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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRETT KIMBERLIN,
Appellant,
v.

No. 16-1657

MITCH MCCONNELL, ET AL,

Appellees

MOTION TO INTERVENE BY WILLIAM J. J. HOGE III

Pursuant to Rule 27 of the Federal Rules of Appellate Procedure, Mr. Hoge
moves this Court to permit him to intervene in this appeal as a party to three of the
cases Mr. Kimberlin claims will be likely to be affected by this appeal.

Interest of the Intervenor

Mr. Kimberlin has filed this appeal asserting that he has standing to
challenge the Appellees alleged failure to advise and consent to an appointment of
a justice to the Supreme Court. In Mr. Kimberlins Appellants Lead Brief

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(Docket #8), filed on July 6, 2016, Mr. Kimberlin claimed that he has standing in
part because:
Plaintiff [sic] is involved with several cases pending in federal court
that will most likely be considered by the Supreme Court. First, will
be a petition for certiorari from the Maryland Court of Appeals in
Kimberlin v. Walker. The mandate in that case was issued on June 23,
2016 so Appellant will file a Petitioner [sic] for Certiorari within 90
days, which will definitely be considered in the upcoming term.
pp. 4-5. The Kimberlin v. Walker, Mr. Kimberlin is referring to is almost
certainly referring to Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co.
Cir. Ct. 2013), affd Md. Ct. of Spec. App., Sept. Term 2014 Nos. 1553 and 2099,
Sept. Term 2015 No. 365 (Md. App. 2016) cert. den. Md. Ct. of App., Pet. Dkt. No.
93 (2016).
Mr. Hoge is one of the parties to that case,1 as well as Kimberlin v. Frey, No.
GJH-13-3059 (D. Md. 2013)2 and Kimberlin v. Hunton & Williams, LLP, et al.,
No. 15-CV-00723-GJH (D. Md. 2015). Mr. Kimberlins avowed goal in this
litigation is to gain an advantage in those other cases. Therefore, for the same

In the name of full disclosure, undersigned counsel is also a party to that case.
Although currently the only defendant named in that case is J. Patrick Frey, Esq.,
initially the case was against many persons and companies, including Mr. Hoge
and, in the name of full disclosure, undersigned counsel. All but Mr. Frey were
dismissed, and the case against Mr. Frey at the close of discovery. Mr. Kimberlin
has made it clear that he intends to appeal those dismissals when the case against
Mr. Frey is resolved.
2
2

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reason that Mr. Kimberlin claims to have an interest in the outcome of this case,
Mr. Hoge also has an interest in the outcome of this case.
Further, Mr. Hoge brings to this appeal something the Appellees are likely to
lack: an intimate knowledge of most of those other cases Mr. Kimberlin claims are
likely to come before the Supreme Court.

Indeed, the proposed Informal

Opposition reveals that Mr. Kimberlin appears to be attempting to mislead this

Court about the status of his petition for certiorari before the Maryland Court of
Appeals.

Accordingly, to protect Mr. Hoges interests in preventing Mr. Kimberlin

from gaining an improper advantage in litigation before the Supreme Court, Mr.
Hoge seeks leave to intervene in this appeal. His proposed informal opposition
brief is being filed simultaneously.

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Respectfully submitted,

/s/ Aaron J. Walker

Aaron J. Walker, Esq.
Attorney for William J. J. Hoge III
Va Bar# 48882
7537 Remington Road
Manassas, Virginia 20109
(703) 216-0455
AaronJW1972@gmail.com

CERTIFICATE OF COMPLIANCE
In accordance with Fed. R. App. P. 32(a)(7)(B) and (C), Mr. Walker certifies
that the accompanying brief is printed in 14 point typeface, with serifs, and,
including footnotes, contains no more than 14,000 words. According to Microsoft
Word, it contains approximately 494 words.

/s/ Aaron J. Walker

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CERTIFICATE OF SERVICE
I certify that on July 8, 2016, all parties by U.S. Mail as the following addresses:
Brett Kimberlin, 8100 Beech Tree Road, Bethesda, Maryland 20817
Senator Mitch McConnell, 317 Russell Senate Office Building, Washington,
D.C. 20510
Senator Charles Grassley, 135 Hart Senate Office Building, Washington,
D.C. 20510
/s/ Aaron J. Walker

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

APPEARANCE OF COUNSEL FORM

BAR ADMISSION & ECF REGISTRATION: If you have not been admitted to practice before the Fourth Circuit,
you must complete and return an Application for Admission before filing this form. If you were admitted to practice
under a different name than you are now using, you must include your former name when completing this form so that we
can locate you on the attorney roll. Electronic filing by counsel is required in all Fourth Circuit cases. If you have not
registered as a Fourth Circuit ECF Filer, please complete the required steps at Register for eFiling.
THE CLERK WILL ENTER MY APPEARANCE IN APPEAL NO. ______________________________ as
[ ]Retained [ ]Court-appointed(CJA) [ ]Court-assigned(non-CJA) [ ]Federal Defender [ ]Pro Bono [ ]Government
COUNSEL FOR: _______________________________________________________________________

__________________________________________________________________________________as the
(party name)
appellant(s)

appellee(s)

petitioner(s)

respondent(s)

amicus curiae

intervenor(s)

movant(s)

______________________________________
(signature)
________________________________________

_______________

Name (printed or typed)

Voice Phone

________________________________________

_______________

Firm Name (if applicable)

Fax Number

________________________________________
________________________________________

_________________________________

Address

E-mail address (print or type)

CERTIFICATE OF SERVICE
I certify that on _________________ the foregoing document was served on all parties or their counsel of record
through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the
addresses listed below:

______________________________
Signature
01/19/2016 SCC

____________________________
Date

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus
case, except that a disclosure statement is not required from the United States, from an indigent
party, or from a state or local government in a pro se case. In mandamus cases arising from a
civil or bankruptcy action, all parties to the action in the district court are considered parties to
the mandamus case.
Corporate defendants in a criminal or post-conviction case and corporate amici curiae are
required to file disclosure statements.
If counsel is not a registered ECF filer and does not intend to file documents other than the
required disclosure statement, counsel may file the disclosure statement in paper rather than
electronic form. Counsel has a continuing duty to update this information.
No. __________

Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

______________________________________________________________________________
(name of party/amicus)
______________________________________________________________________________
who is _______________________, makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)
1.

Is party/amicus a publicly held corporation or other publicly held entity?

2.

Does party/amicus have any parent corporations?

YES NO
If yes, identify all parent corporations, including all generations of parent corporations:

3.

Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?
YES NO
If yes, identify all such owners:

08/05/2015 SCC

-1-

YES

NO

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4.

Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1(b))?
YES NO
If yes, identify entity and nature of interest:

5.

Is party a trade association? (amici curiae do not complete this question)

YES NO
If yes, identify any publicly held member whose stock or equity value could be affected
substantially by the outcome of the proceeding or whose claims the trade association is
pursuing in a representative capacity, or state that there is no such member:

6.

Does this case arise out of a bankruptcy proceeding?

If yes, identify any trustee and the members of any creditors committee:

Signature: ____________________________________

YES

NO

Date: ___________________

Counsel for: __________________________________

CERTIFICATE OF SERVICE
**************************
I certify that on _________________ the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:

_______________________________
(signature)

________________________
(date)
-2-

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NO. 16-1657

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
_________
BRETT C. KIMBERLIN,
Appellant,
V.

SENATOR MITCH MCCONNELL, ET AL.,

Appellees.

_________
Appeal from the United States District Court for the District Of Maryland
(Hon. George J. Hazel, District Judge, presiding)

_________
INFORMAL OPPOSITION BRIEF OF INTERVENOR
WILLIAM HOGE III
_________
Aaron J. Walker, Esq.
Va Bar# 48882
7537 Remington Road
Manassas, Virginia 20109
(703) 216-0455
AaronJW1972@gmail.com

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INTERVENOR HOGES INFORMAL OPPOSITION BRIEF

Intervenor William J. J. Hoge III, by counsel Aaron J. Walker, Esq.,
provides this Informal Opposition Brief in response to the Informal Brief
(mislabeled an Appellants Lead Brief) (Doc. 8) filed by Appellant Kimberlin.

ii

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TABLE OF CONTENTS
TABLE OF AUTHORITIES

iv

STATEMENT OF ISSUES PRESENTED FOR REVIEW

STATEMENT OF THE CASE

ARGUMENT

I.

THE APPELLANT HAS ATTEMPTED TO MISLEAD THIS COURT

ABOUT THE STATUS OF KIMBERLIN V. WALKER, ET AL., AND HE
HAS NO OTHER CASE RIPE FOR SUPREME COURT REVIEW
2

II.

THE COURT BELOW PROPERLY DISMISSED THE CASE SUA

SPONTE
6

III.

IT IS NOT UNLAWFUL DISCRIMINATION TO TREAT MR.

KIMBERLIN DIFFERENTLY BECAUSE HE IS PRO SE
7

iii

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TABLE OF AUTHORITIES
CASES
Brickwood Contrs. v. Datanet Engineering, 369 F.3d 385 (4th Cir. 2004)

Cochran v. Morris, 73 F. 3d 1310 (4th Cir. 1996)

Kimberlin v. Frey, No. GJH-13-3059 (D. Md. 2013) 8-Error! Bookmark not defined.
Kimberlin v. McConnell, et al., No. GJH 16-01211 (D. Md. 2016)

passim

Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013), affd Md.
Ct. of Spec. App., Sept. Term 2014 Nos. 1553 and 2099, Sept. Term 2015 No. 365
(Md. App. 2016) cert. den. Md. Ct. of App., Pet. Dkt. No. 93 (2016)

passim

Miller v. Brown, 462 F. 3d 312 (4th Cir. 2006)

Public Citizen v. FEC, Case No. 14-00148 (D. D. C. 2014)

Warth v. Seldin, 422 US 490 (1975),

CONSTITUTION PROVISIONS AND RULES OF COURT

Fed. R. Civ. P. 56

Fed. R. Civ. P. 12

Md. R. 2-121

U.S. CONST. art. II, 2, para. 2, cl. 2

iv

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STATEMENT OF ISSUES PRESENTED FOR REVIEW

1.

Did the district court correctly rule that Mr. Kimberlin lacked standing

to sue?
2.

Did the district court correctly make its ruling sua sponte?

3.

Did the district court lawfully discriminate between lawyers and pro

se litigants?
STATEMENT OF THE CASE
On April 22, 2016, Mr. Kimberlin sued Senators Mitch McConnell and
Charles Grassley in their official capacities, for their failure to consent to the
appointment of Merrick Garland to the United States Supreme Court. Specifically,
Mr. Kimberlin argued that by failing to act in a timely fashion, the Senate has
waived its right to withhold consent under U.S. CONST. art. II, 2, para. 2, cl. 2,
and, therefore, Mr. Garland is entitled to be seated on the Supreme Court. On June
3, 2016, the U.S. District Court for the District of MarylandJudge Hazel,
presidingdismissed the case sua sponte, citing a lack of standing. In part, Judge
Hazel wrote that rather than showing a concrete injury, Mr. Kimberlins claim of
injury is speculative and prospective as he has no case before the Supreme
Court. Memorandum Opinion, Kimberlin v. McConnell, et al., No. GJH 1601211 (D. Md. 2016) (ECF No. 3), p. 2.

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Mr. Kimberlin challenges this sua sponte dismissal on three grounds. First,
he challenges the lower courts decision to dismiss the case sua sponte. Second, he
challenges the lower courts determination that he lacks standing. Finally, he
asserts that the rule that prevents pro se litigants from writing their own summons
is unlawfully discriminatory.
ARGUMENT
I.
THE APPELLANT HAS ATTEMPTED TO MISLEAD THIS COURT
ABOUT THE STATUS OF KIMBERLIN V. WALKER, ET AL., AND HE HAS
NO OTHER CASE RIPE FOR SUPREME COURT REVIEW
In Mr. Kimberlins Appellants Lead Brief (Docket #8), filed on July 6,
2016, Mr. Kimberlin claimed that he had standing in part because:
Plaintiff [sic] is involved with several cases pending in federal court
that will most likely be considered by the Supreme Court. First, will
be a petition for certiorari from the Maryland Court of Appeals in
Kimberlin v. Walker. The mandate in that case was issued on June 23,
2016 so Appellant will file a Petitioner [sic] for Certiorari within 90
days, which will definitely be considered in the upcoming term.
pp. 4-5. The Kimberlin v. Walker, Mr. Kimberlin is referring to is almost
certainly Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013),
affd Md. Ct. of Spec. App., Sept. Term 2014 Nos. 1553 and 2099, Sept. Term 2015
No. 365 (Md. App. 2016)1 cert. den. Md. Ct. of App., Pet. Dkt. No. 93 (2016).

The opinion is accessible at

unreportedopinions/2016/1553s14.pdf.

http://www.courts.state.md.us/appellate/
2

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First, difficulties in standing cited by the district court cannot be cured by

events subsequent to that dismissal. On the day that the lower court granted
dismissal, the Maryland Court of Appeals had not denied Mr. Kimberlin certiorari
in Kimberlin v. Walker, et al.2 Therefore, Mr. Kimberlin is inappropriately arguing
in this Court that he has acquired standing because of events that occurred after he
had filed suit and after dismissal.
However, Mr. Kimberlins difficulties in invoking Kimberlin v. Walker, et
al. go deeper. Mr. Kimberlins characterization of the status of that appeal is false.
In the above-quoted paragraph, he indicated that it was a certainty that he will file
a Petitioner for Certiorari to the Supreme Court. Presuming that he meant he
was going to file a petition for certiorari before the Supreme Court, this claim that
he was certain to file such a petition is impossible to reconcile in good faith with
what he had filed with the Maryland Court of Appeals three days earlier. Attached
as Exhibit A is a true and correct copy of a Motion to Reconsider Denial of
Petition for Certiorari filed in that court.3 In short, he told this Court that he was
done with the Maryland Court of Appeals, while three days earlier he had asked

See http://www.courts.state.md.us/coappeals/petitions/201606petitions.html
(stating that cert was denied on June 24, 2016).
3
Undersigned counsel has a certified copy of this motion, which can be filed with
this Court if there is any question as to the documents authenticity.
3

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the Maryland Court of Appeals to take a second look at his petition for writ of
certiorari before them.
Therefore, on the face of Exhibit A, it is not a certainty that Mr. Kimberlin
will be filing for a writ of certiorari before the Supreme Court anytime soon. If
Mr. Kimberlins bid for reconsideration is granted by the Maryland Court of
Appeals, that court might eventually grant cert. Further, upon granting cert., the
Maryland Court of Appeals might find reversible error in the conduct of the trial
below and vacate the judgment of the Montgomery County Circuit Court. In turn,
upon retrial, Mr. Kimberlin might win his case outright, eliminating the need for
any further appeals on his part. The point of laying out that scenario isnt to say it
is likelyMr. Hoge believes that Mr. Kimberlins chance of any success on appeal
is negligiblebut to say that by filing a motion to reconsider, Mr. Kimberlin has
changed the chances of filing a petition for certiorari from a certainty that
depended solely on his own determination and finances to a mere possibility.
Either that, or Mr. Kimberlin also believes that the Maryland Court of
Appeals is certain to deny reconsideration.

But if that is Mr. Kimberlins

assessment, then how can he ask for reconsideration before the Maryland Court of
Appeals in good faith?
The same problem plagues every other case that the Mr. Kimberlin claims
will most likely be considered by the Supreme Court.
4

It is true that Mr.

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Kimberlin has a number of cases before this Court, and othersmore than he has
listed, in fact. However, in order to believe that all of those cases are likely to be
considered by the United States Supreme Court, Mr. Kimberlin has to believe that
that every lawsuit he presently has in a trial court is doomed to fail, either by
dismissal, summary judgment, or a loss at trialand that every subordinate appeal,
be it before this Court or the appellate courts of Maryland, is equally doomed to
fail. In such a scenario, Mr. Kimberlin would be arguing that his cases are so
meritless that he will inevitably lose every trial and appeal until he fails upward to
the United States Supreme Court. However, if Mr. Kimberlin claims that such a
string of defeats were inevitable, how can he simultaneously claim that those cases
have merit? And how can he claim that he is likely to convince five justices
including, presumptively, Merrick Garlandto rule in his favor?
Finally, it is worth noting that Mr. Kimberlin has no lawful interest in the
outcome of Public Citizen v. FEC, Case No. 14-00148 (D. D. C. 2014). The
Plaintiffs listed in that suit are Public Citizen, Inc., ProtectOurElections.org, Craig
Holman and Kevin Zeese.

Mr. Kimberlin claims to be an officer in

ProtectOurElections.org, but that doesnt give him standing to assert the

companys rights before this Court and in no case can he represent them pro se.

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II.
THE COURT BELOW PROPERLY DISMISSED THE CASE SUA SPONTE
Mr. Kimberlin also believes it is somehow improper for the district court to
have done what district courts do all the time: dismiss cases sua sponte for want of
subject matter jurisdiction. Not only is what the court below did lawful, it is
mandatory. As stated by this Court in Brickwood Contrs. v. Datanet Engineering,
369 F.3d 385, 390 (4th Cir. 2004):
Federal courts are not courts of general jurisdiction; they have only
the power that is authorized by Article III of the Constitution and the
statutes enacted by Congress pursuant thereto. Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89
L.Ed.2d 501 (1986). Subject-matter jurisdiction cannot be conferred
by the parties, nor can a defect in subject-matter jurisdiction be
waived by the parties. See United States v. Cotton, 535 U.S. 625, 630,
122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Accordingly, questions of
subject-matter jurisdiction may be raised at any point during the
proceedings and may (or, more precisely, must) be raised sua sponte
by the court.
The requirement of standing is one part of the requirement that there must be
subject matter jurisdiction, Miller v. Brown, 462 F. 3d 312, 316 (4th Cir. 2006).
Therefore, sua sponte dismissal for standing is not only appropriate, but
mandatory.
The cases Mr. Kimberlin cite to the contrary are inapposite and can be
distinguished quickly.

For instance, all of the poetics about maintaining our

adversarial system are irrelevant; a dismissal for lack of jurisdiction doesnt

transform a judge into an inquisitor. Likewise, Mr. Kimberlin cites Fed. R. Civ. P.
6

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56, but that relates to summary judgment, not dismissal. On pages seven and eight
of Mr. Kimberlins informal brief, he quotes from a long passage in Warth v.
Seldin, 422 US 490, 501 (1975), stating that it is within the trial courts power to
allow or to require the plaintiff to supply ... further particularized allegations of
fact deemed supportive of plaintiffs standing. Mr. Kimberlin misinterprets this
grant of permission as a command. Likewise, on page nine of Mr. Kimberlins
informal brief, he cites a dissent in Cochran v. Morris, 73 F. 3d 1310 (4th Cir.
1996), but that dissenter was talking about the propriety of dismissing actions
under Rule 12(b)(6).

A dismissal for lack of subject matter jurisdiction is

governed by Rule 12(b)(1) and required by Rule 12(h)(3). Simply put, he has
found no authority that prevents a court below from doing what it is required to
dodismiss the case sua sponte for lack of subject matter jurisdiction when it is
lacking.
III.
IT IS NOT UNLAWFUL DISCRIMINATION TO TREAT
MR. KIMBERLIN DIFFERENTLY BECAUSE HE IS PRO SE
Finally, in an extraordinary display of chutzpah, Mr. Kimberlin complains
that he was treated differently because he is a pro se, being unable to write his own
summons. Undersigned counsel has squared off against Mr. Kimberlin in court for
over four years and cannot think of the last time Mr. Kimberlin hasnt begged
some court for some special dispensation because he is a pro se litigant.
7

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For instance, in Kimberlin v. Frey, No. GJH-13-3059 (D. Md. 2013), Mr.
Kimberlin tried to write a summons of his own without the permission of the court.
That is, he was caught red-handed forging a summons. Specifically, he created a
false summons naming a non-party in his case, and mailed it to that non-party in an
attempt to falsely convince them that they were a defendant in the suit. When
forced to respond to an order to show cause, Mr. Kimberlin blamed this forgery on
a misunderstanding of the process, which Plaintiff [Kimberlin] as a pro se litigant
did not understand[.] See Verified Response to February 21, 2014 Order to Show
Cause Re Twitchy4 Summons (ECF No. 102) 1, filed in Kimberlin v. Frey.5
Apparently, he believes that one must go to law school to learn not to forge
documents.
Likewise, ECF No. 124 in that same case quotes from a transcript from
Kimberlin v. Walker, et al. In the transcript, Mr. Kimberlin was caught altering
evidence of initial service of process. Under Maryland Law, one of the methods of
initial service of process is by certified mail, return receipt requested, restricted
delivery. Md. R. 2-121(a). However, Mr. Kimberlin did not choose the restricted
delivery option; instead he altered the certified mail green card to make it falsely
appear that he served a defendant properly when he had not. When the proof that
4

Twitchy, LLC, is the name of a company.

At this point in time, the case was captioned as Kimberlin v. National Bloggers
Club, et al.
8
5

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he had altered this evidence became undeniable, he offered his pro se status as an
excuse, to ill effect:
MR. KIMBERLIN:

You know, like I said Im a pro se litigant

and

THE COURT:

Dont even use that with me.

MR. KIMBERLIN:

Okay, okay

THE COURT:

You know its one thing to say Im pro se so

I dont understand rules or I dont
understand how to get something in and the
rules of evidence and another thing to alter
something and file it.

Now, when it suits him, Mr. Kimberlin is a champion of equality between pro se
litigants and lawyers representing clients? How convenient.
Of course, the actual distinction in the rule isnt between represented and
unrepresented parties, but between lawyers and non-lawyers. Because of their
expertise and their ethical constraints, lawyers are presumed to be more likely to
bring meritorious suits and not to file improper summons. This discrimination in
the rules, therefore, is rationally related to the difference between pro se parties and
attorneys and, therefore, it is lawful.

WHEREFORE, this Court should dismiss the appeal or summarily affirm the court
below, and this Court should provide any other relief that is just and equitable.

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July 11,
Friday,
July2016
8, 2016, 2016

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Respectfully submitted,

/s/ Aaron J. Walker

Aaron J. Walker, Esq.
Attorney for William J. J. Hoge III
Va Bar# 48882
7537 Remington Road
Manassas, Virginia 20109
(703) 216-0455
AaronJW1972@gmail.com
CERTIFICATE OF COMPLIANCE
In accordance with Fed. R. App. P. 32(a)(7)(B) and (C), Mr. Walker certifies
that the accompanying brief is printed in 14 point typeface, with serifs, and,
including footnotes, contains no more than 14,000 words. According to Microsoft
Word, it contains approximately 2204 words.

/s/ Aaron J. Walker

CERTIFICATE OF SERVICE
I certify that on July 8, 2016, all parties by U.S. Mail as the following addresses:
Brett Kimberlin, 8100 Beech Tree Road, Bethesda, Maryland 20817
Senator Mitch McConnell, 317 Russell Senate Office Building, Washington,
DC 20510
Senator Charles Grassley, 135 Hart Senate Office Building, Washington, DC
20510
/s/ Aaron J. Walker
10

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EXHIBIT A

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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
of this motion, Petitioner states the following:
1. This Court denied the petition on June 24, 2016. Petitioner received a copy
of the 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 9104 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 ofthe 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

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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 pro'{ided 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."
S. 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

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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 Petitioner 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

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granted an opportunity to present his claims to a court unburdened by [bias or

conflict of interest].

1/

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

Certificate of Service
ndent Walker
this 3rd day of July, 2016
Brett

AFFIDAVIT
I swear under penalty of perjury that the abov

Dated this 3nd day of July, 2016

Brett Kimberlin