201 McMorran Blvd.
Port Huron, MI 48060
Plaintiff, Case No.: 09-002175-PZ
There is no other pending or resolved civil action arising out of the transaction or occurrence alleged in the complaint.
MCR. Rule 2.612(C)(3) Relief From Judgment or Order
(3) The express language of MCR 2.612(C)(3) provides that the provisions in MCR 2.612(C)(1) and (2) in no way "limit[s] the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding . . . ." Hence, a party need not allege fraud or nonservice in order to seek relief from a judgment in an independent action pursuant to MCR 2.612(C)(3). In this regard, the court found the following commentary to be particularly persuasive:
MCR 2.612(C)(3) expressly notes that its provision for relief from judgment by a motion directly in the same proceedings "does not limit the power of a court to entertain an independent action to relieve a party from a judgment."
In Michigan, an independent action in chancery for relief from a judgment has been long recognized. Such independent equitable actions granted relief either by setting aside the judgment, if rendered by the same court, or by enjoining its enforcement or execution or declaring it void, if rendered by another court. This equitable relief was most frequently granted as to judgments at law but was also available to restrain enforcement of an equity decree itself.
Relief from a judgment by an independent equitable action has been recognized in Michigan as proper on numerous grounds, including the following: judgment void for lack of jurisdiction; newly-discovered evidence; after discovered defense; and extrinsic fraud in the procurement of a judgment.
If the judgment is not void for lack of jurisdiction, the party seeking relief from a judgment by an independent equitable action must show that it has a meritorious defense or cause of action before equitable relief will be given. [Michigan Court Rules Practice, Rule 2.612, § 2612.17, p 483 (citations omitted; emphasis added).] See also: Grubb Creek Action Committee v Shiawassee Co Drain Comm’r, 218 Mich App 665, 668-669; 554 NW2d 612 (1996);
100 McMorran Blvd. 810-984-9748 City Attorney Office
Port Huron, MI 48060 Port Huron, MI 48060
1. On or about November 5th of 2006, Plaintiff entered into the Industrial Park Party Store and approached Kevin K. Kenaya and asked him to loan Plaintiff $25.00 until the 9th, of the month when Plaintiff’s bridge-card became active.
2. Kenaya agreed indicating that Plaintiff would pay back an additional $25.00 as the loan would be repaid by bridge card, as oppose to cash.
3. On the 9th of November 2006, Plaintiff simply could not find his bridge card. Plaintiff then went to the party store and explained to Kenaya that he had lost his bridge card and would apply for a new card and pay the $50.00 debt at that time, although upset, Kenaya agreed.
4. On November 14th of 2006 Plaintiff entered the party store to pay the $50.00 debt he had with the party story. Plaintiff handed Kenaya the bridge card so that he could remit the $50.00 debt amount.
5. On November 21st of 2006, Plaintiff confronted Kenaya concerning funds that had been removed from his bridge-card that Plaintiff had not authorized. Kenaya indicated that he had only removed $20.00 over the $50.00 amount, for Tax, because Plaintiff was late on the repayment of the $50.00 loan.
6. Plaintiff demanded the return of the $20.00 and Kenaya refused indicating that he had lost over $5,000.00 on the Michigan verses Ohio State football Game, that had he won he would be glad to give Plaintiff $50.00 dollars.
7. Plaintiff demanded that Kenaya returned the money, explaining to Kenaya, that Plaintiff needed his money for things like food, that he also needed gas for the car as Plaintiff had to take his wife to work the next day.
8. Kenaya continued his refusal indicated that the $20.00 dollars was tax for being late on repayment on the loan, and that Plaintiff knew the game, "you late, you pay."
9. Plaintiff explained to Kenaya, that he would see him in jail for taking that money off his bridge-card, that it was a felony, as well as a federal offence.
10. Kenaya became very angry and began attempts to employ persons under his employment, as well as persons coming into the store off the streets, to expel Plaintiff from the store. When that didn’t work for him, he called the police and indicated to the police that Plaintiff was an unwanted vagrant harassing his customers.
11. At Plaintiff’s trial Kenaya testified that it was Kenaya himself who sought aid from the same people he had first indicated Plaintiff were harassing. See trial transcripts at page 17 Q&A – 17:
12. The jury never got the opportunity to see the electronic transaction activity that this Court is about to see below.
13. In this document, however, this Court can readily see that Kenaya was perjuring himself when he testify that he neither accepted nor did any kind of business concerning bridge-cards in the Industrial Park Store… From this document this Court can readily see that Kenaya was perjuring himself when he testified that his store did not have the machines necessary for removing the benefits possessed in bridge-cards
14. There are no legitimate reasons whatsoever for Kenaya to lie concerning bridge-card transactions conducted in his store, unless Kenaya was deliberately attempting to aid the City in deceiving the jury. For example, had there been a bridge-card transaction between Kenaya and Lockett, or not, Kenaya still would not have had a good reason to lie concerning the store’s ability to except bridge-cards, unless Kenaya was attempting to assist the City in its malicious prosecution of Plaintiff, thereby shielding himself and the City Of Port Huron.
15. Put another way: Kenaya and the Industrial Park Store, at all times relevant,
had a legal right to except bridge-cards transactions there in their store. That fact makes clear that this is not the reason he lied concerning bridge-cards transactions taking place in his store.
16. Another reason Kenaya felt the need to lie would be to attempt to hide his illegal conduct and criminal activities concerning funds he removed from Lockett’s and countless other bridge-cards. But either way, Kenaya did perjure himself on a matter that was critical to the City’s case, and Plaintiff’s defense being the “right to resist unlawful restraints“. And that type of perjury carries a fifteen year prison term. Something motivated Kenaya to make that leap, was it Money, Fear of Prison or A Promise from the City‘s Attorney.
17. Plaintiff contends, it is all three, Kenaya made a false report that night of November the 21st of 2006. The police in response employed excessive use of force against Lockett. The entire time, Kenaya has stolen money from Lockett’s Bridge Card.
18. The most important of the three, is the fact that the police has assaulted Lockett, at the whim of Kenaya, by way of excessive use of force. Lockett’s filing his complaint with the Port Huron Police Department, was the last thing the Police and Kenaya needed.
19. Kenaya’s efforts to deceive the jury was successful as the jury returned a verdict of guilty on all charges.
20. The Plaintiff was unable to confide in his lawyer, and counsel refused to pursue investigative leads, witnesses for the defense, nor did she seek and obtain available exculpatory impeachment evidence in the face of being directed by Plaintiff to its existence.
21. The Supreme Court has long recognized that there is a duty to investigate before trial and that, by failing to consult with Plaintiff counsel did not perform this duty during a critical stage.
22. The trial court in this case should have done better upholding the Constitution and take but a few additional moments to consider Plaintiff’s complaints concerning appointed counsel meaningfully, to make certain that Counsel Kelly was truly ready for trial.
23. In doing so, the trial court would have learned of counsel’s lack of representation, and appointed new counsel as Plaintiff had requested prior to his trial. The time the trial court saved only lead to greater and otherwise unnecessary expenditure of time and judicial resources of this Hon. Circuit Court, less not forget to mention the toil on Plaintiff.
24. Plaintiff specifically instructed his appointed counsel, to obtain copies of the transactions that had occurred on Plaintiff’s bridge card. And counsel failed to do so without a single reason whatsoever.
25. Counsel refusal to obtain the requested documents allowed Kenaya to take the witness stand and lie to the jury and perjure himself with reckless abandonment.
26. In the face of the above allegations, Kelly’s only response was that she was ready for trial. When in fact she too, clearly, was working with the City to fraud the court.
27. It is impossible for Plaintiff to believe anything other than that his court appointed counsel acted in concert with the City Attorney, the Port Huron Police and Kenaya …to deprive Plaintiff of his liberty …and other proper redress.
28. For example: Lockett had every right to seek to resolve the issue of the money that had been illegally removed from his bridge-card the night he confronted kenaya in the Industrial Park Store.
29. The police jumped the gun, and exacted excessive use of force against Plaintiff causing great bodily injury to Plaintiff’s person, subjecting themselves to criminal and civil liabilities.
30. Upon his, before daylight, released from the St Clair County Jail, Plaintiff waited until 8:00 a.m. and then went to the Port Huron Police Department to file a complaint against the police that had assaulted him, and against Kenaya for the false report that cause the assault.
31. The police refused to allow Plaintiff in the building, therefore Plaintiff called the state police and the FBI. The State Police instructed Plaintiff to contact the Chief of the Port Huron Police Department. Plaintiff tried to no avail.
32. A week or so later after repeated attempts, plaintiff was finally able to file his complaint…See: Port Huron Police complaint number: 06-17636. In an effort to prevent Plaintiff from being able to bring a civil and criminal action against them, the City decided to bring criminal charges against Plaintiff..
33. As a result of this decision, the city needed to show that Plaintiff was in the Industrial Park Store illegally. This required the City to put the perjured testimony of kenaya and the police to the jury, resulting in the unlawful conviction of Plaintiff.A Miscarriage of Justice. And Fraud upon the Court.
34. Prior to thee above criminal conduct, the City tried to convict Plaintiff of harboring a child runaway, like the present case, knowing full well that the charges had absolutely on basis in fact whatsoever.
35. The police lied in their police report indicating that they had removed the child for the home of Plaintiff to secure the warrant for Plaintiff’s arrest.
36. All of this came about only after Plaintiff had filed his complaint against the police of the Port Huron Police Department and Kenaya..
37. Plaintiff criminal complaint is assigned to Detective Stuewer of the Port Huron Police Department, of whom, like appointed counsel, has not spoken to Plaintiff concerning this complaint.
38. Plaintiff is denied the equal protection of the law at the hands of the police of Port Huron. The City Attorney. And his court appointed counsel .
39. Furthermore, plaintiff’s pleadings demonstrated that plaintiff, as well as the prosecutor, knew about this fraud, and the existence of evidence that would expose it before and during trial. The fraud is not after-discovered evidence, the type of evidence Hazel-Atlas focused on when describing the evidence that shows fraud on the court. In the instant case, the fact that the prosecutor suppressed the requested evidence is equally persuasive in showing fraud on the court.
40. Plaintiff allege that the prosecutor (John Livesay (P-23123)) knew his witnesses was going to lie before taking the witness-stand, and was lying while on the witness stand. In fact, it was his plan by design.
41. Plaintiff’s request for the documents that would expose the falsehoods, prior to trial, and the fact of the prosecutor’s suppression thereof, provides whatever needed support, for this allegation.
42. Notably, this is firsthand knowledge that the prosecutor was certain of the lack of veracity of Kenaya statements and trial testimony.
43. Moreover this knowledge gives insight into the prosecutor’s state of mind. Therefore, there is clear, unequivocal, and convincing evidence of a deliberately planned and carefully executed scheme and of an intentional fraud on the court.
44. Plaintiff’s documents and statements in this complaint, provides undisputable factual evidence of fraud on the court; thus, constitute clear, unequivocal, and convincing evidence.
45. Plaintiff clearly maintained from the very start, that the fraud was perpetrated by officers of the court.
46. The documents presented along with this complaint, is more than compelling evidence of fraud because Plaintiff’s evidence consists of trial transcripts and records kept over the course of regularly conducted business, and is regulated by State and Federal government. Thus, well supported allegations of fraud upon the court.
47. Plaintiff realized the fraud prior to his criminal trial when he asked the court appointed attorney (Margaret Kelly) for the missing documents of the transaction that had occurred on the Bridge-Card.
48. When she refused, plaintiff sought appointment of new counsel making it clear to the Court; the Prosecutor; as well as his court appointed Counsel, that the city was going to put a liar on the witness-stand and that the Documents were needed to show that facts.
49. However, the request fell on deft ears depriving plaintiff of his right to present evidence of the fraud at trial. As well as his defense.
50. The City Attorney would try anything at this point to avoid confronting his misconduct including ex parta communications… however, in a court where justice can be found, he and his co-conspirators will be reintroduced to justice.
51. Plaintiff seeks relief from the fraud on the court under Hazel-Atlas and Herring holdings by bringing an independent action in equity for relief from a judgment he has shown is based exclusively on fraud on the Court.
52. These are separate actions. See 12 James W. Moore, Moore’s Federal Practice § 60.81 (3d ed. 2007)(noting that fraud on the court deals with integrity of the courts and the typical independent action deals with justice between the parties). Both, however, are equitable remedies reserved to the courts by the savings clause of Federal Rule of Civil Procedure 60
53. "Fraud On The Court By An Officer Of The Court State or Federal" Provides For An Independent Actions In Equity. "Officer of the court." A judge is an officer of the court, as well as are all attorneys. A state judge is a state judicial officer, paid by the State to act impartially and lawfully. A federal judge is a federal judicial officer, paid by the federal government to act impartially and lawfully. State and federal attorneys fall into the same general category and must meet the same requirements. A judge is not the court. People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980).
54. "Fraud on the court." Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in "fraud upon the court". In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. … It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been deliberately and directly corrupted," it’s fraud on the Court.
55. "Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final."
What effect does an act of "fraud upon the court" have upon the court proceeding "Fraud upon the court" makes void the orders and judgments of that court. It is also clear and well-settled Illinois law that any attempt to commit "fraud upon the court" vitiates the entire proceeding.
The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) ("The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions."); Allen F. Moore v. Stanley F. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) ("The maxim that fraud vitiates every transaction into which it enters …"); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) ("It is axiomatic that fraud vitiates everything."); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Thomas Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).
56. Under State and Federal law, when any officer of the court has committed "fraud upon the court", the orders and judgment of that court are void, of no legal force or effect.
57. The courts both on the state and federal level should not dismiss a case just because Pro se Plaintiff didn’t articulate itself well enough or failure to cite proper legal authority.
Pro se litigants’ court submissions are to be construed liberally and held to less stringent standards than submissions of lawyers. If the court can reasonably read the submissions, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant’s unfamiliarity with rule requirements.
Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)(holding pro se petition cannot be held to same standard as pleadings drafted by attorneys); Then v. I.N.S., 58 F.Supp.2d 422, 429 (D.N.J. 1999).
Grounds for Relief From Judgment:
58. Plaintiff’s Rule 2.612 Relief From Judgment or Order Motion is founded on the following grounds: MCR. 2.612(C) (3) to set aside a judgment for fraud on the court.
59. As stated in Grubb Creek Action Committee v Shiawassee Co Drain Comm‘r, 218 Mich App 665, 668-669; 554 NW2d 612 (1996):
Jurisdiction is the power of a court to act and the authority of a court to hear and determine a case. A court’s subject-matter jurisdiction is determined only by reference to the allegations listed in the complaint. If it is apparent from the allegations that the matter alleged is within the class of cases with regard to which the court has the power to act, then subject-matter jurisdiction exists. Any subsequent error in the proceedings amounts to error in the exercise of jurisdiction. When a court lacks subject-matter jurisdiction, the court’s acts and proceedings are of no force and validity.
An order entered without subject-matter jurisdiction may be challenged collaterally and directly. Error in the exercise of jurisdiction may be challenged only on direct appeal. The erroneous exercise of jurisdiction does not void a court’s jurisdiction as does the lack of subject-matter jurisdiction. However, error in the exercise of jurisdiction can result in the setting aside of the judgment. [Internal citations omitted.]
Independent Action in Equity
59. Regarding independent actions in equity, the Third Circuit has stated that: “The indispensable elements of such a cause of action are (1) a judgment which ought not, in equity and good conscience, be enforced; (2) a good defense to the alleged cause of action on which judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law.”
In re Machne Israel, Inc., 48 F. App’x 859, 863 n.2 (3d Cir. 2002)
(quoting Nat’l Sur. Co. of N.Y. v. State Bank of Humboldt, 120 F. 593, 599 (8th Cir. 1903)). “[A]n independent equitable action for relief from judgment may only be employed to prevent manifest injustice.” Id. at 863. Thus, an independent action “must, if Rule 60(b) is to be interpreted as a coherent whole, be reserved for those cases of ‘injustices which, in certain instances, are deemed sufficiently gross to demand a departure’ from rigid adherence to the doctrine of res judicata.” United States v. Beggerly, 524 U.S. 38, 46 (1998) (citing Hazel-Atlas, 322 U.S. at 244). In other words, independent actions in equity must be reserved for extraordinary circumstances. See id.
60. According to the Supreme Court, the requisite grave miscarriage of justice occurred in Marshall v. Holmes, 141 U.S. 589 (1891), when “the plaintiff alleged that judgment had been taken against her in the underlying action as a result of a forged document.” Beggerly, 524 U.S. at 47. On the other hand, the Court explained that the requisite grave miscarriage of justice did not occur in Beggerly, where the “[r]espondents allege[d] only that the United States failed to thoroughly search its [title] records and make full disclosure to the Court.” Id. (quotation marks and citation omitted).
61. By Order of the Hon. Judge William H. Yohn Jr. stated in UNITED STATES OF AMERICA v. ROBERT BURKE, Defendant. CRIMINAL ACTION NO. 92-268-1:
“Finally, I determined that the “inconsequential nature” of the claim was emphasized by Burke’s decision to wait more than eleven years after his trial to bring this information forward, even though Kates had shared the alleged fraud information with Burke and was interviewed by Burke’s investigator prior to Burke’s trial. Thus, I concluded “that if there really was a danger of fraud upon the court, Burke should (and presumably would) have pressed the issue at his trial or in one of his two previous collateral proceedings.” Id.
62. The Third Circuit affirmed the denial of Burke’s Hazel-Atlas Action on August 1, 2006. Burke, a federal prisoner and formerly a lawyer, is deemed to be no stranger to the court. A jury found him guilty of the murder of federal witness Donna Willard and of related charges on August 26, 1993: ..
Untied States v. Burke
, 193 F. App’x 143 (3d Cir. 2006) (per curiam). The Third Circuit determined that the appeal did not present a substantial question and concluded: The District Court . . . correctly concluded that Burke failed to establish by clear and convincing evidence that the prosecution intentionally misled the court. None of the four new affidavits charges that a prosecuting official had actual knowledge of the falsity of either Louie’s or Gray’s testimony. In fact, only Walter Kates states that the “feds” and the “Government” told Louie to testify against Burke.
63. Unlike Burke, Plaintiff’s instant case has sufficient evidence to implicate the prosecuting officials specifically.
64. The City Attorney not only suppressed scenes from the Store’s video surveillance record. But also suppress the sound. The City deliberately sped-up the video playback to further distort the actual facts of the case.
65. Burke had titled his motion as an attack on the court’s denial of his § 2255 motion, his arguments also focus on what he alleges was fraud that occurred during his trial.
66. Similar to plaintiff in this instant case, Burke in August 27, 2007, filed another motion, which he entitles an “Independent Action for Relief from Order Denying Section 2255 Motion. Burke sought relief pursuant to Hazel-Atlas for a second time and brings an independent action in equity to set aside a fraudulently obtained judgment. No court has addressed the merits of plaintiff’s complaints and he has been denied justice.
67. In an attempt to explain, or aid the court in understanding why the City decided to bring fraudulent criminal charges against plaintiff, one need only to look to the holdings of Heck v. Humphrey (93-6188), 512 U.S. 477 (1994). The Court held:
“In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a §1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus,28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under §1983. Preiser v. Rodriguez, 411 U.S. 475, 494, and Wolff v. McDonnell, 418 U.S. 539, 554, distinguished. The foregoing conclusion follows upon recognition that the common law of torts provides the appropriate starting point for the §1983 inquiry, see Carey v. .Piphus, 435 U.S. 247, 257-258; that the tort of malicious prosecution, which provides the closest analogy to claims of the type considered here, requires the allegation and proof of termination of the prior criminal proceeding in favor of the accused, see, e.g., Carpenter v. Nutter, 59 P. 301; and that this Court has long been concerned that judgments be final and consistent and has been disinclined to expand opportunities for collateral attack on criminal convictions, see, e.g., Parke v. Raley, 506 U. S. ___, ___. Although the issue in cases such as this is not, therefore, the exhaustion of state remedies, the dismissal of Heck’s §1983 action was correct because both courts below found that his damages claims challenged the legality of his conviction. Pp. 3-14. 997 F. 2d 355, affirmed.” , Scalia, J., who delivered the opinion of the Court, , in which Rehnquist, C. J., and Kennedy, Thomas, and Ginsburg, JJ., joined. Thomas, J., filed a concurring opinion. Souter, J., filed an opinion concurring in the judgment, in which Blackmun, Stevens, and O’Connor, JJ., joined.
68. The City sought to invoke this rule of law by use of perjury and other false evidence in open court, against Plaintiff, so that plaintiff would be unable to bring any action for relief for the vicious physical assault he sustained at the hands of the police of the Port Huron‘s police department. And other crimes.
69. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final……" Kenner v. Comm’r of Internal Revenue, 387 F.2d 689, 691 (7th Cir. 1968).
Presentment Of Claim Of Actual Innocence
70. Plaintiff contends that he is actually innocence of the crime for which he was convicted. That the City Attorney in his zeal to win and convict, manipulate and intimidated witnesses into false testimony, suppressed evidence that impeaches the prosecution’s own witnesses, evidence that goes to the Plaintiff’s innocence and defense.
71. The chances of an accurate jury verdict were greatly diminished by misconduct. This type of "actual innocence claim" is not a substantive claim in itself, but is a "gateway" through which a petitioner must pass to obtain review of a defaulted substantive claims, this is in keeping with the Third Circuit’s holdings: “The indispensable elements of such a cause of action*** (4) the absence of fault or negligence on the part of the defendant;” Plaintiff’s claim of innocence is not a basis for his relief; instead his actual relief would be based on the validity of his Fraud on the Court claim.
72. Mainly, at the direction of the City’s Attorney, Kenaya committed the act of lying, making verifiably false statements on a material matter under oath, in a court of law and in other various sworn statements in writing.
73. Perjury is a crime because as a witness Kenaya had sworn to tell the truth and, for the credibility of the court, witness testimony must be relied upon as being truthful. Perjury by all standards is considered a serious offense as it was used in this case by the City Attorney, to usurp the power of the courts. Thus, fraud upon the Court resulting in a miscarriages of justice.
74. MCR. 2.612(C) subrule (3) does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding; or to set aside a judgment for fraud on the court.
75. Kenaya’s testimony and statements were not interpretations of facts, or inaccurate statements unwittingly made. Individuals may have honest but mistaken beliefs about certain facts or their recollection may be inaccurate, but not in this case. Like most other crimes in the common law system, to be convicted of perjury one must have had the mens rea to commit the act, and to have actually committed the actus reus, as the City, Kenaya and the Port Huron Police has.
76. Kenaya deliberately and willfully gave false, misleading, and incomplete testimony under oath deliberately perjuring himself. Plaintiff asserts that the information constituted a governmental concession that Kenaya engaged in the criminal conduct of perjury, obstruction of justice, during his appearance as a government witness at plaintiff’s trial.
77. Plaintiff further asserts that by refusing to investigate and bring Kenaya to trial on these specific charges, the City has effectively conceded that all of the evidence it needed to establish Kenaya’s lies at trial was in the files of City and other government agencies well before the City called him to testify.
78. Plaintiff request the court to order the City to respond to these allegations, and in particular to Plaintiff’s allegation that before Kenaya testified, the City was in possession of, and deliberately failed to produce to the defense, the information needed to .
expose the falsehoods Kenaya promulgated from the witness stand. In essence, the Court should Direct the City to answer the now famous questions: “What did the city attorneys know [about Kenaya’s lies], and when did they know it.” The City’s response should answer those crucial questions…
79. Plaintiff submit that the 72 District Court was presented two alternatives. The first was to reverse plaintiff’s convictions in Case ID: 07P00808OM based on the undisputable conclusion that his conviction is obtained by the jury’s reliance on perjured trial testimony and false documents; that result could have been reached without addressing the issue of whether the City knew Kenaya intended to commit perjury and obstruction of justice before the prosecutors put him on the stand.
80. Setting aside this tainted conviction is imperative if the integrity of the state and federal judicial system is to be maintained against Fraud upon the Court
81. That when Plaintiff’s conviction is obtained by the City presentation of testimony known to that Court Officer to have been perjured, due process is violated. The clause “cannot be deemed to be satisfied by mere notice and hearing, where, as here, the City has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving Plaintiff of liberty and other redress through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance is as inconsistent with the rudimentary demands of justice as is thee obtaining of a like result by intimidation.”
82. Plaintiff maintains its primary objective is to enforce and hereby uphold the integrity of the state and federal statutes and regulations governing the rudimentary demands of justice
83. As a direct and proximate result of Defendants’ unlawful actions, Plaintiff has sustained severe physical injuries, pain and other damages including, but not limited to, loss of earnings and earning capacity; loss of career opportunities; humiliation and embarrassment; mental and emotional distress; depression and loss of the ordinary pleasures of everyday life, including the right to pursue other lawful redress; gainful occupation of choice, stroke-like symptoms, high blood pressure, anxiety, hair loss, and fear for the safety of himself and family;
, Plaintiff, Arthur L. Lockett, hereby moves this Honorable Court in the interest of the integrity of the judicial system to set aside his fraudulently obtained conviction; and, prays the Court enter judgment in his favor, in addition thereto: compensatory damages in the amount in excess of Ten Million Dollars. Treble in punitive damages, and any other relief the Court deems appropriate, just and proper…to compensate for all economic losses, and all non-economic losses, and all attorney fees awardable under the statutes;
810) 689 – 3424 (Cell)
The Improper Grant Of Summary Disposition Was
Properly Set Aside Pursuant To MCR 2.612. Judges Gage and Kelly at the Court of Appeals independently focused on subsections of MCR 2.612(A)and (C) to relieve Plaintiffs from the erroneous order granting summary disposition. Those subsections provide in relevant part:
(A) Clerical Mistakes.
(1) Clerical mistakes in judgments, orders, or other parts of the record and errors arising form oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party and after notice, if the court orders it.
(C) Grounds for Relief From Judgment.
(1) On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds: (a) Mistake, inadvertence, surprise, or excusable neglect. (c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. (f) Any other reason justifying relief from the operation of the judgment. (3) This subrule does not limit the power of a court… to set aside a judgment for fraud on the court." MCR 2.612 provides a series of grounds for relief from judgment where compelling circumstances require such relief in order to avoid serious injustice. The majority at the Court of Appeals recognized that the trial court had to be reversed here to avoid serious injustice with Judge Gage finding elements of mistake, fraud, or unconscionable advantage and Judge Kelly reaching the same conclusion by finding a clerical error because the trial court’s order failed to accurately reflect what occurred on the record. The majority’s opinion, whether characterized as a reversal of summary disposition or as relief from judgment, was correct and does not warrant plenary Supreme Court review.