Category: Litigation

bookmark_borderDOJ Bad Faith

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Ryan Shapiro has explained how the DOJ/FBI loves to violate FOIA, indicating that you have to sue them to get compliance, which is ridiculous but so are a lot of things today. (I agree with the pardon for Ross and a lot of the January Sixers but not the violent ones, but I do agree with Trump on one thing, the DOJ is definitely filled with a lot of scum. It’s just a Pot calling the Kettle black situation, IMO.)

Anyway… Ryan explains why the FBI claims they couldn’t find the NIT Reports succinctly:

[T]he FBI has designed a series of “Failure by Design” FOIA search protocols. The FBI conducts its FOIA searches in such a way that the vast majority of those searches fail to locate the requested records, even though the FBI absolutely has those records. So, the FBI superficially appears to be in compliance with FOIA because it conducted a search, but it doesn’t have to release any documents because that search (deliberately) found nothing.

Not surprisingly the DOJ says they found 2075 pages responsive to my request for proof of Becker’s crimes; BUT, are claiming (in bad faith) they’re all exempt from disclosure due to various exemptions.

So, the Vaughn Index should be interesting. I think we’re definitely heading towards IN CAMERA INSPECTION.

UPDATE: On January 30, 2025 the DOJ asked for an extension to process pages they should have already processed one day before they were due. I opposed the extension. The Court gave them the extension, so now I have to wait until May 30, 2025 to start litigating their nonsense.

bookmark_borderPerfecting An Appeal In New York State

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So, my appeal of the ridiculous SORA order issued on January 5, 2024 was delivered yesterday. My previous attempts were thwarted by the arcane process known as “perfecting” an appeal in New York State.

Basically, my appeal was stymied by the RECORD ON APPEAL, an esoteric document that must be created and agreed upon by the parties of the appeal (in this case the Monroe County DA (“MCDA”) and myself). BUT the directions just state that the record must be certified, stipulated to or ordered (CPLR 5525).

The first obstacle was the fact that the Court Clerk doesn’t maintain these records, the County Clerk does… So there’s that peculiarity. When I got the certified record from the County Clerk, the Appellate Division, Fourth Dept. Court Clerk rejected my submission and told me that the certified record wasn’t sufficient to meet the certified requirement of 22 NYCRR 1250.7, but didn’t give me any further instructions.

The next obstacle was getting the MCDA to stipulate to the RECORD ON APPEAL because they just ignored my request. (Seems like an easy way for the DA to block appeals, NO?) I then attempted to get the County Court judge who made the decision I’m appealing to grant an order for the RECORD ON APPEAL and was also ignored. (Again, seems like an easy way for the Judge to block appeals, NO?)

After all this ignoring, the sixth month time limit to “perfect” my appeal was running out. So I petitioned the Court to extend the time, noting all the ignoring that had occurred. They granted my request on October 17, 2024 giving me until December 16, 2024 to perfect my appeal. And surprise surprise, with a copy of their order enclosed, the MCDA agreed to stipulate to the RECORD ON APPEAL.

Now, I wait to see if the Clerk, will finally accept my appeal. Like I’ve posted before, it shouldn’t be this hard to appeal decisions.

Update 11-21-2024: Got a letter from the Clerk yesterday, my appeal has been perfected. And has been schedule to be heard for the “session” beginning March 31, 2025.

bookmark_borderFOIA Update

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In May (and then again in August) I sent AUSA Cerrone a missive asking about the status of processing my request (there are about 1500 responsive docs, I’m supposed to get 150 a month – so far I’ve gotten zilch) and both requests were ignored.

I guess I cannot expect anything until they’re required to give me the Vaughn index sometime in 2025. <huge sigh>

bookmark_borderPerfecting an Appeal Shouldn’t Be Difficult

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I’m trying to appeal the nonsensical decision made by a lower court concerning my SORA level. I should be a Tier 1 (not on the website) per two health care professional assessments. This is especially true since the second assessment was done by the professional that provided my Court Ordered treatment.

It’s not a problem that Court’s make mistakes, that’s just apart of being human. The problem is that most Courts have a propensity to pretend that they don’t occasionally make mistakes or wrong judgements. (As far as judges are concerned, they never make mistakes; which is absurd on its face.) This is especially true when their mistake was based upon false evidence and they refuse to acknowledge it.

My dilemma for both my original conviction and this ridiculous SORA determination are based upon false evidence presented by the government at the initial stages of the proceedings. Trying to correct these falsehoods is proving to be far too difficult for our justice system to claim legitimacy. It’s just totally corrupt to allow the government to lie at an initial proceeding then declare that nothing can be done about it after that initial hearing.

Which brings us to the title of this post. I’m trying to “perfect” my appeal to the Appellate Division, Fourth Department and all they have provide me with is a rules of practice (because they cannot give legal advice). I don’t consider how to compose “the record” legal advice. I’ve got a letter into my previous lawyer to provide me with a copy of the record she used, to give me a template on how to compose my record for my current appeal.

My appeal is simple, the lower court’s decision is baseless nonsense, please vacate and reverse; but, they are making it ridiculously complicated.

bookmark_borderJanuary FOIA Hearings

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So, the vindictive DOJ says that they need a year (that’s right, 1 year) to process about 1500 E-mails (and their attachments). This was after I narrowed the scope. My previous request return 80,000 documents.

The FBI has declared that they cannot find the NIT reports (16 or so) that I requested, so I have to wait a year to convince the judge that their response is/was nonsense and order them to find the “missing” reports, so the soonest that I’ll have them is sometime in 2025!

So here is the “new” scope – 1500 or so Emails from Becker to the following categories of documents between January 1, 2012, and January 31, 2016:

  1. Emails to Podhradsky, Stroschein, and Meinke (Meinke is news to me, he wasn’t my expert)
  2. Emails to addresses with foreign suffixes
  3. Emails referencing NIT warrants between January 2012-August 2015 without attachments
  4. Emails containing references to Rules 41 or 41b between the dates 9/1/2013-3/1/2015
  5. Emails from Becker between January 1, 2012 through November 31, 2012, plus attachments.
  6. Emails from Becker to private attorneys in 2014.

And so I await the first batch of redacted documents. Meanwhile, you should check this out, the government is watching you.

bookmark_borderHail Mary Fail

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My “petition” to the Supreme Court was rejected out-right, as one apparently has no permission to appeal circuit court denials of §2255(h) petitions. The fact that the Eighth Circuit didn’t explain its denial makes my path forward undetermined. In of the words, that rejection puts my 2255(h) litigation on hold until my FOIA litigation completes. Hopefully, it’ll uncover the smoking gun(s) that technological ignorants can comprehend.

I presented evidence to the Eighth Circuit that proved my conviction was obtained fraudulently, satisfying 2255(h)(1). The government argued that the evidence wasn’t “new” and that it was merely impeachment evidence. Both claims were absurd & false.

IOW, The premise that our justice system is fair is ludicrous.

bookmark_borderLike Trump, my Court Battles Continue into the New Year

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So, the criminal candidate’s legal issues continue and so do mine. Currently waiting on a State Court to issue a ruling (that I’ll probably have to appeal). Also waiting for the Federal government to reply to my appeal to the Second Circuit and for them to produce some documents for my FOIA lawsuit. Also, as per the previous post, I sent a “Hail Mary” to the SCOTUS overlord for the Eighth Circuit.

That Hail Mary inspired me to send a letter to Joseph Morelle to ask him to initiate some desperately needed criminal justice reform. Making me think that I may have to become an “activist”…

bookmark_borderDenied Again

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So the Eighth Circuit denied my petition, again (Case No. 23-3131). This time I’ve complained to their overlord at the SCOTUS, asserting that their latest denial was a violation of Supreme Court precedent (like this case) and my due process rights.

I can’t see how the Court actually looked at my petition before they denied it. The government conceded the evidence used for my conviction was fraudulent per the new 2016 report (discussed here). Their only argument was that the 2016 report wasn’t “new”. The government took over 30 days to file their response to the petition and the Court took a few hours to deny it two days after the government filed it. The denial was so fast, I wasn’t able to file a response to the government’s nonsense about the newness of the 2016 report leading me to believe that my due process rights have been violated.

Like I said before, I was railroaded, all I need now is absolute proof, maybe it will show up in my FOIA request… I also sent a request to Joseph Howard to write a declaration stating that the first that he heard of the 2016 report was when I wrote him about it, this month. We’ll see if he complies… I suspect he won’t because he was/is apart of the conspiracy.

bookmark_borderNovember FOIA Hearing

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So this hearing didn’t get anywhere and was adjourned to January 18, 2024. They claim to need more time to sort through the documents. I agreed that they could limit their search to just e-mails (and their attachments). Then I filed a status update indicating that I’m not finished litigating the missing NIT Reports that the FBI supposedly cannot find (which is utter BS).

Also check out this gem, it indicates what I’d suspected all along. My FOIA results should blow the lid off this scandal, if they ever comply. (My motion to hurry them up was denied because I failed to show that time was important.) BLAH!

bookmark_borderNovember May Be Good

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I’ve got a lot on my plate this month. My current habeas petition (Eighth Circuit Case No. 23-3131) should be “ripe” for decision after TODAY. The government’s argument against it this time is purely procedural. (They claim that the shill’s bombshell 2016 report isn’t “new” – I retort that it is when they concealed it from ‘me and my various attorneys’…)

The Government is supposed to have some answers regarding my FOIA lawsuit on November 9, 2023 and my adjudication as a “Tier 1” should hopefully occur at a hearing on the last day of the Month.

And the Second Circuit should set my “briefing schedule” for my appeal to them about the ridiculously punitive continuation of my supervised release…

Regardless, November 2023 is going to be a significant month for Kirk Cottom…