No. 18-5603

In Re Mark Kilmartin

Lower Court: N/A
Docketed: 2018-08-16
Status: Denied
Type: IFP
IFP
Tags: criminal-procedure double-jeopardy due-process equal-protection fourteenth-amendment judicial-misconduct jury-trial sentencing structural-error
Latest Conference: 2018-09-24
Question Presented (from Petition)

WHETHER A CRIMINAL DEFENDANT CAN BE CONVICTED AND SENTENCED
TO LIFE FOR A SEPARATE, NEW AND DISTINCT CRIME WITH WHICH HE HAD
NOT BEEN ON TRIAL FOR AND WAS NOT A LESSER INCLUDED CRIME? CAN THE
PETITIONER BE TRIED FOR THE CRIME OF SODOMY UNDER MISSOURI STATUTE
§566.060 SECTION 3, BUT CONVICTED OF FORCIBLE SODOMY UNDER §566.060
SECTION 1 RSMO A SEPARATE, NEW AND DISTINCT CRIME WITHOUT A JURY
TRIAL FOR THE NEW CRIME? IS THIS EXTRAORDINARY ERROR A STRUCTURAL
DEFECT OR STRUCTURAL ERROR THAT CONSTITUTIONALLY REQUIRES AN AUTOMATIC
REVERSAL? IS PETITIONER ENTITLED TO A JURY TRIAL FOR THE CRIME WITH
WHICH HE HAS NOW BEEN CONVICTED AND SENTENCED TO LIFE FOR THE PAST
MORE THEN 27 YEARS NOW WITHOUT A JURY TRIAL?

WHETHER PETITIONER CAN BE CONVICTED AND SENTENCED TO LIFE
IMPRISONMENT WITHOUT NOTICE OR INFORMED OF THE NATURE AND CAUSE OF
THE ACCUSATION SO AS TO ALLOW PETITIONER THE OPPORTUNITY TO ADEQUATELY
PREPARE A DEFENSE AND TO NOT BE SUBJECT TO TWICE BEING PLACED IN
JEOPARDY FOR THE SAME OFFENSE IN THE FUTURE? CAN PETITIONER BE TRIED
AND CHARGED WITH ONE CRIME BUT CONVICTED OF ANOTHER WITHOUT A SEPARATE
JURY TRIAL FOR THE NEW CRIME? AND IS CONVICTING AND SENTENCING
PETITIONER TO LIFE IN PRISON WITHOUT TRIAL OR CHARGE FUNDAMENTALLY
UNFAIR? AND DOES IT CONSTITUTE A MANIFEST INJUSTICE AND A FUNDAMENTAL
MISCARRIAGE OF JUSTICE?

WHETHER PETITIONER WAS DENIED HIS FOURTEENTH AMENDMENT RIGHTS
TO SAFEGUARDS GUARANTEED BY DUE PROCESS OF LAW AND EQUAL PROTECTION
OF THE LAW, SAFEGUARDS ESSENTIAL TO LIBERTY IN A GOVERNMENT DEDICATED
TO JUSTICE UNDER LAW? INCLUDING HIS RIGHT TO EFFECTIVE ASSISTANCE
OF COUNSEL, TRIAL, APPELLATE AND POST-CONVICTION RELIEF MOTIONS?

WHETHER AN APPEALS COURT CAN INVENT, EXPAND AND RETROACTIVELY
APPLY A JUDICIAL CONSTUCTION OF A CRIMINAL STATUTE IN AN UNEXPECTED
AND INDEFENSIBLE MANNER BY REFERENCE TO LAW WHICH HAD BEEN EXPRESSED
PRIOR TO THE CONDUCT IN ISSUE AND WAS THEN RETROACTIVELY APPLIED TO
PETITIONER'S ALLEGED CONDUCT? DID THIS VIOLATE PETITIONER'S DUE PROCESS
RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND DOES IT CONSTITUTE A MANIFEST INJUSTICE OR A FUNDAMENTAL
MISCARRIAGE OF JUSTICE AND MAKING HIS CONVICTION AND LIFE SENTENCE
ILLEGAL?

DID IT VIOLATE PETITIONER'S RIGHT TO DUE PROCESS AND EQUAL
PROTECTION OF THE LAW WHEN THE MISSOURI COURT OF APPEALS ENGAGED IN
UNLAWFUL AND JUDICIAL MISCONDUCT WHEN THERE WAS A LACK OF FORCIBLE
COMPULSION EVIDENCE TO INVENT AND MAKE UP A COMPLETELY FICTIONAL STORY
LINE IN THEIR OPINION NOT SUPPORTED BY THE RECORD, TRANSCRIPTS OR
ANY EVIDENCE AT TRIAL

Question Presented (AI Summary)

Whether a criminal defendant can be convicted and sentenced to life for a separate, new and distinct crime without a jury trial

Docket Entries

2018-10-01
Petition DENIED.
2018-08-23
DISTRIBUTED for Conference of 9/24/2018.
2018-07-10
Petition for writ of habeas corpus and motion for leave to proceed in forma pauperis filed.

Attorneys

Mark Kilmartin
Mark Kilmartin — Petitioner