Archives for posts with tag: prisoner

This habeas petitioner was conviction by court-martial of murder with a Ninjatō sword and sentenced to life in prison. The federal courts here affirm the military court judgement.

ninja to sword

CURTIS A. GIBBS, Petitioner,
v.
J. E. THOMAS, Respondent.

1:07-cv-01563-SKO-HC

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

2010 U.S. Dist. LEXIS 122152

Decided November 15, 2010, filed November 18, 2010.

Opinion by US Magistrate Judge Sheila K. Oberto:

In the brief there are set forth “[u]ncontested [f]acts” pertinent to the charge, which concerned the premeditated murder of Mrs. Brenda Salomon on August 18, 1989. (Id. at 17.) Petitioner confessed to the killing, revealing that while at the Shipwreck Lounge, he encountered Salomon and then left the lounge. When Petitioner entered his truck, Salomon, who was very drunk, tapped on the window and asked Petitioner to take her out to get something to eat. Petitioner agreed and bought Salomon some fast food. When Salomon passed out several times and failed to tell Petitioner where she lived, Petitioner stopped at a telephone booth and told her to get out of his truck and call someone to come to pick her up. When she called him names, slapped him, and failed to leave the truck, he drove into a wooded area, stopped, and ordered her out of the truck. A physical altercation ensued, and Petitioner pulled Salomon out of the truck. When Salomon removed her shorts, taunted Petitioner, and attacked him as he tried to enter his truck, Petitioner became enraged, hit her repeatedly, retrieved his “Ninja To” sword from the truck, and struck Salomon so hard that the sword’s handle detached from its blade. (Id. at 18, 21-23.) The blow severed her spinal cord and vertical arteries. (Id.)

Petitioner returned to the lounge after retrieving the sword and throwing Salomon’s things out of the truck, and stayed there until closing time. The body was discovered in a wooded area on the Camp Lejeune Marine Corps base, and multiple items of corroborating evidence were found. (Id. at 17-18.)

Petitioner prosecuted as a court martial under military law, impacting this Court’s jurisdiction and scope of review:

In the present case, Petitioner acknowledges that his case was reviewed by both the Navy-Marine Corps of Military Review and the United States Court of Military Appeals. (Pet. 2.)

All of the petitioner’s claims here for habeas relief are denied, some are not ripe because of non-exhausted administrative remedies, regarding alleged prosecutorial misconduct denied because the military court had already looked into it, and no jurisdiction to review military discharge.

This case opinion was affirmed by the Ninth Circuit in January 2012, memorandum opinion before Judges Leavy, Tallman and Callahan.

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This Muslim prisoner was denied a preliminary injunction on a case involving claims on injury and violation of constitutional rights. The “ninja turtle” description referred to the back brace he wore after injury.

SAMUEL ABDUL-JABBAR, Plaintiff,
v.
SUPERINTENDENT CALVIN E. WEST, Elmira Correctional Facility,
MARY J. HOPKINS, Nurse Administration,
M.D. WESLEY K. CANFIELD,
and JEFFREY FLETCHER, FSA # 2, Defendants.

05-CV-0373F

UNITED STATES
DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK

2009 U.S. Dist. LEXIS 75965

Opinion by US Magistrate Judge Leslie G. Foschio, August 26, 2009:

Plaintiff Samuel Abdul-Jabbar (“Plaintiff”), proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983 on May 26, 2005, alleging violations of his Eighth Amendment right to be free from cruel and unusual punishment while incarcerated at Elmira Correctional Facility (“Elmira” or “the correctional facility”), related to an incident occurring on February 28, 2005, when Plaintiff, while pushing a mess hall garbage wagon to the correctional facility’s dumpster, stepped into a pothole, fell on his back, twisting his foot and knee.

And

Plaintiff, incarcerated at Gouveneur Correctional Facility (“Gouveneur”), moves for a preliminary injunction enjoining Defendants Dr. Canfield and Hopkins, as well as various DOCS employees at Gouveneur, from retaliating against Plaintiff for commencing the instant action by subjecting Plaintiff to discrimination, physical abuse, property damage, offensive remarks and harsh treatment. Plaintiff’s Affidavit at 3. In support of the motion, Plaintiff asserts that (1) after undergoing back surgery on March 3, 2008, Gouveneur Correctional Officer (“C.O.”) Brown (“Brown”), in reference to a back brace Plaintiff then wore, called Plaintiff a “ninja turtle“, Plaintiff’s Affidavit at 4; (2) Gouvernuer Housing Sergeant DeMarco and a hearing officer conspired to find Plaintiff guilty of a false misbehavior report charging Plaintiff with failing to keep his living area clean, id. at 4-5; (3) unnamed staff and corrections officers at Gouveneur failed to provide Plaintiff with the “flat steel bottom bed” for which Plaintiff had been medically approved following his back surgery; (4) unnamed prison staff members denied Plaintiff the opportunity to participate in an induction dinner for a Muslim group at Gouveneur, id. at 6-7; and (5) during the second week of November 2008, certain unspecified items were missing from a package Plaintiff retrieved from Gouveneur C.O. Jenkins, id. at 7

But

Plaintiff presents no evidence, by affidavit or otherwise, supporting a finding that Plaintiff is likely to prevail on the merits of the instant action, or that without the requested injunctive relief, Plaintiff will suffer irreparable harm without such relief. [footnote omitted]

So

Defendants’ motion seeking summary judgment (Doc. No. 59) is GRANTED; Plaintiff’s motion for a preliminary injunction (Doc. No. 74) is DENIED.

mup

Recall NinjaLaw#70 = “Murder-for-hire by Los Angeles Ninja Hitman”. As described in that prior post, the case was appealed. Both the district court and appellate opinion were described in the prior post and so this post is a placeholder to keep this 80th NinjaLaw case in sequence.
los angeles

In this case of habeas petition on Los Angeles murder-for-hire, a “Ninja” was convicted based on out of court statements of an unavailable convicted co-conspirator. This is a 2008 appeal on a 1990 conviction of the ninja hitman. The murders in this case have been extensively covered in the press, see for example this 1988 Los Angeles Times article referring to the “Ninja Murders”. And see detailed narrative at TruTv.com, “The Ninja Murder Case” BY Tori Richards

ANTHONY JOSEPH MAJOY, Petitioner,
vs.
ERNEST ROE, Warden, Respondent.

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
Case No. CV 98-6956-SVW (JWJ); 651 F. Supp. 2d 1065; 2008 U.S. Dist. LEXIS 112110

Decided March 5, 2008, Opinion by United States Magistrate Judge Jeffrey Johnson

STATEMENT OF FACTS

In 1983, brothers Neil and Stewart Woodman hired hitmen Steven and Robert Homick (also brothers) to murder the Woodmans’ parents. (Resp. Exh. 107, pp. 21-23, 26-27, 36-49, 63-64.) [FN2] The crime was to take place on the night of September 25, 1985, Yom Kippur. (Resp. Exh. 100, pp. 60, 100, 102-03.) The Woodman’s motive was to gain an advantage in a family business dispute (Resp. Exh. 107, pp. 15-21) and to collect on their mother’s $ 500,000 insurance policy — money they needed to pay off business debts (Id. at 15-18).

Late in the evening of September 25, 1985, the Woodman parents were shot and killed in the parking garage of their Brentwood apartment complex. Roger Backman, an independent witness, saw a black-clad individual, later referred to as the “Ninja,” fleeing the scene of the crime. [FN3]

== Footnotes ==
FN2 Unless otherwise specified, all citations to exhibits refer to those introduced by the parties at the evidentiary hearing.
FN3 The assailant was termed the “Ninja” after Mr. Backman described the suspect as wearing a black hooded outfit.

At petitioner’s trial, the prosecution argued that petitioner was the “Ninja” observed by Robert Backman.

After petitioner’s conviction, Stewart Woodman confessed his guilt in exchange for a promise that the prosecution would not seek the death penalty against him.

Here on appeal:

Petitioner argued, inter alia, that the following “new evidence” supported his procedural claim of actual innocence: Michael Dominguez, a key prosecution witness, recanted his testimony implicating petitioner; the police investigation involved questionable methods; the testimony of Robyn Lewis was impeached; and the testimony of Roger Backman likely excludes petitioner as the “Ninja.” (Proposed Findings, pp.18-47.)

Particularly,

petitioner points to the testimony of Roger Backman as evidence that petitioner could not have been the “Ninja.” As detailed above, Mr. Backman described the hooded assailant as resembling Michael Dominguez. While this evidence may suggest that petitioner was not the “Ninja” who came face to face with Mr. Backman, it does not prove that petitioner is innocent of the murders of Gerald and Vera Woodman. It is undisputed that the murders were carried out by more than one individual. In fact, Mr. Backman testified that while he saw the “Ninja,” he heard another individual running through the bushes. Thus, Mr. Backman’s description of the “Ninja” does not support a finding that petitioner was not a participant in the murders.

The Court dismisses the petition, finding that the petitioner cannot show his actual innocence. Ironically, the co-conspirator’s self-interested claims were credible for conviction but the his recantation is not credible for appeal.

None of the other “new” evidence presented by petitioner, without the support of a credible recantation by Dominguez, is sufficient to meet petitioner’s procedural claim of actual innocence.

This opinion was then supplemented and adopted by the District Court Judge Stephen Wilson, August 4, 2009:

ANTHONY JOSEPH MAJOY, Petitioner,
v. ERNEST ROE, Warden, Respondent.

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
CV 98-6956 SVW (JWJx)
651 F. Supp. 2d 1065; 2009 U.S. Dist. LEXIS 70762

Petitioner contends that Dominguez’s recantation should be believed because Dominguez’s initial testimony was the result of police coercion by the Detectives. In his objections, Petitioner claims that the SSRR not only failed to adequately consider the effect of the alleged police coercion on jurors, but goes so far as to “sanction[] egregious police misconduct.” (Obj., at 16.) Specifically, Petitioner insists that the following evidence of Detective Holder’s unethical character was not presented to the jury in Petitioner’s case: (1) Detective Holder suborned perjury of a criminal informant (Siegel) at the first preliminary hearing for defendant Woodman; (2) the Detectives placed a photograph of Petitioner in front of Dominguez during the initial interview “so that [Dominguez] would identify [Petitioner] as the Ninja” (Id.); (3) Detective Holder called Deputy District Attorney John Krayniak a “wimp prosecutor” when Krayniak refused to put untruthful informant Sidney Storch on the witness stand (10/5/04 ERT 89); (4) the Detectives secretly entered into an undisclosed book rights agreement, presumably about the trial; and (5) after leaving the LAPD, Detective Holder obtained a court appointment as a phony expert witness or private investigator in the Woodman trial. (Obj., at 16.)

While Petitioner’s evidence regarding the Detectives may speak to the negative qualities of Detectives Holder and Crostley, and perhaps even suggest that they used questionable interviewing tactics, this evidence does not alter the Court’s conclusion with regard to the credibility of Dominguez’s new testimony. This evidence regarding the Detectives does not allow Petitioner to meet the “extraordinary” burden of a Schlup claim for two reasons. First, the jury watched the interview between the Detectives and Dominguez at trial and, as a result, the jury was given the opportunity to evaluate whether Dominguez was coerced. This Court must examine “new reliable evidence” while evaluating a Schlup claim. 513 U.S. at 324 (emphasis added). Thus, because the placement of the photographs was presented to the jury at trial, Petitioner’s objection standing alone would not cause a new jury to have reasonable doubts. Only Petitioner’s “new” evidence – such as the book deal – could be used in connection with a Schlup claim. Id.

Second, even though Petitioner identifies some other evidence, because Dominguez himself is not credible, this evidence would not cause all reasonable jurors to doubt Petitioner’s conviction. Had the Magistrate concluded that Dominguez was credible during the evidentiary hearings, the evidence of the Detectives’ negative character may have supplemented the Magistrate’s finding that Dominguez was credible. But given that the Magistrate found that Dominguez was not credible, the evidence of the Detectives’ character would not affect reasonable jurors viewing Dominguez’s recantation.

And:

E. Roger Backman’s Testimony

On the night of the murders, Roger Backman witnessed a black-clad “Ninja” outside the murder scene. The prosecutors used this information to claim that Petitioner was the Ninja. At Neil Woodman’s 1994 trial, however, Mr. Backman described the Ninja in such a way “arguably as not only to exclude the middle-aged [Petitioner,] but to implicate the youthful Dominguez.” [FN4] Majoy, 296 F.3d at 774.

== Footnotes ==
FN4 Mr. Backman testified that he identified Dominguez as the Ninja because it was the “most logical[]” choice based on Dominguez’s age, skin tone, and build. Majoy, 296 F.3d at 775.
===

In the SSRR, the Magistrate stated that even if Petitioner was not the Ninja, “Mr. Backman . . . heard another individual running through the bushes. Thus, Mr. Backman’s description of the ‘Ninja‘ does not support a finding that petitioner was not a participant in the murders.” (SSRR at 32-33.) Petitioner objects to the Magistrate’s finding that Petitioner could have been a “noise in the bushes.” (Obj., at 20.) Though the Court agrees with the Magistrate’s analysis of Mr. Backman’s testimony, the SSRR could arguably be interpreted as applying the incorrect standard of review by reaching what could be construed as a factual conclusion. This Court will therefore determine de novo how Mr. Backman’s testimony would affect reasonable jurors. See Majoy, 296 F.3d at 776.

Although Mr. Backman’s 1994 testimony might support Petitioner’s actual innocence claim, the Court concludes that this evidence would not have such an effect on reasonable jurors such that Petitioner would meet the Schlup burden. First, as with Ms. Lewis’s testimony, the California Court of Appeal did not give Mr. Backman’s testimony much weight. The Court of Appeal decision thoroughly analyzed the evidence, and the Court generally agrees with the Court of Appeal’s analysis. After listing the substantial corroborating evidence implicating Petitioner, the Court of Appeal stated: “Finally, independent corroboration [by Backman], no matter how slight in value it might appear to be when standing alone, implicated [Petitioner] in the conspiracy and murders.” People v. Majoy, No. B052619, 38 (Cal.Ct.App. Jan. 27, 1997). As the Court of Appeal decision illustrates, Petitioner’s conviction was based on ample corroborating evidence, which included Mr. Backman’s testimony, even though Mr. Backman’s testimony was of “slight” value. Because Mr. Backman’s testimony was of such slight value, this evidence would not have swayed reasonable jurors to such an extent to satisfy the Schlup actual innocence standard.

Second, in discussing Mr. Backman’s 1994 testimony, the Ninth Circuit stated that “Backman identified . . . the ‘Ninja‘ in such a way arguably as . . . to exclude the middle-aged [Petitioner].” Majoy, 296 F.3d at 774 (emphasis added). Though Mr. Backman’s statements “arguably” excluded Petitioner as the Ninja, there was nothing conclusive about his testimony at the subsequent trials. Mr. Backman admitted he only saw a small part of the Ninja‘s face “between . . . just above [the Ninja‘s] eyebrows and just below the tip of the nose” and that he therefore could not conclusively identify the man. Majoy, 296 F.3d at 775. Mr. Backman’s qualified statements would not cause all reasonable jurors to doubt Petitioner’s conviction.

Even assuming Mr. Backman conclusively exonerated Petitioner as the Ninja, without something more, such as substantial evidence of police coercion or clear reliability of Dominguez’s recantation – both of which are lacking – Petitioner cannot reach the standard that “no reasonable juror would have found [P]etitioner guilty beyond a reasonable doubt.” Majoy, 296 F.3d at 776.

Because the Court generally agrees with the California Court of Appeal that Mr. Backman’s identification of the Ninja was of little import in upholding Petitioner’s conviction, and because Mr. Backman did not conclusively exonerate Petitioner as the Ninja, Petitioner has failed to meet the heavy burden of a Schlup actual innocence claim.

Concluding:

Roger Backman could not conclusively prove Petitioner was not the Ninja; and, most importantly, Dominguez’s recantation lacked credibility. Because the Ninth Circuit remanded to this Court to determine the credibility of Dominguez’s recantation, and because this Court has determined it was not credible, Petitioner’s Schlup claim must fail. Accordingly, the Court adopts the Magistrate’s SSRR.

This 2007 case is an action pursuant to 42 U.S.C.S. § 1983 by a Muslim prisoner in Georgia claiming RLUIPA related First Amendment violations while in prison. Specicially, the plaintiff sought 52 books, some with the word “Ninja” in the title. He also had other issues like wearing his Kufi and having a digital version of the Qur’an. This plaintiff has become something of a jailhouse lawyer filing many actions, but also he is still involved in litigation about related incidents from 1995. The word ninja is mentioned only in this decision involving alleged prison guard violations of first amendment and the plaintiff was released from prison (serving a 10 year sentence) before this 2007 case was decided. But in a strange twist, he is back in prison now facing murder charges related to the original crime. The trial is happening like now (?-see update below-) see links below, but first the 2007 RLUIPA ninja case:

WASEEM DAKER, Plaintiff,
v.
JOE FERRERO, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION
CIVIL ACTION NO. 1:03-CV-02481-RWS
475 F. Supp. 2d 1325

Decided, February 26, 2007 by Judge Richard Story:

Plaintiff, proceeding pro se, initiated this civil action in August 2003 against Defendant Joe Philip Ferrero, Acting Commissioner of the Georgia Department of Corrections (“GDC”), and numerous prison officials. In his Fourth Amended Complaint, Plaintiff asserts nineteen claims pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq., challenging aspects of his confinement in various GDC prison facilities. Specifically, Plaintiff challenges: (i) a requirement that he “stand at attention” in the presence of prison officials; (ii) a restriction on his wearing of a Kufi, a traditional article of Muslim headdress; (iii) a denial of his request to possess a digital device containing the text of the Qur’an; (iv) content-based restrictions on the sending and receiving of prisoner mailings and publications; and (v) the sufficiency of the procedures afforded to inmates and senders of mail when prisoners are denied certain mailings and publications. 1 On October 25, 2005, Plaintiff was released from prison, but he continues to pursue this litigation.

explaining:

In his third and eighth allegations, Plaintiff claims that Defendants denied him approximately 52 books on the basis of content in violation of the First Amendment. These books include: (1) The Catalog of Catalogs VI; (2) Mathematical Cryptology; (3) Applied Cryptography; (4) Using Microsoft Visual InterDev; (5) C++ How to Program; (6) Dubugging C++; (7) Night Movements; (8) Inside Kung-Fu; (9) Complete Karate; (10) Far Beyond Defensive Tactics; (11) SAS Training Manual; (12) The Encyclopedia of Survival Techniques; (13) The SAS Guide to Tracking; (14) Ninja: History and Tradition; (15) Ninja: Power of the Mind; (16) Ninja Mind Control; (16) Bin Laden: The Man Who Declared War on America; (17) Revolution by the Book; Different Loving; (18) How to Survive the IRS; (19) Witchcraft: A Secret History; (20) Practical Electronics; (21) Lip Reading Made Easy; (22) HansWehr Arabic English Dictionary; (23) Que Tal?; (24) C++ from the Ground Up; (25) Visual Basic from the Ground Up; (26) Ditch Medicine; (27) Do it Yourself Medicine; (28) The Mammoth Book of Love and Sensuality; (29) The Joy of Sex; (30) Building Bots; (31) Gonzo Gizmos; (32) Booby Trap Identification and Response Guide; (33) Death Investigator’s Handbook and DEA Investigator’s Manual; (34) Georgia Criminal Trial Practice; (35) Georgia Criminal Trial Practice–Forms; (36) Georgia Handbook on Criminal Evidence; (37) Green’s Georgia Law on Evidence; (38) Criminal Investigation: Basic Perspectives; (39) Law Enforcement Technology 260: Criminal Investigation; (40) U.S. Army Special Forces Medical Handbook; (41) Military Book Club Emergency Medical Procedures; (42) The Tao of Sexuality; (43) Ragnar’s Guide to the Underground Economy; (44) Investing Offshore; (45) Electronic Circuits and Secret of an Old-Fashioned Spy; (46) The Black Science: Ancient and Modern Techniques of Ninja Mind Control; (47) The Kama Sutra; (48) Samurai: The World of the Warrior; (49) Leadership Lessons of the Navy Seals; (50) Experiments in Electronic Devices and Circuits; (51) three Fantagraphics books; and (52) Guide to Getting it On. (See Pl.’s Statement of Material Facts [hereinafter “Pl.’s SMF”] PP 15-59.)

Defendants do not dispute that they denied Plaintiff these books. Rather, Defendants argue that Plaintiff has failed to demonstrate that he followed the proper procedures in requesting the books, and that, in any event, the books were properly denied on procedural grounds or after a review by a publications review panel. Defendants claim they are therefore entitled to qualified immunity, notwithstanding the reasons for the denial of each individual publication.

Go to this Headnote in the case.Regulations affecting the sending of publications to a prisoner are analyzed under the Turner reasonableness standard. Thornburgh, 490 U.S. at 413 (citing Turner, 482 U.S. at 89). Such regulations are valid if they are reasonably related to legitimate penological interests.

also,

As another example, Plaintiff claims that on October 26, 2004, two books, The Ninja and Endurance Techniques, were denied to Plaintiff. He claims that he was initially denied an opportunity to appeal, but after filing a grievance relating to that denial, Plaintiff was ostensibly given an opportunity to appeal. Nevertheless, Plaintiff alleges that Defendant Hilton Hall “refused to impound the publication for review by the [Publications Review Committee].” After Plaintiff filed another grievance relating to the denial of an opportunity to appeal, Defendant Steve Benton rejected the appeal, stating “only if the facility cannot determine admissibility is the publication to be impounded for further review by the PRC.” (See Pl.’s SMF P 46.) Once again, Defendants “dispute these allegations as written,” without providing any argument or citation to evidence in the record. (See Defs.’ SMF P 46.)

This case decision is on motion for Summary Judgment. The Court granted the motion in part and denied in part. For example the Defendant prison guards were granted summary judgment as related to the wearing of the Kufi. But as to the books, the allegation lived on. But ultimately in subsequent appeal, on a motion to vacate, in the same Court, Judge Story wrote on January 8, 2008, Daker v Chatman, 2008 U.S. Dist. LEXIS 1192 :

Plaintiff has demonstrated, that reasonable prison officials could disagree over whether certain of these titles pose legitimate security concerns in a prison environment. But that disagreement entitles Defendants to qualified immunity. Unless no reasonable prison official could conclude that any of these publications present a security risk, then the “considerable deference” owed to officials engaged in the “‘inordinately difficult undertaking’ that is modern prison administration” and the robust legal protection afforded to governmental agents, who must be allowed to “carry out their discretionary duties without the fear of personal liability or harassing litigation,” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002), entitles the denying official to qualified immunity. See Duamutef v. Hollins, 297 F.3d 108, 112 (2d Cir. 2002) (applying “heightened deference” to prison official’s decision to censor publications). For these reasons and for the reasons stated in its Order of August 24, 2007, the Court remains convinced that the denial of these publications was consistent with the protections afforded to prisoners under the First Amendment, see Turner v. Safley, 482 U.S. 78, 85, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), and thus, Plaintiff suffered no constitutional injury. Insofar as Plaintiff moves to vacate this Court’s Order of August 24, 2007, that Motion is DENIED.

Amazingly, this is nowhere near the end of the story. Waseem Daker did get out of prison in 2005 but was re-arrested in 2010 on charges related to the same incidents from 1995. His original imprisonment was related to stalking and assault, and 2010 they arrested him for murder. An order May 9, 2011 by Magistrate Judge E. Clayton Scofield III, in Daker v. Warren, 2011 U.S. Dist. LEXIS 116451, explains,

At the combined probable cause/bond hearing on February 18, [2010] at which Daker was represented by retained counsel, attorney Brian Steel, the trial court heard testimony from Daker’s brother revealing that Daker (who was born in 1977) has family ties to Syria, where his parents were born and raised. The court also heard that Daker has lived in the Atlanta area since 1990; that after his release from state prison in 2005, following ten years of incarceration, until his arrest in January 2010, he worked in the family business as the general manager of a furniture store and lived with his family, who currently reside in a half-million dollar home; and that he has an expired Canadian passport, although it is unclear whether he has dual citizenship in Canada and the United States. (Probable Cause/Bond Hr’g Tr. at 31-41, ECF No. 4-1 at 39-49.) The state argued that Daker’s family has “large assets” and “connections in Syria, where the family’s from” and where Daker has traveled, and that Daker had “connections to Canada” at some point as well: “He has the ability to flee, he has the connections to flee, he’s a risk of flight.” (Id., Hr’g Tr. at 54-55, ECF No. 4-1 at 62-63.) The trial court ruled as follows: “Well, murder is different . . . [addressing Daker’s attorney], in the sense that somebody’s facing a life sentence, so I think that’s a strong motivation for someone to flee, or to think about fleeing. So, today I’m going to deny bond.” (Id., Hr’g Tr. at 55.) Daker filed a state habeas petition, which was denied on June 24, 2010. The Georgia Supreme Court, on November 3, 2010, denied Daker’s application for a certificate of probable cause to appeal that denial. (Pet. ¶ 10.)

And recently, June 25, 2012, Judge Story denied a variety of Daker’s motions in Daker v. Warren, 2012 U.S. Dist. LEXIS 87517, including a motion to reconsider bail, and a motion to recuse both Judge Story and Magistrate Judge Scofield, amongst other pretrial motions. The case remained on the docket the next day, but I can’t tell if it went to trial. It seems Daker first parted with his retained attorney nd was then acting pro se, filing all sorts of motions and then the Court took the unusual step of appointed backup counsel, and Daker seemed to allow that counsel to takeover (?) All this back-and-forth may be an attempted tactic. See article in Marietta Daily Journal “Trial of man accused in gruesome 1995 murder delayed 90 days” and in Atlanta Journal New, Cobb County: “Defendant representing himself in 1995 murder case” – But nothing more recent. Does that mean he hasn’t gone to trial yet or did he take an unreported plea?

waseem daker

— UPDATE —
Murder trial of Waseem Daker to begin in September“, Examiner.com, August 25, by Leigh Egan:

jury selection will begin on September 10th. The trial is set to take place at the Cobb County Superior Court.

Daker, 34, was charged in 2010 with the 1995 murder of Karmen Smith. Smith, a Delta flight attendant, was murdered in her Cobb County home. Only a year after the murder took place, Daker was accused of stalking Smith’s roommate. Subsequently, he was convicted and spent ten years in state prison. Although he remained as an person of interest in Smith’s murder, it wasn’t until 2010 that he was charged, based upon DNA evidence that was found at the scene.

Since then, Daker has attempted represent himself after firing several public and private defenders. Recently, however, he agreed to be represented by the law team of Michael and Jason Treadaway.

— UPDATE 2 — 9/9/2012

Murder trial to begin in Cobb woman’s 1995 strangling” by By Andria Simmons in The Atlanta Journal-Constitution

— UPDATE 3 — 9/14/2012
Defendant represents himself in flight attendant murder case” By Andria Simmons in The Atlanta Journal-Constitution
Stalking victim testifies in Cobb murder trial” By Andria Simmons in The Atlanta Journal-Constitution

The story is also being covered by Kim Issa in The Marietta Daily Journal:
“Opening arguments to begin today in E. Cobb murder trial” by Kim Isaza
Murder suspect was urged to get professional help” by Kim Isaza

and Andrew Spencer at WSBradio
Man charged in 1995 Cobb Co. murder representing himself” by Andrew Spencer as WSBradio
Defendant wants new lawyers in 1995 Cobb murder trial” by Andrew Spencer as WSBradio

— UPDATE 4 – 10/1/2012
“Daker sentenced to life plus 47 years” by Andria Simmons for AJC including a quote from the surviving victim, the son of the murdered woman, himself also assaulted and now currently 22 year’s old.

In yet another decision on a habeas petition there is reference to “Ninja-type” clothing involved in the underlying criminal activity. In this case the Court denies and dismisses with prejudice the petition of John Robert Tory, “convicted by a jury in Knox County, Tennessee, of first-degree felony murder and especially aggravated robbery; he was sentenced to consecutive prison terms of life and 22 years, respectively.”

JOHN ROBERT TORY, Petitioner,
v.
HOWARD CARLTON, Warden, Respondent.

No. 3:05-cv-169
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE
2006 U.S. Dist. LEXIS 16484

Decided March 14, 2006

The opinion by Judge Leon Jordan quotes the facts from the Tennessee Court of Criminal Appeals (the direct appeal), including:

A search warrant was obtained for the defendant’s residence and was executed while the defendant was present. During the search, police found and seized three sets of “black Ninja-type clothing,” including two hoods, a tee-shirt and other items of clothing, nine millimeter and .38 caliber ammunition, and a sawed-off shotgun.

The defendant was taken into custody and, after being advised of his constitutional rights and signing a waiver of same, he was questioned at some length.

And:

The reason they went to the house was to rob the victim. Defendant and his two associates wore black Ninja-type hoods and the defendant was armed with a nine millimeter semi-automatic pistol.

This 1996 case is about a Buddhist prisoner (convicted of murder and sentenced to life in prison) who claims violations of his First Amendment right to practice his religion while in Michigan prison.

TEMUJIN KENSU, Plaintiff, V. DAVID CASON, JR., et al., Defendants.
Case No. 1:91-CV-300
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
1996 U.S. Dist. LEXIS 5468

Decided – March 29, 1996

The Court explains:

While plaintiff’s claims might be succinctly characterized simply as free exercise and retaliation claims, in reality his grievances impact on virtually all aspects of the terms of his confinement. His claims involve the recognition of his religion and the right to individual and corporate practice; the availability of Buddhist books or literature in the prison libraries and visiting rooms; the composition of the Chaplains Advisory Council; shake-downs on visitations; the MDOC policy on assuming religious names; transfers to impede his ability to practice his religion and/or in retaliation for grievances filed in connection with his right to practice his religion; name-calling by prison guards; surveillance of plaintiff and his visitors in prison visiting rooms; prison newspaper publication policies; security reclassifications based upon or in retaliation for his exercise of his religious rights; cell assignments, mock pack-ups of prisoner property; the availability of tallow-free soap and hair conditioner; the composition of religious task forces; the right to sleep on the floor notwithstanding prison count policy; approval of religious vendors; the availability of protein tablets to supplement a meat-free diet; and the availability of an extensive amount of religious items and clothing.

The court notes that:

Plaintiff is also trained in several martial arts. He testified that he has a brown belt in Japanese karate and a black belt in Korean Tae Kwon Do. He admitted that he was referred to as the “Ninja Assassin” in his trial and that he had discussed his interest in the martial arts with various prison guards. Although plaintiff contends he is a pacifist, he testified that there had been at least 15 attacks on him by inmates at various prisons.

And that:

Plaintiff’s complaints about harassment were corroborated by inmates Andrew Trombley, Patrick Brown, Robert Harris and Jeffrey Terry. Mr. Trombley testified that Buddhists were not permitted to pray at meals and they were threatened with a major misconduct by the guards. Mr. Brown testified that Buddhists were called Ginsu knives and Ninja warriors by the guards at Muskegon. He also testified that Buddhists were subjected to general harassment, including mock pack-ups, pat downs, reviews of their identification and shake-downs. Mr. Harris testified that Buddhists were shaken down and harassed by guards when reading in a group. He also contended he had been denied parole three times due to his religion. Mr. Terry testified that Buddhists were called Buttyists by prison guards.

Analysis under RFRA, most of the plaintiff’s claims were denied (including denying claims for better vegetarian food options, protein supplements, soap made without animal products, chopsticks, and extra blanket to sleep on the floor, among others) but the Court did find one violation of his rights:

defendants’ policy, practice or custom of prohibiting all use by plaintiff of a simple altar and incense in his practice of Buddhism is a violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. Because the use of an altar and incense is fundamental or central to the exercise of plaintiff’s religion, and because defendants have failed to show that outright prohibition of such items is the least restrictive means of serving defendants’ legitimate penological objectives, defendants must either allow plaintiff to possess and use an altar and incense in his cell or must offer him the opportunity to use such items regularly in a designated location in the prison facility on terms comparable to those on which members of other religious groups are permitted to participate in religious rituals and ceremonies.

Therefore, as a prevailing party, the plaintiff’s attorney fees were paid. Still most of his complaints were denied.