HermanWallace Motion to Expedite Documents

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INTHE UNITEDSTATESDISTRICTCOURT

FOR THEMIDDLEDISTRICT OF LOUISIANA

HERMAN WALLACE,Petitioner,

vs.

HOWARD PRINCE, WARDEN,Respondent.

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CIVIL ACTION NO: 3:09-CV-01027

CHIEF JUDGE BRIAN A. JACKSON

MAGISTRATE JUDGE STEPHEN C.RIEDLINGER

PETITIONERSMOTION FOR EXPEDITEDCONSIDERATION

Petitioner Wallace hereby moves this Court, pursuant to Rule 72 of the Federal

Rules of Civil Procedure and in the interests of justice, for expedited consideration of

his petition for a writ of habeas corpus. Wallace requests that a Report and

Recommendation (Report) be issued within 30 days of the filing of this motion; that

the parties be directed to file objections no later than 14 days upon issuance of the

Report; and that the District Court rule no later than 60 days thereafter.

Urgent consideration of Wallaces pending claims is warranted for several

reasons. First, Wallace has presented strong claims of constitutional error in the context

of a compelling Schlup innocence claim. Second, Wallaces claims of constitutional error

in this case are exceptionally persuasive and should prevail. Third, delay in this case

has already been inordinate. Finally, and most importantly, Wallace has recently been

diagnosed with cancer. Further delay in the effective and expeditious administration of

judicial review in this case may very well result in manifest injustice.

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I. Wallaces Innocence

This case raises fundamental questions about the wrongful incarceration of an

actually innocent person. (See Doc. No. 57-2 at 25.) Moreover, the wrongful

incarceration has taken place under conditions of unconstitutional hardship, as Wallace

has now been held under conditions akin to solitary confinement for over 40 years. See

generally, Wilkerson v. Stalder, 00-Civ-304 (M.D.La) (Doc. No. 105 at 21, adopted without

modification at Doc. No. 116) (observing that the length of Wallaces confinement under

extended lockdown conditions is so far beyond the pale that this Court has not found

anything even remotely comparable in the annals of American jurisprudence.) (Doc.

No. 105 at 21; adopted without modification, Doc. No. 116). Although there is no

procedural default in this case, Wallace has asserted that he is prepared to make an

innocence showing under House v. Bell, 547 U.S. 518, 534, 539-54 (2006). Among other

things, the undersigned represents that new evidence of Wallaces innocence includes a

scientific review of the bloody print found at the crime scene this case which exculpates

Wallace, and recantation from key State witnesses. This evidence, combined with

evidence which was presented to the jury in 1972including alibi testimony and prison

documents that prove Wallace was present at work during the time of the crime

powerfully substantiates Wallaces unwavering assertions of innocence, which now

span over four decades.

II. The Strength of Wallaces Claims

Wallace has presented exceptionally strong claims for relief in this case. His trial,

which took place in January of 1974, was rife with constitutional error, and there can be



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no dispute that the case against him was weak in the first instance. Wallaces petition

has been extensively briefed by both parties and he will not here re-argue the merits of

his claims. However, for purposes of this motion, Wallace highlights some of the

strengths of his petition:

Claim D. The grand jury which indicted Wallace did not include a single woman. Itis well-settled that this grand jury was convened under systemicallydiscriminatory procedures. The States only answer is procedural default, butthis Court has already rightly held that this claim is exhausted and notprocedurally defaulted. There is no challenge to the substantive merits of thisclaim. (See Doc. No. 45 at 11-12.)

Claim A. The prosecution suppressed crucial impeachment evidence as to each oftheir inmate witnesses. Hezekiah Brown and Chester Jackson were the States twomain witnesses and both perjured themselves when they denied that they hadbeen given compelling incentives to testify. Incentives as significant as thepromise of a pardon, which was ultimately delivered. Viewed individually, eachof these violations of due process merits relief; when viewed cumulatively, andin light of the other weaknesses in the States case, there can be no doubtWallace was denied a fair trial.

Claim B. Wallaces trial counsel was forced to act under profoundly divided

loyalties when his co-defendant turned States witness mid-trial. Trial counsel hadto cross-examine his own client, with no notice that his client had become a witness forthe prosecution. That Jackson took the stand and gave favorable testimonyconcerning Wallaces third co-defendant, Gilbert Montegut, only further andimpossibly divided trial counsels loyalties. Trial counsel subsequently admittedhe had no strategic basis for not moving for a mistrial, but he failed to pursuethat preferable strategy out of shock and confusion.

Claim E. The merits of Wallaces Sandstrom claim are beyond reproach. Hisjurorswho had already been provided perjurious testimony and denied theopportunity to consider a case that had been fairly tested by adversarialprocesswere given a classic burden-shifting instruction. The prosecution waswrongly relieved of having to prove each and every element of the offensebeyond a reasonable doubt.



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III. Inordinate Delay

Wallaces habeas petition was filed in December of 2009. (Doc. No. 1.) No claim

C is mentioned supra, because Petitioner voluntarily dismissed that claim after this

Court found it had not been properly exhausted rather than stay this case to pursue

exhaustion. Likewise, Petitioner voluntarily dismissed his Claim F, in the interests of

an expeditious resolution of this case. (Doc. No. 25 at 1.)

Nevertheless, because of multiple extensions of time and procedural litigation,

the State did not file an Answer until July 15, 2011over a year and a half later. (Doc.

No. 53.) Wallaces response to the Answer was filed timely on August 30, 2011 (Doc.

No. 57), and amended per the Courts instructions in October of 2011. (Doc. No. 64.) At

this point, the claims have been fully submitted for nearly two years.

IV. Manifest Injustice

The undersigned are now aware that on June 3, 2012, Wallace wrote the Court

directly, to plead for consideration of his petition. In that letter, attached hereto as

Exhibit A, Wallace explained he believed a stomach fungus was killing him. On Friday,

June 14, 2013, as a result of a visit to LSU hospital, Wallace was for the first time

diagnosed with cancer. His prognosis is as yet undetermined. However, what is clear

is that his continued confinement, under lockdown conditions, will surely infringe on

his ability to seek out the best available oncology and palliative care. Indeed, upon

information and belief, Wallace has been denied even standard medical care, and that

the denial of standard medical care is proximate cause of his now life-threatening illness.

Wallace is also 72 years old. Respectfully, the undersigned submits that further delay in



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CERTIFICATE OF SERVICE

I hereby certify that the foregoing motion was filed electronically with the Clerkof the Court using the CM/ECF system this 21st day of June, 2013. Notice of this filingwill be sent to opposing counsel by operation of the Courts electronic filing system.

By: /s/Carine Williams

CARINE WILLIAMSSquire, Sanders & Dempsey (US) LLP30 Rockefeller PlazaNew York, NY 10112212-872-9847Email:[email protected]



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EXHIBIT A



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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

MINUTE ENTRY:

J ULY 26, 2013J ACKSON, C. J .

HERMAN WALLACECIVIL ACTION

VERSUSNO. 09-1027-BAJ

HOWARD PRINCE, ET AL

This matter came this day for a telephone conference on Plaintiffs Motion

for Expedited Consideration (doc. 75) and Plaintiffs Supplementation to

Petitioners Motion for this Courts Expedited Consideration (doc. 78).

PRESENT: Nicholas J . Trenticosta, Esq.Carine M. Williams, Esq.George H. Kendall, Esq.Counsel for plaintiff

Dale R. Lee, Esq.Counsel for defendants

The Court discussed pending motions with Counsel.

The Court granted the Plaintiffs Motion for Expedited Consideration (doc.

75) and Plaintiffs Supplementation to Petitioners Motion for this Courts

Expedited Consideration (doc. 78).

The Court informed Counsel that the Report and Recommendation on the



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Plaintiffs Petition for Writ of Habeas Corpus will be forth coming.

* * * * *

BRIAN A. J ACKSON, CHIEF J UDGEUNITED STATES DISTRICT COURTMIDDLE DISTRICT OF LOUISIANA

cv36: 40 min.

HermanWallace Motion to Expedite Documents

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