Sheila Terese, Wallen, Sui Juris c/o General Delivery Arivaca [zip code exempt] ARIZONA STATE In Propria Persona Under Protest, Necessity, and by Special Visitation Only UNITED STATES DISTRICT COURT JUDICIAL DISTRICT OF ARIZONA UNITED STATES OF AMERICA, ) Case No. 95-484-WDB ) Plaintiff, ) MOTION TO DISMISS ) WITH PREJUDICE v. ) FOR INEFFECTIVE ASSISTANCE ) OF COUNSEL Sheila Terese, Wallen, ) ) Defendant. ) ________________________________) COMES NOW Sheila Terese, Wallen, Sui Juris, Citizen of Arizona state and Defendant in the above entitled matter (hereinafter "Defendant"), to move this honorable Court to dismiss the instant action with prejudice on grounds of ineffective assistance of Counsel, i.e. the licensed bar member appointed by the Court to represent the Defendant (hereinafter the "Bar Member"). Defendant hereby incorporates by reference to two previously filed briefs entitled: (1) NOTICE AND DEMAND FOR RIGHT TO ENJOY THE ASSISTANCE OF COUNSEL OF CHOICE and (2) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S CHALLENGE TO JURISDICTION FOR VIOLATING THE FUNDAMENTAL GUARANTEE OF EFFECTIVE ASSISTANCE OF COUNSEL: Sixth Amendment, as if they were set forth fully herein. See Haynes v. Kerner, 404 U.S. 519. Motion to Dismiss for Ineffective Assistance of Counsel: Page 1 of 7 This Court will please take formal judicial notice of the fact that the Bar Member failed to appear on Defendant's behalf during a scheduled status conference. The U.S. Supreme Court authority in Johnson v. Zerbst, 304 U.S. 458, 468 (1938), has made it very clear that it is the obligation of this Court to ensure that effective assistance of Counsel is available to a criminal defendant at every point of all criminal proceedings. In the event that effective assistance of Counsel is not available to a criminal defendant at every point of a criminal proceeding, even if only for a moment, then the Court is ousted of jurisdiction to proceed. Quoting, "If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed." Johnson v. Zerbst supra. See Exhibit "A" attached hereto (Status Conference). Furthermore, during the evidentiary hearing to determine whether or not the search and seizure in the instant case were lawful in the first instance, the Prosecutor questioned an alleged government agent as to why no search warrant had been obtained. The alleged government agent responded by saying that he (the government agent) had petitioned a United States Magistrate for a lawful search warrant, and said Magistrate refused to issue a lawful search warrant because, in the Magistrate's opinion, there was not probable cause to issue said warrant because there was insufficient evidence to support same. See attached Exhibit "B," attached hereto (Transcript of Evidentiary Hearing). Nevertheless, the alleged government agent did proceed, with several accomplices, to conduct an unlawful search and seizure, without any lawful warrant having been obtained by any of these alleged government agents. See also Defendant's AFFIDAVIT DOCUMENTING CIRCUMSTANCES SURROUNDING ARREST: 28 U.S.C. 1746(1), already lodged, but not filed, in the instant case, pursuant to this Court's Order dated July 17, 1996. Defendant hereby formally objects to said Order, for the reasons stated herein. Motion to Dismiss for Ineffective Assistance of Counsel: Page 2 of 7 The Bar Member failed diligently to pursue this blatant violation of a fundamental Right guaranteed by the Fourth Amendment in the Constitution for the United States of America, as lawfully amended (hereinafter "U.S. Constitution"). Under the International Covenant on Civil and Political Rights, and under the Universal Declaration of Human Rights, the United States (federal government) is a signatory under affirmative obligations, both legal and moral, to provide effective judicial remedies for violations of fundamental Rights, even when those violations were committed by persons acting in their official capacities, and also to develop the possibilities of effective judicial remedies. These treaties are supreme Law pursuant to the Supremacy Clause in the U.S. Constitution. The Bar Member is an officer of this Court and, as such, is legally bound by these two treaties, because they bind all branches of the federal government, specifically including the federal judiciary. See 42 U.S.C. 1986. His failure to assert Defendant's fundamental Immunity against unreasonable search and seizure constitutes ineffective assistance of Counsel, and clear and present violation of said treaties. Couple this with the fact that neither the Bar Member nor the Defendant was present at the status conference in question, leaving Defendant entirely bereft of any representation or Counsel whatsoever. The Court was denied jurisdiction to proceed with that status conference, and yet it did so anyway. Motion to Dismiss for Ineffective Assistance of Counsel: Page 3 of 7 In the event that this Court should refuse Defendant's NOTICE AND DEMAND FOR THE RIGHT TO ENJOY THE ASSISTANCE OF COUNSEL OF CHOICE and accompanying documents, Defendant hereby places all interested parties on formal notice of Her intent to appeal this case immediately to the United States Court of Appeals for the Ninth Circuit, on grounds of Fourth and Sixth Amendment violations, on grounds of arbitrary and capricious judgments issued by this Court in the instant case, specifically the Order dated July 17, 1996, in which the presiding Judge ruled that there was nothing of any legal significance which would support an attack on the constitutional infirmity of 28 U.S.C. 1865(b)(1), and on other grounds not mentioned herein but already raised in the formal Court record. Moreover, said Order held that an Affidavit is hearsay not subject to cross-examination. On the contrary, it is a basic maxim of commercial law that an affidavit is the highest form of truth and must be answered by affidavit, point-for-point. Furthermore, said Order fails the test of reductio ad absurdum. Defendant's challenge to the federal jury selection statute was supported by a separate affidavit which contained numerous, standing decisions of the United States Supreme Court. Evidently, this Court has ruled that the decisions cited therein are also hearsay, and have no legal significance. This is an absurd result, which places the Defendant in an impossible situation (lex non cogit impossibilia), because that very same U.S. Supreme Court has ruled that no one should be punished for relying upon their decisions. See U.S. v. Mason, 412 U.S. 391, 399-400 (1973). Motion to Dismiss for Ineffective Assistance of Counsel: Page 4 of 7 If the doctrine of stare decisis has any meaning at all, it requires that People in their everyday affairs be able to rely upon decisions of the U.S. Supreme Court and not be needlessly penalized for such reliance. See U.S. v. Mason supra. It will be an evil day for American liberty if the theory of a government outside of the supreme Law of the Land finds lodgment in our constitutional jurisprudence. "No higher duty rests upon this Court than to exert its full authority to prevent all violation of the principles of the U.S. Constitution." Downes v. Bidwell, 182 U.S. 244 (1901), Harlan dissenting. Finally, Defendant cannot proceed to trial without the benefit of Her discovery efforts, including but not limited to several Freedom of Information Act ("FOIA") requests already made but not received, and without the benefit of final review of Her challenge to the federal jury selection statutes. The problem which She raised with the federal grand jury that issued the indictment against Her also exists with the federal procedure for selecting petit (trial) jury candidates. Specifically, there is class discrimination in all jury selection processes, which discrimination constitutes a violation of the fundamental Rights of the Defendant. Moreover, said grand jury was not lawfully convened, and it was denied facts which now show that the alleged government agents proceeded without any lawful warrants to search and seize Defendant's private property. Motion to Dismiss for Ineffective Assistance of Counsel: Page 5 of 7 RELIEF SOUGHT Wherefore, Defendant moves this honorable Court for an immediate dismissal with prejudice, on grounds of violating the Fourth, Sixth, and Tenth Amendments in the U.S. Constitution. In the alternative, Defendant places all interested parties on formal notice of Her immediate appeal to the Ninth Circuit Court of Appeals on grounds of violations of Her fundamental Rights, contrary to the Bill of Rights and two international treaties which are all supreme Law pursuant to the Supremacy Clause. Executed on July 22, 1996 /s/ Sheila Wallen Sheila Terese, Wallen, Sui Juris Citizen of Arizona state All Rights Reserved without Prejudice /s/ Paul Andrew Mitchell Paul Andrew, Mitchell, B.A., M.S. Citizen of Arizona state and Counselor at Law and federal witness All Rights Reserved without Prejudice Motion to Dismiss for Ineffective Assistance of Counsel: Page 6 of 7 PROOF OF SERVICE I, Sheila Terese, Wallen, Sui Juris, hereby certify, under penalty of perjury, under the laws of the United States of America, without the United States, that I am at least 18 years of age and a Citizen of one of the United States of America, and that I personally served the following document: MOTION TO DISMISS WITH PREJUDICE FOR INEFFECTIVE ASSISTANCE OF COUNSEL by placing said document in first class U.S. Mail, with postage prepaid and properly addressed to the following individuals: Office of the United States Attorney [hand-delivered] 110 South Church Avenue, Suite 8310 Tucson [85701] ARIZONA STATE Attorney General Department of Justice 10th and Constitution, N.W. Washington DISTRICT OF COLUMBIA Solicitor General Department of Justice 10th and Constitution, N.W. Washington DISTRICT OF COLUMBIA Dated: July 22, 1996 /s/ Sheila Wallen ________________________________________ Sheila Terese, Wallen, Citizen of Arizona state All Rights Reserved without Prejudice Motion to Dismiss for Ineffective Assistance of Counsel: Page 7 of 7 # # #
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U.S.A. v. Wallen