INTHE COURT OF APPEALS OF MARYLAND Petition No. 93 September Term, 2016 BRETT KIMBERLIN, v. AARON WALKER, et al. MOTION TO RECONSIDER DENIAL OF PETITION FOR CERTIORARI Now comes Petitioner Brett Kimberlin and moves this Court to conduct a de novo reconsideration of its June 24, 2016 denial of his Petition for a Writ of Certiorari on the very serious ground of conflict of interest by Judge Lynne Battaglia. In support ofthis motion, Petitioner states the following: 1. This Court denied the petition on june 24, 2016. Petitioner received a copy ofthe denial by United States Mail on June 29, 2016. 2. Petitioner then began researching the filing of a Petitioner for Certiorari to the United States Supreme Court on two issues—(1) the conflict of Court's Article 9- 104 with Rock v. Arkansas, 483 U.S. 44 (1987), and (2) the conflict created regarding the standard of proof of falsity in a defamation case. 3. During Petitioner's research, he discovered that one of the judges in this, Court who considered the Petitioner's Petition for Certiorari was Lynne Battaglia, whose name was familiar to Petitioner. Petitioner did not know that Judge Battaglia was a judge in this Court, and so he then researched Judge Battaglia’s bio and confirmed that in 1997, she was personally involved in prosecuting Petitioner while United States Attorney for the District of Maryland. Judge Battaglia was not simply asupervisory attorney to an Assistant United States Attorney but in fact personally wrote and signed at least one letter to the United States Parole Commission that featured false information that the Commission relied on to make an adverse decision against Petitioner. Petitioner then had to file a petition for a writ of habeas corpus to attempt to overturn that decision, yet Judge Battaglia refused to admit that she provided the Commission with false or erroneous information despite witness testimony and documentary evidence to the contrary. This resulted in a gross miscarriage of justice to Petitioner, including his false imprisonment. 4, On June 9, 2016, the United States Supreme Court ruled in Williams v. Pennsylvania, that a judge who was District Attorney when the defendant received the death penalty should not have participated in any decision involving the defendant in the Pennsylvania Supreme Court where the former DA was later a Supreme Court Judge. In the words of the Court: "Under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case.” 5. The Court went on to find the error was not harmless even if the judge’s vote was not a deciding factor in the case. “An unconstitutional failure to recuse constitutes structural error that is “not amenable” to harmless-error review, regardless of whether the judge's vote was dispositive, Puckett v. United States, 556 U.S. 129, 141. Because an appellate panel's deliberations are generally confidential, it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process. Indeed, one purpose of judicial confidentiality is to ensure that jurists can reexamine old ideas and suggest new ones, while both seeking to persuade and being open to persuasion by their colleagues. It does not matter whetherthe disqualified judge’s vote was necessary to the disposition of the case. The fact that the interested judge’s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position—an outcome that does not lessen the unfairness to the affected party. A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of. one jurist, but of the larger institution of which he or she is a part. Because Chief Justice Castille’s participation in Williams's case was an error that affected the State Supreme Court's whole adjudicatory framework below, Williams must be granted an opportunity to present his claims to a court unburdened by any “possible temptation... not to hold the balance nice, clear and true between the State and the accused,” 6. In the instant case, it was incumbent on Judge Battaglia to recuse herself from participating in Petitioner’s case before this Court. She was or should have been aware that she prosecuted Petitioner and was personally involved with his prior case, and that she was called out for providing crucial false information to the United States Parole Commission that was relied on to falsely imprison him. Petitioner's case was not a run of the mill case but rather was a high profile case where intense political pressure was placed on Judge Battaglia to punish Petitioner, even if that meant using false information. Indeed, it was highly unusual for a United States Attorney to get involved with a case such as Petitioner's, yet she took that unusual step in order to place the credibility and full weight of the United State's Attorney to punish Pet joner for a fabricated crime using false evidence created out of whole cloth by Judge Battaglia and her office. 7. Because Judge Battaglia’s “participation in Petitioner's] case was an error that affected [the Court's] whole adjudicatory framework, [Petitioner] must begranted an opportunity to present his claims to a court unburdened by [bias or conflict of interest].." 8. In light of Williams, this Court should correct this error rather than requiring Petitioner to seek a remand from the Supreme Court. Wherefore, Petitioner moves this Court to conduct a full de novo reconsideration of his Petition for Certiorari without the participation of Judge Battaglia. justicejtmp@comcast.net (301) 3205921 Certificate of Service Petitioner certifies that he served a copy of this motion on Respdhident Walker J this 3" day of July, 2016 / Lp oniGe Brett AFFIDAVIT I swear under penalty of perjury that the aboye‘ig true and corpét. Dated this 3™4 day of July, 2016 Brett Kimberlin