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Request for Re-Hearing and En Banc Hearing

U.S. 10th CIR. CT. of APPS.

In re: James Bauhaus                                                                                       Cs# 07-5141

Movant

REQUEST FOR RE-HEARING AND EN BANC HEARING

Rehearing and En Banc hearing is requested and required because judges McConnell, Tymkovich and Holmes apparently failed to read the entire brief and record, and subsequently did introduce more error and misconstruction upon a fairly simple case of evidence theft and perjury by prosecuting attorney and police.

The judges first err in twice trying to support their erroneous findings and conclusions by basing them on a falsehood. In paragraph 2, line 12 and paragraph 3, line 4 of their 10-23-07 Order, the judges make the very subtle, yet absolutely false claim that. –.[prosecutor and police( had more samples [of the killer’s blood] …than they presented at trial”. In all my numerous and latest attempts to squeeze even the tiniest drop of justice out of this thoroughly scurrilous, obviously bogus conviction, I make it abundantly clear through many exhibits that this case is about evidence THEFT by prosecutor and evidence theft by police. Obviously, in the case of evidence theft, such as this one, NO evidence which was stolen was ever “…presented at trial”. Somehow each and every appeals judge faced with this fact of evidence theft and the signed police reports that prove that police/ prosecutor evidence theft occurred beyond a shadow of any doubt, is blind to the fact and the proof, and concocts some way to squirm out of it. They twist the record some cunning way that only lawyers can do, then rule on their twists instead of the facts presented. (Specifically see www.jamesbauhaus.com exhibits 1-6 and the twists of fed. N. OK judge Sven Eric Holmes and 10 cir. judges O’Brien, Hartz and Kelley, which I detail in my “Motion for Remand” (07-5141) and “Request for En Banc Hearing” (07-5094). McConnell, Tymkovich and Holmes now leech onto the mere method of the theft to dodge granting justice. (The police/FBI/prosecutor pretending to waste the killer’s blood. The killer’s blood samples (9) were returned to Tulsa Police Officer Donald Peyton, who has YET to account for this theft, DESPITE a mountain of my legal instruments attempting to obtain same.) McConnell, Tymkovich and Holmes attempt to vend an utterly false scenario that they concocted themselves out of nothing. Like magicians, they claim, with no proof what so ever, and in direct opposition to the recorded, exhibited and signed facts, that somewhere, somehow, a portion of the stolen DNA WAS “..-presented at trial”. The actual fact is: Not ANY OF THE STOLEN DNA was ever presented at trial. NONE: Zero amount: Each and every one of the nine known DNA samples were STOLEN by Tulsa authorities and REMAIN STOLEN AND CONCEALED TO THIS DAY:

This is unbelievable. This is the type of judicial behavior one might expect to see in a Libyan “court” or in the “court” of Ugandan dictator Idi Amin, NOT in any American court. Yet the fact that this has happened over and over again and again for over 35 years proves it to be a secret judicial agenda to protect this killer and kill this innocent. I thank judges McConnell, Tymkovich and Holmes for their extremely subtle and quiet correction of one of the frauds of their fellows, Kelley, Hartz and O’Brien, by switching, in paragraph 2, line 15 in their Order, back to the word “evidence” from Kelley, Hartz and O’Brien’s unlawful requirement of absolute proof of innocence demanded in their order 07-5094.

Even so, these irrefutable facts have been undeniably proved and never properly addressed by ANY of over 40 judges:

1. The Tulsa Police STOLE 9 killer’s DNA samples, (www.jamesbauhaus.com, exhibits 1-6).

2. Prosecutor Jerry Truster LIED under oath, at trial, to jurors, to trick them into convicting an innocent teenager and to cover up this theft of the killer’s 9 DNA samples and 21 fingerprints, (exhibits A-V and tr. p. 241).

3. The ONLY reason for police to STEAL the killer’s DNA is to convict the innocent.

4. The ONLY reason for Prosecutor Truster to LIE to jurors about STOLEN DNA is to convict the innocent.

This God Damned sure does prove that “no reasonable factfinder would have found [me] guilty…” Every reasonable factfinder would have been stupified and astonished to learn that police and prosecutors can and often do, and did, simply steal the DNA that proves innocence, LIE about it under oath at trial to jurors, and thus protect a killer from ever being identified and caught, murder an innocent by incarceration, and get away with these crimes scot free, forever, even after being CAUGHT IN THE ACT of stealing DNA and lying about it to jurors!

These four simple facts are as clear, plain, obvious and GLARING as the sun in your eyes. Everyone on this planet can see this, yet an honest ruling from any judge is impossible so far. Each and every one of 46 judges all chose to duck, dodge and run away from these simple, proven facts at top speed, to dive into their thickets of petty, legal, rhetoric/technicalities to hide instead of simply correcting these FLAGRANT thefts, lies, deceits and frauds. This proves that 46 judges are NOT “reasonable fact finders”. This fact that judges have a conviction preserving bias is why the bedrock of western law is NOT judges, but JURORS. JURORS are the “reasonable fact finders” that the LAW requires. McConnell, Tymkovich and Holmes and 43 other judges USURP this juror function when they prevent jurors from seeing police/FBI/prosecutor stolen evidence and insist that fraud is fair, lies are truth, theft is …presenting at trial”, technicalities trump innocence, etc. These 46 judges prove the necessity of jurors as the Quality Control and Oversight required to provide honesty in the judicial system. Without jurors, the state would never do anything but what it has done in this case from the start for 35 years: lie, cheat, deceive, steal and rubberstamp its gleeful approval of its lies, cheats, deceits and thefts.

McConnell, Tymkovich and Holmes go on to ignore every bit of law I cited about the judges’ common tactic of title-switching. When judges can’t squirm around the law as it was written, they simply switch the titles of supplicants’ appeals to different titles and different law; a law that they have specifically gutted for the purpose of preventing justice from occurring E.g., State judges couldn’t stand state constitutional habeas corpus law, so they butchered citizens’ state habeas corpus rights by concocting and passing worthless, rights’-stealing “post-conviction appeal “laws that cunningly revoke citizens’ state habeas corpus rights. Likewise, federal judges could not stand US citizens’ constitutional habeas corpus rights, so they ran to their legislative brethren and butchered and gutted the justice out of citizens’ federal constitutional habeas corpus rights. (see motion for Remand, part B and www.jamesbauhaus.com exhibit 6). Now McConnell, Tymkovich and Holmes, et al, can’t stand the justice required by, and demanded by, their own federal rule of civil procedure 60 B (3)(6), so they cunningly rubberstamp and parrot previous judges’ title-switching crimes. (Subverting the law and the spirit of the law is indeed crime.)

In trying to justify their title-switching from the no-nonsense strictures of rule 60 B (3) (6) to the legally butchered, gutted, rotting, worthless carcass of habeas corpus, the judges run at top speed away from the fact that I’ve proven very many “…defect(s) in the integrity of federal habeas proceedings” (Gonzalez v Crosby, 545 US at 532, (2005) by pointing out fed. N. judge Sven Eric Holmes’ mal-construction of my habeas corpus 96-cv-929-seh in my Motion for Remand, part B. 07-5141. These defects beg correction by this error, fraud and misrepresentation correcting device (rule 60 B). Rule 60 B (3)(6) et seq. ITSELF provides remedy for “substantive claims”. NEGATING any need to reach over and use a law that was NOT designed for the purpose of correcting the record. These judges efforts to stretch butchered, gutted habeas corpus law to cover rule 60 B is disingenuous. The obvious facts clearly raised in my motion for remand, are: judge Sven Eric Holmes used several frauds to protect the killer and prevent justice in my habeas corpus 96-cv-929-seh: 10th cir. judges Brobrey, Lucero, Tacha, Balcock and Anderson, et al, parrotted his bogus ruling, also preventing uncovering of the killer; fed. N. judges Kerns, Ellison, Eagan, et al, likewise dodged justice and protected the killer by deliberately and unlawfully thwarting discovery, mandamus, coram nobis and other legal instruments attempting to force Tulsa authorities to stop concealing the killer’s DNA, fingerprints (21), identity and many other known specimens of exculpatory evidence. Then lOth cir. judges Hartz, Kelley and O’Brien committed their own fraud (word-switching and standard raising) to protect the killer’s identity, DNA, fingerprints etc and keep an innocent in prison, (07-5094). I thus had no choice but to try and use rule 60 B to try and finally purge the multitude of frauds that these many judges continue to rely on and create to prevent justice, protect the killer’s DNA/fingerprints/identity from disclosure and to help Tulsa authorities continue to conceal and steal many known specimens of exculpatory evidence in their files, and to prevent Tulsa Police officer Donald Peyton and Dr. Hinkle from ever having to finally answer the simple question of what they did with the 9 killer’s DNA samples that are in their possession. Clearly the only way to expunge these many frauds is through use of the legal device SPECIFICALLY DESIGNED for expunging fraud; NOT habeas corpus; RULE 60 B! Judges McConnel, Tymkovich and Holmes should cease their efforts to stretch habeas law to strangle rule 60 B.

Further, because this fraudulent conviction was perpetrated decades PRIOR to recent judicio-legislative butchering of citizens’ habeas corpus, coram nobis and other constitutional rights, attempts to extend these rights-thefts backward in time constitute ex post facto laws, which, as every 5th grade schoolchild knows, is expressly forbidden and outlawed by the Supreme Law of the Land, i.e. the United States Constitution.

Further, these are not “the same claimes” (as previously raised); these are attempts to get specific, named, detailed judicial and police/ FBI/prosecutor FRAUDS expunged from the record. This is the precise function of rule 60 B. In contrast, the removal of frauds from the record constitutes NO PART AT ALL the function of habeas corpus- Judges McConnell, Tymkovich and Holmes perform the function of sleazy used car dealers, steering gullible rubes toward the lemon, when their JOBS are to make Tulsa authorities get off the killer’s DNA, fingerprints, stop concealing his identity and free the fraudulently convicted innocent man. Title-switching is FRAUD! Concocting the falsehood that “some” of the stolen evidence was “–.presented at trial” is MORE FRAUD! Trying to stretch habeas corpus law over the throat of rule 60 B in order to strangle it is fraud!

State and federal authorities love to whine about prisoners squandering “precious judicial resources” and use this as their excuse for hacking off ever more prisoner AND CITIZENS rights. In this case, AND IN 15% OF ALL CASES, you judges squander your OWN “precious judicial resources” by simply REFUSING to grant justice: Give yourselves a break from your conviction-preserving bias and let ACTUAL factfinders (jurors) do their job: (See www.jamesbauhaus.com “Death Penalty Study of Columbia University”)

RELIEF REQUESTED

Same as before, in …Remand, Correct the record. Expunge the frauds Rule Honestly.         Force Tulsa Police, the FBI. Officer Peyton, prosecutor Truster, Dr. Hinkle, et al, to release their stolen evidence and DNA and fingerprints, give up the killer’s identity and testify truthfully. This case can not, will not, and SHOULD NOT ever “terminate” as McConnell, Tymkovich and Holmes wish while the killer of Mr. Hunt continues to walk free and enjoy the protection of the multitude of police, FBI, prosecutors and judges who are HELL BENT on preventing his DNA, fingerprints and identity from escaping from police hands and getting into public knowledge.

So Prayed,

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