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Old 05-24-2005, 12:36 PM
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DENNIS MICHAEL, et al. Case # 3:01CV7436
Plaintiffs, Judge James G. Carr
Supplemental Brief to
MARGARETTE GHEE, et al. Plaintiffs Rule 56 (c)
Motion for Summary
Defendants. Judgment
In accordance with this Court’s Order on September 30, 2004,1
Plaintiffs hereby file their Supplemental Brief concerning Blakely Issues.
This Supplemental Brief and its accompanying Motion to file a
Supplemental Complaint pursuant to Fed. R. Civ. P. 15(d) are hereby
incorporated into our Rule 56 (c) Motion.
Two Supreme Court decisions, U.S. v. Booker 2and Blakely v.
Washington,3 have been issued while these proceedings have been subject to
1 See Document No. 249.
2 543 U.S. ___(2005), [hereafter Booker]. A second decision issued with Booker, U.S. v.
Fanfan, 543 U.S. ___ (2005), deals with Federal Sentencing Guidelines and is not germane.
an indefinite stay.4 As a result of these decisions, the rights for some of our
Named Plaintiffs, estimated at 55% of the men and 80% of the women, have
crystallized into a new Habeas Corpus cause of action pursuant to 28 U.S.C.
§ 2241. Accordingly, in a companion filing, we are submitting a
Supplemental Complaint based upon rights which have come into existence
since our Amended Complaint and our Rule 56(c) Motion were filed in
2003. There is nothing in this Supplemental Complaint which overrules or
changes anything set forth in our Amended Complaint. Our Amended
Complaint remains in full force precisely as it was filed.
The subject of federal habeas corpus is among the most complex areas
of federal litigation. It is governed by a combination of statutes, the Federal
Rules of Civil Procedure, two sets of special procedural rules promulgated
solely for habeas corpus petitions and a large body of case law interpreting
these statutes.5 In the attached Memorandum of Law, which is hereby
incorporated by reference and also made a part of our Rule 56(c) Motion,
these issues are necessarily addressed within the context of this class action
3 124 S. Ct. 2531 (2004) [hereafter Blakely].
4 The indefinite stay was imposed in July of 2004, and the Blakely decision was rendered in
late June. However, these proceedings were under the shadow of a looming indefinite stay
prior to the publication of the Blakely decision. For this reason, there is nothing in the
record, until now, discussing either Blakely or Booker.
5 In a proceeding under 28 U.S.C. § 2241, the prisoner is referenced as the "applicant," and
the filing is referred to as the "application," unlike 28 U.S.C. § 2254 where a prisoner is the
and with due regard for the civil rights claims set forth previously in our
Amended Complaint.
Respectfully submitted by
/s/ Norman L. Sirak
Norman L. Sirak #0038058
75 Public Square, Suite 800
Cleveland, Ohio 44113
Phone (216) 781 2550
Fax (216) 781-6688
Peter Wagner #0034083
5th 3rd Center -14th Floor
608 Madison Ave.
Toledo, Ohio 43604
Phone (419) 242 1400
Counsel for the Plaintiffs
Certificate of Service
A copy of the foregoing has been sent via the electronic filing system
and via U.S. mail to the Office of the Attorney General, Corrections
Litigation Section, to the attention of Phillip King, Esq. and Scott Campbell,
Esq., at 140 East Town Street, 14th Floor, Columbus, Ohio 43215, this 24th
day of May, 2005.
/s/ Norman L. Sirak
By _________________
Norman Sirak
"Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it."
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