OCTOBER 15, 2022
Before I begin this latest update, I must exclaim "prison sucks!" Having got that out, let
me tease you with the issues that I have been dealing with since my July 2022 update. For starters, I have
been continuing in my
quest for exoneration in the courts by seeking postconviction discovery which will help me in my habeas
efforts. Also, I have been litigating with passion and verve against the CDCR and its policies and
procedures which negatively impact
me. All told, I have been busy, so let's dig in.
By September 9th of last month, I had received the institutional denial of my 602 grievance related to my mail to Dateline NBC being withheld from mailing. And it was a typically crazy denial. I was told that according to 15 CCR § 3138(b), "[], unless your correspondence is to the courts or the Attorney General's Office, you must provide the necessary amount of postage to send out correspondence to NBC Dateline."
The problem is and was, 15 CCR § 3138(b) actually states: "Except as provided in subsection 3138(h) for mail to the courts or to the Attorney General, indigent inmates may request to mail any type of correspondence that weighs more than one ounce. Indigent inmates must relinquish the appropriate number of indigent envelopes to either their assigned Correctional Counselor or housing unit staff with the item to be mailed. If the item to be mailed weighs more than five ounces, the indigent inmate must relinquish all five indigent envelopes."
Where it really became tricky between me and the mailroom is where custody staff decided to help me. And while I appreciated the effort to help me, ultimately, I was unable to go along with their program. Their program consisted of them giving me dozens of envelopes so that I could give the mailroom large volumes of envelopes in order to facilitate my mailings. Nobody ever explained to me why I was being forced to cough up 32 envelopes for a letter that could not exceed 13 ounces if it were to be legally mailed per 15 CCR § 3134(a)(11).
The main reason I could not go along with the program was that I was already suing the Salinas Valley State Prison mailroom for doing the same thing back in 2020. I have had to fight tooth and nail over this issue to get to where I am at in my state tort case and thus I cannot go along with their "program." In fact, I believe their program should go along with me.
Now as for my letter to Dateline NBC, I got it sent by giving the mailroom an additional 27 envelopes which were given to me by custody staff. Dateline NBC never replied though, despite all my efforts.
More important than all my prison issues would be my next habeas petition. I am almost ready to start typing that massive document which I truly believe will set me free. I have tried many things over the years, most of which involved ineffective assistance of counsel to some degree or another. I am still making that claim, but I have wrapped it up with structural errors which should eliminate the court's ability to procedurally bar me and thus force the court to consider the merits of my claims themselves.
Of course, this is a tough row to hoe. However, I have spent a bunch of time in the law library since I came to prison May 3rd, 2010, and on the touchscreen kiosk, and I have talked to a lot of people. I am acutely aware of today's habeas jurisprudence. Especially in light of Shinn v. Ramirez 2022 U.S. LEXIS 2557; and Brown v. Davenport 2022 U.S. LEXIS 2096. Based upon the hurdles imposed upon me by the Antiterrorism and Effective Death-Penalty Act of 1996, and based upon the cases listed above, I have determined that I must present all of my factual claims to the superior court which found me guilty. Under comity principles, there is no way a federal court is going to interfere with a properly obtained conviction from a state court. In fact, the state court may erect procedural bars which effectively block persons from having the merits of their claims reviewed.
This fact has taken me about 12 years to fully figure out, and then when you consider Shinn and Brown v. Davenport, well, it is plain that I am in no-man's-land what with the 6-3 conservative majority in the Supreme Court of the United States.
Therefore, in order to secure my release from prison, I will have to dig deep, and convince the Mono County Superior Court that my conviction in its court was illegal. Tough row to hoe. I have been able to get an independent judge assigned, The Honorable Burt Pines, and I am seeking to disqualify the Mono County District Attorney's Office as well. The main issue which I have perceived from my last two hearings related to my disqualification motions is that Judge Pines has corrected my statements made in open court that Mr. Graham (the Deputy DA) has misrepresented things to the court in my presence. I believe that Judge Pines is a fair judge yet I do still have some concerns that he is basing his decisions on his own personal experiences and not on the reality of the moment. I get the distinct impression that the judge is minimizing my claims.
Personally, I like Mr. Graham, he is okay. That being said, professionally, he did me wrong and that is plain and simple, it is fact not supposition. Therefore, I am very hopeful, despite the odds, that I will overcome the barriers blocking me in the courts. Remember, the only difference between fact and fiction is that fiction must make sense.
As for my California Penal Code § 1054.9 discovery request, I have discovered additional materials which I will need before I can file my petition. In the prelim, both Martha and Chelsea discussed a meeting with Mr. Graham prior to their testimony. I have sought notes or reports related to those meetings and Mr. Graham says none exist. That got me to thinking. If Alex Ellis was there at the meetings, where are her notes? The one certain thing about Alex Ellis is that she takes notes at every encounter she has with anybody. I have hundreds of pages of her notes released to Ms. Hankel by the court after an in-camera review. Of note is the fact, recently discovered, there are no handwritten notes taken by Alex Ellis in the released materials. I am not sure why that is but I am sure I will get to the bottom of that issue.
My contention is either the notes exist, or that Ms. Ellis was not at the meetings. Regardless, the overarching implication is obvious, Mr. Graham was the investigator in this criminal action and he was aware of the contradictions in the girls' statements to various authorities and therefore Mr. Graham knowingly presented false evidence to the jury. There is no escaping this reality even under the assumption that determining truth is the province of the jury because if the jury believes one set of facts, it cannot also believe the other competing set of facts.
It is unreasonable to expect a jury to decide a witness is telling the truth all the while the witness is lying. This defeats fundamental fairness and the requirement that a prosecutor pursue the interests of justice, not a win. I believe that Mr. Graham took a win at all costs approach and that ultimately, the truth shall set me free.
Now as for prison life at Salinas Valley State Prison, it is terrible. Specifically, there are what is being called "staff shortages" which is code for: there is no program today. Program, or programming, is what activities are called in the CDCR. They can be school, yard, dayroom, law library, church, or other essential activities. The problem is that the CDCR does not consider these activities to be essential. In short, under the guise of "safety and security of the institution," we can even be denied showers. Sure, the CDCR will say they make every effort to (and you fill in the blank), but in all reality, the California Correctional Peace Officer's Association (CCPOA) and their agreement with the CDCR, which is called a Memorandum of Understanding (MOU), dictates the activities of the prisoners. The rights of a prisoner are irrelevant to this MOU. Prisoner rights can be legally trampled based on a security need.
So then what dictates a security need? According to the CDCR, they have a policy re: security needs and the use of modified programming but they keep this hidden in the Departmental Operations Manual (DOM) in an inaccessible confidential section labeled 55015. So while I could be considered a disgruntled customer of the CDCR, the fact remains, a prisoner needs activities by which they are able to better themselves while in prison. This seems a reasonable goal since people must not be a burden on, nor a threat to the safety and security of all Californians upon release. Yet the prison says we can't have enough staff. The staff that are showing up for work say that they need more money or they may find more lucrative opportunities outside of the CDCR. I have filed 602s and I have exhausted these very issues. The Governor and the CDCR Secretary are responsible for the incentivization of staff, whether through recruitment or retention, and money with benefits are their tools.
Somebody told me to "chase the money" in relation to my upcoming article, "Mental Health in the CDCR", and that extends to this analysis of staff shortages within the CDCR. Simply put, there is no shortage of money, just will. In fact, if the safety and security of all Californians is the real goal of government itself, then the correctional system would seem to be an important priority. Moreover, because police officers on the streets are unable to protect people contemporaneously to their needs, they have been relegated to report taking, investigations, and ultimately retribution agents with no legal requirement placed upon them to get out in front and protect people from having crimes perpetuated upon them. What exactly is the government's role in all of this?
Of course, the answer is simple, the CDCR is a corrections driven entity (see my article "Rehabilitation in the CDCR") and as such their goal is to punish and correct. This is a determined behaviorist approach which forces appropriate behavior. Conversely, a brain-based naturalist believes that by incentivizing a person, the appropriate behavior will become a natural consequence of the incentivization. Works for the officers and it works for the prisoners too. Give something = get something.
Therefore, when the CDCR mentions safety and security, do they come at the problem as a determined behaviorist, or as a brain-based naturalist? Only you can decide. Only you can make a difference.
Meanwhile, I am still suing the CDCR about their policy to house protective custody prisoners together with general population inmates in Non-Designated Programming Facilities (NDPF). These are also referred to as 50/50 yards. In this case, I was deposed but during the session, a conflict arose when I was asked about my evidence which shows I will be attacked if I am sent to a NDPF yard. It seemed that the Deputy Attorney General was stalling before sending me my discovery documents from the CDCR which show exactly who is getting attacked on NDPF yards. I called him on that and so our deposition session was suspended pending a meet and confer to be scheduled at some later date. I have been waiting for the discovery documents since August 9, 2022, which is the date they were due to be given to me but they have not. Stay tuned. I did hear on the grapevine that a superior court judge has issued an injunction which is blocking level 1 and 2 transfers at this time. Let me know what you know!
As for my upcoming updates to MichaelJayHarris.com, I am really close to finishing "Mental Health in the CDCR." I am less close to completing "You're in Prison" but I am still very passionate about it. I have a court hearing on November 10, 2022 related to the disqualification of the Mono County District Attorney's Office.
The District Attorney's Office has sent me the transcripts from the 5/16 and 5/27/2008 interviews with Chelsea and Martha respectively. In those interviews, the girls squarely point to Alex Ellis as being the recipient of their initial allegations. Also, the girls specifically explained that their friends knew nothing about their allegations of abuse. Nothing. So when I submit my habeas petition, rest assured that I will be pushing the issue of why they testified at my trial, and most importantly, why did they lie.
So in the end, I am extremely busy. I have all that I need to file my latest and greatest habeas petition ever, and I intend to do so ASAP. That's all for now. Take Care.
By September 9th of last month, I had received the institutional denial of my 602 grievance related to my mail to Dateline NBC being withheld from mailing. And it was a typically crazy denial. I was told that according to 15 CCR § 3138(b), "[], unless your correspondence is to the courts or the Attorney General's Office, you must provide the necessary amount of postage to send out correspondence to NBC Dateline."
The problem is and was, 15 CCR § 3138(b) actually states: "Except as provided in subsection 3138(h) for mail to the courts or to the Attorney General, indigent inmates may request to mail any type of correspondence that weighs more than one ounce. Indigent inmates must relinquish the appropriate number of indigent envelopes to either their assigned Correctional Counselor or housing unit staff with the item to be mailed. If the item to be mailed weighs more than five ounces, the indigent inmate must relinquish all five indigent envelopes."
Where it really became tricky between me and the mailroom is where custody staff decided to help me. And while I appreciated the effort to help me, ultimately, I was unable to go along with their program. Their program consisted of them giving me dozens of envelopes so that I could give the mailroom large volumes of envelopes in order to facilitate my mailings. Nobody ever explained to me why I was being forced to cough up 32 envelopes for a letter that could not exceed 13 ounces if it were to be legally mailed per 15 CCR § 3134(a)(11).
The main reason I could not go along with the program was that I was already suing the Salinas Valley State Prison mailroom for doing the same thing back in 2020. I have had to fight tooth and nail over this issue to get to where I am at in my state tort case and thus I cannot go along with their "program." In fact, I believe their program should go along with me.
Now as for my letter to Dateline NBC, I got it sent by giving the mailroom an additional 27 envelopes which were given to me by custody staff. Dateline NBC never replied though, despite all my efforts.
More important than all my prison issues would be my next habeas petition. I am almost ready to start typing that massive document which I truly believe will set me free. I have tried many things over the years, most of which involved ineffective assistance of counsel to some degree or another. I am still making that claim, but I have wrapped it up with structural errors which should eliminate the court's ability to procedurally bar me and thus force the court to consider the merits of my claims themselves.
Of course, this is a tough row to hoe. However, I have spent a bunch of time in the law library since I came to prison May 3rd, 2010, and on the touchscreen kiosk, and I have talked to a lot of people. I am acutely aware of today's habeas jurisprudence. Especially in light of Shinn v. Ramirez 2022 U.S. LEXIS 2557; and Brown v. Davenport 2022 U.S. LEXIS 2096. Based upon the hurdles imposed upon me by the Antiterrorism and Effective Death-Penalty Act of 1996, and based upon the cases listed above, I have determined that I must present all of my factual claims to the superior court which found me guilty. Under comity principles, there is no way a federal court is going to interfere with a properly obtained conviction from a state court. In fact, the state court may erect procedural bars which effectively block persons from having the merits of their claims reviewed.
This fact has taken me about 12 years to fully figure out, and then when you consider Shinn and Brown v. Davenport, well, it is plain that I am in no-man's-land what with the 6-3 conservative majority in the Supreme Court of the United States.
Therefore, in order to secure my release from prison, I will have to dig deep, and convince the Mono County Superior Court that my conviction in its court was illegal. Tough row to hoe. I have been able to get an independent judge assigned, The Honorable Burt Pines, and I am seeking to disqualify the Mono County District Attorney's Office as well. The main issue which I have perceived from my last two hearings related to my disqualification motions is that Judge Pines has corrected my statements made in open court that Mr. Graham (the Deputy DA) has misrepresented things to the court in my presence. I believe that Judge Pines is a fair judge yet I do still have some concerns that he is basing his decisions on his own personal experiences and not on the reality of the moment. I get the distinct impression that the judge is minimizing my claims.
Personally, I like Mr. Graham, he is okay. That being said, professionally, he did me wrong and that is plain and simple, it is fact not supposition. Therefore, I am very hopeful, despite the odds, that I will overcome the barriers blocking me in the courts. Remember, the only difference between fact and fiction is that fiction must make sense.
As for my California Penal Code § 1054.9 discovery request, I have discovered additional materials which I will need before I can file my petition. In the prelim, both Martha and Chelsea discussed a meeting with Mr. Graham prior to their testimony. I have sought notes or reports related to those meetings and Mr. Graham says none exist. That got me to thinking. If Alex Ellis was there at the meetings, where are her notes? The one certain thing about Alex Ellis is that she takes notes at every encounter she has with anybody. I have hundreds of pages of her notes released to Ms. Hankel by the court after an in-camera review. Of note is the fact, recently discovered, there are no handwritten notes taken by Alex Ellis in the released materials. I am not sure why that is but I am sure I will get to the bottom of that issue.
My contention is either the notes exist, or that Ms. Ellis was not at the meetings. Regardless, the overarching implication is obvious, Mr. Graham was the investigator in this criminal action and he was aware of the contradictions in the girls' statements to various authorities and therefore Mr. Graham knowingly presented false evidence to the jury. There is no escaping this reality even under the assumption that determining truth is the province of the jury because if the jury believes one set of facts, it cannot also believe the other competing set of facts.
It is unreasonable to expect a jury to decide a witness is telling the truth all the while the witness is lying. This defeats fundamental fairness and the requirement that a prosecutor pursue the interests of justice, not a win. I believe that Mr. Graham took a win at all costs approach and that ultimately, the truth shall set me free.
Now as for prison life at Salinas Valley State Prison, it is terrible. Specifically, there are what is being called "staff shortages" which is code for: there is no program today. Program, or programming, is what activities are called in the CDCR. They can be school, yard, dayroom, law library, church, or other essential activities. The problem is that the CDCR does not consider these activities to be essential. In short, under the guise of "safety and security of the institution," we can even be denied showers. Sure, the CDCR will say they make every effort to (and you fill in the blank), but in all reality, the California Correctional Peace Officer's Association (CCPOA) and their agreement with the CDCR, which is called a Memorandum of Understanding (MOU), dictates the activities of the prisoners. The rights of a prisoner are irrelevant to this MOU. Prisoner rights can be legally trampled based on a security need.
So then what dictates a security need? According to the CDCR, they have a policy re: security needs and the use of modified programming but they keep this hidden in the Departmental Operations Manual (DOM) in an inaccessible confidential section labeled 55015. So while I could be considered a disgruntled customer of the CDCR, the fact remains, a prisoner needs activities by which they are able to better themselves while in prison. This seems a reasonable goal since people must not be a burden on, nor a threat to the safety and security of all Californians upon release. Yet the prison says we can't have enough staff. The staff that are showing up for work say that they need more money or they may find more lucrative opportunities outside of the CDCR. I have filed 602s and I have exhausted these very issues. The Governor and the CDCR Secretary are responsible for the incentivization of staff, whether through recruitment or retention, and money with benefits are their tools.
Somebody told me to "chase the money" in relation to my upcoming article, "Mental Health in the CDCR", and that extends to this analysis of staff shortages within the CDCR. Simply put, there is no shortage of money, just will. In fact, if the safety and security of all Californians is the real goal of government itself, then the correctional system would seem to be an important priority. Moreover, because police officers on the streets are unable to protect people contemporaneously to their needs, they have been relegated to report taking, investigations, and ultimately retribution agents with no legal requirement placed upon them to get out in front and protect people from having crimes perpetuated upon them. What exactly is the government's role in all of this?
Of course, the answer is simple, the CDCR is a corrections driven entity (see my article "Rehabilitation in the CDCR") and as such their goal is to punish and correct. This is a determined behaviorist approach which forces appropriate behavior. Conversely, a brain-based naturalist believes that by incentivizing a person, the appropriate behavior will become a natural consequence of the incentivization. Works for the officers and it works for the prisoners too. Give something = get something.
Therefore, when the CDCR mentions safety and security, do they come at the problem as a determined behaviorist, or as a brain-based naturalist? Only you can decide. Only you can make a difference.
Meanwhile, I am still suing the CDCR about their policy to house protective custody prisoners together with general population inmates in Non-Designated Programming Facilities (NDPF). These are also referred to as 50/50 yards. In this case, I was deposed but during the session, a conflict arose when I was asked about my evidence which shows I will be attacked if I am sent to a NDPF yard. It seemed that the Deputy Attorney General was stalling before sending me my discovery documents from the CDCR which show exactly who is getting attacked on NDPF yards. I called him on that and so our deposition session was suspended pending a meet and confer to be scheduled at some later date. I have been waiting for the discovery documents since August 9, 2022, which is the date they were due to be given to me but they have not. Stay tuned. I did hear on the grapevine that a superior court judge has issued an injunction which is blocking level 1 and 2 transfers at this time. Let me know what you know!
As for my upcoming updates to MichaelJayHarris.com, I am really close to finishing "Mental Health in the CDCR." I am less close to completing "You're in Prison" but I am still very passionate about it. I have a court hearing on November 10, 2022 related to the disqualification of the Mono County District Attorney's Office.
The District Attorney's Office has sent me the transcripts from the 5/16 and 5/27/2008 interviews with Chelsea and Martha respectively. In those interviews, the girls squarely point to Alex Ellis as being the recipient of their initial allegations. Also, the girls specifically explained that their friends knew nothing about their allegations of abuse. Nothing. So when I submit my habeas petition, rest assured that I will be pushing the issue of why they testified at my trial, and most importantly, why did they lie.
So in the end, I am extremely busy. I have all that I need to file my latest and greatest habeas petition ever, and I intend to do so ASAP. That's all for now. Take Care.