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United States District Court
Northern District of New York
JOHN MURTARI, petitioner,
MEMORANDUM
SUPPLEMENT TO
v. HABEUS
CORPUS PETITION AND
TIMOTHY COWEN
EXHIBITS
Commissioner of Onondaga County Dept of Corrections,
respondent
CASE
No 00-CV-1232
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I submit this Memorandum in support of my petition for a
Writ of Habeas Corpus. I pray if the Court find some merit in the petition that it will
swiftly act for the sake of my family and grant release while the issues presented are
more closely examined. I have attempted to complete the request as quickly as possible to
salvage some precious family time, as noted on page three of my petition. The period ends
August 24th.
I. Exhaustion of State Remedies
In the State Supreme Court Judgement which established
custody and subsequent support levels (which was just enforced by the recent Family Court
proceeding, the Judge stated (Exhibit B):
"... any and all future questions ... including
issues of modification, custody and child support are referred to the Family
Court..."
Without a change in circumstance, New York State Law
prohibits changes in later proceedings. The eventual enforcement of an imputed
income support level resulted in my imprisonment. As stated on page four, I have
attempted through written petitions to gain my release with no success. Having already
been denied "poor person" status or assigned counsel I do not have the funds to
appeal and the appeal deadline has passed.
As the petition shows the original judgement was appealed
all the way to the U.S. Supreme Court. I believe the Court will find strongly supported
arguments in all the briefs submitted. The New York State Court of Appeals refused to
review the case because the judgement appealed from (Divorce), was not final (Exhibit E).
I could not get an explanation of that from other attorneys.
II. Grounds
The record will show this case was never about a
"deadbeat" parent trying to abandon their responsibility to their child and
escape child support. It will show a parent who consistently spent more supporting
his child than guidelines based on actual income would have required. Indeed, the State
Supreme Court Judge recognized my sincerity while at the same time exercising tremendous
control over my life and relationship with my child (Exhibit K):
"... the Defendant has voluntarily chosen to decrease
his income ... to spend more time during the day with Domenic ... business income
is unable to support his family obligations ... The time spent on volunteer work, no
matter how commendable, could be better used producing income ... The defendant needs to
adjust his priorities to adequately provide for his family."
The record will show income was adequate to meet fair
obligations and business growth projections, based on past performance, were good. It
appeared to be a very subjective decision.
Focusing on the issue of support amounts.
Petitioner is not challenging the ability of the State to establish support guidelines
based on a percentage of actual income. But the growth of imputed income awards, as this
case demonstrates, can have a ruinous effect on the family and child. Greater protections
need to be in place.
This case will clearly show it being used to punish and
control parent/child/work behaviors, even to the extent of demanding petitioner cease
volunteer work. Petitioner was destroyed by a support level that was suddenly raised to
over twice his actual income and then made retroactive over a year, who could survive it?
Regarding representation by Counsel. Petitioner
contends an inconsistent and unfair manner is used by New York State. As stated in page
five, New York does offer assigned counsel in Family Court over the issue of
custody or for a violation of a support order which may result in imprisonment. Not even
that level of protection was afforded Petitioner in State Supreme Court.
The trial judge refused to "level the playing
field" between spouses. On the original appeal (1997), petitioner was granted poor
person status by the Appellate Division. In 1998 Petitioner was granted assigned counsel
during a Family Court proceeding regarding child relocation; however, on that appeal poor
person status was denied. Petitoner was also denied assigned counsel in the recent
violation proceeding. The record will show that my financial situation grew steadily worse
during that entire period. Counsel assignment appears to be highly subjective with
no chance for appeal.
In this same year petitioner tried to submit a support
modification petition, but was told State Law did not allow assignment for those requests,
only support violations. New York will not assign counsel when support levels are set;
however, it will assign counsel during a later violation proceeding, which assumes the
support order is correct?
Given the dramatic and life long impact of such awards,
should not a parent being penalized by a State Official trying to impute income have the
assistance of counsel and protection of a jury? New York laws afford neither. The
same holds for the issue of custody. Certainly much more than the Constitutional provision
of $20 is at stake there, and regardless of historic background -- it is handled
esentially as a civil matter.
Ill. Matters Unique to this Case
Petitioner contends he is a moral individual deeply
concerned about the welfare of his family and community. He served his country as an Air
Force Pilot. He has been involved in his local church and also in local politics. He has
an extensive record of volunteer work with both the elderly and the homeless. He has no
criminal record. Through all his Court proceedings he has conducted himself with courtesy
and honesty. He has not concealed records. Many witnesses have testified to a warm and
loving parent/child relationship, no one testified to the contrary.
As part of what he felt as his civic duty he began carrying
a picture of his son in public buildings to petition his government for both an
investigation of the specifics of his case and Family Law Reform in general. He has formed
an Internet based group, WWW.KIDS-RIGHT.ORG, to promote NonViolent action.
The petitioner's family owned business has allowed him to
continue these activities. In a recent example he was arrested over 10 times while trying
to do the same inside the Syracuse Federal Building. Over a period of three months he
spent about 30 days in jail. Eventually, all charges, both State and Federal were
dismissed. Mr. Olmstead, an assistant US Attorney for the Northern District is familiar
with the specifics. Mr. James Stern, an attorney in Federal practice, is also familiar
with these efforts. The petitioner eventually won the right to proceed with his conduct
inside the building.
These sincere efforts may have raised some resentment among
local officials. Petitioner, who has never spent a day as a convicted priosner, was
assigned the maximum sentence of 6 months. Petitioner had pleaded with the Judge for
mercy, to at least delay the sentence so that his son, Domenic, presently in Colorado
could spend a planned vacation with his father, grandmother, and other local family
members (July 13 - August 24), The request was denied with the words (Exhibit H):
"... let me say Mr. Murtari that if you put all your
effort, if all the efforts you had in reforming the system, if you directed these efforts
specifically in paying child support your life and Domenic's would be much better ...
The question is not best interests of the child at this point ... this may cause you to
understand your failure ... has consequences, specifically to Domenic. Not just
generally in the system ... you need a wake up call to what you are doing ..."
IV. Conclusion
The petitioner believes no such "wake up call"
was justified, not for the petitioner, or his seven year old son, or his mother who turned
84 on July 21 in an empty home. If not for the "best interest of the child",
what is the purpose of any support proceeding? There are some who find the denial of even
a delay in sentence a cruel twist to the already severe punishment.
This is about a parent and citizen of the United States who
came from a poor family and saw a different balance between material and emotional
prosperity. A family that was rich in love and affection. He wishes to share that same
love and affection with his child. This most basic family right needs much stronger
procedural protection than is presently afforded.
The briefs already submitted will be able to highlight case
law and legal scholars who are now recognizing the parent has a "liberty
interest" in the care and companionship of their children and also freedom to choose
a career.
In a time when divorce exceeds anything the Founding
Fathers could have imagined, we need to consider ensuring the protection of Counsel and of
a Jury in these proceedings. I recently finished a biography of Thomas Jefferson. One can
only imagine his reaction to being transported to the present time. Forced through a court
proceeding without the benefit of Counsel or protection of a Jury -- and finding himself
separated from the daughters he loved very much and also thrown out of Monticello. He
might join those scholars in saying these protections are already in place in our current
Constitution. Petitioner asserts the same.
LIST OF EXHIBITS
A. Incarceration Order, State Family Court, June 28, 2000
B. Divorce Judgement, State Supreme Court, March 26, 1997
C. New York State Appellat Division Memorandum, April 29,
1998
D. Questions Raised to Appellate Division,
E. Response of New York State Court of Appeals, August 31,
1998
F. Response of United States Supreme, Court, January 11,
1999
G. Questions Raised to United States Supreme Court
H. Session Excerpt, State Family Court, July 6, 2000
I. Petition for Delay to Family Court, July 7, 2000
J. N/A
K. Divorce Findings, State Supreme Court, March 26, 1997
L. Questions Raised to New York State Court of Appeals
NOTE: These were collected from our web site,
www.kids-right.org, with the help of friends. Originals are mostly boxed at my Mother's
home. Due to age and inability to read English it is difficult for her to retrieve
originals. There are no brothers or sisters. I apologize for the poor quality of some.
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