To all interested parties, friends, family & supporters!
For years, I’ve told people that I’m being held hostage by the Commonwealth of Kentucky due to a “black hole” of justice, or more accurately, an undefined area of the law. For the last 11+ years since my conviction, that’s been the case but that may have changed during the last US Supreme Court Session with their ruling on Counterman v. Colorado.
Honestly, this ultra-conservative Supreme Court has NOT been a good thing for the unjustly incarcerated. The “Ramirez” opinion from last year’s session drove the final nail in most people’s bid for freedom if they were seeking federal relief after exhausting their state appeals (like myself). “Ramirez” limited the scope of what we are allowed to appeal in Federal Court to ONLY what was preserved on the record at trial. A vast majority of post-conviction appeals are based upon having extremely poor trial counsel, meaning if you had a bad lawyer, he or she probably didn’t put on much of a defense or create much of a trial record. A lawyer creates a trial record by getting the judge to rule on the record, for example: an active lawyer files motions the judge must rule on; the lawyer objects to opposing counsel, etc. An inactive lawyer does NONE of those things upon which to base an appeal… You’d be surprised how many pro-se appeals I’ve written for guys based on “Ineffective Assistance of Counsel based on the 5th, 6th and 14th amendments, where their lawyer was actually caught ASLEEP during trial at the defense table…
So I’m going to get fired up and side-tracked here… Our storied president Joe Biden attempts to sell himself as compassionate and moral (or course standing next to trump, Sadaam Hussein would look moral) But there are plenty of political skeletons in his closet after 40 years of service. Biden led the Senate to the devastating reforms of the “Crime bill” in the ‘90s that helped to build the “for profit” prison industry and the “monetization of justice” in our society. Biden wrote and sponsored the “Anti-Terrorism Evasive Death Penalty act” (AEDPA) and the “Prison Litigation Reform Act” in the U.S. Senate. Both laws moved us more closely to being called an “incarceration nation” that imprisons minorities at much higher rates per capita than non-minorities.
An example of how deeply affected the culture has become: Before the 1994 Crime bill, a wrongfully convicted prisoner could file as many “Writs for Habeas Corpus” (a demand for Due Process) in Federal Court as they wanted. The Gideon case comes to mind (please keep in mind that I have no dictionary, no Google, just my noggin..), he was a nearly illiterate prisoner that filed 18 pro se Habeas Corpus actions in federal court due to inadequate legal representation that led to a wrongful conviction. One of his writs was famously written out on a paper towel! His 18th Writ was powerful enough to turn our legal culture on its head by establishing the Public Defender’s office and making free attorneys mandatory nationally for the indigent defendant. With the passage of the AEDPA, a prisoner only gets one shot at a Federal Habeas and that shot is so mired in Procedural defaults as to be nearly impossible to navigate. The prisoner has to exhaust his state appeals, preserving his issues exactly and properly at every step and file the Writ within 12 months of the date of their final sentencing (the clock is not running if a state appeal is pending).
Things come up in prison. Things like the “Hole” where I am currently being held hostage. Things like COVID. Things like the “Ramirez” decision. The hoops we have had to jump through to stop Joe Biden’s clock, the lows and highs, the stops and starts, “breathe held” have been crazy and don’t make any sense! There’s a prevailing opinion amongst the Judiciary and the Legislature, and amongst the public too, that people in Prison have “had their chance” so we should never get out. People put so much stock in our jury system that the concept of a wrongful conviction is unfathomable. Then once you’re convicted, a stigma is attached. You’re no longer worth of civility, humanity or respect. True to form, going back all the way to our European roots, we isolate what is different or uncomfortable and lock it in together behind thickly guarded walls. At the time, Joe Biden even joked about his 1992 bill doing everything but hang people for Jay walking…
But what about the innocent in prison? Statistics continue to reflect that this is a growing reality. We know that many wrongly convicted have been sentenced to death and some executed. Many sentenced for life. Joe Biden seems to have changed his tack—or at least his words—as political winds have shifted but there has been no effort to rescind the two laws that helped build the prison industrial system and have gutted the minority populations of their males for the last 3 ½ decades.
This is not a politically-driven rant, dear readers. I am NOT a trump fan, far from it. My oldest child is half-Venezuelan and I found trump’s immigration policies and willingness to separate babies from their parents for political gains detestable and immoral. But both Biden and Harris made careers out of decimating minority communities they ‘serve” by creating, monetizing, investing in and feeding the “incarceration nation”. As president, if Biden truly wanted to project a real change of heart and policy he could begin to fix the massive generational damage he’s done.
The AEDPA & PLRA still affect me every day of my life. I’m sure many of you are familiar with the facts behind my conviction but I’ll do a quick summation (I hope that’s possible for me!).
At a hearing before my trial, the Judge allowed the Prosecutors to change their “theory of the case” at the 11th hour which is HIGHLY improper and irregular—since 2 years earlier I had filed what is called a “Bill of Particulars” which legally locks them into their theory of the case. With the prosecutions change, they sought to introduce my honorable military service as a U.S. Airborne Ranger as a “Prior Crime”. All my combat deployments, my Purple Heart, my Valor Awards were equated by the Commonwealth as the same as a Robbery or a Burglary in my past… and Judge Thomas Clark of Lexington, KY allowed it. He ruled that my military service was inextricably intertwined with my character. Neither my lawyer nor I saw what was coming. Up to this point, my ex-girlfriend Jessica claimed that although we had been dating of and on for the last 18 months, that she had sex with me UNDER DURRESS because I threatened to put naked pictures of her on the internet. Not only was that not true, and we could prove it, but it also doesn’t meet the statutory requirement for what I was charge with. The lawyer I had for my trial, Andrew Stevens, didn’t even PREPARE for my trial because it was a “lay up case” as he described it. However, the day before my trial, the “lay up case” he had been paid $40,000 for became a nightmare when the prosecutors (Todd Bradbury and Kathy Philips supervised by Commonwealth Atty. Ray Larson) ambushed us by changing the theory of the case at the last minute, requesting that my entire defense by thrown out. Judge Clark went along with it! More unbelievable than that, my lawyer Andy didn’t want a continuance because he “just wanted this over with”–even though we had no defense and no strategy for one since the whole theory had just been changed!
One thing to understand, prosecutors will do ANYTHING to get a conviction, in my case even if unethical and immoral. It is their bread-n-butter, their power source and massively important to career. I believe they expected me to take the plea bargain that had been offered for “time served”, saving me from prison but would have made me a “Sex Offender” for the rest of my life with massive implications on my ability to work, live and be around other people, including my own children. I believe the judge was of the same mind, which is why he ruled so heavily against me. In order for sex to be “non-consensual” there has to be what’s called “forcible compulsion”. Forcible Compulsion is defined as “1. Use of force; 2) Threat of Force or 3) Implied Threat of Force. Jessica’s claim that she was under duress was a change (after pressure from Prosecutors) from “threat of blackmail (the pictures)”… the “Implied threat” theory was the punch line. She claimed she was scared to say “No” because she knew I was an Army Ranger who was trained to fight (she always knew this about me, it’s what she liked…) The Commonwealth came up with this dishonorable theory that my Military Service constituted the “Implied Threat” (!) thereby meeting the burden of the statute.
My lawyer, lazy and impatient, already paid, dismissed the nation of a continuance out of pocket as if he were annoyed with the idea. Please keep in mind, at the time I was facing basically a lifetime in Prison and Andy just “wanted it over with”. I know he never thought the jury would accept the “implied threat” theory. We found out later that he never expected me to go to trial—he expected them to drop the charges or for me to take the plea. But he NEVER prepared, not even for an hour. I think he objected 1 time during my entire 4-day trial and even then it’s because I forced him to. The corrupt military-hating prosecutors surprised us by putting on a “john Rambo” prosecution. They said the words “Crazy veteran” dozens of times. The prosecution had very little to do with an alleged “crime’ and everything to do with what a CRAZY VETERAN I COULD be…
The Implied Threat theory would affect every Veteran, every Law Enforcement Officer. Even people with Martial Arts training. Again, this was an undefined area of law from July 12th, 2012, the day a jury bought into this dishonest prosecution theory, until June 27th, 2023 when the Counterman opinion was published by the USSC.
The Counterman opinion essentially defines what an “actual threat” is. A “threat” used to be liberally defined by the courts as how the victim “felt” about a supposed threat. Many of you with rational minds can see the problem that kind of vagueness might cause. How do you prove or disprove what someone feels? Counterman offers us a solution by defining a “threat” as there being “actual malice” in the psychology of the person making the “threat”. So Actual Malice makes perfect sense! If someone comes by and makes the pistol sign at you and says “I’m gonna get you!” that’s obviously expressing Actual Malice. But if that same situation occurs and the person making the pistol sign says’ “Hey Slick!”, no Actual Malice was intended by the person whether you “feel” fear or not.
In my case, I was convicted offense because the Commonwealth of Kentucky decided that my years of combat, defending my country and avenging her fallen after 9-11 was not only a PRIOR CRIME, but automatically constituted an implied THREAT to the public. As I looked at the “jury of my peers”, I saw about half of them nodding their heads in agreement. People that had not spent one second serving their country exploited my military service to “win” a conviction and ruin a man’s life…I’ve NEVER understood how more people weren’t incensed by that fact…But now there’s the Counterman decision, a legal Precedent that says what I’ve been screaming about from the beginning!
The big question now is retroactivity. The 6th Circuit, the highest court in the land (and the 1st chance to get my case heard OUTSIDE of Kentucky!) has to decide to hear my case; it’s not an automatic appeal. It would be nice if it was! Does Counterman apply to me since it was JUST published even though it fits my case like a glove and would take me out of here? Even though my appeals are still active? My lawyers think it does but they don’t know…This is my hope!
We hover right above 2 million incarcerated citizens in this country and the “incarceration nation” just so happens to be one of the most profitable industries in the United States. In Kentucky, it has replaced Coal as the state’s largest economic drive. In Eastern KY it’s known as the “Appalachian prison boom”. The Crime bill made it unbelievably easy to come to prison as an innocent person because every step in the “justice” system is monetized and statistically driven, and then makes it near impossible to get out because it’s too much of a cash cow. Wrongful convictions are bad for business… I feel like I’m screaming into the void sometimes for myself and so many others that are voiceless—how can I get you to hear me??
My oldest baby turned 15 this last month. It’s a cultural milestone in a young Latina girl’s life! And it’s devastating to me to miss this birthday and not dance with my little girl on her quincienera. I have utterly failed my children by taking on this fight while others lose not a wink of sleep about the lives they destroy with their legal jockeying and maneuvering. My daughter won’t speak to me right now. She is FURIOUS with me because I’m not there—whether she realizes that’s why she’s angry or not. And she’s right to be angry, I deserve it. Dads don’t leave their kids. No excuses.
That’s the real cost of all of this.
Ranger Buckley From the front Lines Out!