps completely, evaporate if Stilley and Springer get the relief sought herein.

If the truth seeking process is any part of our federal appellate court system, this habitual trampling of the ability of incarcerated persons to effectively access the courts must be stopped and publicly denounced.

Consider the many litigants who pay customary rates to lawyers for hundreds of hours, sometimes exceeding 1,000 man-hours, to prosecute an appeal. Are the lawyers who charge such rates simply price gougers, dishonest sharpers, taking advantage of vulnerable prisoners? Surely not, at least, not as a matter of course. Private litigants regularly consume large amounts of expensive time by experienced professionals in order to present a professional, coherent, concise, well-drafted brief to appellate courts. Judges often agree that such choices were reasonable, as they sometimes award large attorney fees to represent the large amounts of time consumed.

How then can Stilley and Springer be expected to craft a brief worthy of the significant issues presented in this case under circumstances that reduce productivity to a small fraction of what it would be if the DOJ-BOP did not materially interfere with the right of prisoners to access the courts? Scarcely any right is more precious than the right to access resources necessary to the defense of liberty, whether same be the property or legal right of a prisoner, or a benefit conferred by a compassionate fellow prisoner.

STILLEY SHOULD BE GRANTED THE RELIEF SOUGHT

FOR HIMSELF AND ALL OTHERS SIMILARLY SITUATED

Every motion necessarily includes a statement of the relief sought. In this case, Stilley has observed firsthand the despair and hopelessness inflicted upon other inmates as a result of the illegal policies of the DOJ-BOP. Many other DOJ-BOP prisoners are incarcerated illegally, either for their entire sentence or for part thereof, because the complained of policies have effectually rendered meaningless the legal rights of those inmates to judicial review, habeas corpus, the rule of law, etc.

Stilley therefore, respectfully requests that this Court grant relief by ordering the DOJ-BOP to effectuate certain policy changes that would inure to the benefit of all prisoners within the custody of the DOJ-BOP.

WHEREFORE, Stilley respectfully requests the Court grant the following relief:

  1. An order setting aside the order by Henry and Tymkovich, complained of herein, on grounds of conflict, failure to state facts and reasoning, or such other grounds as the Court deems appropriate;
  2. Procedurally, that Stilley shall have the opportunity to reply to any response to this motion;
  3. Procedurally, that the deadline for filing appellant’s brief, by either party, be extended to a time 40 days after all relief granted by this Court is fully effectuated, leaving open the possibility of further requests for extension should the need arise, including consideration of the motion for extension of time submitted concurrently;
  4. That the Court order the DOJ-BOP to grant the following rights to Stilley and Springer, and to furthermore implement changes to policy ensuring that every federal inmate with litigation shall have the same rights, published in writing to all inmates within the federal prison system, as follows below;
  5. Policy changes ensuring that federal prisoners have the right to maintain possession of all hard files or hard copy legal materials relating to any pending or prospective litigation, regardless of volume;
  6. Policy changes ensuring that federal inmates have the right to maintain possession and use of computers, internet access, computer programs and files, hard drives, removable drives, printers, scanners, internet access devices, headsets, binders, tabs, organizational materials and hardware, peripherals and such other devices and materials as might reasonably be used in the preparation of pleadings and briefs;
  7. Policy changes ensuring the right to use and install legitimate copies of WordPerfect, Microsoft Word, PITA, or other programs reasonably useful to a litigant, on DOJ-BOP computers provided for use by inmates to the extent that same are not already made available to DOJ-BOP prisoners;
  8. Policy changes ensuring the right to devote full, uninterrupted attention to the preparation of legal briefs, on personal or DOJ-BOP computers, instead of the current requirement that inmates may work at most 30 minutes with a mandatory, minimum 30 minute delay before logging on again;
  9. Policy changes prohibiting any interference with inmates acquiring, sharing, or exchanging information, files, briefs, templates, forms, postage stamps, or anything else whether tangible or intangible, that might reasonably be necessary or proper for the legal needs of inmates;
  10. Policy changes prohibiting any limitation on the hours that inmates may work on legal matters, subject only to essential “count times;”
  11. Policy changes requiring that the DOJ-BOP permit any person to personally deliver any of the materials, equipment or tangible items to which an inmate is entitled, at any reasonable hour, with assurance that the inmate shall receive same within 24 hours of the time that the items are delivered to the prison, and furthermore, that if and when the inmate is transferred, said items will be made available within 3 business days of the inmate’s arrival at the new location;
  12. Policy changes prohibiting any charge for computers, printers, peripherals or supplies in excess of those amounts reasonably necessary to economically provide quality equipment for the use of inmates and prohibitions on the diversion of funds received thereby to any other purpose;
  13. Such other, further or lesser, relief as the Court may find appropriate whether or not specifically prayed.

Respectfully submitted this 29th day of July, 2010

Oscar Amos Stilley


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