Conclusion
The facts have been provided in this case (345943), Marlo Charles v. State of Louisiana for this court and world to review. These facts that have been put before you/ this court in this petition prove that under the laws Mr. Charles did not receive a fair trial as guaranteed by the U.S. Constitution and the Constitution of the State of Louisiana. The sentence and the conviction in this case should be vacated and remanded back to the district court for further processing. Mr. Charles should be released from prison based on these facts are true and supported by laws.
If Jesus Christ put it in your heart to help me, then please do! Prayers and letters and donation will be greatly appreciated.
Legal funding in care of my sister Lois Charles-Hill at LHill0@hotmail.com , phone (985) 446-8100.
Looking for Justice,
Marlo Charles
END of message
Marlo Charles
30 posts
• Page 2 of 2 • 1, 2
Motion to Comply
by admin » Mon Jun 02, 2008 5:41 am
In the United States
Eastern District
State of Louisiana
Marlo Charles 112939 32nd Judicial Court Parish of Terrebonne
V State of Louisiana
Civil Action no: 2:06-cv-08108 sec-5 (D) Docket case no: 345943 sec (D)
State of Louisiana
Burl Cain, Warden
Docket case no: 345943 sec (D)
Motion for Enforcement/Comply = to Court Order
Now into this court, comes Petitioner, Marlo Charles, Prose request this honorable court to grant his motion for final judgment, His pleadings as follows to writ:
(1)
Jurisdiction is vested in this honorable court, by virtue In accordance with Louisiana Constitution of 1974 and The United States Constitution 14th Amendment
(A)
Petitioner submits that it is “ordered” by this honorable court on __________day of
___________ 200________, that the respondent responds to petitioner claims/merit
within thirty (30) days _________day of _________200______, by the Magistrate Judge
Eastern District
State of Louisiana
Marlo Charles 112939 32nd Judicial Court Parish of Terrebonne
V State of Louisiana
Civil Action no: 2:06-cv-08108 sec-5 (D) Docket case no: 345943 sec (D)
State of Louisiana
Burl Cain, Warden
Docket case no: 345943 sec (D)
Motion for Enforcement/Comply = to Court Order
Now into this court, comes Petitioner, Marlo Charles, Prose request this honorable court to grant his motion for final judgment, His pleadings as follows to writ:
(1)
Jurisdiction is vested in this honorable court, by virtue In accordance with Louisiana Constitution of 1974 and The United States Constitution 14th Amendment
(A)
Petitioner submits that it is “ordered” by this honorable court on __________day of
___________ 200________, that the respondent responds to petitioner claims/merit
within thirty (30) days _________day of _________200______, by the Magistrate Judge
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Order of Release
by admin » Mon Jun 02, 2008 5:49 am
(A)
Alma L. Chasez, and Judge A.J. Mcnamara, which respondent have fail to do so, see
exhibit “A” order. The same order was served also by the District Judge, upon
respondent, Ellen Daigle Doskey, Petitioner submits, the state has not respond to any of
these “order” therefore moves, this Honorable Court, to release him from any further-
restraint of his liberty by the respondent herein or anything deem appropriate in this
matter would be greatly appreciated.
(B)
Consent to proceed before a United States Magistrate Judge
In Accordance with the provisions of 28 usc 636 ©, all parties to the above-captioned
civil proceeding here by waive right to proceed before a United State Magistrate Judge
and consent to have a full time United States Magrstrate Judge conduct any and all
further proceeding in the case, including but not limited to the trial of the case and enter
of final Judgment.The parties acknowledge they have been advised that they may
without adverse substantive consequences without consent.
___________day of _________ 200___, District Attorney ____________________,
_________________________________,
District Court Judge
“Order of Reference”
It is hereby “ordered” that the above captioned matter be referred to a United States
Magistrate Judge of this court for all further proceeding and entry of final judgment in
accordance with title 28 usc 636(C) and the foregoing consent of the parties. It is further “ordered” and decreed that the respondent be bar in any response in the above referenced case; for the following reason “unreasonable Delay”, article 874.
It is further “ordered” and decreed that the petitioner, Marlo Charles 112939 be release
immediately from any further restraint in his liberty by the respondent here in.
____________________________________
United State Magistrate Judge
New Orleans, Louisiana, this _______day of _______, 200_____.
Respectfully Submitted,
________________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
“Certificate of Service”
I, Marlo Charles, hereby certify that a true and correct copy of the foregoing motion has
been served on opposing counsel by placing same in the United State mail with first
class postage; as indicated below. On this __________ date of _________ 200______.
“Affidavit”
I, Marlo Charles, upon my oath under the penalties for perjury, depose and state that I
have prepared and I understand the foregoing motion is in accordance with the law(s) of
the united States Constitution and the Constitution of the State of Louisiana and the
statement made there in are true and correct to the best of my knowledge and belief.
Louisiana State Penitentiary, this__________ day of _____________2008
Respectfully Submitted,
______________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
Please serve cc:
District Attorney
Ellen Daigle Doskey
7856 Main St. Suite 220
Houma, LA 70301
Indigent Defenders
Anthony Champagne
318 Church Street
Houma, LA 70301
Attorney of Records
Robert Jenkins
631 St. Charles Street
New Orleans, LA 70130
Alma L. Chasez, and Judge A.J. Mcnamara, which respondent have fail to do so, see
exhibit “A” order. The same order was served also by the District Judge, upon
respondent, Ellen Daigle Doskey, Petitioner submits, the state has not respond to any of
these “order” therefore moves, this Honorable Court, to release him from any further-
restraint of his liberty by the respondent herein or anything deem appropriate in this
matter would be greatly appreciated.
(B)
Consent to proceed before a United States Magistrate Judge
In Accordance with the provisions of 28 usc 636 ©, all parties to the above-captioned
civil proceeding here by waive right to proceed before a United State Magistrate Judge
and consent to have a full time United States Magrstrate Judge conduct any and all
further proceeding in the case, including but not limited to the trial of the case and enter
of final Judgment.The parties acknowledge they have been advised that they may
without adverse substantive consequences without consent.
___________day of _________ 200___, District Attorney ____________________,
_________________________________,
District Court Judge
“Order of Reference”
It is hereby “ordered” that the above captioned matter be referred to a United States
Magistrate Judge of this court for all further proceeding and entry of final judgment in
accordance with title 28 usc 636(C) and the foregoing consent of the parties. It is further “ordered” and decreed that the respondent be bar in any response in the above referenced case; for the following reason “unreasonable Delay”, article 874.
It is further “ordered” and decreed that the petitioner, Marlo Charles 112939 be release
immediately from any further restraint in his liberty by the respondent here in.
____________________________________
United State Magistrate Judge
New Orleans, Louisiana, this _______day of _______, 200_____.
Respectfully Submitted,
________________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
“Certificate of Service”
I, Marlo Charles, hereby certify that a true and correct copy of the foregoing motion has
been served on opposing counsel by placing same in the United State mail with first
class postage; as indicated below. On this __________ date of _________ 200______.
“Affidavit”
I, Marlo Charles, upon my oath under the penalties for perjury, depose and state that I
have prepared and I understand the foregoing motion is in accordance with the law(s) of
the united States Constitution and the Constitution of the State of Louisiana and the
statement made there in are true and correct to the best of my knowledge and belief.
Louisiana State Penitentiary, this__________ day of _____________2008
Respectfully Submitted,
______________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
Please serve cc:
District Attorney
Ellen Daigle Doskey
7856 Main St. Suite 220
Houma, LA 70301
Indigent Defenders
Anthony Champagne
318 Church Street
Houma, LA 70301
Attorney of Records
Robert Jenkins
631 St. Charles Street
New Orleans, LA 70130
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Motion to Correct, Illegal and Invalid Sentence
by admin » Mon Jun 02, 2008 5:57 am
32nd Judicial District Court
Parish of Terrebonne
State of Louisiana
Section D
Marlo Charles 112939
-Versus-
Burl Cain, Warden
Louisiana State Penitentiary
Angola, LA 70712
“Motion to Correct, Illegal and Invalid Sentence”
Now comes, Marlo Charles, defendant, Petitioner who with respect moves this Honorable Court to correct this “Illegal Sentence” Pursuant to the foresaid , article La. c.cr.p. art. 882 (A)(B) and (C).
The court should note* that under state ex rel Johnson v. Day, 92-0122 (La. 5/13/94), 637 so. 2d. 1062 of State v. Day, 92-0122 (La. 64,55 so.2d.782 (1951), pursuant to LSA
“Statement of The Case”
On March 12, 1981, Ms. Marsha Domangue Rome was allegedly raped. On June 06, 2000, petitioner was indicted in this matter by a Terrebonne Parish Grand Jury for one count of aggravated rape. On the February 25, 2002, a five (5) day trial commenced and on March 01, 2002, the petitioner was convicted by a unanimous jury vote-guilty as charged. On May 06, 2002 petitioner was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Petitioner’s conviction and sentence were affirmed on direct appeal, in an unpublished opinion, see, State v. Charles 2002-K-A-2520 (La. App.1 cir. 07/02/03) 848 s0.2d. 168; writ denied State v. Charles 2003-K-2160 La. 01/30/04), 865 so. 2d. 74
“Argument”
Plaintiff was arrested, solely on the basis of the prosecutor’s having in there possession of a positive match of his DNA. This was made through the DNA data bank in Virginia. Plaintiff have a right under, due process clause of the fourteenth (14) amendment, the confrontation clause of the six (6) amendment and prohibition against cruel and unusual punishment clause of the eight ( 8 ) amendment to obtain access to evidence so that plaintiff could test their results and use them as a basis for pardon or clemency and to do his own comparison test to this evidence.
(I)
Under the due process clauses of the United States Constitution and the Constitution of the State of Louisiana. The state must provide plaintiff with any and all exculpatory evidence in its possession which is material to guilty or innocence; see u.s. const. amends v and xiv La. Const. art. 1 sec. 2, Brady v. Maryland, 3737 u.s. 83, 83 s. ct. 1194, 10 L.ed. 2d. 215 (1963). The suppression by the state if evidence which has been requested by the defense and is favorable to the accused violate due process where the evidence is material to guilty State v. Felton, 522 so. 2d. 626, 627 (La. App. 4 cir 1988). (Plaintiff entitled to relief where state failed to disclose exculpatory evidence). The discovery rule in Brady evolves from the fundamental right to a fair trial provided by the fifth (5) and fourteenth (14) amendment to the United States Constitution United States v. Agurs, 427 u.s. 97, 107, 96 s. ct. 2392, 2399, 49 L.ed. 2d. 342 (1976); United State v. Bagley, 473 u.s. 667, 675, 105. S. ct. 3375, 3379, 87 L.ed. 2d. 481 (1985) Pennsylvania v. Ritchie; 480 u.s. 39, 56, 107 s.ct 989, 1001 94 L.ed. 2d 40 (1987) Brady supra, 373 u.s. At. 86, 83 s.ct. at 1196. The concept of a fair trial imposes a constitutional duty on the prosecution to disclose evidence material to a defendant’s guilty or innocence Bagley, 473 u.s. at 674, 675, 105 s.ct. at 3379, 3380 the purpose of requiring disclosure is, “not to displace the adversary system as the primary means by which truth is uncovered but to ensure that a miscarriage of justice does not occur.
(II)
The court recognizing that it is unconstitutional to deny an incarcerated person to have a DNA test. This powerful tool for proving his probably, there is a possibility, if not a probability, that DNA testing now can put to rest the question of defendant guilty, indeed in this same spirit of fairness, Louisiana has recognized that it is “ patently unfair and a denial of a defendants due process right” to place form over substance when considering a claim of innocence based on insufficiency of evidence State v. Thomas, 245 n.j. super at 435-436; guted also in Swell v. State, 592 n.e. 2d. at 708 see State v. People 383 so. 2d. 1006, 1007 (La. Sup. Ct. 1980) review of claimed error conducted even through raised through improper procedural vehicle where summary procedural denial of review would be unjust)
(V)
I, Marlo Charles, “now” ask this Honorable Court and Jude to make its ruling on said, writ of Habeas Corpus and supplement on its merit and claims sat forth. And if this Honorable Court and Magistrate Judge find that the State indeed has denied movant a fair trial and violated movant civil right and the laws that are guarantee under both constitution:
“Under the Color of Law”
I “Now” ask this Honorable Court and Judge to “order” movant (Marlo Charles) immediately release from Angola State Prison bases on the laws of both constitutions: “Justice delayed is Justice denied”
“Conclusion”
In the interest of justice and fairness and honor to the laws. I, Marlo Charles, movant moves this Honorable court(s) for motion for “enforcement” of judgment by default on the 32nd judicial court of Terrebonne Parish of the State of Louisiana and, or, district attorney office of the same to “order” his release from prison if it so please this Honorable Court.
“Prayer”
I pray that this Honorable Court in accordance with the laws of the (Land) Louisiana Constitution and the law(s) of the United States Constitution, by the will of God grant movant his freedom, and may our heavenly father have mercy on us all and heal the land.
Respectfully submitted,
__________________
(Prose) Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
Thus sign this date 17 th of April, 2008
Parish of Terrebonne
State of Louisiana
Section D
Marlo Charles 112939
-Versus-
Burl Cain, Warden
Louisiana State Penitentiary
Angola, LA 70712
“Motion to Correct, Illegal and Invalid Sentence”
Now comes, Marlo Charles, defendant, Petitioner who with respect moves this Honorable Court to correct this “Illegal Sentence” Pursuant to the foresaid , article La. c.cr.p. art. 882 (A)(B) and (C).
The court should note* that under state ex rel Johnson v. Day, 92-0122 (La. 5/13/94), 637 so. 2d. 1062 of State v. Day, 92-0122 (La. 64,55 so.2d.782 (1951), pursuant to LSA
“Statement of The Case”
On March 12, 1981, Ms. Marsha Domangue Rome was allegedly raped. On June 06, 2000, petitioner was indicted in this matter by a Terrebonne Parish Grand Jury for one count of aggravated rape. On the February 25, 2002, a five (5) day trial commenced and on March 01, 2002, the petitioner was convicted by a unanimous jury vote-guilty as charged. On May 06, 2002 petitioner was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Petitioner’s conviction and sentence were affirmed on direct appeal, in an unpublished opinion, see, State v. Charles 2002-K-A-2520 (La. App.1 cir. 07/02/03) 848 s0.2d. 168; writ denied State v. Charles 2003-K-2160 La. 01/30/04), 865 so. 2d. 74
“Argument”
Plaintiff was arrested, solely on the basis of the prosecutor’s having in there possession of a positive match of his DNA. This was made through the DNA data bank in Virginia. Plaintiff have a right under, due process clause of the fourteenth (14) amendment, the confrontation clause of the six (6) amendment and prohibition against cruel and unusual punishment clause of the eight ( 8 ) amendment to obtain access to evidence so that plaintiff could test their results and use them as a basis for pardon or clemency and to do his own comparison test to this evidence.
(I)
Under the due process clauses of the United States Constitution and the Constitution of the State of Louisiana. The state must provide plaintiff with any and all exculpatory evidence in its possession which is material to guilty or innocence; see u.s. const. amends v and xiv La. Const. art. 1 sec. 2, Brady v. Maryland, 3737 u.s. 83, 83 s. ct. 1194, 10 L.ed. 2d. 215 (1963). The suppression by the state if evidence which has been requested by the defense and is favorable to the accused violate due process where the evidence is material to guilty State v. Felton, 522 so. 2d. 626, 627 (La. App. 4 cir 1988). (Plaintiff entitled to relief where state failed to disclose exculpatory evidence). The discovery rule in Brady evolves from the fundamental right to a fair trial provided by the fifth (5) and fourteenth (14) amendment to the United States Constitution United States v. Agurs, 427 u.s. 97, 107, 96 s. ct. 2392, 2399, 49 L.ed. 2d. 342 (1976); United State v. Bagley, 473 u.s. 667, 675, 105. S. ct. 3375, 3379, 87 L.ed. 2d. 481 (1985) Pennsylvania v. Ritchie; 480 u.s. 39, 56, 107 s.ct 989, 1001 94 L.ed. 2d 40 (1987) Brady supra, 373 u.s. At. 86, 83 s.ct. at 1196. The concept of a fair trial imposes a constitutional duty on the prosecution to disclose evidence material to a defendant’s guilty or innocence Bagley, 473 u.s. at 674, 675, 105 s.ct. at 3379, 3380 the purpose of requiring disclosure is, “not to displace the adversary system as the primary means by which truth is uncovered but to ensure that a miscarriage of justice does not occur.
(II)
The court recognizing that it is unconstitutional to deny an incarcerated person to have a DNA test. This powerful tool for proving his probably, there is a possibility, if not a probability, that DNA testing now can put to rest the question of defendant guilty, indeed in this same spirit of fairness, Louisiana has recognized that it is “ patently unfair and a denial of a defendants due process right” to place form over substance when considering a claim of innocence based on insufficiency of evidence State v. Thomas, 245 n.j. super at 435-436; guted also in Swell v. State, 592 n.e. 2d. at 708 see State v. People 383 so. 2d. 1006, 1007 (La. Sup. Ct. 1980) review of claimed error conducted even through raised through improper procedural vehicle where summary procedural denial of review would be unjust)
(V)
I, Marlo Charles, “now” ask this Honorable Court and Jude to make its ruling on said, writ of Habeas Corpus and supplement on its merit and claims sat forth. And if this Honorable Court and Magistrate Judge find that the State indeed has denied movant a fair trial and violated movant civil right and the laws that are guarantee under both constitution:
“Under the Color of Law”
I “Now” ask this Honorable Court and Judge to “order” movant (Marlo Charles) immediately release from Angola State Prison bases on the laws of both constitutions: “Justice delayed is Justice denied”
“Conclusion”
In the interest of justice and fairness and honor to the laws. I, Marlo Charles, movant moves this Honorable court(s) for motion for “enforcement” of judgment by default on the 32nd judicial court of Terrebonne Parish of the State of Louisiana and, or, district attorney office of the same to “order” his release from prison if it so please this Honorable Court.
“Prayer”
I pray that this Honorable Court in accordance with the laws of the (Land) Louisiana Constitution and the law(s) of the United States Constitution, by the will of God grant movant his freedom, and may our heavenly father have mercy on us all and heal the land.
Respectfully submitted,
__________________
(Prose) Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
Thus sign this date 17 th of April, 2008
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Clyde Charles death
by admin » Thu Jan 08, 2009 4:44 pm
Clyde Charles, Marlo Charles' brother, had been the state's first wrongfully or falsely convicted person in this alleged rape case. He almost had spent 20 years at Angola Prison before DNA evidence exonerated him. It was his desire to see his brother Marlo being freed.
Subject: Clyde Charles death
Date: Thu, 08 Jan 2009 08:48:32 +0000
Clyde Alton Charles passed on January 7, 2009. He was the son of Octave and Eunice Celestine-Charles, and grandson of Edmond and Martha Harding-Charles, Rev. Thomas and Nellie Ringold-Celestine.
Dear Family and Friends,
I know that we are going through a tough time right now. I wish there were something I could say or do to solve our problems. As it is, all I can do is offer each of you my love and support and hope that if there's anything we need you to do to help us out, we won't hesitate to ask. You are a wonderful, resourceful group of Family members and Friends and I'm confident that we can weather this storm. Some day, we may even look back on this time in our life and realize that we are stronger and more confident group of people because of it.
Our Family knows we are not going through this alone. Please keep us in your thoughts every day and if there's anything any of you can do for us, you can be assured we will let you know.
Sincerely,
Lois C. Hill
----------------------------------------------------------------------
Sent: Tuesday, January 13, 2009 2:44 PM
Subject: ANNOUNCEMENT: Memorial Service
Dear Family and Friends:
The Family of Clyde A. Charles will hold a memorial service on Saturday, January 17, 2009 from 2pm to 5pm. The service will be held at the Blaine Clay Lodge #14 F.M., 915 Lafayette Street, Houma, LA. Please join us as we celebrate Clyde's life and feel free to pass this message on to others.
Sincerely,
The Charles Family
------------------------------------------------------------------
Sent: Friday, January 16, 2009 2:15 PM
Subject: full obituary of Clyde Charles
Clyde Charles' family would like to thank everyone who made Clyde's release possible:
The attachment www.iippi.org/pdf/marlocharles7.pdf has all the information.
In lieu of flowers and gifts please make donations, in Clyde's name, to the Innocence Project. For more information, please visit www.innocenceproject.org/donate.
Thanks, again
Lois Charles-Hill
985-446-8100
------------------------------------------------------------------------------
Read on at http://iippi.org/forum/viewtopic.php?p=15966#15966
Freed Prisoner Clyde Charles
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press release
by admin » Tue Jan 27, 2009 9:44 am
Press Release
Blood type: rapist’s “O negative“ — convict’s “O positive“
The recent death of exonerated prisoner Clyde Charles has brought the public’s attention to his and Marlo Charles’ criminal case. Now he has left new DNA samples to his brother to be used in court.
Germany (IIPPI), January 27, 2009
When DNA evidence freed Clyde Charles after almost 19 years of incarceration in 1999, DNA junk science put his brother Marlo Charles in prison for the same rape in Houma, Louisiana of 1981. The true rapist’s blood type is “O negative”, the convicted rapist’s blood type is “O positive” like the victim’s as well.
Clyde Charles’ DNA did not match three of eight genetic markers of the spermatozoa found on the victim. He was excluded as the rapist and eventually set free. Because of degradation of the samples over the years, it was not possible to conduct a full DNA profile.
The victim has never identified Marlo Charles as her rapist. However, his DNA was tested. This time, only five of eight markers were used. All of them matched. It is possible that the five positive markers that fit Clyde Charles’ profile were the five that matched his brother’s DNA, too.
The testing was below standard and therefore inconclusive. If thirteen or even eight markers had been used on Marlo Charles, he may have been excluded like his brother. It only takes one missed marker to automatically exclude someone.
Fresh DNA samples have recently been taken from Clyde Charles. They can be compared to Marlo Charles’ DNA. Marlo Charles needs a court order to have a DNA lab professional draw his genetic data from him at Angola Prison. That DNA could also be compared to the rape kit.
Clyde Charles had to agree to never seek compensation, in order to get local prosecutors to cooperate and release the evidence for DNA testing.
For details of this case go to www.iippi.org/inmates/louisiana/marlocharles.html .
Katja Pumm can be contacted at info@iippi.org .
Blood type: rapist’s “O negative“ — convict’s “O positive“
The recent death of exonerated prisoner Clyde Charles has brought the public’s attention to his and Marlo Charles’ criminal case. Now he has left new DNA samples to his brother to be used in court.
Germany (IIPPI), January 27, 2009
When DNA evidence freed Clyde Charles after almost 19 years of incarceration in 1999, DNA junk science put his brother Marlo Charles in prison for the same rape in Houma, Louisiana of 1981. The true rapist’s blood type is “O negative”, the convicted rapist’s blood type is “O positive” like the victim’s as well.
Clyde Charles’ DNA did not match three of eight genetic markers of the spermatozoa found on the victim. He was excluded as the rapist and eventually set free. Because of degradation of the samples over the years, it was not possible to conduct a full DNA profile.
The victim has never identified Marlo Charles as her rapist. However, his DNA was tested. This time, only five of eight markers were used. All of them matched. It is possible that the five positive markers that fit Clyde Charles’ profile were the five that matched his brother’s DNA, too.
The testing was below standard and therefore inconclusive. If thirteen or even eight markers had been used on Marlo Charles, he may have been excluded like his brother. It only takes one missed marker to automatically exclude someone.
Fresh DNA samples have recently been taken from Clyde Charles. They can be compared to Marlo Charles’ DNA. Marlo Charles needs a court order to have a DNA lab professional draw his genetic data from him at Angola Prison. That DNA could also be compared to the rape kit.
Clyde Charles had to agree to never seek compensation, in order to get local prosecutors to cooperate and release the evidence for DNA testing.
For details of this case go to www.iippi.org/inmates/louisiana/marlocharles.html .
Katja Pumm can be contacted at info@iippi.org .
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by lhill » Mon Dec 21, 2009 2:28 pm
In the
United States Court of Appeals
For the Fifth Circuit
Eastern District of Louisiana
09-30923
Jurisdiction of Federal Courts United States Court of Appeals (USCA)
2255 and USCA 2241
Brief
Highly Extraordinary, Unusual
Criminal Case #345943
______________________________________________________________________________
Respectfully Submitted,
_______________________________
Marlo Charles 112939
Camp C Tiger 3-L-2
Louisiana State Penitentiary
Angola, Louisiana 70712
TABLE OF CONTENTS
STATEMENT OF LEGAL ISSUES
STATEMENT OF THE CASE
STATEMENT OF FACTS
ARGUMENT
CONCLUSION
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
United States Court of Appeals
Fifth Circuit
Eastern District of Louisiana
09-30923
Brief in support of writ of Habeas Corpus authorized by 28 United States Court of Appeals
(USCA) 2241 application for supervisory writ of review.
Jurisdiction of Federal Court USCA 2255 and USCA 2241
The judicial power shall extend to “all cases” in law and equality arising under constitution of
The United States (in relevant part).
BRIEF
The criminal case no: 345943 (09-30923 and USDC no: 2:06-cv-8108) that went before the 32nd J.D.C. were as the judge abused his discretion over that law in denying Marlo Charles his rights that are guarantee under the constitution of The United States of America and due process of law(s).
ARGUMENT
The appeal to the court is to overturn the decision of the lower courts based on the on the following facts: there was no probable cause for the original arrest and incarceration of the defendant; there was no reliable evidence such as DNA documentation, presented at trial; the defendant had ineffective legal counsel.
The state was without probable cause to arrest, the district attorney prefabricate evidence (ruse) stating that there is a positive match of Marlo Charles’ DNA. This was used to implicate him as the perpetrate of this offense, which had no bases of truth. Being pressure by the district attorney (Mark Rhodes) the grand jury had no choice but to indict, without seeing this alleged match.
Marlo Charles was arrested in April of 2000. The DNA comparison testing was not done until 2001. Therefore there was never a positive match presented before the grand jury.
see testimony from the grand jury, the State expert in DNA testimony will establish these facts. Stating that there wasn’t any DNA comparison testing made in this case to establish a positive match. Due to the facts that the evidence, DNA was exhaust in 1999 by Dr. Edward Blake and the sample from the sexual assault kit was never compared to Marlo Charles’ DNA.
The district court judge abuse his discretion in allowing inefficient evidence to go before the jury panel, prejudice the jury panel minds that it is Mr. Marlo Charles’ DNA that was found in the sexual assault kit.
Further more the district court judge was without subject matter jurisdiction to go to trial. These facts were established when the district attorney was allowed to amend the grand jury indictment on a capital offense. The grand jury indictment was amended three (3) different times with the approval of the trial judge which has no power or authority to amend a grand jury indictment, see the courts of appeal decision in : United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), and Ex parte Bain, 121 U.S. 1 [7 S.Ct. 781, 30 L.Ed. 849]. UNITED STATES v. NORRIS, 281 U.S. 619 (1930) 281 U.S. 619 UNITED STATES v. NORRIS. No. 555. Argued April 28, 1930. Decided May 26, 1930. [281 U.S. 619, 620]
The rule was accurately stated in Stirone v. United States, 1960, 361 U.S. 212, 215-217, 80 S.Ct. 270, 272-273, 4 L.Ed. Due to the numerous of times the indictment was amended it left the judge without subject matter jurisdiction. The judges abuse his discretion (over the law) and his power over the grand jury which he is without authority to do so. The judge abuse of power allowed the indictment to be amended prejudice the defendant rights by law(s) to be tried in only the indictment present by a grand jury. A party waives any defense listed in Rule 12(b)(2)-(5) by: (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or (B) failing
to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. See also 1 J. Moore, Federal Practice 0.60(4). Were the petitioner's motion for an instruction on simple assault to be granted, and were a jury to convict on that offense at 624 (1986). Indeed the courts must raise a lack of subject matter jurisdiction even if the parties have not. The district court is not complying with federal law(s) or guidelines that are enforce by the constitution of the United States.
Due to well establish laws concerning amending a grand jury indictment on capital offense, the
district court judge, whom is without authority to amend, did not include in the amendment to the
indictment any lesser include offense to properly amend an indictment in accordance with the
laws, amendment should include a lesser offense (see case) State v. Gilmore, 332 So. 2d
789 (La. 1976), the Louisiana Supreme Court held that the district attorney was
inherently empowered to amend an indictment charging first-degree murder to a
charge of second-degree murder, even though there was no specific codal
authorization for the procedure. State v. Stewart, 389 So.2d 1321 (La. 1980).
State v. James, 459 So.2d 1299, 1308 (La.Ct.App. 1st Cir.1984). All three (3) cases contain
lesser offense included after the district attorney was giving the authority by the court(s) and the
judge to amend the grand jury indictment. One again prejudice by the discretion and the abusive
uses of power of the judge in denial of Marlo Charles’ right to due process law(s) and to be tried
only on the indictment present by the grand jury. The offender could not get or receive a life
sentence under the amended indictment. This indictment is the very core of criminality it
depends upon a specific identification of facts, an indictment must do more than simply repeat
the language of the criminal statute. The vice of the indictment, failed to satisfy
the first essential criterion by which the sufficiency of an indictment is to be test. In this
instance case #345943 failed to sufficiently apprise the defendant of what he must be
prepared to meet, or to plea, or the offense to be punished.
Due to numerous amendment to the indictment the defendant in this case #345943 could not
make an intelligent plea as mandatory by law. It is unclear as to the offense to be punished or
tried by the court; see the indictment. The statutory language of the indictment does not apprise
the defendant with reasonable certainly of the nature of the accusation under the amended
indictment against him it must be accompanied with such a statement of the facts and
circumstances as well as inform him of the specific offense intended to be punished.
Rule 7 (C) of the federal rules of criminal procedure.
The indictment… shall be plain concise and definite written statement of essential facts constituting the offense charged. It need not contain…any other matter not necessary to such statement without a statement of the actual subject under inquiry this allegation was inadequate to satisfy the “apprised” requisite mandatory of a valid indictment (see indictment).
Furthermore, the indictment that was presented before the grand jury not only is itself fatal and defective, it also violates, ex post facto clause in The United States Constitution and The State of Louisiana Constitution and it laws.
Paragraph (3) of the indictment that went before the grand jury went into effect July 12, 1984. In
Louisiana, ex post facto clause (state ex rel Glover, 93-2330, 660 So. 2d. 1189, 1200)
states in pertinent part: (1) After the commission of an offense which is relation to the
offense or its punishment alters the situation of a party to his disadvantage.
1. Must be passed after the date of the offense
2. Must relate to the offense or its punishment
3. Must alter the situation of the accused to his disadvantage
4. Must alter the legal rules of evidence and receives less or different testimony
than the law required at the time of the commission of the offense in order to
convict
5. Depriving the defendant of a defense available at the time of the commission of
the offense, also see Calder v. Bull, 3 [U.S.] Dall. 386 [1 L.Ed. 648].
Note* Clyde A. Charles was tired and convicted for the same offense in 1982, was found guilty beyond reasonable doubt, by over whelming evidence. How can two men are convicted for the same offense, 21 years apart and both is found guilty beyond a reasonable?
Where perjury lie is when the same witnesses and same testimony is used to convict
both men. In this highly extraordinary unusual case where the criminal code of
edict and the integrity of the law(s) are thrown out the window just to obtain a
conviction. The district attorney Mark Rhodes was using mind altering drugs
during my trial. Under the law(s) this could never be fair the law states in U.S.
v.Young, prosecutor are to refrain from improper methods calculated to produce a
wrongful conviction, Berger v. United States, 295 U.S. 495 (1935). 21. 49 Stat. ...... 7888,
FTC, Feb. 23, 1962, at 4-5 (dissenting opinion). ... See Berger, Removal of Judicial
Functions From Federal Trade Commission ... U.S. Supreme Court. Miller v. Pate, 386
U.S. 1 (1967). Miller v. Pate. No. 250. Argued January 11-12, 1967. Decided February
13, 1967. The Supreme Court held that the prosecution “deliberately” misrepresented
the truth and under the Fourteenth amendment can not tolerate a state criminal
conviction obtained by knowing or using false evidence and testimony to gain a
conviction.
This alleged offense occurred on March 12, 1981. The court have to agree that the
statute under 14:42, dealing with rape and sexual battery, this went into effect on July 12,
1984 and does not apply to the March 12, 1981 criminal case. PURSANT TO general
provisions of La C CrP art 882 (A), (b), and (c) an illegally lenient sentence may be
corrected at any time by an appellate court on review ...and La.c. crp art.872 (1) and (2).
1. Statute
2. Indictment
Sentence and conviction must rest upon a valid and sufficient statute and indictment see,
HOUSE BILL NO. 369 and Acts 1978, No. 239, §1. Amended by Acts 1981, No. 707,
§1;paragraph (3).
In criminal proceeding the accused may challenge the validity of a statute, practice, or policy
that adversely affects or threatens to adversely affect his right, see State v. McMahon, 391 So.
2d 1120 (La. 1980). State v. Brown, 389 So.2d 48 (La. 1980). Furthermore, it is sufficient to
show that there is a realistic danger of sustaining a direct injury as a result of the operation or
enforcement of the law. See e.g., Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,
298 (1979). United Farm Workers Nat. Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895
(1979).
Ineffective assistance of counsel occurred when counsel was not in complies with Strickland,
466 U.S. at 687-88 1) his counsel's performance fell below an “objective standard of
reasonableness" and (2) he was prejudiced by his counsel's deficient performance. Attorney
Robert Jenkins fell well below the standard that is set by the law(s) In this case he did not do any
investigation into the alleged positive DNA match of Mr. Charles’ that was submitted from a
Virginia DNA data bank. Robert Jenkins did not seek the expert opinion of a DNA analyst.
Therefore he did not put on the best defense. Attorney Jenkins refuses to question the alleged
victim in this case. He stated to me after asking him several times to question this alleged
victim, “she has been through enough”. My life is on the line and my attorney was worried or
concerned with the victim feeling than defending the law(s) and the defendant rights which are
guarantee under the constitution of the United States. I asked several times to take the witness
stand and attorney never granted this request. Attorney Jenkins informed me that district attorney
Mark Rhodes informed him that there wasn’t any match of Mr. Charles’ DNA. When the
defendant heard this information, he asked Attorney Jenkins to make this apart of the court
record for review by a higher court. This omission by the district attorney, Mark Rhodes was
never made a part of the court records at time of trial.
The defendant in this case filed with the court motion to quash and motion for speedy trial.
According to the law all pre-trial motion has to be dispose of before commencing to trial.
If this is law, the trial judge discontinues both motions without date. Because of the judges’
discretion over the law, Mr. Charles was not allowed to challenge the validity of the indictment
or the validity of the statute of the offense that was brought against him. Nor was he allowed
to challenge statute of limitation to institute of prosecution has expired. Making this trial time
barred from prosecution. These claims was filed with the district court judge in motion to quash
on or about February 12, 2001. Once again Mr. Charles’ rights under the law(s) has been
prejudice by the trial judge discretion over the law(s) see docket master case #345943. Prejudice
comes from within men and not the law(s). Men refuse to allow people to assert their rights’
under the law(s) of the constitution of The State and The United States.
The district attorney is well knowledgeable of Marlo Charles involvement in this case. A petition
was filed by Thomas Diven, attorney for Clyde A. Charles, it was made known to the district
court in 1982, that Marlo Charles could be the real perpetrator of this alleged crime. The district
attorney Jim Alcox had in his possession proof that Clyde A. Charles did not commit this
alleged crime by way of blood typing testing that was conducted by Ms. S. Phillps from the state
lab. Mr. Clyde A. Charles blood type was (B) and the blood semen from the sexual assault kit
contained type (O-) blood semen. The court totally disregarded this evidence and convicted
Clyde A. Charles beyond a reasonable doubt.
“Conclusion”
In the interest of justice and fairness and honor to the law(s) I, Marlo Charles movent/petitioner
have submitted these facts of law(s) in according with the law(s) of The Constitution of The
United States and of the State of Louisiana and Louisiana c.cr.p and its law(s). Based on these
Facts and law(s) his sentence SHALL be set aside and the conviction over turned. The court
SHALL be held accountable to uphold the integrity, honesty, and sincerity of the justice system
and its law(s), by providing fairness and interest of justice to all.
“Prayer”
I pray that this Honorable Court in accordance with the laws of the (Land) Louisiana
Constitution and the law(s) of the United States Constitution, by the will of God grant movant
his freedom, and may our heavenly father have mercy on us all and heal the land.
Respectfully submitted,
__________________
(Prose) Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
“Order”
It is hereby order that the District Attorney office for the 32nd judicial court of
Terrebonne parish set aside this sentence and conviction and show just cause in open
Court on____________ day of ___________2009/2010__ at_______a.m./p.m. as to why
petitioner brief should not be granted by law(s). It is further order that a summon be served on
Burl Cain, warden at Louisiana State Penitentiary to produce and have defendant present in open
court. It is further order that an evidentiary hearing be held on the merit(s) of this brief/petition/
motion on _____day of __________at _____________a.m.p.m. it is so ordered.
_____________________________
Justices (Judge)
_________________________________
Marlo Charles 112939
“Affidavit”
I, Marlo Charles, upon my oath under the penalties for perjury, depose and state that I
have prepared and I understand the foregoing motion is in accordance with the law(s) of
the united States Constitution and the Constitution of the State of Louisiana and the
statement made there in are true and correct to the best of my knowledge and belief. I do
solemnly swear that I am not guilty of the said offense as related within the given docket case
#345945. This affidavit is made freely and voluntary under penalty of perjury.
Louisiana State Penitentiary, this__________ day of _____________2009
Respectfully Submitted,
______________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
“Certificate of Service”
I, Marlo Charles, hereby certify that a true and correct copy of the foregoing motion has
been served on opposing counsel by placing same in the United State mail with first
class postage; as indicated below. District Attorney Office for the Parish of Terrebonne in
Houma, LA, Indigent Defenders Office of Terrebonne Parish in Houma, LA, Attorney Robert
Jenkins, and Department of Public Safety in Baton Rouge, LA.
On this __________ date of _________ 20______.
Please serve cc:
District Attorney Indigent Defenders Attorney of Records
Ellen Daigle Doskey Anthony Champagne Robert Jenkins
7856 Main St. Suite 220 318 Church Street 631 St. Charles Street
Houma, LA 70301 Houma, LA 70361 New Orleans, LA 70130
Department of Public Safety and Corrections
P.O. Box 94304 Capitol Station
Baton Rouge, LA 70804-9304
Respectfully Submitted,
______________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
United States Court of Appeals
For the Fifth Circuit
Eastern District of Louisiana
09-30923
Jurisdiction of Federal Courts United States Court of Appeals (USCA)
2255 and USCA 2241
Brief
Highly Extraordinary, Unusual
Criminal Case #345943
______________________________________________________________________________
Respectfully Submitted,
_______________________________
Marlo Charles 112939
Camp C Tiger 3-L-2
Louisiana State Penitentiary
Angola, Louisiana 70712
TABLE OF CONTENTS
STATEMENT OF LEGAL ISSUES
STATEMENT OF THE CASE
STATEMENT OF FACTS
ARGUMENT
CONCLUSION
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
United States Court of Appeals
Fifth Circuit
Eastern District of Louisiana
09-30923
Brief in support of writ of Habeas Corpus authorized by 28 United States Court of Appeals
(USCA) 2241 application for supervisory writ of review.
Jurisdiction of Federal Court USCA 2255 and USCA 2241
The judicial power shall extend to “all cases” in law and equality arising under constitution of
The United States (in relevant part).
BRIEF
The criminal case no: 345943 (09-30923 and USDC no: 2:06-cv-8108) that went before the 32nd J.D.C. were as the judge abused his discretion over that law in denying Marlo Charles his rights that are guarantee under the constitution of The United States of America and due process of law(s).
ARGUMENT
The appeal to the court is to overturn the decision of the lower courts based on the on the following facts: there was no probable cause for the original arrest and incarceration of the defendant; there was no reliable evidence such as DNA documentation, presented at trial; the defendant had ineffective legal counsel.
The state was without probable cause to arrest, the district attorney prefabricate evidence (ruse) stating that there is a positive match of Marlo Charles’ DNA. This was used to implicate him as the perpetrate of this offense, which had no bases of truth. Being pressure by the district attorney (Mark Rhodes) the grand jury had no choice but to indict, without seeing this alleged match.
Marlo Charles was arrested in April of 2000. The DNA comparison testing was not done until 2001. Therefore there was never a positive match presented before the grand jury.
see testimony from the grand jury, the State expert in DNA testimony will establish these facts. Stating that there wasn’t any DNA comparison testing made in this case to establish a positive match. Due to the facts that the evidence, DNA was exhaust in 1999 by Dr. Edward Blake and the sample from the sexual assault kit was never compared to Marlo Charles’ DNA.
The district court judge abuse his discretion in allowing inefficient evidence to go before the jury panel, prejudice the jury panel minds that it is Mr. Marlo Charles’ DNA that was found in the sexual assault kit.
Further more the district court judge was without subject matter jurisdiction to go to trial. These facts were established when the district attorney was allowed to amend the grand jury indictment on a capital offense. The grand jury indictment was amended three (3) different times with the approval of the trial judge which has no power or authority to amend a grand jury indictment, see the courts of appeal decision in : United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), and Ex parte Bain, 121 U.S. 1 [7 S.Ct. 781, 30 L.Ed. 849]. UNITED STATES v. NORRIS, 281 U.S. 619 (1930) 281 U.S. 619 UNITED STATES v. NORRIS. No. 555. Argued April 28, 1930. Decided May 26, 1930. [281 U.S. 619, 620]
The rule was accurately stated in Stirone v. United States, 1960, 361 U.S. 212, 215-217, 80 S.Ct. 270, 272-273, 4 L.Ed. Due to the numerous of times the indictment was amended it left the judge without subject matter jurisdiction. The judges abuse his discretion (over the law) and his power over the grand jury which he is without authority to do so. The judge abuse of power allowed the indictment to be amended prejudice the defendant rights by law(s) to be tried in only the indictment present by a grand jury. A party waives any defense listed in Rule 12(b)(2)-(5) by: (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or (B) failing
to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. See also 1 J. Moore, Federal Practice 0.60(4). Were the petitioner's motion for an instruction on simple assault to be granted, and were a jury to convict on that offense at 624 (1986). Indeed the courts must raise a lack of subject matter jurisdiction even if the parties have not. The district court is not complying with federal law(s) or guidelines that are enforce by the constitution of the United States.
Due to well establish laws concerning amending a grand jury indictment on capital offense, the
district court judge, whom is without authority to amend, did not include in the amendment to the
indictment any lesser include offense to properly amend an indictment in accordance with the
laws, amendment should include a lesser offense (see case) State v. Gilmore, 332 So. 2d
789 (La. 1976), the Louisiana Supreme Court held that the district attorney was
inherently empowered to amend an indictment charging first-degree murder to a
charge of second-degree murder, even though there was no specific codal
authorization for the procedure. State v. Stewart, 389 So.2d 1321 (La. 1980).
State v. James, 459 So.2d 1299, 1308 (La.Ct.App. 1st Cir.1984). All three (3) cases contain
lesser offense included after the district attorney was giving the authority by the court(s) and the
judge to amend the grand jury indictment. One again prejudice by the discretion and the abusive
uses of power of the judge in denial of Marlo Charles’ right to due process law(s) and to be tried
only on the indictment present by the grand jury. The offender could not get or receive a life
sentence under the amended indictment. This indictment is the very core of criminality it
depends upon a specific identification of facts, an indictment must do more than simply repeat
the language of the criminal statute. The vice of the indictment, failed to satisfy
the first essential criterion by which the sufficiency of an indictment is to be test. In this
instance case #345943 failed to sufficiently apprise the defendant of what he must be
prepared to meet, or to plea, or the offense to be punished.
Due to numerous amendment to the indictment the defendant in this case #345943 could not
make an intelligent plea as mandatory by law. It is unclear as to the offense to be punished or
tried by the court; see the indictment. The statutory language of the indictment does not apprise
the defendant with reasonable certainly of the nature of the accusation under the amended
indictment against him it must be accompanied with such a statement of the facts and
circumstances as well as inform him of the specific offense intended to be punished.
Rule 7 (C) of the federal rules of criminal procedure.
The indictment… shall be plain concise and definite written statement of essential facts constituting the offense charged. It need not contain…any other matter not necessary to such statement without a statement of the actual subject under inquiry this allegation was inadequate to satisfy the “apprised” requisite mandatory of a valid indictment (see indictment).
Furthermore, the indictment that was presented before the grand jury not only is itself fatal and defective, it also violates, ex post facto clause in The United States Constitution and The State of Louisiana Constitution and it laws.
Paragraph (3) of the indictment that went before the grand jury went into effect July 12, 1984. In
Louisiana, ex post facto clause (state ex rel Glover, 93-2330, 660 So. 2d. 1189, 1200)
states in pertinent part: (1) After the commission of an offense which is relation to the
offense or its punishment alters the situation of a party to his disadvantage.
1. Must be passed after the date of the offense
2. Must relate to the offense or its punishment
3. Must alter the situation of the accused to his disadvantage
4. Must alter the legal rules of evidence and receives less or different testimony
than the law required at the time of the commission of the offense in order to
convict
5. Depriving the defendant of a defense available at the time of the commission of
the offense, also see Calder v. Bull, 3 [U.S.] Dall. 386 [1 L.Ed. 648].
Note* Clyde A. Charles was tired and convicted for the same offense in 1982, was found guilty beyond reasonable doubt, by over whelming evidence. How can two men are convicted for the same offense, 21 years apart and both is found guilty beyond a reasonable?
Where perjury lie is when the same witnesses and same testimony is used to convict
both men. In this highly extraordinary unusual case where the criminal code of
edict and the integrity of the law(s) are thrown out the window just to obtain a
conviction. The district attorney Mark Rhodes was using mind altering drugs
during my trial. Under the law(s) this could never be fair the law states in U.S.
v.Young, prosecutor are to refrain from improper methods calculated to produce a
wrongful conviction, Berger v. United States, 295 U.S. 495 (1935). 21. 49 Stat. ...... 7888,
FTC, Feb. 23, 1962, at 4-5 (dissenting opinion). ... See Berger, Removal of Judicial
Functions From Federal Trade Commission ... U.S. Supreme Court. Miller v. Pate, 386
U.S. 1 (1967). Miller v. Pate. No. 250. Argued January 11-12, 1967. Decided February
13, 1967. The Supreme Court held that the prosecution “deliberately” misrepresented
the truth and under the Fourteenth amendment can not tolerate a state criminal
conviction obtained by knowing or using false evidence and testimony to gain a
conviction.
This alleged offense occurred on March 12, 1981. The court have to agree that the
statute under 14:42, dealing with rape and sexual battery, this went into effect on July 12,
1984 and does not apply to the March 12, 1981 criminal case. PURSANT TO general
provisions of La C CrP art 882 (A), (b), and (c) an illegally lenient sentence may be
corrected at any time by an appellate court on review ...and La.c. crp art.872 (1) and (2).
1. Statute
2. Indictment
Sentence and conviction must rest upon a valid and sufficient statute and indictment see,
HOUSE BILL NO. 369 and Acts 1978, No. 239, §1. Amended by Acts 1981, No. 707,
§1;paragraph (3).
In criminal proceeding the accused may challenge the validity of a statute, practice, or policy
that adversely affects or threatens to adversely affect his right, see State v. McMahon, 391 So.
2d 1120 (La. 1980). State v. Brown, 389 So.2d 48 (La. 1980). Furthermore, it is sufficient to
show that there is a realistic danger of sustaining a direct injury as a result of the operation or
enforcement of the law. See e.g., Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,
298 (1979). United Farm Workers Nat. Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895
(1979).
Ineffective assistance of counsel occurred when counsel was not in complies with Strickland,
466 U.S. at 687-88 1) his counsel's performance fell below an “objective standard of
reasonableness" and (2) he was prejudiced by his counsel's deficient performance. Attorney
Robert Jenkins fell well below the standard that is set by the law(s) In this case he did not do any
investigation into the alleged positive DNA match of Mr. Charles’ that was submitted from a
Virginia DNA data bank. Robert Jenkins did not seek the expert opinion of a DNA analyst.
Therefore he did not put on the best defense. Attorney Jenkins refuses to question the alleged
victim in this case. He stated to me after asking him several times to question this alleged
victim, “she has been through enough”. My life is on the line and my attorney was worried or
concerned with the victim feeling than defending the law(s) and the defendant rights which are
guarantee under the constitution of the United States. I asked several times to take the witness
stand and attorney never granted this request. Attorney Jenkins informed me that district attorney
Mark Rhodes informed him that there wasn’t any match of Mr. Charles’ DNA. When the
defendant heard this information, he asked Attorney Jenkins to make this apart of the court
record for review by a higher court. This omission by the district attorney, Mark Rhodes was
never made a part of the court records at time of trial.
The defendant in this case filed with the court motion to quash and motion for speedy trial.
According to the law all pre-trial motion has to be dispose of before commencing to trial.
If this is law, the trial judge discontinues both motions without date. Because of the judges’
discretion over the law, Mr. Charles was not allowed to challenge the validity of the indictment
or the validity of the statute of the offense that was brought against him. Nor was he allowed
to challenge statute of limitation to institute of prosecution has expired. Making this trial time
barred from prosecution. These claims was filed with the district court judge in motion to quash
on or about February 12, 2001. Once again Mr. Charles’ rights under the law(s) has been
prejudice by the trial judge discretion over the law(s) see docket master case #345943. Prejudice
comes from within men and not the law(s). Men refuse to allow people to assert their rights’
under the law(s) of the constitution of The State and The United States.
The district attorney is well knowledgeable of Marlo Charles involvement in this case. A petition
was filed by Thomas Diven, attorney for Clyde A. Charles, it was made known to the district
court in 1982, that Marlo Charles could be the real perpetrator of this alleged crime. The district
attorney Jim Alcox had in his possession proof that Clyde A. Charles did not commit this
alleged crime by way of blood typing testing that was conducted by Ms. S. Phillps from the state
lab. Mr. Clyde A. Charles blood type was (B) and the blood semen from the sexual assault kit
contained type (O-) blood semen. The court totally disregarded this evidence and convicted
Clyde A. Charles beyond a reasonable doubt.
“Conclusion”
In the interest of justice and fairness and honor to the law(s) I, Marlo Charles movent/petitioner
have submitted these facts of law(s) in according with the law(s) of The Constitution of The
United States and of the State of Louisiana and Louisiana c.cr.p and its law(s). Based on these
Facts and law(s) his sentence SHALL be set aside and the conviction over turned. The court
SHALL be held accountable to uphold the integrity, honesty, and sincerity of the justice system
and its law(s), by providing fairness and interest of justice to all.
“Prayer”
I pray that this Honorable Court in accordance with the laws of the (Land) Louisiana
Constitution and the law(s) of the United States Constitution, by the will of God grant movant
his freedom, and may our heavenly father have mercy on us all and heal the land.
Respectfully submitted,
__________________
(Prose) Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
“Order”
It is hereby order that the District Attorney office for the 32nd judicial court of
Terrebonne parish set aside this sentence and conviction and show just cause in open
Court on____________ day of ___________2009/2010__ at_______a.m./p.m. as to why
petitioner brief should not be granted by law(s). It is further order that a summon be served on
Burl Cain, warden at Louisiana State Penitentiary to produce and have defendant present in open
court. It is further order that an evidentiary hearing be held on the merit(s) of this brief/petition/
motion on _____day of __________at _____________a.m.p.m. it is so ordered.
_____________________________
Justices (Judge)
_________________________________
Marlo Charles 112939
“Affidavit”
I, Marlo Charles, upon my oath under the penalties for perjury, depose and state that I
have prepared and I understand the foregoing motion is in accordance with the law(s) of
the united States Constitution and the Constitution of the State of Louisiana and the
statement made there in are true and correct to the best of my knowledge and belief. I do
solemnly swear that I am not guilty of the said offense as related within the given docket case
#345945. This affidavit is made freely and voluntary under penalty of perjury.
Louisiana State Penitentiary, this__________ day of _____________2009
Respectfully Submitted,
______________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
“Certificate of Service”
I, Marlo Charles, hereby certify that a true and correct copy of the foregoing motion has
been served on opposing counsel by placing same in the United State mail with first
class postage; as indicated below. District Attorney Office for the Parish of Terrebonne in
Houma, LA, Indigent Defenders Office of Terrebonne Parish in Houma, LA, Attorney Robert
Jenkins, and Department of Public Safety in Baton Rouge, LA.
On this __________ date of _________ 20______.
Please serve cc:
District Attorney Indigent Defenders Attorney of Records
Ellen Daigle Doskey Anthony Champagne Robert Jenkins
7856 Main St. Suite 220 318 Church Street 631 St. Charles Street
Houma, LA 70301 Houma, LA 70361 New Orleans, LA 70130
Department of Public Safety and Corrections
P.O. Box 94304 Capitol Station
Baton Rouge, LA 70804-9304
Respectfully Submitted,
______________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
- lhill
- Posts: 1
- Joined: Thu Apr 03, 2008 4:40 pm
Marlo Charles v. Burl Cain, Warden, Louisiana State Penitent
by admin » Wed Jun 30, 2010 10:31 am
In the United States Court of Appeals
for the Fifth Circuit
No. 09-30923
Marlo Charles v. Burl Cain, Warden, Louisiana State Penitentiary
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-8108
Filed: June 29, 2010
Appeal dismissed, Motion denied.
http://www.ca5.uscourts.gov/opinions/un ... .0.wpd.pdf
for the Fifth Circuit
No. 09-30923
Marlo Charles v. Burl Cain, Warden, Louisiana State Penitentiary
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-8108
Filed: June 29, 2010
Appeal dismissed, Motion denied.
http://www.ca5.uscourts.gov/opinions/un ... .0.wpd.pdf
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- Site Admin
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Re: Marlo Charles
by admin » Thu May 19, 2011 3:25 pm
Louisiana State Prison "Angola" evacuated for the first time in history
Marlo Charles, 112939, is still housed at the Louisiana State Penitentiary http://doc.la.gov/pages/correctional-fa ... itentiary/ although the Louisiana State Penitentiary has been evacuated partially since May 9, 2011, due to the (potential) flooding along the Mississippi River.
Click here https://www.vinelink.com/vinelink/searc ... all=search to stay up to date on his whereabouts. The offender locator system is being updated on a regular basis. To locate a LSP inmate by phone, please call 225-383-4580.
Marlo Charles, 112939, is still housed at the Louisiana State Penitentiary http://doc.la.gov/pages/correctional-fa ... itentiary/ although the Louisiana State Penitentiary has been evacuated partially since May 9, 2011, due to the (potential) flooding along the Mississippi River.
Click here https://www.vinelink.com/vinelink/searc ... all=search to stay up to date on his whereabouts. The offender locator system is being updated on a regular basis. To locate a LSP inmate by phone, please call 225-383-4580.
- admin
- Site Admin
- Posts: 2017
- Joined: Thu Oct 28, 2004 8:13 pm
- Location: Northern Germany
Re: Marlo Charles
by lhill » Sun Jun 05, 2011 11:50 am
Sent: Friday, June 03, 2011 11:25 PM
Subject: please post to Marlo's page we still need an attorney
Marlo Charles 32nd Judicial Court Parish of Terrebonne
V. 345943 State of Louisiana
State of Louisiana Section (D)
Case NO: OOFELy-342543
Dear Clerk of Court,
Now into this honorable court, comes Movent/Petitioner, Marlo Charles, Prose request this honorable court to grant a NUNC PRO TUNC, motion to Quash Indictment, please add motion to the records. The bases for filing this motion are set forward in this petition.
Respectfully Submitted,
_________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
Marlo Charles 32nd Judicial Court Parish of Terrebonne
V. 345943 State of Louisiana
State of Louisiana Section (D)
Case NO: OOFELy-342543
_____________________________________________________________
“NUNC PRO TUNC, MOTION to QUASH Indictment”
The indictment… shall be plain concise and definite written statement of essential facts constituting the offense charged. It need not contain…any other matter not necessary to such statement without a statement of the actual subject under inquiry this allegation was inadequate to satisfy the “apprised” requisite mandatory of a valid indictment (see indictment). “New evidence and material that, notwithstanding the exercise of reasonable diligence by the defendant was not discovered before or during the trial, however was available. And if the evidence had been introduced at the trial it would have changed the verdict of guilty”.
Furthermore, the indictment that was presented before the grand jury not only is itself fatal and defective, it also violates, ex post facto clause in The United States Constitution and The State of Louisiana Constitution and it laws. Paragraph (3) of the indictment that went before the grand jury went into effect July 12, 1984. In Louisiana, ex post facto clause (state ex rel Glover, 93-2330, 660 So. 2d. 1189, 1200) states in pertinent part: (1) After the commission of an offense which is relation to the offense or its punishment alters the situation of a party to his disadvantage. Depriving the defendant of a defense available at the time of the commission of the offense, also see Calder v. Bull, 3 [U.S.] Dall. 386 [1 L.Ed. 648].
(1)
Bases for this motion show improperly filed indictment in accordance with the law(s),
Case_law, and ruling by Supreme Court of Louisiana and ruling by The Louisiana First
Circuit Court of Appeal, and Supreme Court of the United States against amending Grand
Jurors Indictment.
A motion to quash may be made when there is a defect apparent upon the face of the
record, within the meaning of sections 2941.02 to 2941.35, inclusive, of the Revised
Code, including defects in the form of indictment and in the manner in which an offense
is charged.
(2)
The trial court judge failure in knowing or not knowing that The Supreme Court of
Louisiana has made its ruling on amending Grand Jury indictment by the court or the
district attorney in; See State v. Gilmore, 332 So. 2d 789, 796 (La. 1976).
State v. Stewart 389 So.2d 1321 (La. 1980); State v. Davis, 385 So.2d 193 (La. 1980);
State v. Doucet, 380 So.2d 605 (La. 1979) . Neil v.Biggers, 409 U.S. at 199-200. These
factors are closely evaluated case by case under a “totality of the circumstances.”
The Supreme Court of Louisiana ruling on amended indictment by the court or the
district attorney, clearly states impertinent part; “The district attorney inherently
empowered to amend grand jury indictment, “when it reduces the charge against the
defendant to a lesser included offense.”
To comply with Louisiana’s Supreme Court ruling the offense must be reduce. The trial
court judge’s discretion over the law of The Supreme Court ruling allowed the district
attorney in this case to amend The Grand Jury’s indictment without a lesser offence.
It does not comply with The Supreme Court ruling. The Judge’s discretion, in this case
is in conflict with The Louisiana’s Supreme Court ruling on amending Grand Jury
indictment, which amounts to an error of law by the judge. This is commence with the
analysis with the article pertaining to review of the motion for new trial, La.Code Crim.
Proc. art. 858, which provides: “Neither the appellate nor supervisory jurisdiction of the
Supreme Court may be invoked to review the granting or refusal to grant a new trial,
except for error of law.”State v. Randolph, 275 So.2d 174, 177 (La.1973). C.Cr.P. art.
851(5). See State v. Willson, 215 La. State v. Williams, 258 La. ... 251, 246 So. 2d 4, 5 (1971);
(3)
The State may abandon charge(s) for a lesser crime and no formal indictment is necessary
for that purpose, although there were no specific codal authorization for the procedure,
See LSA-C.Cr.P. art. 814.
When the prosecutor amended the indictment in this case OOFRLY-345943, He not only
lessened the gravity of the charge, but also eliminated the possibility that the punishment
in this case may not be capital.
One amendment to the indictment, in this case the prosecutor did not read the statute into
the Courts’ records nor did he read the statute defining what he amended.
(4)
Due to well establish laws concerning amending a grand jury indictment on capital
offense, the district court judge, whom is without authority to amend, did not include in
the amendment to the indictment any lesser include offense to properly amend an
indictment in accordance with the laws, amendment should include a lesser offense
(see case) State v. Gilmore, 332 So. 2d 789 (La. 1976), the Louisiana Supreme Court
Held that the district attorney was inherently empowered to amend an indictment
charging first degree murder to a charge of second-degree murder, even though there was
no specific codal authorization for the procedure. State v. Stewart, 389 So.2d 1321 (La. 1980).
State v. James, 459 So.2d 1299, 1308 (La.Ct.App. 1st Cir.1984). All three (3) cases
contain lesser offense included after the district attorney was giving the authority by
the court(s) and the judge to amend the grand jury indictment. One again prejudice
by the discretion and the abusive uses of power of the judge in denial of Marlo Charles’
right to due process law(s) and to be tried only on the indictment present by the grand
jury. The offender could not get or receive a life sentence under the amended indictment.
This indictment is the very core of criminality it depends upon a specific identification of
facts, an indictment must do more than simply repeat the language of the criminal statute.
The vice of the indictment, failed to satisfy the first essential criterion by which the
sufficiency of an indictment is to be test. In this instance case #345943 failed to
sufficiently apprise the defendant of what he must be prepared to meet, or to plea, or the
offense to be punished.
Due to numerous amendment to the indictment the defendant in this case #345943 could
not make an intelligent plea as mandatory by law. It is unclear as to the offense to be
punished or tried by the court; see the indictment. The statutory language of the
indictment does not apprise the defendant with reasonable certainly of the nature of the
accusation under the amended indictment against him it must be accompanied with such
a statement of the facts and circumstances as well as inform him of the specific offense
intended to be punished. Rule 7 (C) of the federal rules of criminal procedure. As this
court can see by the law(s), case law and the ruling by the higher courts that both courts
are in agreement, with each other. The Louisiana Supreme Court and First Circuit Court
of Appeal of Louisiana states that the prosecutor has the inherely empower to amend a
Grand Jury’s’ indictment; “Only when it reduces the crime/charge offense against the
defendant.”
(5)
FIFTH AMENDMENT [U.S. Constitution]
'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury.” The Fifth Amendment 'can be asserted in
any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory;
and it protects against any disclosures. It forbids making or changing an amendment in
the body of an indictment, after it has been filed by order of the court or by the
prosecuting attorney without resubmitting the indictment to the Grand Jury. When the
indictment is filed with the court no changes can be made in the body of the
instrument by order of the court or by the prosecuting attorney without
resubmission of the case to the grand jury. The fact that the court may deem the
change is immaterial, as striking out surplus words, makes no difference. The instrument
as thus changed, is no longer the indictment of the grand jury which presented it. Upon an
indictment change without resubmission of the case to the Grand Jury, the court can
precede no further. There is nothing in the language of the constitution, which the
prisoner can be held to answer. A trial on such indictment is VOID and there is
nothing to try.
EX Parte Bain, 121 U.S. 1, S. Ct. 781 (1887), overruled by U.S. v. Miller, 471u.s. 130,144, 105 S. Ct. 1811, 1819 (1985) (“to the extent Bain stands for the proposition that it constitutes unconstitutional amendment to drop from an indictment those allegations that are unnecessary to an offense that is clearly contained within it, that case has simply not survived”).
It only remains to consider whether this change in the indictment deprived the court of
the power of proceeding to try the petitioner and sentence him to the imprisonment
provided for in the statute. We have no difficulty in holding that the indictment on which
he was tried was no indictment of a grand jury. The decisions which we have already
referred to, as well as sound principle, require us to hold that after the indictment was
changed it was no longer the indictment of the grand jury who presented it. Any other
doctrine would place the rights of the citizen, which were intended to be protected by the
constitutional provision, at the mercy or control of the court or prosecuting attorney; for,
if it be once held that changes can be made by the consent or the order of the court in the
body of the indictment as presented by the grand jury, and the prisoner can be called
upon to answer to the indictment as thus changed, the restriction which the constitution
places upon the power of the court, in regard to the prerequisite of an indictment, in
reality no longer exists. It is of no avail, under such circumstances, to say that the court
still has jurisdiction of the person and of the crime, for, though it has possession of the
person, and would have jurisdiction of the crime, if it were properly presented by
indictment, the jurisdiction of the offense is gone, and the court has no right to proceed
any further in the progress of the case for want of an indictment. If there is nothing before
the court which the prisoner, in the language of the constitution, can be 'held to answer,'
he is then entitled to be discharged so far as the offense originally presented to the court
by the indictment is concerned. The power of the court to proceed to try the prisoner is as
much arrested as if the indictment had been dismissed or a nolle prosequi had been
entered. There was [121 U.S. 1, 14] nothing before the court on which it could hear
evidence or pronounce sentence. The case comes within the principles laid down by this
court in Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U.S. 18 ; Ex parte Wilson, 114 U.S. 418 , 5 Sup. Ct. Rep. 935, and other cases.
“Conclusion”
Base on the facts and laws as stated above as well as the ruling by The Louisiana Supreme Court along with the ruling by The Louisiana First Circuit Court of Appeal on amending grand jury’s indictment by the District Attorney clearly shows (states) that the Indictment in this case is “Fatally Defected” and improperly amended.
It is the petitioner prayer (wishes) that this honorable court set aside the indictment as well as the conviction and sentence and remand this case back to the district court for further process to insure simple “fairness and justice”.
“Prayer”
I, Marlo Charles would like to take this time to plead or to ask for your help in my fight for my freedom. I, am Praying that justice is served in this matter and that the Laws of the United States Constitution be honor by this court.
“Certificate of Service”
I, Marlo Charles, hereby certify that a true and correct copy of the foregoing (NUNC
PROTUNC ) motion to Quash indictment be served on opposing counsel by placing
same in the United State mail with first class postage; Through classification as indicated
below. On this __________ date of _________ 2011
“Affidavit”
I, Marlo Charles, upon my oath under the penalties for perjury, depose and state that I
have prepared and I understand the foregoing motion is in accordance with the law(s) of
the United States Constitution and the Constitution of the State of Louisiana and the
statement made there in are true and correct to the best of my knowledge and belief.
Louisiana State Penitentiary, this __________date of _____________2011__
Respectfully Submitted,
______________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
Please serve cc:
District Attorney Indigent Defenders Attorney of Records
Ellen Daigle Doskey Anthony Champagne Robert Jenkins
7856 Main St. Suite 220 318 Church Street 631 St. Charles Street
Houma, LA 70301 Houma, LA 70361 New Orleans, LA 70130
“Order”
It is hereby “ordered” that Marlo Charles 112939 be returned back to the 32nd Judicial
District, of Terrebonne Parish, Prison to wait further processing in this matter and remain
there until this matter is resolved.
It is further “ordered” and decreed that the District Attorney for the 32nd Judicial Court,
sec.”D” in open court show just cause on the record as to Why this motion should not be
granted on ______________date of ________2011 at ____am/pm,
It is further ordered that the indictment in this case and the conviction as well as the
sentence be set aside until this matter is settled, It is hereby ordered.
____________________________________
District Court Judge
Respectfully Submitted,
________________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
This said and done this date__________of___________2011
Subject: please post to Marlo's page we still need an attorney
Marlo Charles 32nd Judicial Court Parish of Terrebonne
V. 345943 State of Louisiana
State of Louisiana Section (D)
Case NO: OOFELy-342543
Dear Clerk of Court,
Now into this honorable court, comes Movent/Petitioner, Marlo Charles, Prose request this honorable court to grant a NUNC PRO TUNC, motion to Quash Indictment, please add motion to the records. The bases for filing this motion are set forward in this petition.
Respectfully Submitted,
_________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
Marlo Charles 32nd Judicial Court Parish of Terrebonne
V. 345943 State of Louisiana
State of Louisiana Section (D)
Case NO: OOFELy-342543
_____________________________________________________________
“NUNC PRO TUNC, MOTION to QUASH Indictment”
The indictment… shall be plain concise and definite written statement of essential facts constituting the offense charged. It need not contain…any other matter not necessary to such statement without a statement of the actual subject under inquiry this allegation was inadequate to satisfy the “apprised” requisite mandatory of a valid indictment (see indictment). “New evidence and material that, notwithstanding the exercise of reasonable diligence by the defendant was not discovered before or during the trial, however was available. And if the evidence had been introduced at the trial it would have changed the verdict of guilty”.
Furthermore, the indictment that was presented before the grand jury not only is itself fatal and defective, it also violates, ex post facto clause in The United States Constitution and The State of Louisiana Constitution and it laws. Paragraph (3) of the indictment that went before the grand jury went into effect July 12, 1984. In Louisiana, ex post facto clause (state ex rel Glover, 93-2330, 660 So. 2d. 1189, 1200) states in pertinent part: (1) After the commission of an offense which is relation to the offense or its punishment alters the situation of a party to his disadvantage. Depriving the defendant of a defense available at the time of the commission of the offense, also see Calder v. Bull, 3 [U.S.] Dall. 386 [1 L.Ed. 648].
(1)
Bases for this motion show improperly filed indictment in accordance with the law(s),
Case_law, and ruling by Supreme Court of Louisiana and ruling by The Louisiana First
Circuit Court of Appeal, and Supreme Court of the United States against amending Grand
Jurors Indictment.
A motion to quash may be made when there is a defect apparent upon the face of the
record, within the meaning of sections 2941.02 to 2941.35, inclusive, of the Revised
Code, including defects in the form of indictment and in the manner in which an offense
is charged.
(2)
The trial court judge failure in knowing or not knowing that The Supreme Court of
Louisiana has made its ruling on amending Grand Jury indictment by the court or the
district attorney in; See State v. Gilmore, 332 So. 2d 789, 796 (La. 1976).
State v. Stewart 389 So.2d 1321 (La. 1980); State v. Davis, 385 So.2d 193 (La. 1980);
State v. Doucet, 380 So.2d 605 (La. 1979) . Neil v.Biggers, 409 U.S. at 199-200. These
factors are closely evaluated case by case under a “totality of the circumstances.”
The Supreme Court of Louisiana ruling on amended indictment by the court or the
district attorney, clearly states impertinent part; “The district attorney inherently
empowered to amend grand jury indictment, “when it reduces the charge against the
defendant to a lesser included offense.”
To comply with Louisiana’s Supreme Court ruling the offense must be reduce. The trial
court judge’s discretion over the law of The Supreme Court ruling allowed the district
attorney in this case to amend The Grand Jury’s indictment without a lesser offence.
It does not comply with The Supreme Court ruling. The Judge’s discretion, in this case
is in conflict with The Louisiana’s Supreme Court ruling on amending Grand Jury
indictment, which amounts to an error of law by the judge. This is commence with the
analysis with the article pertaining to review of the motion for new trial, La.Code Crim.
Proc. art. 858, which provides: “Neither the appellate nor supervisory jurisdiction of the
Supreme Court may be invoked to review the granting or refusal to grant a new trial,
except for error of law.”State v. Randolph, 275 So.2d 174, 177 (La.1973). C.Cr.P. art.
851(5). See State v. Willson, 215 La. State v. Williams, 258 La. ... 251, 246 So. 2d 4, 5 (1971);
(3)
The State may abandon charge(s) for a lesser crime and no formal indictment is necessary
for that purpose, although there were no specific codal authorization for the procedure,
See LSA-C.Cr.P. art. 814.
When the prosecutor amended the indictment in this case OOFRLY-345943, He not only
lessened the gravity of the charge, but also eliminated the possibility that the punishment
in this case may not be capital.
One amendment to the indictment, in this case the prosecutor did not read the statute into
the Courts’ records nor did he read the statute defining what he amended.
(4)
Due to well establish laws concerning amending a grand jury indictment on capital
offense, the district court judge, whom is without authority to amend, did not include in
the amendment to the indictment any lesser include offense to properly amend an
indictment in accordance with the laws, amendment should include a lesser offense
(see case) State v. Gilmore, 332 So. 2d 789 (La. 1976), the Louisiana Supreme Court
Held that the district attorney was inherently empowered to amend an indictment
charging first degree murder to a charge of second-degree murder, even though there was
no specific codal authorization for the procedure. State v. Stewart, 389 So.2d 1321 (La. 1980).
State v. James, 459 So.2d 1299, 1308 (La.Ct.App. 1st Cir.1984). All three (3) cases
contain lesser offense included after the district attorney was giving the authority by
the court(s) and the judge to amend the grand jury indictment. One again prejudice
by the discretion and the abusive uses of power of the judge in denial of Marlo Charles’
right to due process law(s) and to be tried only on the indictment present by the grand
jury. The offender could not get or receive a life sentence under the amended indictment.
This indictment is the very core of criminality it depends upon a specific identification of
facts, an indictment must do more than simply repeat the language of the criminal statute.
The vice of the indictment, failed to satisfy the first essential criterion by which the
sufficiency of an indictment is to be test. In this instance case #345943 failed to
sufficiently apprise the defendant of what he must be prepared to meet, or to plea, or the
offense to be punished.
Due to numerous amendment to the indictment the defendant in this case #345943 could
not make an intelligent plea as mandatory by law. It is unclear as to the offense to be
punished or tried by the court; see the indictment. The statutory language of the
indictment does not apprise the defendant with reasonable certainly of the nature of the
accusation under the amended indictment against him it must be accompanied with such
a statement of the facts and circumstances as well as inform him of the specific offense
intended to be punished. Rule 7 (C) of the federal rules of criminal procedure. As this
court can see by the law(s), case law and the ruling by the higher courts that both courts
are in agreement, with each other. The Louisiana Supreme Court and First Circuit Court
of Appeal of Louisiana states that the prosecutor has the inherely empower to amend a
Grand Jury’s’ indictment; “Only when it reduces the crime/charge offense against the
defendant.”
(5)
FIFTH AMENDMENT [U.S. Constitution]
'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury.” The Fifth Amendment 'can be asserted in
any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory;
and it protects against any disclosures. It forbids making or changing an amendment in
the body of an indictment, after it has been filed by order of the court or by the
prosecuting attorney without resubmitting the indictment to the Grand Jury. When the
indictment is filed with the court no changes can be made in the body of the
instrument by order of the court or by the prosecuting attorney without
resubmission of the case to the grand jury. The fact that the court may deem the
change is immaterial, as striking out surplus words, makes no difference. The instrument
as thus changed, is no longer the indictment of the grand jury which presented it. Upon an
indictment change without resubmission of the case to the Grand Jury, the court can
precede no further. There is nothing in the language of the constitution, which the
prisoner can be held to answer. A trial on such indictment is VOID and there is
nothing to try.
EX Parte Bain, 121 U.S. 1, S. Ct. 781 (1887), overruled by U.S. v. Miller, 471u.s. 130,144, 105 S. Ct. 1811, 1819 (1985) (“to the extent Bain stands for the proposition that it constitutes unconstitutional amendment to drop from an indictment those allegations that are unnecessary to an offense that is clearly contained within it, that case has simply not survived”).
It only remains to consider whether this change in the indictment deprived the court of
the power of proceeding to try the petitioner and sentence him to the imprisonment
provided for in the statute. We have no difficulty in holding that the indictment on which
he was tried was no indictment of a grand jury. The decisions which we have already
referred to, as well as sound principle, require us to hold that after the indictment was
changed it was no longer the indictment of the grand jury who presented it. Any other
doctrine would place the rights of the citizen, which were intended to be protected by the
constitutional provision, at the mercy or control of the court or prosecuting attorney; for,
if it be once held that changes can be made by the consent or the order of the court in the
body of the indictment as presented by the grand jury, and the prisoner can be called
upon to answer to the indictment as thus changed, the restriction which the constitution
places upon the power of the court, in regard to the prerequisite of an indictment, in
reality no longer exists. It is of no avail, under such circumstances, to say that the court
still has jurisdiction of the person and of the crime, for, though it has possession of the
person, and would have jurisdiction of the crime, if it were properly presented by
indictment, the jurisdiction of the offense is gone, and the court has no right to proceed
any further in the progress of the case for want of an indictment. If there is nothing before
the court which the prisoner, in the language of the constitution, can be 'held to answer,'
he is then entitled to be discharged so far as the offense originally presented to the court
by the indictment is concerned. The power of the court to proceed to try the prisoner is as
much arrested as if the indictment had been dismissed or a nolle prosequi had been
entered. There was [121 U.S. 1, 14] nothing before the court on which it could hear
evidence or pronounce sentence. The case comes within the principles laid down by this
court in Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U.S. 18 ; Ex parte Wilson, 114 U.S. 418 , 5 Sup. Ct. Rep. 935, and other cases.
“Conclusion”
Base on the facts and laws as stated above as well as the ruling by The Louisiana Supreme Court along with the ruling by The Louisiana First Circuit Court of Appeal on amending grand jury’s indictment by the District Attorney clearly shows (states) that the Indictment in this case is “Fatally Defected” and improperly amended.
It is the petitioner prayer (wishes) that this honorable court set aside the indictment as well as the conviction and sentence and remand this case back to the district court for further process to insure simple “fairness and justice”.
“Prayer”
I, Marlo Charles would like to take this time to plead or to ask for your help in my fight for my freedom. I, am Praying that justice is served in this matter and that the Laws of the United States Constitution be honor by this court.
“Certificate of Service”
I, Marlo Charles, hereby certify that a true and correct copy of the foregoing (NUNC
PROTUNC ) motion to Quash indictment be served on opposing counsel by placing
same in the United State mail with first class postage; Through classification as indicated
below. On this __________ date of _________ 2011
“Affidavit”
I, Marlo Charles, upon my oath under the penalties for perjury, depose and state that I
have prepared and I understand the foregoing motion is in accordance with the law(s) of
the United States Constitution and the Constitution of the State of Louisiana and the
statement made there in are true and correct to the best of my knowledge and belief.
Louisiana State Penitentiary, this __________date of _____________2011__
Respectfully Submitted,
______________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
Please serve cc:
District Attorney Indigent Defenders Attorney of Records
Ellen Daigle Doskey Anthony Champagne Robert Jenkins
7856 Main St. Suite 220 318 Church Street 631 St. Charles Street
Houma, LA 70301 Houma, LA 70361 New Orleans, LA 70130
“Order”
It is hereby “ordered” that Marlo Charles 112939 be returned back to the 32nd Judicial
District, of Terrebonne Parish, Prison to wait further processing in this matter and remain
there until this matter is resolved.
It is further “ordered” and decreed that the District Attorney for the 32nd Judicial Court,
sec.”D” in open court show just cause on the record as to Why this motion should not be
granted on ______________date of ________2011 at ____am/pm,
It is further ordered that the indictment in this case and the conviction as well as the
sentence be set aside until this matter is settled, It is hereby ordered.
____________________________________
District Court Judge
Respectfully Submitted,
________________________________
Marlo Charles 112939
Louisiana State Penitentiary
Angola, LA 70712
This said and done this date__________of___________2011
- lhill
- Posts: 1
- Joined: Thu Apr 03, 2008 4:40 pm
Re: Marlo Charles
by lhill » Sun Jun 05, 2011 11:54 am
Please, My brotherMarlo Charles needs an attorney! can someone help us. He is not guilty, please contact me. "What will thou"
- lhill
- Posts: 1
- Joined: Thu Apr 03, 2008 4:40 pm
Re: Marlo Charles
by admin » Tue Dec 13, 2011 7:43 pm
Update
Illegal Amendment of Indictments
By Marlo Charles
November 7, 2011
I have not given up my fight for my freedom, but it is getting to me. It has been causing me to lose heart in all things.
I found these laws concerning amending grand jury indictment, which the courts do not recognize their own laws or stand by ruling that they have already made in other cases. For example:
I was charged with aggravated rape on June 6, 2000 by the grand jury. On September 13, 2000 the district attorney amended the grand jury indictment, and on August 24, 2001, the district attorney with the judge’s permission made amendment in the body of the same grand jury indictment. The grand jury that presents the indictment has never seen the amended indictment.
The district attorney gives no reason as to why these changes were made in the body of the indictment.
[See Criminal Resource Manual 236: Amendment of Indictments at http://www.justice.gov/usao/eousa/foia_ ... m00236.htm ]
“Indictments are found upon the oaths of a jury and ought only to be amended by themselves.”
[See EX PARTE BAIN, 121 U.S. 1 (1887), Supreme Court of United States. Argued March 8, 1887, http://174.123.24.242/leagle/xmlResult. ... SizeDisp=7 ]
“No authority has been cited to us in the American courts which sustains the right of a court to amend any part of the body of an indictment without reassembling the grand jury.”
These are some cases where ruling has already been made by the courts after the grand jury indictment has been made, which states in State v. James, 459 So. 2d. 1299 (La. App. 1st Cir., 1984:
“The First Circuit Court of Appeal approved the amendment by the district attorney of a grand jury indictment,”
“Only when it reduces the charge against the defendant.”
State v. Gilmore, 332 So. 2d 789 (La. 1976):
“The Louisiana Supreme Court recognized the authority of a district attorney to amend an indictment.”
“When the amendment reduces the charge against the defendant.”
I filed writ in this matter. The court stated I made no claim that they can grant relief or my release on. All I ask the court for is a hearing, not to be released from prison, but just grant me a hearing in the matter.
I have the whole story of what was done and how it was done to convict Clyde and Marlo Charles. I need a lawyer to tell all these things to.
Sincerely,
“Looking for Justice”
Marlo Charles
Illegal Amendment of Indictments
By Marlo Charles
November 7, 2011
I have not given up my fight for my freedom, but it is getting to me. It has been causing me to lose heart in all things.
I found these laws concerning amending grand jury indictment, which the courts do not recognize their own laws or stand by ruling that they have already made in other cases. For example:
I was charged with aggravated rape on June 6, 2000 by the grand jury. On September 13, 2000 the district attorney amended the grand jury indictment, and on August 24, 2001, the district attorney with the judge’s permission made amendment in the body of the same grand jury indictment. The grand jury that presents the indictment has never seen the amended indictment.
The district attorney gives no reason as to why these changes were made in the body of the indictment.
[See Criminal Resource Manual 236: Amendment of Indictments at http://www.justice.gov/usao/eousa/foia_ ... m00236.htm ]
“Indictments are found upon the oaths of a jury and ought only to be amended by themselves.”
[See EX PARTE BAIN, 121 U.S. 1 (1887), Supreme Court of United States. Argued March 8, 1887, http://174.123.24.242/leagle/xmlResult. ... SizeDisp=7 ]
“No authority has been cited to us in the American courts which sustains the right of a court to amend any part of the body of an indictment without reassembling the grand jury.”
These are some cases where ruling has already been made by the courts after the grand jury indictment has been made, which states in State v. James, 459 So. 2d. 1299 (La. App. 1st Cir., 1984:
“The First Circuit Court of Appeal approved the amendment by the district attorney of a grand jury indictment,”
“Only when it reduces the charge against the defendant.”
State v. Gilmore, 332 So. 2d 789 (La. 1976):
“The Louisiana Supreme Court recognized the authority of a district attorney to amend an indictment.”
“When the amendment reduces the charge against the defendant.”
I filed writ in this matter. The court stated I made no claim that they can grant relief or my release on. All I ask the court for is a hearing, not to be released from prison, but just grant me a hearing in the matter.
I have the whole story of what was done and how it was done to convict Clyde and Marlo Charles. I need a lawyer to tell all these things to.
Sincerely,
“Looking for Justice”
Marlo Charles
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Re: Marlo Charles
by admin » Sat May 26, 2012 12:39 pm
On May 25, 2012, the Louisiana Supreme Court denied Marlo Charles' Writ Application:
2011-KH-2196 STATE EX REL. MARLO CHARLES v. STATE OF LOUISIANA (Parish of Terrebonne)
2011-KH-2196 STATE EX REL. MARLO CHARLES v. STATE OF LOUISIANA (Parish of Terrebonne)
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Re: Marlo Charles
by lhill » Sun May 27, 2012 8:28 pm
Why, was it denied? Marlo needs and attorney to help fight this battle... Who can help my brother?
The state does not recognize The laws concerning amending grand jury indictment, which the courts do not recognize their own laws or stand by ruling that they have already made in other cases. For example:
(Marlo)I was charged with aggravated rape on June 6, 2000 by the grand jury. On September 13, 2000 the district attorney amended the grand jury indictment, and on August 24, 2001, the district attorney with the judge’s permission made amendment in the body of the same grand jury indictment. The grand jury that presents the indictment has never seen the amended indictment.
The district attorney gives no reason as to why these changes were made in the body of the indictment. The district attorney Mark Rhodes change everything that went before the Grand Jury.
The sate is still trying to safe face....
The state does not recognize The laws concerning amending grand jury indictment, which the courts do not recognize their own laws or stand by ruling that they have already made in other cases. For example:
(Marlo)I was charged with aggravated rape on June 6, 2000 by the grand jury. On September 13, 2000 the district attorney amended the grand jury indictment, and on August 24, 2001, the district attorney with the judge’s permission made amendment in the body of the same grand jury indictment. The grand jury that presents the indictment has never seen the amended indictment.
The district attorney gives no reason as to why these changes were made in the body of the indictment. The district attorney Mark Rhodes change everything that went before the Grand Jury.
The sate is still trying to safe face....
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Re: Marlo Charles
by admin » Thu Jun 07, 2012 10:23 am
Appeal denied for rapist whose case made headlines
By Eric Heisig
Staff Writer
Published: Tuesday, June 5, 2012 at 12:13 p.m.
Last Modified: Tuesday, June 5, 2012 at 12:13 p.m.
...District Judge David Arceneaux denied the motion late last month, saying it was not filed in a timely fashion and was repetitive, Assistant District Attorney Ellen Doskey said.
The First Circuit Court of Appeal upheld Arceneaux's decision, and the state Supreme Court did the same late last month.
Full text at http://www.houmatoday.com/article/20120 ... -headlines
By Eric Heisig
Staff Writer
Published: Tuesday, June 5, 2012 at 12:13 p.m.
Last Modified: Tuesday, June 5, 2012 at 12:13 p.m.
...District Judge David Arceneaux denied the motion late last month, saying it was not filed in a timely fashion and was repetitive, Assistant District Attorney Ellen Doskey said.
The First Circuit Court of Appeal upheld Arceneaux's decision, and the state Supreme Court did the same late last month.
Full text at http://www.houmatoday.com/article/20120 ... -headlines
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