The State of New Hampshire
CHESHIRE COUNTY SUPERIOR COURT
<<<<< YOUR NAME >>>>>
v.
RICK VANWICKLER, SUPERINTENDANT
CHESHIRE COUNTY DEPARTMENT OF CORRECTIONS
Docket Number _____________________
PETITION for WRIT OF HABEAS CORPUS Re: JOHN SAM DOE
NOW COMES <<<<< your name >>>>> , Petitioner in the above named petition, by special appearance, not submitting to the court's jurisdiction, who hereby petitions this Court for a WRIT OF HABEAS CORPUS to be issued pursuant to the provisions of RSA 534, for JOHN SAM DOE, held at Cheshire County Jail, and to strike/dismiss the complaint filed by Sergeant Eliezer Rivera for lack of standing and jurisdiction.. Mr. DOE is entitled to this relief for several reasons.
A. Mr. Doe has not been sufficiently charged with a crime, therefore he is being unlawfully detained and restrained of his liberty.
There are basic principles to criminal law. There can be no crime or punishment if there is no action; there must be a specific offense. Actus reius: wrong action; an act must have been committed. Mens rea: mental state; there must be intent, there is no crime without intent. Fusion of action and intent: there must be the combination of the two to be considered criminal. There must be harm done; no crime is committed if there is no harm that is legally identifiable. Causation; there must be a causal relationship between the harm and the act that was committed.
I. PLAINTIFF LACKS STANDING.
A) Standing Must Allege Violation of Another's Rights.
1. The foundation for standing is Part 1, Article 1 of the New Hampshire State Constitution: “All men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good.” Standing is required because “courts only adjudicate justiciable controversies.” United States v. Interstate Commerce Commission, 337 US 426, 430.
2. To have standing, a plaintiff must allege the violation of a legal right. The plaintiff, Sergeant Eliezer Rivera, has not alleged the violation of a legal right. Therefore, there is no standing to complain.
B. Standing requires damage.
3. Standing requires the violation of a legal right that causes damage “A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984) and:
a. “In evaluating whether a party has standing to sue, we focus on whether the plaintiff suffered a legal injury against which the law was designed to protect.” Roberts v. General Motors Corp., 643 A.2d 956, 958 (N.H. 1994).
b. "In evaluating whether a party has standing to sue, we focus on whether the plaintiff suffered a legal injury against which the law was designed to protect...Here, the plaintiffs suffered no injury...They therefore lack standing..." Malnati v. State, 803 A.2d 587, 590 (N.H. 2002).
c. “The United States Supreme Court as stated that standing requires one who as suffered an injury to show that the injury in fact is fairly traceable to the challenged action and that such injury is likely to be redressed by the judicial relief sought. Allen v. Wright, 468 U.S. 737…We have previously held that to have standing a litigant must have suffered a particularized injury that is distinct from the harm suffered by the public at large…We have construed particularized injury as an injury resulting from an action adversely and directly affecting the party’s property, pecuniary or personal rights. New England Herald Dev. Group v. Town of Falmouth, 521 A.2d 693, 695 (Me. 1987).” Proctor v. County of Penobscot, 651 A.2d 355, 357.
d. A plaintiff “generally must assert his own legal rights and interest and cannot rest his claim to relief on the legal rights or interest of third parties.” Id. at page 357.
e. “The requirement for standing that a party suffer an injury that is fairly traceable to the challenged action is met when a defendant’s actions have adversely affected and directly affected the party’s property, pecuniary or personal rights.” Collins v. State, 750 A.2d 1257, 1260.
f. “courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented.” State v. CNA Ins. Companies, 779 A.2d 662 (Vt 2001) [quoting United States v. Interstate Commerce Commission, 337 U.S. 426 (1949)].
g. “To satisfy the standing requirement, a plaintiff must show (1) injury-in-fact, (2) causation, and (3) redressibility; thus, the plaintiff must allege a personal injury traceable to the defendant’s conduct that the court can remedy…” Brigham v. State, 889 A.2d 715.
h. “The main standing requirement is that the plaintiff show threat of injury to a protected interest.” Blum v. Friedman, 782 A.2d 1204, 1207.
i. "the phrase "judicial power" implies the construction of laws and the adjudication of legal rights." Gould v. Parker, 42 A.2d 416, 418.
j. “We examined, accordingly, the substance of the plaintiff’s constitutional and civil rights claims, concluding that they implicated no legally protected right under the constitution. We affirmed, therefore, the trial court’s dismissal both on lack of standing and on the merits.” Daye v. State, 769 A.2d 630, 633 (Vt. 2000).
k. “Criminal responsibility is imposed on the basis of the intentional doing of an act with awareness of the probability that the act will result in substantial damage, regardless of whether the injury turns out to be minor or insignificant.” Com. v. Ruddock, 520 N.E.2d 501.
l. "To have standing in any capacity, a litigant must show that the challenged action has caused litigant injury." Perella v. Massachusetts Turpike Auth., 772 N.E.2d 70.
m. "Courts are not established to enable parties to litigate in which they have no interest affecting their liberty, rights or property." Razin v. Razin, 124 N.E.2d 269, 270.
n. “The requirement of standing, however, has a core component derived directly from the Constitution. A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984) (emphasis mine).
o. “In addressing questions of standing, we are confronted with “questions of prudential or judicial restraint,” Id., and will impose that restraint to insure that “the case is not moot and the issues will be fully developed by true adversaries.” Id. To have standing, a plaintiff “must plead damage from an injury peculiar to him…”” Blanchard v. Show Low Planning, 196 Ariz. 114, 118 (App.) (emphasis added).
p. “To gain standing to bring an action, a plaintiff must allege a distinct and palpable injury. Warth v. Seldin, 422 U.S. 490, 501.” Sears v. Hull, 961 P.2d 1013, 1017 (1998).
q. “To gain standing to bring an action, a plaintiff must allege a distinct and palpable injury.” Fernandez v. Takata Seat Belts, Inc., 108 P.3d 917.
4. The plaintiff, Sergeant Eliezer Rivera, has failed to allege the elements of standing. Therefore the plaintiff, Sergeant Eliezer Rivers, lacks standing to complain.
II. No corpus delecti.
5. There is no corpus delecti. The corpus delecti is related to standing and must be proven in every prosecution and has two elements:
a. “The corpus delecti of a crime consists of two elements: (1) the fact of the injury or loss or harm, and (2) the existence of a criminal agency as its cause [citations omitted] there must be sufficient proof of both elements of the corpus delecti beyond a reasonable doubt.” 29A American Jurisprudence Second Ed., Evidence § 1476.
b. "Proof of the corpus delecti is required in all criminal cases...There are three basic elements in the proof of a crime: (1) the occurrence of loss or injury, (2) criminal causation of that loss or injury and (3) the identity of the defendant as the perpetrator of the crime. However, it is firmly established in this State that the term corpus delecti embraces only the first two of these elements-loss or injury and criminal causation." State v. Hill, 221 A.2d 725, 728 (NJ) [bold emphasis mine].
c. "Though questioned by Wigmore, the prevailing American rule is that proof of the corpus delecti requires (1) proof of the injury, death or loss, according to the nature of the crime, and (2) proof of criminal means as the cause. 7 Wigmore on Evidence, [section] 2072. This is the rule in Delaware." Nelson v. State, 123 A.2d 859, 861. (D. E.)
d. ““Corpus delecti” consists of occurrence of specific kind of loss or injury embraced in crime charged, rather than commission of crime charged by someone.” State v. Vuilleumer, 210 A.2d 673, 674, 3 Conn.Cir. 223. (C.T.)
e. "It has long been fundamental to the criminal jurisprudence of the Commonwealth that a necessary predicate to any conviction is proof of the corpus delecti, i.e., the occurrence of any injury or loss and someone's criminality as the source of this injury or loss. See Commonwealth v. Burns, 490 Pa. 619, 627, 187 A.2d 552, 556-557 (1963); Commonwealth v. Turza, 340 Pa. 128, 133, 16 A.2d 401, 404 (1940)." Commonwealth v. Maybee, 239 A.2d 332, 333. (P.A.)
6. Corpus delecti, or the body of the crime, refers to an act or omission to act (failure to act), and it also requires criminal agency to be in the mind. That is, there must be intent, criminal negligence, or strict liability.
a. "In every criminal trial, the prosecution must prove the corpus delecti, or the body of the crime itself-i.e., the fact of injury, loss or harm, and the existence of a criminal agency as its cause." People v. Sapp, 73 P.3d 433, 467 (Cal. 2003) [quoting People v. Alvarez, (2002) 27 Cal.4th 1161, 1168-1169, 119 Cal.Rptr.2d 903, 46 P.3d 372.].
b. "As a general principal, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury." People v. Superior Court, 126 Cal.Rptr.2d 793.
c. "An analysis of standing begins with a determination of whether the party seeking relief has sustained an injury (see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772-773, 570 N.Y.S.2d 778, 573 N.E.2d 1043 [1991])." Mahoney v. Pataki, 772 N.E.2d 1118, 1122 (N.Y. 2002).
d. "To adjudicate upon, and protect the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial department...The judicial power "is the power to hear and determine those matters which affect the life, liberty, or property of the citizens of the state." (City of Sapulpa v. Land, 101 Okl. 22, 223 P. 640, 644, 35 A.L.R. 872, 878.)" Nash v. Brooks, 297 N.Y.S. 853, 855-856.
e. “In order to establish corpus delecti, state must prove that a certain result has been produced and that someone is criminally responsible for that result.” State v. Gerlaugh, 654 P.2d 800, 134 Ariz. 164.
f. “To establish corpus delecti, there must be some proof that a certain result has been produced and that someone is criminally responsible for the act.” State v. Pineda, 519 P.2d 41, 100 Ariz. 342.
g. ““Corpus delecti” of a crime is established by showing proof of result and that some one is criminally responsible therefore.” State v. Flores, 454 P.2d 172, 9 Ariz.App. 502.
h. ““Corpus delecti” has as its two elements that a certain result has been produced and that some person is criminally responsible for the act.” State v. Wilson, 548 P.2d 23, 113 Ariz. 145.
7. Without a corpus delecti there is no crime:
a. “Component parts of every crime are the occurrence of a specific kind of injury or loss, somebody’s criminality as source of the loss, and the accused’s identity as the doer of the crime; the first two elements are what constitutes the concept of “corpus delecti.” U.S. v. Shunk, 881 F.2d 917, 919 C.A. 10 (Utah).
8. The Plaintiff, Sergeant Eliezer Rivera has failed to allege the fact of an injury or loss or harm. Therefore there is no corpus delecti, and as such no crime has been committed.
III. Lack of jurisdiction.
9. “Standing represents a jurisdictional requirement…” National Organization for Women, Inc., v. Scheidler, 510 US 249. As with standing, the foundation of the court’s jurisdiction is article II § 2 of the Arizona constitution: “governments…are established to protect and maintain individual rights.”
10. If the constitution applies to this court, then the court’s jurisdiction is “to protect and maintain individual rights.” The plaintiff, Sergeant Eliezer Rivera has not alleged the violation of a legal right therefore, the court lacks jurisdiction.
Conclusion
Because the plaintiff has failed to allege the required elements to establish standing to complain and jurisdiction, and there is no corpus delecti, the Court should dismiss or strike the complaint filed against John Sam Doe. Further the Court should issue a Writ of Habeas Corpus for the immediate release of John Sam Doe.
Submitted this 1st day of May, 2009.
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<<<<<<<<<<<<<your name>>>>>>>>>>>>>>>>>>>
Certificate of service
This is to certify that a true and correct copy of the foregoing has been mailed this 1st day of May 2009, to the plaintiff at the following address:
Superintendent Rick Van Wickler
Cheshire County Department of Corrections
West Street
Keene, NH 03431
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<<<<<<<<<<<<<your name>>>>>>>>>>>
Affidavit
I do hereby certify that the foregoing petition, motion, and facts are true to the best of my knowledge and belief.
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<<<<<<<<<<<<<your name>>>>>>>>>>>