UNITED STATES DEPARTMENT OF JUSTICE BOARD OF MIGRATION APPEALS
In the matter of Childeric Maxy
File # A-2471S-122 STATEMENT OP THE PACTS
Maxy was convicted of Attempted Intentional Homicide, this conviction consists of Maxy entering a house by accident, while intoxicated, and in a black out state. Maxy was convicted under the Wisconsin Statute 940.01, (939.23) and of the same act of Burglary and Bail Jumping. All of the above are intentional acts or premeditative, or acts of Moral Turpitude.
I. MAXY IS INNOCENT OF INTENTIONAL, PREMEDITATVE CRIME OR ACTS OF MORAL TURPITUDE
II. THE ISSUES OF MAXY'S BLACK OUT WAS NOT PRESENTED IN THE TRIAL COURT.
III MAXY COMMITTED THIS ACT WHILE IN A BLACK-OUT STATE.
CONGRESS DID NOT INTEND FOR THE INNOCENT TO SUFTER DEPORTATION, OR REMOVAL
FROM THE UNITED STATES.
IV. MAXY MOTIONS TJHE COURT FOR A WRIT OF AUDITA QUERELA.
Standard of review
8 U.S.C. § 1227 H (2)(A)(i)(I).
I, "Any alien who is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under 1255(j) of this title) after the date of admission, and is
II. convicted of a crime for which a sentence of one year or longer may be imposed is deportable.
III, Any alien who is convicted of aggravated felony at any time after admission is deportable."
MAXY IS INNOCENT OF INTENTIONAL, PREMEDITATIVE CRIME, OR ACTS OP MORAL TURPTTUDE.
Maxy did enter a house by accident, while he was intoxicated, blacked out, and assaulted the owner of the house. The arresting officers stated that Maxy asked,"Where am I?" and "What happened?" (See Exhibit K and L of Maxy's Brief to the imnmigration judge). His officers also ordered blood to be drawn from Maxy. Officers normally ordered blood to test for drunk driving or a traffic violation. One officer even stated that Maxy's eyes were blood shot red. (See Exhibit K and L to immigration judqe). The incoherence of time and place, the order of drug analysis proved that Maxy was intoxicated.
BLACK OUT SCIENTIFIC PROOF
Then there is the scientific proof of a black out. Maxy has discovered two reports of a Black Out:
1). AARON WHITE of DUKE UNIVERSITY a Psychiatrist.
2). Dr. Donald Sweeney an Internal Medicine Doctor.
Both reports agreed that: MA person in a Black Out can fight, drive, and have sex, and not remember the events." (See Exhibit P and Q).
(2) (Exhibits P-Y) Also explain the study of two scientists from different coasts of the U.S. One of a Psychiatrist and one of internal medicine, and have no connections what so ever and came to the sane conclusion. Sweeney states that, "It's not that a black out person forgets, he never forms the memory in the first place. (See Exhibit P). Sweeney concludes that, "A black out patient first thought is, "Where am I?" Those were Maxy's only words to the officers, "Where am I?", "What happened?" (See Exhibits K; 4:3 and L). Officer Fischer said Maxy was incoherent. Sweeney's final conclusion is: "By legal definition, murder involves intent. The black out person cannot formulate intent without it the worst he can do is manslaughter." Since the Wisconsin System does not have Manslaughter but have Reckless Endangerment, Maxy was charged with Attempted Intentional Homicide, Wisconsin Statute 940.01, (939.23), which states, "The actor must know." (See Maxy's brief to immigration judge).According to Sweeney and Professor White, Maxy did not know. where interpreting statute, courts must give words their
ordinary or natural meanings." Leocal v. Ashcroft, 125 S.Ct. 377 (2004). If Maxy was incoherent as to time and place, if Maxy asked officers, "Where am I?" and "What happened?" If officers had Maxy's blood drawn, then Maxy was in a black out state, and he could not have known. Furthermore, he asked, "What happened?" Maxy is innocent of Attempted Homicide because he "did not know." Leocal1s court acknowledged that a statute must be given the natural meaning to its words.
THE ISSUE OP MAXY'S BLACK OUT WAS NOT PRESENTED TO THE TRIAL COURT.
The issue of Black out was not discovered until years later in Maxy's conviction. Although, Maxy did not remember, he could not scientifically have proven that he blacked out. Maxy found the study of Aaron White in February 2003, in a Gannett news article; as well as Dr. Sweeney's Book, The alcohol black out: walking, talking, unconscious and lethal. Maxy has not procedurally presented these "Newly Discovered Evidence" to the trial court yet because more and more has been discovered. Yet, Maxy asks that this court will consider them, since they were presented to the immigration judge and his reply was: "It is well established that the immigration court does not have authority to relitigate issues of guilt or innocence in the renewal hearing context." But the immigration court does have power to review evidence to which lead to conviction of a "Moral Turpitude" crime and even a improper conviction which leads to a "Removal Proceeding."
MAXY COMMITTED THE ACT WHILE IN A BLACK OUT (UNCONSCIOUS) STATE
CONGRESS DID NOT INTEND FOR THE INNOCENT TO SUFFER REMOVAL FOR AN UNKNOWN ACT
MAXY EMTERED THS HOUSE BY ACCIDENT WHICH HAPPENS OFTEN IN WISCONSIN.
In a case in Fond du Lac, someone got drunk and entered the wrong house stated the Fond du Lac reporter in April 2006. "Intoxicated man wanders into the wrong home." The Associated Press reported that a woman entered a couples home and hit the home owner with a pooper scooper, and armed with two scissors babbling "They drugged me. They are going to kill me. I'm going to kill you." This is not strange for this area, except Maxy was strange to the couple's home which he entered.
Maxy was never convicted of a felony or a Moral Turpitude crime in his 20 years in the United states. But, Maxy is a social drinker, surely something was wrong, even the police testified that Maxy was incoherent. In addition , the police drew blood for lab testing. Maxy's evidence of "Black out" is credible, considering the historical facts that were not presented to the jury. Those facts follow:
1). It was sleeting outside.
2). Maxy entered the home with only a plaid shirt and muddy pants.
3). Maxy asked officers "What happened?" and "Where am I?"
4). Officers drew blood for lab testing.
5). Maxy was intoxicated.
6). Maxy said he does not remember, and considering the esearchers conclusion, Aaron White and Donald Sweeney, it is more likely that Maxy did not intentionally enter the home to steal, or kill with his bare hands, since Maxy had no tools or weapons.
(See habeas Order of Court Case#05-C-0479-O. More over the (BIA) defined Moral Turpitude as: "Unless it results in serious bodily injury."
Finally, there are a number of miscellaneous cases involving innocent acts like: gambling, Perjury, Burglary, and other crimes where the findings of Moral Turpitude vary widely. Toutounjian y. Ins., 959 F. Supp. (W.D.N.Y. 1997). Also see The master of short, 20 I & N Dec. 136, 139 (BIA 1989).
Maxy never used a weapon to strike or hurt the victim. The only thing which invokes a Moral Turpitude in this case is the victim stating that Maxy was choking him. Even the record the victim said Maxy never touched his wind pipe. Webster defines choking as: "To stop or interfere with breathing as by constricting the wind pipe." Maxy never touched the victim's wind pipe.
"We have held that an analysis of an aliens intent is critical to a determination regarding Moral Turpitude." Quoting Matter of Servina 20 I & N Dec. 579 (BIA 1992).
Here, Where the violation at issue similar to a simple assault, we find that the respondent did not commit a crime involving Moral Turpitude not withstanding the courts finding that he acted with a Reckless state of mind.
"Moral Turpitude is dependent upon the depraved or vicious motive of the alien. It is the intent that Moral Turpitude inheres. A crime committed without contemplating death, without malice, and without intent, and ordinarily committed while engaged in a lawful act but committed through carelessness or because of the absence of due caution or circumspection does not include an evil intent and therefore does not involve Moral Turpitude." Toutounjiar supra.
The crime that Maxy committed 940.01 (939.23) required an intent at the sane time both statutes required also that "the actor must know." Maxy said he does net remember and scientific proof is in order that Maxy Blacked Out. If Maxy Blacked Out then he does not know his crime, he did not formulate intent. He could not have known according to Donald Sweeney and Aaron White of Duke University Psychiatric Dept. Maxy did not know he committed this crime due to his Black Out State. Maxy's crime did not involve Moral Turpitude not withstanding the state Statute 940.01 and 939.23.
MAXY MOTION'S THIS COURT FOR A WRIT OF AUDITA QUERELA OR CORAM NOBIS
The court explained that a "Audita Querela is not a wand which nay be waived over an otherwise valid criminal conviction causing it's disappearance. Rather, it provides relief from the consequence of a conviction when a defense or discharge arises subsequent to the entry of final judgment. The defense or discharge must be a legal defect with conviction or in the sentence which taints the conviction." U.S. v. Johnson, 952 F.2d 579, 582 (7th Gir. 1992).
Maxy is not disputing that a crime was committed and is not ducking responsibility. What Maxy is Arguing and presenting to the court is "Newly Discovered Evidence" that Maxy did not know, with scientific basis, Maxy is also presenting a new defense that was not contemplated at his trial a "Legal Defect" in the language of the statute. If this defense was available to Maxy he would have been acquitted or would be charged of a lesser crime which would amount to "Reckless Endangerment", which would also be Attempted Wis. Stat. 939.23.
Wisconsin does not have a Attempted Reckless.
MAXY IS CHARGED IMPROPERLY
Maxy is informing the court that the crime was committed while he was intoxicated and Blacked out. Since Maxy could not have known, Maxy asks for relief which amounted to discretionary relief pursuant to § 212 (c) of INA. and allow Maxy the option of Reopening the Deportation Hearing after his challenges to the criminal statutes in the State of Wisconsin and to allow Maxy' reentry by the U.S. Dept. of Justice even after Maxy is deportad.
Maxy did not premeditate this act, it was an accident that could happen to any law abiding citizen of this country. Maxy will prove that, sooner or later, he did not know his act. The Wisconsin Statutes said he must Know. Maxy asks the (BIA) to look at his 20 year stay in the United States without a felony and none of his misdemeaners amounted to removal proceedings. Maxy was never involved in criminal activities. Maxy asks for relief to stay in or return to the united States.
Respectfully submitted this 23rd day of October, 2006
Childeric Maxy #332930
Green Bay Correctional Institution
PO Box 19033
Green Bay, Wi 54307-9033Back to FFUP index