UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN, NEW JERSEY
ROBERT EDWARD FORCHION
1020 HANOVER BLVD.,
BROWNS MILLS, N.J. 08015
October 24, 2003
:
WRIT OF HABEAS CORPUS
:UNCONSTITUTIONAL CONDITION OF
ROBERT EDWARD FORCHION, Jr
:
CONFINEMENT
PETITIONER,
:
:
:MOTION ORDER TO SHOW CAUSE,
: L. 2003, c. 183 (ex-post fact law),
:imposing DNA testing is an
:unconstitutional violation of U.S. Const.
:Article I, section 9 an being inviolation of
:4th and 6th Amendments to the U.S. Const.
INTENSIVE SUPERVISION PROGRAM, :
State of New Jersey, et. al.
:
RESPONDANTS, :
CIVIL ACTION NO.- _________
JURISTICDICTION
This matter is conferred to this court as a question of U.S. CONSTITIONAL
compliance. The Petitioner is an New Jersey inmate placed in ISP – the Intensive
Supervison Program, the New Jersey ISP does not by matter of New Jersey law have an
appeals process rendering the Federal Courts as the first and only means for redress.
Under the program there is “[n]o further appellate review of the panel's substantive
decision.” N.J. Rules of Court 3:21-10(e). Prisoners like petitioner do not lose the
protection of the constitution. Although lawfully imprisoned this new law infringes upon
prisoners RIGHTS to protection from Ex Post Facto laws as well as infringes upon basic
4th and 6th Amendment Rights.
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FACTS
On Dec. 1st, 2000 Petitioner was convicted of violating N.J.S. 2C:35-5a(1) and
2C:35-5b(10) (first degree), and “conspiracy,” contrary to N.J.S. 2C:5-2 (second
degree) in Camden County Superior Court and sentenced to 10 years flat. After 17
months in prison Petitioner was admitted into the ISP on April 3rd, 2002. None of the 31
rules/directives Petitioner signed required DNA testing or payment. Nowhere in ISP rules
or regulations is DNA required. On June 6th, 2002 thru 10th 2002 Petitioner was
incarcerated by ISP for exercising his FREE SPEECH RIGHTS. Again on August 19th,
2002 Petitioner was arrested by ISP for exercising his 1st Amendment Rights to FREE
SPEECH. Petitioner was held for 5 months in the Burlington County Jail until the
Honorable Federal District Court Judge Irenas issued an injunction on Jan 24th, 2003
ordering Petitioner back into the ISP. At no time prior to Sept 22nd, 2003 was Petitioner
by law, statute or regulation ordered to submit to DNA testing or the penalty of payment
for such testing. Neither of Petitioner co-defendants were ordered to such testing or
monetary penalties. On Sept 29th, 2003 petitioner received in the mail a letter from ISP
JUDGE SHIRLEY A. TOLENTINO, J.S.C., J.S.C. ordering petitioner to submit to DNA
testing. In error on Sept 30th, 2003 the Petitioner filed a Pro Se motion for INJUNCTIVE
RELIEF and on Oct 6th an Amended Motion for INJUNCTIVE RELIEF under docket #
02-CV-4942. On Oct 16th petitioner was informed that motions were rejected due to a
technicality. Petitioner now re-submits as a separate/new “WRIT OF HABEAS
CORPUS” and moves before this court seeking a order to show cause and/or a ruling
declaring imposition on previously convicted persons to be a “unconstitutional” ex-post
facto law.
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COMPLIANT
The Petitioner Robert Edward Forchion, Jr. who currently is enrolled in the (ISP)
Intensive Supervision Program by injunctive order issued by this court on Jan. 24 th, 2003
now in a separate WRIT of HABEAS CORPUS moves for issuance of a “ORDER TO
SHOW CAUSE” injunctive relief. Petitioner complains that imposition of L. 2003, c.
183 signed into New Jersey Law on September 22, 2003 by New Jersey Governor
McGreevy is “unconstitutional”. This new, New Jersey Law L. 2003, c. 183 Petitioner
argues is an “unconstitutional” violation of Article 1 Section 9 and should not be imposed
on Petitioner or any similarly situated citizen. Under the present injunction issued by
this court 1/24/2003, FORCHION vs BARTLETT, 240 2d F.Supp. 302 the State of
New Jersey must give a 48 hour notice to this Petitioner if ISP is to be violated. Since
imposition of this new law Petitioner has refused to provide “DNA” – (urine) and has
received two violation notices.
(Attachment 1).
On September 29th, 2003 the Petitioner received in the mail a letter ordering
Petitioner to submit to DNA testing and to pay for the cost of DNA testing or be jailed for
refusing so. (Attachment 2) Upon receiving attached letter Petitioner immediately
contacted his ISP officer Shirley Lennon and verbally stated to her he was refusing to
abide by the new conditions imposed by ISP/State of New Jersey placed on Petitioner and
similarly situated citizens per L. 2003, c.183 on CONSTITUTIONAL grounds. Petitioner
states the new conditions of his confinement are unconstitutional and anticipates his
imminent arrest for failing to comply, similar to how Petitioner was previously
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“confined” for refusing to comply with “unconstitutional” directives of ISP previously; in
regards to his exercise of first amendment rights of “FREE SPEECH” which this court is
well aware of. Due to new law, Petitioner has refused to surrender any “body fluids”,
Petitioner is willing to take field drug test (sugar stick) but refuses to hand over DNA
urine.
RESPECTFULLY SUBMITTED,
ROBERT EDWARD FORCHION, JR
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MEMORANDUM IS SUPPORT OF “WRIT OF HABEAS CORPUS”
LEGAL ARGUEMENTS
It is no question that taking DNA from a unconvicted citizen, parolee,
probationer, or prisoner against his will constitutes a search for 4th Amendment purposes.
All of the following arguments are based upon the U.S. Supreme Courts ruling that
“prison walls do not form a barrier separating prison inmates from the protections of the
constitution.” TURNER Vs SAFLEY, 482 U.S. at 84, 107 S.Ct. at 2259, 96 L.Ed.2d at
75 (1987). "Constitutional provisions for the security of person and property should be
liberally construed." Boyd v. U.S., 116 US 616 (1886) "...and it is the duty of the
courts to be watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon." Byars v. U.S., 273 US 28 (1927)
A.) L. 2003, c. 183 is “unconstitutional” as applied to this defendant
and others similarly situated in that it attempts to apply punishments
retroactively as a Ex Post Facto Law. Ex post facto laws are prohibited
by Article I, Section 9 of the U.S. Constitution.
Legal definition of a Ex Post facto law: a law that retroactively alters a
defendant's rights esp. by criminalizing and imposing punishment for an act that was not
criminal or punishable at the time it was committed, by increasing the severity of a crime
from its level at the time the crime was committed, by increasing the punishment for a
crime from the punishment imposed at the time the crime was committed, or by taking
away from the protections (as evidentiary protection) afforded the defendant by the law
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as it existed when the act was committed. “Every law, which makes criminal an act that
was innocent when done, or which inflicts a greater punishment than the law annexed to
the crime when committed, is an ex post facto law within the prohibition of the
Constitution. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Ex parte Garland, 71
U.S. (4 Wall.) 333, 377 (1867); Burgess v. Salmon, 97 U.S. 381, 384 (1878) (emphasis
supplied)
Petitioner asserts that at the time of his 12/1/2000 negotiated Plea bargain
agreement no such requirement for DNA testing existed. Additionally, no statutory law
existed requiring Petitioner to pay the cost of any DNA testing. Petitioner is in the last
month of his 20 month statutorily required ISP enrollment. None of the laws Petitioner
was convicted of (N.J.S. 2C:35-5a(1) and 2C:35-5b(10) (first degree), and conspiracy,
contrary to N.J.S. 2C:5-2 (second degree)) impose any of the penalties described by L.
2003, c. 183 – Thus Petitioner asserts L. 2003, c. 183 is a Ex Post Facto punishment. It is
clear Constitutional Law that state Legislatures, shall not pass laws, after a fact done by a
subject, or citizen, which shall have relation to such fact, and shall punish him for having
done it. The prohibition considered in this light, is an additional bulwark in favour of the
personal security of the subject, to protect his person from punishment by legislative acts,
having a retrospective operation
B.) L. 2003, c. 183 is “unconstitutional” as applied to this inmate as
in violation of the 14th Amendments “equal protection clause”.
This new law provides no means to return/destroy the inmates DNA if inmates
conviction is overturned on appeal. Petitioners original conviction is still pending before
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the New Jersey Court of Appeals. It would be a violation of Due Process to process this
DNA before the inmates appeal is heard and ruled on.
C.) L. 2003, c. 183 is “unconstitutional” as applied to this inmate as
in violation of the 14th Amendments “equal protection clause”.
The Petitioner had two co-defendants, neither of his co-defendants are punished
by this new legislation. This is inviolation of equal protection doctrine. The defendants
were all convicted of the same crimes yet, now this inmate/Petitioner is being punished
additionally for no reason at all.
D.) L. 2003, c. 183 is “unconstitutional” as applied to this inmate and
others similarly situated in this new law attempts to apply
punishments without Due Process. Inviolation of 6th Amendment
Doctrine of “innocent until proven guilty at a fair trial”.
L. 2003, c. 183 – unquestionably is defective in that this new law punishes
persons, citizens for crimes not yet committed. This new law is designed with the
“Orwellian” thought that over-all persons who’ve been convicted of crimes (including
petty ones) will commit others so this law allows/permitts the seizing of ones body parts
(DNA), without “probable cause” of a crime committed but for possible future crimes!
Which fly in the face of the U.S. Supreme Court decisions. “Before a law enforcement
officer may lawfully take a blood sample without consent or a warrant, he or she must
have probable cause to believe that the suspect has committed an offense of which the
current state of one’s blood will constitute evidence.”United States Vs Chapel, 55 F.3d
1416, 1419.
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This is a country founded to protect individual rights yet this law attempts to
“collectively categorize citizens” into suspicious persons worthy of body parts collection.
This violates every principle of freedom this country was founded on. In America for
over 230 years it has been the rule of law that one is innocent until proven guilty. In
America your not supposed to be punished until Due Process has been rendered. There is
no doubt this new law is infact a “punishment” and those who refuse to comply are slated
for punishment. ((See attachment 2) – “…failure to comply with this order may result
in a warrant being issued for your arrest.”) - “As a general rule, a search – even one
that may be lawfully conducted without a warrant — must be based upon probable
cause.” New Jersey Vs T.L.O., 469 U.S. 325, 340 (1985) – This new Law
flagrantly violates this general rule and ignores the 4th and 6th Amendments to the U.S.
Constitution.
E.) L. 2003, c. 183 is “unconstitutional” as applied to this inmate and
others similarly situated in that this new law attempts to violate a
citizens privacy rights. Inviolation of 4th Amendment Doctrine of
“The right of the people to be secure in their persons”and
“unreasonableness”.
This new law forces the surrender of DNA upon the most cherished and
fundamental American traditional preserve of privacy; the human body. “that a
compelled intrusion into the blood for blood…must be deemed a Fourth Amendment
search; Schmerber Vs California, 384 U.S. 757, 767 (1996). As this court has noted
previously “prison walls do not form a barrier separating prison inmates from the
protections of the constitution.” TURNER Vs SAFLEY, 482 U.S. at 84, 107 S.Ct. at
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2259, 96 L.Ed.2d at 75 (1987). The expection of privacy of a parolee, who is released to
live at home, in preparation for reincarnation into society, is even greater. Sepulveda Vs
Ramirez, 967 F.2d 1413, 1413, 1416 (9th Cir. 1992) – The “integrity of an individuals’s
person is a cherished value of our society,” and a preeminent zone of constitutionally
recognized privacy.” Schmerber, 384 U.S. at 772. " The permissibility of a particular
law enforcement practice is judged by balancing its intrusion on the individual's Fourth
Amendment interests against its promotion of legitimate governmental interests." …
"The essential purpose of the proscriptions of the Fourth Amendment is to impose a
standard of "reasonableness"* upon the exercise of discretion by government officials,
including law enforcement agents, in order 'to safeguard the privacy and security of
individuals against arbitrary invasions...'"** Delaware v. Prouse, 99 S.Ct. –
UNREASONABLE: The reasonableness of a parole search is determined by
“assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy
and, on the other, the degree to which it is needed for the promotion of legitimate
governmental interests” United States Vs Knight, 122 S.Ct at 591 (quoting Wyoming
Vs Houghton, 526 U.S. 295, 300 (1999)- “we conclude that reasonable suspicion must
exist before the government may compel parolees to submit to the extraction of blood
from their bodies contrary to their wishes” United States Vs Kincade, 9th Cir. Docket
No.- 02-50380, D.C. No.- CR-93-00714-RAG-01 (decided Oct. 2rd 2003)
Thus it is not
only unconscionable that the Governor of New Jersey would sign this new bill into law
but this law is boldly “unconstitutional”.
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F.) L. 2003, c. 183 is “unconstitutional” as applied to this
inmate and others similarly situated in that this new law
attempts to change the conditions of accepted Plea
Agreements without provisions for defendants to
withdrawal pleas.
It is absolutely clear that enforcement of L. 2003, c. 183 provisions and cost onto
previously “plea agreement” convicts would be a change in the plea agreement and
would justify allowing the defendant to withdrawal from said plea based on the states
change in sentence – retroactively.
INCONCLUSION
The Petitioner begs the Court to issue a temporary order barring respondents
from seizing DNA or testing body fluids from this Petitioner or any other similarly
situated inmate. It is clear Petitioner maybe arrested for refusing to provide body fluids to
the State of New Jersey. The Petitioner also begs the court to take into consideration that
just three days after the Petitioner filed the original “injunction brief” Sept 29th brief the
9th Circuit Court of Appeals ruled in United States Vs Kincade, 9th Cir. Docket No.- 0250380, D.C. No.- CR-93-00714-RAG-01 (decided Oct. 3rd 2003) that this very action
(forced DNA TESTING of convicts) is unconstitutional on 4th Amendment grounds.
________________________________
ROBERT EDWARD FORCHION, Jr.
Aka- NJWEEDMAN
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